Legislature(2021 - 2022)BUTROVICH 205

02/05/2021 01:30 PM JUDICIARY

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Audio Topic
01:33:13 PM Start
01:34:48 PM Disaster Declaration Extensions Relating to Covid
02:39:10 PM Confirmation Hearing(s):
03:10:24 PM Disaster Declaration Extensions Relating to Covid
03:23:09 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Disaster Declaration, Extensions - Relating to TELECONFERENCED
COVID
-- Invited & Public Testimony --
+ Confirmation Hearings: TELECONFERENCED
To be Announced
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= SB 14 SELECTION AND REVIEW OF JUDGES TELECONFERENCED
Scheduled but Not Heard
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                        February 5, 2021                                                                                        
                           1:33 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Lora Reinbold, Chair                                                                                                    
Senator Mike Shower, Vice Chair                                                                                                 
Senator Shelley Hughes                                                                                                          
Senator Robert Myers                                                                                                            
Senator Jesse Kiehl                                                                                                             
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
DISASTER DECLARATION EXTENSIONS RELATING TO COVID - Invited                                                                     
Testimony                                                                                                                       
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
CONFIRMATION HEARING(S):                                                                                                        
State Commission for Human Rights                                                                                             
Cynthia Marlene Erickson - Tanana                                                                                               
Betsy Engle - Fairbanks                                                                                                         
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
Alaska Judicial Council                                                                                                       
Kristie Babcock - Soldotna                                                                                                      
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE BILL NO. 14                                                                                                              
"An  Act relating  to  the selection  and  retention of  judicial                                                               
officers for the  court of appeals and the district  court and of                                                               
magistrates;  relating to  the duties  of  the judicial  council;                                                               
relating to  the duties  of the  Commission on  Judicial Conduct;                                                               
and relating to retention or rejection of a judicial officer."                                                                  
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
MEGHAN WALLACE, Director                                                                                                        
Legislative Legal Services                                                                                                      
Legislative Affairs Agency                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT: Advised  the committee  on the  legal issues                                                             
related  to the  disaster  declaration  emergency extensions  for                                                               
COVID-19.                                                                                                                       
                                                                                                                                
DANIEL DEW, Legal Policy Director                                                                                               
Pacific Legal Foundation (PLF)                                                                                                  
Washington, D.C.                                                                                                                
POSITION  STATEMENT:   Testified  on  the   disaster  declaration                                                             
extensions relating to COVID-19.                                                                                                
                                                                                                                                
CYNTHIA ERICKSON, Appointee                                                                                                     
State Commission for Human Rights                                                                                               
Office of the Governor                                                                                                          
Tanana, Alaska                                                                                                                  
POSITION  STATEMENT:   Testified  as   appointee  to   the  State                                                             
Commission on Human Rights.                                                                                                     
                                                                                                                                
KRISTIE BABCOCK, Appointee                                                                                                      
Alaska Judicial Council                                                                                                         
Alaska Court System                                                                                                             
Soldotna, Alaska                                                                                                                
POSITION  STATEMENT:   Testified  as  appointee  to   the  Alaska                                                             
Judicial Council.                                                                                                               
                                                                                                                                
ELIZABETH (BETSY) ENGLE, Appointee                                                                                              
State Commission on Human Rights                                                                                                
Office of the Governor                                                                                                          
Fairbanks, Alaska                                                                                                               
POSITION  STATEMENT:   Testified  as   appointee  to   the  State                                                             
Commission on Human Rights.                                                                                                     
                                                                                                                                
STEWART THOMPSON, representing himself                                                                                          
Wasilla, Alaska                                                                                                                 
POSITION  STATEMENT:   Testified  on  the   disaster  declaration                                                             
extensions relating to COVID-19.                                                                                                
                                                                                                                                
THOMAS HENNESSY, Physician                                                                                                      
Infectious Disease Epidemiologist                                                                                               
University of Anchorage                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:  Testified  in   support  of  the  emergency                                                             
disaster declaration extension.                                                                                                 
                                                                                                                                
[LINDA SMITH], representing herself                                                                                             
Sitka, Alaska                                                                                                                   
POSITION STATEMENT: Testified with  concern about restrictions on                                                             
small businesses.                                                                                                               
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:33:13 PM                                                                                                                    
CHAIR  LORA   REINBOLD  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:33  p.m. Present at the  call to                                                               
order  were Senators  Myers, Kiehl,  Shower, and  Chair Reinbold.                                                               
Senator Hughes joined shortly thereafter.                                                                                       
                                                                                                                                
^DISASTER DECLARATION EXTENSIONS RELATING TO COVID                                                                              
       DISASTER DECLARATION EXTENSIONS RELATING TO COVID                                                                    
                                                                                                                                
1:34:48 PM                                                                                                                  
CHAIR REINBOLD  announced the  first order  of business  would be                                                               
DISASTER DECLARATION EXTENSIONS RELATING  TO COVID. She indicated                                                               
the committee would hear from invited testimony.                                                                                
                                                                                                                                
1:36:44 PM                                                                                                                    
MEGHAN   WALLACE,    Director,   Legislative    Legal   Services,                                                               
Legislative Affairs Agency, Juneau,  Alaska, said she was invited                                                               
to discuss  Governor Dunleavy's disaster declarations.  She asked                                                               
the record to reflect that  her office provides nonpartisan legal                                                               
advice  to  the  legislature.  She is  appearing  here  today  by                                                               
request,  but my  opinion  on the  issues  remain policy  neutral                                                               
based  on Legislative  Legal Service's  (Legislative Legal)  best                                                               
interpretation  of   current  law.  Given  the   novelty  of  the                                                               
pandemic,  legal  jurisprudence  on  these  issues  continues  to                                                               
evolve, she said.                                                                                                               
                                                                                                                                
