Legislature(2001 - 2002)

05/05/2001 02:05 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                          May 5, 2001                                                                                           
                           2:05 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Norman Rokeberg, Chair                                                                                           
Representative Scott Ogan, Vice Chair                                                                                           
Representative Jeannette James                                                                                                  
Representative John Coghill                                                                                                     
Representative Kevin Meyer                                                                                                      
Representative Ethan Berkowitz                                                                                                  
MEMBERS ABSENT                                                                                                                
Representative Albert Kookesh                                                                                                   
OTHER LEGISLATORS PRESENT                                                                                                     
Representative Andrew Halcro                                                                                                    
COMMITTEE CALENDAR                                                                                                            
HOUSE BILL NO. 268                                                                                                              
"An Act relating to the constitutional right to privacy."                                                                       
     - MOVED HB 268 OUT OF COMMITTEE                                                                                            
CS FOR SENATE BILL NO. 176(L&C) am                                                                                              
"An Act  prohibiting certain  coercive activity  by distributors;                                                               
relating to certain required  distributor payments and purchases;                                                               
prohibiting  distributors from  requiring certain  contract terms                                                               
as a  condition for certain  acts related to  distributorship and                                                               
ancillary  agreements; allowing  dealers to  bring certain  court                                                               
actions against  distributors for  certain relief;  and exempting                                                               
from  the  provisions of  the  Act  franchises regulated  by  the                                                               
federal Petroleum  Marketing Practices Act,  situations regulated                                                               
by the Alaska gasoline products  leasing act, and distributorship                                                               
agreements relating  to motor vehicles required  to be registered                                                               
under AS 28.10."                                                                                                                
     - BILL HEARING POSTPONED                                                                                                   
PREVIOUS ACTION                                                                                                               
BILL: HB 268                                                                                                                  
SHORT TITLE:LIMITS ON RIGHT TO PRIVACY                                                                                          
SPONSOR(S): REPRESENTATIVE(S)GREEN                                                                                              
Jrn-Date   Jrn-Page                     Action                                                                                  
05/04/01     1531       (H)        READ THE FIRST TIME -                                                                        
05/04/01     1531       (H)        JUD                                                                                          
05/05/01     1572       (H)        COSPONSOR(S): KOTT                                                                           
05/05/01                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
WITNESS REGISTER                                                                                                              
REPRESENTATIVE JOE GREEN                                                                                                        
Alaska State Legislature                                                                                                        
Capitol Building, Room 403                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Sponsor of HB 268.                                                                                         
ACTION NARRATIVE                                                                                                              
TAPE 01-80, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIR  NORMAN  ROKEBERG  called   the  House  Judiciary  Standing                                                               
Committee  meeting  to  order  at   2:05  p.m.    Representatives                                                               
Rokeberg, Ogan,  Coghill, and Meyer  were present at the  call to                                                               
order.    Representatives  James  and Berkowitz  arrived  as  the                                                               
meeting was in progress.                                                                                                        
HB 268 - LIMITS ON RIGHT TO PRIVACY                                                                                           
Number 0069                                                                                                                     
CHAIR  ROKEBERG announced  that  the committee  would hear  HOUSE                                                               
BILL NO.  268, "An  Act relating to  the constitutional  right to                                                               
Number 0087                                                                                                                     
REPRESENTATIVE JOE  GREEN, Alaska  State Legislature,  sponsor of                                                               
HB  268, explained  that Article  I,  Section 22,  of the  Alaska                                                               
State  Constitution, which  goes back  to [1972],  indicates that                                                               
the right  of the people to  privacy is recognized and  shall not                                                               
be infringed.   He  said it further  states that  the legislature                                                               
shall  implement   this  section,   and  he  offered   that  this                                                               
implementation  is the  goal of  HB 268.   While  this right  [of                                                               
privacy] is a  very significant right, he continued,  it does not                                                               
necessarily  guarantee, or  create any  further right  to receive                                                               
money,  public  benefit,  or  public service.    He  opined  that                                                               
although in  the past, the  right of privacy  has been used  as a                                                               
justification for certain decisions  in court proceedings, HB 268                                                               
is a way of explaining to  the courts what "we" believe the right                                                               
of privacy was instituted for.                                                                                                  
REPRESENTATIVE GREEN  said that  although the  federal government                                                               
does not  have [the right  of privacy] in the  U.S. Constitution,                                                               
several states  do have it  in their  constitutions.  He  said he                                                               
believes  -  although  there  is   not  a  record  following  the                                                               
implementation of it  - that the concept of the  right of privacy                                                               
does  not indicate  that  "that's" what  was  intended when  they                                                               
passed the  right of privacy.   He paraphrased the  definition of                                                               
the  right of  privacy from  the dictionary  as, "a  seclusion, a                                                               
right to  not be  peeked in on,  if you will."   To  then stretch                                                               
that meaning  to include  some sort of  a funding  definition, he                                                               
opined,  goes   beyond  what   was  intended   at  the   time  of                                                               
implementation.   He offered that  HB 268  is simply a  method of                                                               
saying  to the  courts,  "this is  the way  we  believe:"   There                                                               
should be  a severance between the  right of privacy -  as it was                                                               
intended - and any funding demand.                                                                                              
REPRESENTATIVE BERKOWITZ  asked Representative Green how  he knew                                                               
what  the   intent  was  of   the  framers  of   this  particular                                                               
[constitutional] amendment, and  what he thinks is  the extent of                                                               
the right to privacy:  what did it mean to him.                                                                                 
Number 0348                                                                                                                     
REPRESENTATIVE GREEN responded that it  is speculation as to what                                                               
was meant [by  the framers] since there is no  record.  Returning                                                               
to a meaning from the  dictionary, he paraphrased, "as opposed to                                                               
