Legislature(2001 - 2002)

04/09/2001 04:43 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                   
                    SENATE JUDICIARY COMMITTEE                                                                                
                           April 9, 2001                                                                                        
                             4:43 p.m.                                                                                          
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Robin Taylor, Chair                                                                                                     
Senator Dave Donley, Vice Chair                                                                                                 
Senator John Cowdery                                                                                                            
Senator Gene Therriault                                                                                                         
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Johnny Ellis                                                                                                            
                                                                                                                              
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 13(CRA)                                                                              
"An Act relating to municipal  service areas and providing for voter                                                            
approval  of the formation,  alteration, or  abolishment of  certain                                                            
service areas."                                                                                                                 
     MOVED SCS CSSSHB 13 (JUD) OUT OF COMMITTEE                                                                                 
                                                                                                                                
SENATE JOINT RESOLUTION NO. 22                                                                                                  
Proposing an  amendment to the Constitution  of the State  of Alaska                                                            
relating  to the  retention  elections for  justices  of the  Alaska                                                            
supreme court and judges of the superior court.                                                                                 
     MOVED CSSJR 22 (JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
SENATE BILL NO. 161                                                                                                             
"An Act relating  to the withholding of salary of  justices, judges,                                                            
and  magistrates;   relating  to   requiring  prompt  decisions   by                                                            
justices,  judges,   and  magistrates;  and  relating   to  judicial                                                            
retention elections for judicial officers."                                                                                     
     HEARD AND HELD                                                                                                             
                                                                                                                                
CS FOR SENATE BILL NO. 91(HES)                                                                                                  
"An Act relating  to information and services available  to pregnant                                                            
women and  other persons;  and ensuring informed  consent before  an                                                            
abortion may  be performed, except  in cases of medical emergency."                                                             
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 166                                                                                                             
"An Act relating to the  time of filling by appointment a vacancy in                                                            
the office of United States senator."                                                                                           
     MOVED SB 166 OUT OF COMMITTEE                                                                                              
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
HB 13 - See Community and Regional Affairs minutes dated 3/19/01                                                                
          and Judiciary minutes dated 4/2/01.                                                                                   
                                                                                                                                
SJR 22 - See Judiciary minutes 4/2/01.                                                                                          
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Ms. Patricia Swenson                                                                                                            
Staff aid to Representative Bunde                                                                                               
Alaska State Capitol                                                                                                            
Juneau, Alaska 99801-1182                                                                                                       
POSITION STATEMENT:  Testified on HB 13                                                                                       
                                                                                                                                
Ms. Stephanie Cole, Administrative Director                                                                                     
Alaska Court System                                                                                                             
303 K Street                                                                                                                    
Anchorage, Alaska 99501-2084                                                                                                    
POSITION STATEMENT:  Opposed to SJR 22                                                                                        
                                                                                                                                
Ms. Sandra Altland                                                                                                              
Staff aid to Senator Ward                                                                                                       
Alaska State Capitol                                                                                                            
Juneau, Alaska 99801-1182                                                                                                       
POSITION STATEMENT:  Introduced SB 91                                                                                         
                                                                                                                                
Dr. Bob Johnson                                                                                                                 
PO Box 945                                                                                                                      
Kodiak, Alaska 99615-0945                                                                                                       
POSITION STATEMENT:  Opposed to SB 91                                                                                         
                                                                                                                                
Ms. Karen VosBurgh                                                                                                              
Alaska Right to Life                                                                                                            
PO Box 1847                                                                                                                     
Palmer, Alaska 99645                                                                                                            
POSITION STATEMENT:  Supported SB 91                                                                                          
                                                                                                                                
Ms. Christina Talbott                                                                                                           
535 Harris Street                                                                                                               
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Testified on SB 91                                                                                       
                                                                                                                                
Ms. Karen Pearson, Director                                                                                                     
Division of Public Health                                                                                                       
Department of Health &                                                                                                          
  Social Services                                                                                                               
PO Box 110601                                                                                                                   
Juneau, Alaska 99801-0601                                                                                                       
POSITION STATEMENT:  Testified on SB 91                                                                                       
                                                                                                                                
Ms. Jennifer Rudinger, Executive Director                                                                                       
Alaska Civil Liberties                                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Deferred testimony  on SB 91 to a later  date.                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-16, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN ROBIN TAYLOR called  the Senate Judiciary Committee meeting                                                          
to  order  at 4:43  p.m.    Senator  Donley,  Senator  Cowdery,  and                                                            
Chairman Taylor  were present.  Senator  Therriault arrived  at 4:44                                                            
p.m.  Chairman  Taylor announced the  first order of business  would                                                            
be HB 13.                                                                                                                       
                                                                                                                                
                                                                                                                                
           HB 13-SERVICE AREAS: VOTER APPROVAL/TAX ZONES                                                                    
                                                                                                                                
SENATOR DONLEY  moved to  adopt SCS CSSSHB  13 as the working  draft                                                            
for the  committee.   There being  no objection,  SCS CSSSHB  13 was                                                            
adopted.                                                                                                                        
                                                                                                                                
