Legislature(1999 - 2000)
04/10/2000 01:28 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 2000
1:28 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Joe Green
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 163(RLS)
"An Act relating to trusts, to a trustee's duties to notify and
inform beneficiaries, and to the revocation, modification,
termination, reformation, construction, and trustees of trusts."
- MOVED HCS CSSB 163(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 324
"An Act requiring written consent by the person who is the
subject of the information before releasing personal information
contained in motor vehicle records, to comply with 18 U.S.C.
2721; and providing for an effective date."
- MOVED HB 324 OUT OF COMMITTEE
HOUSE BILL NO. 341
"An Act relating to agricultural facilities and operations as
private nuisances; and to disclosures in transfers of real
property located within one mile of an agricultural facility or
an agricultural operation."
- HEARD AND HELD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 329
"An Act relating to services and information available to
pregnant women and other persons; and requiring informed consent
and a 24-hour waiting period before an abortion may be performed
unless there is a medical emergency."
- HEARD AND HELD
HOUSE BILL NO. 164
"An Act relating to electronic application for and issuance of
licenses, permits, and tags issued by the Department of Fish and
Game; to violations regarding a license, permit, or tag applied
for or issued electronically; and providing for an effective
date."
- MOVED CSHB 164(RES) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 24(FIN) am
"An Act relating to regulations; amending Rule 65, Alaska Rules
of Civil Procedure; and providing for an effective date."
- MOVED HCS CSSB 24(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 211
"An Act relating to liability for providing managed care
services, to regulation of managed care insurance plans, and to
patient rights and prohibited practices under health insurance;
and providing for an effective date."
- RESCINDED ACTION OF 4/06/00; MOVED NEW CSHB 211(JUD) OUT
OF COMMITTEE
HOUSE BILL NO. 338
"An Act relating to crimes involving computers, access devices,
other technology, and identification documents; relating to the
crime of criminal impersonation; relating to crimes committed by
the unauthorized access to or use of communications in electronic
storage; and providing for an effective date."
- MOVED CSHB 338(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 27 am
Proposing amendments to the Constitution of the State of Alaska
relating to revisions of the state constitution and providing
that a court may not change language of a proposed constitutional
amendment or revision.
- MOVED HCS SJR 27(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 401
"An Act relating to computer networks and to electronic mail
advertisements."
- MOVED CSHB 401(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 163
SHORT TITLE: TRUSTS AND TRUSTEES
Jrn-Date Jrn-Page Action
4/22/99 1040 (S) READ THE FIRST TIME - REFERRAL(S)
4/22/99 1040 (S) JUD
4/28/99 (S) JUD AT 1:30 PM BELTZ 211
4/28/99 (S) -- MEETING CANCELLED --
5/03/99 (S) JUD AT 1:30 PM BELTZ 211
5/03/99 (S) MINUTE(JUD)
5/05/99 (S) JUD AT 1:30 PM BELTZ 211
5/05/99 (S) -- MEETING CANCELLED --
5/07/99 (S) JUD AT 1:30 PM BELTZ 211
5/07/99 (S) -- MEETING CANCELLED --
5/10/99 (S) JUD AT 1:30 PM BELTZ 211
5/10/99 (S) SCHEDULED BUT NOT HEARD
5/10/99 (S) MINUTE(JUD)
5/11/99 (S) JUD AT 1:40 PM FAHRENKAMP 203
5/11/99 (S) SCHEDULED BUT NOT HEARD
5/12/99 (S) JUD AT 2:30 PM BELTZ 211
5/12/99 (S) HEARD AND HELD
5/12/99 (S) MINUTE(JUD)
3/06/00 (S) JUD AT 1:30 PM BELTZ 211
3/06/00 (S) Moved CS(Jud) Out of Committee
3/06/00 (S) MINUTE(JUD)
3/09/00 2590 (S) JUD RPT CS 2DP 2NR
NEW TITLE
3/09/00 2591 (S) DP: TAYLOR, TORGERSON; NR: ELLIS,
3/09/00 2591 (S) DONLEY
3/15/00 (S) RLS AT 11:15 AM FAHRENKAMP 203
3/15/00 (S) MINUTE(RLS)
3/15/00 2613 (S) ZERO FISCAL NOTE (LAW)
3/16/00 2625 (S) RLS TO CAL W/CS 2DP 2OR
NEW TITLE 03/16
3/16/00 2626 (S) DP: TIM KELLY, LEMAN; OR:
ELLIS, PEARCE
3/16/00 2626 (S) PREVIOUS ZERO FISCAL NOTE (LAW)
3/16/00 2626 (S) READ THE SECOND TIME
3/16/00 2627 (S) RLS CS ADOPTED UNAN CONSENT
3/16/00 2627 (S) ADVANCED TO THIRD READING
UNAN CONSENT
3/16/00 2627 (S) READ THE THIRD TIME CSSB 163(RLS)
3/16/00 2627 (S) PASSED Y13 N3 E4
3/16/00 2627 (S) HALFORD NOTICE OF RECONSIDERATION
3/17/00 2644 (S) RECONSIDERATION NOT TAKEN UP
3/17/00 2644 (S) TRANSMITTED TO (H)
3/20/00 2607 (H) READ THE FIRST TIME - REFERRALS
3/20/00 2607 (H) JUD
4/03/00 (H) JUD AT 1:30 PM CAPITOL 120
4/03/00 (H) Scheduled But Not Heard
4/10/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 324
SHORT TITLE: PERSONAL INFO IN MOTOR VEH. RECORDS
Jrn-Date Jrn-Page Action
2/02/00 2060 (H) READ THE FIRST TIME - REFERRALS
2/02/00 2060 (H) STA, JUD, FIN
2/02/00 2060 (H) FISCAL NOTE (ADM)
2/02/00 2060 (H) GOVERNOR'S TRANSMITTAL LETTER
3/02/00 (H) STA AT 8:00 AM CAPITOL 102
3/02/00 (H) Scheduled But Not Heard
3/07/00 (H) STA AT 8:00 AM CAPITOL 102
3/07/00 (H) Scheduled But Not Heard
3/09/00 (H) STA AT 8:00 AM CAPITOL 102
3/09/00 (H) Moved Out of Committee
3/09/00 (H) MINUTE(STA)
3/15/00 2488 (H) STA RPT 2DP 2NR
3/15/00 2489 (H) DP: JAMES, HUDSON; NR: GREEN, OGAN
3/15/00 2489 (H) FISCAL NOTE (ADM) 2/2/00
4/03/00 (H) JUD AT 1:30 PM CAPITOL 120
4/03/00 (H) Scheduled But Not Heard
4/10/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 341
SHORT TITLE: FARM OPERATIONS:DISCLOSURE/NUISANCES
Jrn-Date Jrn-Page Action
2/04/00 2098 (H) READ THE FIRST TIME - REFERRALS
2/04/00 2098 (H) JUD, RES
4/10/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 329
SHORT TITLE: INFO AND INFORMED CONSENT FOR ABORTION
Jrn-Date Jrn-Page Action
2/02/00 2064 (H) READ THE FIRST TIME - REFERRALS
2/02/00 2064 (H) HES, JUD, FIN
2/04/00 2104 (H) COSPONSOR(S): KOHRING
2/09/00 2156 (H) COSPONSOR(S): DYSON, OGAN
2/16/00 2207 (H) SPONSOR SUBSTITUTE INTRODUCED
2/16/00 2207 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2207 (H) HES, JUD, FIN
3/21/00 (H) HES AT 3:00 PM CAPITOL 106
3/21/00 (H) Heard & Held
3/21/00 (H) MINUTE(HES)
3/28/00 (H) HES AT 3:00 PM CAPITOL 106
3/28/00 (H) Moved CSSSHB 329(HES)
Out of Committee
3/28/00 (H) MINUTE(HES)
3/30/00 2780 (H) HES RPT CS(HES) 4DP 1DNP 1NR
3/30/00 2781 (H) DP: GREEN, DYSON, WHITAKER, COGHILL;
3/30/00 2781 (H) DNP: KEMPLEN; NR: MORGAN
3/30/00 2781 (H) FISCAL NOTE (DHSS)
3/30/00 2781 (H) REFERRED TO JUDICIARY
4/10/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 164
SHORT TITLE: FISH & GAME LICENSING BY ELECTRONICS
Jrn-Date Jrn-Page Action
3/29/99 601 (H) READ THE FIRST TIME - REFERRAL(S)
3/29/99 601 (H) RES, JUD
3/29/99 601 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
3/29/99 601 (H) GOVERNOR'S TRANSMITTAL LETTER
2/16/00 (H) RES AT 1:00 PM CAPITOL 124
2/16/00 (H) Scheduled But Not Heard
2/18/00 (H) RES AT 1:00 PM CAPITOL 124
2/18/00 (H) <Bill Held Over From 2/16>
2/18/00 (H) MINUTE(RES)
2/21/00 (H) RES AT 1:00 PM CAPITOL 124
2/21/00 (H) Moved CSHB 164(RES) Out of Committee
2/21/00 (H) MINUTE(RES)
2/23/00 2267 (H) RES RPT CS(RES) 1DP 6NR
2/23/00 2267 (H) DP: HUDSON; NR: JOULE, WHITAKER,
2/23/00 2267 (H) MORGAN, BARNES, COWDERY, MASEK
2/23/00 2268 (H) 2 ZERO FISCAL NOTES (F&G, LAW)
4/07/00 (H) JUD AT 1:00 PM CAPITOL 120
4/07/00 (H) Scheduled But Not Heard
4/10/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 24
SHORT TITLE: REGULATIONS: ADOPTION & JUDICIAL REVIEW
Jrn-Date Jrn-Page Action
1/08/99 20 (S) PREFILE RELEASED - 1/8/99
1/19/99 20 (S) READ THE FIRST TIME - REFERRAL(S)
1/19/99 20 (S) JUD, FIN
1/29/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/29/99 (S) HEARD AND HELD
1/29/99 (S) MINUTE(JUD)
2/08/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/08/99 (S) HEARD AND HELD
2/08/99 (S) MINUTE(JUD)
2/10/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/10/99 (S) SCHEDULED BUT NOT HEARD
2/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211
2/22/99 (S) MOVED CS (JUD) OUT OF COMMITTEE
2/22/99 (S) MINUTE(JUD)
2/23/99 338 (S) JUD RPT CS 2DP 2NR NEW TITLE
2/23/99 338 (S) DP: HALFORD, DONLEY;
NR:TORGERSON, ELLIS
2/23/99 338 (S) FISCAL NOTES (DOT, DPS, DHSS,
2/23/99 338 (S) DNR, REV, LAW, F&G, ADM, LABOR-6,
DEC,
2/23/99 338 (S) DOE, DCED-3, GOV-2, COURT)
2/23/99 338 (S) ZERO FISCAL NOTES (DPS,
2/23/99 338 (S) LABOR, DCRA)
3/05/99 423 (S) FISCAL NOTES TO CS (GOV, DCED,
3/05/99 423 (S) DOE-2, DEC, F&G, DHSS, LABOR, LAW,
3/05/99 423 (S) DNR, DPS, REV, DOT, COURT)
3/05/99 423 (S) PREVIOUS FN APPLIES TO CS (GOV)
3/05/99 423 (S) INDETERMINATE FN TO CS (ADM)
3/05/99 423 (S) ZERO FN TO CS (F&G)
3/09/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/09/99 (S) HEARD AND HELD
3/09/99 (S) MINUTE(FIN)
3/18/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/18/99 (S) MINUTE(FIN)
3/22/99 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/22/99 (S) SCHEDULED BUT NOT HEARD
3/24/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
3/24/99 (S) MINUTE(FIN)
3/29/99 (S) FIN AT 8:00 AM SENATE FINANCE 532
3/29/99 (S) HEARD AND HELD
3/29/99 (S) MINUTE(FIN)
3/31/99 (S) FIN AT 6:00 PM SENATE FINANCE 532
3/31/99 (S) MOVED CS(FIN) OUT OF COMMITTEE
3/31/99 (S) MINUTE(FIN)
4/01/99 767 (S) FIN RPT CS 3DP 4NR NEW TITLE
4/01/99 767 (S) DP: TORGERSON, PARNELL, DONLEY
4/01/99 767 (S) NR: GREEN, PETE KELLY, LEMAN, WILKEN
4/06/99 (S) RLS AT 3:30 PM FAHRENKAMP 203
4/06/99 (S) MINUTE(RLS)
4/06/99 793 (S) FNS TO CS (S.FIN/DNR, DEC, F&G, LAW)
4/06/99 793 (S) INDETERMINATE FN TO CS (COURT)
4/08/99 821 (S) ZERO FISCAL NOTES TO CS (GOV-2)
4/13/99 (S) RLS AT 11:40 AM FAHRENKAMP 203
4/13/99 (S) MINUTE(RLS)
4/14/99 915 (S) RULES TO CALENDAR 1DNP 4/14/99
4/14/99 916 (S) READ THE SECOND TIME
4/14/99 916 (S) FIN CS ADOPTED UNAN CONSENT
4/14/99 917 (S) AM NO 1 ADOPTED UNAN CONSENT
4/14/99 917 (S) ADVANCED TO THIRD READING
UNAN CONSENT
4/14/99 917 (S) READ THE THIRD TIME CSSB 24(FIN) AM
4/14/99 918 (S) PASSED Y14 N5 E1
4/14/99 918 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/14/99 918 (S) COURT RULE(S) SAME AS PASSAGE
4/14/99 918 (S) ELLIS NOTICE OF RECONSIDERATION
4/15/99 936 (S) RECONSIDERATION NOT TAKEN UP
4/15/99 936 (S) TRANSMITTED TO (H)
4/16/99 839 (H) READ THE FIRST TIME - REFERRAL(S)
4/16/99 839 (H) JUD, FIN
1/28/00 (H) JUD AT 1:00 PM CAPITOL 120
1/28/00 (H) <Bill Postponed to 2/2/00>
2/02/00 (H) JUD AT 1:00 PM CAPITOL 120
2/02/00 (H) Heard & Held
2/02/00 (H) MINUTE(JUD)
2/07/00 (H) JUD AT 1:00 PM CAPITOL 120
2/07/00 (H) Heard & Held
2/07/00 (H) MINUTE(JUD)
4/10/00 (H) JUD AT 7:30 PM CAPITOL 120
BILL: HB 211
SHORT TITLE: HEALTH CARE INSURANCE:MANAGED CARE PLANS
Jrn-Date Jrn-Page Action
4/22/99 914 (H) READ THE FIRST TIME - REFERRAL(S)
4/22/99 914 (H) L&C, JUD, FIN
5/10/99 (H) L&C AT 3:15 PM CAPITOL 17
5/10/99 (H) HEARD AND HELD
5/10/99 (H) MINUTE(L&C)
10/22/99 (H) L&C AT 10:00 AM ANCHORAGE LIO
10/22/99 (H) MINUTE(L&C)
2/04/00 (H) L&C AT 3:15 PM CAPITOL 17
2/04/00 (H) -- Meeting Canceled --
2/16/00 (H) L&C AT 3:15 PM CAPITOL 17
2/16/00 (H) Heard & Held
2/16/00 (H) MINUTE(L&C)
2/16/00 (H) MINUTE(L&C)
3/03/00 (H) L&C AT 3:15 PM CAPITOL 17
3/03/00 (H) Moved CSHB 211(L&C) Out of Committee
3/03/00 (H) MINUTE(L&C)
3/08/00 2446 (H) L&C RPT CS(L&C) NT 1DP 2DNP 3NR
3/08/00 2446 (H) DP: ROKEBERG; DNP: CISSNA, BRICE;
3/08/00 2446 (H) NR: MURKOWSKI, HARRIS, HALCRO
3/08/00 2446 (H) ZERO FISCAL NOTE (DCED)
3/24/00 (H) JUD AT 1:00 PM CAPITOL 120
3/24/00 (H) Heard & Held
3/24/00 (H) MINUTE(JUD)
3/31/00 (H) JUD AT 1:15 PM CAPITOL 120
3/31/00 (H) Heard & Held
3/31/00 (H) MINUTE(JUD)
4/06/00 (H) JUD AT 2:00 PM CAPITOL 120
4/06/00 (H) Moved CSHB 211(JUD) Out of Committee
4/06/00 (H) MINUTE(JUD)
4/10/00 (H) JUD AT 7:30 PM CAPITOL 120
BILL: HB 338
SHORT TITLE: CRIMES INVOLVING TECHNOLOGY OR I.D.
Jrn-Date Jrn-Page Action
2/04/00 2095 (H) READ THE FIRST TIME - REFERRALS
2/04/00 2095 (H) JUD, FIN
2/04/00 2096 (H) 3 FISCAL NOTES (ADM, LAW, DPS)
2/04/00 2096 (H) GOVERNOR'S TRANSMITTAL LETTER
2/23/00 (H) JUD AT 1:00 PM CAPITOL 120
2/23/00 (H) Heard & Held
2/23/00 (H) MINUTE(JUD)
4/10/00 (H) JUD AT 7:30 PM CAPITOL 120
BILL: SJR 27
SHORT TITLE: CONST.AM:CONSTITUTIONAL REVISION/AMENDMT
Jrn-Date Jrn-Page Action
5/14/99 1461 (S) READ THE FIRST TIME - REFERRAL(S)
5/14/99 1462 (S) JUD, FIN
1/19/00 (S) JUD AT 1:30 PM BELTZ 211
1/19/00 (S) -- Meeting Cancelled --
1/21/00 (S) JUD AT 1:30 PM BELTZ 211
1/21/00 (S) Moved Out of Committee
1/21/00 (S) MINUTE(JUD)
1/24/00 2050 (S) JUD RPT 3DP
1/24/00 2050 (S) DP: TAYLOR, TORGERSON, DONLEY
1/24/00 2051 (S) FISCAL NOTE (GOV)
2/07/00 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/07/00 (S) -- Meeting Postponed 2/11/00 --
2/11/00 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/11/00 (S) Moved Out of Committee
2/11/00 (S) MINUTE(FIN)
2/11/00 2273 (S) FIN RPT 5DP 1DNP
2/11/00 2273 (S) DP: TORGERSON, PHILLIPS, PETE KELLY,
2/11/00 2273 (S) WILKEN, LEMAN; DNP: ADAMS
2/11/00 2273 (S) PREVIOUS FISCAL NOTE (GOV)
2/18/00 (S) RLS AT 11:30 AM FAHRENKAMP 203
2/18/00 (S) MINUTE(RLS)
2/22/00 2379 (S) RULES TO CALENDAR AND 1 DO NOT
CAL 2/22
2/22/00 2380 (S) READ THE SECOND TIME
2/22/00 2381 (S) AM NO 1 ADOPTED UNAN CONSENT
2/22/00 2381 (S) ADVANCED TO THIRD READING
2/23 CALENDAR
2/23/00 2395 (S) READ THE THIRD TIME SJR 27 AM
2/23/00 2395 (S) PASSED Y14 N5 E1
2/23/00 2395 (S) HALFORD NOTICE OF RECONSIDERATION
2/24/00 2412 (S) RECON TAKEN UP - IN THIRD READING
2/24/00 2412 (S) PASSED ON RECONSIDERATION Y15 N5
2/24/00 2414 (S) TRANSMITTED TO (H)
2/25/00 2297 (H) READ THE FIRST TIME - REFERRALS
2/25/00 2297 (H) JUD, FIN
3/17/00 (H) JUD AT 1:30 PM CAPITOL 120
3/17/00 (H) Scheduled But Not Heard
4/10/00 (H) JUD AT 7:30 PM CAPITOL 120
BILL: HB 401
SHORT TITLE: COMPUTER NETWORKS AND SPAM ADS
Jrn-Date Jrn-Page Action
2/16/00 2218 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2219 (H) L&C, JUD
3/24/00 (H) L&C AT 3:15 PM CAPITOL 17
3/24/00 (H) Moved CSHB 401(L&C) Out of Committee
3/24/00 (H) MINUTE(L&C)
3/28/00 2725 (H) L&C RPT CS(L&C) 2DP 3NR
3/28/00 2725 (H) DP: HARRIS, ROKEBERG; NR: BRICE,
3/28/00 2725 (H) MURKOWSKI, HALCRO
3/28/00 2725 (H) 3 INDETERMINATE FNS (ADM, COR, LAW)
3/28/00 2725 (H) FIN REFERRAL ADDED AFTER JUD
4/07/00 (H) JUD AT 1:00 PM CAPITOL 120
4/07/00 (H) Scheduled But Not Heard
4/10/00 (H) JUD AT 7:30 PM CAPITOL 120
WITNESS REGISTER
STEVE GREER, Attorney
4041 B Street, Suite 205
Anchorage, Alaska 99503
POSITION STATEMENT: Presented SB 163.
DAVE SHAFTEL, Attorney
550 West Seventh Avenue, Suite 705
Anchorage, Alaska 99501
POSITION STATEMENT: Discussed SB 163.
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Presented HB 324.
JOHN MANLY, Staff
to Representative John Harris
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
POSITION STATEMENT: Introduced HB 341 on behalf of the sponsor.
PETE FELLMAN, Staff
to Representative John Harris
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 341.
SCOTT MILLER, Farmer;
Chair, Delta Farm Bureau
HC 60 Box 4140
Delta Junction, Alaska 99737
POSITION STATEMENT: Testified on behalf of the Delta Farm Bureau
in support of HB 341.
ROBERT WELLS, Director
Division of Agriculture
Department of Natural Resources (DNR)
1800 Glenn Highway, Suite 12
Palmer, Alaska 99645
POSITION STATEMENT: Noted DNR=s general support of right to farm
legislation and offered his assistance to work on any concerns
with HB 341.
REPRESENTATIVE JOHN COGHILL
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of SSHB 329.
DIXIE HOOD, Licensed Marriage & Family Therapist
222 Seward Street, Suite 210
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to SSHB 329.
