02/11/1998 01:10 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 11, 1998
1:10 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Jeannette James
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 44
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature.
- MOVED CSHJR 44(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 267
"An Act relating to domestic violence and sexual assault; and
providing for an effective date."
- RESCINDED ACTION OF 2/9/98; MOVED CSHB 267(JUD) OUT OF
COMMITTEE
HOUSE JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the State of Alaska
relating to freedom of conscience.
- HEARD AND HELD
HOUSE BILL NO. 252
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
- HEARD AND HELD
HOUSE BILL NO. 273
"An Act relating to notification of the public concerning sex
offenders."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 44
SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING
SPONSOR(S): REPRESENTATIVES(S) PORTER, MULDER, Dyson, Green
Jrn-Date Jrn-Page Action
01/12/98 2020 (H) PREFILE RELEASED 1/9/98
01/12/98 2020 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/98 2020 (H) JUDICIARY, FINANCE
01/14/98 2048 (H) COSPONSOR(S): DYSON
01/23/98 2121 (H) COSPONSOR(S): GREEN
02/06/98 (H) JUD AT 1:00 PM CAPITOL 120
02/06/98 (H) MINUTE(JUD)
BILL: HB 267
SHORT TITLE: DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE
SPONSOR(S): REPRESENTATIVES(S) KELLY, Dyson
Jrn-Date Jrn-Page Action
04/30/97 1409 (H) READ THE FIRST TIME - REFERRAL(S)
04/30/97 1409 (H) JUDICIARY
02/02/98 (H) JUD AT 1:00 PM CAPITOL 120
02/02/98 (H) MINUTE(JUD)
02/09/98 (H) JUD AT 1:00 PM CAPITOL 120
02/09/98 (H) MINUTE(JUD
BILL: HJR 5
SHORT TITLE: CONSTIT AMNDMNT: FREEDOM OF CONSCIENCE
SPONSOR(S): REPRESENTATIVES(S) MARTIN
Jrn-Date Jrn-Page Action
01/13/97 22 (H) PREFILE RELEASED 1/3/97
01/13/97 22 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 23 (H) STATE AFFAIRS, JUDICIARY, FINANCE
02/25/97 (H) STA AT 8:00 AM CAPITOL 102
02/25/97 (H) MINUTE(STA)
02/27/97 (H) STA AT 8:00 AM CAPITOL 102
02/27/97 (H) MINUTE(STA)
01/20/98 (H) STA AT 8:00 AM CAPITOL 102
01/20/98 (H) MINUTE(STA)
01/27/98 (H) STA AT 8:00 AM CAPITOL 102
01/27/98 (H) MINUTE(STA)
01/30/98 2176 (H) STA RPT 5DP 1DNP
01/30/98 2177 (H) DP: JAMES, IVAN, DYSON, VEZEY,
HODGINS
01/30/98 2177 (H) DNP: ELTON
01/30/98 2177 (H) FISCAL NOTE (GOV)
01/30/98 2177 (H) REFERRED TO JUDICIARY
02/11/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 252
SHORT TITLE: REGISTRATION OF SEX & CHILD OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) RYAN
Jrn-Date Jrn-Page Action
04/16/97 1122 (H) READ THE FIRST TIME - REFERRAL(S)
04/16/97 1122 (H) JUDICIARY, FINANCE
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
05/08/97 (H) JUD AT 8:30 AM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/24/97 (H) MINUTE(JUD)
10/24/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
02/04/98 (H) MINUTE(JUD)
02/11/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 273
SHORT TITLE: NOTIFY COMMUNITY ABOUT SEX OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) MASEK
Jrn-Date Jrn-Page Action
05/08/97 1656 (H) READ THE FIRST TIME - REFERRAL(S)
05/08/97 1656 (H) JUDICIARY
10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/24/97 (H) MINUTE(JUD)
10/24/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
02/04/98 (H) MINUTE(JUD)
02/11/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
TIMOTHY SULLIVAN, JR., Legislative Assistant
to Representative Eldon Mulder
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-2647
POSITION STATEMENT: Provided information on behalf of joint
sponsor of HJR 44.
REPRESENTATIVE TERRY MARTIN
Alaska State Legislature
Capitol Building, Room 502
Juneau, Alaska 99801
Telephone: (907) 465-3783
POSITION STATEMENT: Sponsor of HJR 5.
JANET OATES, Director
Marketing and Government Relations
Providence Health System
P.O. Box 196604
Anchorage, Alaska 99519
Telephone: (907) 261-4943
POSITION STATEMENT: Testified on HJR 5; supported constitutional
amendment on conscience but had suggestions.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99520
Telephone: (907) 258-0044
POSITION STATEMENT: Testified in opposition to HJR 5.
TED DEATS, Legislative Secretary
to Representative Terry Martin
Alaska State Legislature
Capitol Building, Room 502
Juneau, Alaska 99801
Telephone: (907) 465-3783
POSITION STATEMENT: Testified as citizen of Alaska on HJR 5.
DOROTHY McDOWELL
9499 Moraine Way
Juneau, Alaska
Telephone: (907) 789-7627
POSITION STATEMENT: Testified in support of HJR 5.
SID HEIDERSDORF
Alaskans for Life
P.O. Box 020658
Juneau, Alaska 99802
Telephone: (907) 789-9858
POSITION STATEMENT: Testified in support of goals of HJR 5, but
suggested it be limited to life issues.
TED BACHMAN, Captain
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507
Telephone: (907) 269-5650
POSITION STATEMENT: Testified on HB 252.
PAUL SWEET
P.O. Box 1562
Palmer, Alaska 99645
Telephone: (907) 745-2242
POSITION STATEMENT: Testified on HB 252.
SUSAN G. WIBKER, Assistant Attorney General
Human Services Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Provided suggestions on HB 252, on behalf of
Anne Carpeneti of the Criminal Division.
SHIRLEY MARSHALL
P.O. Box 406
Tok, Alaska 99780
Telephone: (907) 883-5311
POSITION STATEMENT: Provided suggestions on HB 273.
ACTION NARRATIVE
TAPE 98-15, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:10 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Rokeberg and Berkowitz.
Representative Croft arrived at 1:13 p.m.
HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING
CHAIRMAN GREEN announced the first item of business would be a
revisit of HJR 44, proposing amendments to the Constitution of the
State of Alaska relating to redistricting of the legislature.
Number 0042
REPRESENTATIVE BRIAN PORTER, joint sponsor of HJR 44, advised
members that he, his staff member Jim Sourant, joint sponsor
Representative Mulder, and Representative Mulder's staff member,
Tim Sullivan, had gone over comments and suggestions from the
previous meeting. He stated the belief that the new proposed
committee substitute responds to most of those concerns.
Number 0090
REPRESENTATIVE CON BUNDE made a motion to adopt version 0-LS0528\M,
dated 2/9/98, as a work draft. There being no objection, it was so
ordered.
Number 0111
REPRESENTATIVE PORTER went through Version M to point out how they
had amended the original resolution. On page 2, line 24, language
is added, although it is basically returning to the language of the
original constitution. Representative Porter explained, "It's
placed here and in the article above, so as to establish, as per
federal court rule, that the first thing in reapportionment is the
equal distribution of the population into the election districts,
and after that, as it indicates, that we can look at compactness
and contiguousness and relatively integrated socioeconomic areas."
REPRESENTATIVE PORTER referred to page 3, line 3, which adds the
language, "and during the tenure of", to the prohibition of members
of the apportionment board. He commented, "Having been state
employees, obviously, they shouldn't be a state employee while
they're in that capacity, either."
REPRESENTATIVE PORTER referred to page 3, line 16. He explained,
"Just to make clear that the board should stay in place until all
of their work is done, we're saying that this article has been
resolved after final remand or affirmation, not upon, so that they
do have to correct their work and reissue it after it's remanded
from a court."
REPRESENTATIVE PORTER referred to page 3, line 23. He said if one
body organizes as a whole, which the Senate did once with a 20-member "majority
basically would elect their minority appointing authority.
Number 0311
REPRESENTATIVE PORTER continued, "At the request of the court, on
line 4 of page 4, if the four members appointed by the respective
members of the legislature could not come up with a fifth, we have
indicated now that the chief justice, by himself or herself, would
appoint that member, rather than a three-way grouping of the
speaker and the minority leader and the chief justice."
Number 0346
REPRESENTATIVE PORTER referred to page 5, line 7. He said language
has been changed to clarify that the 90-day period for action
starts the later of the appointment process being culminated or the
issuance of the decennial information; both must be in place.
REPRESENTATIVE PORTER said on line 20, they had taken out, "except
as provided in (c) of this section," because (c) of this section
has been deleted. This basically returns to existing
constitutional language which provides that any citizen can
challenge the appropriateness of the reapportionment plan, under
the process now in place in the constitution. The only significant
change is on line 21, that upon a final judicial decision that a
plan is invalid, the case shall be returned to the board for
correction and development of a new plan. The plan will be
completed, finally, by the reapportionment board and not by a
master or by some level of the court.
Number 0483
REPRESENTATIVE NORMAN ROKEBERG questioned the reference to line 21.
CHAIRMAN GREEN said it is actually line 18.
REPRESENTATIVE PORTER added that it begins on line 18 but that he
himself was reading off another version which had been corrected.
He acknowledged the line numbers may be off.
Number 0525
REPRESENTATIVE PORTER advised members that those are the changes
the sponsors had discussed, which he suggested reflect even Mr.
Baldwin's concerns about the complexity of the appeal process, for
example.
CHAIRMAN GREEN expressed appreciation for the efforts and said it
had taken care of his own concerns and the concerns of the
committee. He asked whether anyone felt otherwise, or whether
there were questions about Version M.
Number 0565
REPRESENTATIVE ROKEBERG asked Representative Porter to briefly go
through how the appeal process would change.