MS.  WALLACE reviewed  the disaster  declarations:  On March  11,                                                               
2020,  the governor  issued  the first  declaration  of a  public                                                               
health disaster emergency. Before  going into an extended recess,                                                               
the  31st  Alaska  Legislature extended  the  March  11  disaster                                                               
declaration to  November 15, 2020. Through  passage and enactment                                                               
into law of Senate Bill 241,  also known as Chapter 10, SLA 2020,                                                               
the Alaska  legislature did  not meet again  and did  not further                                                               
extend the  March 11, 2020 declaration.  Instead, upon expiration                                                               
of  the March  11, 2020  declaration, the  governor issued  three                                                               
subsequent declarations of a disaster  emergency, on November 16,                                                               
2020, December 16,  2020 and January 15, 2021,  each remaining in                                                               
effect for 30 days. The  January 15,2021 declaration is currently                                                               
the  subject of  SB  56,  a governor's  bill  seeking to  further                                                               
extend the  last declaration until  September 30, 2021.  She said                                                               
Legislative  Legal Services  has routinely  been asked  about the                                                               
legality   of  the   governor's   action   in  issuing   multiple                                                               
declarations for the same disaster emergency.                                                                                   
                                                                                                                                
1:38:46 PM                                                                                                                    
MS.  WALLACE  informed  members  that  the  Alaska  Disaster  Act                                                               
governs the governor's emergency  powers in this instance. Alaska                                                               
Statute  (AS)   26.23.020(c)  provide  that  a   proclamation  of                                                               
disaster emergency may  not remain in effect longer  than 30 days                                                               
unless  extended   by  the  legislature.   She  opined   that  AS                                                               
26.23.020(c) is  clear that the  legislature holds  the exclusive                                                               
power  to   extend  a  disaster   declaration  beyond   30  days.                                                               
Therefore,  only  the legislature  has  the  authority to  extend                                                               
disaster emergencies  beyond the November 15,  2020 date. Further                                                               
the  governor likely  lacked the  statutory  authority to  extend                                                               
beyond  that date.  However, it  is difficult  to predict  what a                                                               
court would determine if the governor's actions were challenged.                                                                
                                                                                                                                
1:39:36 PM                                                                                                                    
MS.  WALLACE said  Legislative  Legal  Services reviewed  similar                                                               
actions in  Lower 48 states  with differing  results. Wisconsin's                                                               
governor  issued a  second proclamation  related to  the COVID-19                                                               
disaster.  In  that  case,  the   Wisconsin  Superior  Court  and                                                               
Wisconsin  Supreme  Court  refused  to  grant  a  preliminary  or                                                               
temporary injunction  on grounds  that the legislature  had power                                                               
to end  the emergency and declined  to do so. In  Michigan, after                                                               
an   initial  disaster   declaration  expired   after  28   days,                                                               
Michigan's governor  issued a second disaster  declaration, which                                                               
was challenged  in court.  The Michigan  Supreme Court  held that                                                               
given that  the statute  required the  governor to  terminate the                                                               
declaration  after 28  days, in  the absence  of a  legislatively                                                               
authorized  extension,  the  court  was not  persuaded  that  the                                                               
legislature intended to allow the  governor to redeclare the same                                                               
emergency.                                                                                                                      
                                                                                                                                
She  recapped that  courts  in other  states  faced with  similar                                                               
situations have  made different rulings.  She reiterated  that if                                                               
Governor Dunleavy's  actions were to  be challenged in  court, it                                                               
would be difficult to predict the outcome.                                                                                      
                                                                                                                                
1:41:48 PM                                                                                                                    
MS.  WALLACE explained  the court  might consider  that under  AS                                                               
26.23.025(c),  the legislature  may terminate  a disaster  at any                                                               
time. Since  the legislature had  and has the opportunity  to end                                                               
an  emergency by  law, that  failure to  take action  negates the                                                               
objection  to a  subsequent  disaster  declaration. However,  the                                                               
Alaska  Disaster  Act  defines   a  disaster  emergency  as  "the                                                               
condition  declared   by  proclamation   of  the   governor.  She                                                               
reiterated  Legislative Legal  Service's assessment  is that  the                                                               
condition  could  be  described   as  an  outbreak  of  COVID-19.                                                               
Therefore, since  AS 26.23.020(c)  provides that  the legislature                                                               
has the exclusive  power to extend the  disaster declaration, the                                                               
governor did not have the  authority to issue another declaration                                                               
for that same emergency condition.                                                                                              
                                                                                                                                
1:43:45 PM                                                                                                                    
CHAIR  REINBOLD  said  she  understood   the  November  15,  2020                                                               
extension was  based on  hospital beds at  or near  capacity. She                                                               
asked if the  legislature and citizens have the right  to see the                                                               
data used to support the decision.                                                                                              
                                                                                                                                
MS.  WALLACE answered  that she  cannot speak  to the  facts that                                                               
were the  grounds for the subsequent  disaster declaration except                                                               
for  the language  in the  declarations. She  suggested that  the                                                               
Office of  the Governor  or the Department  of Health  and Social                                                               
Services (DHSS) could  better address the basis  for the disaster                                                               
declaration emergency extensions and provide public information.                                                                
                                                                                                                                
1:45:46 PM                                                                                                                    
SENATOR  KIEHL  expressed  concern  that  the  justification  for                                                               
issuing  the   subsequent  disaster  declarations   stated,  "The                                                               
opportunity  to   distribute  the  vaccine."  While   he  totally                                                               
supports   vaccinations,  distributing   the  vaccine   does  not                                                               
represent a  disaster, but  rather an  opportunity to  respond to                                                               
the  condition.  He  asked  what a  court  might  consider  would                                                               
constitute a disaster condition.                                                                                                
                                                                                                                                
