Legislature(2001 - 2002)
05/05/2001 02:05 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 5, 2001
2:05 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Albert Kookesh
OTHER LEGISLATORS PRESENT
Representative Andrew Halcro
COMMITTEE CALENDAR
HOUSE BILL NO. 268
"An Act relating to the constitutional right to privacy."
- MOVED HB 268 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 176(L&C) am
"An Act prohibiting certain coercive activity by distributors;
relating to certain required distributor payments and purchases;
prohibiting distributors from requiring certain contract terms
as a condition for certain acts related to distributorship and
ancillary agreements; allowing dealers to bring certain court
actions against distributors for certain relief; and exempting
from the provisions of the Act franchises regulated by the
federal Petroleum Marketing Practices Act, situations regulated
by the Alaska gasoline products leasing act, and distributorship
agreements relating to motor vehicles required to be registered
under AS 28.10."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: HB 268
SHORT TITLE:LIMITS ON RIGHT TO PRIVACY
SPONSOR(S): REPRESENTATIVE(S)GREEN
Jrn-Date Jrn-Page Action
05/04/01 1531 (H) READ THE FIRST TIME -
REFERRALS
05/04/01 1531 (H) JUD
05/05/01 1572 (H) COSPONSOR(S): KOTT
05/05/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JOE GREEN
Alaska State Legislature
Capitol Building, Room 403
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 268.
ACTION NARRATIVE
TAPE 01-80, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 2:05 p.m. Representatives
Rokeberg, Ogan, Coghill, and Meyer were present at the call to
order. Representatives James and Berkowitz arrived as the
meeting was in progress.
HB 268 - LIMITS ON RIGHT TO PRIVACY
Number 0069
CHAIR ROKEBERG announced that the committee would hear HOUSE
BILL NO. 268, "An Act relating to the constitutional right to
privacy."
Number 0087
REPRESENTATIVE JOE GREEN, Alaska State Legislature, sponsor of
HB 268, explained that Article I, Section 22, of the Alaska
State Constitution, which goes back to [1972], indicates that
the right of the people to privacy is recognized and shall not
be infringed. He said it further states that the legislature
shall implement this section, and he offered that this
implementation is the goal of HB 268. While this right [of
privacy] is a very significant right, he continued, it does not
necessarily guarantee, or create any further right to receive
money, public benefit, or public service. He opined that
although in the past, the right of privacy has been used as a
justification for certain decisions in court proceedings, HB 268
is a way of explaining to the courts what "we" believe the right
of privacy was instituted for.
REPRESENTATIVE GREEN said that although the federal government
does not have [the right of privacy] in the U.S. Constitution,
several states do have it in their constitutions. He said he
believes - although there is not a record following the
implementation of it - that the concept of the right of privacy
does not indicate that "that's" what was intended when they
passed the right of privacy. He paraphrased the definition of
the right of privacy from the dictionary as, "a seclusion, a
right to not be peeked in on, if you will." To then stretch
that meaning to include some sort of a funding definition, he
opined, goes beyond what was intended at the time of
implementation. He offered that HB 268 is simply a method of
saying to the courts, "this is the way we believe:" There
should be a severance between the right of privacy - as it was
intended - and any funding demand.
REPRESENTATIVE BERKOWITZ asked Representative Green how he knew
what the intent was of the framers of this particular
[constitutional] amendment, and what he thinks is the extent of
the right to privacy: what did it mean to him.
Number 0348
REPRESENTATIVE GREEN responded that it is speculation as to what
was meant [by the framers] since there is no record. Returning
to a meaning from the dictionary, he paraphrased, "as opposed to
being in the public, you're in the private." He said that the
[right of privacy] was implemented back when there was a
breakthrough in the electronic surveillance industry, and
"we're" assuming that the intention was that a person wouldn't
have to worry about electronic intrusion. He related his belief
that the right of privacy provides that a person in his/her home
shouldn't have to worry about government intrusion without
proper warning. Furthermore, it also includes being able to
hook up a computer at home and not worry about some other person
or group being able to electronically gather information via
that computer.
