Legislature(1997 - 1998)
03/12/1997 09:08 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 24
"An Act relating to a requirement that a parent,
guardian, or custodian consent before certain minors
receive an abortion; establishing a judicial bypass
procedure by which a minor may petition a court for
authorization to consent to an abortion without
consent of a parent, guardian, or custodian; amending
the definition of `abortion'; and amending Rules 40
and 79, Alaska Rules of Civil Procedure; Rules 204,
210, 212, 213, 508, and 512.5, Alaska Rules of
Appellate Procedure; and Rule 9, Alaska Administrative
Rules."
Co-Chair Sharp stated that SB 24 had been previously held
in committee due to members' concerns regarding the wording
of language on page 5 of the bill. He related that the
drafter of the legislation was on hand to answer any
questions from committee members.
Senator Donley had questions regarding the "clear and
convincing" standard of evidence;" he queried what this
would mean in an ex parte proceeding and if it would have a
subsequently different meaning in a proceeding in which
there were advocates on both sides.
THERESA LAUTERBACH, DIVISION OF LEGAL AND RESEARCH
SERVICES, LEGISLATIVE AFFAIRS AGENCY, replied that the
standard of evidence was the same regardless of what the
proceeding was.
Senator Donley inquired if there was something in writing
that covered what the "clear and convincing" evidence
standard was. Ms. Lauterbach responded that, relative to
the standard's strictness, the "preponderance of the
evidence" standard was the lowest, the clear and convincing
evidence standard was in the middle, and "beyond a
reasonable doubt" was the highest.
Senator Phillips assumed that a judge gave a jury
instructions regarding the meaning of the different
standards and that it must be something that "laymen" could
understand. Ms. Lauterbach replied that there were
definitions of the standards in Black's Law Dictionary, but
that she did not have them with her. She stated that a
preponderance of the evidence required more than simply
having quantity and that not all pieces of evidence would
be given the same weight. She related that "clear and
convincing" meant "more than a preponderance," but stated
that she was unable to describe it further without
consulting Black's Law Dictionary.
Senator Donley wondered what standard a court would use if
the bill did not specify a particular standard of evidence.
Ms. Lauterbach responded that the preponderance of the
evidence standard would be used.
Senator Parnell queried what the clear and convincing
standard was based on and why it was chosen in the
legislation. Ms. Lauterbach replied that the sponsor had
chosen the standard that would be used.
Senator Parnell inquired if the clear and convincing
evidence standard was used in other jurisdictions. Ms.
Lauterbach responded that it was used in other laws.
Senator Parnell further inquired if the clear and
convincing evidence standard was used in other proceedings
in Alaska. Ms. Lauterbach stated that she had not conducted
an "exhaustive" study, but that the standard was used in
the termination of parental rights proceedings; the court
used a clear and convincing evidence standard to show that
a child was endangered by parental conduct and that without
the termination of parental rights, the harmful conduct
would continue. She was unaware of other areas in Alaska
that use the standard.
Senator Parnell offered that the bill represented a
termination of parental rights and opined that the reason
the clear and convincing evidence standard was being used
in the legislation was because it was similar to other
areas of Alaska law where parental rights were terminated.
Ms. Lauterbach stated that she would not characterize it
that it way. She offered that she was only pointing out
another area where the standard was used and was not
claiming that it was related to the bill.
Senator Parnell observed that the bill would terminate the
parental rights to have a say in a minor's abortion and
that the state required clear and convincing evidence in
other proceedings where the parental rights were
terminated. He offered that the bill seemed consistent with
Alaska's current policy.
Senator Parnell inquired if, assuming the judge or
magistrate believed the child, a minor's testimony of abuse
was enough to solely constitute clear and convincing
evidence or if there was anything else required. Ms.
Lauterbach responded that the bill did not require anything
else, but that the judge would listen to a testimony's
credibility and consistency. She furthered that a judge
would ask questions in order to uncover inconsistencies or
a lack of credibility in someone's testimony and that the
questions would give the judge an idea of whether he or she
was clearly convinced.
