Legislature(2013 - 2014)BELTZ 105 (TSBldg)

03/10/2014 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 176 REG. OF FIREARMS/KNIVES BY UNIVERSITY TELECONFERENCED
Heard & Held
*+ SB 203 COMPACT FOR A BALANCED BUDGET TELECONFERENCED
Scheduled But Not Heard
*+ SB 200 WRONGFUL DEATH OF AN UNBORN CHILD TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
            SB 200-WRONGFUL DEATH OF AN UNBORN CHILD                                                                        
                                                                                                                                
1:36:38 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of SB  200. "An  Act                                                               
establishing a right  of action for the death of  an unborn child                                                               
in certain circumstances." This was the first hearing.                                                                          
                                                                                                                                
                                                                                                                                
1:36:42 PM                                                                                                                    
SENATOR MCGUIRE,  speaking as sponsor  of SB 200,  explained that                                                               
this  rounds  out  legislation   that  Senator  Dyson  introduced                                                               
several years ago  that deemed an unborn child a  victim the same                                                               
as the  pregnant mother who  was the  victim of any  negligent or                                                               
unlawful actions. What  wasn't done at the time was  to allow for                                                               
civil law recovery. SB 200 does that.                                                                                           
                                                                                                                                
AS  09.15.018 is  a  new  section that  adds  an  action for  the                                                               
wrongful death of  an unborn child. Nothing will  bring the child                                                               
back but  this gives the parents  a path to justice  through both                                                               
civil  and criminal  avenues and  perhaps an  opportunity towards                                                               
healing, she said.                                                                                                              
                                                                                                                                
CHAIR  COGHILL  asked what  general  level  of proof  this  would                                                               
require.                                                                                                                        
                                                                                                                                
SENATOR MCGUIRE  replied the mental intent  is intentional action                                                               
and negligence in the area of wrongful death.                                                                                   
                                                                                                                                
1:42:47 PM                                                                                                                    
CARL E.  BRENT, representing himself, Wasilla,  Alaska, testified                                                               
in support  of SB 200.  He said it  wasn't until his  family went                                                               
through a terrible loss that he  became aware that Alaska was one                                                               
of just  ten states  that do not  recognize deceased  children in                                                               
civil court.  This should be fixed  so that young couples  in the                                                               
future don't have to face this loss and have no civil recourse.                                                                 
                                                                                                                                
1:44:18 PM                                                                                                                    
MARY   HARNED,  Staff   Counsel,  Americans   United  for   Life,                                                               
Washington, D.C.  testified in support  of SB 200.  She testified                                                               
as follows on behalf of Jackson's Law:                                                                                          
                                                                                                                                
     Alaska currently bars  a cause of action  for deaths of                                                                    
     an  unborn child  unless the  child is  born alive  and                                                                    
     dies  thereafter.  As   Senator  McGuire  stated,  this                                                                    
     limitation  starkly  contrasts with  Alaska's  criminal                                                                    
     law,  which  recognizes that  an  unborn  child at  any                                                                    
     stage  of development  may be  considered  a victim  of                                                                    
     murder,   manslaughter,    and   criminally   negligent                                                                    
     homicide.                                                                                                                  
                                                                                                                                
     The  wrongful  death cause  of  action  is intended  to                                                                    
     correct this law  and the common law where  no cause of                                                                    
     action survives  the victim's  death. Thus,  the wrong-                                                                    
     doer  could escape  liability by  inflicting injury  so                                                                    
     severe that they resulted in  the death of his victims,                                                                    
     which is  a terrible irony  that was in the  law before                                                                    
     wrongful death  statutes started  to be enacted  in the                                                                    
     states.                                                                                                                    
                                                                                                                                
     Forty  states   recognize  that  a  parent   should  be                                                                    
     permitted to bring a wrongful  death action when his or                                                                    
     her unborn  child dies  in the  womb as  a result  of a                                                                    
     third    party's     criminal    action,    negligence,                                                                    
     malpractice,  or  production   or  distribution  of  an                                                                    
     unsafe  product. Tragically,  Alaska parents  of unborn                                                                    
     children who  lose their lives because  of the wrongful                                                                    
     acts  or  omissions  of   others  cannot  receive  this                                                                    
     justice. These parents  unquestionably have interest in                                                                    
     the  life, health,  and  wellbeing  of their  children.                                                                    
     Wrongful  behavior which  results  in the  death of  an                                                                    
     unborn  child carries  the  same  social and  emotional                                                                    
     costs, including  bereavement, a  loss to  society, and                                                                    
     the   lawlessness  and   disregard   for  life,   which                                                                    
     characterizes   negligence,    harmful   and   wrongful                                                                    
     behavior.                                                                                                                  
                                                                                                                                