being in  the public, you're in  the private."  He  said that the                                                               
[right  of  privacy]  was  implemented  back  when  there  was  a                                                               
breakthrough  in   the  electronic  surveillance   industry,  and                                                               
"we're" assuming  that the intention  was that a  person wouldn't                                                               
have to worry about electronic  intrusion.  He related his belief                                                               
that the right of privacy provides  that a person in his/her home                                                               
shouldn't  have  to  worry  about  government  intrusion  without                                                               
proper  warning.   Furthermore, it  also includes  being able  to                                                               
hook up a computer at home  and not worry about some other person                                                               
or  group being  able  to electronically  gather information  via                                                               
that computer.                                                                                                                  
REPRESENTATIVE BERKOWITZ  observed that a  reasonable expectation                                                               
of privacy is  already contained within the  Fourth Amendment [of                                                               
the U.S.  Constitution]; he posited,  therefore, that  Article I,                                                               
Section 22,  does nothing  that is not  already addressed  at the                                                               
federal level.                                                                                                                  
REPRESENTATIVE GREEN countered that  [Article 1, Section 22] does                                                               
more.   He  suggested that  it clarifies  [the right  of privacy]                                                               
with  regard  to  the breakthrough  in  electronic  surveillance,                                                               
which  created  an  opportunity for  private  information  to  be                                                               
attached and disseminated electronically.                                                                                       
CHAIR   ROKEBERG  questioned   the   assertion   that  the   U.S.                                                               
Constitution has a guarantee of right to privacy.                                                                               
REPRESENTATIVE BERKOWITZ pointed out that  it is in the "penumbra                                                               
[doctrine]  of  rights," and  that  under  the Fourth  Amendment,                                                               
every citizen  has a  right to be  free from  unreasonable search                                                               
and seizure from government, which  means that a government can't                                                               
unreasonable  intrude  into  peoples'   lives,  and  which  would                                                               
include   things   like   "snooping  on   their   computers"   or                                                               
electronically eavesdropping absent a valid warrant.                                                                            
CHAIR  ROKEBERG acknowledged  that  case law  has  held with  the                                                               
[penumbra doctrine],  although he questioned whether  there was a                                                               
specific "recitation" in  the U.S. Constitution on  the issue [of                                                               
the right of privacy].                                                                                                          
REPRESENTATIVE  BERKOWITZ  explained  that  because  the  privacy                                                               
clause  is  specific to  the  Alaska  State Constitution,  it  is                                                               
broader than in the U.S. Constitution.                                                                                          
Number 0609                                                                                                                     
REPRESENTATIVE OGAN noted that [page  44] of Gordon S. Harrison's                                                               
Alaska's  Constitution A  Citizen's Guide,  addresses Article  I,                                                             
Section  22,  and  includes  reference   to  the  fact  that  the                                                               
delegates  to the  constitutional convention  had considered  but                                                               
then  rejected  language   regarding  unreasonable  searches  and                                                               
seizures.  He also noted that  this book refers to the Department                                                               
of Public  Safety's Alaska Justice  Information System  (AJIS) as                                                               
the impetus  for this constitutional  amendment due to fear  of a                                                               
"Big     Brother"     government     information     bureaucracy.                                                               
Representative Ogan  surmised that  Mr. Gordon apparently  had to                                                               
research some  record in  order to  obtain this  information, and                                                               
therefore,  he said,  this book  could be  considered a  credible                                                               
source.   Representative Ogan, paraphrasing information  found in                                                               
Mr. Gordon's  book, said that  many privacy cases in  Alaska have                                                               
arisen  in  the  context  of   searches  and  seizures,  and  the                                                               
legislature  has not  yet provided  the statutory  implementation                                                               
that was referred to in  [Article I, Section 22].  Representative                                                               
Ogan posited:  "that was all we're trying to do here."                                                                          
REPRESENTATIVE BERKOWITZ argued:                                                                                                
     That's  not all  we're trying  to  do here.   It  seems                                                                    
     pretty clear  to me what this  is:  this is  a trapdoor                                                                    
     to get away  from the language that's  contained in the                                                                    
     Senate budget.   I  can read the  writing on  the wall.                                                                    
     There's a good number of  you on this committee who are                                                                    
     co-sponsors of  this, and I  know which way  it's going                                                                    
     to  go.   I  think it's  really  unfortunate that  when                                                                    
     you're attacking the constitution  the way this section                                                                    
     does,  that we  don't have  a  full vetting.   I  think                                                                    
     that's really tragic.                                                                                                      
Number 0788                                                                                                                     
CHAIR ROKEBERG  warned that regardless of  personal feelings, the                                                               
issue here is whether the  legislature has the right to implement                                                               
this particular  constitutional amendment  - [Article  I, Section                                                               
22].   He  said  that  he thinks  [Article  I,  Section 22]  very                                                               
clearly states  that the  legislature does have  that right.   He                                                               
added that the  question then becomes whether this  is the proper                                                               
course  of action,  and he  suggested  that "this"  is what  "we"                                                               
should be speaking to.                                                                                                          
REPRESENTATIVE BERKOWITZ  suggested then  that they look  at what                                                               
the  amendment   -  Article  I,   Section  22  -  says,   and  he                                                               
paraphrased:   The right of  privacy is recognized and  shall not                                                               
be infringed.   He then referred to HB 268  and paraphrased:  The                                                               
right of  privacy does not create  a right.  He  opined that [the                                                               
language in  HB 268] is infringing  on the right of  privacy just                                                               
by its very  definition, and he questioned how  rights can create                                                               
other rights;  rights exist  on their own,  he added,  rights are                                                               
not created.                                                                                                                    
REPRESENTATIVE GREEN said:                                                                                                      
     That's exactly why  it says that; it does  not create a                                                                    
     right.  You're  absolutely right.  This  is just trying                                                                    
     to  say   the  obvious,  but  there   are  people,  and                                                                    
     certainly courts  who perhaps attach that  and create a                                                                    
     right.  This says "no, that  does not" - the wording in                                                                    