REPRESENTATIVE PORTER explained that the board is required to come
up with a plan in 30 days and then have hearings on the plan or
plans that they have developed, and to present a proclamation at
the end of 90 days, which would constitute their reapportionment
plan. If a citizen feels that plan is in error, or has a
constitutional challenge to the plan, it is brought before the
superior court and that issue is litigated at the trial level.
Representative Porter noted that they had eliminated the necessity
of ever considering litigation at the supreme court level.
REPRESENTATIVE PORTER continued. If it is returned to the board by
the superior court for correction, without an appeal of that
decision - which could be appealed by either side - they would
issue a corrected plan. If it were appealed to the supreme court
and that court agreed there had been an error, that court would
return it to the board for correction and reissuance.
REPRESENTATIVE PORTER stated, "Either court would maintain
concurrent jurisdiction, so that if they were not satisfied with
the final plan, that they send back an instruction to do 'A,' and
the plan came out with 'B,' then obviously it would not be in
conformance with the court order, and they would be asked to
reevaluate their position." He said that is the current
constitutional provision, with the exception of specifically saying
that it should be returned for correction.
Number 0716
REPRESENTATIVE ROKEBERG suggested if they go through the full
appeal process to the supreme court, and it is remanded to the
apportionment board, it could be a perpetual motion machine. He
asked whether there is any point at which they can stop the
process.
CHAIRMAN GREEN replied, "None, other than the fact that the remand,
the supreme court would suggest what the problem was, and it would
be up to the board to fix that." He said it is no different from
the way it is now, except for who fixes it.
REPRESENTATIVE ROKEBERG asked what would prohibit a citizen from
bringing another suit and what would happen then.
Number 0794
REPRESENTATIVE PORTER pointed out that there is language in the
constitution, which they have retained, that the suits have to be
filed within a certain length of time after issuance of the
proclamation. He directed members' attention to page 5, line 26,
which says, "Application to compel the board to perform must be
filed not later than thirty days following the date that the duty
is required to be done under this article."
REPRESENTATIVE ROKEBERG requested a translation.
REPRESENTATIVE PORTER explained, "Well, it means that ... if the
reapportionment board has 90 days to issue a plan and they do so,
within 30 days of that issuance, if anyone has a contention that
... the plan is in error, they must file their case."
Number 0872
REPRESENTATIVE ROKEBERG referred to his original question and asked
whether someone couldn't file an action on a second plan developed
by the board.
CHAIRMAN GREEN said not according to the way this is written.
REPRESENTATIVE PORTER said not according to current constitutional
provisions.
Number 0903
REPRESENTATIVE BUNDE suggested that although of course someone
could file a case, if the court found the challenge invalid, it
would stop the cycle.
Number 0941
REPRESENTATIVE PORTER replied, "I may be using the wrong legal
term, but I think if someone filed after the time had elapsed for
filing a case, much like someone filing a tort case after the
statute of limitations had run out, they would be told, 'You don't
have standing.'"
CHAIRMAN GREEN commented, "I would think if they tried to exercise
some thought that this plan now is changed, and so I should have 30
days from the new plan, ... I don't think that would read well."
Number 0971
REPRESENTATIVE ROKEBERG asked whether Chairman Green was suggesting
there is only one opportunity for public appeal.
CHAIRMAN GREEN replied that as he reads it, a person has 30 days
after the final plan is adopted.
REPRESENTATIVE ROKEBERG asked whether that 30-day run is just for
the first plan, not the second plan.
CHAIRMAN GREEN said that is what he is suggesting.
REPRESENTATIVE ROKEBERG said it is not clear from the language.
CHAIRMAN GREEN noted that attorneys were present.
Number 1011
REPRESENTATIVE ETHAN BERKOWITZ said he was also somewhat confused
about the time line. He stated, "It would seem to me if someone
has a complaint against a second plan, that oughtn't be precluded
by language in the bill."
REPRESENTATIVE ROKEBERG restated that he doesn't see how they can
restrict the right to file an action on a second plan. For
example, what if the second plan is worse than the first?
Number 1089
REPRESENTATIVE PORTER said he could see, as often happens when
trying to explain something better, that it has become more
ambiguous. Referring to Section 9, he specified that it is the
intent that there be one period for filing suit, and that is after
the original proclamation. He suggested that the existing language
probably says it better than what they had tried to add, with one
exception. He stated, "If members would like, we could strike,
'thirty days following the,' strike the new language, but add the
old language, only amended to say, 'expiration of the two' -- 'of
the 90-day period specified in this article,' which refers up,
then, to line 7, 'No later than 90 days after the board has been
appointed and the decennial census has been released, the board
shall adopt a final reapportionment plan.'"
Number 1154
REPRESENTATIVE ROKEBERG asked whether there is any case law on that
particular point of the existing constitutional interpretation.
REPRESENTATIVE PORTER replied, "I don't think it's ever been
challenged, because it was pretty clear before we changed it. So,
maybe we should return to the language we had."
REPRESENTATIVE ROKEBERG expressed concern about the public's
understanding.
Number 1172
REPRESENTATIVE PORTER indicated he wanted to make an amendment.
CHAIRMAN GREEN noted that Representative Bunde had a question.
Number 1186
REPRESENTATIVE BUNDE said, "You've got the 30 days; someone files
a challenge; the superior court - supreme court, one or the other -
remands it back to the board. ... Is the board required to come out
with the same plan? Or can it attempt to solve the problem by
creating a whole new plan?"
REPRESENTATIVE PORTER replied that it can do either, but generally
the court's instructions are quite specific. Whatever the new plan
might be, the instructions would have to be met. He noted that the
court retains jurisdiction.
CHAIRMAN GREEN suggested that any additional litigation would be on
the change, rather than on the total plan, unless they had changed
the total plan.
Number 1240
REPRESENTATIVE BUNDE stated his understanding that the courts are
not to draw the plan. If there is a plan and a challenge to it,
and the courts find in favor of the challenge, the courts would
send the plan back, with instructions to come up with a plan that
addresses these challenges. He stated, "Now, if the court says you
must do it in this fairly narrow confine, then they are essentially
drawing the plan, based on the original plan, and preclude the
board from coming up with a whole new solution. Is that correct?"
REPRESENTATIVE PORTER responded that they are talking about
hypotheticals, so it is hard to say. He explained that generally
a challenge would be made that some area or group was disadvantaged
somehow by drawing a line. If that challenge was sustained by the
court, they would so indicate, and that line would have to be moved
so as to remove the disadvantage. Representative Porter stated,
"And I would suspect that the court would give guidelines on what
that movement should be. It's hard to imagine that an entire new
plan would be developed to try to correct something like that."
Number 1325
REPRESENTATIVE BUNDE acknowledged they may be debating
hypotheticals. However, there may be a domino effect from moving
one line. He asked whether that constitutes a whole new plan or is
simply reacting to the court's question.
Number 1350
CHAIRMAN GREEN suggested that if that change adversely affected
someone else, he supposed they could bring it up.
REPRESENTATIVE BUNDE referred to Representative Rokeberg' concerns
about a perpetual cycle, and he said, "I think the cycle goes until
the courts say, 'This is a legitimate plan.' And if it takes three
cycles, that's what it takes."
CHAIRMAN GREEN asked what Representative Porter's suggestion was.
Number 1376
REPRESENTATIVE PORTER answered that first of all, that possibility
is in the constitution right now. He stated, "I guess the
additional things in this bill that serve to address those kinds of
extremely unusual eventualities are, one, unlike the current
language, we leave in place the existing reapportionment plan, so
that if litigation extends past the point where you have to start
printing ballots and that sort of thing, they will be printed based
on the previous plan. That's just not addressed currently in the
constitution, and that's one of the reasons that the court took it
upon itself to remand the third time to a superior court, rather
than to the reapportionment board. But there is an accommodation
now for the other plans, so that that wouldn't mess up ... an
election."
REPRESENTATIVE PORTER said it would be his guess that if the court
issued an order and remanded it to the board, and the board wrote
a plan that didn't conform to that order, the court of course would
retain jurisdiction and require them to redo it. But this provides
that the four members of the apportionment board that were
appointed by the legislative representatives can be changed for no
cause. He suggested that says, okay, if you guys can't get it
right, we'll find someone that can.
Number 1482
REPRESENTATIVE ROKEBERG responded that when it is remanded to the
board, whatever comes out of that board is the new plan. He asked
whether that wouldn't also be subject to challenges by citizens.
REPRESENTATIVE PORTER answered that by the current constitutional
provisions, no.
REPRESENTATIVE ROKEBERG indicated that doesn't seem apparent, the
way it is drafted, which is why he'd asked whether there is any
case law.
Number 1510
REPRESENTATIVE PORTER agreed the language they had added is
confusing to that point. He suggested if the desire is to only
have that one period, they shouldn't use the language on page 5,
lines 28 and 29. Instead, they should return to the original
language, deleting the need for two 90-day periods, because they
had amended that to only one 90-day period.
REPRESENTATIVE ROKEBERG asked whether the two 90-day periods might
have meant there would be two cycles.
REPRESENTATIVE PORTER replied that this was language to conform
with the way it had been worded previously.
REPRESENTATIVE ROKEBERG again suggested that when a second or third
plan comes out of the board, there would be a right to file a suit
at that point.
Number 1595
REPRESENTATIVE PORTER replied that quite frankly, the way it is
written, he thinks that is what it says. There is a requirement
for the board to issue a corrected proclamation after remand from
the court; that is a duty. "And by the way this reads now, which
I don't think was intended, that would allow another 30-day period
for a suit," he concluded.
REPRESENTATIVE ROKEBERG asked for confirmation that it is the
sponsors' intent to not allow that.
REPRESENTATIVE PORTER affirmed that. He suggested going back to
the original language.
Number 1634
REPRESENTATIVE ROKEBERG referred to page 6, line 1. Noting that
the word "final" appears on lines 1 and 7, relating to adoption of
the final plan by the board and a final judicial decision, he asked
what the intent is.
REPRESENTATIVE PORTER said line 7 indicates the final judicial
decision could be coming out of the superior court if it is not
appealed; if it is appealed, it could come out of the supreme
court.