REPRESENTATIVE BERKOWITZ observed that a reasonable expectation
of privacy is already contained within the Fourth Amendment [of
the U.S. Constitution]; he posited, therefore, that Article I,
Section 22, does nothing that is not already addressed at the
federal level.
REPRESENTATIVE GREEN countered that [Article 1, Section 22] does
more. He suggested that it clarifies [the right of privacy]
with regard to the breakthrough in electronic surveillance,
which created an opportunity for private information to be
attached and disseminated electronically.
CHAIR ROKEBERG questioned the assertion that the U.S.
Constitution has a guarantee of right to privacy.
REPRESENTATIVE BERKOWITZ pointed out that it is in the "penumbra
[doctrine] of rights," and that under the Fourth Amendment,
every citizen has a right to be free from unreasonable search
and seizure from government, which means that a government can't
unreasonable intrude into peoples' lives, and which would
include things like "snooping on their computers" or
electronically eavesdropping absent a valid warrant.
CHAIR ROKEBERG acknowledged that case law has held with the
[penumbra doctrine], although he questioned whether there was a
specific "recitation" in the U.S. Constitution on the issue [of
the right of privacy].
REPRESENTATIVE BERKOWITZ explained that because the privacy
clause is specific to the Alaska State Constitution, it is
broader than in the U.S. Constitution.
Number 0609
REPRESENTATIVE OGAN noted that [page 44] of Gordon S. Harrison's
Alaska's Constitution A Citizen's Guide, addresses Article I,
Section 22, and includes reference to the fact that the
delegates to the constitutional convention had considered but
then rejected language regarding unreasonable searches and
seizures. He also noted that this book refers to the Department
of Public Safety's Alaska Justice Information System (AJIS) as
the impetus for this constitutional amendment due to fear of a
"Big Brother" government information bureaucracy.
Representative Ogan surmised that Mr. Gordon apparently had to
research some record in order to obtain this information, and
therefore, he said, this book could be considered a credible
source. Representative Ogan, paraphrasing information found in
Mr. Gordon's book, said that many privacy cases in Alaska have
arisen in the context of searches and seizures, and the
legislature has not yet provided the statutory implementation
that was referred to in [Article I, Section 22]. Representative
Ogan posited: "that was all we're trying to do here."
REPRESENTATIVE BERKOWITZ argued:
That's not all we're trying to do here. It seems
pretty clear to me what this is: this is a trapdoor
to get away from the language that's contained in the
Senate budget. I can read the writing on the wall.
There's a good number of you on this committee who are
co-sponsors of this, and I know which way it's going
to go. I think it's really unfortunate that when
you're attacking the constitution the way this section
does, that we don't have a full vetting. I think
that's really tragic.
Number 0788
CHAIR ROKEBERG warned that regardless of personal feelings, the
issue here is whether the legislature has the right to implement
this particular constitutional amendment - [Article I, Section
22]. He said that he thinks [Article I, Section 22] very
clearly states that the legislature does have that right. He
added that the question then becomes whether this is the proper
course of action, and he suggested that "this" is what "we"
should be speaking to.
REPRESENTATIVE BERKOWITZ suggested then that they look at what
the amendment - Article I, Section 22 - says, and he
paraphrased: The right of privacy is recognized and shall not
be infringed. He then referred to HB 268 and paraphrased: The
right of privacy does not create a right. He opined that [the
language in HB 268] is infringing on the right of privacy just
by its very definition, and he questioned how rights can create
other rights; rights exist on their own, he added, rights are
not created.
REPRESENTATIVE GREEN said:
That's exactly why it says that; it does not create a
right. You're absolutely right. This is just trying
to say the obvious, but there are people, and
certainly courts who perhaps attach that and create a
right. This says "no, that does not" - the wording in
the constitution does not create a right to any of
this kind of financing. It doesn't say it does; it
says it does not.