     Jackson's Law  will extend the protections  provided by                                                                    
     the  state's  wrongful  death  statute  to  all  unborn                                                                    
     children in Alaska.                                                                                                        
                                                                                                                                
1:46:53 PM                                                                                                                    
JON GOODWIN, representing himself,  Wasilla, Alaska, testified in                                                               
support of  SB 200. He advised  that the bill is  named after his                                                               
son,  Jackson. He  started working  on  this legislation  shortly                                                               
after  Jackson passed  and he  became aware  that Alaska  doesn't                                                               
recognize unborn children  in civil court. He  described the pain                                                               
of  losing a  child at  42 weeks  gestation only  to have  people                                                               
express condolences  at his wife's  miscarriage. Jackson  was 9.5                                                               
pounds and  fully developed and would  be here today but  for the                                                               
healthcare that was provided that day, Mr. Goodwin said.                                                                        
                                                                                                                                
MR.  GOODWIN advised  that he  has been  to Iraq  and Afghanistan                                                               
where he lost good  friends and was shot down in  2005. He had to                                                               
deal with  Post-Traumatic Stress  Disorder (PTSD), but  the death                                                               
of Jackson has  been more traumatic than any  pain he experienced                                                               
overseas. Drawing from  an ethics law course, he  stated that the                                                               
community  that feels  no moral  indignation over  a crime  being                                                               
committed against one  of its members, and fails to  stand up for                                                               
that member, fails to show  the respect that victims deserve. Mr.                                                               
Goodwin stressed that  it's the right thing for  the community to                                                               
recognize this shortcoming in the law.                                                                                          
                                                                                                                                
1:49:18 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
                                                                                                                                
CHAIR COGHILL stated that this  committee respects victims to the                                                               
highest degree possible.                                                                                                        
                                                                                                                                
1:54:37 PM                                                                                                                    
SUSANNE   HANCOCK,  representing   herself,  Anchorage,   Alaska,                                                               
testified in support of SB 200.  She said she was testifying from                                                               
a  personal perspective  as  a  good friend  of  the Wallace  and                                                               
Goodwin  families.  She is  part  of  the  ripple effect  of  the                                                               
tragedy; she was looking forward to seeing their baby.                                                                          
                                                                                                                                
1:55:53 PM                                                                                                                    
KIMBERLY WALLACE-GOODWIN, representing  herself, Wasilla, Alaska,                                                               
testified in  support of  SB 200.  She related  that she  and her                                                               
husband lost  their son, Jackson  Wallace-Goodwin on  December 6,                                                               
2012. His passing  has impacted the entire  family, including the                                                               
grandparents, aunts  and uncles, friends and  their families. She                                                               
urged the  committee support  SB 200  and give  a voice  to those                                                               
like Jackson who do not have a voice.                                                                                           
                                                                                                                                
1:57:10 PM                                                                                                                    
LELA RAYMOND, representing  herself, Ketchikan, Alaska, testified                                                               
in support of SB 200. She  stated she was testifying on behalf on                                                               
her nephew, Tanner Eugene Richards,  who was lost about 16 months                                                               
ago. Her niece went to the  hospital at full term expressing that                                                               
something was wrong. She spent about  five hours with a nurse who                                                               
never called the  doctor despite repeated requests.  The baby was                                                               
alive and had  a heartbeat when she went to  the hospital, but he                                                               
died  in that  five hours  and her  niece had  to deliver  a dead                                                               
baby.  Ms. Raymond  said the  nurse kept  second-guessing herself                                                               
and  she believes  that  if  that nurse  knew  she  would get  in                                                               
trouble if something  went wrong she might  have called somebody.                                                               
That  may have  saved Tanner's  life.  Passing SB  200 will  help                                                               
prevent things like this from happening in the future, she said.                                                                
                                                                                                                                
2:00:50 PM                                                                                                                    
APRIL DISHNEAU,  representing herself, Palmer,  Alaska, testified                                                               
in support  of SB 200.  She described  her experience as  a high-                                                               
risk pregnant mother  who lost her baby three years  ago. She was                                                               
rushed  to the  hospital at  36 weeks  with high  blood pressure.                                                               
When her  blood pressure went down,  she was told to  go home and                                                               
bed rest.  Her placenta ruptured  after just  a day and  her baby                                                               
died.                                                                                                                           
                                                                                                                                
