Legislature(1997 - 1998)

03/12/1997 09:08 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                          MINUTES                                              
                  SENATE FINANCE COMMITTEE                                     
                       March 12, 1997                                          
                          9:08 A.M.                                            
                                                                               
TAPES                                                                        
                                                                               
SFC-97, Tapes 54 and 55                                                        
                                                                               
CALL TO ORDER                                                                
                                                                               
Senator Bert Sharp, Co-Chair, convened the meeting at 9:08                     
A.M.                                                                           
                                                                               
MEMBERS PRESENT                                                              
                                                                               
Senator Sharp, Co-Chair                                                        
Senator Pearce, Co-Chair                                                       
Senator Donley                                                                 
Senator Parnell                                                                
Senator Torgerson                                                              
Senator Phillips                                                               
Senator Adams                                                                  
                                                                               
MEMBERS ABSENT                                                               
                                                                               
                                                                               
ALSO PRESENT                                                                 
                                                                               
Brett Huber, Staff, Senator Rick Halford; Theresa                              
Lauterbach, Division of Legal and Research Services,                           
Legislative Affairs Agency; Senator Loren Leman;                               
                                                                               
PRESENT VIA TELECONFERENCE                                                   
                                                                               
Janice  Adair,  Department  of  Environmental  Conservation,                   
Anchorage; Mike Hanus, Senior  Staff Engineer, Exxon Company                   
U.S.A.;   Susan   Schrader,   Executive   Director,   Alaska                   
Environmental Lobby.                                                           
                                                                               
SUMMARY                                                                      
                                                                               
SB 24     PARENTAL CONSENT BEFORE MINOR'S ABORTION                             
                                                                               
          CSSB  24(FIN) was  REPORTED  out  of committee  as                   
          amended with  a "do pass" recommendation  and with                   
          a  new fiscal  impact note  from the  Alaska Court                   
          System;  one  previously published  fiscal  impact                   
          note  from the  Department of  Administration; and                   
          two  previously published  zero fiscal  notes from                   
          the   Department   of   Administration   and   the                   
         Department of Health and Social Services.                             
                                                                               
SB 35     MANAGEMENT OF PARKS & RECREATIONAL AREAS                             
                                                                               
          SB 35 was SCHEDULED but not HEARD.                                   
                                                                               
SB 41     ENVIRONMENTAL AUDITS                                                 
                                                                               
          SB 41 was HEARD and HELD in committee for further                    
          consideration.                                                       
                                                                               
SB 67     TRUTH IN SENTENCING                                                  
                                                                               
          CSSB 67(JUD) was REPORTED out  of committee with a                   
          "do pass"  recommendation and with  two previously                   
          published  zero fiscal  notes from  the Department                   
          of  Public  Safety,  a previously  published  zero                   
          fiscal  note  from  the  Alaska  Court  System,  a                   
          previously  published zero  fiscal  note from  the                   
          Department  of Law,  and  with  a forthcoming  new                   
          fiscal  impact   note  from  the   Senate  Finance                   
          Committee.                                                           
                                                                               
SB 109    AGRICULTURAL LAND                                                    
                                                                               
          SB 109 was SCHEDULED but not HEARD.                                  
                                                                               
Senate Bill No. 67                                                           
                                                                               
     "An Act relating to the imposition of criminal                            
     sentences; and amending Rule 32.2, Alaska Rules of                        
     Criminal Procedure."                                                      
                                                                               
Co-Chair Sharp stated that SB 67 did not have a fiscal note                    
and that it was his intention to pass the bill out of                          
committee.                                                                     
                                                                               
BRETT HUBER, STAFF, SENATOR RICK  HALFORD, explained that SB
67 provided victims of crime  and their families, as well as                   
the  general   public  with  a  more   honest  and  accurate                   
assessment  of the  time that  was actually  expected to  be                   
served of  someone who  was convicted of  a crime.  He noted                   
that  the  legislation  was  consistent  with  the  victims'                   
rights  constitutional amendment,  which was  passed by  the                   
legislature and ratified by popular vote in 1994.                              
                                                                               