REPRESENTATIVE BERKOWITZ countered that it's not just financing;
it's money, benefit, or service. He asked whether anyone had
done any investigation into what types of money, benefit, or
services would be impacted by this provision [of HB 268]. To
clarify his question he said, "What's the impact? What is this
legislation intending to reach? Which public moneys? Which
public benefits? Which public services will be reached?"
CHAIR ROKEBERG requested that decorum be maintained.
REPRESENTATIVE GREEN responded:
What does it affect? It doesn't affect anything. If
we said, on the other hand, that this creates a right
to public money, public benefit, public service, then
that question would have much more relevance - it
would say what does this affect. All we're saying is,
the legislature shall implement this section, which
says that the right of privacy exists. It says it
does not create a right in any other thing. [It] has
nothing to do with what it's going to affect; it's
what it's not going to affect.
REPRESENTATIVE BERKOWITZ pointed out that there is case law "out
there" - Alaska Wildlife Alliance v. Rue - that held that under
the right of privacy provision, the Alaska Department of Fish
and Game (ADF&G) was entitled to redact the names of public
employees and private contractors from time sheets requested
under the Public Records Acts when those individuals had
received threats against their lives. "So, public officials
whose privacy rights protect the disclosure of personal
information now will not have [that] privacy protection because
they are receiving a public benefit derived from the privacy
right," he predicted.
Number 0982
REPRESENTATIVE JAMES suggested that, "he's got his arms three
feet long reaching into something that doesn't really apply in
this case. We're not talking about those kinds of benefits."
REPRESENTATIVE BERKOWITZ questioned what case she was referring
to, and what kind of benefits they were talking about. He
emphasized that he would still like a response to his questions
regarding which type of benefits, which type of money, and which
type of services were being discussed.
REPRESENTATIVE OGAN suggested that the discussion pertained to
entitlements, and not necessarily to the case that
Representative Berkowitz used as an example. [People] are not
entitled to an entitlement based on privacy, he added.
REPRESENTATIVE BERKOWITZ asked how the committee is defining
entitlement.
REPRESENTATIVE OGAN defined it as "free money."
REPRESENTATIVE BERKOWITZ pointed out that HB 268 does not refer
specifically to entitlement.
CHAIR ROKEBERG reminded the committee that HB 268 does refer
specifically to public money. He added that HB 268 is clearly
speaking to an appropriation issue. He used, as an example, the
relationship to public funding of abortions, which, he
suggested, is the genesis of HB 268; to this example he said
that the issue is whether the courts can direct an appropriation
by the legislature. The courts, by their case law, have taken
the stance that they can force the legislature to make
appropriations, he added. He mentioned that he is referring to
"Judge Sen Tan's Superior Court case that goes back to the
Matanuska Valley case ... that made a statement to the effect
that there was a right for abortion in the state of Alaska; it
didn't say that there was a right to publicly funded abortion."
Number 1121
REPRESENTATIVE BERKOWITZ said: "So, I just want to be clear
what we're doing here. We're interceding before the supreme
court has made a final decision on the subject of ... what y'all
think is a pretty significant issue of public policy. Is that
correct?" He asked whether they were interceding based on a
superior court case or a supreme court case.
REPRESENTATIVE GREEN explained: "We're interceding just to
implement the right [since] it says that the legislature shall
implement this section. That's all this bill is doing...."
CHAIR ROKEBERG interjected:
I think there's a level of frustration on the part of
the legislature ... when we're, in fact, talking about
separation of powers. I think that my vote, and any
support I may give this bill will be ... on that
basis. ... And I think if the courts wish to direct
the legislature - under the guise of privacy - to make
public expenditures, that's what this particular bill
is about.
REPRESENTATIVE BERKOWITZ again asked: "Which supreme court case
are we doing this on? He went on to suggest that if they were
doing this based on a trial court decision, it is premature.
CHAIR ROKEBERG asked whether the administration has issued a
[statement] with regard to the superior court ruling. He also
asked whether [the state] is still funding abortions [based on
that ruling].
REPRESENTATIVE GREEN said, "there have been several." He then
mentioned that the administration has provided him with some
information regarding abortions.