MS. WALLACE answered that it  would be difficult to speculate how                                                               
a court might rule on that  issue. The court might determine that                                                               
the governor  cannot call the  COVID-19 disaster a  new emergency                                                               
if it is a  continuation of a response to an  emergency and it is                                                               
not a  new emergency. The  court might also consider  the state's                                                               
response  to  the new  emergency  and  question actions  such  as                                                               
travel  mandates that  do not  specifically relate  to a  vaccine                                                               
emergency.  The  court could  make  a  factual determination  and                                                               
consider disputes over the grounds  for the disaster declaration.                                                               
She characterized the potential court case as complicated.                                                                      
                                                                                                                                
1:49:12 PM                                                                                                                    
SENATOR  SHOWER  commented  that  he did  not  see  the  disaster                                                               
declaration  extensions  based  on  a  new  disaster,  but  as  a                                                               
continuation. He  asked about  court cases in  the Lower  48 that                                                               
are  moving toward  the US  Court of  Appeals or  the US  Supreme                                                               
Court (SCOTUS)  relating to  the issues  of governor  mandates or                                                               
legislative power.                                                                                                              
                                                                                                                                
MS. WALLACE answered  that numerous cases are  moving through the                                                               
federal  courts   that  have  litigated  the   power  of  states,                                                               
governors,  and municipalities  issuing  mandates. She  explained                                                               
that  those  issues are  somewhat  different  than the  power  to                                                               
declare a  disaster. She said she  was not aware of  cases moving                                                               
towards  SCOTUS on  the governor's  power  to declare  subsequent                                                               
disasters. Some cases may be related  to mandates but she did not                                                               
have any specific information.                                                                                                  
                                                                                                                                
1:51:49 PM                                                                                                                    
SENATOR  SHOWER  related  his understanding  that  from  a  legal                                                               
perspective, the  agency believes  the legislature  would prevail                                                               
and the governor is likely to lose.                                                                                             
                                                                                                                                
MS. WALLACE  agreed. She  opined that  AS 26.23.020(c)  gives the                                                               
legislature   the  exclusive   power  to   extend  the   disaster                                                               
declaration.  The  governor's  issuance of  disaster  declaration                                                               
extensions  for what  is arguably  the same  disaster is  legally                                                               
vulnerable.                                                                                                                     
                                                                                                                                
CHAIR REINBOLD said she appreciated  the consistency of the legal                                                               
memo and her testimony.                                                                                                         
                                                                                                                                
1:53:14 PM                                                                                                                    
SENATOR HUGHES  asked if  it was  not legal  for the  governor to                                                               
issue an  emergency disaster declaration  extension in  the first                                                               
place, if  it is constitutional to  extend it a second  time. She                                                               
asked if the safest way to  prevent a court challenge would be to                                                               
provide the  governor with  the necessary  tools by  amending the                                                               
statutes  and suspending  regulations  instead  of extending  the                                                               
declaration. In this way, the governor can mitigate the issues.                                                                 
                                                                                                                                
MS. WALLACE  agreed the legislature  could pass a law  to suspend                                                               
or  modify them  and incur  little  risk. The  issue that  arises                                                               
would be  the broad  powers that  come when  a disaster  has been                                                               
declared  under   the  Alaska   Disaster  Act.  Absent   a  valid                                                               
declaration of  emergency, Governor  Dunleavy would not  have the                                                               
same  powers  to  respond  under the  modified  statutes  as  the                                                               
governor  has  under the  Alaska  Disaster  Act. One  option  the                                                               
legislature  potentially  has  would  be to  ratify  the  current                                                               
disaster  declaration, thereby  retroactively approving  them. It                                                               
could agree that the declaration of emergency could continue.                                                                   
                                                                                                                                
1:56:32 PM                                                                                                                    
SENATOR HUGHES  asked for clarification that  fixing the statutes                                                               
would avoid  the court challenge  if the legislature  decided not                                                               
to ratify the current disaster declaration.                                                                                     
                                                                                                                                
MS. WALLACE answered that if  the legislature were to take action                                                               
by law to extend or  approve the disaster declaration, the action                                                               
is not as vulnerable to  legal challenges because the legislature                                                               
has  taken specific  action  by  law to  approve  and extend  the                                                               
disaster declaration.  She said she understood  that the disaster                                                               
declaration may have been based on  a faulty premise but once the                                                               
legislature takes action  to approve it, it may  have some effect                                                               
to  remedy  it.  The  legislature  could  also  make  substantive                                                               
changes to the  Alaska Disaster Act to clarify  that the governor                                                               
does  not  have  the  authority   to  issue  subsequent  disaster                                                               
declarations  for the  same  emergency. She  argued  that if  the                                                               
legislature had intended  to allow the governor  to issue another                                                               
emergency  disaster declaration  after  30 days,  it would  never                                                               
have  reserved   the  legislature   the  power  to   approve  the                                                               
extension. The legislature  has a number of  different options it                                                               
could exercise.                                                                                                                 
                                                                                                                                
1:58:31 PM                                                                                                                    
CHAIR REINBOLD  remarked that this  is the most  important issue.                                                               
She expressed her concern that  Senate Bill 241 was only referred                                                               
to the Senate  Rules Committee so it received  little review. She                                                               
indicated  that Article  7 of  the Constitution  of the  State of                                                               
Alaska gives  the legislature authority to  establish schools and                                                               
provide for  promotion and protection  of the public  health. She                                                               
said  the   legislative  committees  could  have   met,  but  the                                                               
legislature did not get the opportunity to weigh in.                                                                            
                                                                                                                                
She expressed  concern over the  number of regulations  that were                                                               
suspended. She asked  for clarification on when  the governor had                                                               
the authority to suspend regulations.                                                                                           
                                                                                                                                