     the  constitution does  not create  a right  to any  of                                                                    
     this kind  of financing.   It doesn't  say it  does; it                                                                    
     says it does not.                                                                                                          
REPRESENTATIVE BERKOWITZ countered that  it's not just financing;                                                               
it's money,  benefit, or  service.  He  asked whether  anyone had                                                               
done  any investigation  into what  types of  money, benefit,  or                                                               
services would  be impacted by  this provision  [of HB 268].   To                                                               
clarify his question  he said, "What's the impact?   What is this                                                               
legislation  intending to  reach?   Which public  moneys?   Which                                                               
public benefits?  Which public services will be reached?"                                                                       
CHAIR ROKEBERG requested that decorum be maintained.                                                                            
REPRESENTATIVE GREEN responded:                                                                                                 
     What does it  affect?  It doesn't affect  anything.  If                                                                    
     we said, on  the other hand, that this  creates a right                                                                    
     to public  money, public benefit, public  service, then                                                                    
     that  question  would have  much  more  relevance -  it                                                                    
     would say what does this  affect.  All we're saying is,                                                                    
     the  legislature shall  implement  this section,  which                                                                    
     says  that the  right of  privacy exists.   It  says it                                                                    
     does not create  a right in any other thing.   [It] has                                                                    
     nothing  to do  with what  it's going  to affect;  it's                                                                    
     what it's not going to affect.                                                                                             
REPRESENTATIVE BERKOWITZ pointed out that  there is case law "out                                                               
there" - Alaska  Wildlife Alliance v. Rue - that  held that under                                                             
the right  of privacy  provision, the  Alaska Department  of Fish                                                               
and  Game (ADF&G)  was entitled  to  redact the  names of  public                                                               
employees  and private  contractors  from  time sheets  requested                                                               
under  the  Public  Records  Acts   when  those  individuals  had                                                               
received  threats against  their  lives.   "So, public  officials                                                               
whose  privacy   rights  protect   the  disclosure   of  personal                                                               
information now  will not have [that]  privacy protection because                                                               
they  are receiving  a public  benefit derived  from the  privacy                                                               
right," he predicted.                                                                                                           
Number 0982                                                                                                                     
REPRESENTATIVE  JAMES suggested  that, "he's  got his  arms three                                                               
feet long  reaching into something  that doesn't really  apply in                                                               
this case.  We're not talking about those kinds of benefits."                                                                   
REPRESENTATIVE BERKOWITZ  questioned what case she  was referring                                                               
to,  and what  kind  of benefits  they were  talking  about.   He                                                               
emphasized that he  would still like a response  to his questions                                                               
regarding which type of benefits,  which type of money, and which                                                               
type of services were being discussed.                                                                                          
REPRESENTATIVE OGAN  suggested that  the discussion  pertained to                                                               
entitlements,   and   not   necessarily    to   the   case   that                                                               
Representative Berkowitz  used as an  example.  [People]  are not                                                               
entitled to an entitlement based on privacy, he added.                                                                          
REPRESENTATIVE  BERKOWITZ asked  how  the  committee is  defining                                                               
REPRESENTATIVE OGAN defined it as "free money."                                                                                 
REPRESENTATIVE BERKOWITZ pointed  out that HB 268  does not refer                                                               
specifically to entitlement.                                                                                                    
CHAIR  ROKEBERG reminded  the committee  that HB  268 does  refer                                                               
specifically to  public money.  He  added that HB 268  is clearly                                                               
speaking to an appropriation issue.   He used, as an example, the                                                               
relationship   to  public   funding  of   abortions,  which,   he                                                               
suggested, is  the genesis  of HB  268; to  this example  he said                                                               
that the issue is whether  the courts can direct an appropriation                                                               
by the  legislature.  The courts,  by their case law,  have taken                                                               
the  stance  that   they  can  force  the   legislature  to  make                                                               
appropriations, he added.   He mentioned that he  is referring to                                                               
"Judge  Sen Tan's  Superior  Court  case that  goes  back to  the                                                               
Matanuska Valley  case ...  that made a  statement to  the effect                                                               
that there  was a right for  abortion in the state  of Alaska; it                                                               
didn't say that there was a right to publicly funded abortion."                                                                 
Number 1121                                                                                                                     
REPRESENTATIVE  BERKOWITZ said:   "So,  I just  want to  be clear                                                               
what  we're doing  here.   We're interceding  before the  supreme                                                               
court has made a final decision  on the subject of ... what y'all                                                               
think is  a pretty significant issue  of public policy.   Is that                                                               
correct?"   He  asked whether  they were  interceding based  on a                                                               
superior court case or a supreme court case.                                                                                    
REPRESENTATIVE  GREEN  explained:   "We're  interceding  just  to                                                               
implement the  right [since] it  says that the  legislature shall                                                               
implement this section.  That's all this bill is doing...."                                                                     
CHAIR ROKEBERG interjected:                                                                                                     
     I think there's  a level of frustration on  the part of                                                                    
     the legislature ... when we're,  in fact, talking about                                                                    
     separation of  powers.  I  think that my vote,  and any                                                                    
     support  I may  give  this  bill will  be  ... on  that                                                                    
     basis.  ...   And I think if the  courts wish to direct                                                                    
     the legislature - under the  guise of privacy - to make                                                                    
     public expenditures,  that's what this  particular bill                                                                    
     is about.                                                                                                                  
REPRESENTATIVE BERKOWITZ again asked:   "Which supreme court case                                                               
are we doing  this on?  He  went on to suggest that  if they were                                                               
doing this based on a trial court decision, it is premature.                                                                    
CHAIR  ROKEBERG asked  whether the  administration  has issued  a                                                               
[statement] with  regard to the  superior court ruling.   He also                                                               
asked whether  [the state] is  still funding abortions  [based on                                                               
that ruling].                                                                                                                   
REPRESENTATIVE GREEN  said, "there have  been several."   He then                                                               
mentioned  that the  administration  has provided  him with  some                                                               