CHAIR ROKEBERG asked whether "Hyde Amendment" abortions were
continuing in Alaska.
REPRESENTATIVE GREEN said yes, and that according to his
recollection, 15 such abortions were performed in the last two
years.
Number 1259
CHAIR ROKEBERG said:
That's what I think I'm a little bit troubled by.
This is becoming some kind of a big abortion issue
when it really isn't the case. Because, under the
Medicare Options and the instructions through the
legislature to the department, if they're just doing
therapeutic abortions that are allowed under the Hyde
Amendment, ... that's what they're doing. If they're
doing more than that, then it becomes an issue.
REPRESENTATIVE GREEN clarified that during the years 2000 and
2001, there were 15 Hyde Amendment abortions and 228 court-
ordered abortions.
CHAIR ROKEBERG surmised, then, that the court has ordered the
abortions, and the administration is then following the [order
of] the superior court. He then questioned Representative
Berkowitz: [Don't you think] that the legislature has a right
or even an obligation or responsibility to implement "that" if
"they" don't agree with it?
REPRESENTATIVE BERKOWITZ responded that he would like to know
"what we're talking about here. Are we going to talk about
abortion, are we going to talk about separation of powers, [or]
are we going to talk about taking the right to privacy away?"
CHAIR ROKEBERG said he thinks [the topic] is separation of
powers, with abortion being used as an example.
REPRESENTATIVE BERKOWITZ opined that taking liberties from
individual Alaskans is a peculiar way to combat the judiciary,
and he suggested that this is what is occurring [via HB 268].
Number 1325
REPRESENTATIVE GREEN said:
That's not it at all. It was the court who first
enacted this right of privacy to ... violate the
separation of powers issue. If the legislature is the
empowering body to determine how monies are going [to
be spent], and the court then uses the tie to the
right of privacy to say "No, you're also going to do
this," I think that's a violation of the separation of
powers doctrine. So, what we're doing by this is
trying to go back to what we have interpreted ... as
the intent. Albeit it's not direct, but
Representative Ogan and I have both alluded to the
fact that this doctrine ... , this Section 22, was
adopted in the '70s when the electronic surveillance -
the tendency to come in -- that's what they were
focusing on. The judge, then, has come along ...
saying, "No, you're also going to distribute money
according to that right of privacy," and we're saying
that's not what the intent is; the right of privacy
does not give you that right.
REPRESENTATIVE BERKOWITZ suggested that if this legislation is
designed to handle a conflict between the judiciary and the
legislature, [but] there is an ongoing court case - the Tan
decision, which is going up to the supreme court, and which will
give a higher, and hence, better decision upon which to
determine what legislative action would be appropriate - then to
intervene following a superior court case is vastly premature.
CHAIR ROKEBERG noted that he disagreed with Representative
Berkowitz, and suggested putting that issue aside for the
moment.
REPRESENTATIVE OGAN said he thinks that the court's appropriate
role in interpreting legislation, whether it be a constitutional
amendment or a statute, is to consider what the legislative
intent is: what the people, via their elected representatives,
intended when legislation is written. He opined that there is a
record that establishes what the intent is with regards to the
right of privacy, and he suggested that the courts have
misinterpreted that intent and are violating the separation of
powers [doctrine] by telling the legislature what it can and
can't appropriate money for. He added that notwithstanding
[Representative Berkowitz] bringing up the issue of abortion, he
considers this to be a separation of powers issue.
REPRESENTATIVE BERKOWITZ said:
If this is a separation of powers issue, and
Representative Ogan talked about the right of privacy
being misinterpreted by the courts, ... I haven't seen
any evidence of that; I haven't seen any evidence of
what the original intent was of those who framed that
constitutional amendment. In fact, the testimony from
Representative Green was [that] he didn't know what
the intent was and that there was an assumption that
this was done in response to electronic measures that
were developing in the early '70s. ... I would
submit, then, that there was a lot of other
development relating to privacy at that time that
probably [was] involved, but I don't know, because
there's no evidence in front of us.