MS.  WALLACE said  the governor's  powers  to suspend  regulatory                                                               
provisions is  generally found in  AS 26.23.020(g),  which states                                                               
that once a disaster has been declared, the governor may:                                                                       
                                                                                                                                
     (1)suspend  the provisions  of  any regulatory  statute                                                                    
     prescribing  procedures   for  the  conduct   of  state                                                                    
     business,  or the  orders or  regulations of  any state                                                                    
     agency,  if  compliance  with  the  provisions  of  the                                                                    
     statute,  order,   or  regulation  would   prevent,  or                                                                    
     substantially  impede  or  delay, action  necessary  to                                                                    
     cope with the disaster emergency;                                                                                          
                                                                                                                                
She  suggested that  the  legislature would  need  to review  the                                                               
specific regulation  that was suspended  and analyze if it  was a                                                               
regulatory provision.                                                                                                           
                                                                                                                                
MS.  WALLACE said  that Legislative  Legal Services  has reviewed                                                               
the  mandates  that  were  issued  but  has  not  identified  any                                                               
specific or obvious constitutional issues.                                                                                      
                                                                                                                                
2:02:52 PM                                                                                                                    
CHAIR  REINBOLD argued  that  is debatable.  She  asked how  long                                                               
martial law can be in place and what can the governor do.                                                                       
                                                                                                                                
MS.  WALLACE  said  she  was   not  prepared  to  advise  on  the                                                               
governor's limits  with respect  to martial  law. She  offered to                                                               
research and respond later.                                                                                                     
                                                                                                                                
2:03:37 PM                                                                                                                    
SENATOR KIEHL asked whether the  disaster declaration falls under                                                               
different provisions of  the Constitution of the  State of Alaska                                                               
than Section 20, Martial law.                                                                                                   
                                                                                                                                
MS. WALLACE answered yes.                                                                                                       
                                                                                                                                
SENATOR  KIEHL  asked  about   the  legislature's  options  going                                                               
forward. In Senate Bill 241,  which extended the initial disaster                                                               
declaration,  the legislature  delegated on  a temporary  basis a                                                               
number of powers. He asked if  the legislature were to ratify the                                                               
disaster declaration,   the legislature  can "pull back"  some of                                                               
the  governor's disaster  powers. For  example, under  the Alaska                                                               
Disaster  Act,  the  governor  has  the  power  to  mobilize  the                                                               
military.  He has  not  done  so, nor  does  anyone envision  the                                                               
necessity to  do so. He asked  if it were possible  to ratify but                                                               
limit the authority to mobilize the  military or if that raises a                                                               
separation of powers issue.                                                                                                     
                                                                                                                                
MS.  WALLACE answered  yes; generally,  the legislature  has that                                                               
power.  The Alaska  Disaster Act  provides the  general authority                                                               
and power  for the governor to  act under an emergency  but it is                                                               
generally permissible,  constitutionally, for the  legislature to                                                               
subsequently pass a law that  limits some of that authority since                                                               
the legislature would be modifying its own law.                                                                                 
                                                                                                                                
2:06:00 PM                                                                                                                    
SENATOR  SHOWER  asked if  a  new  law  would  need to  pass  the                                                               
legislature to make the change.                                                                                                 
                                                                                                                                
MS. WALLACE  answered that the  legislature would need  to modify                                                               
any of  the existing statutory  powers conferred to  the governor                                                               
under a disaster  by passing a bill. She recalled  that in Senate                                                               
Bill  241, the  legislature modified  the governor's  expenditure                                                               
authority  in the  Disaster Relief  Fund  by limiting  it to  $10                                                               
million.  The Alaska  Disaster Act  generally  provides that  the                                                               
governor can expend  from the Disaster Relief Fund  to the extent                                                               
necessary to respond to the disaster.                                                                                           
                                                                                                                                
2:08:22 PM                                                                                                                    
SENATOR SHOWER  pointed out  that it  takes significant  time for                                                               
the legislature  to pass  a bill whereas  the governor  can often                                                               
take action quickly.                                                                                                            
                                                                                                                                
MS. WALLACE  answered that the  legislature would need to  pass a                                                               
bill. She referred to AS 26.23.025(b), which read:                                                                              
                                                                                                                                
     Notwithstanding  any other  provision of  this chapter,                                                                    
     if  the  declaration  of a  disaster  emergency  occurs                                                                    
     while the  legislature is  in session  or if  a special                                                                    
     session is  held, actions taken  by the  governor under                                                                    
     this chapter  after the close  of the session  that are                                                                    
     not  ratified by  law adopted  during that  session are                                                                    
     void.                                                                                                                      
                                                                                                                                
She said that  when a disaster occurs during  session, any action                                                               
taken  by  a  governor  that  is  not  approved  by  law  by  the                                                               
legislature, is  rendered void. This  becomes an option  when the                                                               
legislature  is  back   in  session  as  opposed   to  the  prior                                                               
declarations  that  have  been   issued  during  the  legislative                                                               
interim.                                                                                                                        
                                                                                                                                
2:10:42 PM                                                                                                                    
SENATOR HUGHES  asked if this  meant that now the  legislature is                                                               
back  in  session  the governor  cannot  declare  another  30-day                                                               
emergency extension without legislative action.                                                                                 
                                                                                                                                
MS.  WALLACE  answered  that  the   statute  is  not  quite  that                                                               
specific. She  read a portion,  "  actions taken by  the governor                                                               
under this  chapter after the close  of the session that  are not                                                               
ratified by law adopted during that session are void."                                                                          
                                                                                                                                
She said that  if a disaster declaration were to  be declared and                                                               
it had not yet expired while  the legislature was in session, but                                                               
then session ended,  the governor could not act  pursuant to that                                                               
emergency.  Arguably,  because  the disaster  is  occurring  now,                                                               
while the legislature is in  session, if the legislature does not                                                               
take  any  action  this  session, the  governor  could  not  take                                                               
further action, she said.                                                                                                       
                                                                                                                                