Mr.  Huber began  a sectional  explanation of  the bill  and                   
related that Section  1 short titled the  legislation as the                   
Truth  in  Sentencing Act  of  97.  Section  2 of  the  bill                   
consisted of language  from the Department of  Law (DOL) and                   
the  Department of  Corrections (DOC);  the federal  program                   
for truth  in sentencing was  put into place the  prior year                   
and  provided  funding  for  states  that  met  the  federal                   
guidelines. Although the  language in Section 2  of the bill                   
did not change  any provisions regarding how  a sentence was                   
imposed or  served, it was  expected to capture  $617,000 in                   
federal funds  in FY98. He  explained that the  federal pool                   
of funds would stay in place  for 3 more years, but that the                   
amount might  be reduced  as other  states began  to qualify                   
for the program;  DOL and DOC anticipated the  funding to be                   
at  least $500,000  annually  for next  4  years. Section  3                   
represented a  written declaration  in the  sentence report;                   
at the  time of sentencing,  the judge would be  required to                   
state an approximate  time that was actually  expected to be                   
served under the provisions of  good time, mandatory parole,                   
and  discretionary  parole.  He  explained that  a  10  year                   
sentence did not often mean  10 years actually served in the                   
judicial  system.  He  relayed   that  Section  4  addressed                   
concerns by DOL  and DOC, and that  the sections essentially                   
stated that the informational  portion of the sentence could                   
not be used against the court  in a future appeal. Section 5                   
reflected  a court  rule  change and  provided  for an  oral                   
statement  at  the time  of  sentencing;  at sentencing  the                   
judge would  make an  oral statement  as to  the approximate                   
minimum of the  actual time that would be  served. Section 5                   
also  contained language  that took  away the  informational                   
portion of the  sentence as a basis of  appeal. He concluded                   
that Sections 6 and 7 addressed the court rule changes.                        
                                                                               
Senator  Donley wondered  why the  fiscal notes  were zeroed                   
and observed that the notes did  not have any mention of the                   
possible  federal  funding.  Mr. Huber  responded  that  the                   
fiscal  note from  DOL originally  had reflected  costs; the                   
concern had been that if the  bill could be used for a basis                   
for  appeal, there  might  be  additional court  challenges.                   
Furthermore, if  the desire was  that there needed to  be an                   
exact "to  the day"  determination of expected  served time,                   
it would  cause additional work for  the prosecutor's office                   
and DOC.  He offered  that the  concerns from  DOL regarding                   
the bills  potential costs  had been  addressed in  a Senate                   
Judiciary  Committee CS.  He observed  that the  fiscal note                   
had been  zeroed, but offered that  he did not know  why the                   
$617,000 in  federal fund  capture was  not included  in the                   
note.                                                                          
                                                                               
Senator  Donley  stated that  there  should  at least  be  a                   
notation  somewhere on  the fiscal  note that  discussed the                   
$617,000 in  federal funding and  inquired if there  was any                   
mention  of the  funding in  the note.  Mr. Huber  responded                   
that he did not see any  mention of the funding that DOL had                   
testified  about in  the Senate  Judiciary Committee  in the                   
current fiscal note.                                                           
                                                                               
Co-Chair Sharp inquired  if a positive fiscal  note would be                   
from  DOC  or DOL.  Mr.  Huber  responded that  the  federal                   
funding  pool provided  for  prison facilities  construction                   
and that the note would be  from DOC. He stated that the DOL                   
attorney, Margo Knuth, who had  worked with the sponsor, was                   
currently detached  to DOC.  He reiterated  that he  did not                   
know why  the federal funding  did not appear on  the fiscal                   
note.                                                                          
                                                                               
Co-Chair  Sharp suggested  that the  bill be  passed out  of                   
committee with  instructions to  get clarification  from DOL                   
and  DOC  regarding  a  possible  positive  fiscal  note  to                   
accompany the legislation.                                                     
                                                                               
Senator Donley  observed that the bill's  sponsor could draw                   
up   a  fiscal   note   that   accurately  reflected   their                   
understanding  of the  status of  the  federal funding.  Co-                   
Chair Sharp mentioned that the  sponsor could draft a fiscal                   
note for the Senate Finance  Committee that was based on the                   
testimony in the Senate Judiciary Committee.                                   
                                                                               
Senator Donley  added that  the new note  could be  taken up                   
under subsequent business.                                                     
                                                                               
Co-Chair  Sharp  requested  that   the  sponsor  supply  the                   
committee with a  new fiscal note either in  the current day                   
or the next. Mr. Huber responded in the affirmative.                           
                                                                               