Number 1503
CHAIR ROKEBERG said he thinks that there is evidence. The
history of the passage of the constitutional amendment is clear
regarding what was on people's minds at that time, he said; it
was to protect individual privacy particularly from the new
computer age. And, even before the [term] "new economy" was
invented, there were concerns about the trading and dispersion
of data and the level of privacy that individuals would enjoy at
that time. He offered that this is the simple baseline history
behind the passage of that amendment [to the constitution].
What has happened subsequent to passage is the utilization of
that particular constitutional amendment by the Alaska Supreme
Court and the lower courts of this state to determine whether a
person can smoke marijuana in his/her home, or to determine "the
potential for use of cocaine." He added that he believed the
courts, by their utilization of that amendment in their
decisions, have corrupted the intent of that amendment.
Therefore, he opined, when Representative Berkowitz posits that
the legislature, to protect its own power, should wait until the
appellate courts have reached the final determination on this
issue, is disingenuous in terms of the legislature's
responsibility.
REPRESENTATIVE BERKOWITZ, in review of the three branches of
government, said there is the executive branch - it administers
the law; there is the legislative branch - it makes the law; and
there is the judiciary branch - it interprets the law. He went
on to say that in essence, what he is being told is that the
judiciary branch interpreted the law incorrectly. However, he
added, it would seem to him that those who support HB 268 for
that reason are violating the separation of powers rather than
supporting it. He said he would like to know at what point do
"you" think it's appropriate for the courts to actually
interpret a constitutional amendment.
Number 1628
REPRESENTATIVE GREEN said:
The judiciary branch, in and of itself, has various
levels. Those are in there to perhaps agree, perhaps
to disagree with their own decisions that are made.
You go from a first court to the second court, which
may, in fact, change the decision; go to another court
- may change it back. And that's why we finally have
a supreme court; that decision is final. But to say
that because we feel that there has been a ...
decision reached that was in error, that we as a body
do not have the right to appeal -- we have that right,
we've exercised that right, and we have actually had
the supreme court overturn superior courts because
this body intervened. So I think the Minority Leader
is way out of line there. The other thing I think,
Mr. Chairman, when he says that we should sit back on
our hands and wait 'til this issue is decided in the
courts, [is that] in the meantime ... we're spending
15 times as much money to perform abortions as the
Hyde Amendment to the U.S. Constitution provides. And
I think ... it is time that we interact and say, "Hey,
wait a minute, you're continuing, while this case is
being appealed, to require the state to spend money,"
which is not in line with what ... this body, ...
empowered by the constitution, determine[s] how the
general fund is [spent].
REPRESENTATIVE JAMES said:
I would like to set another stage here, and [let's
just] say that right after we passed this
constitutional amendment in 1972 - where it says that
... the legislature shall implement this section - had
we, at the next legislative session, determined to say
that "the right of privacy under Article I, Section
22, does not create a right to receive public money, a
public benefit, or a public service", I am quite sure
there wouldn't have been very much objection to that.
Number 1735
The problem - what we have here now - is because the
subject of this issue is driving this argument, and I
think that [it] is incorrect for us to allow that to
happen. I think that why we're here today, is because
... the legislature did not implement this section as
the constitutional amendment required us to do. And
so here we are, in the ninth hour, trying to protect
ourselves from what we believe is an improper decision
based on nothing being there to give them any
guidance. And I think that we as a legislature need
to give them that guidance.
Just thinking of another example: What if somebody
didn't want to tell anybody how old they were, for
there own privacy? Would you get a longevity bonus
without telling people how old you are? You can keep
your privacy and not say, but you're not going to get
the money. It's all the other different things - the
benefits that we have for people - if you don't want
to give up your private information, ... you don't get
the money. So, this is a simple thing of saying that
right to privacy is [an] entirely different section of
law than ... having a benefit of public money and
public benefits that we set out for people [within]
certain categories.