MS. WALLACE said  the governor has proposed a bill  to extend the                                                               
current  January 15,  2021 disaster  proclamation. She  suggested                                                               
that by  introducing SB 56,  the governor may have  acquiesced to                                                               
the notion that the legislature  holds the power to extend beyond                                                               
that date. She opined that any  further action by the governor to                                                               
issue  another  disaster  proclamation,  more so  now,  would  be                                                               
legally vulnerable to challenge.                                                                                                
                                                                                                                                
2:13:18 PM                                                                                                                    
CHAIR REINBOLD referred to Article 3, Section 20, Martial law:                                                                  
                                                                                                                                
     The governor  may proclaim martial law  when the public                                                                    
     safety requires  it in case  of rebellion or  actual or                                                                    
     imminent invasion.  Martial law shall not  continue for                                                                    
     longer  than  twenty days  without  the  approval of  a                                                                    
     majority  of the  members of  the legislature  in joint                                                                    
     session.                                                                                                                   
                                                                                                                                
CHAIR  REINBOLD   asked  if  mandates   and  health   orders  are                                                               
considered executive orders.                                                                                                    
                                                                                                                                
MS.   WALLACE   answered    that   disaster   proclamations   and                                                               
accompanying health  orders are not considered  executive orders.                                                               
Under Article 3, Sections 25-26  of the Constitution of the State                                                               
of  Alaska, the  governor can  issue an  executive order  to make                                                               
administrative   reorganization  to   the   departments  of   the                                                               
executive branch.  The disaster  proclamations do not  fall under                                                               
executive orders.                                                                                                               
                                                                                                                                
CHAIR  REINBOLD   asked  for   further  clarification   that  the                                                               
legislature cannot repeal the mandates.                                                                                         
                                                                                                                                
MS.  WALLACE said  the  remedy  for the  legislature  to end  the                                                               
disaster or require the governor  to repeal the mandates is under                                                               
AS 26.23.025(c), which says that  the legislature may terminate a                                                               
disaster emergency  any time by  law. This means  the legislature                                                               
would  need to  pass a  bill  that terminates  the disaster,  she                                                               
said.                                                                                                                           
                                                                                                                                
2:17:48 PM                                                                                                                    
DANIEL  DEW,  Legal  Policy Director,  Pacific  Legal  Foundation                                                               
(PLF), Washington, D.C., described  the foundation as a nonprofit                                                               
law  firm that  has  operated  for 47  years  and specializes  in                                                               
individual  liberty,  property  rights,  equal  protection,  free                                                               
speech.  The PLF  has had  numerous  wins before  the US  Supreme                                                               
Court  (SCOTUS). He  anticipated SCOTUS  would hear  a case  this                                                               
term.                                                                                                                           
                                                                                                                                
He  said he  works  with  state legislatures  to  assist them  to                                                               
reform  and put  safeguards on  governor executive  and emergency                                                               
powers.  He  suggested that  governors  are  confusing the  terms                                                               
serious and emergency.  At the beginning of the  pandemic, it may                                                               
have  been  justified  to  act   quickly.  However,  as  COVID-19                                                               
lingered  it became  a serious  issue and  not an  emergency. The                                                               
legislature's job  is to make  policy to address  serious issues.                                                               
The separation of powers protects individual liberty.                                                                           
                                                                                                                                
2:20:38 PM                                                                                                                    
MR. DEW said across the  country, governors have issued emergency                                                               
orders   and  placed   restrictions  on   individuals.  He   made                                                               
recommendations to  address this. First, emergency  orders should                                                               
be narrowly  defined in scope,  duration, and  applicability. One                                                               
state allowed  hair salons  but closed  nail salons  although the                                                               
same protocols  could be put  in place. Some states  have treated                                                               
large box stores differently than  church services. Secondly, the                                                               
PLF recommends that emergency orders  be expedited in the courts.                                                               
Some  orders  have been  issued  by  unelected health  officials.                                                               
These officials should make  recommendations to elected officials                                                               
who could be  held politically accountable by  the public. Third,                                                               
the PLF  recommends developing incentives to  encourage governors                                                               
to call  legislatures into session. Requiring  governors to limit                                                               
emergency orders  for a short  period of  time, such as  30 days,                                                               
and  then  allow legislatures  to  address  the issue.  Once  the                                                               
legislature ratifies the  order, the order could  be extended, he                                                               
said.                                                                                                                           
                                                                                                                                
MR. DEW encouraged  legislatures to allow members  the ability to                                                               
vote  remotely,  and  to   establish  explicit  prohibitions  for                                                               
governors  from reissuing,  extending, or  creating substantially                                                               
similar  emergency orders,  for expired  orders or  for ones  the                                                               
legislature  rejected.  Currently,  emergency  orders  have  been                                                               
focused on  COVID-19 but these  orders can also  address opioids,                                                               
homelessness, racism,  and climate  change. He  expressed concern                                                               
that if legislatures do not  place safeguards on emergency powers                                                               
the potential for  a plethora of orders and abuse  of power could                                                               
happen. No one should be trusted with all that power, he said.                                                                  
                                                                                                                                
2:28:17 PM                                                                                                                    
CHAIR  REINBOLD  summarized  the  recommendations  for  emergency                                                               
orders,  including  that  emergency  orders  should  be  narrowly                                                               
tailored, expedited for  judicial review, and issued  only by the                                                               
governor to  avoid infringing on constitutional  rights. She said                                                               
an emergency order  should sunset in 7 days  when the legislature                                                               
is  not in  session,  and 30  days if  the  legislature does  not                                                               
ratify the order. Finally, it  should allow remote participation,                                                               
prohibit governors  from reissuing emergency orders  that expired                                                               
or that the legislature rejected.                                                                                               
                                                                                                                                