MS. PATTY  SWENSON,  staff to Representative  Bunde,  said the  only                                                            
change in  the SCS to CSHB  13 was on page  2, lines 27 through  28.                                                            
The change  says that taxes  levied within  a differential  tax zone                                                            
may  only be  used  for the  services  provided  in that  tax  zone.                                                            
During  the last  judiciary  meeting there  was a  discussion  about                                                            
whether a differential  service area could levy a one mill tax for a                                                            
specific  purpose  that may  only  cost one  quarter  mill with  the                                                            
difference  being  used in  another  part  of the  tax  zone.   This                                                            
version of HB 13 would prevent that from happening.                                                                             
                                                                                                                                
SENATOR THERRIAULT  said he had worked with Representative  Bunde in                                                            
resolving this problem and was happy with the outcome.                                                                          
                                                                                                                                
SENATOR DONLEY  moved SCS CSSSHB 13  from committee with  individual                                                            
recommendations.   There  being no  objection, SCS  CSSSHB 13  (JUD)                                                            
moved from committee.                                                                                                           
                                                                                                                                
                                                                                                                                
            SJR 22-CONST. AM: JUDICIAL OFFICERS' TERMS                                                                      
                                                                                                                                
SENATOR DONLEY  said the CS for SJR 22 would change  judiciary terms                                                            
in the  constitution to six  years for a  supreme court justice  and                                                            
four years for a superior court judge.                                                                                          
                                                                                                                                
SENATOR  DONLEY moved  to  adopt CSSJR  22 (JUD).    There being  no                                                            
objection, CSSJR  22 (JUD) was adopted as the working  draft for the                                                            
committee.                                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR noted that  Ms. Stephanie Cole from the Alaska Court                                                            
System was available  for testimony as well as Mr.  Bill Cotton from                                                            
the Alaska  Judicial Council.   There were  no questions for  either                                                            
person.                                                                                                                         
                                                                                                                                
SENATOR DONLEY  moved CSSJR 22 (JUD) from committee  with individual                                                            
recommendations.   There being  no objection,  CSSJR 22 (JUD)  moved                                                            
from committee.                                                                                                                 
                                                                                                                                
                                                                                                                                
              SB 161-NO PAY FOR JUDGES UNTIL DECISION                                                                       
                                                                                                                                
SENATOR  DONLEY  said  existing  law has  been  interpreted  by  the                                                            
judiciary  to  mean  that  the  six  month  existing  provision  for                                                            
conferring  on  judicial   decisions  only  applies   to  individual                                                            
justices.     So  that  once  an   individual  justice  produces   a                                                            
preliminary  opinion  for circulation  among  other  members of  the                                                            
court,  the  six month  provision  has  been  complied with  but  an                                                            
endless  amount of  time can go  on from  that time.   SB 161  would                                                            
create  a  deadline   for  final  action  by  an  appellate   court,                                                            
shortening  the six month time frame  to four months for  individual                                                            
justices  and judges. SB  161 would also  require an explanation  in                                                            
the voter's  guide  of why  a judicial  officer had  not received  a                                                            
salary warrant.                                                                                                                 
                                                                                                                                
MS. STEPHANIE COLE, Administive  Director, Alaska Court System, said                                                            
it was clear that the purpose  of SB 161 was to encourage timeliness                                                            
and eliminate  unnecessary delay.  Ms. Cole said that  Chief Justice                                                            
Fabe wanted the  committee to know that she shared  the feeling that                                                            
timeliness  issues needed  to be addressed  and  that the court  was                                                            
addressing  them.  A  year ago the  court adopted  trial court  time                                                            
standards and  is now making active efforts to clean  up its data to                                                            
make sure  it knows the  current situation  of its cases, to  assess                                                            
situations, and  to develop new monitoring and procedural  processes                                                            
to shorten time delays.   Last fall all judges went through training                                                            
on case  management  and control  technique,  and the  court is  now                                                            
developing  a mentoring program  so that when  a new judge  comes to                                                            
the bench someone  will help them  with case management techniques.                                                             
Appellate  courts would also  be addressing  delay, and the  supreme                                                            
court has  adopted time  standards and new  procedures for  flagging                                                            
and  monitoring  cases.    Next year  Chief  Justice  Fabe  will  be                                                            
reporting  to the  legislature on  the supreme  court's progress  in                                                            
speeding  up  its cases.    She said  it  was  easier to  apply  new                                                            
procedures  to new cases and  the court would  have to figure  out a                                                            
way to  handle older  cases.   Now, every  case over  a year old  is                                                            
being flagged  and brought up at every  conference to see  if it can                                                            
be moved through more quickly.                                                                                                  
                                                                                                                                