information regarding abortions.                                                                                                
CHAIR  ROKEBERG asked  whether  "Hyde  Amendment" abortions  were                                                               
continuing in Alaska.                                                                                                           
REPRESENTATIVE  GREEN  said  yes,   and  that  according  to  his                                                               
recollection, 15  such abortions were  performed in the  last two                                                               
Number 1259                                                                                                                     
CHAIR ROKEBERG said:                                                                                                            
     That's  what I  think  I'm a  little  bit troubled  by.                                                                    
     This  is becoming  some kind  of a  big abortion  issue                                                                    
     when  it really  isn't the  case.   Because, under  the                                                                    
     Medicare  Options  and  the  instructions  through  the                                                                    
     legislature to  the department,  if they're  just doing                                                                    
     therapeutic abortions  that are allowed under  the Hyde                                                                    
     Amendment, ...  that's what they're doing.   If they're                                                                    
     doing more than that, then it becomes an issue.                                                                            
REPRESENTATIVE  GREEN clarified  that during  the years  2000 and                                                               
2001,  there were  15  Hyde Amendment  abortions  and 228  court-                                                               
ordered abortions.                                                                                                              
CHAIR ROKEBERG  surmised, then,  that the  court has  ordered the                                                               
abortions, and  the administration  is then following  the [order                                                               
of]  the  superior  court.   He  then  questioned  Representative                                                               
Berkowitz:   [Don't you think]  that the legislature has  a right                                                               
or even  an obligation or  responsibility to implement  "that" if                                                               
"they" don't agree with it?                                                                                                     
REPRESENTATIVE  BERKOWITZ responded  that he  would like  to know                                                               
"what  we're talking  about here.   Are  we going  to talk  about                                                               
abortion, are we  going to talk about separation  of powers, [or]                                                               
are we going to talk about taking the right to privacy away?"                                                                   
CHAIR  ROKEBERG  said he  thinks  [the  topic] is  separation  of                                                               
powers, with abortion being used as an example.                                                                                 
REPRESENTATIVE  BERKOWITZ  opined   that  taking  liberties  from                                                               
individual Alaskans  is a peculiar  way to combat  the judiciary,                                                               
and he suggested that this is what is occurring [via HB 268].                                                                   
Number 1325                                                                                                                     
REPRESENTATIVE GREEN said:                                                                                                      
     That's  not it  at all.   It  was the  court who  first                                                                    
     enacted  this  right  of privacy  to  ...  violate  the                                                                    
     separation of powers issue.   If the legislature is the                                                                    
     empowering body  to determine how monies  are going [to                                                                    
     be  spent], and  the court  then  uses the  tie to  the                                                                    
     right of  privacy to say  "No, you're also going  to do                                                                    
     this," I think that's a  violation of the separation of                                                                    
     powers  doctrine.   So,  what we're  doing  by this  is                                                                    
     trying to  go back to  what we have interpreted  ... as                                                                    
     the   intent.      Albeit    it's   not   direct,   but                                                                    
     Representative  Ogan and  I have  both  alluded to  the                                                                    
     fact  that this  doctrine ...  , this  Section 22,  was                                                                    
     adopted in the '70s  when the electronic surveillance -                                                                    
     the  tendency  to come  in  --  that's what  they  were                                                                    
     focusing  on.   The  judge, then,  has  come along  ...                                                                    
     saying,  "No, you're  also  going  to distribute  money                                                                    
     according to  that right of privacy,"  and we're saying                                                                    
     that's not  what the  intent is;  the right  of privacy                                                                    
     does not give you that right.                                                                                              
REPRESENTATIVE BERKOWITZ  suggested that  if this  legislation is                                                               
designed  to handle  a  conflict between  the  judiciary and  the                                                               
legislature,  [but] there  is an  ongoing  court case  - the  Tan                                                               
decision, which is going up to  the supreme court, and which will                                                               
give  a  higher,  and  hence,   better  decision  upon  which  to                                                               
determine what legislative action would  be appropriate - then to                                                               
intervene following a superior court case is vastly premature.                                                                  
CHAIR  ROKEBERG  noted  that  he  disagreed  with  Representative                                                               
Berkowitz,  and  suggested  putting  that  issue  aside  for  the                                                               
REPRESENTATIVE OGAN  said he thinks that  the court's appropriate                                                               
role in interpreting legislation,  whether it be a constitutional                                                               
amendment  or a  statute,  is to  consider  what the  legislative                                                               
intent is:   what the people, via  their elected representatives,                                                               
intended when legislation is written.   He opined that there is a                                                               
record that  establishes what the  intent is with regards  to the                                                               
right  of  privacy,  and  he   suggested  that  the  courts  have                                                               
misinterpreted that  intent and  are violating the  separation of                                                               
powers  [doctrine] by  telling the  legislature what  it can  and                                                               
can't  appropriate  money for.    He  added that  notwithstanding                                                               
[Representative Berkowitz] bringing up  the issue of abortion, he                                                               
considers this to be a separation of powers issue.                                                                              
REPRESENTATIVE BERKOWITZ said:                                                                                                  
     If  this   is  a   separation  of  powers   issue,  and                                                                    
     Representative Ogan  talked about the right  of privacy                                                                    
     being misinterpreted by the courts,  ... I haven't seen                                                                    
     any evidence  of that; I  haven't seen any  evidence of                                                                    
     what the original  intent was of those  who framed that                                                                    
     constitutional amendment.  In  fact, the testimony from                                                                    
     Representative  Green was  [that] he  didn't know  what                                                                    
     the intent  was and that  there was an  assumption that                                                                    
     this was  done in response to  electronic measures that                                                                    
     were  developing  in  the  early '70s.    ...  I  would                                                                    
     submit,   then,  that   there  was   a  lot   of  other                                                                    
     development  relating  to  privacy at  that  time  that                                                                    
     probably  [was] involved,  but  I  don't know,  because                                                                    
     there's no evidence in front of us.                                                                                        
Number 1503                                                                                                                     