REPRESENTATIVE ROKEBERG asked whether it speaks to the issue they
had just been discussing.
REPRESENTATIVE PORTER said no.
Number 1698
REPRESENTATIVE PORTER made a motion to adopt Amendment 1, "which
will be the deletion on page 5, line 28, of the phrase, 'date that
the duty is required to be done under', and reinserting the phrase,
'expiration of the 90-day period specified in this article.'"
CHAIRMAN GREEN stated, "So, you're taking out 'EITHER OF' and 'TWO'
in the bolder print."
REPRESENTATIVE PORTER said yes.
REPRESENTATIVE ERIC CROFT added, "'S' after 'PERIODS'."
REPRESENTATIVE PORTER stated, "And an 'S'."
Number 1750
CHAIRMAN GREEN asked whether there was any objection.
Number 1781
REPRESENTATIVE BERKOWITZ indicated he wanted to understand the time
line. He said the census comes out, this board comes together, and
once the board comes together, it has 90 days to come up with a
plan.
REPRESENTATIVE PORTER referred to line 7. He said that no later
than 90 days after the board has been appointed and the decennial
population has been released, the board shall adopt a final
reapportionment plan. So, the 90 days wouldn't run if the census
was out but the board wasn't together, and it wouldn't run if the
board was together and the census didn't come out.
Number 1822
REPRESENTATIVE BERKOWITZ suggested the one fixed date in this is
the release of the census report.
CHAIRMAN GREEN asked whether Representative Berkowitz was thinking
they may have trouble forming the board, then pointed out the
likelihood that the board will be convened well ahead of that.
REPRESENTATIVE PORTER said under a normal scenario, the board would
be in place and have 30 days to set up the procedures that they
would follow when they get the information, including getting the
computer system in place that will take the data and apply it to
the state, for example.
Number 1853
REPRESENTATIVE BERKOWITZ said he was thinking of an example where
the minority leader sees a census report that comes out as being
very unfavorable, resulting in a reduced minority. He asked
whether someone on the board could prevent the board from
convening.
Number 1872
REPRESENTATIVE PORTER answered that anyone can sue the board for an
error or for failing to perform a duty. If people boycott
meetings, there could be a suit or, more expeditiously, the
legislature could reappoint.
CHAIRMAN GREEN asked for confirmation that Representative Berkowitz
wasn't talking about someone feeling there was an error in the
census.
REPRESENTATIVE BERKOWITZ said not an error in the census, but there
is a possibility that for a political advantage, one side or the
other may refuse to convene and make it as difficult as possible
for the board to come together.
Number 1910
TIMOTHY SULLIVAN, JR., Legislative Assistant to Representative
Eldon Mulder, Alaska State Legislature, spoke on behalf of the
joint sponsor. He stated that one of the key elements in this is
that any three members of the board can hold meetings and continue
actions as the board. If one member decides not to participate,
the other four members of the board can continue.
REPRESENTATIVE BERKOWITZ posed a situation where the Democrats
don't appoint the two people to the board.
MR. SULLIVAN said they are required to do it within 15 days of
forming leadership for the legislature, under HJR 44.
REPRESENTATIVE BERKOWITZ asked what would happen if no leadership
formed.
MR. SULLIVAN replied, "Well, you have to have a speaker and you
have to have president of the Senate in order to do any business in
the legislature."
REPRESENTATIVE BERKOWITZ responded, "But you don't have to have a
minority leader."
Number 1953
REPRESENTATIVE PORTER replied that there will be a constitutional
requirement for the minority party, if it is an organization of the
whole, or the minority organization to elect a minority appointing
authority. If the minority couldn't agree on a leader for some
reason, it wouldn't preclude their requirement to elect a minority
appointing authority; it is a constitutional requirement.
Representative Porter indicated he doesn't believe a minority
group, no matter what the political party, would fail to meet the
constitutional mandate.
REPRESENTATIVE BERKOWITZ noted that they might not wind up with a
speaker for a while, either.
Number 2001
REPRESENTATIVE CROFT pointed out that the fifth member is appointed
by the chief justice of the supreme court. There would be three if
one group failed to appoint.
MR. SULLIVAN said they have 15 days to appoint those members, and
then five days in which the four members are supposed to pick a
fifth member. If the four members don't get together, and don't
pick a fifth member, then the chief justice of the supreme court
appoints the fifth member.
REPRESENTATIVE PORTER added that if the minority organization of
either body, for some reason, couldn't come up with a minority
leader, they would, by constitutional requirement, have to come up
with a minority appointing authority for the purpose of appointing
the member of the board.
Number 2085
REPRESENTATIVE PORTER discussed the present system. In terms of
timing, to get this whole process done in time for the next
election, constitutionally the governor as the appointing authority
has 90 days to look at and change, if so desired, the
reapportionment plan that the board came up with. Representative
Porter noted that that had happened ten years before. He stated,
"There's one 90-day period that exists in the constitution now that
we're kind of taking out of here, which I cannot imagine a 90-day
period going by that the legislature would not be organized." He
acknowledged there could be some interesting discussion for a few
weeks.
REPRESENTATIVE ROKEBERG suggested this mandate would help
accelerate that organization, with the responsibility to meet it
both practically and constitutionally.
Number 2147
REPRESENTATIVE ROKEBERG referred to page 5, line 27, which deletes
"his reapportionment duties." He suggested the sentence would read
better if they inserted "its duties."
CHAIRMAN GREEN stated his opinion that it reads as well either way.
Number 2217
CHAIRMAN GREEN asked whether there was any objection to adopting
Amendment 1. Hearing none, he announced that it was adopted.
Number 2221
REPRESENTATIVE CROFT referred to page 4. Noting that the four
legislative appointees can be removed with or without cause, he
commented, "That makes sense to me, I guess; it may be problematic,
but I understand why it's there." He pointed out that on page 4,
line 16, however, the chair of the board may be removed only for
good cause shown by a majority vote of the group.
REPRESENTATIVE CROFT said "good cause" is a term of art defined in
case law. A judge may rule on whether someone was terminated for
good cause, for example. He asked whether it is Representative
Porter's view that if three board members terminated someone, that
person could go to court and claim it was not for good cause but
for bad cause or a partisan cause, and get relief. He then asked,
"Or is good cause really sort of superfluous there, we say, 'may be
removed by a majority vote'?"
REPRESENTATIVE PORTER replied that he thinks the person would have
standing to make that claim.
Number 2265
REPRESENTATIVE CROFT responded that normally, good cause has to do
with performance of one's duties, outside of politics, sexual
harassment, or other things which are "bad cause." He asked
whether they could only say here that someone did a bad job, or
whether they could replace someone for a larger, political reason.
REPRESENTATIVE PORTER said he would guess that either of those
scenarios could reach the level of "good cause shown," depending on
the individual facts as applied to the case law.
Number 2310
REPRESENTATIVE BUNDE made a motion to move HJR 44, Version M [0-LS0528\M, 2/9/9
recommendations.
REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected.
Number 2326
REPRESENTATIVE BERKOWITZ expressed appreciation for the effort to
reform how redistricting or reapportioning occurs, doing away with
some of the gerrymandering that was so popular last time. However,
he had two overarching problems with this. The first problem is
stylistic: He believes they should be parsimonious with
constitutional language, that constitutional amendments should be
short and that the constitution should be more of a general
document.
REPRESENTATIVE BERKOWITZ said the second problem is more
substantive. What they are seeing here is a shift of power from
the executive branch to the legislative branch, without any real
showing that it will benefit the fairness of elections.
Representative Berkowitz stated, "And I can give you a
hypothetical. You're going to have four senior members of the
legislature sitting together in a room, and they're going to be
redistricting. And it seems to me that they would be hard-pressed
not to succumb to the temptation of giving themselves safe
districts, and maybe a few ...."
CHAIRMAN GREEN said this doesn't say representatives.
REPRESENTATIVE ROKEBERG added that those representatives just have
appointing power.
Number 2417
REPRESENTATIVE BERKOWITZ said, "But if ... you're in a position
where the senior members of the House and the senior members of the
Senate are, either themselves or through their deputies, going
through a redistricting, the temptation is going to be hard for
them to resist not to carve out safe districts for themselves and
maybe for a couple of selected lieutenants. And that kind of
temptation doesn't do much to ensure public confidence in the
process. And I think if there were some insulation that kept the
legislature from being involved in picking the reapportionment,
this idea, the idea of redoing how we redistrict, might have more
strength."
Number 2443
CHAIRMAN GREEN responded that the governor, under the present
system, chooses the members. He asked, "Wouldn't it ... seem to
you that that would be more of a temptation for a single appointer
to get gerrymandering than it is by a group made up of equal
numbers of both sides?"
REPRESENTATIVE BERKOWITZ replied, "I'm not saying that the way it's
done now arrives at a perfect solution. And there's some
advantages of it. I think, generally speaking, we've achieved a
pretty good balance in terms of checks and balances here in this
state. We have, I would venture to say, more personal freedoms
than any other state I've ever been in [ends mid-speech because of
tape change]."
TAPE 98-15, SIDE B
Number 0006
REPRESENTATIVE BERKOWITZ mentioned that there are many options,
including appointing independent panels somewhat like the judicial
council.
Number 0016
REPRESENTATIVE PORTER responded that while the weight of this
constitutional amendment is substantial, because the change from
one system to another affects many sections of the constitution, he
believes it is fairly simply stated in what this constitutional
amendment would amount to: the shift from the governor appointing
the board to a bipartisan representation of the legislature
appointing the board.
REPRESENTATIVE PORTER stated, "The benefit, I would think, as the
chairman indicated, would be to eliminate that temptation. If you
have the absolute power, there is absolute temptation. If you
don't have the absolute power, there isn't absolute temptation.