MS. COLE urged  that SB 161 not move forward because  the imposition                                                            
of time frames  would have a substantial fiscal impact  on the court                                                            
system.   In  the court's  research  on SB  161 it  looked at  other                                                            
states  with statutes  similar  to  Alaska  - Nevada,  Montana,  and                                                            
Wisconsin, and  in all three states these statutes  were found to be                                                            
unconstitutional.   Ms. Cole submitted copies of those  cases to the                                                            
committee.    The   cases  found  that  those  types   of  statutory                                                            
provisions are  unconstitutional because they violate  separation of                                                            
powers  and  because  they  concern  the  efficient   and  effective                                                            
functioning  of  a  court  system,   which  is  a  matter  of  court                                                            
administration  within  the  exclusive  authority  of  the  judicial                                                            
branch of  government.  The  cases also found  that laws like  those                                                            
violate  the  constitutional   prohibition  against   diminishing  a                                                            
judicial  officers   salary  while   in  office  and  are   also  an                                                            
impermissible  impairment of contract.   It was clear from  existing                                                            
case  law that  if a  challenge were  to be  mounted  to either  the                                                            
existing statute or the proposed revised statute it would fail.                                                                 
                                                                                                                                
CHAIRMAN  TAYLOR  asked   if  the  same  would  hold  true  for  the                                                            
withholding  of a salary  warrant  on a superior  or district  court                                                            
judge if they were to violate the existing statute.                                                                             
                                                                                                                                
MS. COLE responded yes, upon challenge.                                                                                         
                                                                                                                                
Number 790                                                                                                                      
                                                                                                                                
MS.  COLE said  the  appellate  court had  proposed  time  standards                                                            
without penalty provisions  attached and that salary warrants do not                                                            
stop  if  the time  standards  are  not  met.   Time  standards  are                                                            
statistical  time standards rather  than individual case  reporting.                                                            
                                                                                                                                
MS.  COLE said  there  was also  a provision  in  SB  161 saying  an                                                            
appellate  judge or justice  would not receive  a paycheck  if there                                                            
were  any matters  pending  before  the court  for more  than  eight                                                            
months, regardless  of whether  the case had  been assigned  to that                                                            
judge.  The  court system felt this  was a fundamental fairness  and                                                            
logic  issue  because  a  judge  or  justice   could  be  performing                                                            
diligently,  efficiently,  and in a  timely manner  and that  person                                                            
could still  be deprived of  a paycheck.   There are reasons  a case                                                            
lingers  in the supreme  court longer  than the  time assigned  to a                                                            
particular justice.   For example, in the last seven  years, four of                                                            
the five justices  turned over, and  in each of those circumstances                                                             
the  caseload  was  reassigned  to  another  justice.    If  a  case                                                            
circulates  and  there  is a  dissenting  opinion,  it is  not  held                                                            
against the author  or justice because there are many  reasons why a                                                            
case could  last  longer.  She  said most  of the  cases before  the                                                            
court now have been there less than a year.                                                                                     
                                                                                                                                
SENATOR COWDERY asked how long a judge takes on an appeal issue.                                                                
                                                                                                                                
MS. COLE  said at  the appellate  level, six months  is the  outside                                                            
time after  an oral argument  is assigned to  a judge, and  if there                                                            
has been no oral argument  the case is conferenced and assigned to a                                                            
judge.  From  that time a judge or  justice has a six month  period.                                                            
                                                                                                                                
                                                                                                                                
SENATOR COWDERY asked what the shortest time was.                                                                               
                                                                                                                                
MS. COLE replied  there are many expedited  matters that  go through                                                            
the courts with the shortest  time being a matter of days or weeks -                                                            
children's proceedings  and domestic cases are expedited.  All cases                                                            
do not come  up against the six month  time period but the  majority                                                            
of cases are decided within  that time period, and 64 percent of the                                                            
supreme  court decisions  go  through within  the  eight month  time                                                            
frame.                                                                                                                          
                                                                                                                                
MS.  COLE said  that  although  the court  system  felt  SB 161  was                                                            
unconstitutional,  with reference  to the reduction in time,  it has                                                            
provided  a fiscal note  in conformance  with statutory provisions.                                                             
The six month  rule has been in conformance since  statehood and the                                                            
legislature has  given the courts sufficient funding  to allow trial                                                            
court judges to make decisions  within six months.  Judges have been                                                            
able to meet  current deadlines but  she said it was unrealistic  to                                                            
think that  judges would  be able to meet  such radically  shortened                                                            
deadlines  without  additional  resources.    SB  161 has  a  strict                                                            
liability rule,  no excuses are allowed  for such things  as illness                                                            
or the unexpected  leave of a law clerk.  Therefore,  if a case were                                                            
not decided  within the  six month  referral, a  judge would  lose a                                                            
paycheck, and SB 161 is changing that time to four months.                                                                      
                                                                                                                                
SENATOR DONLEY  injected that a case could be reassigned  to another                                                            
judge.                                                                                                                          
                                                                                                                                
MS. COLE said a case could  be reassigned but that may or may not be                                                            
an efficient way to handle the case depending on its complexity.                                                                
                                                                                                                                