Senator Donley  stated that he did  not want to hold  up the                   
bill in committee, but rather  that the bill could be passed                   
out  and the  fiscal  note could  be revisited  a  day or  2                   
later.  Co-Chair  Sharp agreed  and  added  that the  record                   
should reflect  the possible upcoming  fiscal note  from the                   
Senate Finance Committee.                                                      
                                                                               
Senator  Donley   MOVED  to  REPORT  CSSB   67(JUD)  out  of                   
committee   with   individual    recommendations   and   the                   
accompanying fiscal notes. There  being NO OBJECTION, it was                   
so ordered.                                                                    
                                                                               
CSSB 67(JUD) was REPORTED out  of committee with a "do pass"                   
recommendation  and  with   two  previously  published  zero                   
fiscal  notes  from  the  Department  of  Public  Safety,  a                   
previously published zero fiscal  note from the Alaska Court                   
System,  a previously  published zero  fiscal note  from the                   
Department of Law, and with  a forthcoming new fiscal impact                   
note from the Senate Finance Committee.                                        
                                                                               
SENATE BILL NO. 24                                                           
                                                                               
     "An  Act  relating  to a  requirement  that  a  parent,                   
     guardian,  or custodian  consent before  certain minors                   
     receive  an abortion;  establishing  a judicial  bypass                   
     procedure by  which a  minor may  petition a  court for                   
     authorization  to   consent  to  an   abortion  without                   
     consent of  a parent, guardian, or  custodian; amending                   
     the  definition of  `abortion'; and  amending Rules  40                   
     and  79, Alaska  Rules of  Civil Procedure;  Rules 204,                   
     210,  212,  213,  508,  and   512.5,  Alaska  Rules  of                   
     Appellate Procedure; and  Rule 9, Alaska Administrative                   
     Rules."                                                                   
                                                                               
Co-Chair Sharp  stated that SB  24 had been  previously held                   
in committee due to members'  concerns regarding the wording                   
of  language on  page 5  of the  bill. He  related that  the                   
drafter  of  the  legislation  was on  hand  to  answer  any                   
questions from committee members.                                              
                                                                               
Senator  Donley  had  questions  regarding  the  "clear  and                   
convincing"  standard of  evidence;"  he  queried what  this                   
would mean in an ex parte  proceeding and if it would have a                   
subsequently  different meaning  in  a  proceeding in  which                   
there were advocates on both sides.                                            
                                                                               
THERESA   LAUTERBACH,  DIVISION   OF   LEGAL  AND   RESEARCH                   
SERVICES,  LEGISLATIVE  AFFAIRS  AGENCY,  replied  that  the                   
standard of  evidence was  the same  regardless of  what the                   
proceeding was.                                                                
                                                                               
Senator Donley  inquired if there  was something  in writing                   
that  covered  what  the  "clear  and  convincing"  evidence                   
standard  was. Ms.  Lauterbach responded  that, relative  to                   
the  standard's   strictness,  the  "preponderance   of  the                   
evidence" standard was the lowest,  the clear and convincing                   
evidence  standard   was  in  the  middle,   and  "beyond  a                   
reasonable doubt" was the highest.                                             
                                                                               
Senator  Phillips   assumed  that   a  judge  gave   a  jury                   
instructions   regarding  the   meaning  of   the  different                   
standards and that it must  be something that "laymen" could                   
understand.   Ms.  Lauterbach   replied   that  there   were                   
definitions of the standards in  Black's Law Dictionary, but                   
that  she did  not have  them with  her. She  stated that  a                   
preponderance  of the  evidence  required  more than  simply                   
having quantity  and that not  all pieces of  evidence would                   
be  given  the same  weight.  She  related that  "clear  and                   
convincing" meant  "more than  a preponderance,"  but stated                   
that  she   was  unable  to  describe   it  further  without                   
consulting Black's Law Dictionary.                                             
                                                                               
Senator Donley wondered  what standard a court  would use if                   
the bill did not specify  a particular standard of evidence.                   
Ms.  Lauterbach  responded  that the  preponderance  of  the                   
evidence standard would be used.                                               
                                                                               