And, as a matter of fact, there's a bar to the temptation, if they
had it, because it's a bipartisan group. The members of the
legislature, to make the record perfectly clear, are not going to
be sitting down and drawing up a plan. They are appointing folks,
recognizing that the political opposite is appointing folks, also.
I think it would be in everybody's best interest to appoint folks
that would do an objective job in the first place."
REPRESENTATIVE PORTER pointed out that of the other states, none
allows the governor to appoint the reapportionment board without
some check, and only Maryland allows the governor to make that
appointment but requires legislative confirmation of those
appointments. He suggested there would be lack of balance on the
board, however, if the governor and the majority of the legislature
belonged to the same political party.
Number 0116
REPRESENTATIVE PORTER noted that California, Washington, Hawaii,
Montana and a couple of other Western states have plans similar to
this. He said most states have plans that are in this area, but
this is probably closer to those Western states that have more
recently adopted this kind of plan.
Number 0136
CHAIRMAN GREEN suggested this actually gives the minority a
disproportionate advantage. It wouldn't be heavily weighted in
favor of one party or another.
Number 0148
REPRESENTATIVE BERKOWITZ pointed out that they are ignoring the 50-plus percent
while I know partisanship is almost necessarily a part of how we
perform down here, I don't think we need to go about redrawing our
district lines in a partisan way. I think there's got to be
something that's above partisan politics."
REPRESENTATIVE BERKOWITZ restated that the temptation to protect
leadership slots or districts will be very hard to resist. When
the leadership has the opportunity to pick individuals, he said,
that is really the same position that the governor is in now. Even
accepting the premise that it is better to have many people making
a selection than just one, it will be a little less skewed than now
but it will be a balanced skewing. He said he believes they must
look at ways of drawing lines that provide fairness for everybody.
Number 0197
CHAIRMAN GREEN asked why it is skewed if both parties get to
appoint two members and mutually agree to a fifth member, or if
they can't agree, it is done by the chief justice.
REPRESENTATIVE BERKOWITZ replied, "Well, if, for example, ... you
and I were to appoint people, your guy might say, 'Leave Joe's seat
alone,' and my guy might say, 'Leave Ethan's seat alone,' and those
two are now off the table. And so, our seats ... are thereby
protected. But my guy might also say, 'We want to take care of
Eric Croft at the same time, but there's a couple of seats we're
willing to put into play.' And that's what you wind up doing, is
negotiating which seats are going to go into play."
CHAIRMAN GREEN suggested the other board members may disagree,
however. He asserted that it is balanced, not skewed.
REPRESENTATIVE BERKOWITZ replied that for anything that goes on in
a closed room, it is hard to say what will happen.
Number 0241
REPRESENTATIVE BUNDE said the check and balance here is that if it
is skewed, people will be standing in line to file suit, and the
court will act. He noted that they are talking about a worst-case
scenario, suggesting that there will be people with good public
policy intentions. He restated that there is the check by the
courts against gerrymandering.
CHAIRMAN GREEN pointed out that there are guidelines, also.
Number 0276
REPRESENTATIVE CROFT said he continues to object to the change from
counting residents to counting nonresidents under the decennial
census, although he acknowledges there are administrative
efficiencies from that. He said that was an objection he had to
the prior reapportionment schedule.
REPRESENTATIVE CROFT noted that there are only three branches of
government, and this is a tough, important, contentious area that
has been abused in the history of the nation and of the state. He
said it is safe to say the legislature should not be in charge of
it alone. This resolution has searched for a tie-breaker and found
it in the court system, which people in the state think of as
impartial. However, Representative Croft said, he continues to
have a number of concerns about involving the court.
REPRESENTATIVE CROFT cited as an example the appointment of Justice
Eastaugh by then-Governor Hickel. He stated, "I think as long as
we've got the court doing its job, deciding cases on the merits,
what'll happen was what happened when Hickel appointed Eastaugh.
There was not a partisan uprising on it. ... There was no attempt
to get him out of office when his first confirmation came up ....
We knew him to be a qualified attorney, would make a qualified
judge, and a loyal Republican."
REPRESENTATIVE CROFT said that is all right as long as the chief
justice's job is interpreting the law and deciding the facts.
However, if the job includes appointing the fifth and deciding
member of the reapportionment board, Representative Croft said he
thinks it makes a significant difference what happens. He stated,
"In that situation, as important as this deciding vote is and this
reapportionment process is for us in this body, we prefer an
incompetent Democrat appointed than a competent Republican, and I
would submit you would promote the opposite view, because it's so
vital. And if that person has a legitimate shot, one in five and
a little more than that, at being the chief justice when this rolls
around, I want to make sure ... that it's a Democrat."
Number 0393
REPRESENTATIVE CROFT referred to the role of tie-breaker and said
it seems improper to involve the court system in that manner. He
expressed concern that where so far there has been a very impartial
judiciary, they are now politicizing it. He stated, "And I think
we will see the day under this plan where there is a significant
partisan attempt to knock a member of the supreme court off because
it's heading up to reapportionment time.
REPRESENTATIVE CROFT, speaking of the supreme court, said, "There's
only five members. We know who's been there before. We know it's
a small enough state, their prior leanings. As I said, it doesn't
make any difference, I'd trust Justice Eastaugh to decide a case on
me, on nonpartisan grounds. But I'd also trust him probably to
appoint someone maybe I didn't like if it was to be a partisan
decision."
REPRESENTATIVE CROFT concluded, "So, I don't like involving the
court system. I know that having the governor do it has its flaws.
But I think of the three branches of government, we shouldn't be
doing it - it's too much mischief there possible. The court system
shouldn't be doing it - it ain't their job and I want to keep them
pure. And the only other branch of government with a statewide
focus and not at least a direct interest in the particular seats
involved is the governor. I think the Founding Fathers in our
state chose the lesser of two, three evils, maybe, and did it for
that reason. And though imperfect, it's preferable."
Number 0475
CHAIRMAN GREEN took exception, suggesting it is just the opposite.
Citing the last election as an example, he said there is a strong
political influence from the governor's office in the affairs of
the legislature, in who is elected; the closer it gets to an even
balance, the more that is true. He expressed confidence in the
proposed system, and he suggested it contains more avenues than
presently available for making it more neutral and fair.
Number 0570
REPRESENTATIVE ROKEBERG emphasized the importance of this, saying
he looks forward to its being on the ballot. He stated his belief
that Alaska lacks the enhanced checks and balances of the other 49
states. He said Alaska has a long history of gubernatorial abuse
and a litany of case law and litigation that stretches back decades
on this. He suggested looking at the wishes of the framers, who he
said intentionally weakened the separation of powers to give the
executive more strength in Alaska, which was, he said, an
experiment. The resulting problems that have occurred because of
this are the rationale for pursuing this particular amendment.
REPRESENTATIVE ROKEBERG characterized HJR 44 as strengthening the
separation of powers between the branches, saying it would preclude
the governor from having a greater ability to appoint a board who,
in turn, will appoint a more like-minded legislature. He stressed
the importance of that point. He submitted that on this count, the
framers of Alaska's constitution erred, which he said they are
trying to right. He agreed with the chairman that the intent is to
make it more balanced, level and fair.
REPRESENTATIVE ROKEBERG expressed his hope that the procedures will
be expeditious, not protracted court battles, which is another
important element of this. He cited a personal example where a
shortened campaign season resulted in significant disruption. He
concluded by saying he would be voting for HJR 44.
Number 0695
REPRESENTATIVE BERKOWITZ responded that the framers deliberately
crafted a strong executive branch, because the qualities of a state
this big required some authority that could move quickly and
decisively. He stated, "That was a deliberate decision, and it was
done, probably, throughout this constitution. And if we're going
to nibble at it in a piecemeal fashion, the unintended consequences
could be quite profound. I don't know what they are. But there's
a possible reason why, excepting all the chicanery that went into
some of the past redistricting."
REPRESENTATIVE BERKOWITZ continued, "There's some merit to an
argument that a governor draw district lines in such a way as to
get a legislature willing to move forward with his or her
legislative agenda. And we've seen, for the last eight years -
it'll be ten years - a Republican agenda move forward. And I think
that span of time is sufficient for the people of the state to
determine whether that agenda is one they want to pursue or not.
If it's one they want to pursue, they have the opportunity of
electing a Republican governor ... at the next election. If it's
not one they want to pursue, well, then, they can stay with
Governor Knowles. So, before we dispense with some of the thinking
that went into putting together a strong executive, I think there's
a lot underneath it that deserves some consideration."
Number 0792
REPRESENTATIVE BUNDE noted that one thing people frequently say
about the Alaska electorate is that they vote for a person first.
He acknowledged Representative Berkowitz' mention of the majority
of voters who are not affiliated with any party. He suggested that
giving voters an extra burden of voting not only for the person but
also for a governor that will redistrict in such a manner as to
affect future state programs would complicate elections
unnecessarily.
REPRESENTATIVE BUNDE said he thinks the strongest argument he has
heard for this resolution is that a governor may try to gerrymander
to support his program, as Representative Berkowitz has indicated.
He stated, "And it's happened in the past, and it's time to say,
'Whoa, enough. Let's get on with a more fair way.'"
Number 0898
REPRESENTATIVE PORTER suggested they can look at current language
in the constitution and see the consequence of repeated litigation
and alleged or substantiated gerrymandering. He suggested they can
also look at the consequences of this form of provision in state
constitutions nationwide; he indicated those states don't have
those kinds of problems. He concluded that the consequences will
be positive.
CHAIRMAN GREEN noted the motion before the committee and asked
whether the objection was maintained.
REPRESENTATIVE BERKOWITZ said yes.
Number 0945
CHAIRMAN GREEN requested a roll call vote on moving HJR 44, Version
M [0-LS0528\M, 2/9/98], as amended, from the committee with
individual recommendations. Voting to move it from committee were
Representatives Bunde, Porter, Rokeberg and Green. Voting against
it were Representatives Berkowitz and Croft. Representative James
was absent. Therefore, CSHJR 44(JUD) moved from the House
Judiciary Standing Committee by a vote of 4-2.