DENISE BURKE, Staff Counsel
Americans United for Life
310 South Peoria Street, Suite 300
Chicago, Illinois 60607-3534
POSITION STATEMENT: Testified that SSHB 329 is constitutional,
but expressed concerns with the domiciliary provision.
JOE MALICK (ph)
(Address not provided)
Juneau, Alaska
POSITION STATEMENT: Testified in support of SSHB 329.
DEBBIE JOSLIN
PO Box 377
Delta Junction, Alaska 99737
POSITION STATEMENT: Testified on SSHB 329.
JUDY CAVANAUGH
510 3rd Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to SSHB 329.
DEBRA SCHORR
Juneau Pro-Choice Coalition
PO Box 21535
Juneau, Alaska 99802-1535
POSITION STATEMENT: Testified in opposition to SSHB 329.
DR. NELSON ISADA, Perinatologist
3300 Providence Drive
Anchorage, Alaska 99508
POSITION STATEMENT: Testified on SSHB 329.
DR. JAN WHITEFIELD
4115 Lake Otis Parkway
Anchorage, Alaska 99508
POSITION STATEMENT: Discussed concerns with SSHB 329.
IDA BARNICK (ph), Alaskans for Life
(Address not provided.)
Juneau, Alaska
POSITION STATEMENT: Testified that Alaskans for Life supports
SSHB 329.
MARY DYE (ph)
(Address not provided)
Juneau, Alaska
POSITION STATEMENT: Testified in support of SSHB 329.
SHERRIE GOLL
(Address not provided)
Haines, Alaska
POSITION STATEMENT: Testified in strong opposition to SSHB 329.
ROBIN SMITH
14100 Jarvi
Anchorage, Alaska 99515
POSITION STATEMENT: Requested that the committee stop SSHB 329
now.
LEILA WISE
PO Box 244034
Anchorage, Alaska 99524
POSITION STATEMENT: Testified in opposition to SSHB 329.
ANNE HARRISON
3270 Rosie Creek Road
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified that SSHB 329 is ill-conceived and
urged the committee to stop the bill.
EILEEN BECKER, Director
Homer Crisis Pregnancy Center
PO Box 2
Homer, Alaska 99603
POSITION STATEMENT: Testified in favor of SSHB 329.
AMY BOLLENBACH
PO Box 3429
Homer, Alaska 99603
POSITION STATEMENT: Testified in opposition to SSHB 32].
BARBARA CRAVER, Attorney
(No address provided)
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to SSHB 329.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Alaska 99520
POSITION STATEMENT: Urged the committee not to pass SSHB 329
because it poor public policy and is unconstitutional.
FRANCES HALLGREN
PO Box 1625
Delta Junction, Alaska 99737
POSITION STATEMENT: Urged passage of SSHB 329.
EMILY JOSLIN
PO Box 377
Delta Junction, Alaska 00737
POSITION STATEMENT: Testified on SSHB 329.
KAREN VOSBURGH, Executive Director
Alaska Right to Life
PO Box 1847
Palmer, Alaska 99645
POSITION STATEMENT: Testified in support of SSHB 329.
KRISTEN BOMENGEN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-03033
POSITION STATEMENT: Expressed concerns with SSHB 329.
KEVIN BROOKS, Director
Division of Administrative Services
Alaska Department of Fish & Game (ADF&G)
P.O. Box 25526
Juneau, Alaska 99811-5526
POSITION STATEMENT: Presented HB 164 on behalf of ADF&G and the
Administration.
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of SB 24 and SJR
27.
HANS NEIDIG, Staff
to Senator Dave Donley
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
POSITION STATEMENT: Provided information on SB 24.
JANICE ADAIR, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova Street
Anchorage, Alaska 99501
POSITION STATEMENT: Discussed SB 24, Version L.
DON ETHERIDGE, Lobbyist for
Alaska State AFL-CIO
710 West Ninth
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to HB 211.
JEFF BULLOCK (ph)
Alaska State Medical Association
Alaska Physicians & Surgeons, Inc.
4107 Laurel Street
Anchorage, Alaska 99508
POSITION STATEMENT: Testified on HB 211.
JERRY REINWAND, Lobbyist for
Blue Cross
2 Marine Way, Suite 219
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 211.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section - Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 9811-0300
POSITION STATEMENT: Commented on Mr. Luckhaupt's suggestions in
regard to HB 338 and proposed other suggestions. Suggested an
amendment to HB 401.
BLAIR McCUNE, Deputy Director
Alaska Public Defender Agency
900 West Fifth Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Reviewed concerns with HB 338.
ACTION NARRATIVE
TAPE 00-53, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:28 p.m. Members present at the call to
order were Representatives Kott, Rokeberg, Murkowski and
Kerttula. Representatives Croft and James arrived as the meeting
was in progress.
SB 163-TRUSTS AND TRUSTEES
CHAIRMAN KOTT announced that the first order of business would be
CS FOR SENATE BILL NO. 163(RLS), "An Act relating to trusts, to a
trustee's duties to notify and inform beneficiaries, and to the
revocation, modification, termination, reformation, construction,
and trustees of trusts."
Number 0117
STEVE GREER, Attorney, testified via teleconference from
Anchorage. He informed the committee that he had been asked by
Sue Mossgrove, Staff to Senator Taylor, to present SB 163 to the
committee. He explained that SB 163 contains two provisions.
The first provision, Section 1, refers to notification. He
requested that all questions regarding Section 1 be referred to
Dave Shaftel, Attorney. Section 2 of SB 163 addresses the
modification provision.
MR. GREER explained that Section 1 provides a limited exemption
from notification with regard to beneficiaries. [This exemption]
applies in a situation in which an individual has created a
trust, which has a discretionary beneficiary. He posed an
example in which one creates a trust for the benefit of his/her
child and this gift and trust is being made for estate planning
purposes. At the same time these gifts are being made for estate
planning purposes, the person wants his/her child to attend
college. The person does not want the child to know that this
large sum of money has been set aside for that child. Section 1
adds a subsection (b) to AS 13.36.080. Subsection (b) says that
a settlor can exempt a trustee from the normal notification
duties with respect to the discretionary beneficiary, but only if
the creator/settlor of the trust is alive. Furthermore, that
exemption must provided in a provision of the trust and the
instrument that creates the trust at the outset.
Number 0297
MR. GREER turned to Section 2, which is basically a safety-net
provision that is found in the law of various states. This
particular provision is drawn from Section 415 of the Uniform
Trust Act and a similar California statute as well as a similar
South Dakota statute. He informed the committee that this
provision merely codifies existing case law; the desire is to
have a supporting statute. He explained that the provision
specifies that a court, upon the petition of certain designated
individuals, can reform or modify a trust in four circumstances.
One such circumstance would be if there is an unanticipated
circumstance. Another circumstance would be if the settlor
creating the trust had a mistake in law or fact, which must be
proven to the court by clear and convincing evidence.
MR. GREER said the third circumstance would exist when a
modification is necessary to achieve a tax exemption because tax
law changes frequently. The fourth circumstance which would
allow modification is if all the beneficiaries consent to the
modification, the court will modify the trust as long as the
modification does not defeat a material purpose of the trust.
However, if the modification does defeat a material purpose of
the trust, the modification could still be made by the court if
the reasons for the modification to the trust far outweigh the
purpose for which the trust was created. Mr. Greer stated that
Section 2 would allow trusts to change with current
circumstances.
MR. GREER informed the committee that this is the same approach
that the State of Florida took when that state abolished its rule
against perpetuities. He explained that the idea is that if the
rule against perpetuities allow trusts to continue forever, then
as time passes people must be able to change in accordance with
the changing time. He pointed out that Section 2 is similar to
Florida's statute that abolished the rule against perpetuities.
Number 0525
DAVE SHAFTEL, Attorney, testified via teleconference from
Anchorage. Mr. Shaftel addressed the notification provision. He
said that often it is not wise to bring minor children or other
beneficiaries into the settlor's estate planning while that
person is alive and has the ability to oversee that trust. After
the settlor has passed away, then the accountability is placed on
the beneficiaries who need notice and accountings when requested.
This is all that is accomplished with Section 1 of SB 163. He
pointed out that [this section] would also place Alaska on the
same footing as other states in which Alaska is competing in
regard to trust business.
MR. SHAFTEL turned to the second portion of SB 163, which is
important in order to simplify judicial proceedings. If there is
a statute that merely codifies what the case law says, then it is
easy for the court to refer to the statute, rely on it and make
the necessary changes to accommodate trusts. A statute is
preferable to having attorneys file lengthy briefs in the court,
which has to review all the case law in order to come to the same
conclusion. He pointed out that these provisions exist in the
Uniform Trust Act as well as in many other states and have
existed in the law of those states for a considerable amount of
time. He referred to this "as catching up." He said these are
good provisions that will strengthen our statutory law dealing
with the trust created by wills or by lifetime trusts.
Number 0706
REPRESENTATIVE MURKOWSKI referred to Section 1, which allows for
an exemption to be provided orally if the trust is created
orally. She asked if that is problematic in terms of proof that
one did or did not do what was said.
MR. SHAFTEL stated that Representative Murkowski had identified
the problem with an oral trust. He remarked that he didn't know
of any practitioners who would create such a trust. However, he
imagined there could be circumstances in which very little
professional planning was done, although there would be enough
evidence and testimony to establish that someone had placed
certain property in trust. With such evidence, he supposed the
settlor of the trust could orally provide a statement to
establish such an exemption. Mr. Shaftel believes that this oral
trust language was inserted by Legislative Council. He did not
know of anyone who creates or relies on an oral trust.
MR. GREER specified that this [oral trust] language was not in
the original version before the Senate Judiciary Committee, but
was included in the version that passed out of the Senate
Judiciary Committee. He noted that he nor Mr. Shaftel were privy
to that testimony. He echoed Mr. Shaftel's sentiments in regard
to the creation of an oral trust.
REPRESENTATIVE MURKOWSKI posed a situation in which an oral trust
is created. She commented that she was not aware that an oral
trust could be created. Recognizing that an oral trust can be
created and now that an oral exemption can be created is cause
for concern. Furthermore, under Section 2 of SB 163, the court
can interpret what the settlor intended under an oral trust.
This sounds like a murky area.
MR. SHAFTEL stressed that there will be a significant burden on
anyone who attempts to rely on an oral trust. If there is a
dispute, the individual will have to produce evidence in court in
order to carry the burden of proof. The individual will have to
prove the terms of the trust and any exemption provided,
otherwise that trust will not exist or satisfy the modification
requirements. Mr. Shaftel surmised that this oral trust must
have been devised from someone's experience or situation and then
there was the desire to cover it in the exemption provision as
well. He identified the safeguard as the burden of proof, which
led to him not being personally concerned with this provision.
Number 0147
REPRESENTATIVE KERTTULA referred to the trust being held in
secrecy from the person who will ultimately take it. She
inquired as to what the current law specifies in terms of telling
minors that there is a trust.
MR. SHAFTEL clarified that [this bill] is not referring to only
minors for which the age of majority is 18. He explained that an
individual in their early teens who hired an attorney would be
entitled to this information per the current statutes. He
informed the committee of the following example, which he noted
is common for estate planners to face. He explained that he has
three children, all of which are in their 20s now and thus he
would not have a problem with the children knowing about a trust
he had created for them. When the children were 18 years of age,
he would not have wanted them to know about trusts that he had
created for them so that the children would function as
productive people and not get caught up in looking to the trust
for their future.
MR. SHAFTEL said this is a very common situation. Therefore,
this statute would allow a provision, an affirmative act, to be
included in the trust that says during the settlor's lifetime and
capacity, the settlor would be the only one entitled to
information. Only when the settlor is no longer able to track
the trustee, due to incapacitation or death, are the
beneficiaries entitled to information that the trust is created
and to an annual accounting. Mr. Shaftel pointed out that this
would take care of the situation in which a father has passed
away and left a trust for his second wife. In such a situation,
the father's children from the first marriage, who would take
after the second wife passes, are entitled to information that
the trust is created as well as to accountings. Mr. Shaftel
emphasized that this is a narrow exemption that only applies to
the lifetime and capacity of the person who created the trust and
only if the person takes an affirmative action and says that
he/she wants this in the trust.
REPRESENTATIVE KERTTULA surmised, then, that there is no
difference between minors and adult children in the current law.
MR. SHAFTEL replied no.
Number 1274
REPRESENTATIVE ROKEBERG referred to page 1, lines 10-11,
regarding oral statements. He asked if Mr. Greer had said that
the oral [trust] language was not in the original Senate
Judiciary Committee version, but was perhaps added in the
[Senate] Rules Committee.
MR. GREER answered, "That's my guess." He explained that the
version submitted to the Senate Judiciary Committee did not
include that provision, as he read it. Therefore, this was a
surprise. Mr. Greer echoed Mr. Shaftel's comments that he could
not imagine that an oral trust would ever really occur. He
surmised that if there was an oral trust, it would be the result
of some court proceedings. Therefore, any possibility of abuse
can't occur due to the court's oversight.
MR. GREER, in further response to Representative Rokeberg, said
oral trusts are allowed under common law. Still, it remains a
matter of proof that property is held in trust verbally. He
posed the following situation, "If I give property to you ... and
tell you that I want to hold this for the benefit of somebody
else and then you take this money and abscond with it, then the
person who was supposed to benefit from that property could in
fact bring a lawsuit." Therefore, he did not foresee had this
situation could arise without it being in a court.
REPRESENTATIVE ROKEBERG said it seems maybe the settlor had this
provision in the trust and then changed his/her mind, which led
to an oral declaration to the trustee to inform the beneficiary.
Perhaps, that is the impetus for this language.
MR. SHAFTEL remarked that it seems that a situation could arise
in litigation in court whereby one party says that the property
was intended to be held in trust. To which the response would be
questioning whether the beneficiaries were notified of this
trust. It would be argued that failure to notify the
beneficiaries and provide them with accountings is a failure to
establish this oral trust. If persuasive evidence could be
offered that there is an exemption that applies - because the
settlor is able to prove, by third party testimony, that no
notice of this was to be given to the beneficiaries - that would
adequately counter such an argument. This is something that
could hypothetically happen and would only happen in very rare
circumstances. Mr. Shaftel commented that it does not seem to be
harmful at all to the statute that is being considered as the
safeguard is always going to be the burden of proof.
REPRESENTATIVE ROKEBERG referred to the language on page 1, line
11, "if the trust is created orally," which is the portion that
is of concern to him. He commented that he didn't know why that
language is included.
CHAIRMAN KOTT asked if there was anyone else who wished to
testify. There being no one, public testimony was closed.
Number 1601
REPRESENTATIVE MURKOWSKI announced that she would feel more
comfortable removing the language that provides for the creation
of an oral trust and an oral exemption, unless someone can
explain why the language was inserted and why it is necessary.
REPRESENTATIVE CROFT pointed out that if oral trusts are allowed
in other areas, the question becomes whether this additional
provision should only be allowed in writing or orally.
Representative Croft said that if one [agrees] with the original
premise that there can be oral trusts, then it would seem to make
sense that the exemption could be made orally when there is an
oral trust.
REPRESENTATIVE ROKEBERG said he believes that the Department of
Law (DOL) stated earlier that oral trusts can exist. He believes
that the recognition of an oral trust in [this bill] muddies
things. Representative Rokeberg reiterated his concern that the
experts don't know why this oral trust language was included. He
further expressed concern that by including this language, it
would codify oral trusts as it seems to give credence to their
existence.
REPRESENTATIVE KERTTULA remarked that she was not sure that she
even liked the idea of exempting trustees from their duties to
begin with, especially with adult children. By including the
oral trust, it further creates a chance to have things go wrong.
Representative Kerttula said that she would delete [the oral
trust] language.
Number 1760
REPRESENTATIVE KERTTULA moved that the committee adopt a
conceptual amendment to remove [the oral trust language].
REPRESENTATIVE ROKEBERG specified that the language to be removed
is the following: "by oral statement to the trustee at the time
of the creation of the trust if the trust is created orally,".
This language is located on page 1, lines 10-11.
[There being no objection, it was so ordered and Amendment 1 was
adopted.]
Number 1808
REPRESENTATIVE ROKEBERG moved to report CSSB 163(RLS) as amended
out of committee with individual recommendations and the
accompanying zero fiscal note. There being no objection, it was
so ordered and HCS CSSB 163(JUD) was reported from the House
Judiciary Standing Committee.
HB 324-PERSONAL INFO IN MOTOR VEH. RECORDS
CHAIRMAN KOTT announced that the next order of business before
the committee would be HOUSE BILL NO. 324, "An Act requiring
written consent by the person who is the subject of the
information before releasing personal information contained in
motor vehicle records, to comply with 18 U.S.C. 2721; and
providing for an effective date."
Number 1840
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, testified via teleconference from
Anchorage. She informed the committee that the purpose of HB 324
is to bring state laws into compliance with the new federal
legislation, which passed last fall regarding the confidentiality
of vehicle records. The federal legislation nor HB 324 affect
driver records, which is confidential information under state law
and continues to be so. Current state law mirrors federal
legislation and allows the release of vehicle record information
for about 11 permitted uses.
MS. MARSHBURN said most of those uses were related to government,
law enforcement or employment. However, one permitted use did
allow vehicle record information to be released for marketing and
solicitation purposes; that is the use at which the federal
legislation was directed, while other permitted uses relating to
law enforcement and government remain. Ms. Marshburn specified
that HB 324 and the new federal legislation prohibit the release
of vehicle record information, personal information, for
marketing and solicitation purposes unless the vehicle owner has
given consent to release the records. She informed the committee
that federal legislation takes effect for "us" June 1, 2000, and
there is a $5,000 per day fine for noncompliance.
REPRESENTATIVE CROFT asked if, in effect, the federal legislation
and now HB 324 change [the state] to an "opt in" rather than an
"opt out."
MS. MARSHBURN replied yes.
MS. MARSHBURN reiterated, in response to Representative
Murkowski, that if the state is found in noncompliance with the
federal legislation, the state will be subject to a $5,000 per
day fine. She added that this would also be the case for any
individual who releases information prohibited by the new
[federal] legislation. In response to Chairman Kott, Ms.
Marshburn specified that the fine is levied by the attorney
general's office and thus she assumed that the fine is paid to
the U.S. Department of Justice.
Number 1987
REPRESENTATIVE ROKEBERG pointed out that there is a $200,000 loss
of revenues. He asked if DMV has been selling the lists to
certain people before.
MS. MARSHBURN answered that DMV does sell restricted motor
vehicle information, which is allowed under the old law and the
division does receive revenue for it. She informed the committee
that there are two basic sources of revenue. One source is from
the individual who requests a copy of a vehicle record. Perhaps,
the individual want to purchase the vehicle and wants to
determine if there is a lien holder on the vehicle. She noted
that insurance companies also purchase vehicle records. Under
the former federal law, that information could be sold to
business firms [for the] purpose of reselling the information.
Under the new federal legislation, those firms will still be able
to purchase the list for resale for the permitted uses, not for
marketing and solicitation.
REPRESENTATIVE ROKEBERG asked if this would effect the commerce
of the state and the ability of people to find out about liens on
a vehicle.
MS. MARSHBURN responded that individually it may have a minimal
effect. However, practically it would not have an effect.
REPRESENTATIVE ROKEBERG inquired as to how [the division] would
construct the "opt-in" form.
MS. MARSHBURN explained that at the time a person purchases a
vehicle and enters DMV to register the vehicle, one of the
questions asked is whether the individual wants that information
disclosed for marketing and solicitation purposes. Basically,
the same would continue with a slight variation in the wording.
She doubted that many people would agree to [allow their
information to be] disclosed.
REPRESENTATIVE ROKEBERG commented that this may eliminate some of
the catalogs that he receives.
MS. MARSHBURN stated that the intent of the federal legislation
was the marketing and the solicitation effort.
CHAIRMAN KOTT asked if anyone else wished to testify. There
being no one, public testimony was closed.
Number 2183
REPRESENTATIVE CROFT moved to report HB 324 out of committee with
individual recommendations and the accompanying fiscal note.
There being no objection, it was so ordered and HB 324 was
reported from the House Judiciary Standing Committee.
HB 341 - FARM OPERATIONS:DISCLOSURE/NUISANCES
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 341, "An Act relating to agricultural facilities
and operations as private nuisances; and to disclosures in
transfers of real property located within one mile of an
agricultural facility or an agricultural operation."
Number 2210
JOHN MANLY, Staff to Representative John Harris, Alaska State
Legislature, stated that he would present HB 341 on behalf of the
bill sponsor, Representative Harris. He informed the committee
that HB 341 amends the current farm law statute, which was
created in 1986. This legislation expands and redefines what is
meant by agricultural facilities and operations. It protects
agricultural facilities and operations from becoming private
nuisances when the use of the land surrounding them change.
MR. MANLY pointed out that HB 341 ties this protection to the
farmer Ato the fact that he has a valid farm conservation plan
on file with the local soil and water conservation district.@
Therefore, this will provide the farmer with incentive to file a
farm conservation plan. Mr. Manly informed the committee that
the other major part of HB 341 is that it would add a disclosure
requirement in the transfer of real property sold within one mile
of a farm that is protected by this statute. Therefore, people
purchasing [property] in the neighborhood of a farm would be on
notice, at the time of purchase, that [nearby] property is a farm
operation. He offered to answer any questions.
REPRESENTATIVE KERTTULA inquired as to why disclosure is being
required. She asked if there is any case law that would support
the notion that disclosure would make it easier for farmers to
protect themselves from a nuisance case. She also inquired as to
who would ensure implementation of disclosure; would it be the
owner of the property?
MR. MANLY said he was not very familiar with that, but supposed
the burden would fall on the seller of the property.
REPRESENTATIVE KERTTULA expressed concern in a situation in which
no disclosure occurred and a subsequent property owner brings a
nuisance suit saying that he/she didn=t receive any disclosure.
She surmised that in such a situation, the farmer would
ultimately be hurt.