CHAIR  ROKEBERG said  he  thinks  that there  is  evidence.   The                                                               
history of the  passage of the constitutional  amendment is clear                                                               
regarding what  was on people's minds  at that time, he  said; it                                                               
was  to  protect individual  privacy  particularly  from the  new                                                               
computer  age.   And, even  before the  [term] "new  economy" was                                                               
invented, there  were concerns about  the trading  and dispersion                                                               
of data and the level of  privacy that individuals would enjoy at                                                               
that time.   He offered that this is the  simple baseline history                                                               
behind  the  passage of  that  amendment  [to the  constitution].                                                               
What has  happened subsequent  to passage  is the  utilization of                                                               
that particular  constitutional amendment  by the  Alaska Supreme                                                               
Court and the  lower courts of this state to  determine whether a                                                               
person can smoke marijuana in  his/her home, or to determine "the                                                               
potential for  use of cocaine."   He  added that he  believed the                                                               
courts,  by   their  utilization  of  that   amendment  in  their                                                               
decisions,  have   corrupted  the   intent  of   that  amendment.                                                               
Therefore, he  opined, when Representative Berkowitz  posits that                                                               
the legislature, to protect its  own power, should wait until the                                                               
appellate  courts have  reached the  final determination  on this                                                               
issue,   is   disingenuous   in  terms   of   the   legislature's                                                               
REPRESENTATIVE  BERKOWITZ, in  review  of the  three branches  of                                                               
government, said there  is the executive branch  - it administers                                                               
the law; there is the legislative  branch - it makes the law; and                                                               
there is the  judiciary branch - it interprets the  law.  He went                                                               
on to  say that  in essence, what  he is being  told is  that the                                                               
judiciary branch  interpreted the  law incorrectly.   However, he                                                               
added, it  would seem to  him that those  who support HB  268 for                                                               
that reason  are violating the  separation of powers  rather than                                                               
supporting it.   He said he would  like to know at  what point do                                                               
"you"  think   it's  appropriate  for  the   courts  to  actually                                                               
interpret a constitutional amendment.                                                                                           
Number 1628                                                                                                                     
REPRESENTATIVE GREEN said:                                                                                                      
     The  judiciary branch,  in and  of itself,  has various                                                                    
     levels.  Those  are in there to  perhaps agree, perhaps                                                                    
     to  disagree with  their own  decisions that  are made.                                                                    
     You go  from a first  court to the second  court, which                                                                    
     may, in fact, change the  decision; go to another court                                                                    
     - may change  it back.  And that's why  we finally have                                                                    
     a supreme  court; that decision  is final.  But  to say                                                                    
     that  because  we  feel  that  there  has  been  a  ...                                                                    
     decision reached that  was in error, that we  as a body                                                                    
     do not have the right to  appeal -- we have that right,                                                                    
     we've exercised  that right, and  we have  actually had                                                                    
     the  supreme  court  overturn superior  courts  because                                                                    
     this body intervened.   So I think  the Minority Leader                                                                    
     is way  out of line  there.   The other thing  I think,                                                                    
     Mr. Chairman, when  he says that we should  sit back on                                                                    
     our hands  and wait 'til  this issue is decided  in the                                                                    
     courts, [is  that] in the  meantime ...  we're spending                                                                    
     15  times as  much money  to perform  abortions as  the                                                                    
     Hyde Amendment to the U.S.  Constitution provides.  And                                                                    
     I think ... it is time  that we interact and say, "Hey,                                                                    
     wait a  minute, you're  continuing, while this  case is                                                                    
     being appealed,  to require the state  to spend money,"                                                                    
     which  is not  in line  with  what ...  this body,  ...                                                                    
     empowered  by the  constitution,  determine[s] how  the                                                                    
     general fund is [spent].                                                                                                   
REPRESENTATIVE JAMES said:                                                                                                      
     I  would like  to set  another stage  here, and  [let's                                                                    
     just]   say   that   right   after   we   passed   this                                                                    
     constitutional amendment  in 1972 - where  it says that                                                                    
     ... the legislature shall implement  this section - had                                                                    
     we, at the next  legislative session, determined to say                                                                    
     that  "the right  of privacy  under Article  I, Section                                                                    
     22, does not create a  right to receive public money, a                                                                    
     public benefit, or  a public service", I  am quite sure                                                                    
     there wouldn't have been very much objection to that.                                                                      
Number 1735                                                                                                                     
     The problem  - what we have  here now - is  because the                                                                    
     subject of this  issue is driving this  argument, and I                                                                    
     think that  [it] is incorrect  for us to allow  that to                                                                    
     happen.  I think that  why we're here today, is because                                                                    
     ... the  legislature did not implement  this section as                                                                    
     the constitutional  amendment required  us to do.   And                                                                    
     so here  we are, in  the ninth hour, trying  to protect                                                                    
     ourselves from what we believe  is an improper decision                                                                    
     based  on   nothing  being  there  to   give  them  any                                                                    
     guidance.   And I think  that we as a  legislature need                                                                    
     to give them that guidance.                                                                                                
     Just  thinking of  another example:   What  if somebody                                                                    
     didn't  want to  tell anybody  how old  they were,  for                                                                    
     there own  privacy?   Would you  get a  longevity bonus                                                                    
     without telling people  how old you are?   You can keep                                                                    
     your privacy and  not say, but you're not  going to get                                                                    
     the money.   It's all the other different  things - the                                                                    
     benefits that  we have for  people - if you  don't want                                                                    
     to give up your private  information, ... you don't get                                                                    
     the money.   So, this is a simple thing  of saying that                                                                    
     right to privacy is [an]  entirely different section of                                                                    
     law  than ...  having  a benefit  of  public money  and                                                                    