CHAIR REINBOLD  said she  supports the  Administrative Regulation                                                               
Review  Committee  reviewing  all regulations  and  the  governor                                                               
should not be suspending regulations.                                                                                           
                                                                                                                                
2:30:27 PM                                                                                                                    
SENATOR  SHOWER  said  that  while   SB  56  is  not  before  the                                                               
committee, it  is important to  discussions relevant  to judicial                                                               
review. He  asked if due process  or the 14th Amendment  is being                                                               
violated with the closure of small businesses.                                                                                  
                                                                                                                                
MR. DEW  agreed. He  said the PLF  is litigating  and challenging                                                               
many  emergency  order so  it  has  seen small  businesses  being                                                               
treated differently than large businesses.  The PLF suggests that                                                               
the courts  should use strict  scrutiny to the  emergency orders,                                                               
but  unfortunately  the  courts  have  initially  stayed  on  the                                                               
sideline, he said.                                                                                                              
                                                                                                                                
2:34:21 PM                                                                                                                    
CHAIR  REINBOLD  asked  if  he   would  be  a  resource  for  the                                                               
committee.                                                                                                                      
                                                                                                                                
MR. DEW agreed his contact information could be distributed.                                                                    
                                                                                                                                
2:34:32 PM                                                                                                                    
SENATOR  SHOWER  stated  that businesses  in  his  district  were                                                               
threatened by  officials suggesting  compliance or the  bar might                                                               
lose its liquor license.                                                                                                        
                                                                                                                                
2:35:37 PM                                                                                                                    
SENATOR  KIEHL  asked if  he  would  look  at the  definition  of                                                               
disaster in AS  26.23.900 to see if the language  is tight enough                                                               
and respond in writing. He further  asked if the governor did not                                                               
use  his power  to  call  the legislature  in  but issued  serial                                                               
declarations,  how  could  the   legislature  prevent  that  from                                                               
happening again.                                                                                                                
                                                                                                                                
MR. DEW responded that the approach  the PLC suggests is to allow                                                               
the  governor to  issue  an  emergency order  for  7 days  unless                                                               
he/she  calls   the  legislature  into  session,   but  once  the                                                               
legislature  is called  into session,  the emergency  order would                                                               
extend to 30  days. This would provide the  governor an incentive                                                               
to call the legislature into session.                                                                                           
                                                                                                                                
CHAIR  REINBOLD  asked  the  record  to  reflect  her  intent  to                                                               
introduce a committee bill to address emergency orders.                                                                         
                                                                                                                                
^CONFIRMATION HEARING(S):                                                                                                       
                    CONFIRMATION HEARING(S)                                                                                   
State Commission for Human Rights                                                                                             
Alaska Judicial Council                                                                                                       
                                                                                                                              
2:39:10 PM                                                                                                                    
CHAIR REINBOLD  announced the  final order  of business  would be                                                               
confirmation hearings  for the State  Commission on  Human Rights                                                               
and the Alaska Judicial Council.                                                                                                
                                                                                                                                
2:40:18 PM                                                                                                                    
CYNTHIA ERICKSON,  Appointee, State Commission for  Human Rights,                                                               
Tanana, Alaska, stated that she grew  up in Ruby but has lived in                                                               
Tanana for 35 years. Her family  owns the general store. She said                                                               
she  is an  Athabascan  Indian  and Yupik  Eskimo.  She said  she                                                               
currently serves on the Suicide  Prevention Council. She also has                                                               
her  own  nonprofit  business and  works  with  youth  throughout                                                               
Alaska  to help  prevent the  epidemic of  suicide. She  has been                                                               
serving  on the  State Commission  for Human  Rights for  several                                                               
years. She  has enjoyed learning  and hopes the  legislature will                                                               
reappoint her to serve.                                                                                                         
                                                                                                                                
2:41:36 PM                                                                                                                    
SENATOR KIEHL  thanked her  for her work  with youth  and suicide                                                               
prevention. He  said that he  will ask all appointees  serving on                                                               
the  commission the  same question.  This summer  the US  Supreme                                                               
Court  (SCOTUS)   ruled  in  Bostock   v.  Clayton   County  that                                                               
discrimination  on  the basis  of  sexual  orientation or  gender                                                               
identity is discrimination  on the basis of sex. He  asked if she                                                               
had  any  trouble understanding  Alaska  law  in the  way  SCOTUS                                                               
interpreted it.                                                                                                                 
                                                                                                                                
MS. ERICKSON answered  no. She said the  commission considers its                                                               
matters based on current law but not on members' personal views.                                                                
                                                                                                                                
2:42:56 PM                                                                                                                    
SENATOR  SHOWER   pointed  out   that  the  commission   has  had                                                               
considerable controversy in  the past few years. He  asked if any                                                               
issues or  personality conflicts  might make it  tough to  do the                                                               
job.                                                                                                                            
                                                                                                                                
MS. ERICKSON  answered that it is  hard living in a  village. She                                                               
commended  the current  members,  stating the  members use  their                                                               
common sense  and work  well together.  She acknowledged  that it                                                               
has been rocky  but she enjoys the  current commission membership                                                               
even though  the work is  time consuming.  She said she  does not                                                               
foresee any issues.                                                                                                             
                                                                                                                                
SENATOR SHOWER  asked if she  is aware of any  undisclosed issues                                                               
that  could damage  the perceptions  of the  appointees, such  as                                                               
"skeletons in the closet."                                                                                                      
                                                                                                                                
MS.  ERICKSON  answered no,  absolutely  not.  She commended  the                                                               
member's character traits and said that  she was not aware of any                                                               
issues with the commission members. She  said she is proud of the                                                               
decisions the commission has made.                                                                                              
                                                                                                                                