Number 2360
PETE FELLMAN, Staff to Representative John Harris, Alaska State
Legislature, testified via teleconference from Fairbanks. He
pointed out that throughout the Lower 48 there have been many
laws that protect farmers against nuisance lawsuits. However,
many of those have not been able to stand up to the tests in a
court of law. Mr. Fellman informed the committee that in New
York State there is a farm law which requires disclosure by those
that are selling the land. That disclosure protects all parties
involved. [He indicated that HB 341 is modeled after the New
York State law.] The soil and water conservation plan is sort of
a new idea. He explained that New York created a new branch of
government in order to do exactly what the soil and water
conservation districts already do. Currently, the soil and water
conservation districts come out, look at farms and make
suggestions - when requested by farmers - in regard to how the
farmer can be a better farmer and preserve and protect the soil
and water. Therefore, this legislation hopes to protect the
farmer and those purchasing land by affording the farmer with
protection from nuisance lawsuits if a soil and water
conservation plan is filed. If the farmer chooses not to file
such a plan, then the farmer wouldn=t be protected by HB 341.
REPRESENTATIVE KERTTULA inquired as to how many farmers currently
don=t have soil and water conservation plans.
MR. FELLMAN noted that he had spoken with the Delta soil and
water district as well as Glen Franklin (ph), Division of
Agriculture. [From those conversations] he learned that there
are a substantial number of smaller farmers - with farms in the
range of 100-150 acres - who don=t have soil and water
conservation plans. [From the committee secretary=s notes: Mr.
Fellman said that most farmers in Alaska with larger operations
do have soil and water conservation plans.]
TAPE 00-53, SIDE B
MR. FELLMAN explained that without a soil and water conservation
plan, a farmer wouldn=t qualify for things such as CRP payments
or cost-sharing payments. Therefore, it behooves most farmers to
have a soil and water conservation plan.
Number 0035
REPRESENTATIVE KERTTULA asked if Mr. Fellman is aware of any
cases in Alaska in which there has been mention of this notice
provision. She said, AI=m, frankly, on the farmer=s side on
this. I just don=t want to see a situation where property gets
transferred and because they don=t have this notice in it, for
whatever reason, the farmer doesn=t get the benefit of claiming
the protection that the law already provides.@ Upon Mr.
Fellman=s questioning, Representative Kerttula clarified that she
was asking whether anyone in Alaska has tried to protect
him/herself from a nuisance lawsuit in which the lack of a
warning to the property owners was an issue.
MR. FELLMAN answered that he was not aware of any such case. He
pointed out that there had been some situations in the Delta and
Palmer-Wasilla areas in which some concerns were raised by people
moving close [to farm operations]. However, to the best of his
knowledge, those situations were resolved by negotiations through
the department.
REPRESENTATIVE ROKEBERG asked whether Mr. Fellman had been in
contact with the Alaska Real Estate Commission and the Alaska
Board of Realtors regarding HB 341.
MR. FELLMAN responded that the Alaska real estate folks had been
in Representative Harris=s office and that Representative Harris
had brought HB 341 to their attention. However, he was unaware
as to what was actually said or how they felt about this
legislation.
Number 0125
REPRESENTATIVE CROFT referred to page 1, line 10, and noted his
concern in regard to the use of Aor@ versus Aand". In the
current protections for agricultural operations as private
nuisances, the language used was Aand". With the Aor@ language,
he indicated there could be a situation in which there was not a
nuisance on the date an agricultural operation began, but it
turned into a nuisance shortly thereafter. He asked if, in such
a situation, he would really be prohibited from enjoining that
operation simply because the operation wasn=t a nuisance on the
date it started.
MR. FELLMAN reiterated that in order for [an agricultural
operation] to be covered by this plan, it would have to have a
soil and water conservation plan. In that plan, it requires a
slow and progressive growth. He posed a situation in which a
person begins with one cow and in two weeks this person brings in
300 cows on 20 acres. Mr. Fellman believes it would be safe to
assume that if he had a soil and water conservation plan, that
this person would not be following that plan. He pointed out
that the soil and water conservation plan has to be registered
with and signed off by the Department of Natural Resources (DNR).
Therefore, this person would not be covered by this law [HB 341]
because he didn=t follow his soil and water conservation plan.
Number 0256
REPRESENTATIVE ROKEBERG informed everyone that he preferred that
HB 341 be held over as it places a burden on property owners.
The property owners would have to know that they are within one
mile of a [farm] operation that may not necessarily know.
REPRESENTATIVE CROFT recalled similar legislation in regard to
shooting ranges that were placed in the middle of nowhere, but
people slowly began to [reside] near the shooting range.
However, he recalled that the aforementioned shooting range
legislation said, Aunless the character of the shooting range
operation has changed substantially.@ In other words, the
shooting range could continue to do [or offer] what it has, but
couldn=t [expand its activities]. However, HB 341 seems to take
a broader approach and explicitly says, Aregardless of any
subsequent expansion@. This unlimited capability of expansion is
of concern. He also reiterated his concern with the use of the
word Aor@ on page 1, line 10.
MR. FELLMAN reiterated that [an agricultural facility or
operation] would not be covered without a soil and water
conservation plan. Mr. Fellman noted that he understands how
those plans develop and work. Therefore, he was certain that an
individual with 20 acres and a few cows would not be able to then
place 200-300 cows on that land. Furthermore, Mr. Fellman felt
it is a benefit to property owners to be made aware that they are
in an agricultural area. He informed the committee that in
Spokane, Washington, there is a Asniff before you leap@ law in
order [to educate those from the city who want to move into an
agricultural area] in regard to what occurs in the rural areas.
Number 416
REPRESENTATIVE KERTTULA referred to the top of page 2 and pointed
out that the language is not drafted such that the soil and water
conservation plan is a condition. She offered to work with Mr.
Manly on that problem. She then referred to page 3, line 5,
where aquatic farming is included. She didn=t recall that
aquatic farming has been included in the right to farm bills and
thus she wasn=t sure of the intention.
MR. FELLMAN pointed out that the farmers in Prince William Sound
are new to the industry. He informed the committee that the
legislation attempts to include as many diverse farm operations
as possible and thus aquatic farming was included.
REPRESENTATIVE KERTTULA asked if [the term Aaquatic farming@]
refers to oyster farming since Alaska doesn=t allow fish farming.
MR. FELLMAN replied yes and informed the committee that oysters
and sea urchins are what are being targeted. With time, this
legislation could be refined; thus he offered to do dome refining
[on HB 341] with Representative Kerttula=s office.
REPRESENTATIVE MURKOWSKI turned to the term Aagricultural
facility". She informed the committee that her neighbor, who is
not in an agricultural area, grows tomatoes and sells them at an
agricultural market. Although she recognizes that is not what is
being referred to with the definition the term Aagricultural
facility,@ she asked if that person would be classified within
that definition.
MR. FELLMAN remarked that [the legislation=s intent] is to
protect anyone trying to do a good job providing quality products
whether those products are milk, tea or tomatoes. Furthermore,
[the legislation intends to] afford them protection such that
they have the ability to grow with the markets. He noted that
there are some cases in the Lower 48 in which someone is not
allowed to expand in order to meet an expanding market. Mr.
Fellman referred to a person in Anchorage, who with a soil and
water conservation plan, could receive help from Anchorage=s soil
and water conservation district in regard to providing the best
quality product while protecting the environment and those around
him.
Number 0628
SCOTT MILLER, Farmer; Chair, Delta Farm Bureau, testified via
teleconference from Delta Junction. He announced that the Delta
Farm Bureau supports HB 341. From his own experience in farming
in the Delta area since 1981, Mr. Miller has seen numerous
instances in which people knowingly moved next to a farm.
However, those people created hardships because they were not
happy with the practices that took place under the normal
circumstances of that farm. Therefore, HB 341 is appropriate in
order to protect the stability and long-term growth of Alaskan
agriculture.
ROBERT WELLS, Director, Division of Agriculture, Department of
Natural Resources, testified from the Matanuska-Susitna area. He
announced that in general DNR is in support of right-to-farm
legislation. Mr. Wells offered to work with committee members
and the sponsor to make improvements to HB 341.
CHAIRMAN KOTT announced that public testimony on HB 341 would be
closed since no one else wished to testify. He further announced
that HB 341 would be held since the committee doesn=t have a
quorum; perhaps the language could be worked on in the meantime.
He commented that he had difficulty in considering bees to be
livestock. He referred to page 3, line 3, which refers to
livestock and poultry; he said that language seems redundant
because on page 3, line 11, the definition of Alivestock@
includes poultry.
REPRESENTATIVE JAMES related her belief that [everyone] would be
better off if legislation such as HB 341 was passed before there
are problems. Furthermore, she stressed her support of planning
and zoning which could identify where agricultural uses are
allowed in order to help protect a person=s livelihood.
CHAIRMAN KOTT commented, AIt=s good to be proactive versus
reactive.@
REPRESENTATIVE KERTTULA noted her agreement with Representative
James. She reiterated her concern of [possibly] creating a way
for a property owner to say that he/she didn=t receive this
notice, which would be problematic for the farmer.
REPRESENTATIVE JAMES remarked that it seems that when real estate
[agents] sell property, they should have maps. She reiterated
her belief that there should be agricultural zoning in order to
protect agricultural use.
CHAIRMAN KOTT again announced that HB 341 would be held.
HB 329 - INFO AND INFORMED CONSENT FOR ABORTION
CHAIRMAN KOTT announced that the next order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 329, "An Act relating to
services and information available to pregnant women and other
persons; and requiring informed consent and a 24-hour waiting
period before an abortion may be performed unless there is a
medical emergency." [Before the committee was CSSSHB 329(HES).]
Number 0984
REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, testified
as sponsor of SSHB 329. He stated that he'd introduced SSHB 329
in order to elevate the discussion on what is already in
regulation, 12 AAC 40.070. Section 1 of the bill requires the
Department of Health & Social Services (DHSS) to develop a
standard information brochure that physicians would make
available to a woman considering an abortion, and to provide 24-
hour notice and a toll-free number for information. This section
also creates definitions in state statute in regard to the
following terms: conception, fertilization, gestational age,
pregnant and unborn child. Section 2 addresses abortions that
may not be performed until the informed consent provision is
fulfilled; the informed provision is in Section 4. Section 5
provides for severability due to the nature of this issue, which
will probably be decided in court. He noted that [DHSS] and the
Department of Law [DOL] have said they will challenge [SSHB 329].
REPRESENTATIVE COGHILL turned to the reason why he chose to put
SSHB 329 together. He began by saying that this is a national
discussion as to when an unborn child is valuable. He noted that
the Alaska House of Representatives just passed a resolution
regarding fetal alcohol syndrome, which [indicates that the
legislators] clearly value that life. However, in regard to
abortion, he didn=t believe that women are given the appropriate
or proper information. He pointed out that often there is
coercion from the father, the family and society in general.
Representative Coghill believes that this legislation could
elevate the discussion such that the best medical and practical
information could be placed in a booklet. H
REPRESENTATIVE COGHILL noted that he had a booklet similar to
what would be required under this legislation. This legislation
would require [that the booklet] contain information regarding
what would occur during pregnancy, in two-week gestational
periods. This [attempts] to obtain the best medical information
available. Furthermore, [this legislation] requests a 24-hour
waiting period in order that the woman would have [the
aforementioned information and] time to reflect. Representative
Coghill reiterated that [SSHB 329] would, with the information
booklet and the 24-hour waiting period, elevate what is already
in Alaska=s code. Much of the other items are already [in
place]. He indicated that the informed consent provision is not
necessarily the question but rather the question is really in
regard to how far the informed consent should go.
Number 1194
REPRESENTATIVE COGHILL stated his view that it is a matter of
dignity of the woman and life. He acknowledged that there would
be some legal challenges to this. He also acknowledged that
there is some strong opposition to this in regard to privacy.
However, he related his belief [that this legislation] provides
the woman privacy and [information to make an informed choice].
The booklet will have social services information and describe
the responsibility of the father to the degree possible.
Representative Coghill concluded by saying that SSHB 329 was
introduced on the principle that life is worth valuing and the
woman should be provided good medical information. He noted that
the committee was welcome to review the booklet that he has and
he offered to answer any questions.
Number 1318
DIXIE HOOD, Licensed Marriage & Family Therapist, testified in
opposition to HB 329, Awhich would impose a 24-hour waiting
period on women seeking an abortion and which would require a
woman to go through biased counseling before getting an
abortion.@ Ms. Hood stated that she favored health care
professionals providing a patient with informed consent before
undertaking a medical procedure. To her knowledge, there is no
reason to think that women seeking abortions are not provided
with all the information necessary to make a reasoned decision.
She said, AMandatory, anti-choice lectures don=t give women
unbiased, meaningful medical information but rather they are told
a laundry list of possible complications from the abortion
procedure; complications which are rare.@ This legislation would
require that false medical information be given to a woman
because [the legislation] instructs a doctor to inform a woman
that one of the risks of abortion includes breast cancer. Ms.
Hood said that she is not aware of any studies, studies that are
accepted in the medical community, that prove a connection
between abortion and breast cancer.
MS. HOOD stated that legislators shouldn=t tell medical
professionals what is important and not important in regard to
advising a patient about a medical procedure. She said,
AAbortions are being singled out for the biased counseling
requirement not because the sponsors are concerned about women=s
health, but because they want to try to coerce women into
carrying their pregnancy to term by whatever means possible.@
Ms. Hood noted her opposition to the 24-hour waiting period under
this bill. She pointed out that medical professionals that
perform abortions in Alaska are few and thus many women must
travel great distances to obtain an abortion. Therefore, a
waiting period places much greater expense and inconvenience on
women. Furthermore, a waiting period places a woman=s health at
risk.
MS. HOOD discussed how a woman may have to reschedule work,
arrange child care or juggle school responsibilities along with a
provider=s scheduling issues, which with the waiting period could
result in a delay of ten days to two weeks or even longer. Such
a delay could push a first trimester abortion to a second
trimester abortion and thus a more routine procedure is
transformed into a more complicated a dangerous procedure. Ms.
Hood urged the committee to oppose this legislation as such
decisions should be left to a woman and her doctor.
Number 1494
DENISE BURKE, Staff Counsel, Americans United for Life, testified
via teleconference from San Antonio, Texas. She informed the
committee that she was present in order to testify as a
constitutional expert on HB 329. She stated: AHouse Bill 329
substantially complies with the law upheld by the United States
Supreme Court in the case of Planned Parenthood v. Casey and with
the exceptions of some concerns that we have over Section [AS]
18.16.010(a)(4), the law is constitutional.@
MS. BURKE noted that she had provided Representative Coghill=s
office with a memorandum that proposes some additional changes to
HB 329. The proposed changes are for clarity purposes and will
enhance the constitutionality of this legislation. She related
her belief that HB 329 provides this legislature with the
opportunity to guarantee that women will have access to all the
relevant information necessary to make an informed and mature
decision. [This legislation] is a constitutional expression of
the state=s interest in the health and safety of women as well as
the state=s interest in protecting unborn children.
MS. BURKE reiterated that [legislation] such as HB 329 would
allow a woman to understand the full consequences of her decision
concerning her pregnancy. She said, AIt is not an undue burden
for a woman=s decision to be thoughtful and informed.@ House
Bill 329 will ensure that the decision is thoughtful and well-
informed. Furthermore, Alaska furthers the legitimate purpose of
reducing the risk that a woman may elect an abortion only to
later discover that she was not fully informed. Therefore, HB
329 ensures that a woman=s health is protected by providing all
the necessary information to make an informed decision. She
pointed out, AIt [this legislation] also adds >meat= to Alaska=s
interest in protecting unborn children. It is not an undue
burden for a state to favor childbirth over abortion or for a
state to attempt to persuade a woman to choose childbirth over
abortion.@ She informed the committee, AThe [U.S.] Supreme
Court has explicitly stated that a state may further its
legitimate goal of protecting the life of the unborn by enacting
legislation aimed at ensuring a decision that is mature and
informed, even if when in doing so the state expresses a
preference for childbirth over abortion.@
MS. BURKE turned to the 24-hour waiting period, which she said is
constitutional under the [U.S.] Supreme Court precedent set out
in the United States v. Casey. The notion that ideas would be
more informed and deliberate if there is a period of reflection
is not unreasonable. House Bill 329 provides important
information for the background of a very important decision as
well as affording time for reflection and consideration of the
information. In regard to the concern that this legislation
provides biased counseling, she pointed out that HB 329
explicitly provides for objective, nonjudgmental and accurate
information. In conclusion, Ms. Burke reiterated that this law,
save the concerns surrounding the domiciliary provision, is
constitutional and should be enacted.
Number 1761
REPRESENTATIVE KERTTULA related her understanding from Ms. Burke
that under the Planned Parenthood case, this law is
constitutional as drafted.
MS. BURKE replied yes and noted that this law is constitutional
under Planned Parenthood v. Casey and several other subsequent
state law cases. She noted that 28 states have enacted informed
consent legislation similar to this legislation and [the
legislation] that was enacted under Planned Parenthood v. Casey.
Currently, 25 of those laws are in effect and have withstood
constitutional challenge; the remaining three are in the courts
now.
REPRESENTATIVE KERTTULA asked if Ms. Burke has had a chance to
review the Alaska cases on this.
MS. BURKE specified that she has reviewed the federal case law
governing a woman=s right to an abortion and thus she hasn=t
specifically reviewed any state law cases. She noted that she
has thoroughly reviewed HB 329 and compared it with the law that
was upheld under Planned Parenthood v. Casey and thus she was
confident that HB 329 is constitutional. In further response to
Representative Kerttula, Ms. Burke stated that she is an
attorney.
Number 1869
JOE MALICK (ph) testified briefly in support of HB 329.
Number 1957
DEBBIE JOSLIN testified via teleconference from Delta Junction.
She related her personal story in which she was 22 weeks pregnant
when, after an ultrasound, she was told that her child, Isaiah,
had multiple anomalies. She then spoke over the phone with a
perinatologist in Anchorage and made arrangements to have another
ultrasound. During the phone conversation, the perinatologist
urged Ms. Joslin to terminate the pregnancy as the baby would
probably die anyway, the medical expenses would be too great and
Ms. Joslin=s life was also probably in danger.
MS. JOSLIN continued, noting that the perinatologist hadn't
examined her at this point. Ms. Joslin made an appointment with
this doctor. At the appointment, she and her husband first saw a
genetic counselor who reviewed some family history; [the genetic
counselor] explained that Isaiah probably had Trisomy 18, a
chromosomal abnormality. Ms. Joslin noted that [the genetic
counselor] expressed surprise that she and her husband were not
considering terminating the pregnancy and the genetic counsel
asked several times whether they wanted to consider terminating
the pregnancy. Then another ultrasound was performed by a
technician after which the perinatologist took over the exam and
listed the following anomalies: brain cyst, missing or
unconnected stomach, hypoplastic left heart, eyes not properly
spaced, underdeveloped chin, something wrong with spinal
development, something wrong with his penis, rocker-bottom feet,
possibly an extra toe and fluid in the abdominal cavity and
lungs.
MS. JOSLIN said she and her husband were told the fluid indicated
that Isaiah was already in congestive heart failure and would
never make it to his due date in May, and furthermore if Isaiah
were to live, he would never respond to them. She said they were
also told that all Trisomy infants were severely mentally
retarded. [The perinatologist] described a somewhat vegetative
state [that Isaiah would be in]; however, she said that he would
probably be stillborn any day and if he was born alive, he would
only live for a few minutes. Later the estimation as to how long
Isaiah would live was adjusted to a few hours, and then to maybe
a day at most. Finally, the doctors [estimated Isaiah could
live] a few days [if he were born alive]. The Joslins agreed to
an amniocentesis that day in order to determine whether Isaiah
actually did have Trisomy 18.
MS. JOSLIN noted the hope of herself and her husband that Isaiah
would not have Trisomy 18 and that they could begin to make plans
for heart surgery. However, [the perinatologist] told the
Joslins that doctors will not operate on Trisomy infants since
they all die in infancy anyway. Ms. Joslin informed the
committee of the heavy hearts she and her husband had as they
drove back to Delta discussing plans for Isaiah=s funeral versus
their plans and dreams for him.
MS. JOSLIN continued and informed the committee that within a few
days, she received a call from the genetic counselor with the
preliminary test results which showed Isaiah had Trisomy 13.
When asked how Trisomy 13 differed from Trisomy 18, the genetic
counselor said [Trisomy 13] was worse. Again the genetic
counselor asked about termination, and again Ms. Joslin informed
her that she and her husband were not interested in [terminating
the pregnancy]. Then, almost immediately, Ms. Joslin received a
call from her doctor in Fairbanks, who asked her about
termination. Again she told her doctor that she was not
interested in [terminating the pregnancy]. The doctor informed
Ms. Joslin that her life was in danger and that since she chose
to continue the pregnancy she could no longer be her doctor as
she was a general practitioner and not qualified to handle such a
case.
MS. JOSLIN said that she then began seeing an osteopath doctor in
Delta and an OB/GYN in Fairbanks. She informed them both what
she had been told about the baby and about her own health. The
OB/GYN doctor could not understand why she had been told her life
was in danger. The OB/GYN doctor treated Ms. Joslin during the
remainder of the pregnancy and Ms. Joslin never had any
complications or problems beyond the usual complaints from which
pregnant women suffer.
MS. JOSLIN returned to the results of the amniocentesis. She
informed the committee that a couple of weeks after the
preliminary results, the genetic counselor called with the final
results, which were that Isaiah had Trisomy 13. Again, the
genetic counselor asked Ms. Joslin about termination to which
Ms. Joslin replied no again. Ms. Joslin said when she asked the
genetic counselor what she would do if she was interested in
terminating the pregnancy, the genetic counselor became very
excited and informed Ms. Joslin that "there is the most wonderful
clinic in Kansas." In response to Ms. Joslin, the genetic
counselor affirmed that she was referring to Dr. Tiller's clinic.
The genetic counselor asked if Ms. Joslin knew him, to which Ms.