MS.  COLE  noted  that Alaska's  supreme  court  is  not  a  "cert."                                                            
[Certiorari]  court  and has  no control  over the  number of  cases                                                            
before it.   If the supreme court  were to meet an eight  month time                                                            
frame  for all cases,  it would  have to  have some  control of  the                                                            
cases  that came  to it.   In the  fiscal note  narrative, there  is                                                            
comparative information  about the productivity of  Alaska's supreme                                                            
court  versus  the   supreme  courts  of  California,   Oregon,  and                                                            
Washington,  which are also "cert."  courts.  In 1999, California's                                                             
seven  supreme court  justices authored  an average  of 13  opinions                                                            
apiece,  Oregon's seven justices  authored  14 opinions apiece,  and                                                            
Washington's nine justices  each authored approximately 16 opinions.                                                            
Alaska's supreme  court has five justices, and last  year out of 153                                                            
cases  there were  approximately  31  opinions  per justice.    Each                                                            
opinion averaged 20 pages  and that was in addition to petition work                                                            
and other work that needed to be done.                                                                                          
                                                                                                                                
MS. COLE said that currently  the supreme court is issuing decisions                                                            
within  the eight  month period  under  SB 161 in  approximately  64                                                            
percent of  the time.  It is the court's  assessment that  the eight                                                            
month  time in SB  161 could  not be  met unless  the supreme  court                                                            
became a cert. court by  the creation of an intermediate civil court                                                            
of  appeals.   The  criminal  court  of appeals  has  three  members                                                            
sharing a caseload and  it is currently issuing decisions within the                                                            
eight month period  approximately 71 percent of the  time.  While it                                                            
is possible  the court  of appeals  could not  meet the eight  month                                                            
deadline without the infusion  of additional judicial resources, the                                                            
fiscal note reflects  the request of two additional  staff people to                                                            
help meet  deadlines.  With  reference to  trial courts, there  is a                                                            
lot  of  variation  around  the state  with  regard  to  volume  and                                                            
complexity.   The fiscal note looks  to the primary resource  that a                                                            
judge has to help  him or her decide cases - law clerks.   There are                                                            
certain  superior  court  judges  that  do  not  have  that  primary                                                            
resource and the  fiscal note adds a full time law  clerk in Barrow,                                                            
Kotzebue, and  Dillingham.  It also  adds judicial resources  in the                                                            
locations  that have  the heaviest  caseloads or  the highest  trial                                                            
rates, which is Anchorage, Fairbanks, Palmer, and Bethel.                                                                       
                                                                                                                                
MS.  COLE  said  Section  2  has  a  very complex   requirement  for                                                            
information  and it requires  the administrative  court director  to                                                            
report that information  to the lieutenant governor.   The court had                                                            
no  problem with  the  first  part of  Section  2 -  salary  warrant                                                            
information,  which is exception reporting,  but the second  part of                                                            
the information requires  the administrative director to track, age,                                                            
and  count every  decision  a  judge makes.    Ms. Cole  reads  that                                                            
language to  mean that every time  a judge issues an order,  whether                                                            
it is  signing a stipulation  for continuance,  signing a  reference                                                            
from a master, or whatever  a judge does, would have to be reported.                                                            
The current  system could  not track all  that information,  but the                                                            
report at  the end  of the year  would say, "this  judge made  5,000                                                            
decisions in zero  to four months and one decision  in four to eight                                                            
months, or  whatever the time frame  is."  She said this  might give                                                            
some information  on how busy judges  are, but she was not  sure the                                                            
information could be collected.                                                                                                 
                                                                                                                                
MS. COLE noted  that some of the current  language was very  general                                                            
such as, "no matter referred  to the justice for opinion or decision                                                            
has been  uncompleted or  undecided by the  justice for a period  of                                                            
more than six months."   SB 161 is much more descriptive in terms of                                                            
what milestones are required.                                                                                                   
                                                                                                                                
SENATOR DONLEY asked her to follow up on her last point.                                                                        
                                                                                                                                
MS. COLE said  that right now, cases  in which an oral argument  has                                                            
not been requested  are treated exactly  the same as cases  in which                                                            
an oral argument  has been requested, and they would  be conferenced                                                            
on the same date.   When the last responsive pleading  comes in, the                                                            
law  clerk does  a  work up  and  it is  then  circulated.   At  the                                                            
conference on  the case, the case is assigned and  it is decided who                                                            
is to write the opinion.                                                                                                        
                                                                                                                                
Number 1355                                                                                                                     
                                                                                                                                
SENATOR  DONLEY  asked why  a  shorter period  of  time  would be  a                                                            
problem.                                                                                                                        
                                                                                                                                
MS.  COLE replied  that  going  from  eight months  to  four  months                                                            
severely shortens the time  periods, and any period of time matters.                                                            
                                                                                                                                
SENATOR DONLEY  clarified that  it was not  the amount of time  that                                                            
mattered,  but that  when a justice  is already  under a  restraint,                                                            
every day counts.                                                                                                               
                                                                                                                                
MS. COLE said that was correct.                                                                                                 
                                                                                                                                
SENATOR DONLEY  asked about fairness and equity for  the citizens of                                                            
Alaska going  through the judicial  process.  He said there  was one                                                            
case that  had not  been decided  in three  years,  and he asked  if                                                            
there was a list for cases 18 months to 2 years old.                                                                            
                                                                                                                                
MS. COLE  said there are  currently 19 cases  before the court  that                                                            
are more than  one year old.  There  are 465 cases currently  before                                                            
the court and  of those, three are more than two years  old.  Of the                                                            
465  cases, approximately   220 are  fully  briefed and  awaiting  a                                                            
decision.  Of the 220 cases, 19 are one year old.                                                                               
                                                                                                                                