2:47:09 PM                                                                                                                    
CHAIR REINBOLD recalled a recent  case in her district related to                                                               
free speech. She mentioned that  several supreme court cases have                                                               
addressed parental rights  and gender issues and  it is important                                                               
to  consider all  of the  cases and  laws. She  expressed concern                                                               
about  how difficult  it is  during  COVID-19 for  people to  get                                                               
counseling. She thanked her for the  work she is doing with youth                                                               
on suicide prevention. She asked if  she has seen an increase [in                                                               
suicide] or if it has been about the same.                                                                                      
                                                                                                                                
MS. ERICKSON answered that the  problems have escalated. She said                                                               
the lockdowns  are hard on  families in rural Alaska.  She stated                                                               
that her  parents just flew  out of  Ruby. She reported  that the                                                               
small village of  100 has over 25 cases. Many  kids are suffering                                                               
from domestic  violence and increased  stress. She  contacts kids                                                               
via  social media  to  talk them  through  suicidal thoughts  and                                                               
issues at home. She acknowledged it has been difficult.                                                                         
                                                                                                                                
2:51:03 PM                                                                                                                    
CHAIR  REINBOLD  turned to  the  next  confirmation hearing,  for                                                               
Kristie Babcock, appointee to the Alaska Judicial Council.                                                                      
                                                                                                                                
2:51:44 PM                                                                                                                    
KRISTIE  BABCOCK, Appointee,  Alaska Judicial  Council, Soldotna,                                                               
Alaska, said she  was appointed to the AJC beginning  on March 1,                                                               
2021. She provided a brief  biographical background. She was born                                                               
in Zambia, Africa.  She has lived in Alaska since  she was a baby                                                               
and  graduated from  East High  and  from Willamette  University.                                                               
After graduating from  college, she served as  a legislative aide                                                               
in 1990.  She worked  as director of  Boards and  Commissions for                                                               
Governors Hickel and  Murkowski. She has lived  in several Alaska                                                               
communities  on the  road system  and has  worked for  State Farm                                                               
Insurance for 25 years. She said  she has lived in Soldotna since                                                               
1999. She has  served on the Boys and Girls  Club board. She said                                                               
she is proud of her reputation as a businesswoman.                                                                              
                                                                                                                                
She  expressed her  interest in  serving on  the Alaska  Judicial                                                               
Council  because it  is  an important  role to  have  a fair  and                                                               
orderly  society. Judges  must interpret  and apply  the law  and                                                               
ensure equal  protection and equal  justice under the  law. These                                                               
judges must  be impartial  and ensure  that trials  are conducted                                                               
fairly.   She  has   studied  the   transcripts  of   the  Alaska                                                               
Constitutional  Convention.  The  founders  intended  for  public                                                               
members to  serve on the  council and assist in  bringing forward                                                               
qualified names. She  said she believes she  has the temperament,                                                               
knowledge and  communication skills to  work on the  council. The                                                               
council also  makes recommendations  on retaining judges  and for                                                               
the improvement of  this system. She has the  ability to evaluate                                                               
information, make  determinations fairly,  and work  with others,                                                               
which is something she does  regularly. She said she is committed                                                               
to serve on  the council in a way that  honors the constitutional                                                               
role   of  the   council   and  she   recognizes  the   important                                                               
consequences of the recommendations.                                                                                            
                                                                                                                                
2:56:17 PM                                                                                                                    
CHAIR REINBOLD remarked that she  attended East High in Anchorage                                                               
at the same time as Ms. Babcock.                                                                                                
                                                                                                                                
2:56:42 PM                                                                                                                    
SENATOR KIEHL  asked what opportunities  the council has  to make                                                               
improvements in  screening judicial  applicants it  recommends to                                                               
the governor.                                                                                                                   
                                                                                                                                
MS. BABCOCK  answered that  her position will  start on  March 1,                                                               
2021, but  she will go  in with an open  mind. She said  she will                                                               
not be  able to evaluate  the screening process until  she serves                                                               
on the council.                                                                                                                 
                                                                                                                                
2:57:39 PM                                                                                                                    
SENATOR KIEHL  raised a constitutional  issue. He said it  is not                                                               
allowable to  forward another appointee  from the  Third Judicial                                                               
District  to  serve   on  the  AJC.  He  said   that  the  Alaska                                                               
Constitution  requires   that  appointments  be  made   with  due                                                               
consideration to  area representation. He expressed  concern that                                                               
the past appointments will leave  vast swatches of Alaska without                                                               
any   representation  on   the   Alaska   Judicial  Council.   He                                                               
characterized it  as a serious constitutional  issue. However, it                                                               
is one that does not have anything to do with Ms. Babcock.                                                                      
                                                                                                                                
2:58:35 PM                                                                                                                    
CHAIR REINBOLD remarked  that Eagle River may  not be represented                                                               
either. She agreed that regional representation is important.                                                                   
                                                                                                                                
2:59:04 PM                                                                                                                    
SENATOR SHOWER asked  if she knew of any  undisclosed issues that                                                               
could  damage the  perceptions  of her  such  as misdemeanors  or                                                               
other "skeletons in the closet."                                                                                                
                                                                                                                                
MS. BABCOCK answered no.                                                                                                        
                                                                                                                                
3:00:14 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
3:01:01 PM                                                                                                                    
CHAIR REINBOLD  reconvened the  meeting. She  turned to  the next                                                               
confirmation  hearing,  for  Elizabeth Engle,  appointee  to  the                                                               
State Commission on Human Rights.                                                                                               
                                                                                                                                