Joslin replied, "No, but I know about him." The genetic
counselor offered to have other women who had abortions call Ms.
Joslin, but she declined.
MS. JOSLIN continued. She indicated the genetic counselor sensed
that she was not interested in pursuing [termination of the
pregnancy] further and thus she told Ms. Joslin, in a very
apologetic voice, that there is a parent support group that is
rather positive - as though positive is a bad thing. The genetic
counselor then informed Ms. Joslin that she had information on
this group, including an 800 number. The genetic counselor also
informed Ms. Joslin that she had pamphlets and books in her
office that gave detailed information, including pictures, about
Trisomy 18, 13 and other related disorders.
MS. JOSLIN reported that she'd called S.O.F.T. (Support
Organization for Trisomy 18, 13 and Related Disorders) and
discovered that the group is positive, but realistic. Ms. Joslin
talked with a woman [in S.O.F.T.] over the phone about Isaiah's
diagnosis, and this woman told Ms. Joslin that [the
perinatologist and the genetic counselor] were probably correct
in regard to Isaiah=s future, however there was a chance he could
live. [The woman from S.O.F.T.] talked to Ms. Joslin about the
parents to which Ms. Joslin recalled asking, "Parents, you mean
they have live children?" [The woman from S.O.F.T.] said that
some did have live children. Upon further questioning, Ms.
Joslin learned that the age of the children varied, but there
were a few children who were teenagers and even a couple of
adults. [The woman from S.O.F.T.] took Ms. Joslin=s name and
address and told her she would send a family packet right a way.
MS. JOSLIN noted that she'd also requested the books [S.O.F.T.]
had available: Trisomy 13, A Guideline for Families and Care of
the Infant; and Child with Trisomy 18 or 13. These were the
books the genetic counselor had described as having in her
office. Although the information was heartbreaking, it offered
some hope and some help which were two things the Joslins hadn't
received much of. Ms. Joslin remarked, ANot only did some of
these children live, they played and smiled and laughed and
talked and learned things and showed affection and responded to
love and affection.@
MS. JOSLIN informed the committee that [she and her husband]
located a wonderful pediatrician in Fairbanks who agreed that
Isaiah's chances were not good; however, she was willing to do
what she could to help him. [The Joslins] decided to hire this
pediatrician and made plans to deliver their baby in Fairbanks.
Only 11 days before his due date, Isaiah John Joslin was born at
Fairbanks Memorial Hospital. Isaiah weighed 6 pounds, l ounce
and was 18 1/4 inches long; he had lots of bright red hair.
Isaiah had difficulty breathing when he was first born and the
doctors and nurses checked him over; they could find no sign of
the problems seen earlier on three different ultrasounds.
However, Isaiah suffered from a ventricular septal defect (VSD),
a hole in his heart. Although VSD is very serious, it is a far
cry from the problems he had earlier. She informed the committee
that Isaiah required oxygen and a nasal gastric tube for feeding.
Still, Isaiah looked so normal that even the nursing staff agreed
he should be retested. The test results again showed that Isaiah
had Trisomy 13. Isaiah stayed in the hospital for 12 days and
then came home where he lived for 20 days. Ms. Joslin remarked,
AThose were some of the hardest but the sweetest days of my
life.@
MS. JOSLIN explained that she told the committee this story in
order that they understand why she asks them to pass [SSHB 329].
TAPE 00-54, SIDE A
MS. JOSLIN continued by noting that she requested pamphlets from
other states; she noted that the committee may have those
pamphlets before it. She informed the committee that she was not
psychologically harmed by seeing the photographs in the
pamphlets. However, if anything produced psychological harm for
her, it was the pressure from the doctors to have an abortion.
She said that talking to other doctors, doing her own research
and reading about Trisomy infants as well as her own personal
experience [has lead her to] believe that her life was never in
any danger. Yet, an undue burden was created at a time when she
already had plenty to worry about. Therefore, she believes this
[undue burden] was done to try and convince her to have an
abortion.
MS. JOSLIN reminded the committee that she was told that all
Trisomy infants die, although she now knows that between 90 and
95 percent of all Trisomy infants die before one year of age.
She realized that doesn't leave much room for hope, but she
emphasized that it is quite different than saying they all die.
Ms. Joslin also noted that she was not told about [S.O.F.T.] for
over two weeks, Anot until they had finally given up on talking
me into an abortion.@ She acknowledged that one may say that
[the doctors] were not sure Isaiah had Trisomy until the final
results were available. Although that may be so, they were sure
enough to continually mention termination. She pointed out that
she drove 350 miles to see the doctor and was never shown the
written information about this disorder that was in the office.
However, [the doctors] were careful to tell her every negative
thing about [carrying] the baby [to term] and she was never told
of any of the risks, either physical or emotional, of having an
abortion.
MS. JOSLIN said she believes the doctors who repeatedly brought
up termination probably meant well. She said, AThe problem
comes in where they apparently believed that their professional
status, or their medical degrees placed them in a position to
know better than me what was best for me, my family and my baby
and that simply is not true.@ She further stated, AGiving life
to Isaiah was hard on our family; but it wasn't too hard. It was
expensive; but it wasn't too expensive. It was hard on the other
children; but it wasn't too hard on the other children. Giving
life to Isaiah blessed our family, including the other children.@
She explained that due to Isaiah=s heart condition, he was always
lethargic and sleepy, but he was never in pain. The equipment
monitoring his oxygen saturation rate showed that whenever he was
held or shown affection, he was aware of it as his saturation
levels would soar when he was being Aloved on.@
MS. JOSLIN offered an example: her five-year-old daughter Emily
loves to recall the night before Isaiah died when his oxygen
saturation level rose from the 60s to 100 when he was laid in
Emily's arms. Ms. Joslin said, AThere seems to be a feeling out
there that a successful life is one that is free from pain or
suffering or trials, and that isn't true. Isaiah's life was
successful. We loved him, and he loved us.@ She noted that
since Isaiah's death [the family] has been comforted and
encouraged by reading of other families with Trisomy children in
the S.O.F.T. newsletter.
Number 0241
MS. JOSLIN said she would like for every mother to make the same
decision she did, but she realizes that won't happen. However,
every mother deserves to have all of the information pertinent to
her situation so that she can make an intelligent informed
decision. Therefore, Ms. Joslin stated that voting against [SSHB
329], in effect says, that women are not competent enough to be
trusted with the facts regarding the health of their own bodies
and that of their unborn children. She further stated, AA >no=
vote says that you have no compassion for families and believe
that doctors are better suited to make decisions for women and
their unborn babies. A >no= vote is a vote against women=s
rights.@ On the other hand, a "yes" vote for [SSHB 329] sends an
entirely different message. She said, AA vote for informed
consent says that you have respect for the intelligence of women
and believe that they have the right to be trusted with the
information necessary to make decisions for themselves.@ She
noted her hope that this body of legislators will be in favor of
women's rights.
Number 0326
JUDY CAVANAUGH testified in opposition to [SSHB 329], which she
believes shows a lack of trust in Alaskan women and their
doctors. Furthermore, she believes that government should not
interfere in a personal medical decision. She said, AAs an ER
nurse, I know that the standards of medical practice and
institutional policies and state laws already require that health
care practitioners provide all patients with accurate and
unbiased information regarding the risks and benefits of any
medical procedure. This is called informed consent.@ She stated
that [SSHB 329] singles out abortions from all other medical
procedures. She then pointed out that even dangerous and
complicated surgeries do not have a legally required waiting
period. This legislation requires doctors to give a biased
lecture. Furthermore, this legislation implies that women do not
think through their decisions nor are they capable of making
their own decisions. Moreover, this legislation illustrates a
lack of respect for women.
MS. CAVANAUGH informed the committee that she has a Juneau
Coalition for Pro-Choice telephone in her home. Every month Ms.
Cavanaugh receives one to ten phone calls from women throughout
Southeast Alaska who are seeking information about abortions.
Without exception, these women have thought long and hard about
their decisions. Ms. Cavanaugh mentioned that there is already a
built-in delay from the time a woman discovers she is pregnant to
her decision.
MS. CAVANAUGH noted that she spends hours talking with women
regarding their choices. Then this legislation requires an
additional 24-hour waiting period after already making a
decision, which Ms. Cavanaugh felt is insulting to women.
Furthermore, having to leave Juneau for an abortion poses a
hardship, sometimes a financial hardship, for many women.
However, the greatest hardship is almost always having to leave
Juneau and a supportive environment. To require another 24-hour
waiting period creates an additional burden, financially and
emotionally. Furthermore, [the 24-hour waiting period] could
result in a first-trimester abortion becoming a second-trimester
abortion. In conclusion, Ms. Cavanaugh stated that this
legislation will not provide better more informed health care for
the women of Alaska but rather it will further limit access to a
legal medical procedure.
Number 0543
DEBORAH SCHORR, Juneau Pro-Choice Coalition, testified in
opposition to [SSHB 329]. She informed the committee that the
Juneau Pro-Choice Coalition has identified more than 5,000 Pro-
Choice voters in House districts 3 and 4. The Juneau Pro-Choice
Coalition is a member of the Alaska Pro-Choice Alliance. Ms.
Schorr said that [SSHB 329] does two things. First, this
legislation would require health professionals to provide false
and misleading information to women seeking an abortion. She
identified this as an attempt to prey on the emotions of these
women in order to frighten them into not having an abortion.
Second, this legislation would make it more difficult to have an
abortion. Again, this would be done in the hope that women would
be discouraged from seeking this safe and legal medical
procedure.
MS. SCHORR continued. She said this legislation requires that a
health care professional show the woman photographs of fetuses
and describe the anatomical and physiological characteristics of
a fetus, which is a tactic well known to anti-abortion extremist.
This legislation further requires that women be informed about
adverse psychological effects of abortion; however, she
questioned the psychological effects of sitting through biased
counseling for a woman who has been raped or is a victim of
incest. Ms. Schorr informed the committee of a study performed
by the World Health Organization that could find no medical
evidence that abortion causes psychological injury.
Additionally, this legislation would require that women be told
about health risks from an abortion, such as breast cancer.
However, there is no scientific evidence that an abortion
increases a woman=s risk of breast cancer.
MS. SCHORR requested that the committee leave the details of
informed consent to those that understand the health risks of
pregnancy and abortion. She reiterated that abortion is being
singled out because the sponsors want to outlaw abortion.
Furthermore, the 24-hour waiting period increases a woman=s
health risks. She noted that many women, particularly those in
rural Alaska, must travel far to reach the nearest clinic. With
the aforementioned hardships faced by these women, a 24-hour
waiting period could delay an abortion to the second trimester.
She informed the committee that in states where a waiting period
has been imposed, rates of second trimester abortions have
increased.
MS. SCHORR continued. She pointed out that second trimester
abortions are riskier to women and more complicated. Ms. Schorr
stated, AThe harm from the restrictions the sponsors of this
bill wish to impose are felt most by those who have the fewest
resources: low income, minors, rural women, working women
without insurance or sick leave and battered women.@ She further
stated, AMany in this legislature talk a great deal of less
governmental intrusion and this would be a good time to practice
what you preach. Leave these matters up to women and their
doctors.@
CHAIRMAN KOTT referred to Ms. Schorr=s remark that this
legislation would require physicians to provide false and
misleading information. He asked if Ms. Schorr could cite the
section to which she is referring.
MS. SCHORR said she didn=t have the bill in front of her.
CHAIRMAN KOTT remarked that perhaps Dr. Isada, who is online,
could Ahelp us out.@
Number 0830
DR. NELSON ISADA, Perinatologist, testified via teleconference.
He informed the committee that he is one of two perinatologist in
the state. When there are problems, folks end up seeing he or
the other perinatologist. Dr. Isada acknowledged that many
physicians are adamantly opposed to abortion and he respected
that position. However, he [and the other perinatologist in the
state] get the phone calls [from physicians] regarding
Ahandling@ a situation because [the physician] can=t say
anything due to his/her position in the church, et cetera. Dr.
Isada stated, AI do not come to you as an outside consultant
with a political agenda from another state.@ He specified that
he [and the other perinatologist in the state] see folks in
crisis.
DR. ISADA posed a situation in which a woman who is ten weeks
pregnant has critical aortic stenosis from which she could
possibly die. He assumed that he would show the patient the
pictures and the pamphlet. If the woman elects to continue the
pregnancy and succumbs to her disease, he [predicted] that this
woman=s family would charge that he gave biased counseling. For
these types of things, the move in health plans is to have co-
liability. However, Dr. Isada saw no co-liability provision in
[SSHB 329]. Therefore, he was concerned with the effects of the
bill. Furthermore, he echoed earlier comments regarding the fact
that there already Alaskan statutes that hold [physicians] to a
very high standard for informed consent. The AMA [Alaska Medical
Association] and the American Medical Association, of which Dr.
Isada is not a member, and the American College of OB/GYNs, of
which Dr. Isada is a member, are opposed to such legislative
involvement in the informed consent process. He explained that
the former example was used [to illustrate] that informed consent
is part of the decision-making process. The process of getting
[to the procedure] and discussing the pros, cons, risks and
benefits is the difficult portion.
DR. ISADA turned to the issue of [physicians being required to
provide] possibly misleading information, which is related to the
controversy that breast cancer is [linked to] abortion. He
pointed out, AOne error or fact that has been omitted is with an
abortion one of the complications is continued pregnancy.@ Dr.
Isada informed the committee that the only lawsuit that named him
was in 1984 when a woman elected to continue a pregnancy. The
woman delivered a healthy baby by C-section. However, the woman
sued Dr. Isada based on the pain and suffering she experienced
due to having a normal child. Although that [lawsuit] was
stopped, this is an issue for credentials and insurance.
Therefore, he reiterated [his concern] with co-liability and
errors of fact.
DR. ISADA addressed the testimony of Ms. Burke regarding her
experience with a Trisomy child. Dr. Isada noted that he has
worked with the other perinatologist in Alaska and from his
perception, he has seen this perinatologist spend hours
counseling patients. Furthermore, he stated that he [and the
other perinatologist] nor their genetic counselors urge a woman
to choose an abortion as that is the woman=s decision. He
informed the committee that many health care practitioners are
concerned with the risk of wrongful life in which the
practitioners are sued by folks who say that they would have
never had the child had they known all of the problems that
developed. He noted that in these cases, most of the folks wind
up continuing the pregnancy anyway. In regard to the 30-day
domiciliary provision, Dr. Isada remarked that he was happy to
see that being deleted.
Number 1164
CHAIRMAN KOTT reiterated his earlier question in regard to Ms.
Schorr=s remark that this legislation would require physicians to
provide false and misleading information. Again he inquired as
to the area [in the bill] where such a charge would be relevant.
DR. ISADA commented that he and other health care providers with
whom he has discussed this have questioned who would determine
what is objective information that describes methods of abortion
procedures.
REPRESENTATIVE CROFT asked if the clinical definition of
pregnancy is usually a fertilized egg or fertilized egg that is
implanted on the uterine wall. He pointed out that the bill
defines pregnancy as Athe second, if you will, after meeting of
sperm and egg.@ He asked if that is the standard clinical
definition of pregnancy.
DR. ISADA replied that is correct. However, he said that he was
aware of several ongoing lawsuits in which women seeking another
procedure had a pregnancy test, which was negative and thus these
women proceeded with the procedure. In further response to
Representative Croft, Dr. Isada specified that the clinical
definition of pregnancy is the implantation [of the fertilized
egg on the uterine wall].
CHAIRMAN KOTT returned to the notion that [this bill will require
physicians to provide] false or misleading information. Chairman
Kott referred to page 2, lines 26-29, of the bill and inquired as
to Dr. Isada=s understanding of the language Awhen medically
accurate@.
DR. ISADA answered that he could inform the committee in regard
to what he does, although he acknowledged the many people are
waiting to testify.
CHAIRMAN KOTT asked if Dr. Isada would utilize the AMA=s
definition or the perinatologist=s definition.
DR. ISADA noted that there are many differing opinions in
internal fetal medicine/obstetrics. In terms of breast cancer,
that is controversial. He informed the committee that his
standard consultation includes the risks of infection,
hemorrhage, danger to subsequent pregnancy, infertility and
possible continued pregnancy. He reiterated that continued
pregnancy be included as a complication because it is a
recognized medical complication.
Number 1379
DR. JAN WHITEFIELD testified via teleconference. He acknowledged
the time constraints facing the committee and said that he would
limit his remarks to the following two areas. First, he
addressed the definition of fertilization in the bill. He
informed the committee that this [definition] can become
problematic for those that perform routine medical [procedures]
such as the insertion of IUDs (intrauterine device), prescription
of birth control pills and prescription of emergency
contraception. He explained that under the bill if a person
performs an abortion without the woman=s informed consent, the
physician can be held liable.
DR. WHITEFIELD pointed out that both pro-choice and pro-life
people consider the choice to have an IUD implanted as an
abortive facet because a fertilized egg may not implant on [the
wall] of the uterus. Therefore, this definition of pregnancy
when there is fertilization versus implantation makes such things
as IUDs an abortive facet. Furthermore, the definition raises
the question as to what happens when a person loses a pregnancy
due to an IUD that is in place - particularly when [the
physician] has not talked with the patient regarding the fact
that [an IUD] may cause a pregnancy not to implant. The same
would be true for emergency contraception.
DR. WHITEFIELD explained that if a physician gives a person
emergency contraception and the pregnancy has not implanted, that
is considered a form of abortion. Therefore, he asked if a
person who calls regarding emergency contraception should be
required to come into the physician=s office and does this person
have to fulfill the 24-hour informed consent before being given
the emergency contraception. If that is the case, the
effectiveness and availability of the emergency contraception is
lessened. Therefore, that definition is problematic.
DR. WHITEFIELD turned to the 24-hour waiting period. He was sure
that when the numbers are run, this bill [would be considered]
discriminatory to [Alaska] Natives. He explained that those
coming in from the Bush for an abortion will incur extra expense
for the time spent waiting to undergo informed consent and the
24-hour waiting period. He informed the committee that by far,
the largest group of people coming in from the Bush to have
abortions are Alaska Natives.
CHAIRMAN KOTT inquired as to the procedure followed when
scheduling an abortion. He asked if the evaluation is scheduled
first or is the procedure performed the same day as [the
evaluation].
DR. WHITEFIELD explained that if a person chooses to come in for
a pregnancy termination, she would first have an evaluation to
determine whether she is an appropriate candidate for pregnancy
termination. The person goes through a counseling process to
determine whether pregnancy termination is something this person
wants and other options are presented to the person. Then the
person would go through the process of informed consent. When it
has been determined that the person is an appropriate candidate
for pregnancy termination and that she is choosing [abortion] of
her own free will - she has proceeded through informed consent -
then a laminary (ph) is inserted on the first day. On the
second day, the termination is performed. By adding the 24-hour
waiting period, the person will come in and go through the
informed consent and be provided the literature. The person
would then be allowed to leave and go through the literature and
come back the next day to go through ultrasounds, confirmation of
pregnancy and gestation and insertion of laminary (ph). Then the
person would return the third day for the termination of the
pregnancy.
Number 1616
REPRESENTATIVE KERTTULA asked if there is any other procedure for
which a 24-hour waiting period is required.
DR. WHITEFIELD replied no. He noted that he sent a letter to
each of [the committee members]. Dr. Whitefield stated that
informed consent is a medical process, Ait=s not legal.@ He
noted that the legislature, in trying to define informed consent,
is taking on an onerous task because this is something that will
change as time passes. For example, the risks of medical
abortion are very different in 1999-2000 versus 1970. The risks
change with time.
REPRESENTATIVE MURKOWSKI returned to the informed-consent process
outlined by Dr. Whitefield. She surmised that the process
includes the woman signing documentation saying that she
understands the procedure she is about to undertake. She asked
if anything in the informed consent lists what the physician has
described to the patient.
DR. WHITEFIELD answered that the informed consent documents list
a certain number of things such as the risk of infection and
hemorrhage. Such risks are listed because investigators [seem
to] uniformly agree on those. However, there are other risks
that are not specifically listed such as the danger of subsequent
pregnancies. Dr. Whitefield noted that the Centers for Disease
Control and Prevention (CDC) has the largest single databank for
abortion services that have been available since abortions have
been available in the United States. The CDC data bank says that
a person who has one, two or three uncomplicated first trimester
pregnancy terminations, faces no increased risk with getting
pregnant in the future or carrying a pregnancy to term.
Therefore, he said he would inform a person with no previous
pregnancy terminations or previous pregnancies that as long as
there are no complications with this pregnancy termination, it
would not cause any danger to subsequent pregnancies. However, a
different approach may be taken for a person coming in for her
fifth pregnancy termination in that she would be told that CDC
data indicates that this fifth abortion may cause difficulty in
regard to getting pregnant in the future as well as carrying a
pregnancy to term. Therefore, the informed consent is tailored
to the individual as the person has [an individual] history.
REPRESENTATIVE MURKOWSKI related her understanding, then, that
there is no standardized form.
DR. WHITEFIELD said there is a standardized form that includes
items that are expected to be risks no matter how many pregnancy
terminations one has had, such as the risk of retained tissue
requiring a repeat D&C (dilation and curettage). However, other
things may be tailored for the individual and thus may not be
included on the form. In further response to Representative
Murkowski, Dr. Whitefield said he would have to talk with his
administrative director and attorney before faxing their informed
consent forms.
Number 1872
IDA BARNICK (ph), Alaskans for Life, stated that Alaskans for
Life supports [SSHB 329]. Alaskans for Life feel that it is not
too much to request a 24-hour waiting period as this deals with
ending the life of an unborn child. Before the mother decides to
end the life of her child, she should have complete information
in regard to the age of the unborn child, what the unborn child
looks like, the risks of terminating the pregnancy as well as the
[psychological] risks to the mother if she chooses to terminate
the pregnancy. There are many women who have ended their
pregnancy and now require psychiatric care due to their
realization that they ended the life of their child. She
reiterated support for [SSHB 329].