CHAIRMAN TAYLOR asked if that number was from oral argument.                                                                    
                                                                                                                                
MS. COLE said the 220 were dated from the date of oral argument.                                                                
                                                                                                                                
SENATOR DONLEY  asked about fairness  to the citizens of  Alaska who                                                            
have waited  over three years for  a decision.  He thought  this was                                                            
blatant unfairness  to the people who depend on the  judiciary for a                                                            
resolution of conflicts in a civilized society.                                                                                 
                                                                                                                                
Number 1497                                                                                                                     
                                                                                                                                
MS. COLE said  the court system was totally committed  to working on                                                            
timeliness  and this could  be seen from what  the courts have  done                                                            
and are  planning to  do.  She said  when looking  at the number  of                                                            
cases going through the  court, there are three cases over two years                                                            
old,  which is  an extremely  small percentage,  but  that is  scant                                                            
comfort for the litigants  in those three cases and the court system                                                            
is doing everything  it can to make  sure it does not happen  in the                                                            
future.                                                                                                                         
                                                                                                                                
SENATOR  DONLEY  said  he  would  be  interested   in  exploring  an                                                            
extension for the instances  when a new judge comes to the court and                                                            
is assigned  to a case  he or she  has not heard  the oral  argument                                                            
for.  He asked how the court handled this type of delay problem.                                                                
                                                                                                                                
MS.  COLE  said  this  was  a  difficult  situation  to  deal  with.                                                            
Sometimes a justice  will stay on after he or she  retires to handle                                                            
their  caseload,   but  they  cannot  always  stay   until  that  is                                                            
accomplished.  She said  that much of what the supreme court does is                                                            
shrouded   in  confidentiality    and  it   cannot   be  seen   when                                                            
reassignments  occur or when a case  is waiting for a dissent  to be                                                            
written.  Many factors  can play into the delay of an older case and                                                            
when those cases come out some have lengthy dissents.                                                                           
                                                                                                                                
SENATOR  DONLEY asked  how the court  handles the  problem of  a new                                                            
justice  being empanelled  who  had not  been present  for the  oral                                                            
argument.   Do they  recuse themselves  from a  decision or  do they                                                            
vote?                                                                                                                           
                                                                                                                                
MS.  COLE said  she  believed they  listen  to a  tape  of the  oral                                                            
argument.                                                                                                                       
                                                                                                                                
SENATOR  DONLEY asked if  the policy  was to allow  them to  vote in                                                            
these cases.                                                                                                                    
                                                                                                                                
MS.  COLE said  she  believed that  was  the case  but  she was  not                                                            
certain.   She  said she  would find  out  if there  were a  written                                                            
policy on this issue.                                                                                                           
                                                                                                                                
Number 1676                                                                                                                     
                                                                                                                                
SENATOR THERRIAULT asked if there was allowance for legislative                                                                 
direction or penalty with regard to payment in these cases.                                                                     
                                                                                                                                
MS. COLE said no.  The cases were clear that any infringement in                                                                
this area was impermissible.                                                                                                    
                                                                                                                                
SENATOR THERRIAULT said he would like to read through the cases to                                                              
see how they would apply to Alaska.                                                                                             
                                                                                                                                
SENATOR DONLEY asked if the court system was opposed to the                                                                     
information required in Section 1 being included in the voter's                                                                 
guide.                                                                                                                          
                                                                                                                                
MS. COLE said the court system takes no position on that.                                                                       
                                                                                                                                
Number 1817                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR said he had often wondered if the existing statute                                                              
was unconstitutional.                                                                                                           
                                                                                                                                