Co-Chair Pearce stated that she had a copy of Black's Law
Dictionary. She noted that the dictionary indicated that
"preponderance of the evidence" was the standard of proof
that was used in civil cases, which led her to believe that
the clear and convincing evidence standard was used in
criminal cases. Ms. Lauterbach interjected that the
termination of parental rights was a civil case.
Senator Parnell interjected that the "beyond a reasonable
doubt" standard was used in criminal cases.
Senator Pearce noted that Senator Parnell's comments were
the most persuasive. She observed that under the
confidentiality rules, a judge would be faced with one
person asserting what was "her truth, as she sees it" and
would not be presented with a lot of evidence to the
contrary. She observed that the bill's standard of evidence
left a lot of wiggle room in any direction.
Senator Parnell noted that judges were used to judging the
credibility of witnesses.
Co-Chair Sharp clarified for the record that, absent of any
comments or testimony to the contrary, a judge would make
the determination of whether a child's testimony was
factual. He observed that credibility was something the
judge would have to determine, but that it would be hard
for a judge or magistrate refuse a request if there was no
opposing testimony or parent present to defend their
parental right. He noted that different judges had
different opinions.
Senator Donley discussed a Florida State Statute that was
found to be unconstitutional by the Florida Supreme Court
and inquired if the statute had contained a clear and
convincing standard. Ms. Lauterbach replied that she did
not know. She stated that she did have the court's opinion
with her, but she was not sure if it described the entire
statute.
Co-Chair Sharp noted for the record that Senator Adams had
joined the committee.
Ms. Lauterbach relayed that the part of the Florida State
Statute that was in the court's opinion did not give a
standard of evidence, but opined that it probably used the
"preponderance of evidence" standard. She observed that
part of the statute in question was in a footnote in the
court's decision. She pointed out that the Florida Statute
did discuss "good cause," which could be based on a showing
that the child was sufficiently mature, the legal guardian
unreasonably withheld consent, the minor's fear of physical
or emotional abuse, or any other good cause shown. She
concluded that the Florida statute had a good cause
standard, which did not specify the burden of proof. She
reiterated that "preponderance of evidence" was the
standard most likely used in the statute, but that her
opinion was conjecture without examining all of the Florida
Statutes.
Senator Parnell queried if Ms. Lauterbach had a similar
California State Statute with her. Ms. Lauterbach replied
in the negative.
Senator Donley inquired what the penalty was for violating
the bill's confidentiality clause. Ms. Lauterbach responded
that she did not know that information offhand.
Senator Donley requested that Ms. Lauterbach research the
penalty and return to the committee with more information.
Senator Donley observed that reasonable minds could differ
not only on what standard to use, but also in the amount of
distinction between standards. He offered that there might
be a dichotomy between the public policy reason for
requiring the clear and convincing standard for evidence of
physical, sexual, and emotional abuse, as opposed to using
"clear and convincing" evidence that it was in the best
interest of the complainant.
Senator Donley requested that the language "by clear and
convincing evidence" be deleted from line 25 of the bill.
He observed that the bill's placement of the word "pattern"
in reference to physical and sexual abuse needed
revisiting; he opined that "pattern" might be a more proper
modifier for emotional abuse. He expressed concern that the
bill may require clear and convincing evidence of a pattern
of physical abuse.
Co-Chair Sharp noted that the physical abuse could be
determined to be anything from spankings to very harmful
actions. He expressed concern regarding how physical and
abuse was defined regarding justification. He stated that
the wording "pattern" established good cause for the judge
to make a decision on and noted that certain cases in the
juvenile justice system could be based on "fragile
testimony."
Co-Chair Pearce stated that she had a great deal of
sympathy for the concerns addressed by Co-Chair Sharp and
noted that in Alaska, a teenager could allege abuse with
very little evidence; in addition, a teenager's testimony
was automatically given credence by the system. She opined
that the system had been abused by youths in the state;
however, she believed that the law should error on the side
of the child regarding the cases that were covered in the
bill. She mentioned that the state needed to be careful to
provide protection to young women and that setting an
artificial standard was unwise. She offered that although
narrower standards were used in other areas of the law that
dealt with child allegations, a broader categorization
would be more appropriate in the bill's application because
it applied to pregnant young women; furthermore, the
broader categorization would allow the judges room to work.