HB 267 - DOMESTIC VIOL. & SEXUAL ASSAULT DISCLOSURE
Number 1007
CHAIRMAN GREEN announced the next item of business would be HB 267,
"An Act relating to domestic violence and sexual assault; and
providing for an effective date." The committee had moved CSHB
267(JUD) out of committee on February 9, 1998.
CHAIRMAN GREEN told members the Department of Law had advised them
that whereas "law enforcement official" is used in the body of the
bill, the title change adopted at the previous hearing used the
phrase "public safety officers." Chairman Green therefore
recommended that the title be changed on lines 2 and 3 to read,
"counselors to reveal to law enforcement officials." He mentioned
the change made at the previous hearing which resulted in the
wording, "person is missing." He then acknowledged that Version H,
the new proposed committee substitute, contains those changes.
Number 1087
REPRESENTATIVE ROKEBERG made a motion to rescind the committee's
previous action [of February 9, 1998, moving the bill, as amended,
from committee]. There being no objection, it was so ordered.
Number 1098
REPRESENTATIVE ROKEBERG made a motion to move version 0-LS0098\H
out of committee. There being no objection, CSHB 267(JUD) moved
from the House Judiciary Standing Committee.
HJR 5 - SHORT TITLE: CONSTIT AMNDMNT: FREEDOM OF CONSCIENCE
Number 1132
CHAIRMAN GREEN announced the next item of business would be HJR 5,
proposing an amendment to the Constitution of the State of Alaska
relating to freedom of conscience.
Number 1138
REPRESENTATIVE TERRY MARTIN, sponsor, advised members he had been
interested in the issue of freedom of conscience for at least ten
years, since finding out it is not in our constitution. He noted
that in Oklahoma, they had to take at least two government classes
on the importance of freedom of conscience. In addition, he became
aware of it while in the U.S. Marine Corps, where the commander set
aside a day to talk to the troops about the military code of
justice, emphasizing the importance of freedom of conscience in
that they did not need to obey the order of a commander who was way
out of line, such as telling someone to kill the women and children
in a battle.
REPRESENTATIVE MARTIN said throughout history, freedom of
conscience has been a higher level of inalienable right than
freedom of religion. He cited examples, including Socrates, who
chose death rather than denying the truth, and Martin Luther King.
Number 1338
REPRESENTATIVE MARTIN referred to a recent writing by U.S. Supreme
Court Justice Sandra Day O'Connor, included in committee packets.
He said she had written a dissenting opinion on the separation of
church and religion, citing the history of how early freedom of
conscience was a part of our liberties, that there cannot be a
basic right to liberty, nor religion or lack thereof, without
freedom of conscience.
REPRESENTATIVE MARTIN told members he is absolutely shocked that
the state didn't even consider this during the constitutional
convention. He noted that he had inquired of some people who were
there at the time, and he was told it was never discussed or
brought up. He suggested that as a new group, the framers had
accepted the model given to them, which provided for freedom of
religion, not freedom of conscience.
REPRESENTATIVE MARTIN referred to questions raised by
Representative Berkowitz, apparently in the House State Affairs
Standing Committee. He then advised members that his staff had
done a good job of providing examples of wording relating to
freedom of conscience in various constitutions. He said freedom of
conscience has been taken for granted for many centuries and
decades. He said Stalin, in his constitution, gave the people
freedom of conscience and religion, but not free exercise thereof,
which is why so many people ended up in concentration camps.
Number 1469
REPRESENTATIVE MARTIN next referred to a document in packets
containing quotations from Thomas Jefferson, which he said clearly
describe the importance of freedom of conscience, even over freedom
of religion, as a basic inalienable right. Representative Martin
indicated Alaskans are faced with this very issue. Do doctors,
nurses and others have to obey the order of a higher authority,
even if it is the court system, regardless of their conscience?
REPRESENTATIVE MARTIN told members, "There's only one section in
the state law that says you have freedom of conscience, and it had
to do with abortion. Well, what about all the other aspects of
freedom of conscience in our daily lives?" He emphasized the
importance of making people aware that we don't have freedom of
conscience in the constitution. "And we can no longer take it for
granted that no one would ever question our freedom of conscience,"
he said. "And it's been very successful in most state
constitutions, and in the colonial days, over 300 years. And so,
we shouldn't be afraid of it today in Alaska, to allow people to
have freedom of conscience."
Number 1556
REPRESENTATIVE BUNDE commented that he always enjoys the issues
that Representative Martin brings forward, because they create
interesting debate and are well-thought-out and heartfelt issues.
He noted that there have been cases in the past where some
religious tenets conflicted with public health, such as parents'
refusal of treatment for their children, even at the peril of the
children's lives, or their refusal of immunizations for contagious
diseases, even at the peril of other people's lives.
Representative Bunde asked whether freedom of conscience would
remove the state's right to interfere for the greater good in that
religious area.
REPRESENTATIVE BUNDE next pointed out that there is seldom
discussion of freedom from - he emphasized that word - religion.
For example, with assisted suicide, there are those who, in good
conscience, might believe in euthanasia. He asked: If this
resolution passed, and even though euthanasia is not a law of the
state of Alaska, if someone's conscience says it is the right thing
to do, should that person be allowed to do it?
Number 1667
REPRESENTATIVE MARTIN responded that it is very important that we
don't consider it as wide-open, that someone can run through a
school yard with an automobile at 85 miles per hour, for example.
He referred members to the original wording of the U.S.
Constitution relating to licentiousness and public health and
safety. He indicated he had provided the chairman with a related
amendment, and that licentiousness and public safety are things
that Justice O'Connor had discussed. For example, he said, one
cannot go into a theater and kill a multitude of people because
they are watching the wrong kind of films. Representative Martin
indicated this is a buffer and the courts have answered this
before, in relationship to the Mormon Church and to Indian tribes
smoking peyote; within their compound and groups and religious
ritual, they could do it, he said, "but don't go smoking around the
place and saying its religious rites."
REPRESENTATIVE MARTIN informed members that all the states, and the
Supreme Court, had balanced freedom of conscience with the safety
of the majority of the people, and with the health of the people.
For example, he said, if people believe the Internal Revenue
Service (IRS) is misusing their money, they cannot just refuse to
pay taxes. "Those questions have been addressed a number of
times," he added. "But the most important thing is that in this
state here, even those are minor if you don't even have freedom of
conscience in the first place."
Number 1784
REPRESENTATIVE MARTIN referred to the Valley Hospital case. He
stated, "Right now, the only thing we see in the constitution is
that you have a statutory right not to participate in abortions,
much less assisted suicide act or anything else." He indicated
there was a case in Australia involving legal assisted suicide. A
doctor there felt bad about participating in a death controlled by
computer, and the parliament immediately reversed their decision,
Representative Martin said. He said there are many cases where
people don't want to participate in assisted suicide or abortion.
Number 1915
REPRESENTATIVE CROFT asked, "Representative Martin, does this
constitutional amendment give me the right to disobey state law if
I feel it conflicts with my conscientiously held beliefs?"
REPRESENTATIVE MARTIN expressed surprise at the question, saying he
was sure it had been brought up in constitutional classes. He then
said, "You can disobey but you may pay the price, just like
Socrates did. 'I am a teacher; I will always tell the truth.' And
we in the Department of Education [say], 'Oh, no, you won't; you
won't say anything about this and that particular subject.' And
so, therefore, he or she loses their license, because they insisted
on telling the truth of what they thought about this particular
point of history. And so, they can go to court, you know."
Number 1986
REPRESENTATIVE CROFT said he himself didn't know the full extent of
this right, although he is familiar with a lot of case law
surrounding the free exercise and establishment clauses. He said
he understands that freedom of conscience is a related subject, but
he doesn't understand whether this is meant to broaden it. He
again asked what would happen if he found a law to be morally
repugnant and chose to violate it.
REPRESENTATIVE MARTIN answered that he may pay the price and then
would have to go to court. He mentioned some unspecified cases
about people participating in abortions, indicating the second case
said a doctor didn't have to participate but that nurses and
janitors could be told to do so. He indicated it applies to
education and to how parents raise their children.
Number 2091
REPRESENTATIVE PORTER said he was confused also, and that he would
ask Representative Croft's question another way. He asked, "If it
is not the intent of this legislation to provide an opportunity for
someone to violate the law against their conscience, or violate
existing case law against their conscience, what is the function of
this proposal?"
REPRESENTATIVE MARTIN replied, "The function of this thing is to
make sure that authority - whether it be legislative authority, law
enforcement areas, whatever it may be - will not force someone, as
in the military service, to do an act against their conscience.
And you will not order someone to kill someone else when they were
absolutely opposed to it. You will not force a teacher, just
because she got a license, to teach something that she realizes is
wrong, is absolutely not the truth, or she will lose her license.
People must be guarantee[d], as a basic role of liberty, to have
freedom of conscience. There will always be give and takes, but if
the people don't have freedom of conscience to begin with, then we
can tell them that they must obey every law."
Number 2184
REPRESENTATIVE PORTER responded, "Maybe the Marines were different
from the Army, but I got that speech, too. And what they told me
was that I'm not going to be required to violate the laws of the
United States, the Constitution of the United States, or the laws
of international agreement of war, not my conscience. And if it is
that if I am a teacher - if that's the example you want to use - or
if I am an employee at the Palmer hospital, and lawfully abortions
are being performed there, and the hospital administrator says, as
an employee, you will do your duty, and you have -- he doesn't have
the ability to say, 'You will do it because somehow you're
indentured here and you can never get out of this situation.' He's
saying that ... it's a job requirement, just like most employers
have for their employees."
REPRESENTATIVE PORTER continued, "If you're saying that this would
allow a person to say 'no' in either situation - a teacher or the
hospital employee - and then not suffer the consequences of
termination, or discipline or something, I'd like to hear that. If
you're saying that they would have to suffer the consequences of
discipline or termination, then there isn't any function to this
thing."