     I wonder  why we have all abided  by it, those of us  that                                                                 
     are constrained under it  for so long.  My only thought on                                                                 
     that  is that  it might  be that  no judge  has wished  to                                                                 
     bring  suit for failure to get  out a decision and having                                                                  
     his paycheck  or her paycheck withheld, and challenge  the                                                                 
     constitutionality  of the right  of the legislature  to do                                                                 
     that.  I'm not sure how  each of these cases were probably                                                                 
     brought  by  people  who  were  not  facing  a  retention                                                                  
     election themselves.   But that is fascinating  and I know                                                                 
     there   have   been  constitutional    conflicts  between                                                                  
     legislatures  and courts.   In fact  we've just come  from                                                                 
     the floor  where we had a pretty significant debate  about                                                                 
     what our  supreme court could  order commissioners to  do.                                                                 
     We've had, as you know,  a recent decision where we have a                                                                 
     superior court judge threatening  to hold the commissioner                                                                 
     of health and social services  in contempt of court should                                                                 
     she not spend and appropriate  money on a subject that she                                                                 
     had  no  money   to  spend  or  appropriate  because   the                                                                 
     legislature  had not given her  any funding for that.   So                                                                 
     she is between a very difficult  rock and a hard place and                                                                 
     the administration choose  to support her and her concepts                                                                 
     rather than to support the  legislature and what policy it                                                                 
     has  set  down.    So  we  find  ourselves  in  this  very                                                                 
     difficult position in the  HESS budget because of that.  I                                                                 
     know that  in the state of Colorado  the state had failed                                                                  
     to grant  any increase  in pay to the  judges for several                                                                  
     years  and so the supreme court  of the state of Colorado                                                                  
     issued an order to the treasurer  of the state of Colorado                                                                 
     ordering  him to  increase  pay to  the judges.   When  he                                                                 
     refused to  do so they threatened to hold him  in contempt                                                                 
     of court,  at which point this  constitutional crisis  had                                                                 
     built to a sufficient place  that the Colorado legislature                                                                 
     sat down with  the court and they figured out  where we go                                                                 
     from here  and they eventually got their raises.   I, like                                                                 
     Senator  Therriault and the rest  of the committee,  don't                                                                 
     wish to start  some sort of constitutional confrontation,                                                                  
     and we  appreciate the good efforts  of the Chief Justice                                                                  
     and Chief  Justice Matthews was  also working on the  same                                                                 
     scheme.   My fear is  though, it's like  a former justice                                                                  
     once told  me about one of the  employees, his suggestion                                                                  
     was the only  reason that fellow was still with  us, is he                                                                 
     hasn't  made three  of us  mad all  at the same  time.   I                                                                 
     think  the same may  prevail when it  comes to this  rule.                                                                 
     It's  going   to  take  a  unanimous  court  probably   to                                                                 
     establish that guideline  or that rule and I think each of                                                                 
     us wonders  what will provide the teeth to have  that rule                                                                 
     or that policy carried out within the court.                                                                               
                                                                                                                                
SENATOR DONLEY thanked Ms. Cole for her thoughtful testimony.                                                                   
                                                                                                                                
SENATOR DONLEY  proposed the committee  work on a CS that  maintains                                                            
the existing six month  standard with an exception provision for the                                                            
arrival of a new justice.   He said he would like written guidelines                                                            
on how  justices are allowed  to vote, whether  they are allowed  to                                                            
vote without  hearing the oral argument.   He said Section  2 needed                                                            
to  redefine  orders,  which  would  provide  a  six  month  initial                                                            
decision.                                                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR said  SB 161  would be  held in  committee until  a                                                            
better working document was established.                                                                                        
                                                                                                                                
Number 2053                                                                                                                     
                                                                                                                                
           SB 91-ABORTION: INFORMED CONSENT; INFORMATION                                                                    
                                                                                                                                
MS. SANDRA ALTLAND, staff  to Senator Ward, noted that there are two                                                            
main parts  to informed consent.   First,  the Department of  Health                                                            
and Social Services  (DHSS) would be required to develop  a pamphlet                                                            
that would be  available to the public.  The pamphlet  would consist                                                            
of factual  and nonbiased  information that  talked about  pregnancy                                                            
and abortion  alternatives available  throughout the state.  Second,                                                            
SB 91 asks that  the current signed consent requirements  be changed                                                            
from regulation to statute  and that definite points be covered with                                                            
pregnant women during informed consent.                                                                                         
                                                                                                                                
MS.  ALTLAND  said  it is  important  for  women  to  have  abortion                                                            
information  before them  so they  can make the  best decision,  and                                                            
DHSS is to compile a pamphlet  and distribute it, free of charge, to                                                            
anyone who wants  it.  The pamphlet would discuss  fetal development                                                            
and it would  use the term "unborn  child."  The words unborn  child                                                            
need to  be in the pamphlet  because the  pamphlet would be  written                                                            
for people who want to  use terms such as baby or unborn child - the                                                            
term fetal development dehumanizes the reality of pregnancy.                                                                    
                                                                                                                                
MS.  ALTLAND  said  that  page  2,  line  28  talks  about  abortion                                                            
procedures,  medical risks,  and psychological  effects.  Often  the                                                            
psychological  effects  do not surface  until years  later and  this                                                            
connection  is not  made at  the time.   She said  this information                                                             
needed  to be up  front and  in a manner  that speaks  to the  woman                                                            
going  through this  situation, telling  them there  are chances  of                                                            
severe medical  risk.  The information should be available  anyplace                                                            
a pregnant  woman would be, such as  public hospitals, clinics,  and                                                            
health  facilities  throughout  the  state  and it  should  also  be                                                            
available if an  administrator in a private hospital  would like it.                                                            
                                                                                                                                
MS. ALTLAND  said  SB 91 asks  doctors to  take time  in giving  the                                                            
necessary  information to women  who are trying  to make a  decision                                                            
about abortion, and to  also give them other alternatives.  The bill                                                            
also clarifies  what  informed consent  is, and  the pamphlet  would                                                            
have pictures  of  fetal development,  showing the  unborn child  at                                                            
different stages.                                                                                                               
                                                                                                                                
Number 2354                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT asked  if SB 91 substantially  modified  current                                                            
regulations.                                                                                                                    
                                                                                                                                
MS. ALTLAND noted  that laying out the different points  of informed                                                            
consent would  help unify the information that had  been given.  She                                                            
said  some doctors  are  very  good at  providing  information,  but                                                            
others do not take the time for good informed consent.                                                                          
                                                                                                                                