She expressed concern regarding the use of the word
"pattern" in the legislation and offered that one rape
could cause the pregnancy that brought the case before the
judge; she concluded that the state should protect the
child in this case.
Co-Chair Sharp inquired which language Senator Donley
wanted removed from the legislation.
Senator Donley responded that he wanted the words "by clear
and convincing evidence" removed from line 25 of the bill.
Co-Chair Sharp stated that the language change would be
Amendment 4.
Senator Parnell OBJECTED.
Senator Donley offered that there was a grey area regarding
how the Alaska Supreme Court would react to the legislation
and opined that Amendment 4 would make it more likely that
the bill would be upheld as being constitutional in the
courts. He pointed out that different jurisdictions were
"splitting on this issue" and that it appeared that the
Florida Statute did not require clear and convincing
evidence, but instead used a lower standard of evidence,
which was known as a preponderance of the evidence; he
observed that a court in Florida had found the law to be
unconstitutional. He concluded that how a court would
respond to a law was unknown, but that the amendment gave
the bill a higher probability of success in the Alaska
Supreme Court. He stated that evidence of physical or
sexual abuse was very significant and expressed concern
that the clear and convincing standard was being used in
relationship to those types of abuse. He noted that his
understanding of the clause was that the clear and
convincing standard would also have to be applied to
whether or not it was in the best interest of the woman; he
expressed concern regarding this aspect.
Senator Parnell observed that the current bill represented
a situation where a magistrate had to find clear and
convincing evidence that there was evidence of a pattern of
physical, sexual, or emotional abuse, or that the consent
of the parents, guardians, etc. was not in the best
interest of the complainant; he offered that his
understanding was that only the girl would be testifying at
that point, that no contrary evidence would be presented,
and that it would be up to the judge to believe or
disbelieve the testimony. He added that the only way that a
judge or magistrate would find that a girl was not telling
the truth was by her own inconsistent statements about the
abuse. He noted that his understanding was that in every
other area of Alaskan law that terminated parental rights,
a clear and convincing standard was used and that it was
not a very hard standard to meet when the only person
testifying was the girl herself. He expressed concern that
lowering the bill's standard would enable the lower
standard to be used in other types of cases; furthermore,
the lower standard would make it easier for the state to
become part of those proceedings, which he did not think
was a good idea. He reiterated that when a magistrate or
judge was faced with only one witness, clear and convincing
evidence was not a very high standard to meet and that it
was an appropriate standard given the serious nature of the
allegations. He urged his agreement that the child should
be protected and that if they have been physically,
sexually, or emotionally abused, they should not have to
get consent; however, he was concerned that lowering the
standard would make the court into a rubber stamp.
Senator Adams stated that in rural Alaska, it was not often
easy to get access to a court and that he was concerned
about due process being lost; furthermore, villages
sometimes had only one phone available and if rural
Alaskan's were allowed to use the telephone to call in,
they might not have any privacy. He offered that bill
represented a violation of equal protection.
Senator Parnell stated that he had discussed the issue with
Senator Adams the prior day and that there was not an
abortion provider in a rural area where there was not also
access to a court. He expounded that a child would have
access to a court system in the same place that they would
be able to get an abortion.
Senator Adams asserted that Senator Parnell's assertion was
debatable. Senator Parnell interjected that he had asked
the department, which did not support the bill, to come
forward with any village that had an abortion provider but
no court system; the department had so far been unable to
provide any such places.
Senator Phillips requested clarification regarding the
types of evidence standards. Senator Parnell replied that
there were 3 basic standards of evidence. He explained that
a preponderance of the evidence represented evidence that
barely tipped the scales. He furthered that a preponderance
of the evidence was if you were convinced by 51 percent of
the evidence and thought it was more likely true than not.
He related that clear and convincing evidence was the next
highest standard, but noted that Legal Services should
probably have addressed it earlier because there was case
law that defined what clear and convincing evidence was. He
concluded that "beyond a reasonable doubt" was the highest
standard.
Senator Donley pointed out that there were also many
modifiers to the different standards of evidence in the
state's statutes. He related that "fair" was a modifier to
"preponderance of the evidence" and shared that there were
different variations to how the modifiers were used.
Senator Phillips asked for an explanation of Amendment 4.