     public  benefits that  we set  out for  people [within]                                                                    
     certain categories.                                                                                                        
Number 1793                                                                                                                     
     So  I  think  this  is entirely  proper;  I  think  the                                                                    
     argument  is prefaced  here because  of the  subject of                                                                    
     the  issue and  the court  decision that  we're talking                                                                    
     about.  Let's say that was  all gone - wasn't even here                                                                    
     before us  - this is  a good piece of  legislation, and                                                                    
     we ought to  look at it on its face  and see whether or                                                                    
     not we have  the authority to say  that privacy doesn't                                                                    
     give you any  benefits, any more than  anyone else, but                                                                    
     you have a  right to privacy.  Certainly,  I think this                                                                    
     does that, and  I think the argument should  be in that                                                                    
     regard, and not all this peripheral information.                                                                           
CHAIR ROKEBERG  reminded the  committee that  there are  those in                                                               
the state who  wish to be able to get  a driver's license without                                                               
divulging their  social security number,  and he used this  as an                                                               
example of how privacy and benefit fit together.                                                                                
REPRESENTATIVE  BERKOWITZ, on  that point,  said that  people are                                                               
required in many  instances to put their  social security numbers                                                               
on all  kinds of documents.   According to this  legislation, and                                                               
assuming the state does not  respect the privacy attendant to the                                                               
social security  number, the individual  would have no  cause for                                                               
complaint,  because  the  individual with  privacy  interests  in                                                               
his/her social  security number couldn't  use Article  I, Section                                                               
22,  to  complain about  the  failure  to receive  public  money,                                                               
public benefit, or public service.                                                                                              
CHAIR ROKEBERG said he disagreed.                                                                                               
REPRESENTATIVE  OGAN, with  regard to  Representative Berkowitz's                                                               
point that  the judiciary  interprets law,  said that  there have                                                               
recently  been a  number of  supreme  court cases  on the  "clear                                                               
statement" doctrine,  which he paraphrased as  saying "they can't                                                               
read into  things -  into laws -  something that  isn't expressly                                                               
stated."   He went on to  say that the fact  that the legislature                                                               
hasn't expressly "interpreted" that  section of the constitution,                                                               
begs a  legislative solution.  He  offered that this is  what the                                                               
legislature  is attempting  to do  [via  HB 268],  and that  this                                                               
[attempt]  is entirely  appropriate.   He  reiterated his  belief                                                               
that "the  court should interpret  what the will of  the peoples'                                                               
representatives are, not what their own personal biases are."                                                                   
REPRESENTATIVE BERKOWITZ  interpreted this to mean,  "the will of                                                               
the  people  as   seen  through  your  eyes."     The  danger  of                                                               
legislative intent  - and  it's recognized in  a whole  string of                                                               
court  decisions -  is  that  no two  legislators  have the  same                                                               
intent, he added.  Further,  there can be [different] expressions                                                               
by  the  framers   of  an  amendment,  and   people  can  support                                                               
legislation or oppose legislation  for entirely separate reasons;                                                               
this is  why courts are  there to  interpret language.   He noted                                                               
that courts  are also supposed to  interpret [statutory language]                                                               
based on the face [of it].                                                                                                      
CHAIR ROKEBERG again requested decorum be maintained.                                                                           
Number 1981                                                                                                                     
REPRESENTATIVE  COGHILL remarked  that the  issue of  whether the                                                               
right to  public funds is protected  by the right of  privacy has                                                               
been  brought   to  light  by   Judge  Tan's  decision   and  the                                                               
administration's appeal to  the supreme court.  He  added that he                                                               
thinks  the  legislature,   as  well  as  any   other  branch  of                                                               
government, needs to make a policy call.   He said that HB 268 is                                                               
attempting to say that "public funding  is not meant to take away                                                               
a right, but, certainly, that right  does not confer the right to                                                               
the public coffer."                                                                                                             
REPRESENTATIVE  BERKOWITZ noted  that members  keep returning  to                                                               
the abortion  issue, and he opined  that if the intent  of HB 268                                                               
is to express the legislature's  will that public funds shall not                                                               
be  used to  fund  abortions, then  that's  what the  legislation                                                               
ought  to  say.     He  suggested  that  failure  to   do  so  is                                                               
constitutionally overbroad.                                                                                                     
CHAIR  ROKEBERG   reminded  Representative  Berkowitz   that  the                                                               
legislature has  already spoken on  the abortion issue  but since                                                               
the courts have "thrown that  out," [separation of powers] is the                                                               
issue  here.   [The  courts]  have  overturned  the will  of  the                                                               
legislature  in its  right  to appropriate;  that's  why this  is                                                               
clearly a separation  of powers issue, he added.   He agreed with                                                               
prior   comments  that   had  the   legislature  acted   on  [the                                                               
implementation provision  of Article I,  Section 22] when  it was                                                               
first adopted, there would be  no need for this whole discussion.                                                               
But, he  added, the legislature didn't;  instead, the legislature                                                               
allowed the  courts to implement  the right to privacy  [for] the                                                               
citizens of Alaska.   All [the legislature is doing  via HB 268],                                                               
he   offered,   is   taking  a   step   towards   asserting   its                                                               
constitutional  right to  implement  [Article I,  Section 22]  as                                                               
[the  legislature] perceives  is  correct.   He  opined that  the                                                               
legislature would be  remiss if it did not take  action to defend                                                               
its constitutional right  of appropriation.  He  also opined that                                                               
the issue  is not  abortion; the issue  is separation  of powers.                                                               
He then  mentioned that he and  Representative Berkowitz probably                                                               
share  a similar  point  of view  with regard  to  the [issue  of                                                               
abortion], but  he also  "stands with" the  other members  of the                                                               
committee with regard the separation of powers issue.                                                                           
Number 2106                                                                                                                     
REPRESENTATIVE  BERKOWITZ,  after  noting that  the  conversation                                                               