SENATOR THERRIAULT  asked if SB 91  was just copying the  regulation                                                            
language into statute.                                                                                                          
                                                                                                                                
MS. ALTLAND was not sure of the answer.                                                                                         
                                                                                                                                
Number 2243                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  noted that it was  not his intention to  move SB 91                                                            
from committee  at this  time because  there had  not been  adequate                                                            
notice of the meeting or adequate time for testimony.                                                                           
                                                                                                                                
DR. BOB JOHNSON, testifying  via teleconference from Kodiak, said he                                                            
has practiced medicine  in Alaska from 1955 to 1994 when he retired.                                                            
He said  he performed abortions  during that  time and was  the only                                                            
physician in  Kodiak that did.  He  said he had faxed the  committee                                                            
an article  he wrote several years  ago on abortion.  He  opposed SB
91 as  an unnecessary  impediment  to the free  exercise of  choice,                                                            
which  had been  a  legal right  of  women  since Roe  versus  Wade.                                                            
Administratively  there  are  requirements  in place  for  reporting                                                            
abortions,  the stage of  gestation, reasons  for the abortion,  and                                                            
complications.   The matter of consent  is reiterated many  times in                                                            
all areas of  medical care and no  physician would fail to  obtain a                                                            
signed  consent.   A woman  has a  right to  ask  her physician  any                                                            
question and a physician  has the obligation to answer that question                                                            
to the best  of his or her  ability.  He said  there was no  need to                                                            
designate  exactly what needed  to be asked,  particularly  since it                                                            
often mitigated against  treating each patient as an individual with                                                            
individual  needs.  Dr. Johnson  felt that  SB 91 was redundant  and                                                            
its aim  was to  control  individuals and  impose  what some  people                                                            
think  should be  required  in order  for  women to  exercise  their                                                            
choice.                                                                                                                         
                                                                                                                                
MR.  JOHNSON said  if the  legislature  must  pass SB  91, he  would                                                            
suggest that members  listen to the suggestions of  the Alaska Civil                                                            
Liberties  Union and  consider taking  out the  emotionally  charged                                                            
words  "unborn child."   He  said someone  who was  not in favor  of                                                            
abortions  had obviously  put  this into  the bill,  and the  proper                                                            
medical  term was  fetus, which  was not an  emotionally  disruptive                                                            
term.                                                                                                                           
                                                                                                                                
MR. JOHNSON  commented  that the  residency requirement  of 30  days                                                            
should  be eliminated.   He said  he hoped  committee members  would                                                            
read the article he had sent.                                                                                                   
                                                                                                                                
Number 2074                                                                                                                     
                                                                                                                                
MS. KAREN VOS  BURGH, Executive Director  for Alaska Right  to Life,                                                            
said SB  91 is  severely needed.   Many  times doctors  do not  give                                                            
patients  full information  and sometimes  the information  not very                                                            
factual.   She had  talked with  many women  who say  they were  not                                                            
given  the  right  information  therefore  it  should  be  required.                                                            
Abortionists do not want  the baby referred to as baby, they want it                                                            
referred to as  fetus - the "preborn baby" is sometimes  referred to                                                            
as pregnancy  tissue  or "just  a bunch  of cells"  or a product  of                                                            
conception.    Virtually  nothing  is being  done  by  the  abortion                                                            
industry  or the general  press to  warn women  who are considering                                                             
abortion  about  its  high  rate  of  risk.    Several  states  have                                                            
implemented  right  to know  laws  and Alaska  should  follow  suit.                                                            
There are over 100 potential  complications associated with abortion                                                            
and there are  many studies that prove  this.  The abortionists  say                                                            
there  is no  connection  between  breast  cancer and  abortion  but                                                            
several studies  have proven  otherwise.   Legislators in 11  states                                                            
are pushing  for pro-life laws requiring  abortion practitioners  to                                                            
tell  women  that an  abortion  could  raise  their risk  of  breast                                                            
cancer.   This  is not  only an  abortion  issue but  also a  health                                                            
issue.   She said the medical  establishment  is trying to  cover up                                                            
the link between  abortion and breast  cancer and that someday  this                                                            
would be a public relations fiasco for them.                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR thanked  her, and said time was running short but SB
91  would be  heard  again if  she wanted  to  testify  at the  next                                                            
hearing.                                                                                                                        
                                                                                                                                