Number 2302
REPRESENTATIVE MARTIN replied, "They may temporarily suffer losing
their jobs and so on, but we give them the rights to a
constitutional freedom to go to the courts and go through the
necessary system to fight the authority that told them that they
will not tell the truth, that told them ... that they must
participate in this termination of life, would be assisted suicide.
So, the authority must always know, too, that these people who I am
in charge of have basic rights of freedom of conscience, and I
cannot force them to do something. 'If you want to kill that
person, Mr. Authority, you do it; don't make me do it.'"
Number 2359
REPRESENTATIVE PORTER said he readily understands the sensitivity
to the issues of abortion and assisted suicide that exist, and
recognizes that there are legitimate differences of opinion on
those kinds of issues. However, this kind of a proposal would
provide an undefined right of conscience; it can apply to anything.
He said he had this vision of an animal rights advocate working in
a meat packing plant and saying, "I'm not gonna pack meat, but you
can't fire me."
REPRESENTATIVE MARTIN replied that for 300 years, we have had this
inalienable right, or at least we thought we did. Many states, in
many other areas, have constantly battled with it, which is why we
have a court system. He added, "But that just shows right here, in
the Valley Hospital, if you don't have it in the constitution, you
don't have it. And that's what they're saying in that document, in
that court case, right here on page 20 [ends mid-speech because of
tape change]."
TAPE 98-16, SIDE A
Number 0001
REPRESENTATIVE BERKOWITZ indicated he had the case.
Number 0091
REPRESENTATIVE BUNDE said, "The purpose of freedom of conscience is
to allow people to refuse to do something that would conflict with
their conscience, ... but then I heard Representative Martin say,
'But you have to pay the price.'"
REPRESENTATIVE MARTIN said, "Yes."
REPRESENTATIVE BUNDE said, "I can be a conscientious objector in
the military, but I still have to serve two years. I can refuse to
pay a portion of my income tax that would go to national defense,
but I would have to face some legal consequences. In Alaska today,
don't we have that right to refuse but pay the consequences?"
REPRESENTATIVE MARTIN replied, "I would say no, because you don't
have the rights here, as on page 21. Same thing with the Valley.
Individuals, nor this corporation, have the right, the
constitutional right, to conscience, (indisc.) the court opinion,
Valley Hospital has no constitutional right in this issue. It is
at most a statutory right, freedom of conscience. Therefore,
abortion is superior. Because it's conscience, it's
constitutional. No way, shape, or form, in any document that I've
found, do we see in the constitution - or in the right to privacy,
in that legislation that went on for two years - did they ever
mention, in any way, shape or form, the right to abortion. But our
supreme court said they would find it right here, we will reach in
and find [that] rights to privacy means right to abortion. They
themselves discovered that, for no foundation whatsoever. They
could also use ... Section 21 of Article I, which says the
enumerated rights of the citizens, as in this document, do not
prohibit the citizen from ... the other inalienable rights. So,
why our lawyers or whoever didn't go to reach into Section 21, the
basic rights of freedom of conscience -- so, it seems like now we
must print it."
Number 0249
REPRESENTATIVE BUNDE said he can understand the philosophical
approach. He stated, "But I didn't understand that today, in
Alaska, a person who refused to pay taxes but still would have to
pay the consequences ..."
REPRESENTATIVE MARTIN interjected, "Yes."
REPRESENTATIVE BUNDE continued, "...and then I heard you say ...
that the Valley Hospital should have freedom of conscience. Would
this extend, then to corporations ..."
REPRESENTATIVE MARTIN affirmed that.
REPRESENTATIVE BUNDE continued, "... or to organizations? Not to
a person. We're talking about a hospital now."
REPRESENTATIVE MARTIN responded, "We did have a doctor that just
recently settled with the state, and with the federal government,
on freedom of taxes. ... But anyway, he finally paid the price and
found out that this does not permit him to refuse to pay taxes.
So, there's what we call the give and takes. You can find other
lawyers besides myself - as not a lawyer - who can give you the
other balance of what these two gentlemen would say on the history
of fighting and paying the price for your free conscience."
Number 0338
REPRESENTATIVE BERKOWITZ said, "Representative Martin, you keep
pointing to the Valley Hospital case as a reason ... why
individuals can be compelled to perform abortions. Could you point
out to me, in that case, where such language exists?"
REPRESENTATIVE MARTIN replied, "Well, they don't say that in that
case, because ... they're only using the hospital. No one yet - no
nurse, no doctor - has yet been forced to do an abortion against
their conscience. But the threat is there, even though it says it
in statutory language, that people are free from not participating
in ...."
Number 0397
REPRESENTATIVE BERKOWITZ told Representative Martin he had
corresponded with the attorney involved in the case, who had sent
him a fax. Representative Berkowitz read a portion of the judgment
in the Valley Hospital case: "Nothing in the permanent injunction
granted as part of this Final Judgment shall require any member of
the medical staff of Valley Hospital, or any officer, agent,
servant, or employee of Valley Hospital, to participate directly in
the performance of any abortion procedure if that person, for
reasons of conscience or belief, objects to doing so."
Representative Berkowitz then concluded, "Given that kind of
language, it seems to me that your concerns about the scope of
Valley Hospital are vastly inflated."
Number 0447
REPRESENTATIVE MARTIN replied, "The freedom of conscience aspect
came up way before this decision on the Valley Hospital. Years
ago, when the nurses actually went on strike against the two
doctors who were insisting that they went into abortions, and there
was such a problem in the valley area that only as a group, when
they fought against participating in abortions, that they were able
to get away with it. So, the doctors were able to get nurses from
the other areas that would participate in the abortion process."
REPRESENTATIVE MARTIN continued, "Though it had been threatened, in
this case, I could say yes, they were only talking about Valley
Hospital and that institution. It was not an individual
requirement yet that came up. They were only talking about the
hospital must participate, because the hospital received federal
dollars and state dollars and so on. It's only two steps further,
then, they may force some nurse -- and you have a couple of
witnesses here, nurses that will give you a different perspective,
how they've been, perhaps, been forced to do it."
REPRESENTATIVE BERKOWITZ stated, "So, the hospital had to pay the
consequence for accepting federal dollars."
REPRESENTATIVE MARTIN replied, "As this case says."
REPRESENTATIVE BERKOWITZ asked whether that was a yes.
REPRESENTATIVE MARTIN replied, "Yes, they said, 'Because you accept
it, federal monies and state monies, you must provide these
services.' But then, we have yet the individual case." He noted
that a couple of people would testify on that. He then mentioned
Adolf Hitler and the belittling of the value of life.
Number 0581
REPRESENTATIVE BERKOWITZ pointed out that there is a big difference
between conditions in Nazi Germany and those in the United States,
which is a democracy where people have some degree of
representation. He suggested the analogy is misplaced.
REPRESENTATIVE MARTIN replied that they are talking about freedom
of conscience, indicating people in Germany were refused that
right.
Number 0615
REPRESENTATIVE CROFT stated, "I was going to make those points, as
well as saying that the Valley Hospital case caveats the issue of
Providence, as we're not dealing with one that has a religious
affiliation, and that may, in fact, be a different situation; we
don't know."
REPRESENTATIVE CROFT said he was still trying to figure out the
answer to the questions raised by Representatives Porter and Bunde.
He stated, "I have the right now to violate any law I want, for
whatever reason I want, and pay the consequences. It's really not
much of a right if I have to pay the consequences. It seems to me
only a significant right if I can say, 'I can do this, and you
can't punish me for it - fire me, put me in jail, whatever it is.'
So, would this now make me able to violate laws without paying the
consequences?"
Number 0674
REPRESENTATIVE MARTIN replied, "We're saying no, it would not. But
we're also saying that authorities cannot, because now we want to
give people the right to freedom of conscience. And if they don't
have that right, then authority can tell them to do anything, and
be even more demanding to put them in jail and shoot them on the
spot for disobeying an order, or fire them from their jobs. As
long as we don't have the rights, by constitution, that's
inalienable rights, then any authority can do almost anything with
you, and you don't have much of a defense with the courts,
especially the courts' saying it's only a statutory right and it's
not a constitutional right."
REPRESENTATIVE MARTIN continued, "And when you look at all the
history of the other states, why is it that they give their people
the freedom of conscience? Why is it, with so -- a supreme
principle of liberty, when this country first began or even before
we began, in the revolutions, that they were fighting for freedom
of conscience against religion of other countries. That was the
most important thing. ... Maybe I'm not getting it across right,
but it's such an inalienable right throughout the history of the
liberty of man, of growing and becoming free, that today we don't
understand it?"
CHAIRMAN GREEN indicated he didn't want to cut this short, but
testifiers were standing by, both on teleconference and in the
audience.
Number 0781
JANET OATES, Director, Marketing and Government Relations,
Providence Health System, testified via teleconference from
Anchorage in support of a "conscience clause" constitutional
amendment. She said the Valley Hospital rulings had brought this
into focus for them.
MS. OATES explained, "We had felt that as a private and religious
hospital, our position of not doing abortions was not jeopardized.
We're not quasi-public, as the court ruled Valley Hospital to be.
But we have been cautioned by our own attorneys that until this is
brought to court, we couldn't be sure of that, that the only way to
assure we would be free to maintain our position would be a court
ruling. Obviously, this isn't something that we're very interested
in pursuing; we've got plenty of other things to do besides that.
So, we are ... concerned for other hospitals in the state who find
themselves vulnerable."
MS. OATES said they'd heard just that day that hospitals are having
difficulty finding staff willing to do abortions. "And so, they're
having to consider the option of recruiting staff, which is an
expensive and time-consuming task," she noted. "We also see risk
in the hospitals where Providence would partner, especially with
the community of Kodiak and in Seward. In Seward, we simply rent
the building from the City of Seward. But in Kodiak, there are
borough dollars that come in to contribute to ... capital
expenses."