Senator Parnell replied that Amendment 4 proposed a lower
standard establishing that it was more plausible that a
complainant was telling the truth.
Senator Donley stated that in general, Senator Parnell had
given a very accurate description of what a preponderance
of the evidence was; however he produced an example of how
the standard got "muddled" in Black's Law Dictionary. He
related that in addition to Senator Parnell's description a
"preponderance" was described as "that which best accords
with reason and probability. The word preponderance means
something more than weight; it denotes a superiority of
weight or outweighing." He pointed out that although the
classic definition of a preponderance of the evidence was
51 percent of the evidence being in favor of it being true,
more could be applied to the standard; furthermore, there
was a variance from judge to judge on how it was applied.
Senator Phillips queried why the bill could not use a
preponderance of the evidence standard instead of the clear
and convincing standard. Senator Parnell responded that in
every other case where the state terminated parental
rights, clear and convincing evidence was required. He
offered that in the case of the legislation, clear and
convincing evidence was an easy burden to meet because the
complainant was the only person testifying.
Senator Pearce stated that after listening to Senator
Parnell and thinking through the facts, she was less
bothered by the clear and convincing standard than she was
by the use of the word "pattern." She pointed out that the
state should have consistency in the termination of
parental rights proceedings.
Senator Adams requested a legal perspective on the debate
before the committee.
Ms. Lauterbach clarified that she had not said that the
clear and convincing standard was used in all of the
state's statutes related to the termination of parental
rights. For example, she pointed to a statute on removing
the disabilities of a minor who could prove they were
living apart from their parents that would terminate
parental control; there was not a clear and convincing
standard in this statute. She stressed that she had only
provided 1 example in response to a question about whether
there were other statutes that used a clear and convincing
standard. She noted that inconsistency existed in the
statues.
Senator Sharp did not imagine the scenario would occur for
children under the age of 16. Ms. Lauterbach replied that a
person had to be at least 16 years of age.
Ms. Lauterbach clarified that there were not only 3
standards of proof starting with preponderance of evidence.
She stated that for some situations, showing a scintilla of
evidence sufficed; if clear and convincing was removed, the
standard would be any evidence.
Senator Parnell asked for verification that Ms. Lauterbach
was referring to a scintilla of evidence. Ms. Lauterbach
believed line 25 would read "the court finds that there is
evidence of a pattern." She communicated that if the
committee wanted to go to preponderance of evidence, the
word evidence should also be removed later in the sentence
to read "the court finds that there is a pattern of
physical, sexual, or emotional abuse." She stated that with
the change, the standard would be a preponderance of
evidence.
Senator Donley had misunderstood earlier testimony by Ms.
Lauterbach; therefore, he WITHDREW Amendment 4.
Senator Donley MOVED a revised Amendment 4 that would
delete "clear and convincing evidence" and the words
"evidence of." The language would read "and the court finds
that there is a pattern of..." He asked for verification
that the change would establish a preponderance of evidence
in the legislation.
Ms. Lauterbach affirmed.
Senator Parnell asked whether there were any statutes that
enabled the termination of parental rights for children who
were age 15 and younger upon a preponderance of evidence.
Ms. Lauterbach replied that the phrasing of the question
made it difficult to answer. She surmised the committee had
been told that minors could consent to their own care in
certain situations under AS 25.20.025 [she was uncertain
she had stated the correct statute]; parental rights were
terminated under the scenario. She summarized that there
were other situations that did not use clear and convincing
standards. She noted that it was a matter of terminology
and explained one person may call the situation the
termination of parental rights; whereas, she called it
minors having the ability to consent to the receipt of
medical or dental treatment. She remarked that there were
many other parental rights that were not affected.
Senator Donley appreciated the time the committee was
taking on the issue.
Senator Sharp pointed to line 27 of the legislation and
noted that it established leaving a decision up to the
judge's discretion without much evidence with the exception
of the judge finding that a decision was in the best
interest.
Ms. Lauterbach answered that it was likely the clear and
convincing standard carried through the entire sentence.
Senator Donley would be satisfied if the clear and
convincing standard only applied to the evidence of
physical, sexual, or emotional abuse. He restated that
Amendment 4 would delete the words "...a clear and
convincing evidence" and the words "evidence of" on line 25
of the legislation. The amended sentence would read "the
court finds that there is..."