Number 1793
So I think this is entirely proper; I think the
argument is prefaced here because of the subject of
the issue and the court decision that we're talking
about. Let's say that was all gone - wasn't even here
before us - this is a good piece of legislation, and
we ought to look at it on its face and see whether or
not we have the authority to say that privacy doesn't
give you any benefits, any more than anyone else, but
you have a right to privacy. Certainly, I think this
does that, and I think the argument should be in that
regard, and not all this peripheral information.
CHAIR ROKEBERG reminded the committee that there are those in
the state who wish to be able to get a driver's license without
divulging their social security number, and he used this as an
example of how privacy and benefit fit together.
REPRESENTATIVE BERKOWITZ, on that point, said that people are
required in many instances to put their social security numbers
on all kinds of documents. According to this legislation, and
assuming the state does not respect the privacy attendant to the
social security number, the individual would have no cause for
complaint, because the individual with privacy interests in
his/her social security number couldn't use Article I, Section
22, to complain about the failure to receive public money,
public benefit, or public service.
CHAIR ROKEBERG said he disagreed.
REPRESENTATIVE OGAN, with regard to Representative Berkowitz's
point that the judiciary interprets law, said that there have
recently been a number of supreme court cases on the "clear
statement" doctrine, which he paraphrased as saying "they can't
read into things - into laws - something that isn't expressly
stated." He went on to say that the fact that the legislature
hasn't expressly "interpreted" that section of the constitution,
begs a legislative solution. He offered that this is what the
legislature is attempting to do [via HB 268], and that this
[attempt] is entirely appropriate. He reiterated his belief
that "the court should interpret what the will of the peoples'
representatives are, not what their own personal biases are."
REPRESENTATIVE BERKOWITZ interpreted this to mean, "the will of
the people as seen through your eyes." The danger of
legislative intent - and it's recognized in a whole string of
court decisions - is that no two legislators have the same
intent, he added. Further, there can be [different] expressions
by the framers of an amendment, and people can support
legislation or oppose legislation for entirely separate reasons;
this is why courts are there to interpret language. He noted
that courts are also supposed to interpret [statutory language]
based on the face [of it].
CHAIR ROKEBERG again requested decorum be maintained.
Number 1981
REPRESENTATIVE COGHILL remarked that the issue of whether the
right to public funds is protected by the right of privacy has
been brought to light by Judge Tan's decision and the
administration's appeal to the supreme court. He added that he
thinks the legislature, as well as any other branch of
government, needs to make a policy call. He said that HB 268 is
attempting to say that "public funding is not meant to take away
a right, but, certainly, that right does not confer the right to
the public coffer."
REPRESENTATIVE BERKOWITZ noted that members keep returning to
the abortion issue, and he opined that if the intent of HB 268
is to express the legislature's will that public funds shall not
be used to fund abortions, then that's what the legislation
ought to say. He suggested that failure to do so is
constitutionally overbroad.
CHAIR ROKEBERG reminded Representative Berkowitz that the
legislature has already spoken on the abortion issue but since
the courts have "thrown that out," [separation of powers] is the
issue here. [The courts] have overturned the will of the
legislature in its right to appropriate; that's why this is
clearly a separation of powers issue, he added. He agreed with
prior comments that had the legislature acted on [the
implementation provision of Article I, Section 22] when it was
first adopted, there would be no need for this whole discussion.
But, he added, the legislature didn't; instead, the legislature
allowed the courts to implement the right to privacy [for] the
citizens of Alaska. All [the legislature is doing via HB 268],
he offered, is taking a step towards asserting its
constitutional right to implement [Article I, Section 22] as
[the legislature] perceives is correct. He opined that the
legislature would be remiss if it did not take action to defend
its constitutional right of appropriation. He also opined that
the issue is not abortion; the issue is separation of powers.
He then mentioned that he and Representative Berkowitz probably
share a similar point of view with regard to the [issue of
abortion], but he also "stands with" the other members of the
committee with regard the separation of powers issue.