Senator  Parnell  queried  what  the  clear  and  convincing                   
standard  was  based  on  and  why  it  was  chosen  in  the                   
legislation.  Ms. Lauterbach  replied that  the sponsor  had                   
chosen the standard that would be used.                                        
                                                                               
Senator  Parnell  inquired  if   the  clear  and  convincing                   
evidence  standard  was  used in  other  jurisdictions.  Ms.                   
Lauterbach  responded  that  it  was  used  in  other  laws.                   
Senator   Parnell  further   inquired  if   the  clear   and                   
convincing evidence  standard was used in  other proceedings                   
in Alaska. Ms. Lauterbach stated  that she had not conducted                   
an "exhaustive"  study, but  that the  standard was  used in                   
the termination  of parental  rights proceedings;  the court                   
used a clear  and convincing evidence standard  to show that                   
a child was endangered by  parental conduct and that without                   
the  termination of  parental  rights,  the harmful  conduct                   
would continue.  She was  unaware of  other areas  in Alaska                   
that use the standard.                                                         
                                                                               
Senator  Parnell   offered  that  the  bill   represented  a                   
termination of  parental rights and  opined that  the reason                   
the clear  and convincing  evidence standard was  being used                   
in  the legislation  was  because it  was  similar to  other                   
areas of  Alaska law where parental  rights were terminated.                   
Ms.  Lauterbach stated  that she  would not  characterize it                   
that  it way.  She offered  that she  was only  pointing out                   
another  area  where  the  standard was  used  and  was  not                   
claiming that it was related to the bill.                                      
                                                                               
Senator Parnell  observed that the bill  would terminate the                   
parental  rights to  have a  say in  a minor's  abortion and                   
that  the state  required clear  and convincing  evidence in                   
other   proceedings   where   the   parental   rights   were                   
terminated. He offered that the  bill seemed consistent with                   
Alaska's current policy.                                                       
                                                                               
Senator  Parnell   inquired  if,   assuming  the   judge  or                   
magistrate believed the child,  a minor's testimony of abuse                   
was  enough  to  solely   constitute  clear  and  convincing                   
evidence  or  if  there  was  anything  else  required.  Ms.                   
Lauterbach responded that the  bill did not require anything                   
else,  but that  the  judge would  listen  to a  testimony's                   
credibility  and consistency.  She  furthered  that a  judge                   
would ask  questions in order to  uncover inconsistencies or                   
a lack  of credibility in  someone's testimony and  that the                   
questions would give the judge an  idea of whether he or she                   
was clearly convinced.                                                         
                                                                               
Co-Chair Pearce  stated that she  had a copy of  Black's Law                   
Dictionary.  She noted  that the  dictionary indicated  that                   
"preponderance of  the evidence"  was the standard  of proof                   
that was used in civil cases,  which led her to believe that                   
the  clear  and convincing  evidence  standard  was used  in                   
criminal   cases.  Ms.   Lauterbach  interjected   that  the                   
termination of parental rights was a civil case.                               
                                                                               
Senator Parnell  interjected that  the "beyond  a reasonable                   
doubt" standard was used in criminal cases.                                    
                                                                               
Senator Pearce  noted that  Senator Parnell's  comments were                   
the   most  persuasive.   She   observed   that  under   the                   
confidentiality  rules,  a judge  would  be  faced with  one                   
person asserting  what was "her  truth, as she sees  it" and                   
would  not  be presented  with  a  lot  of evidence  to  the                   
contrary. She observed that the  bill's standard of evidence                   
left a lot of wiggle room in any direction.                                    
                                                                               
Senator Parnell noted  that judges were used  to judging the                   
credibility of witnesses.                                                      
                                                                               
Co-Chair Sharp clarified for the  record that, absent of any                   
comments or  testimony to the  contrary, a judge  would make                   
the  determination  of  whether   a  child's  testimony  was                   
factual.  He observed  that  credibility  was something  the                   
judge would  have to  determine, but that  it would  be hard                   
for a judge  or magistrate refuse a request if  there was no                   
opposing  testimony  or  parent   present  to  defend  their                   
parental  right.   He  noted   that  different   judges  had                   
different opinions.                                                            
                                                                               