Number 1948
MARY DYE (ph) stated her support of this legislation. She said
if she were a woman in this situation, which would affect her
life as well as another life, she would want to take the extra 24
hours to think it through. In regard to additional information,
she remarked that anytime she makes a critical decision she would
want to gather all the information she could. She noted that
surgery such as terminating a pregnancy is different from other
surgeries because there are two lives involved. Ms. Dye(ph)
remarked that [physicians] stand to profit from the procedure and
thus she would [also] like to receive information from those that
do not stand to gain a profit.
Number 2018
SHERRIE GOLL testified via teleconference from Haines. She
testified in strong opposition to [SSHB 329] and urged that this
bill not be forwarded from the committee. Ms. Goll felt that
this legislation authorizes government to infringe on a woman=s
private decision in regard to whether and when to bear children.
Furthermore, this legislation challenges a woman=s right to
control her own body. As previously mentioned, the requirements
imposed [under SSHB 329] on the doctor and the patient are not
required for other medical procedures. She said that the normal
informed consent laws are adequate. Ms. Goll felt that as
elected officials, especially as members of the [House] Judiciary
Committee, they have the responsibility to uphold the state
constitution.
MS. GOLL pointed out that the legislation has problems with the
definitions in that Ait refers to a fertilized egg as an unborn
child rather than using one of the accepted terms: >embryo= for
conception to the time that a heartbeat is heard and >fetus= from
the time the heartbeat is heard until viability.@ She emphasized
that fetuses must not be given (indisc.) in the state=s statute.
MS. GOLL turned to the 24-hour waiting period and echoed earlier
comments that this waiting period is dangerous. She also echoed
the information that those states that have adopted such onerous
waiting periods have experienced an increase in second term
abortions. For example, the State of Mississippi has experienced
a 53 percent increase [in second term abortions]. Therefore, the
danger to a woman is increased and [the waiting period] merely
prolongs a medical ordeal.
MS. GOLL restated earlier testimony regarding the restricted
access to abortions that Alaskan women face. Many Alaskan women
must travel from their home to receive such services. Therefore,
this waiting period not only prolongs things, it also increases
the costs. She reiterated that this legislation is insulting to
women as it seems to imagine that a woman will wake up one day
and decide to do this. Women are reasonable human beings as are
men; they should not be treated differently.
MS. GOLL said that the 24-hour waiting period allows anti-
abortion extremists to follow women home from the clinic in order
to obtain their addresses so that they can be harassed at home.
Ms. Goll stated, AI feel this bill is an affront to the women of
the state who have and, ..., intend to maintain every individual
woman=s right to privacy and freedom from government intrusion
regarding personal reproductive decisions.@ The government
doesn=t have a place in this arena. In regard to those who have
spoken in support of this bill, Ms. Goll believed that they had
every right to carry their pregnancy to term. However, they
shouldn=t try to interfere with other women=s rights,
particularly in the law. She pointed out that a person has
[control] over who their doctor is, and if someone does not like
her doctor=s advice, a new doctor can be obtained.
Number 2198
ROBIN SMITH testified next via teleconference from Anchorage.
She requested that the committee stop this bill now. She viewed
HB 329 as an attempt to shame and intimidate women as it suggests
that a woman makes the decision to have an abortion lightly.
Furthermore, this legislation discourages women from acting in
the best interest of themselves and their families. She informed
the committee that Alaska has had the highest rate of rape in the
nation for 16 of the past 20 years. Therefore, it would be cruel
and insensitive to require rape victims to delay an abortion or
to require these women to view 18 photographs of fetal
development. This [legislation] would also be unfair for those
women who choose not to report a rape, for women with severely
deformed fetuses or women whose lives may be endangered by
carrying a pregnancy to term.
MS. SMITH continued. She indicated a woman must wait until her
seventh week of pregnancy before she can have a surgical
abortion, which is ample time for a woman to consult with her
minister, family, friends and doctor. Ms. Smith said, AAlaska
needs to prevent rape and prevent unintended pregnancies before
we implement such Draconian measures.@ She identified
responsible sex education in schools and communities as well as
expanded access to reproductive health care as the tools to
reduce abortion. In order to reduce abortions, unintended
pregnancies must be stopped and thus the reasons [for unintended
pregnancies] must be addressed not the consequences. In
conclusion, Ms. Smith urged the committee to stop [SSHB 329] now.
Number 2282
LEILA WISE, testifying via teleconference from Anchorage, stated
her opposition to [SSHB 329] and urged the committee not to pass
it out of the committee. The decision to have an abortion is a
personal and private decision that is best left to a woman and
the support she chooses. Therefore, she viewed the provisions of
this bill as invasive, tentative and based on inaccurate
information about medical practices and terminology. Ms. Wise
said that this legislation is unconstitutional, which the
Department of Law has already advised [the committee] of.
Furthermore, the bill is inaccurate as it uses incorrect
definitions. She explained that abortion is a medical procedure
and thus it is appropriate to use only medically accepted and
accurate terminology. She echoed earlier comments regarding the
inappropriate use of Aunborn child@ in this bill as well as the
improper definition of Aconception.@ Such an erroneous
definition of Aconception@ could lead to the banning of
emergency contraception as well as other contraceptives. She
hoped that the intention is not to ban the use of contraceptives
as they are the best way to reduce the number of unintended
pregnancies and abortions.
Number 2361
MS. WISE remarked that this legislation is intrusive because the
time many women enter an abortion clinic, they have already made
their decision and consulted their family and friends [and thus]
made an informed decision. Therefore, this legislation attempts
to interfere with a woman=s personal decision making.
Furthermore, no other medical procedure requires a 24-hour
waiting period for all women and exclusively punishes women.
Abortion, as does any other medical procedure, requires informed
consent and the information is conveyed by the physician and
his/her staff.
MS. WISE asked if informed consent would [now] be required for
pregnancy and would it include information on prenatal
development, the risk of maternal death and complications, which
is greater than the risk associated with abortion. She informed
the committee that a woman near Homer died a few weeks ago during
childbirth and this week the Anchorage Daily News included an
obituary of a woman who died along with her unborn child.
Fortunately, such situations are few due to today=s improved
health care and technology. However, there remains a greater
risk of maternal death in pregnancy.
MS. WISE returned to the issue of the inaccurateness of this
bill. For instance, Dr. Coop (ph), a former Surgeon General who
is pro-life, found that abortion caused no psychological effects
on women. Furthermore, there is no evidence that demonstrates
that there is any relation between breast cancer and the
instances of abortion. Therefore, this bill is dangerous. She
pointed out that women in Alaska already face enormous burdens
and challenges even in locating abortion services. Many women
must leave their home to have a first trimester procedure, which
creates a tremendous financial burden. Therefore, imposition of
a 24-hour waiting period magnifies the burden and allows anti-
choice extremist to harass women. Ms. Wise said that this
legislation dehumanizes, patronizes and shames women. Again, she
urged the committee not to pass this bill from committee. In
conclusion, Ms. Wise said, AI believe that women are smart
enough, responsible enough, capable enough to make their own
choices and to take responsibility for them.@
CHAIRMAN KOTT commented that this committee has not had the
benefit of hearing from the Department of Law in regard to the
constitutionality of this legislation.
TAPE 00-54, SIDE B
Number 0015
ANNE HARRISON testified via teleconference from Fairbanks. She
remarked that [SSHB 329] is ill-conceived; she opposed it as a
woman, wife, mother and women=s health care nurse practitioner.
In writing this bill, she said, Representative Coghill made an
assumption that medically accurate and unbiased information
regarding pregnancies is not already being provided by health
care providers. However, she informed the committee that since
the mid 70s, she and her nursing colleagues and other health care
professionals have provided sensitive and medically accurate
information in order to assist women in making truly informed
decisions about their pregnancies. She said, AThis counseling
is standard, time-consuming and is based on professional
standards of practice.@ She turned to the 24-hour waiting
period, which she believes to be logistically impractical for
women due to the unavailability of abortions in home communities.
If abortions were available in Alaska=s major population centers,
as they once were, the 24-hour waiting period [would] just
happen by the way things are scheduled.
MS. HARRISON asked the committee to listen to the health care
professionals, who have based their testimony on clinical
experience and ongoing education. She viewed [SSHB 329] as
unbalanced and misinformed. Furthermore, this legislation would
promote risks of one option to pregnancy, abortion, without
addressing the risks involved in childbirth and adoption. She
noted that childbirth, parenting, abortion and adoption all have
risks and benefits. In regard to the charges that there is a
relation between breast cancer and abortion, Ms. Harrison
informed the committee that the American Cancer Society and the
National Institute of Health have seen no connections between
breast cancer and having had an abortion. In conclusion, Ms.
Harrison requested that the committee stop this bill now.
Number 0113
EILEEN BECKER, Director, Homer Crisis Pregnancy Center, testified
next via teleconference from Homer. She noted that she had given
testimony to the House Health, Education & Social Services
Committee in the past and she hoped that testimony has been
transmitted with the bill. She informed the committee that she
is very much in favor of this bill, partially because she deals
with women in post-abortion counseling and education. She stated
that the women she deals with have not been informed, although
she noted that she does not know this for sure. Furthermore,
she felt that even if these women are told the basic facts, the
state of mind of these woman doesn=t allow them to understand.
Therefore, the 24-hour waiting period would allow these women
time to consider what they are doing and consider the long-term
ramifications in order to make a better decision.
MS. BECKER continued. She informed the committee that she
encourages women that are determined to have an abortion to get
the name of the doctor because often that information is not
provided to these women. If they have complications later, these
women don=t have a name or a person to return to. Ms. Becker
encouraged the committee to obtain copies of these informed
consent [documents] and she indicated the need to know the amount
of time that is taken [to provide] all this important
information. Although she said her greatest challenge is to deal
with women after [an abortion], it is her greatest reward when a
women returns nine months later to thank her and show her the
child. Ms. Becker said that although some of the terminology in
this bill needs to be straightened out, the bill, for the most
part, is positive in its intent and direction.
REPRESENTATIVE MURKOWSKI acknowledged that Ms. Becker provides
counseling for women who have had abortions. She asked if Ms.
Becker also provides counseling for women who give their children
up for adoption.
MS. BECKER said that there have been such cases; however, in
Alaska very few people give their children up for adoption. In
the 14 years, on and off, that she has counseled at the crisis
pregnancy center, she has only known of three adoptions.
Number 0278
AMY BOLLENBACH testified via teleconference from Homer. Ms.
Bollenbach acknowledged that some of these women who have
abortions may have regrets afterwards. She informed the
committee of the only large scale, long-term study she read,
which was a Czechoslovakian study. This was a study that was
performed when Czechoslovakia was part of the Soviet Union and
although abortion was fairly easy to obtain in Russia, there were
several criteria that had to be met in order to obtain an
abortion in Czechoslovakia. This study was in regard to women
who wanted an abortion, but were refused. A woman who wanted an
abortion was someone who requested an abortion of the same
pregnancy three different times and had been refused.
Interestingly enough, over time most of these women could accept
that they had a baby that they had not initially wanted.
However, upon study of these children through about age 30, these
children experienced more psychiatric problems and more of these
children went to jail than children of the same socioeconomic
class. In regard to [SSHB 329], Ms. Bollenbach interpreted this
bill as [attempting to] prevent women from getting abortions.
However, she felt that there are enough problems in Alaska to
increase the number of unwanted children. She remarked that Dr.
Whitefield=s testimony was excellent.
Number 0371
BARBARA CRAVER, Attorney, noted that she is a municipal attorney
for the City & Borough of Juneau. She stated that she was not in
favor of this bill. She informed the committee that she would
address her reasons, as an attorney, in regard to why a person
that is Pro-Life would think this is not a good bill. She felt
that Pro-Choice [advocates], including herself, would view this
bill as another obstacle. However, she believed that a Pro-Life
[advocate] could still find this bill objectionable, especially
if the person is an attorney.
MS. CRAVER pointed out that this bill is repetitive as AS
09.55.556 requires informed consent for every medical procedure,
which would include abortions, and the statute further says that
a physician who fails to give informed consent would be liable.
This bill goes very far in regard to what this legislature
believes informed consent should be in the case of a special
medical procedure, which is unprecedented. She didn=t believe
anyone would disagree that this is a large burden on someone who
decides to go through this medical procedure. There is no other
24-hour waiting period on anyone; moreover, informed consent is
not defined elsewhere for any type of medical procedure.
MS. CRAVER questioned what problem this bill attempts to fix.
She believes that the supporters of this bill are well-meaning
people. She recalled that Representative Coghill said that he
felt that many women are not given information and that he
supports the dignity of women and of life. Ms. Craver suggested
that the best way to provide information is through education
such as sex education in the schools and public information. She
emphasized that she didn=t believe there is any evidence that
this is a problem in Alaska. There doesn=t seem to be any
evidence beyond anecdotal evidence, that women occasionally or
maybe even frequently regret [having an abortion]. However,
people regret many things in their life and one moves on and does
the best he/she can.
MS. CRAVER said she didn=t believe that there is anything in the
current law that doesn=t support giving informed consent and
placing the physician liable for giving a patient fully informed
consent. Furthermore, she didn=t believe that this legislation
supports the dignity of women but rather singles out women as
people who need special help making a serious decision. Ms.
Carver said, AI think that me and my physician can make that
decision. I think that those who are Pro-Life can feel confident
that women do not enter this lightly.@ Therefore, she suggested
that even for those who are Pro-Life, there are some legal and
procedural reasons why this legislation is repetitious,
duplicative and unfairly intrusive on women without any evidence
of a problem.
Number 0579
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), testified via teleconference from Anchorage. She
asked if the committee had received a copy of her four-page
position paper.
CHAIRMAN KOTT replied yes.
MS. RUDINGER noted, then, that since the committee has her
written remarks she would be brief. She informed the committee
that the Department of Law testified in the Senate Judiciary
Committee last week that this legislation is unconstitutional.
Ms. Rudinger supported [the Department of Law=s] position. She
said that it is the AkCLU=s analysis that the Casey case is
irrelevant. The Planned Parenthood of Southeastern Pennsylvania
v. Casey is a 1992 decision from the U.S. Supreme Court that did
uphold a 24-hour waiting period and informed consent provision.
She pointed out:
However, that legal analysis is not relevant in Alaska
court. Alaska is one of several states that evaluate
restrictions on women=s reproductive choices under the
stricter standard of judicial review established by the
U.S. Supreme Court in Roe v. Wade in 1973. Therefore,
the Casey analysis and conclusion don=t apply if an
Alaska court is going to review HB 329. It=s our
opinion that this bill is unconstitutional under the
recent Alaska Supreme Court decision in 1997, Valley
Hospital Association v. Mat-Su Coalition for Choice.
MR. RUDINGER said that beyond the AkCLU=s concerns that [SSHB
329] violates the Alaska State Constitution, there are many
reasons why this legislation is poor public policy. She noted
that many of her arguments in her position paper have already
been eloquently articulated by prior speakers and thus she would
only focus on one issue that had not been thoroughly addressed
yet, which is the biased counseling requirements. These biased
counseling requirements violate standard medical practice and
invade the privacy of the doctor-patient relationship.
MS. RUDINGER continued. As mentioned by Ms. Craver, she said,
this bill requires a doctor to supply all the state mandated
information to every women in every instance in order to be safe
and avoid liability. However, the state imposed Alitany@ may
conflict with the doctor=s ethical responsibility to provide a
patient with the best medical advice for that patient and her
individual circumstances. She remarked that it is inconceivable
that DHSS would be able to develop a pamphlet that would be
appropriate for every type of patient in various circumstances.
Therefore, even if a doctor feels that this information is not
appropriate for a particular woman, the doctor still must
Athrust@ it upon the woman in order to avoid liability. For
example, she felt that everyone could agree that it is pointless
and cruel to inform a rape or incest victim that the Afather@ is
financially liable if the woman carries the pregnancy to term.
MS. RUDINGER continued. She offered her belief that everyone
could agree it would also be cruel to inform a woman with a fetus
with severe impairments - such that it could not survive outside
of the womb - that the Aunborn child@ would be 20 weeks old at
the time of the abortion. Additionally, under this legislation
doctors are forced to provide nonmedical information such as the
availability of child support; the doctor may not be qualified to
speak about such information, and furthermore it is irrelevant to
the doctor=s ethical obligation to provide the best medical care
[and] advice to a patient.
MS. RUDINGER echoed earlier testimony that the American Medical
Association (AMA) had resolved to oppose such measures. She also
echoed earlier comments in regard to the medically inaccurate
definitions included in the bill. She cited the definitions of
Afertilization,@ Agestational age@ and Apregnancy@ as being
medically inaccurate, which Dr. Isada and Dr. Whitefield
attempted to address. Ms. Rudinger said this [legislation] is
not something that should be codified into law. Alaska already
has regulations and laws in place. In conclusion, Ms. Rudinger
strongly urged the committee not to pass the bill as it poor
public policy and unconstitutional.
Number 0820
FRANCES HALLGREN testified next via teleconference from Delta
Junction. Ms. Hallgren remarked that she is insulted by previous
testimony in regard to [doctors] knowing which facts she should
hear and which she should not. She noted that she is weary of
battling doctors that have their own agendas or biases as well as
financial interest in regard to women and their rights, health
and intelligence. Female doctors as well as male doctors are
guilty of insulting women by providing only the facts that
support their idea of what a woman should do in a tough
pregnancy. Not all doctors are trustworthy. She said that as an
intelligent woman, she wanted to know all the facts [in order] to
make an informed decision. Furthermore, she believes that the
24-hour waiting period is essential in order that the person can
gather all the facts as well as process and assess all those
facts before making a decision. She didn=t believe that [the 24-
hour waiting period] is an undue burden as this is a decision
that will affect the rest of her life mentally, physically and
emotionally; that has been proven by many studies over the last
few years.
MS. HALLGREN related her belief that passage of [SSHB 329] is
essential to protect women from those doctors who advance their
own views on women. She charged that doctors are making biased
decisions [by providing only the information that they believe
the woman can handle]. Although doctors probably mean well when
they provide the facts that they believe to be pertinent, she
suggested that the doctors could provide a patient with all the
facts and still provide their counsel and advice. Ms. Hallgren
urged the passage of this bill.
EMILY JOSLIN testified via teleconference from Delta Junction.
She indicated that Akilling babies@ is not right.
Number 1013
KAREN VOSBURGH, Executive Director, Alaska Right to Life,
testified via teleconference from the Mat-Su Valley. Ms.
Vosburgh stated that this legislation is not designed to prevent
abortions but rather inform women and men by providing them
desperately necessary information. In any medical situation,
save this situation [abortion], information is provided about the
procedure. However, this situation is probably the most life-
changing situation that a woman and man would find themselves in.
She stressed, AInformation is not a harmful thing. Information
is a good thing.@ She was sure that everyone would agree [that
providing information is a good practice]. In regard to the pro-
abortion people bringing up rape, Ms. Vosburgh remarked that
rape, in relation to abortion, is a very rare instance as it
accounts for about 5 percent of all abortions. She informed the
committee that 95 percent of abortions are - Athey=re like birth
control, I guess is a way to put it.@
MS. VOSBURGH recognized that doctors and nurses are a bit
distressed in regard to the meaning and definitions in this bill.
However, that can be addressed. She noted that in the House HES
committee, one of the doctors didn=t know [the definition] of
Afetus.@ The pro-abortion people used Afetus@ as a sterile
word; however, Afetus@ is a Latin term meaning "little one."
She said, AAnd that=s exactly what they are: they are just very
small human beings.@ Ms. Vosburgh mentioned that she personally
knew several women who have had abortions and those women were
not informed. [The abortion] was a devastating thing from which
they are still trying to recover. Therefore, she reiterated the
need for women to be informed in regard to this crucial decision.
She remarked that several doctors and nurses who believe in this
legislation [won=t] be submitting written testimony.
MS. VOSBURGH then turned to the issue of breast cancer, which she
stressed is significant. She informed the committee that there
is a case in South Dakota regarding breast cancer information
that was provided to a woman seeking an abortion. The clinic
told this woman that the information was not true and that the
[breast cancer] studies were sloppy. Although this woman does
not have breast cancer, she brought this lawsuit because there
are significant findings in several studies.
MS. VOSBURGH quoted a Pro-Choice doctor as follows: AI have
three sisters with breast cancer and I resent people messing with
the scientific data to further their own agenda be they Pro-
Choice or Pro-Life. I would have loved to have found no
association between breast cancer and abortion, but our research
is rock solid and our data is accurate.@ Ms. Vosburgh stated
that there is a strong connection between breast cancer and
abortion which women need to know. Furthermore, there are over
100 potential complications associated with abortion that women
should be aware of. Moreover, the psychological damage is
unbelievable. Although pro-abortion people say Ait=s no big
deal,@ she informed the committee that to women that have had
abortions, it is a big deal and it does change ones life. The
least that can be done is to inform these women in regard to what
can happen to them physically and psychologically as well as to
inform them regarding the development of the baby.
CHAIRMAN KOTT asked if anyone else in Juneau or via
teleconference, besides the Department of Law, who would like to
testify. There being no one, he turned to the Department of Law.
Number 1250
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL), noted
that the memorandum in the committee packet was prepared because
she was unable to attend the House Health, Education and Social
Services Standing Committee [meeting]. She recalled that
Representative Coghill had indicated the committee might be
hearing a challenge to this bill from DOL. However, she pointed
out that when DOL appears before legislative committees, the
department is generally present to inform [the
committees/legislators]. The department has to bring attention
to any of the legal infirmities and, in particular, any
constitutional difficulties that may be created by a piece of
legislation. Therefore, Ms. Bomengen said it is in that role
that she appears before the committee today.
MS. BOMENGEN turned to the bill before the committee and noted
that the most important focus of this bill is the constitutional
infirmities that DOL sees. There has been testimony that this
bill is constitutional under Planned Parenthood v. Casey. She
said:
However, the Alaska Supreme Court in the Valley
Hospital v. Mat-Su Coalition case explicitly rejected
the test of Planned Parenthood v. Casey, which simply
requires the state to, in its placing restrictions on
abortion availability, to not impose an undue burden.