Number 2106
REPRESENTATIVE BERKOWITZ, after noting that the conversation
alternates between abortion and separation of powers, said that
on the separation of powers argument he wished to read a few
lines from a case he had looked up:
Although the legislature has the exclusive
appropriations power, this does not mean that the
exercise of that power is without limit and not
subject to judicial scrutiny. Since Marbury v.
Madison, courts have imposed constitutional
requirements on the exercise of executive and
legislative power. The Alaska Supreme Court has held
that when an infringement of a constitutional right
results from legislative action, the court can not
defer to the legislature.
REPRESENTATIVE BERKOWITZ asked whether Chair Rokeberg agreed
with the premise that when infringement of a constitutional
right results from legislative action, the court cannot defer to
the legislature.
CHAIR ROKEBERG said the issue is debatable with regards to what
is considered a true constitutional right.
REPRESENTATIVE BERKOWITZ questioned whether Chair Rokeberg's
argument is that the right to privacy is not a true
constitutional right.
CHAIR ROKEBERG responded:
Not at all. I think we're talking about, basically,
the power of appropriation. And, as you say, the
courts will endeavor to limit that power of
appropriation as they have here in the state of
Alaska. And the Kasayulie case is another example:
we're not spending enough, so that's another issue.
It happens all the time where there is a conflict and
friction between the different branches of government
and [is] what makes America a great country, but it's
up to us to try to assert our rights also. Don't we
have that right? Don't we have that obligation to
assert our rights when we think it's being infringed?
REPRESENTATIVE BERKOWITZ said he thinks [the legislature] has
the obligation to assert its rights in a constitutionally
permissible way, and when [the legislature] is pondering
legislation that is on its face unconstitutional as a way of
generating a court challenge, that's impermissible; that's an
unlawful and a wrongful exercise of authority.
CHAIR ROKEBERG argued that [HB 268] is not unconstitutional on
its face.
Number 2202
REPRESENTATIVE COGHILL said that although he can appreciate
Representative Berkowitz's argument, it is off base because with
certain constitutional rights, the right is to be implemented by
law. He added, however, that there are certain basic rights in
the Bill of Rights that aren't interpreted by law that are
fundamental. He indicated he was quoting from the court case
appeal to the supreme court: "In conclusion, the Alaska privacy
right is not absolute." He added that otherwise there would not
be an implement-by-law section in it. And although the right to
privacy is guaranteed, he surmised that the implementation of
that right becomes problematic. He opined that the courts have
"brought us to the place where that distinction needs to [be]
made now, and certainly on funding issues it's important. ...
It is just [that] the abortion issue happens to be right in the
center of that funding debate." He still asserted, though, that
the legislature has the right to "implement by law," and that
the right of privacy does not guarantee funding.
REPRESENTATIVE GREEN said he takes issue with the statement made
by Representative Berkowitz that if HB 268 is an abortion bill,
then it should say abortion in it. He offered that HB 268 is
not an abortion bill; it is broader than that. He recounted
that a few years ago, the legislature categorized which
afflictions would be first [funded], and that the court "has
reached in and taken the bottom one and said 'No, this one's
going be up here.' If we were going to make this an abortion
issue, then we would probably have to do the same thing with
mental surgery, arm surgery, leg surgery," and he opined that
this is the reason that "this is particularly broad."
CHAIR ROKEBERG surmised that Representative Green is making the
argument that the courts are saying [the legislature] should
chose dental care over eyeglasses.
REPRESENTATIVE GREEN said, "they would have the right, according
to Representative Berkowitz ...."
CHAIR ROKEBERG added: "It's like saying if you have breast
cancer you have a greater right to the money than somebody that
has colon cancer. That's not right."
Number 2301
REPRESENTATIVE JAMES said:
While you're having this little debate, I've been ...
thinking about all the benefits that we provide for
the people in this state, and every benefit that I can
think of requires them to give up some of their
private information to get it. Now, we do a very good
job, I think, in this state, to try to keep that
information as private as we can so that it's not out
there for the general population to know about ....