Number 0907
MS. OATES continued, "We do believe that a constitutional amendment
would take us back to the intent of the original legislation
regarding abortions. A couple of suggestions that we would like to
make regarding this particular amendment, if you're going to use
this is as the vehicle, that we would prefer an expansion from an
individual, perhaps to, 'An individual or organization may not be
denied freedom of conscience.'"
MS. OATES said second, although they'd received assurance that the
broad language of HJR 5 reflects the U.S. constitutional
perspective, there is concern in our state, "independent
individualists that we all are, that we might be setting ourselves
up for more battles between extremist points of view, that
challenge our basic laws ... for civil order and greater good." At
the same time, she pointed out, this reflects the Providence
commitment and core values of compassion and respect. She noted
that respect goes both ways and explained, "We're asking people to
respect us as we pursue the dictates of our conscience, but at the
same time, we're willing to give them that same right."
MS. OATES concluded, "We're comfortable with the language of
Senator Miller's proposed amendment, which specifically addresses
this in ... the context of abortion, and we respectfully suggest
that you might consider looking at that approach."
REPRESENTATIVE ROKEBERG asked whether she had written comments.
MS. OATES indicated she would provide those.
Number 1021
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
(ACLU), testified next via teleconference from Anchorage,
indicating the organization is a nonprofit, nonpartisan,
nongovernmental entity that represents 800 members throughout
Alaska.
MS. RUDINGER stated, "And I'm here to express our opposition, on
behalf of our membership, to HJR 5. Frankly, we're baffled. If
approved by the voters, would this constitutional amendment
supersede state authority granted in other parts of the
constitution? For instance, would an individual's traditional
beliefs around hunting and fishing supersede the state's management
authority over fish and game granted in Article VIII? Could
individual invoke this constitutional right to practice polygamy?"
MS. RUDINGER said, "The supreme court expressly notes, on page 5 of
the Valley Hospital opinion, quoting the final judgment that
Representative Berkowitz read to you, that this injunction does not
require anyone affiliated with the hospital to participate directly
in the performance of any abortion procedures if that person, for
reasons of conscience or belief, objects to doing so."
Number 1106
MS. RUDINGER concluded by suggesting HJR 5 is so vague it could
actually be dangerous. She said if this measure intends to allow
exemption from state laws for those exercising their religious
beliefs, the legislature would do better to craft a religious
freedom restoration Act, "a so-called RFRA," wherein exemptions to
the state's laws are tailored much more narrowly so as to protect
specifically stated religious rights. She indicated the American
Civil Liberties Union had supported the federal RFRA, which was
subsequently overturned by the U.S. Supreme Court. She said that
while she cannot make promises regarding future positions on
hypothetical legislation, she suspects that the Alaska affiliate
would be much less skeptical of a carefully crafted state law
protecting specifically delineated religious rights than they are
of this overly broad and vague proposal.
Number 1208
TED DEATS, Legislative Secretary to Representative Terry Martin,
Alaska State Legislature, came forward to testify as a citizen of
Alaska. He stated, "I think the citizens should have a right to
vote on whether to have a freedom of conscience amendment, because
Valley Hospital thought they were protected by state law that said
hospitals and people do not need to participate in abortions, that
we had a conscience amendment in state law. And the supreme court
under the right to privacy -- interpreted the right to privacy that
abortion was a superior right to ... our state conscience right."
MR. DEATS commented that the right to privacy was never intended
for the purpose of abortion. He said it was for electronic and
computer surveillance of citizens. He stated, "So, I think that
I'd like that law, in particular, protected, the right to not
participate in an abortion. That's a state law, and I would like
to have that law protected."
MR. DEATS referred to mention that no person is required to
directly participate in an abortion. He asked: With a small
hospital with 36 beds, what is "directly"? Is it the surgeon? Is
it the nurse with an anesthetic? He stated, "You're putting an
undue moral burden on people that have to clean up afterwards, they
have to remove what remains. These people are going to be forced
to do that, because they're not directly participating. And I
think the state law would be protected for these people if we had
a constitutional freedom of conscience that said, 'Yes, this state
law is protected under freedom of conscience.'" Mr. Deats went on
to say the ruling was against Valley Hospital in part because it
was a quasi-public hospital. He quoted from the judgement in that
case and pointed out that the hospital is a community hospital
whose board is elected by a public membership.
Number 1352
DOROTHY McDOWELL came forward to testify. She said, "The only
thing that I wanted to say, I guess, that Alaska's the only state
that has abortions, and to refuse could leave them not only ...
unemployed but also unemployable, by taking their professional
licenses. And this is what I'm really concerned about. As a
registered nurse of 40 years, I encountered the situation of
thinking I had to help the doctors with abortions when I went to
work in the operating room here ... in Juneau. I watched one and
decided I could ... not, in good conscience, take part in helping
with them. My husband advised me to talk to our minister, as I was
ready to resign. And this was a big thing for me, because I had
worked most of my life in the operating room. Our minister
verified that I could not help with these abortions and be able to
live with myself."
MS. McDOWELL continued, "The following may give you some idea of
the conscience I would be violating. It was taking a life. And
with Christ's teaching, we are to love our neighbors and ourselves
and to choose life. I had taken the Hippocratic oath when I
graduated from nursing school, in which I swore to revere him,
Hippocrates, as I would a parent, prescribe for the good of the
patient, give no deadly drug, perform no abortions, act only for
the welfare of the patient, and keep his secrets, and also to keep
themselves from intentional ill-doing and seduction."
MS. McDOWELL continued, "Fortunately, I had heard of Alaskans for
Life. I called them, and they showed me the law which stated that
I did not have to participate in them, to help with abortions, and
supported my decision to take this to my employer. After showing
my supervisor this law, I was able to keep my job and not assist
the doctors with abortions."
MS. McDOWELL continued, "During my employment there, some of the
nurses came to me and asked how they could get out of having to
help with the abortions, because they were having some of the
patients have repeated abortions, in other words, indicating that
they were using it as a form of birth control. They were beginning
to feel guilty and no longer wanted to help with the abortions.
They asked why I did not help with them, and I told them about the
good conscience law that was in effect at the time. They were
thankful that they didn't have to help with them anymore. I heard
one nurse ask a doctor prior to an abortion, 'When are we ever
going to stop doing these?' She indicated to me that she was very
tired of helping with them. Shortly after that, I noticed that
there was only one doctor left doing them."
MS. McDOWELL concluded, "I hope you will join me in supporting this
bill, now that you realize how many lives are affected by
participating in abortions. I am deeply concerned about the
welfare of good nurses and doctors who refuse to take part in
abortions, thereby losing their licenses to practice as a medical
care provider."
Number 1570
SID HEIDERSDORF, Alaskans for Life, came forward to testify. He
stated, "We support the goals, certainly, of HJR 5. There's been
much discussion here, and I think that we agree that this amendment
to the constitution would be better off being much more specific.
Certainly, we've got to avoid opening the ball game up to run the
risk of someone saying they have the right to jeopardize health and
safety, which we ... certainly do not support."
MR. HEIDERSDORF said, "It's unfortunate that we even have to get
involved with trying to amend the constitution. But I think in
view of what ... the Alaska courts have said in that Valley
Hospital case, that it's important to maybe try to preempt the next
possible step, which ... would be to consider the requirement that
personnel on a staff of a hospital may be required to participate
in abortions. And I also would like to limit our concerns and my
testimony here. Really, we're concerned about the life issues:
abortion, infanticide, doctor-assisted suicide, euthanasia, that
type of thing. So ... that's the kind of thing we have in mind for
an amendment to the constitution, again, to preempt any future
decisions that might be in line. It staggers the imagination to
think that the courts would rule that individuals had to
participate, but 15 or 20 years ago, I would have told you that we
would never have arrived at the position we are now, much due to
what our courts have been saying about this issue."
Number 1653
MR. HEIDERSDORF said anyone involved in the abortion debate will
remember that in the early Sixties and Seventies the conscience
clause was an area where basically everyone agreed. Even those who
favored abortion agreed it is appropriate that people shouldn't be
forced to participate in something that they find repugnant. He
stated, "And I think that in the Alaska bill which was passed in
1970, surely the conscience clause was the least controversial
aspect of that bill."
MR. HEIDERSDORF said he couldn't find a definition of "individual"
in the Alaska constitution, and he asked whether it covers an
institution. He said he believes a community should be able to
decide whether its hospital will provide those kinds of services.
He stated his understanding that in the U.S. Constitution, the word
"person" covers legal entities, which he indicated attorneys would
know more about.
Number 1715
MR. HEIDERSDORF concluded by pointing out that the license to
practice medicine is a privilege, not a right. He suggested it
would be easy for legal entities, somewhere down the road, to put
pressure on people about who they will issue licenses to, because
privileges are easy to revoke. He stated, "And some kind of a
freedom of conscience provision dealing with these fundamental life
issues in the constitution, ... we strongly support."
Number 1760
REPRESENTATIVE PORTER said he wasn't that familiar with the Valley
Hospital case, although he had read about it in the newspaper some
time ago. He said he was confused about the effect on someone's
license to practice medicine, either as a nurse or a doctor. He
asked, "Considering the statute, how would someone's license be in
jeopardy ..., or was that an issue in that case?"
MR. HEIDERSDORF said no, then added that it is an issue right now,
which is why he calls it a preemptive move on the part of the
legislature to put this issue before the public. He asked: The
next time around, how do we know where the courts may come down on
this issue? He emphasized that that is what they are really
concerned about. For example, he said, it is hard to get staff to
participate in abortions now.
Number 1801
REPRESENTATIVE PORTER asked, "I guess I understand what you're
saying, but do you understand reluctance to put something this
general on the ballot, considering what might come of interpreting
it, not interpreting something else?"
Number 1811
MR. HEIDERSDORF said yes, indicating that is why for the purposes
of Alaskans for Life, he'd suggested something more specific,
limited to the life issues. He added, "Yes, otherwise we heard the
discussion here about, 'Do you have the freedom to do anything you
want?' Well, we have that freedom now, for sure. But we're
viewing it from the protection of the medical profession."