alternates between  abortion and separation of  powers, said that                                                               
on the  separation of  powers argument  he wished  to read  a few                                                               
lines from a case he had looked up:                                                                                             
     Although    the   legislature    has   the    exclusive                                                                    
     appropriations  power,  this  does not  mean  that  the                                                                    
     exercise  of  that  power  is  without  limit  and  not                                                                    
     subject  to  judicial  scrutiny.     Since  Marbury  v.                                                                  
     Madison,    courts    have    imposed    constitutional                                                                  
     requirements   on  the   exercise   of  executive   and                                                                    
     legislative power.   The Alaska Supreme  Court has held                                                                    
     that  when an  infringement of  a constitutional  right                                                                    
     results  from legislative  action,  the  court can  not                                                                    
     defer to the legislature.                                                                                                  
REPRESENTATIVE  BERKOWITZ  asked  whether Chair  Rokeberg  agreed                                                               
with  the  premise that  when  infringement  of a  constitutional                                                               
right results from legislative action,  the court cannot defer to                                                               
the legislature.                                                                                                                
CHAIR ROKEBERG said  the issue is debatable with  regards to what                                                               
is considered a true constitutional right.                                                                                      
REPRESENTATIVE  BERKOWITZ  questioned  whether  Chair  Rokeberg's                                                               
argument  is   that  the   right  to  privacy   is  not   a  true                                                               
constitutional right.                                                                                                           
CHAIR ROKEBERG responded:                                                                                                       
     Not at  all.  I  think we're talking  about, basically,                                                                    
     the  power of  appropriation.   And,  as  you say,  the                                                                    
     courts   will  endeavor   to   limit   that  power   of                                                                    
     appropriation  as  they  have  here  in  the  state  of                                                                    
     Alaska.   And  the Kasayulie  case is  another example:                                                                  
     we're  not spending  enough, so  that's another  issue.                                                                    
     It happens all  the time where there is  a conflict and                                                                    
     friction between  the different branches  of government                                                                    
     and [is] what  makes America a great  country, but it's                                                                    
     up to  us to try to  assert our rights also.   Don't we                                                                    
     have  that right?   Don't  we have  that obligation  to                                                                    
     assert our rights when we think it's being infringed?                                                                      
REPRESENTATIVE  BERKOWITZ said  he thinks  [the legislature]  has                                                               
the  obligation  to  assert  its  rights  in  a  constitutionally                                                               
permissible  way,   and  when  [the  legislature]   is  pondering                                                               
legislation  that is  on its  face unconstitutional  as a  way of                                                               
generating  a court  challenge, that's  impermissible; that's  an                                                               
unlawful and a wrongful exercise of authority.                                                                                  
CHAIR ROKEBERG  argued that [HB  268] is not  unconstitutional on                                                               
its face.                                                                                                                       
Number 2202                                                                                                                     
REPRESENTATIVE  COGHILL  said  that although  he  can  appreciate                                                               
Representative Berkowitz's argument, it  is off base because with                                                               
certain constitutional rights, the right  is to be implemented by                                                               
law.  He  added, however, that there are certain  basic rights in                                                               
the  Bill of  Rights  that  aren't interpreted  by  law that  are                                                               
fundamental.   He indicated  he was quoting  from the  court case                                                               
appeal to the supreme court:   "In conclusion, the Alaska privacy                                                               
right is not absolute."  He  added that otherwise there would not                                                               
be an implement-by-law section in it.   And although the right to                                                               
privacy  is guaranteed,  he surmised  that the  implementation of                                                               
that right becomes  problematic.  He opined that  the courts have                                                               
"brought us  to the  place where that  distinction needs  to [be]                                                               
made now,  and certainly on  funding issues it's important.   ...                                                               
It is just  [that] the abortion issue happens to  be right in the                                                               
center of that funding debate."   He still asserted, though, that                                                               
the legislature  has the  right to "implement  by law,"  and that                                                               
the right of privacy does not guarantee funding.                                                                                
REPRESENTATIVE GREEN said he takes  issue with the statement made                                                               
by Representative Berkowitz  that if HB 268 is  an abortion bill,                                                               
then it  should say abortion  in it.  He  offered that HB  268 is                                                               
not an  abortion bill;  it is  broader than  that.   He recounted                                                               
that  a   few  years  ago,  the   legislature  categorized  which                                                               
afflictions  would be  first [funded],  and that  the court  "has                                                               
reached in  and taken  the bottom  one and  said 'No,  this one's                                                               
going be  up here.'   If we were going  to make this  an abortion                                                               
issue, then  we would  probably have  to do  the same  thing with                                                               
mental surgery,  arm surgery,  leg surgery,"  and he  opined that                                                               
this is the reason that "this is particularly broad."                                                                           
CHAIR ROKEBERG surmised that Representative Green is making the                                                                 
argument that the courts are saying [the legislature] should                                                                    
chose dental care over eyeglasses.                                                                                              
REPRESENTATIVE GREEN said, "they would have the right, according                                                                
to Representative Berkowitz ...."                                                                                               
CHAIR ROKEBERG added:  "It's like saying if you have breast                                                                     
cancer you have a greater right to the money than somebody that                                                                 
has colon cancer.  That's not right."                                                                                           
Number 2301                                                                                                                     
REPRESENTATIVE JAMES said:                                                                                                      
     While you're  having this little debate,  I've been ...                                                                    
     thinking  about all  the benefits  that we  provide for                                                                    
     the people in this state,  and every benefit that I can                                                                    
     think  of  requires  them  to give  up  some  of  their                                                                    
     private information to get it.   Now, we do a very good                                                                    
     job,  I think,  in  this  state, to  try  to keep  that                                                                    
     information as private  as we can so that  it's not out                                                                    
     there  for the  general population  to know  about ....                                                                    
     But we still, by them having  to divulge a lot of their                                                                    