Senator Donley  discussed a Florida  State Statute  that was                   
found to  be unconstitutional  by the Florida  Supreme Court                   
and  inquired  if the  statute  had  contained a  clear  and                   
convincing  standard. Ms.  Lauterbach replied  that she  did                   
not know. She  stated that she did have  the court's opinion                   
with her,  but she was not  sure if it described  the entire                   
statute.                                                                       
                                                                               
Co-Chair Sharp noted  for the record that  Senator Adams had                   
joined the committee.                                                          
                                                                               
Ms. Lauterbach  relayed that the  part of the  Florida State                   
Statute  that was  in the  court's  opinion did  not give  a                   
standard of evidence,  but opined that it  probably used the                   
"preponderance  of  evidence"  standard. She  observed  that                   
part of  the statute in  question was  in a footnote  in the                   
court's decision.  She pointed out that  the Florida Statute                   
did discuss "good cause," which  could be based on a showing                   
that the  child was sufficiently mature,  the legal guardian                   
unreasonably withheld consent, the  minor's fear of physical                   
or  emotional abuse,  or  any other  good  cause shown.  She                   
concluded  that  the  Florida   statute  had  a  good  cause                   
standard, which  did not  specify the  burden of  proof. She                   
reiterated   that  "preponderance   of  evidence"   was  the                   
standard  most likely  used  in the  statute,  but that  her                   
opinion was conjecture without examining  all of the Florida                   
Statutes.                                                                      
                                                                               
Senator  Parnell queried  if Ms.  Lauterbach  had a  similar                   
California State  Statute with  her. Ms.  Lauterbach replied                   
in the negative.                                                               
                                                                               
Senator Donley  inquired what the penalty  was for violating                   
the bill's confidentiality  clause. Ms. Lauterbach responded                   
that she did not know that information offhand.                                
                                                                               
Senator Donley  requested that  Ms. Lauterbach  research the                   
penalty and return to the committee with more information.                     
                                                                               
Senator Donley  observed that reasonable minds  could differ                   
not only on what standard to  use, but also in the amount of                   
distinction between  standards. He offered that  there might                   
be  a  dichotomy  between  the   public  policy  reason  for                   
requiring the clear and convincing  standard for evidence of                   
physical, sexual,  and emotional abuse, as  opposed to using                   
"clear  and convincing"  evidence that  it was  in the  best                   
interest of the complainant.                                                   
                                                                               
Senator  Donley requested  that the  language "by  clear and                   
convincing evidence"  be deleted from  line 25 of  the bill.                   
He observed that the bill's  placement of the word "pattern"                   
in   reference  to   physical   and   sexual  abuse   needed                   
revisiting; he opined that "pattern"  might be a more proper                   
modifier for emotional abuse. He  expressed concern that the                   
bill may require clear and  convincing evidence of a pattern                   
of physical abuse.                                                             
                                                                               
Co-Chair  Sharp  noted  that the  physical  abuse  could  be                   
determined  to be  anything from  spankings to  very harmful                   
actions.  He expressed  concern regarding  how physical  and                   
abuse was  defined regarding  justification. He  stated that                   
the wording  "pattern" established good cause  for the judge                   
to make  a decision on and  noted that certain cases  in the                   
juvenile  justice   system  could   be  based   on  "fragile                   
testimony."                                                                    
                                                                               
Co-Chair  Pearce  stated  that  she  had  a  great  deal  of                   
sympathy for  the concerns addressed  by Co-Chair  Sharp and                   
noted that  in Alaska,  a teenager  could allege  abuse with                   
very little  evidence; in  addition, a  teenager's testimony                   
was automatically  given credence by the  system. She opined                   
that  the system  had been  abused by  youths in  the state;                   
however, she believed that the  law should error on the side                   
of the  child regarding the  cases that were covered  in the                   
bill. She mentioned  that the state needed to  be careful to                   
provide  protection  to  young  women and  that  setting  an                   
artificial standard  was unwise.  She offered  that although                   
narrower standards were used in  other areas of the law that                   
dealt  with  child  allegations,  a  broader  categorization                   
would be more appropriate  in the bill's application because                   
it  applied  to  pregnant   young  women;  furthermore,  the                   
broader categorization would allow  the judges room to work.                   
She  expressed  concern  regarding   the  use  of  the  word                   
"pattern"  in  the legislation  and  offered  that one  rape                   
could cause the  pregnancy that brought the  case before the                   
judge;  she  concluded that  the  state  should protect  the                   
child in this case.                                                            
                                                                               