But we still, by them having to divulge a lot of their
very personal private information to get these
benefits, we're saying here that the right to privacy
doesn't necessarily give them these benefits. In
other words, there's no direct relationship to their
right to privacy; they can claim their right to
privacy right down to the bare nothing, and they get
nothing, because almost every benefit - I'm sure every
benefit - that we have, requires you giving some of
your personal information to get it, which, according
to this, is what I think privacy is all about.
Privacy is keeping ... who you are, where you are, and
everything about you personally, private. And so I
think that this language in here that says that it
doesn't give them a right to receive public money,
public benefit, or public service is the way we have
been managing our government for a long time. And
except for this one little infraction that we have
here, by the court making a decision based on the fact
that we have never implemented this constitutional
amendment, is only here because of the controversial
nature of the subject of this. However, it is
imperative, I believe, that we get this in as soon as
possible so we don't have this same issue on another
subject.
REPRESENTATIVE OGAN paraphrased from the powers-of-the-
legislature section, [page 53], in Gordon S. Harrison's Alaska's
Constitution A Citizen's Guide:
Delegation of legislative power must be sufficiently
narrow and specific to give the administrative agent
reasonable standards to follow and the courts a basis
for determining when the agent had exceeded the bounds
of the delegated authority. Measures that fail this
test are unconstitutional.
REPRESENTATIVE OGAN opined that this constitutes a "clear
statement doctrine," and he made the argument that [the
legislature, via HB 268,] is trying to give the administrative
agents (and the courts) some clear direction such that the right
to privacy is not an entitlement to an appropriation, which is
well within the powers of the legislature.
Number 2410
CHAIR ROKEBERG noted that the Legal Services' opinion indicates
that although saving money is a legitimate goal, it may not rise
to the level that would allow for an infringement on the right
of privacy, if, in fact, the court found it to be a right of
privacy. He asked Representative Green to comment on whether he
thought that the legislature's right to appropriate is
paramount, vis-a-vis "just the mere act of the court's
appropriation of money."
REPRESENTATIVE GREEN opined: "definitely; it's an absolute
right for the legislature, and we should defend it with vigor.
And that's what this is all about. We're trying to defend that,
and that's where we, I think, come head on in this conflict
between separation of powers."
REPRESENTATIVE BERKOWITZ said:
First of all, again, this is the wrong forum to be
fighting a separation of powers; we don't pass laws in
order to fight a separation of powers issue. We file
lawsuits, and we do a lot of those. Secondly, as to
what Representative Ogan said, if this is such a clear
direction that we're offering to the agencies, again,
I reiterate my request - tell me which services, which
monies, which benefits are going to be impacted; give
me a list. Itemize them for me. And, finally, I'd
point out, for those of you who are trying to
challenge the Sen Tan decision - and I realize that's
a large chunk of the intent here - let me read the
last sentence of the decision: "The conclusion I've
reached is based upon the right of the individual to
the constitutional right of privacy. Not on the right
of women to government funding." So, there is no
government funding here based on the right of privacy.
TAPE 01-80, SIDE B
Number 2461
REPRESENTATIVE BERKOWITZ concluded by saying, "this bill, as
it's written, doesn't even do what it sets out to do."
CHAIR ROKEBERG asked whether there was anyone else who wished to
testify on HB 268. Noting there was no response, he closed
public testimony.
Number 2444
REPRESENTATIVE OGAN moved to report HB 268 out of committee with
individual recommendations and the accompanying "zero" fiscal
note.
Number 2440
REPRESENTATIVE BERKOWITZ objected.
Number 2420
A roll call vote was taken. Representatives James, Ogan,
Coghill, Meyer, and Rokeberg voted for HB 268. Representative
Berkowitz voted against it. Therefore, HB 268 was reported out
of the House Judiciary Standing Committee by a vote of 5-1.
ADJOURNMENT
Number 2408
There being no further business before the committee, Chair
Rokeberg announced at approximately 3:00 p.m. that the House
Judiciary Standing Committee meeting would recess until 5/6/01.
| Document Name | Date/Time | Subjects |
|---|