2:02:40 PM                                                                                                                    
SHIELA WALLACE,  representing herself, Kodiak,  Alaska, testified                                                               
in support of  SB 200. As Jackson's grandmother  she advised that                                                               
she is  one of  the people  affected by this  and would  like the                                                               
committee to pass the bill.                                                                                                     
                                                                                                                                
CHAIR COGHILL  asked the sponsor  to discuss the  required mental                                                               
state.                                                                                                                          
                                                                                                                                
SENATOR  MCGUIRE said  the  bill  is meant  to  coincide with  AS                                                               
11.41.150-170, which  is murder of an  unborn child, manslaughter                                                               
of  an unborn  child,  and criminally  negligent  homicide of  an                                                               
unborn child.  The mental  state for  .150 is  intent to  kill an                                                               
unborn  child;  the  mental  state  for  .160  is  intentionally,                                                               
knowingly, or  recklessly causing the  death of an  unborn child;                                                               
and the  mental state  for .170 is  with criminal  negligence the                                                               
person causes  the death of an  unborn child. She noted  that the                                                               
drafter inserted  this new section  under civil damages  in Title                                                               
9. The action  for wrongful death of an unborn  child is added to                                                               
the two current sections that  allow parents to sue for seduction                                                               
of a child and for death or disability of a party.                                                                              
                                                                                                                                
She  read the  description  in subsection  (a)  and committed  to                                                               
bring a  better definition  of "wrongful  act" and  "omission" to                                                               
the next  hearing since the standards  aren't specifically linked                                                               
to those  found in  the criminal code.  She thanked  the families                                                               
for testifying on such a difficult topic.                                                                                       
                                                                                                                                
2:08:12 PM                                                                                                                    
CHAIR COGHILL  stated his  intention to hold  SB 200  for further                                                               
discussion.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked if the Department of Law was present.                                                                
                                                                                                                                
CHAIR  COGHILL  said  a  representative  would  be  available  on                                                               
Wednesday.                                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI  expressed  interest in  hearing  from  DOL                                                               
about the constitutionality  of the bill given  the definition of                                                               
unborn child  in AS  11.81.962, and  about potential  damages. He                                                               
also questioned  whether doctors  and nurses  or anyone  from the                                                               
medical community  had weighed  in on the  bill. He  assumed that                                                               
the bill wouldn't apply to harm  to the fetus through the morning                                                               
after pill or  mothers who drink during pregnancy,  but he'd like                                                               
that on the record.                                                                                                             
                                                                                                                                
2:10:39 PM                                                                                                                    
SENATOR  MCGUIRE  responded to  the  questions.  First, the  bill                                                               
specifically tracks  the criminal bill  that was passed  in 2006;                                                               
it has  the definition  of unborn  child in  AS 11.81.900  but it                                                               
doesn't separate by  trimesters. DOL might have  an opinion about                                                               
the constitutionality  of the  bill, but her  opinion is  that it                                                               
would be constitutional. She suspected  that damages would relate                                                               
to  the pain  and  suffering of  the parents  as  opposed to  the                                                               
potential  for a  child's life  at one  week of  development. She                                                               
conceded that the argument about  doctors and nurses was valid in                                                               
the  discussion  of  the bill.  Finally,  the  bill  specifically                                                               
exempts the  morning after pill  or anything related  to abortion                                                               
and any act of a pregnant woman against herself.                                                                                
                                                                                                                                
CHAIR  COGHILL suggested  the sponsor  look at  how the  40 other                                                               
states with similar legislation had addressed those questions.                                                                  
                                                                                                                                
2:13:17 PM                                                                                                                    
CHAIR   COGHILL   held   SB  200   in   committee   for   further                                                               
consideration.                                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects
Written Testimony / Supporting Documents.zip SJUD 3/10/2014 1:30:00 PM
SB 176
SB200-LAW-CIV-03-07-14.pdf HRLS 4/13/2014 2:00:00 PM
SJUD 3/10/2014 1:30:00 PM
SB 200
Sectional Analysis.pdf HRLS 4/13/2014 2:00:00 PM
SJUD 3/10/2014 1:30:00 PM
SB 200
Sponsor Statement.pdf SJUD 3/10/2014 1:30:00 PM
SB 200
Supporting Document.pdf HRLS 4/13/2014 2:00:00 PM
SJUD 3/10/2014 1:30:00 PM
SB 200
UA Legal Analysis.pdf SJUD 3/10/2014 1:30:00 PM
SB 176