Co-Chair  Sharp  inquired   which  language  Senator  Donley                   
wanted removed from the legislation.                                           
                                                                               
Senator Donley responded that he  wanted the words "by clear                   
and convincing evidence" removed from line 25 of the bill.                     
                                                                               
Co-Chair  Sharp stated  that the  language  change would  be                   
Amendment 4.                                                                   
                                                                               
Senator Parnell OBJECTED.                                                      
                                                                               
Senator Donley offered that there  was a grey area regarding                   
how the Alaska Supreme Court  would react to the legislation                   
and opined that  Amendment 4 would make it  more likely that                   
the  bill would  be upheld  as being  constitutional in  the                   
courts.  He pointed  out that  different jurisdictions  were                   
"splitting  on this  issue" and  that it  appeared that  the                   
Florida  Statute  did  not   require  clear  and  convincing                   
evidence,  but instead  used a  lower standard  of evidence,                   
which  was known  as  a preponderance  of  the evidence;  he                   
observed that  a court in  Florida had  found the law  to be                   
unconstitutional.  He  concluded  that  how  a  court  would                   
respond to  a law was  unknown, but that the  amendment gave                   
the  bill a  higher  probability of  success  in the  Alaska                   
Supreme  Court.  He  stated that  evidence  of  physical  or                   
sexual  abuse was  very  significant  and expressed  concern                   
that the  clear and  convincing standard  was being  used in                   
relationship  to those  types of  abuse. He  noted that  his                   
understanding  of   the  clause  was  that   the  clear  and                   
convincing  standard  would  also  have  to  be  applied  to                   
whether or not it was in  the best interest of the woman; he                   
expressed concern regarding this aspect.                                       
                                                                               
Senator Parnell  observed that the current  bill represented                   
a  situation  where  a  magistrate had  to  find  clear  and                   
convincing evidence that there was  evidence of a pattern of                   
physical, sexual,  or emotional  abuse, or that  the consent                   
of  the  parents,  guardians,  etc.  was  not  in  the  best                   
interest   of  the   complainant;   he   offered  that   his                   
understanding was that only the  girl would be testifying at                   
that point,  that no contrary  evidence would  be presented,                   
and  that  it  would  be  up to  the  judge  to  believe  or                   
disbelieve the testimony. He added  that the only way that a                   
judge or magistrate  would find that a girl  was not telling                   
the truth was  by her own inconsistent  statements about the                   
abuse. He  noted that  his understanding  was that  in every                   
other area  of Alaskan law that  terminated parental rights,                   
a clear  and convincing  standard was used  and that  it was                   
not  a very  hard  standard  to meet  when  the only  person                   
testifying was  the girl herself. He  expressed concern that                   
lowering  the   bill's  standard  would  enable   the  lower                   
standard to  be used in  other types of  cases; furthermore,                   
the lower  standard would  make it easier  for the  state to                   
become part  of those  proceedings, which  he did  not think                   
was a  good idea.  He reiterated that  when a  magistrate or                   
judge was faced with only  one witness, clear and convincing                   
evidence was  not a very high  standard to meet and  that it                   
was an appropriate standard given  the serious nature of the                   
allegations. He  urged his agreement  that the  child should                   
be  protected  and  that  if   they  have  been  physically,                   
sexually,  or emotionally  abused, they  should not  have to                   
get  consent; however,  he was  concerned that  lowering the                   
standard would make the court into a rubber stamp.                             
                                                                               
Senator Adams stated that in  rural Alaska, it was not often                   
easy to  get access  to a  court and  that he  was concerned                   
about   due  process   being  lost;   furthermore,  villages                   
sometimes  had  only  one  phone   available  and  if  rural                   
Alaskan's  were allowed  to use  the telephone  to call  in,                   
they  might  not have  any  privacy.  He offered  that  bill                   
represented a violation of equal protection.                                   
                                                                               
Senator Parnell stated that he  had discussed the issue with                   
Senator  Adams the  prior  day  and that  there  was not  an                   
abortion provider in  a rural area where there  was not also                   
access  to a  court. He  expounded that  a child  would have                   
access to a  court system in the same place  that they would                   
be able to get an abortion.                                                    
                                                                               