Number 1792                                                                                                                     
                                                                                                                                
MS. CHRISTINA  TALBOTT, speaking on  her own behalf, said  she had a                                                            
few concerns  regarding the language  of SB 91.  On page  2, line 10                                                            
the language says, "(4)  states that a person who coerces a woman to                                                            
undergo an abortion may  be prosecuted for a felony offense under AS                                                            
11.41.530."   She said in  the interest of  providing objective  and                                                            
nonjudgmental  language  it  might make  more  sense to  change  the                                                            
language to: "coercing  women into a decision regarding an abortion"                                                            
- just to be more inclusive.   She said (5) is redundant because law                                                            
already requires informed  consent.  On page 3, line 16 the language                                                            
reads,   "(1)  'fertilization'   means   the  fusion   of  a   human                                                            
spermatozoon  with   a human   ovum,"  but  she  said  the  date  of                                                            
occurrence  is unclear.   She objected  to the  language on  page 2,                                                            
lines 18 and 19 defining  "gestational age" as the age of the unborn                                                            
child as calculated from  the first day of the last menstrual period                                                            
of  a pregnant  woman.   She  said this  was  not possible.    Women                                                            
ovulate  between  one and  one half  weeks  after their  period  has                                                            
finished  and if the age  of the unborn child  is counted from  that                                                            
date, two  or three weeks  would be added  to the age of the  child,                                                            
which would be a concern  because lines 19 through 27 on page 2 says                                                            
the pamphlet  is to describe  the fetal development  of the  typical                                                            
unborn child at two week  gestational increments, which would effect                                                            
where the  baby was and  where the woman  reading the pamphlet  felt                                                            
their child had developed.   She said in Section 1, (7) the language                                                            
that says, "relevant information  about the possibility of an unborn                                                            
child's survival  at the  various gestational  ages" is unclear  and                                                            
should be removed from  SB 91 or defined further.  She also objected                                                            
to the  term "unborn  child" because  the word  fetus is a  commonly                                                            
known term, which is an objective nonbiased scientific term.                                                                    
                                                                                                                                
Number 1656                                                                                                                     
                                                                                                                                
MS. KAREN  PEARSON, Director  of the Division  of Public Health  for                                                            
the  Department  of  Health  and Social  Service  (DHSS),  said  the                                                            
department  is  in agreement  that  all women  seeking  a  pregnancy                                                            
termination should be fully  informed prior to termination.  DHSS is                                                            
concerned about the inclusion  requirements for the pamphlet though.                                                            
SB 91 says  that the names of all  providers and agencies  are to be                                                            
in a  pamphlet and  their services  are to be  included, and  all of                                                            
this  is to be  geographically  indexed.   There are  more than  200                                                            
communities in Alaska and  if one pamphlet were assembled that lists                                                            
all the information required  by SB 91, it would be very large.  The                                                            
pamphlet  would  also be  out of  date  by the  time  it is  printed                                                            
because  Alaska  has many  providers  that  come and  go.   DHSS  is                                                            
concerned that what it  is being requested might not accomplish what                                                            
the  sponsor  intended,  which  is information  in  a  complete  and                                                            
useable  form.  The  pamphlet would  also be a  big expense  for the                                                            
department because  it would take someone working  full time to keep                                                            
up with all the changes, in all the communities.                                                                                
                                                                                                                                
CHAIRMAN  TAYLOR said that  under current  statute AS 18.05.035  the                                                            
department  was mandated  to prepare information  regarding  planned                                                            
parenthood  and to place that information  in public hospitals.   He                                                            
asked  how the existing  requirements  would be  any different  than                                                            
what would be required by SB 91.                                                                                                
                                                                                                                                
MS.  PEARSON  said  existing  statute  does  not  specify  that  the                                                            
information  be all in one document  or what the content  should be.                                                            
The statute tells  the department to put out information  related to                                                            
planned parenthood  but it does not  say what the format  or content                                                            
should be.                                                                                                                      
                                                                                                                                
SENATOR  THERRIAULT asked  if the  problem was  in the geographical                                                             
indexing.                                                                                                                       
                                                                                                                                
MS. PEARSON  said that  was exactly  right.  SB  91 would require  a                                                            
list for every  service agency, every  provider, in every  community                                                            
with what services they provide and how to access them.                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said that  Ms. Jennifer Rudinger was on line and the                                                            
committee had  received her comments but because of  a lack of time,                                                            
SB 91 would be  held in committee and taken up at  a later date.  He                                                            
said he  would have  his staff contact  her in  advance of the  next                                                            
meeting so she could testify then.                                                                                              
                                                                                                                                
MS.  JENNIFER  RUDINGER, Alaska  Civil  Liberties,  said  she had  a                                                            
statement from  Dr. Jan Whitefield in Anchorage and  would fax it to                                                            
the committee.                                                                                                                  
                                                                                                                                
Number 1419                                                                                                                     
                                                                                                                                
                 SB 166-APPOINTMENT OF US SENATORS                                                                          
                                                                                                                                
SENATOR DONLEY  said SB 166  was an eleven  word change to  existing                                                            
statute,  which  provides  a five  day  waiting  period in  which  a                                                            
governor  would be  able to  fill a  vacancy for  the United  States                                                            
Senate.   SB 166 would  allow the  Alaska public  to comment  on who                                                            
might be best  suited to represent them in the United  States Senate                                                            
in  the unlikely  event  of a  vacancy occurring.    As the  statute                                                            
currently stands, there is no provision for public comment.                                                                     
                                                                                                                                
SENATOR  DONLEY   moved  SB  166  from  committee  with   individual                                                            
recommendations.    There  being no  objection,  SB 166  moved  from                                                            
committee.                                                                                                                      
There  being no  further  business  to come  before  the  committee,                                                            
CHAIRMAN TAYLOR adjourned the meeting at 5:55 p.m.                                                                              
                                                                                                                                

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