In [the] Valley Hospital case, the [Alaska Supreme]
Court instead adopted the Roe v. Wade test, which
determines that abortion is a fundamental right that
can be legally constrained only when those constraints
are justified by a compelling state interest not simply
a legitimate interest or even a substantial interest,
but a compelling state interest and that no less
restrictive means could advance this interest.
MS. BOMENGEN recognized that there are a number of states that
have imposed restrictions [such as those contemplated in SSHB
329] and they have withstood some challenges under those state
constitutions. However, when the case comes before the Alaska
Supreme Court, one can be fairly certain that many of these
restrictions would not be found constitutional under the Roe v.
Wade test, in particular the 24-hour waiting period.
Number 1430
MS. BOMENGEN informed the committee that by creating this
legislation, there will inevitably be a cost to the state. In
general, DOL does not submit a fiscal note when it would be based
upon the speculation of a lawsuit being brought. However, it is
very likely that a constitutional challenge will be leveled
against this legislation and thus there will be a cost. The
department conservatively estimates that the cost would be in the
range of $50,000 and if the suit were lost, that amount would, at
a minimum, be doubled.
MS. BOMENGEN turned to Section 1, which contains some
inaccuracies of fact that the department [DHSS] would be required
to place in the pamphlet. She also said that she would focus on
the inaccuracies of the definitions. She noted, AI=m not a
medical person so I don=t have all of the information, but what
the most accurate medical definitions would be.@ However, the
current definitions of Afertilization@ and Aconception@ are
confusing and there is no reference to implantation. Therefore,
this legislation would, at a minimum, create confusion in the
administration of other statutes related to abortion rights. She
directed the committee to the definition of Aabortion@ in AS
18.16.090. In the case of emergency contraception [and] IUDs a
great deal of confusion would be created in how these laws would
be administered. Physicians would be left in a quandary
regarding their obligations under the law.
MS. BOMENGEN continued by addressing the problem that [the
definitions] raise under Section 3, which imposes civil liability
for compensatory and punitive damages - that can be considerable
- for not providing specific information. She echoed earlier
comments that this would have a chilling effect on the
availability of abortions in certain jurisdictions in which the
providers were uncertain of the law. Therefore, it would
probably have a chilling effect on the availability of
practitioners willing to risk their medical practice to provide
[abortion services].
Number 1638
REPRESENTATIVE CROFT pointed out that Section 3 refers to AA
person who performs or induces ...@. He stated that if a doctor
is incorrect in his/her estimate of Awhen medically accurate@ on
page 4, line 20, or Awhere appropriate@ on page 4, line 23, then
the doctor would have committed what would seem to be close to a
strict liability crime under Section 3.
MS. BOMENGEN agreed that is a risk with the current language.
She pointed out that Aknowingly@ only appears on page 4, line
11, as a lead in to the requirements of [AS] .060. Again,
physicians are put in a quandary regarding what is known and what
can be known when there is so much disagreement regarding what is
medically accurate. She predicted that a constitutional
challenge on that basis would probably be lost.
Number 1742
MS. BOMENGEN turned to [Section] 2 and noted that there has been
some confusion regarding what [Section] 2 achieves. All of the
provisions of AS 18.16.010 are fully set out with the addition of
paragraph (5) at the bottom of page 3, which is the provision
that really imposes the 24-hour waiting period and the signed
informed consent requirements. As pointed out in her letter, Ms.
Bomengen felt that it could be appropriate to revisit [Section 2,
paragraphs] (2) and (4) as there are problems with the
constitutionality of those two. [Section 2, paragraph] (3) is
presently under challenge and [paragraph] (1) may or may not be
[challenged] and she didn=t believe there is an opinion as to
whether that is constitutional. Therefore, if these provisions
are going to be set out again, it may be appropriate to address
those issues that the legislature and the state has been
informed about regarding the constitutionality of those
provisions. In regard to Section 3 of the bill, she pointed out
that physicians are already subject to liability for any
negligence. Furthermore, physicians do inform and obtain consent
[in order] to meet the requirements of sound medical practice.
Number 1878
MS. BOMENGEN moved on to Section 4 and noted that there is one
concern which was not mentioned in the letter. Alaska Statute
18.16.060(b) lists a number of items that must be met before
someone can sign the informed consent. Section 4, paragraph (3),
which requires the woman to be given a copy of the pamphlet as
described in the bill, poses a problem in the case of a woman
that doesn=t wish to be given the pamphlet. Therefore, she
suggested that it may be more appropriate to make the pamphlet
available to the woman versus thrusting it into her hands. Ms.
Bomengen cited another concern with Section 4 in that the
emergency provisions do not make any explicit reference to the
psychological health of the woman. Inclusion of a provision
regarding the psychological health of the woman would be more
constitutionally sound.
REPRESENTATIVE CROFT directed Ms. Bomengen to page 4, lines 9-13.
He asked if Ms. Bomengen read Section 4(a) to mean that if this
is complied with, one may, in the case of a medical emergency,
perform [an abortion]. Although it seems to be in the negative,
it would cause problems either way. He inquired as to how Ms.
Bomengen read that section; does one have to comply with
subsection (b) in a medical emergency. He asked if the bill is
silent in regard to a medical emergency as the bill does not
refer to Ain the case of a medical emergency, you shall@.
MS. BOMENGEN agreed that the bill does not say that. However,
the language AExcept in case of a medical emergency@ would be
useful in [supporting] that these provisions would not be
required.
REPRESENTATIVE CROFT agreed and asked if there is any place in
the bill which specifies what has to be done in a medical
emergency.
MS. BOMENGEN answered that she didn=t believe that there is
anything [in the bill] that clarifies that.
Number 2161
REPRESENTATIVE KERTTULA related her understanding that under
Alaska=s constitution, Alaska has broader rights and Alaska=s
court has chosen to follow an earlier decision, Roe v. Wade in
regard to determinations about abortion.
MS. BOMENGEN agreed with Representative Kerttula=s understanding.
She informed the committee that when the legislature was
considering a number of abortion-related bills in 1997, that was
prior to the Valley Hospital decision. The Valley Hospital
decision clarified which test would be applied to the restraints
placed on abortion rights in the State of Alaska. It was noted
[in the Valley Hospital decision] that the Alaska State
Constitution, Article I, Section 22, provided that.
Number 2253
REPRESENTATIVE COGHILL came forward to provide some closing
remarks. He thanked the committee for hearing the bill and noted
that he is not a constitutional lawyer. He maintained that what
the committee heard [from the Department of Law] was a challenge.
Furthermore, he felt that some of the Supreme Court cases at the
national level would challenge some of Alaska=s Supreme Court
rulings and he would be willing to assert some of that.
REPRESENTATIVE COGHILL stated that this bill is about getting the
best information for a woman who is legally able to consent to an
abortion. He said that he had no problem with that and affirmed
that he is Pro-Life. This is a national debate and thus he felt
that elevating this issue to this degree is not wrong. He
remarked that the reason some charge that the information [being
given to these women] is biased is because those folks are on the
other side of the issue. He informed the committee that [in the
pamphlet] he would include the gestational age of the baby as it
is the very reason Awe@ have the preamble to the [Alaska State]
Constitution, which he read as follows:
We the people of Alaska, grateful to God and to those
who pioneered this great land, in order to secure and
transmit to succeeding generations our heritage of
political, civil, and religious liberty within the
Union of States, do ordain and establish this
constitution for the State of Alaska.
Furthermore, Article I says that people have Athe principles
that all persons have a natural right to life@. Therefore, he
felt that the state does have a compelling interest to show the
life in the gestational period. He acknowledged that this is a
debate that will rage nationally as well as locally. However, he
indicated that this debate should occur here [in the legislature]
as it is the branch of government in which the people have their
say. [A small portion of Representative Coghill=s remarks were
not recorded due to a tape change.]
TAPE 00-55, SIDE A
REPRESENTATIVE COGHILL reiterated the need for women to have the
best medical information possible. Although he recognized that
everyone is not going to agree on this issue, he stressed that
providing information to women facing this choice is not against
women. He affirmed that he is asking that life be valued. He
charged that if eagle eggs were being smashed, [society] would
find out how much the progeny of eagles is valued and thus they
would be protected. He stated that this is not necessarily about
protecting the baby, although he would purport to do so, but
rather getting at the information. On that point, he agreed that
education is an answer. From the home to school to adulthood, it
should be taught how to properly produce or not produce, if one
so chooses because once there is the production, there is the
responsibility. This [legislation] provides information about
that responsibility. In regard to whether this is targeted at
women, Representative Coghill said yes because only one gender
produces. In conclusion, Representative Coghill thanked everyone
who testified.
Number 0204
CHAIRMAN KOTT asked if there were questions for the sponsor.
There being none, he closed the public debate. He noted that the
committee had only, in the last hour-and-a-half, received the
comments of the Department of Law regarding the constitutional
issues. Therefore, he believed it prudent to review these
issues. Chairman Kott announced that [SSHB 329] would be held.
HB 164 - FISH & GAME LICENSING BY ELECTRONICS
Number 0362
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 164, "An Act relating to electronic application
for and issuance of licenses, permits, and tags issued by the
Department of Fish and Game; to violations regarding a license,
permit, or tag applied for or issued electronically; and
providing for an effective date." [The bill was sponsored by the
House Rules Committee by request of the Governor. Before the
committee was CSHB 164(RES).]
Number 0429
KEVIN BROOKS, Director, Division of Administrative Services,
Alaska Department of Fish & Game (ADF&G), came forward to explain
the need for the legislation. Noting that administration of the
licensing program falls under his purview, he said ADF&G is
undertaking an ongoing effort to modernize, streamline and
enhance customer service in the licensing program. Although
ADF&G has instituted an Internet application process for
individuals to apply for hunting or fishing licenses, it still
involves paper. Now ADF&G hopes to provide, in statute, for an
opportunity to issue a license electronically. That follows a
natural progression of what the department has done with the
Internet application and some 1-800 telephone number
applications, as well as other attempts to enhance customer
service.
MR. BROOKS informed the committee that ADF&G is working with
other states to determine the best practices. Some states use
their lottery systems, while others use a so-called smart number.
There are any number of ways to approach the issuance of
licenses. In any case, ADF&G wants to keep up with technology
and make it easy for both residents and nonresidents to apply for
and receive licenses.
Number 0558
MR. BROOKS explained the current Internet application process.
An individual goes online to order a license - hunting or fishing
tags - and pays with a credit card; within a couple of days,
ADF&G sends that license to the applicant. Eventually, the
department wants to be able to let someone "hit the field" right
away, which might entail a smart number or identification card.
He pointed out that ADF&G is trying to determine what would work
best in Alaska, including working with the Department of Public
Safety (DPS) and the Department of Law to ensure that enforcement
or prosecution efforts by those departments aren't compromised by
whatever ADF&G does with licensing. The bill addresses those
concerns so that ADF&G has a consensus with DPS on anything they
might do.
Number 0617
CHAIRMAN KOTT asked whether the department issues any licenses
over the Internet using a secure means.
MR. BROOKS indicated that ultimately the whole process might be
paperless. The application process on the Internet is paperless
now, but still involves the department to mail out a license
afterwards; that system was brought up on the Internet around
November 1. A person who signs on to ADF&G's website can go into
that application, and punch in the credit card number. That
system has sold a couple of thousand of those licenses already,
and they expect that to take off with the season approaching. In
addition, they are looking at McNeil River permits, proxy hunts,
personal use permits, and [drawings for hunts] that the Division
[of Wildlife Conservation] implements, for example. The
department views those as opportunities to reach out to customers
and make it easier for them to get licenses so that they can hit
the field and enjoy the resources.
CHAIRMAN KOTT asked whether ADF&G notifies a person who has
applied over the Internet that the application has been received.
MR. BROOKS answered that ADF&G's system works much in the same
way as it would if signing on to any other entity on the
Internet; there is a confirmation online with a code, and ADF&G
will ship out a license within 48 hours. It is working fine, and
that is how he bought his own license for the year 2000. He
noted that people have been "hitting" the site from Europe and
the Lower 48. That piece is in place and working quite well.
Number 0758
CHAIRMAN KOTT asked if the bill sets out that the license will be
sent out in 48 hours.
MR. BROOKS pointed out that HB 164 does not address the issuance.
He reiterated that the department is already able to do that
under current statute. The policy has been to turn around the
issuance of the license within 48 hours in order to ensure that a
person in the Lower 48 has the license in his/her hands before
leaving for their trip. He posed a situation under HB 164 in
which someone from the Lower 48, who had not obtained a license
before coming in to Alaska, would be able to purchase the license
via the Internet and receive a confirmation number that would
allow the person to hunt or fish without having to wait for the
paper license.
CHAIRMAN KOTT asked if the confirmation number would be what such
an individual would need to show an officer in the field.
MR. BROOKS explained that the "smart number" would be easily
identifiable by an enforcement officer. The bill would require
that those purchasing their license in this manner would agree to
carry a picture identification. Therefore, it would enhance what
[the Department of] Public Safety currently has because only the
license is currently required. He informed the committee that in
some states the first four or so digits are randomly generated
and then others would be encoded to indicate gender, weight,
height and hair color. Therefore, the number with photo
identification would allow one to determine whether it is the
appropriate individual. Furthermore, the number would indicate
the type of license. This type of number has been used in
Georgia and other states.
Number 0960
REPRESENTATIVE MURKOWSKI inquired as to how an individual's
residency would be verified.
MR. BROOKS noted that the smart number is one concept of how this
could work. With a smart number, one of the items that would be
encoded in the number would be whether the individual is a
resident or a nonresident.
REPRESENTATIVE MURKOWSKI posed a situation in which an individual
from Oklahoma applies for a license over the Internet and says
that he/she is an Alaskan resident. She inquired as to how the
department would confirm this individual is not an Alaskan
resident and would be required to pay the out-of-state fees.
MR. BROOKS informed the committee that such has been encountered
with the current Internet application. Therefore, the Internet
license includes the same affirmation that is included on the
paper license. He pointed out that there is no greater risk of
this over the Internet than already would exist for paper
applicants.
REPRESENTATIVE MURKOWSKI pointed out that when she obtains her
fishing license every year, she has to show her Alaska driver's
license. She stressed her understanding that in order to obtain
a license [at the Alaskan residency rate], one has to show
Alaskan identification.
MR. BROOKS clarified that photo identification is not absolutely
required, although [an Alaskan driver's license] is often used.
REPRESENTATIVE MURKOWSKI asked if the application says, "I swear
or affirm that everything that I've said is true and that this
may be subject to a penalty if I'm lying."
MR. BROOKS agreed that "in so many words" that is what the
application says. In further response to Representative
Murkowski, Mr. Brooks affirmed that there are penalties for
fraud. He noted that [the department] has been working very
closely with the Department of Law and the Division of Public
Safety in order to ensure that nothing is being done to
compromise their efforts.
Number 1149
REPRESENTATIVE MURKOWSKI commented that she hated to make it too
easy for someone [to receive the Alaska rate through fraud]
without any verification. She recognized that the current system
is not foolproof either.
MR. BROOKS remarked that the same discussions have been held
internally [in the department]. There will always be those who
will try to "get over" and cheat [the system]. He questioned
whether making this easier for the general population, that are
honest, would encourage others to be criminals who would not
otherwise be. He indicated that what was determined [from those
internal discussions] was that simplifying the application
process would not necessarily make criminals out of honest
people.
REPRESENTATIVE MURKOWSKI mentioned reviewing the penalties
associated with lying on an application and strengthening those.
CHAIRMAN KOTT inquired as to how lost licenses or confirmation
numbers would be handled.
MR. BROOKS answered that currently an individual can obtain a
duplicate. In regard to a lost confirmation number, that could
be called in and confirmed over the phone in order to provide
that lost number. This could be done after providing adequate
information so that the department knew who the individual was.
He likened the process to that of calling in for credit card
information in which the company requests information for
verification that the individual speaking is who he/she claims to
be.
MR. BROOKS returned to Representative Murkowski's comments and
noted that perhaps, the example of the person coming to Alaska
for a short fishing trip is not the best. The person who will
really be offended by the nonresident fees would be a person
purchasing an annual license.
Number 1321
CHAIRMAN KOTT understood, then, that an individual would have to
have in his/her possession, some form of identification.
MR. BROOKS explained that if an individual, with a confirmation
number, is out in the field he/she must carry photo
identification, which is more than under the current
requirements. He noted that this electronic system is meant to
compliment the current paper system not replace it.
CHAIRMAN KOTT surmised, then, that [the requirement to carry
photo identification] would address the problem of an out-of-
state resident that may want to defraud the State of Alaska
because the person would have to present photo identification, a
license from the State of Alaska.
REPRESENTATIVE CROFT mentioned [the possibility of folks claiming
to be] senior citizens [in order to pay the reduced senior
citizen fee] of $5 for a license.
CHAIRMAN KOTT inquired as to how Canadians from the Yukon are
handled.
MR. BROOKS pointed out that this licensing program is
administered through a network of 1,500 vendors "and so we're
going to go to all our Haines vendors and say, 'Oh, by the way if
you get someone from the Yukon, with this zip code or whatever,
sell them a resident license.'" He acknowledged that would be
problematic. However, if that passes, [the department] will poll
its database and send out a letter saying that the legislature
has allowed Yukon residents to be treated as Alaskans. This
would be sent to those who have purchased a license in the past
and the individual would be notified of the ability to apply via
the Internet, which would not place a burden on the vendors. He
commented that [the department] would not initiate it, but could
do it.
Number 1460
CHAIRMAN KOTT asked what the net cost would be of using the
Internet to purchase the license via VISA.
MR. BROOKS explained that what is contemplated under HB 164 is
that there be a compensation system that pays the vendor 5
percent of the gross sales plus $1 per item sold. Therefore, for
a $25 license it would amount to $2.25. He pointed out that the
bill limits the compensation for an electronic vendor by capping
the amount at the lesser of the existing compensation or $3.00.
Therefore, Mr. Brooks envisioned this to occur within the
confines of the existing compensation package for the vendor.
CHAIRMAN KOTT suggested having this available at a kiosk in the
Anchorage International Airport.
MR. BROOKS commented, "Just wait." He also commented that in
order to have a kiosk in the Anchorage International Airport, the
license process would almost have to be paperless. Otherwise,
someone would have to be present to issue the license or tags.
He reiterated that this [Internet application] is seen as a
compliment to the existing system. He noted that with a kiosk
system, the kiosk could be placed in some of the larger stores,
which he indicated would be mutually beneficial as the store is
really interested in outfitting the individual and [the
department] is interested in obtaining a database and issuing the
license. Mr. Brooks pointed out that this system would be
helpful to the extent that individuals themselves can enter the
data and there can be a real time updated database.
REPRESENTATIVE MURKOWSKI inquired as to what would happen with
the king salmon tags as the proposed system would not have the
capability.
MR. BROOKS acknowledged that this is one of the obstacles. He
remarked that in some cases the back of the license is used as a
harvest record. He noted that big game tags also pose another
challenge. Therefore, [the department] will be required to work
with Public Safety in order to avoid a situation in which Public
Safety is compromised. In regard to the king salmon stamp, that
is a revenue generator. The thinking is that a number could also
be assigned to the king salmon stamp. However, the duck stamps
and the waterfowl stamps have an art aspect and thus it will take
some work to iron these things out. Still, the statutes need to
be in place to move forward on this and eliminate the paper
requirement.
CHAIRMAN KOTT called an at-ease at 5:03 p.m. and reconvened the
meeting in less than a minute. He noted that there was no
additional testimony.
Number 1734
REPRESENTATIVE MURKOWSKI moved to report CSHB 164(RES) out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, it was so ordered
and CSHB 164(RES) was reported from the House Judiciary Standing
Committee.
CHAIRMAN KOTT recessed the House Judiciary Standing Committee to
the call of the chair at 5:05 p.m. The committee was called back
to order at 7:42 p.m., at which time the following members were
present: Representatives Kott, James, Rokeberg, Murkowski,
Kerttula and Croft.
SB 24-REGULATIONS: ADOPTION & JUDICIAL REVIEW
CHAIRMAN KOTT announced that the next order of business would be
CS FOR SENATE BILL NO. 24(FIN) am, "An Act relating to
regulations; amending Rule 65, Alaska Rules of Civil Procedure;
and providing for an effective date."
REPRESENTATIVE JAMES moved to adopt the proposed committee
substitute (CS), version LS0274\L, Bannister, 4/7/00, as the
working document before the committee. There being no objection,
it was so ordered and Version L was before the committee.
Number 1822
SENATOR DAVE DONLEY, Alaska State Legislature, testified as the
sponsor of SB 24. He explained that version L streamlines the
notification process to take into consideration the advances of
the Internet and allow abbreviated public notices with the
maximum information available to the public through other
technologies. He noted that Sections 1-4 were in the original
bill and haven't been changed. He informed the committee that
the only changes encompassed in version L is the deletion of what
were Sections 3-5 and any references to those sections.
Therefore, the references to standards, burdens and cost benefit
are not included in version L. What is left is the supplemental
motives provisions, which have been significantly streamlined.
SENATOR DONLEY pointed out that it is a five-year pilot program
that would apply to the Department of Environmental Conservation
(DEC). He clarified that the department would be required to
notify the public when the department intends to adopt or
substantially change a regulation. Additionally, this pilot
program establishes a two-year window in which agencies should
adopt regulations. He noted that currently there is no guideline
for that. There would also be a 90-day window to specify whether
they intend to adopt regulations. If for some reason they fail
to adopt regulations within the two years, a report must be filed
explaining why the regulations couldn't be adopted in the two
years. Senator Donley specified that the intent is not to stop
the adoption of regulations, but rather to encourage adoption of
regulations in a timely manner.