     very   personal  private   information  to   get  these                                                                    
     benefits, we're  saying here that the  right to privacy                                                                    
     doesn't  necessarily  give  them these  benefits.    In                                                                    
     other words,  there's no  direct relationship  to their                                                                    
     right  to  privacy;  they  can  claim  their  right  to                                                                    
     privacy right  down to the  bare nothing, and  they get                                                                    
     nothing, because almost every  benefit - I'm sure every                                                                    
     benefit -  that we  have, requires  you giving  some of                                                                    
     your personal  information to get it,  which, according                                                                    
     to  this,  is  what  I  think  privacy  is  all  about.                                                                    
     Privacy is keeping ... who  you are, where you are, and                                                                    
     everything  about you  personally, private.   And  so I                                                                    
     think  that this  language in  here that  says that  it                                                                    
     doesn't  give them  a right  to  receive public  money,                                                                    
     public benefit,  or public service  is the way  we have                                                                    
     been  managing our  government for  a long  time.   And                                                                    
     except  for this  one little  infraction  that we  have                                                                    
     here, by the court making  a decision based on the fact                                                                    
     that  we  have  never implemented  this  constitutional                                                                    
     amendment, is  only here  because of  the controversial                                                                    
     nature  of  the  subject  of  this.    However,  it  is                                                                    
     imperative, I believe,  that we get this in  as soon as                                                                    
     possible so  we don't have  this same issue  on another                                                                    
REPRESENTATIVE   OGAN   paraphrased   from   the   powers-of-the-                                                               
legislature section, [page 53],  in Gordon S. Harrison's Alaska's                                                             
Constitution A Citizen's Guide:                                                                                               
     Delegation  of legislative  power must  be sufficiently                                                                    
     narrow and  specific to  give the  administrative agent                                                                    
     reasonable standards  to follow and the  courts a basis                                                                    
     for determining when the agent  had exceeded the bounds                                                                    
     of the  delegated authority.   Measures that  fail this                                                                    
     test are unconstitutional.                                                                                                 
REPRESENTATIVE  OGAN  opined  that   this  constitutes  a  "clear                                                               
statement  doctrine,"   and  he  made  the   argument  that  [the                                                               
legislature, via  HB 268,] is  trying to give  the administrative                                                               
agents (and the courts) some  clear direction such that the right                                                               
to privacy  is not an  entitlement to an appropriation,  which is                                                               
well within the powers of the legislature.                                                                                      
Number 2410                                                                                                                     
CHAIR ROKEBERG  noted that the Legal  Services' opinion indicates                                                               
that although saving money is a  legitimate goal, it may not rise                                                               
to the  level that would allow  for an infringement on  the right                                                               
of privacy,  if, in  fact, the court  found it to  be a  right of                                                               
privacy.  He asked Representative  Green to comment on whether he                                                               
thought   that  the   legislature's  right   to  appropriate   is                                                               
paramount,  vis-a-vis   "just  the   mere  act  of   the  court's                                                               
appropriation of money."                                                                                                        
REPRESENTATIVE  GREEN  opined:   "definitely;  it's  an  absolute                                                               
right for  the legislature, and  we should defend it  with vigor.                                                               
And that's what this is all  about.  We're trying to defend that,                                                               
and  that's where  we, I  think, come  head on  in this  conflict                                                               
between separation of powers."                                                                                                  
REPRESENTATIVE BERKOWITZ said:                                                                                                  
     First  of all,  again, this  is the  wrong forum  to be                                                                    
     fighting a separation of powers;  we don't pass laws in                                                                    
     order to fight  a separation of powers issue.   We file                                                                    
     lawsuits, and  we do a lot  of those.  Secondly,  as to                                                                    
     what Representative Ogan said, if  this is such a clear                                                                    
     direction that  we're offering to the  agencies, again,                                                                    
     I reiterate my request -  tell me which services, which                                                                    
     monies, which  benefits are going to  be impacted; give                                                                    
     me a  list.  Itemize  them for  me.  And,  finally, I'd                                                                    
     point  out,  for  those  of   you  who  are  trying  to                                                                    
     challenge the Sen  Tan decision - and  I realize that's                                                                    
     a large  chunk of  the intent  here -  let me  read the                                                                    
     last sentence  of the decision:   "The  conclusion I've                                                                    
     reached is  based upon the  right of the  individual to                                                                    
     the constitutional right of privacy.   Not on the right                                                                    
     of  women to  government  funding."   So,  there is  no                                                                    
     government funding here based on the right of privacy.                                                                     
TAPE 01-80, SIDE B                                                                                                              
Number 2461                                                                                                                     
REPRESENTATIVE  BERKOWITZ concluded  by  saying,  "this bill,  as                                                               
it's written, doesn't even do what it sets out to do."                                                                          
CHAIR ROKEBERG asked whether there  was anyone else who wished to                                                               
testify  on HB  268.   Noting there  was no  response, he  closed                                                               
public testimony.                                                                                                               
Number 2444                                                                                                                     
REPRESENTATIVE OGAN moved to report  HB 268 out of committee with                                                               
individual  recommendations and  the  accompanying "zero"  fiscal                                                               
Number 2440                                                                                                                     
REPRESENTATIVE BERKOWITZ objected.                                                                                              
Number 2420                                                                                                                     
A  roll  call  vote  was taken.    Representatives  James,  Ogan,                                                               
Coghill,  Meyer, and  Rokeberg voted  for HB  268. Representative                                                               
Berkowitz voted against  it.  Therefore, HB 268  was reported out                                                               
of the House Judiciary Standing Committee by a vote of 5-1.                                                                     
Number 2408                                                                                                                     
There  being  no further  business  before  the committee,  Chair                                                               
Rokeberg  announced at  approximately  3:00 p.m.  that the  House                                                               
Judiciary Standing Committee meeting would recess until 5/6/01.                                                                 

Document Name Date/Time Subjects