Senator Parnell asked for verification that the amendment
would reduce the evidentiary requirement to a scintilla of
evidence. Ms. Lauterbach replied in the negative. The
change would mean the requirement would be a preponderance
of evidence.
Senator Donley clarified that by deleting the words
"evidence of" the requirement would be a preponderance of
evidence.
The OBJECTION to Amendment 4 was MAINTAINED.
A roll call vote was taken on the motion.
IN FAVOR: Senator Donley, Senator Phillips, Senator Pearce
OPPOSED: Senator Adams, Senator Parnell, Senator Sharp
The MOTION FAILED (3/3).
Senator Donley MOVED [Amendment 5] to establish an
evidentiary standard for the best interest language on line
27 of the legislation. Following the third word "or" the
amendment would insert language to read "by a preponderance
of the evidence that the consent."
Senator Parnell OBJECTED. He believed the amendment would
have the same result as the previous proposed amendment
that had failed. He reasoned that if the same testimony of
abuse was present and shown by a preponderance of evidence
the judge would be able to find under the second section
that it was not in the child's best interest. He furthered
that anything, including an allegation of physical, sexual,
or emotional abuse could be held that it was not in the
best interest of the child if a preponderance of evidence
was shown.
Senator Sharp agreed. He noted the amendment stated there
were other reasons besides patterns of physical, sexual, or
emotional abuse that a judge could make a decision on.
Senator Donley acknowledged that the amendment could have
the effect discussed by Senators Parnell and Sharp;
however, he concluded that it could have a different effect
as well. He relayed that line 26 dealt with specific
factual findings by the court including either physical,
sexual, or emotional abuse. He furthered that if the court
found 1 of the forms of abuse to be present, permission
would automatically be granted. He explained that line 28
dealt with best interest, which was a separate issue. He
stated that it would be possible to find by a preponderance
of evidence that there was some emotional abuse, but the
court could also find that it may not be in the best
interest of the child to grant permission.
Senator Parnell countered that the complaint would be filed
under the same subsection, which was (b)(4)(B) on page 4 of
the bill, that stated that a person would go to the court
because of emotional, physical, or sexual abuse or because
it was in the person's best interest. He did not believe
there should be different standards when filing under one
section.
Senator Donley countered that the standards were different.
He explained that the first half of subsection (b)(4)(B)
dealt with the court's factual finding related to a
physical or mental event; the second half dealt with
whether something was in the minor's best interest based on
the court's subjective finding. He stated that it would be
possible to find that emotional abuse had occurred without
clear and convincing evidence and to still deny the
permission under the second standard of best interest. He
elaborated that more factors were included under the best
interest analysis than under the objective analysis on line
26.
Senator Sharp opined that a judge would have more
subjective opportunities than available under the more
precise portion in the first half of the section.
Senator Donley agreed.
Senator Sharp continued that the second half of the section
would provide a judge with more discretion deciding on what
was in the best interest of a minor. He believed the
discretionary ability lowered the standard in the first
section.
Senator Parnell wondered why a higher standard of proof
would not be required. Senator Donley replied that it would
allow a judge to look to offsetting circumstances outside
of the factual circumstances defined in the first section.
He expounded that extenuating circumstances may exist that
had corrected or mitigated the abuse.
Senator Donley formalized his motion and MOVED Amendment 5
that would insert the words "by preponderance of the
evidence" following the [third] "or" on line 27 of the
bill.
Senator Parnell MAINTAINED his OBJECTION to Amendment 5.
A roll call vote was taken on the motion.
IN FAVOR: Phillips, Donley, Pearce
OPPOSED: Parnell, Adams, Torgerson, Sharp
The MOTION FAILED (4/3).
Senator Parnell asked whether the current clear and
convincing standard also related to the best interest
section. Ms. Lauterbach believed that language should be
inserted if the goal was to clarify the meaning. She opined
that the standard probably applied, but the answer would
not be known until a court interpreted the language.
Senator Adams asked if the different standards had been
debated in the Senate Judiciary Committee. Ms. Lauterbach
did not know.