REPRESENTATIVE JAMES inquired as to how this deals with the state
agencies when they don't want to do it.
SENATOR DONLEY stated that this will be the first time that there
is a fixed guideline of two years to [adopt regulations]. If the
intent is to encourage state agencies to complete the process,
the penalty is the problem in that penalties, in general, negate
what has been performed. Therefore, all that is requested when
the process is not completed in two years is a written
explanation as to why. Senator Donley related his belief that
the Department of Law takes these guidelines seriously.
REPRESENTATIVE JAMES referred to Section 5, which speaks to the
proposed adoption amendment or repeal published in the Alaska
Administrative Journal. She recalled that [legislation] went
through that said that was not going to occur anymore. She asked
if it is going to still be referred to as the Alaska
Administrative Journal even when on the Internet.
HANS NEIDIG, Staff to Senator Dave Donley, Alaska State
Legislature, surmised that Representative James was referring to
Senator Leman's amendment that has been incorporated in several
bills moving through the legislature. He specified, "This CS
still has Senator Leman's amendment that was added on to this in
earlier versions ... and it would take on that subsequent
language and be noticed under the auspices of that piece of
legislation [for] this other sections of this bill."
SENATOR DONLEY informed the committee that Pam LaBolle is present
and the Alaska State Chamber supports this legislation. He said
that he believes all of the concerns of the various groups have
been worked out. Although there is not much left of this
legislation, what is left is good.
REPRESENTATIVE KERTTULA inquired as to why this only speaks to
DEC.
SENATOR DONLEY pointed out that at the beginning, the bill was
broader in scope. However, the Administration recommended
narrowing the scope to one agency or one department in order to
experiment with these changes.
Number 2128
JANICE ADAIR, Director, Division of Environmental Health,
Department of Environmental Conservation, testified via
teleconference from Anchorage. She began by thanking Senator
Donley and his staff for the changes they made to SB 24 as it is
a significant improvement from earlier versions. She believes
that Sections 2 and 5 [incorporate] Senator Leman's amendment,
which has been vehemently opposed by the newspaper industry. She
said, "Frankly, we don't want to force something on them that
they're not ready to accept. We'd rather keep working with them
on a mutually agreeable solution to have public notice more
meaningful."
MS. ADAIR turned to the continuous renotice of the regulations
whenever there are changes made. She interpreted the bill to say
that notice only has to be sent to those who have previously
commented. However, the department feels that it would be
preferable to have a single round of renotice rather than
something that could potentially be never-ending. Ms. Adair then
turned to the five-year trial period, which she calculated to
refer to the first year of a new legislature. However, she felt
that it might be better to be the second year of the legislature
as those members may be more able to make an educated decision
regarding whether this pilot project should be expanded or
continued. The first year of a legislature can mean a lot of new
people in office, who don't have the experience to understand
this experiment.
Number 2268
REPRESENTATIVE JAMES mentioned the portion of Ms. Adair's
testimony regarding not having so many responses from the public.
Representative James said that she hears the public say that they
give their testimony or suggestions and then they never hear
back. Therefore, she felt that notice to people who have
participated in the process is very important if the public is
ever to gain confidence in this system.
MS. ADAIR agreed. She pointed out that it is for that reason
that DEC does responsiveness summaries. Anyone who comments on a
regulation that DEC proposes receives a responsiveness summary,
which summarizes the comments that were received and explains
what was done in relation to those responses. She agreed that if
people can take the time to write and tell us what they think
about a proposal, then the least the department can do is provide
the aforementioned response. However, responsiveness summaries
are different than what is proposed in SB 24. She explained that
per SB 24 anytime there is a change made as a result of a public
comment, the department sends out another notice and there is
another comment period. Although the two may be complimentary,
they are very different. The renotice can delay the final
adoption of a regulation, which is frustrating to people as well.
REPRESENTATIVE JAMES said she understood the concern; she was
thinking of specific regulations, regulations with such drastic
changes that a comment [period] was almost necessary again. If
this, as a pilot program, is done and the subject is not very
controversial, the department could probably "short circuit it."
However, if it is controversial, Representative James felt those
steps are important.
MS. ADAIR noted that internally DEC has discussed some
fundamental changes to the Administrative Procedure Act. One of
those changes would be the ability to talk with those people who
have commented in order to discuss with the person how specific
language changes would affect their concerns. However, the way
the Administrative Procedures Act was written does not allow
such.
REPRESENTATIVE JAMES remarked that she understands that
frustration; however, she also understands why that rule exists.
MS. ADAIR concurred.
Number 2433
SENATOR DONLEY spoke to the renoticing portion of the bill. He
explained that SB 24 only requires renoticing when there is a
substantial change, a change such that those who received the
original notice would not understand or know what changes were
made. He surmised that once there have been a couple of
substantial changes, the changes should become more fine-tuning
and not substantial. The bill provides that if an agency feels
that the change is not substantial, then the agency performs a
report, which is made available [to the public], explaining why
the agency doesn't feel it was a substantial change. He stressed
that if there is a substantial change, he would like the public
to know and have the opportunity to comment.
CHAIRMAN KOTT inquired as to Senator Donley's thoughts regarding
the five-year provision.
SENATOR DONLEY answered that he didn't feel strongly about that
provision; however, he didn't believe the experimental time
period should be less than five years because some of the
provisions won't even begin to take effect [until then].
TAPE 00-55, SIDE B
CHAIRMAN KOTT commented that he would think the desire would be
to keep it an even number.
REPRESENTATIVE JAMES stated that she didn't totally agree with
Ms. Adair's remarks that there may be new [legislators] who don't
know what to do. Although she can review her time with the
legislature and see what she has learned, she also knows that she
can be persuaded by other [legislators] as opposed to folks at
home.
Number 0025
CHAIRMAN KOTT referred to Sections 2 and 5, which deal with the
newspaper notice. He asked if this was added at the sponsor's
request.
SENATOR DONLEY clarified that [that language] was added by this
committee the last time this bill was before the committee. He
pointed out that Senator Leman had brought over an amendment,
which the committee chose to incorporate in SB 24.
CHAIRMAN KOTT recalled that something very similar [to these
provisions] was attempted in the House Rules Committee on another
matter. That amendment was rejected in the House Rules
Committee. Chairman Kott related his belief that [the language
in Sections 2 and 5] jeopardizes the passage of the bill.
Chairman Kott informed the committee that he would be inclined to
delete those two sections.
SENATOR DONLEY said, in response to Representative Croft, that he
didn't mind the deletion of those sections.
Number 0160
REPRESENTATIVE CROFT moved that the committee adopt Amendment 1,
which would delete Sections 2 and 5 of Version L.
REPRESENTATIVE ROKEBERG objected, but then withdrew his
objection.
CHAIRMAN KOTT announced, then, that Amendment 1 was adopted and
thus Sections 2 and 5 would be deleted.
REPRESENTATIVE CROFT recalled that there was a proposal being
considered regarding whether Sections 8 and 9 of this Act should
take effect July 2005 or 2006. He inquired as to Senator
Donley's opinion on that.
SENATOR DONLEY reiterated that he didn't feel strongly on that
proposal, but would not go less than five years because there
needs to be time to determine how the [experiment] is going. He
said that he didn't have a problem with changing it to six years.
CHAIRMAN KOTT surmised that Ms. Adair was suggesting it would be
better [for Sections 8 and 9 to take effect] in the second year
of a legislature. He said he agreed with Representative James on
this matter.
Number 0221
REPRESENTATIVE ROKEBERG moved to report HCS CSSB 24, version
LS0274\L, Bannister, 4/7/00, as amended out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, it was so ordered and HCS CSSB 24(JUD)
was reported from the House Judiciary Standing Committee.
HB 211-HEALTH CARE INSURANCE
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 211, "An Act relating to liability for providing
managed care services, to regulation of managed care insurance
plans, and to patient rights and prohibited practices under
health insurance; and providing for an effective date."
Number 0252
REPRESENTATIVE ROKEBERG informed the committee that there are
letters of endorsement for Version N as amended from the Alaska
State Medical Association (ASMA) and the Alaska Physicians &
Surgeons, Incorporated. Representative Rokeberg explained that
the these groups are asking that the committee "recede from our
amendment by adopting the definition on medical necessity and go
with all the other amendments that the subcommittee had done."
Therefore, Representative Rokeberg said he understood that the
doctors and the insurance industry are in agreement. The ASMA
letter recognizes that the short time remaining in session along
with the complexity of the two issues [the liability issue and
the medical necessity issue] does not provide those two issues
with the amount of attention warranted for the legislature to
make a reasoned policy decision this session; ASMA believes the
bill [version N as amended] should move forward.
REPRESENTATIVE MURKOWSKI pointed out that although ASMA and the
Alaska Physicians & Surgeons, Inc., support Version N, that
version did not receive subcommittee recommendations.
REPRESENTATIVE ROKEBERG interjected that they'd supported Version
N as amended, which is basically Version S.
REPRESENTATIVE MURKOWSKI surmised, then, that [the support] is
for Version S without the "medical necessity" language.
CHAIRMAN KOTT called an at-ease at 8:11 p.m. and the committee
reconvened at 8:13 p.m.
Number 0380
DON ETHERIDGE, AFL-CIO, informed the committee that the AFL-CIO
is still opposed to HB 211. The trustees from the various Locals
have the same concerns as to the increasing cost to the [AFL-CIO]
membership. He noted that Mr. Ed Burgan, Brady Company, has
brought to his attention that AFL-CIO members could expect cost
increases to the membership due to HB 211.
REPRESENTATIVE ROKEBERG clarified that the primary cost drivers
are the medical necessity and the liability issues. He pointed
out that the point of service option is self-funding due to
underwriting differentials. Representative Rokeberg said, "The
only thing I think that could cost anything would be utilization
review, ... that model that's in the bill is being adopted by
most insurance companies in the state." Therefore, he did not
understand where this cost analysis is coming from, but he
offered to talk with Mr. Burgan about this. Representative
Rokeberg stated that he believes Mr. Burgan's estimates and
analysis is unfounded and incorrect. Furthermore, he believes
that the unions are largely unaffected as the unions are ERISA
(Employee Retirement and Income Security Act) covered. However,
he acknowledged that there are unions, although a minority, that
do have underwritten coverage from insurers that may not be
covered by ERISA.
REPRESENTATIVE ROKEBERG related his belief that the medical
necessity provisions of the external review procedures should
largely satisfy the concerns of [ASMA and the Alaska Physicians &
Surgeons, Incorporated] about medical necessity. The other issue
that was brought up was the three-step external review, which he
is "not sure it's a misunderstanding on their part what that
really is." He further noted that there was the desire to have a
policy statement from the legislature that said if there was any
ERISA jurisdiction that they would be exempt from it since they
are ERISA. Representative Rokeberg said he did not believe that
to be the correct policy call.
Number 0520
REPRESENTATIVE KERTTULA asked whether the deletion of the
liability and the medical necessity provisions would make the
bill more palatable.
MR. ETHERIDGE agreed that deletion of those two sections would
improve the bill. He suggested that Representative Rokeberg and
Mr. Burgan meet to discuss these issues before the bill proceeds
much farther.
REPRESENTATIVE ROKEBERG reminded Mr. Etheridge that he himself
considers this a patient's rights bill.
MR. ETHERIDGE commented that he views this as a doctor's rights
bill.
REPRESENTATIVE CROFT interjected that he would like to hear from
the other groups.
Number 0608
JEFF BULLOCK (ph), Alaska State Medical Association and the
Alaska Physicians & Surgeons, Inc., noted that the committee
should have the aforementioned letter(s) from these groups. He
clarified, "In the spirit of compromise, ..., we've come to the
table and pulled out two of the key sections that was really the
driving motivation behind the bill for the doctor's in the first
place. We're willing to take those out in hopes that we can get
a patient's bill of rights through this year...." He noted that
next year "we" would be back to address the liability and medical
necessity sections.
CHAIRMAN KOTT asked Mr. Bullock if he is comfortable with the
previous version.
MR. BULLOCK answered, "Comfortable, no. But it's something ...
that we feel that these are the two areas that have strong
concern with the insurance industry and the unions."
Furthermore, he said, there are other aspects to the bill that
make it worthwhile legislation.
REPRESENTATIVE MURKOWSKI pointed out that the effective date is
July 1, 2001. She surmised that this legislation could pass out
and next year the medical necessity and liability issue could be
worked on; thus the latter portion could catch up with this
legislation before the effective date.
MR. BULLOCK remarked that he had not noticed the effective date,
but commented that it worked for "us."
REPRESENTATIVE ROKEBERG explained that there is a delay due to
the (indisc.) contracts and things that need to work through the
system.
REPRESENTATIVE MURKOWSKI surmised that by that time, there may or
may not be federal legislation.
Number 0738
JERRY REINWAND, Lobbyist for Blue Cross, informed the committee
that he has sent the latest version to his clients, from whom he
has not yet heard from. He noted that "we" worked very closely
with the unions on this legislation, and through that Mr. Burgan
has pointed out a few issues that "our people" missed.
REPRESENTATIVE ROKEBERG noted that the testimony he'd heard at
the subcommittee meeting was in support of the version that came
out of subcommittee.
MR. REINWAND responded that the desire is to have a bill,
although he did not believe they ever favored any particular
version. He noted that the actual bill was not available until
the other night. After the medical necessity language was taken
out, he instructed them to put everything on hold. He said that
he would forward any word as soon as he heard.
CHAIRMAN KOTT commented that he believes the deletion of the
medical necessity language would improve the comfort level of
Blue Cross, AETNA, et cetera.
REPRESENTATIVE ROKEBERG informed the committee that he has had
contact with AETNA and Mr. Gordon Evans' organization, both of
which have assured him that they are supporting the bill with
that language removed. Representative Rokeberg characterized Mr.
Reinwand's testimony as a "minor waffle."
CHAIRMAN KOTT said that if it is the committee's will to remove
the medical necessity language, there are a couple of ways to do
so.
REPRESENTATIVE ROKEBERG suggested the easiest way is to take up
Version V and delete that section.
Number 0884
REPRESENTATIVE ROKEBERG made a motion that the committee rescind
its action in reporting CSHB 211(JUD), Version S as amended, out
of committee. There being no objection, it was so ordered.
Number 0933
REPRESENTATIVE JAMES made a motion that the committee adopt
Version V [LS0472\V, Ford, 4/7/00] as the working document.
There being no objection, it was so ordered and Version V was
before the committee.
REPRESENTATIVE ROKEBERG pointed out that on page 3, line 17,
after the word "acts", the word "or conduct" should appear.
[This was subsequently labeled technical Amendment 1.]
Number 0962
REPRESENTATIVE ROKEBERG moved that the committee adopt the
following, which was subsequently labeled Amendment 2.
Page 3, line 25 through page 4, line 5,
Delete subparagraph 2
Renumber accordingly.
There being no objection, Amendment 2 was adopted.
REPRESENTATIVE CROFT moved that the committee adopt Amendment 3,
which read as follows:
Page 1
Delete lines 4-7
REPRESENTATIVE CROFT commented that he does not believe that the
bill, in its current form, should be entitled the Alaska
patient's bill of rights. Representative Croft said he believes
that technical work is being done. However, the major concerns
of patients is being delayed and perhaps a future bill could be
more appropriately entitled the Alaska patient's bill of rights.
REPRESENTATIVE ROKEBERG objected and countered that this is a
patient's bill of rights and would be a significant benefit to
the citizens of this state. He specified that this bill allows a
new emergency room standard, a choice of physician, requires and
clarifies the external review process with peer review and
provides the elements of medical necessity within the peer
review. Furthermore, the bill clarifies numerous other
situations and clarifies the relationships between the physician
providers and the insurance companies. Those are the elements,
besides liability, that are included in the national patient bill
of rights.
REPRESENTATIVE CROFT said he did not want to characterize this
"watered-down" version as the Alaska patient's bill of rights.
Upon a roll call vote, Representatives Croft, Kerttula and Kott
voted in favor of Amendment 3 and Representatives Rokeberg, James
and Murkowski voted against it. Therefore, Amendment 3 failed to
be adopted with a vote of 3-3.
Number 1206
REPRESENTATIVE JAMES moved to report the new CSHB 211, version
LS0472\V, Ford, 4/7/00, as amended, out of committee with
individual recommendations and the zero fiscal note. There being
no objection, it was so ordered and the new CSHB 211(JUD) was
reported from the House Judiciary Standing Committee.
HB 338-CRIMES INVOLVING TECHNOLOGY OR I.D.
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 338, "An Act relating to crimes involving
computers, access devices, other technology, and identification
documents; relating to the crime of criminal impersonation;
relating to crimes committed by the unauthorized access to or use
of communications in electronic storage; and providing for an
effective date."
Number 1289
REPRESENTATIVE JAMES moved to adopt the proposed committee
substitute (CS), Version D [GH2025\D, Luckhaupt, 3/23/00] as the
working document. There being no objection, it was so ordered
and Version D was before the committee.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section - Juneau, Criminal Division, Department of Law, informed
the committee that HB 338 was amended, in accordance with
Representative Rokeberg's concerns, to delete the prior Sections
16 and 17, which amended Title 47. She pointed out that on page
4, Section 10 was amended in order to make it a class C felony to
commit a crime involving consumer protection if done over the
Internet or by a computer network. Representative Rokeberg and
some witnesses were concerned that the prior version of HB 338
was too broad.
MS. CARPENETI mentioned a memorandum from Gerald Luckhaupt,
Legislative Counsel, Division of Legal and Research Services,
which addresses some of his suggestions. Some of Mr. Luckhaupt's
suggestions have been made in the Senate, which the department
does not have any objections to. However, the department would
prefer that the committee not adopt suggestions 4(a) and 5. Mr.
Luckhaupt, in suggestion 4(a), expresses concern about the
definitions.
MS. CARPENETI said that she is not concerned about the
definitions and would not want them combined. She then turned to
Mr. Luckhaupt's suggestion 3 regarding Section 8 of the bill. If
this change to Section 8 is made, then preference for the
language would be "recording or electronic data" in order to be
absolutely clear that the reference is to data on a computer. In
regard to Mr. Luckhaupt's suggestion 4(b) regarding the
definition of an "access device" and the word "key." In the
Senate the word "key" was deleted and the word "algorithm" was
inserted. She explained that what was intended was a code rather
than a "key" to a house, which was of concern to Mr. Luckhaupt.
Ms. Carpeneti addressed Mr. Luckhaupt's suggestion 5 regarding
the definition of "proprietary information." The department
objects to cross-referencing that statute in Title 48 as it is
really not a criminal type definition and is too broad to be
referenced in criminal law.
Number 1575
REPRESENTATIVE CROFT moved that the committee adopt, from Mr.
Luckhaupt's memorandum dated 3/22/00, suggestions 1, 2, 3 and
4(b). He referred to this as Amendment 1.
CHAIRMAN KOTT clarified that Mr. Luckhaupt's suggestion 3 would
be supplemented by Ms. Carpeneti's comments in which she
suggested the use of the language "or electronic data."
Furthermore, Mr. Luckhaupt's suggestion 4(b) would be
supplemented by Ms. Carpeneti's [suggestion] to use the word
"algorithm" instead of "key."
CHAIRMAN KOTT asked if there were any objections to Amendment 1.
There being no objection, Amendment 1 was adopted.
Number 1674
BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency,
testified via teleconference from Anchorage. He noted that the
agency's main concern is with the breadth of HB 338, which is a
property crime bill. He expressed the importance with property
crimes to link the penalty to the damage caused to property or
economic interests. He assumed that some of the things included
in the companion bill, SB 259, were also being considered for HB
338 in order to narrow the penalties and scope of the bill.
Another area of concern for the agency is the broad definition of
"access device," which could merely mean having someone else's
social security number. However, when one thinks of theft, one
usually thinks of stealing some physical property rather than an
identification number. He pointed out that Section 4(b) links
the fraudulent use of an access device to property and the amount
of damage caused, which he believes to be a good thing.
MR. McCUNE turned to Section 6, which refers to criminal
impersonation in the first degree as a class B felony. That is a
serious offense. If someone does minimal damage to someone's
financial reputation, it doesn't seem appropriate that the
individual would face a felony charge. He moved on to Section
11, which is a class C felony. He was not sure if in paragraph
(2) the word "misleading" remained; he expressed concern that it
is a very broadly written statute regarding the use of computers.
He informed the committee that there is [already] a class A
misdemeanor anti-hacking statute. Therefore, when things are
brought up to the felony level, there is the desire to ensure
that there is some demonstrable damage to public interest or
personal property. Mr. McCune offered to review the latest
version of HB 338 and provide the committee with comments.
Number 1928
REPRESENTATIVE KERTTULA pointed out that in Version D, the
criminal impersonation in the first degree remains a class B
felony, and it seems that the mens rae is criminal negligence.
She remarked that criminal negligence seems like a low standard.
She then inquired as to Mr. McCune's thoughts on that.
MR. McCUNE said that Representative Kerttula had a valid point.
He pointed out that the federal legislation after which some of
HB 338 is patterned always seems to include an "intentional"
[reference]. He recalled that the language of the federal
statute says something to the effect of "with intent to defraud."
Therefore, he felt such language would narrow the scope.
MS. CARPENETI explained that HB 338 protects people who have had
their identity stolen and used to defraud stores, banks and
credit card companies. She pointed out that it will be difficult
to prove even criminal negligence in terms of the reputation of
the person, which is where the harm is. This statute was
proposed in order to make the victim the real victim, the person
whose identity has been stolen, in addition to the stores that
are defrauded. Ms. Carpeneti acknowledged that reckless could be
used, but it will be difficult to prove. She emphasized that
this is a serious offense that really harms people and should be
a class B felony. Ms. Carpeneti stated that she would not prefer
changing the charge to recklessness. She clarified, "We're not
talking about defrauding the victim. We're talking about
defrauding people that you get property from and by doing that
you are harming the financial reputation of a person."