REPRESENTATIVE BERKOWITZ asked whether, as it is written now, Mr.
Heidersdorf sees the dangers of leaving it with language this
broad.
MR. HEIDERSDORF replied, "I think it's too broad, yes. I would say
that it'd be better to be more specific."
Number 1847
CHAIRMAN GREEN provided members with a possible amendment for
consideration, specifying that he wasn't formally offering it that
day. He noted that it had been mentioned in earlier testimony.
Chairman Green then closed public testimony and indicated HJR 5
would be held over.
HB 252 - REGISTRATION OF SEX & CHILD OFFENDERS
Number 1901
CHAIRMAN GREEN announced the next item of business would be HB 252,
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
Number 1907
TED BACHMAN, Captain, Division of Alaska State Troopers, Department
of Public Safety (DPS), testified via teleconference from
Anchorage, specifying that he is staff assistant to the director.
He said they have worked with the sponsor of this bill since its
beginning and are pleased with how it is going. However, there are
a small number of changes they recommend, a couple of which are
housekeeping changes. He asked if the committee wanted to address
those now or if he should submit them to the sponsor.
CHAIRMAN GREEN suggested he send those to the sponsor but provide
the committee with a brief overview.
Number 1950
CAPTAIN BACHMAN responded, "Certainly. We think that there are
possibly some problems in Section 1 and subsection (a)(2) of the
proposed statute, and also in subsection (b) of the statute, some
possible constitutional problems that may arise out of the way
that's crafted at this point. And we would have some recommended
changes ... to the language in those particular sections." He
added that he wouldn't go through the minor housekeeping changes.
CHAIRMAN GREEN asked whether he would submit those as well to the
sponsor.
CAPTAIN BACHMAN said yes. He specified that he was working from
Version R [0-LS0818\R, Luckhaupt, 2/9/98] and stated his
understanding that it would be submitted as a proposed committee
substitute. He advised members that in Section 10, they recommend
that the offense be changed from perjury to unsworn falsification.
He said that again, he didn't think it was worth going over all the
reasons at this point. He then stated his belief that the rest of
the changes are minor housekeeping one-word changes, which they
could submit through the sponsor.
Number 2019
CHAIRMAN GREEN asked whether there were questions, then asked Diane
Schenker of DPS, who was on teleconference from Anchorage, if she
wished to testify; however, Ms. Schenker said she would answer
questions.
Number 2052
PAUL SWEET testified via teleconference from the Mat-Su Legislative
Information Office (LIO). He said for three years, he'd been
trying to get information on people who have not registered, but he
is constantly told that it is privileged, private or confidential.
Sex offenders have been through the court system and have been
prosecuted; all their testimony and whatever they get for a
sentence is in the court records and therefore available. And yet,
their names are in the Alaska Public Safety Information Network
(APSIN) file marked confidential. He said he doesn't understand
that.
MR. SWEET told members, "So, what I'm trying to prevent is if
somebody goes wild out there and kills some kid or maims them or
mutilate them, how are you going to explain to the parents that the
only reason they didn't know that this guy was in their
neighborhood is because they failed to sign up, and you couldn't
release the information because it's confidential?"
CHAIRMAN GREEN said he could commiserate with that concern.
Number 2099
REPRESENTATIVE PORTER advised Mr. Sweet that he has some
familiarity with that question. He explained, "It is an anomaly of
the law that is inconsistent totally. And to draw on our recent
discussion about an open-ended constitutional amendment, and it is
because of that open-ended constitutional amendment of privacy that
we have the APSIN regulations that preclude giving out information
that is otherwise readily available in the court system. And so,
you've got to be careful what you ask for, 'cause you might get
it."
Number 2120
MR. SWEET suggested that it tells a sex offender that if he doesn't
feel like signing up, nothing will happen until he is caught.
Therefore, nobody wants to come in and sign up automatically to be
put on the Internet.
REPRESENTATIVE PORTER responded, "I think that the original
provision of requiring the offender to return and himself or
herself sign up was, I think, an attempt to make sure that they
knew where they were going to be living or something. But right
now, that practice has changed, and they're being required to sign
up before their release. So, most recently, and here in the
future, that information will certainly be available in all cases."
Number 2135
MR. SWEET stated that the original sex offender registration is
very good, but we don't seem to be abiding by it very well. He
asked why we don't adopt the Wetterling Act, the federal law that
will be required in a year and a half anyway, which will eliminate
"privacy and all that sort of thing" when it comes to a sex
offender.
MR. SWEET told members another reason he'd heard for not being
given information is that the agency hadn't been notified yet. He
said this will also eliminate that problem, because the federal law
says it isn't up to the state to notify the individual; it is up to
the individual. Mr. Sweet suggested coming up with a sentence that
will make offenders think before deciding not to sign up. He said
a fine won't do any good, because they would have to chase
offenders down to collect the fines, year after year.
MR. SWEET suggested if the worst offenders were jailed, others
would come running through the doors to sign up. He cited some
figures and estimated that every 60th man in Alaska is some kind of
sex offender. "And that's the ones we know about," he added.
"That's not a good average." He indicated that of the 500-some
offenders in the jail system, he can't find out if they are repeat
offenders of sex crimes, if they violated parole, or if they have
other felony convictions. He stated, "There doesn't seem to be any
numbers on that. So, that still leaves a thousand that we're
looking for. And the way I feel is that those thousand are
probably worse offenders than the ones who've already signed up; I
don't know." He suggested getting tough on them, again suggesting
that the Wetterling Act would be a good one to adopt, because
they'll have to do it anyway, or some portion of it, anyway.
Number 2278
CHAIRMAN GREEN advised testifiers that they hadn't yet debated the
bill but had wanted to get their testimony on record.
Number 2298
SUSAN G. WIBKER, Assistant Attorney General, Human Services
Section, Civil Division (Anchorage), Department of Law, came
forward, specifying that she was standing in for Anne Carpeneti of
the Criminal Division, who has worked on this bill. Ms. Wibker
said she had a recommendation that she believes would close a bit
of a loophole and that might help address some of the caller's
concerns. She offered to submit it in writing or discuss it now.
She added, "I think Public Safety talked to Representative Ryan
about it this morning, so he knows that this is a recommendation
that Law and Public Safety have agreed would be a good idea to
close a bit of a loophole."
MS. WIBKER referred to page 3, line 27, subsection (2). She
recommended that it say, "A sex offender or child kidnapper who is
physically present in the state shall register as provided in this
section. The sex offender or child kidnapper shall register by the
next working day following conviction for a sex offense or child
kidnapping if the sex offender is not incarcerated at the time of
conviction."
MS. WIBKER explained, "The reason that Public Safety and the
Criminal Division are recommending that is that there are cases
where someone may be convicted by either coming in and pleading no
contest or having a jury come back with a verdict of guilt. Their
sentencing is then set 60 days later, to give time for a pre-sentence report.
conviction and the date of sentencing, they can flee the state, and
the duty to register never kicks in, so that they're convicted but
unsentenced. There's no judgment, and they're not registered."
MS. WIBKER continued, "I actually had that happen to me in a case
... where I had a jury convict a guy; it was in May of '95. Within
48 hours, he left - probably left the country but certainly left
the state. He's never been found. There's a warrant out for his
arrest. ... If you look in APSIN now, there's not even a record of
the conviction. So, this would put every conviction -- at the time
of conviction, the duty to register would kick in and give them one
day."
Number 2390
MS. WIBKER continued, "Another way to even close that gap more
securely is toward the end of the bill, where it talks about all
the different kinds of information that can be forwarded, on pages
8 and 9, that section of the bill would allow either the court or
the DA's office [Office of the District Attorney] at the time of
the conviction to give that conviction to the Department of Public
Safety, so that conviction could be put in the registry. And then
it would be there, and if he registered, he'd be in compliance. If
he fails to register, right there you've got the conviction and the
failure to register, out of compliance. That doesn't require an
amendment in the statute. It requires just a change in practice,
that either the DA or the court - that's something we can work out
- would immediately get that conviction information into the
registry, which it looks like this statute allows."
MS. WIBKER concluded, "So, Representative Ryan has been made aware
of that. The Governor's child protection bill has ... a sex
offender registration provision in it, and we're recommending,
whatever is passed, that that little hole be closed."
Number 2450
CHAIRMAN GREEN asked whether David Pree, legislative assistant to
sponsor Representative Ryan, wished to comment; Mr. Pree said he
was available for questions. Chairman Green then closed public
testimony and indicated HB 252 would be held over.
HB 273 - NOTIFY COMMUNITY ABOUT SEX OFFENDERS
Number 2456
CHAIRMAN GREEN announced the committee would briefly take up HB
273, "An Act relating to notification of the public concerning sex
offenders." He noted that the sponsor wasn't present. He then
called on Shirley Marshall, requesting that she send or fax any
written testimony.
TAPE 98-16, SIDE B
Number 0006
SHIRLEY MARSHALL testified via teleconference from Tok, specifying
that she was representing herself, her children, family members and
members of the Tok community. She suggested adding to HB 252 that
"any health care facility be notified, and that in that health care
facility, if a convicted sex offender is employed or volunteering
there, that pictures of a convicted sex offender be posted so the
community has their own choice whether they go to that facility for
their medical care or not."
MS. MARSHALL further asked that the emergency medical service
licensing board reconsider letting a licensed emergency medical
technician (EMT) hold a license if that person is a convicted sex
offender. She offered to answer questions.
Number 0056
CHAIRMAN GREEN thanked Ms. Marshall and advised her that she could
fax information to (907) 465-4316. He asked Representative Masek,
sponsor, who had just arrived, whether she or her aide wished to
make a statement; Representative Masek said she would wait.
Chairman Green then advised Representative Masek that they had
taken testimony from someone on teleconference but would consider
the bill another day. [HB 273 was held over.]
ADJOURNMENT
Number 0111
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
3:35 p.m.
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