Senator Pearce noted that there had not been significant
discussion on the topic previously.
Senator Parnell MOVED Amendment 6 that would insert "by
clear and convincing evidence" on page 5, line 27 following
the third "or."
Senator Donley believed it was prudent to specify the
language. He explained that if a case went to the Alaska
Supreme Court, the clarity could make a difference in
constitutionality whether the court interpreted the second
clause as a preponderance or clear and convincing.
There being NO OBJECTION, Amendment 6 was ADOPTED.
Senator Donley MOVED Amendment 7 that would move the words
"a pattern of" for insertion in front of the first "or" on
line 26, page 5. Line 26 would read "that there is evidence
of physical, sexual, or a pattern of emotional abuse."
Senator Parnell asked whether the term physical abuse was
defined in statute. Ms. Lauterbach believed so, but noted
that the term was not defined for the statute being
discussed.
Senator Parnell provided a hypothetical example related to
an abuse claim. He asked whether a 15 year-old could claim
physical abuse if they had been spanked by their parents at
the age of 5. Ms. Lauterbach answered that a judge could
find that physical abuse had occurred if they considered
the spanking to be physical abuse.
Senator Parnell asked for verification that a judge would
not consider the element of timing under the current or
proposed language. Ms. Lauterbach replied that the current
language would not force a judge to consider the element of
timing.
Senator Parnell reiterated his question about the element
of timing and consideration by a judge. Ms. Lauterbach did
not know what a judge would do. She stated that the
language did not include timing; therefore, it would need
to be added if that was the will of the committee.
Senator Parnell believed making a change related to timing
would be too complicated.
Senator Donley relayed that the clause had been modified by
the clear and convincing proof of evidence standard, which
was one element that would help mitigate Senator Parnell's
concern related to timing.
Senator Pearce wondered if there was any way for a woman
under the age of 16 to become pregnant without a crime
occurring. She discussed that the amendment pertained to
whether the court needed to find that a pattern of physical
or sexual abuse existed or if one time was enough. Her
concern was that rape would not be included if a judge
could rule that that abuse had not occurred because it only
happened one time.
Senator Donley proposed a conforming change to Amendment 7.
The amendment would move the words "a pattern" on page 5,
line 26 for insertion after the first "or" on line 26. The
amendment would also insert the word "of" following the
words "a pattern." The sentence would read "that there was
evidence of physical, sexual, or a pattern of emotional
abuse." The amendment would also modify page 4, lines 27
and 28 to read the same way.
Senator Parnell proposed modifying the amendment to insert
the word "abuse" after the word "sexual." Ms. Lauterbach
clarified that the sentence would read "...physical or
sexual abuse or a pattern of emotional abuse."
Senator Donley WITHDREW Amendment 7. He MOVED a new
Amendment 7 to change clauses on page 5, line 26 and page
4, lines 27 and 28 to read "evidence of physical or sexual
abuse or a pattern of emotional abuse."
There being NO OBJECTION, the new Amendment 7 was ADOPTED.
Senator Pearce discussed an amendment aimed at addressing
the cycle of dependence on welfare that some women fell
into after having a child at a very young age. She believed
the women's parents should have a responsibility to their
child and grandchild; however, she did not know if the
amendment would be acceptable within the current bill due
to the state's single title law. She would not offer her
amendment, but may decide to offer it on the Senate floor.
Senator Parnell offered to jointly sponsor separate
legislation with Senator Pearce.
Senator Parnell MOVED to REPORT CSSB 24(FIN) out of
committee with individual recommendations and the
accompanying fiscal notes.
Senator Adams OBJECTED. He proposed forming a task force on
the issue.
A roll call vote was taken on the motion to report the bill
from committee.
IN FAVOR: Parnell, Donley, Phillips, Torgerson, Sharp
OPPOSED: Adams, Pearce
The MOTION PASSED (5/2).
CSSB 24(FIN) was REPORTED out of committee as amended with
a "do pass" recommendation and with a new fiscal impact
note from the Alaska Court System; one previously published
fiscal impact note from the Department of Administration;
and two previously published zero fiscal notes from the
Department of Administration and the Department of Health
and Social Services.
New TAPE: start TAPE 55.
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