3:01:40 PM                                                                                                                    
ELIZABETH  ENGLE, Appointee,  State Commission  on Human  Rights,                                                               
Fairbanks,  Alaska, said  she  was born  in  the Philippines  and                                                               
holds two  engineering degrees. She moved  to the US in  1967. In                                                               
1969, she moved to Fairbanks.  She retired from the Department of                                                               
Transportation and  Public Facilities  (DOTPF) in 1999.  She also                                                               
worked for  Alyeska Pipeline Company. She  listed numerous awards                                                               
she  has  received, including  being  recognized  as a  Women  of                                                               
Distinction in  2017. Since  she has  had background  checks, she                                                               
does not have any "skeletons in her closet."                                                                                    
                                                                                                                                
She has  served on  the State Commission  for Human  Rights since                                                               
March  2019. She  said she  brings management  skills and  common                                                               
sense to  the commission.  She finds  her service  as a  means to                                                               
give back to her community.                                                                                                     
                                                                                                                                
3:06:52 PM                                                                                                                    
SENATOR  KIEHL  said  the  US Supreme  Court  (SCOTUS)  ruled  in                                                               
Bostock v.  Clayton County  that discrimination  on the  basis of                                                               
sexual orientation  or gender identity  is discrimination  on the                                                               
basis  of sex.  He asked  if  she had  any trouble  understanding                                                               
Alaska law in the way SCOTUS interpreted it.                                                                                    
                                                                                                                                
MS.  ENGLE said  no,  she does  not. She  said  that the  current                                                               
commission is a great group  and the commission has just selected                                                               
a  competent executive  director. She  expressed one  goal is  to                                                               
improve  the staff  working  environment.  She expressed  concern                                                               
about the acoustics and other  issues in the current office space                                                               
in Anchorage  that the commission  shares with the  Department of                                                               
Corrections  (DOC)  office,  Division of  Parole.  She  expressed                                                               
concern  that   conversations  the  commission  holds   might  be                                                               
overhead. She  worked with the  executive director to  report the                                                               
deficiencies to the Governor's office.                                                                                          
                                                                                                                                
3:09:27 PM                                                                                                                    
CHAIR   REINBOLD  opened   public  testimony   and  after   first                                                               
determining no one wished to  testify, closed public testimony on                                                               
the confirmation hearings for the three appointees.                                                                             
                                                                                                                                
CHAIR REINBOLD held  over the confirmation hearings  to address a                                                               
technical issue that Senator Hughes raised.                                                                                     
                                                                                                                                
^DISASTER DECLARATION EXTENSIONS RELATING TO COVID                                                                              
       DISASTER DECLARATION EXTENSIONS RELATING TO COVID                                                                    
                                                                                                                              
3:10:24 PM                                                                                                                    
CHAIR  REINBOLD  reverted  back   to  consideration  of  DISASTER                                                               
DECLARATION EXTENSIONS RELATING TO  COVID. She indicated that she                                                               
had  several   testifiers  online   to  speak  to   the  disaster                                                               
declaration.                                                                                                                    
                                                                                                                                
3:11:06 PM                                                                                                                    
STEWART THOMPSON, representing himself,  Wasilla, Alaska, said he                                                               
recommends  extending the  disaster  declaration  for another  30                                                               
days provided that the governor  takes actions to prevent federal                                                               
government overreach, provide  recommendations for the prevention                                                               
of  harmful consequences  for COVID-19  and call  the legislature                                                               
into session to pass legislation  to effectively handle COVID-19.                                                               
He expressed  concern about  how the  pandemic has  been handled,                                                               
including  officials   requiring  lockdowns   without  scientific                                                               
basis.                                                                                                                          
                                                                                                                                
3:14:19 PM                                                                                                                    
THOMAS  HENNESSY,  Doctor;   Infectious  Disease  Epidemiologist,                                                               
University  of Anchorage,  Anchorage,  Alaska, expressed  support                                                               
for  extension of  the emergency  disaster  declaration to  allow                                                               
flexibility needed to  contain this pandemic. The  state needs to                                                               
administer  testing and  vaccination  clinics in  non-traditional                                                               
locations,  quickly  recruit   health  professionals  from  other                                                               
states and  more rapidly develop contracts  and procedures needed                                                               
to meet medical  supply needs and allocate  scarce resources such                                                               
as  vaccines and  therapeutics.  He commended  the Department  of                                                               
Health and Social Services (DHSS),  which has done an outstanding                                                               
job  in responding  to the  pandemic. Commissioner  Crum provided                                                               
information   to  Alaskans   about  the   rationale  behind   the                                                               
department's  position. Alaska  has benefitted  from it  with the                                                               
lowest death  rates in the  US, and  high degrees of  testing and                                                               
low  hospitalization. He  suggested the  legislature should  give                                                               
the governor the needed tools  to protect Alaskans until everyone                                                               
can get vaccinated.                                                                                                             
                                                                                                                                
CHAIR REINBOLD asked if he developed models for the governor.                                                                   
                                                                                                                                
DR.  HENNESSY answered  that  he coauthored  a  paper last  March                                                               
25th,  presented to  the Anchorage  Assembly and  Municipality of                                                               
Anchorage  that  evaluated  two  mathematical  models  and  their                                                               
relevance for Alaska.                                                                                                           
                                                                                                                                
3:17:02 PM                                                                                                                    
[LINDA  SMITH], representing  herself,  Sitka,  Alaska, (did  not                                                               
identify herself  for the record). The  person speaking expressed                                                               
concern about  the impacts  of COVID-19.  She stated  her concern                                                               
that doctors may  have altered the virus with a  protein so it is                                                               
more potent. She  suggested that Dr. Lee Merritt  said some drugs                                                               
are  effective to  defuse it,  such as  hydroxychloroquine, which                                                               
should be made available.                                                                                                       
                                                                                                                                
3:23:09 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Reinbold adjourned the  Senate Judiciary Standing Committee                                                               
meeting at 3:23 p.m.                                                                                                            

Document Name Date/Time Subjects