REPRESENTATIVE KERTTULA commented that an underlying crime exists
and the individual will not only be charged with [criminal
impersonation in the first degree].
MS. CARPENETI interjected that it would depend. She informed the
committee that one of the cases that led to the introduction of
this legislation was a person in Ketchikan, whose identity was
stolen in Seattle. The individual who stole the Ketchikan
woman's identity, opened a bank account and purchased a car,
among other things. The person could not be prosecuted for
purchasing a car, but the person could be prosecuted for damaging
the person's reputation. This caused serious harm, which could
last for the rest of [the victim=s] life because this person
still has her credit card number and has never been prosecuted in
Washington for this. Therefore, raising [the charge] to
recklessness would make it more difficult and thus she would
prefer that not be done. Ms. Carpeneti clarified that this is
not addressing the intent to defraud in a federal statute because
this addresses the consequences of certain acts on another
person, not the person the property is being taken from.
MS. CARPENETI answered, in response to Representative Kerttula,
that she didn't know that the federal Act has this particular
provision. She recognized that the state uses intent to defraud
in all these other statutes; however, this section doesn't
address defrauding the victim but rather harming their
reputation.
TAPE 00-56, SIDE A
Number 0049
REPRESENTATIVE ROKEBERG moved to report CSHB 338 [version
GH2025\D, Luckhaupt, 3/23/00] as amended out of committee with
individual recommendations and the accompanying fiscal notes.
REPRESENTATIVE KERTTULA commented that she would research the
mental state and bring that information to the floor.
REPRESENTATIVE MURKOWSKI inquired as to the next committee of
referral for HB 338.
CHAIRMAN KOTT answered that the next committee or referral is the
House Finance Committee. He speculated that the [companion]
Senate bill would come over [before HB 338 crosses over to the
Senate].
Number 0106
REPRESENTATIVE KERTTULA objected and said that she wanted to
insert a higher mental state. Representative Kerttula moved that
"reckless" be inserted as the mental state for this. [This is
Amendment 2.]
REPRESENTATIVE ROKEBERG objected for the purpose of discussion.
REPRESENTATIVE KERTTULA explained that criminal negligence is one
of the lowest mental states that there is. Therefore, she is
concerned that with a class B felony with a presumptive sentence,
it is a very "hefty" sentence. Representative Kerttula said, "I
just have a problem writing a new statute including a very, very
light mental state with a class B felony. I really think that is
too fast a step."
MS. CARPENETI informed the committee of the definition of
"criminal negligence" as follows:
The person acts with criminal negligence with respect
to a result or a circumstance described by a provision
of law defining a defense when the person fails to
perceive a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The
risk must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation
from the standard of care that a reasonable person
would observe in the situation.
MS. CARPENETI defined "recklessly" as follows:
The person acts recklessly with respect to a result or
to a circumstance as described by a provision of law
defining a defense when the person is aware of and
consciously disregards a substantial and unjustifiable
risk that that result will occur or the circumstance
exists. The risk must be of such a nature and degree
that disregard of it constitutes a gross deviation from
the standard of conduct that a reasonable person would
observe in the situation. A person who is unaware of
the risk of which the person would have been aware had
that person had not been intoxicated acts recklessly
with respect to that risk.
MS. CARPENETI explained that the difference is whether one knows
of the risk and consciously disregards the risk or the failure to
perceive the risk is a gross deviation from how people should
behave.
Number 0271
REPRESENTATIVE ROKEBERG inquired as to the standard for second
degree, a class A misdemeanor.
REPRESENTATIVE KERTTULA asked if it would default to
Aknowingly.@
MS. CARPENETI clarified that it is a circumstance and thus it
would default to recklessly.
REPRESENTATIVE ROKEBERG asked if it is a higher standard.
MS. CARPENETI explained that the second degree addresses a
different situation in which an individual assumes a false
identity and defrauds someone with that false identity. With
criminal impersonation in the first degree, an individual is
defrauding someone, but the harm the statute addresses is the
harm to the reputation of the person whose identity was stolen.
REPRESENTATIVE KERTTULA commented that she still believes [that
the culpable mental state] should be reckless. She inquired as
to how many class B felonies actually have criminal negligence as
a mental state.
MS. CARPENETI answered that criminal negligent homicide [would be
a class B felony with criminal negligence as the mental state].
REPRESENTATIVE KERTTULA said that is a good example in that an
individual has killed a person and the mental state of [the
murderer] may not have to be as significant. She reiterated that
she believes reckless is more appropriate because the individual
is aware of it and disregards it.
Number 0448
REPRESENTATIVE KERTTULA reiterated her former motion to insert
[on page 4, line 8] "reckless" as the mental state for this
[rather than criminal negligence].
REPRESENTATIVE CROFT asked if criminally negligent homicide is a
class B felony.
MS. CARPENETI replied, "It is now."
REPRESENTATIVE CROFT surmised, "With criminal negligence
enhancing somebody's data record, we're going to put on the same
level as criminally killing somebody - criminal negligence
killing someone."
MS. CARPENETI clarified that this is a class C felony.
REPRESENTATIVE KERTTULA, in response to a question, clarified
that she was referring to Section 6, which has a class B felony.
MS. CARPENETI noted that Mr. McCune had mentioned that the Senate
had removed the "misleading" provision in Section 11, which is of
concern to Mr. McCune. Ms. Carpeneti clarified, "Other than
that, that's the only thing this bill doesn't do in terms of
narrowing the bill down that the Senate version doesn't do."
REPRESENTATIVE KERTTULA restated her motion [Amendment 2].
REPRESENTATIVE ROKEBERG maintained his objection.
REPRESENTATIVE CROFT surmised, then, that "we" would place it at
the same level as criminal negligence for killing someone to
criminal negligence for damage to an individual's financial
reputation.
MS. CARPENETI remarked that it is the same culpable mental state,
although it is different harm and a different act.
REPRESENTATIVE CROFT said, "But we'll punish it in the same
category."
MS. CARPENETI answered in the affirmative.
REPRESENTATIVE ROKEBERG asked if criminal negligent homicide is
similar to drunk driving homicide.
MS. CARPENETI specified that drunk driving is usually
manslaughter.
Number 0643
REPRESENTATIVE ROKEBERG pointed out that [Amendment 2] is based
on the [idea] that the reckless standard is a higher level as the
person more knowingly does something. However, in this case a
person would steal a person's credit card and use it to destroy a
person's financial reputation by "ripping them off." He asked if
his understanding is correct.
REPRESENTATIVE KERTTULA specified that to be the problem;
criminal negligence is a very low mental state, rather than being
a "thinking act." She continued, "Then the next one's going to
be reckless, where you're aware of it and you disregard it and
then you've got intentional." Therefore, she felt that with a
class B felony "more knowing what you're doing" should be there.
She agreed that if "you" default, "you" would go to
Arecklessly.@
REPRESENTATIVE ROKEBERG interjected that second degree is a
different crime.
REPRESENTATIVE KERTTULA agreed. She pointed out that normally if
a standard is not listed, the standard used would be
Arecklessly.@
MS. CARPENETI specified, "Reckless with regard to circumstances;
knowing with regard to intent."
Upon a roll call vote, Representatives Kerttula, Murkowski, Croft
and Kott voted in favor of [Amendment 2] and Representatives
Rokeberg and James voted against it. Therefore, Amendment 2 was
adopted by a vote of 4-2.
Number 0792
REPRESENTATIVE KERTTULA moved that the committee adopt Amendment
3, which read:
Page 5, lines 10 and 13,
Delete "or misleading"
There being no objection, Amendment 3 was adopted.
Number 0835
REPRESENTATIVE MURKOWSKI moved to report CSHB 338 [version
GH2025\D, Luckhaupt, 3/23/00] as amended out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, it was so ordered and CSHB 338(JUD) was
reported from the House Judiciary Committee.
SJR 27-CONST. AM: REVISIONS OF CONSTITUTION
CHAIRMAN KOTT announced that the next order of business would be
SENATE JOINT RESOLUTION NO. 27 am, Proposing amendments to the
Constitution of the State of Alaska relating to revisions of the
state constitution and providing that a court may not change
language of a proposed constitutional amendment or revision.
Number 0871
SENATOR DAVE DONLEY, Alaska State Legislature, testified as the
sponsor of SJR 27. He explained that SJR 27, a proposed
constitutional amendment, would do two things. First, it would
allow the legislature to propose what the court has termed
"revisions" to the state constitution to the voters. Currently,
the word "revisions" appears once in the Alaska State
Constitution and that is found in the section addressing the
constitutional conventions. Furthermore, the word "revisions" is
not really defined. He pointed out that this became a question
in the Bess v. Ulmer case in relation to the prisoners' rights
proposed constitutional amendment. In that situation the court
found it to be a revision and a imprecise definition was given in
regard to what a revision is versus an amendment. Therefore,
this resolution would clarify that the legislature would have the
power to perform revisions.
SENATOR DONLEY turned to the second thing that SJR 27 would do.
This resolution would prohibit the court from altering or
changing the language of an amendment or revision that is
proposed by the legislature or by a constitutional convention.
In the Bess v. Ulmer case the court modified the language of the
definition of marriage, which was the first time [the court]
modified the language of a constitutional amendment. He said:
While the court may maintain the power to remove
something from the ballot, it's very problematic to
have the court modify the language of something prior
to a vote of the people because obviously, the
constitution reserves the power for determining what
should be placed before the people to the legislative
branch. Since this requires a two-thirds vote of both
bodies, how would the court ever know that the modified
language the court has substituted for the original
language would've gotten the required two-thirds vote
under the constitution.
SENATOR DONLEY said the courts shouldn't be modifying
constitutional amendments. He pointed out that "we" have a
statutory provision for severability, which allows the court to
modify statutes. However, that doesn't apply to resolutions or
amendments to the constitution. He noted that he has a legal
opinion on that matter from Legislative Legal Services. In order
to be more precise on revisions, Senator Donley suggested that on
page 1, line 6, the language "single subject revisions" could be
added. He explained his belief that [the legislature] should not
do multiple subject amendments. Such language would allow the
prisoners' rights amendment; although that would affect more than
one section of the constitution, it would be a single subject.
SENATOR DONLEY informed the committee that a definition of an
amendment versus a revision that appeared in Bess v. Ulmer was
referred to, in the majority opinion, as a hybrid test. However,
the concurring opinion, which was correct in his opinion,
criticized [that definition] as being confusing and not really a
hybrid test. He said that it was really the same test as the
California Supreme Court determined in the case that Bess relied
upon in general. Senator Donley explained, "In that case, what
the California Supreme Court, (indisc.) which was restated in
Bess, is that amendments become revisions when they are either
quantitatively or qualitatively more complex." Therefore, he
reiterated his belief in the importance of voters to be able to
do single-subject amendments to the constitution as it is a
healthy process.
SENATOR DONLEY pointed out that one danger of the Bess decision
is that it places anything [the legislature] does into serious
question as to whether it meets the vague Bess test.
Furthermore, it allows the courts to "play politics to a maximum
degree" and drives the fuel for a constitutional convention,
which he believes would be a mistake. He felt that the voters
amending the constitution is a much more measured process than a
constitutional convention. Senator Donley remarked that there is
a growing constitutional convention movement in the state. He
noted that he has stressed to this group the need to resolve the
Bess question before pushing for a constitutional convention,
which could go in many different directions.
Number 1263
SENATOR DONLEY related his belief that the court overstretched
its judicial authority on amending the actual language proposed
by the legislature. He further believes that the court stretched
the argument in regard to the specific proposition before it, in
the court's reliance on the California case that overturned
Proposition 115. The bill packet should include a copy of
Proposition 115, which is distinguishable on its merits. The
proposal in Alaska, the prisoners' rights, was determined to be a
revision. The proposal in Alaska was a short single subject
proposal which was proposed by the legislature. In California
Proposition 115 was a lengthy initiative to amend the California
State Constitution; it was a wholesale rewrite of their criminal
rights. He felt the California proposal could have been
determined by the courts to be a revision as it impacts many
different elements of the California criminal code. Furthermore,
the California proposal was an initiative process which is very
different than an elected body proposing a constitutional
amendment.
SENATOR DONLEY noted that the bill packet should also include an
analysis from the attorney who represented the legislature in the
case. Furthermore, there was testimony taken on the Senate side
from a variety of views which suggest that something needs to be
done about the Bess case. Senator Donley did not see how to
justify the right to privacy amendment adopted by the voters;
under the Bess case he didn't think it [the right to privacy
amendment] would be allowed as it sweeps throughout the
constitution and it would fail in the Bess case under the
qualitative and quantitative analysis. Furthermore, he suggested
that limited entry would probably fail under the Bess test as
well. These are important amendments that leave one to ponder
whether if someone wanted to challenge those amendments under
Bess, how the court would respond to that.
Number 1414
REPRESENTATIVE CROFT inquired as to who in the Bess case
suggested to the court that it could sever the final sentence,
which is mentioned by Attorney Clarkson in his materials
[included in the bill packet] as well as the court in footnote
57.
SENATOR DONLEY pointed out another problem with the Bess case in
that the court adopted simultaneous briefing. He explained that
the Bess case was about the definition of marriage, specifically
the lawsuit was filed to remove the definition of marriage
question from the ballot. One of the arguments in the reply
brief - which came at the same time such that the defenders of
the constitutional amendments never had a chance to respond - was
that if all three of the proposed constitutional amendments
(redistricting, the definition of marriage and prisoner's rights)
were considered together as an entity, they would constitute a
revision. Therefore, the court shouldn't allow all three of them
on the ballot at the same time. The superior court rejected that
argument.
SENATOR DONLEY pointed out that this was not followed up nor was
it a point on appeal. Therefore, the parties had no notice that
the courts would even take this issue up. However, the court
took it up on its own volition and ruled, which resulted in the
removal of prisoners' rights from the ballot and amending the
definition of marriage. Senator Donley specified:
So, it was never even properly before the court,
procedurally, and it certainly was never allowed the
type of briefing that a constitutional question of this
magnitude and a question of separation of powers like
this should be entitled to in the judicial process.
SENATOR DONLEY, in response to Representative Croft, noted that
Attorney Clarkson, in response to a question in oral arguments,
said that he felt they could remove that sentence if they wanted
to. However, Senator Donley felt that he was in error,
especially since the severability clause doesn't address
resolutions or constitutional amendments but rather specifically
speaks to statutes.
REPRESENTATIVE ROKEBERG asked if Senator Donley wanted an
amendment.
SENATOR DONLEY remarked that he had been trying to focus this
resolution, which could be achieved with the insertion of the
language "single subject revisions" on page 1, line 6. He felt
that such a change would provide people with much reassurance
that wholesale changes are not being attempted. He expressed his
belief that single subjects are appropriate for the voters to
decide. However, he recognized that this opens it up to the
court's interpretation as to what a single subject is.
Number 1597
REPRESENTATIVE ROKEBERG commented that it seems mutually
exclusive because how could a single subject be a revision.
SENATOR DONLEY explained that the test that was adopted was a
qualitative and a quantitative test. He specified that
quantitative refers to the number of sections of the constitution
that it may impact. For example, subsistence is a single subject
and by itself under the Bess test it is clearly a revision
because it affects fundamental human rights and it also affects
multiple sections of the constitution. Therefore, it fails under
both levels, but it remains a single subject and he believes it
appropriate for the voters to have the opportunity to make that
decision.
REPRESENTATIVE CROFT said he doesn't believe it bears the weight
being put on it. There can be single-subject changes that are so
fundamental to the constitutional structure that they can't be
done by amendment. He stated, "In effect, we are conceding -
when Senator Donley talks about a single subject revision being
alright - that there are things that are properly read out of our
power to amend; they're things that are beyond amendment."
REPRESENTATIVE CROFT continued. He said he understood that what
Senator Donley would characterize as multiple subject amendments
might be beyond amendment. However, there are single issues that
are so comprehensive that they are no longer an amendment; those
usually address capping or changing a variety of different rights
and thus change the fundamental structure of rights or the
relationship between the three branches of government
REPRESENTATIVE CROFT said he did not believe that privacy, by
adding a single right in addition to others, would be much of a
challenge under Bess. Although he believes subsistence is an
interesting issue, he believes it would survive. The Bess v.
Ulmer and the California line of cases were directed at what
were very comprehensive amendments and he thought the court was
correct in both.
REPRESENTATIVE CROFT related his belief that Senator Donley does
have a point in Section 2 in that it was Attorney Clarkson's
mistake, as he understood, in oral argument that the court had
the power to order deletion. That was a fundamental error and
thus he didn't object to inserting that [the court] can't do
that. Representative Croft agreed with Senator Donley that how
the legislature frames it is what should go before [the court].
Representative Croft did feel that there is a difference between
amendments and revisions. Furthermore, he believes that
revisions do belong in a constitutional convention.
REPRESENTATIVE ROKEBERG remarked that the revision standing alone
is better because of the actions of the Alaska Supreme Court.
SENATOR DONLEY said that he was merely making a suggestion to
move somewhat towards Representative Croft's position. However,
he believes that he and Representative Croft have a philosophical
disagreement on the separation of powers. Still, he felt that he
and Representative Croft would both agree that the single subject
is somewhere in the middle. Senator Donley left it to the will
of the committee.
Number 1853
REPRESENTATIVE CROFT moved that the committee adopt Amendment 1,
to delete Section 1. He commented that Section 2 is less
problematic for him. He said, "I don't think courts should do
that, ... but I think the Bess v. Ulmer framework and the
framework of our constitution allowing amendments, but not
revisions is an appropriate one."
REPRESENTATIVE ROKEBERG objected and remarked that Bess v. Ulmer
is the most egregious separation of powers he has ever observed.
Upon a roll call vote, Representatives Murkowski, Croft, Kerttula
and Kott voted in favor of Amendment 1 and Representatives
Rokeberg and James voted against it. Therefore, Amendment 1 was
adopted by a vote of 4-2.
Number 1939
REPRESENTATIVE ROKEBERG moved to report SJR 27 am, as amended,
out of committee with individual recommendations and the
accompanying fiscal note. There being no objection, it was so
ordered and HCS SJR 27(JUD) was reported out of the House
Judiciary Standing Committee.
HB 401-COMPUTER NETWORKS AND SPAM ADS
CHAIRMAN KOTT announced that the final order of business would be
HOUSE BILL NO. 401, "An Act relating to computer networks and to
electronic mail advertisements." [Before the committee was CSHB
401(L&C), labeled LS1470\H.]
REPRESENTATIVE ROKEBERG testified as the sponsor of HB 410. He
explained that HB 401 creates a criminal penalty for interrupting
utility services on computer networks. This is punishable as a
class B felony. He pointed out that Section 2 of the bill
defines "utility", and Section 4 prohibits the sending of
unsolicited mail via electronic mail and provides that the
Internet service providers be the arbiters.
Number 2143
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section - Juneau, Criminal Division, Department of Law, said that
the department has concerns with Sections 1 and 2 of HB 401. She
pointed out that Section 1 amends criminal mischief in the first
degree, which is a class B felony. The law now makes criminal
conduct that interferes with utilities and other service
providers that deal with life and health. The addition in HB 401
would make it a class B felony to interrupt services over a
computer [being used] such as shopping on the computer.
Therefore, Ms. Carpeneti felt it more appropriate to place this
new prohibition in criminal mischief in the second degree, which
is a class C felony. Such a placement would be consistent with
what the legislature is doing in terms of criminal use of a
computer. She suggested that the committee consider placing this
criminal law in AS 11.46.482(a), which would result in this being
a class C felony rather than a class B felony.
REPRESENTATIVE ROKEBERG posed a situation in which an individual
places a wrench into an electrical substation and knocked it out
intentionally. He inquired as to what that would be considered
[in terms of punishment].
MS. CARPENETI answered that it would probably come under
[criminal mischief in the] first degree.
REPRESENTATIVE ROKEBERG interjected, "That's what this is."
REPRESENTATIVE KERTTULA pointed out that if an individual tampers
with an oil or gas pipeline or a supporting facility of an
airplane or helicopter, it is a [class] C felony.
REPRESENTATIVE ROKEBERG remarked that [in this case] it would not
be hampering [the service] but rather shutting it down. This is
a denial service attack, which shuts down the entire server and
the ISP [Internet service provider] that is similar to shutting
down a utility server.
MS. CARPENETI commented that one would not be dealing with life
and health issues.
REPRESENTATIVE ROKEBERG stated that it addresses substantial
economic harm.
MS. CARPENETI remarked that economic harm would be more
appropriate as second degree criminal mischief.
REPRESENTATIVE ROKEBERG indicated that he was agreeable to that.
Number 2349
REPRESENTATIVE MURKOWSKI moved that the committee adopt Amendment
1, which read:
Page 1, lines 3-15:
Delete all material and insert:
"Section 1. AS 11.46.482(a) is amended to read:
(a) A person commits the crime of criminal
mischief in the second degree if, having no right to do
so or any reasonable ground to believe the person has
such a right,
(1) with intent to damage property of
another, the person damages property of another
in an amount of $550 or more;
(2 )the person tampers with an oil or
gas pipeline or supporting facility or an
airplane or helicopter with reckless disregard
for the risk of harm to or loss of the
property;[OR]
(3) the person recklessly creates a risk
of damage in an amount exceeding $100,000 to
property of another by the use of widely
dangerous means;
(4)[Repealed, sec. 11 ch 71 SLA 1996.]
(5)[Repealed, sec. 11 ch 71 SLA 1996.]
(6) with intent to cause a substantial
interruption or impairment of a service rendered to the
public by another person over a computer network, the
person causes substantial interruption or impairment of
service to the public."
Page 2, lines 1-14:
Delete all material
There being no objection, Amendment 1 was adopted.
Number 2394
REPRESENTATIVE MURKOWSKI moved to report CSHB 401(L&C) as amended
out of committee with individual recommendations and the
accompanying indeterminate fiscal notes. There being no
objection, it was so ordered and CSHB 401(JUD) was reported from
the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 9:35 p.m.
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