Senator Adams asserted that  Senator Parnell's assertion was                   
debatable.  Senator Parnell  interjected that  he had  asked                   
the  department, which  did not  support the  bill, to  come                   
forward with any  village that had an  abortion provider but                   
no court  system; the department  had so far been  unable to                   
provide any such places.                                                       
                                                                               
Senator  Phillips  requested   clarification  regarding  the                   
types of  evidence standards.  Senator Parnell  replied that                   
there were 3 basic standards  of evidence. He explained that                   
a preponderance  of the  evidence represented  evidence that                   
barely tipped the scales. He  furthered that a preponderance                   
of the evidence  was if you were convinced by  51 percent of                   
the evidence and  thought it was more likely  true than not.                   
He related that  clear and convincing evidence  was the next                   
highest  standard,  but  noted that  Legal  Services  should                   
probably have  addressed it earlier  because there  was case                   
law that defined what clear  and convincing evidence was. He                   
concluded that  "beyond a reasonable doubt"  was the highest                   
standard.                                                                      
                                                                               
Senator  Donley  pointed  out  that  there  were  also  many                   
modifiers  to the  different standards  of  evidence in  the                   
state's statutes. He  related that "fair" was  a modifier to                   
"preponderance of  the evidence" and shared  that there were                   
different variations to how the modifiers were used.                           
                                                                               
Senator Phillips  asked for an  explanation of  Amendment 4.                   
Senator Parnell  replied that Amendment  4 proposed  a lower                   
standard  establishing that  it  was more  plausible that  a                   
complainant was telling the truth.                                             
                                                                               
Senator Donley  stated that in general,  Senator Parnell had                   
given a  very accurate  description of what  a preponderance                   
of the evidence  was; however he produced an  example of how                   
the  standard got  "muddled" in  Black's Law  Dictionary. He                   
related that in addition  to Senator Parnell's description a                   
"preponderance" was  described as  "that which  best accords                   
with reason  and probability.  The word  preponderance means                   
something  more than  weight; it  denotes  a superiority  of                   
weight  or outweighing."  He pointed  out that  although the                   
classic definition  of a preponderance  of the  evidence was                   
51 percent of the evidence being  in favor of it being true,                   
more could  be applied  to the standard;  furthermore, there                   
was a variance from judge to judge on how it was applied.                      
                                                                               
Senator  Phillips  queried why  the  bill  could not  use  a                   
preponderance of the evidence  standard instead of the clear                   
and convincing  standard. Senator Parnell responded  that in                   
every  other  case  where   the  state  terminated  parental                   
rights,  clear  and  convincing evidence  was  required.  He                   
offered  that in  the  case of  the  legislation, clear  and                   
convincing evidence was  an easy burden to  meet because the                   
complainant was the only person testifying.                                    
                                                                               
Senator  Pearce  stated  that  after  listening  to  Senator                   
Parnell  and  thinking  through  the  facts,  she  was  less                   
bothered by the  clear and convincing standard  than she was                   
by the use  of the word "pattern." She pointed  out that the                   
state  should   have  consistency  in  the   termination  of                   
parental rights proceedings.                                                   
                                                                               
Senator Adams  requested a legal  perspective on  the debate                   
before the committee.                                                          
                                                                               
Ms.  Lauterbach clarified  that she  had not  said that  the                   
clear  and  convincing  standard  was used  in  all  of  the                   
state's  statutes related  to  the  termination of  parental                   
rights. For  example, she pointed  to a statute  on removing                   
the  disabilities  of a  minor  who  could prove  they  were                   
living  apart  from  their   parents  that  would  terminate                   
parental  control;  there was  not  a  clear and  convincing                   
standard in  this statute.  She stressed  that she  had only                   
provided 1 example  in response to a  question about whether                   
there were other  statutes that used a  clear and convincing                   
standard.  She  noted  that  inconsistency  existed  in  the                   
statues.                                                                       
                                                                               
Senator Sharp did  not imagine the scenario  would occur for                   
children under the age of  16. Ms. Lauterbach replied that a                   
person had to be at least 16 years of age.                                     
                                                                               
Ms.  Lauterbach  clarified  that   there  were  not  only  3                   
standards of proof starting  with preponderance of evidence.                   
She stated that for some  situations, showing a scintilla of                   
evidence sufficed; if clear and  convincing was removed, the                   
standard would be any evidence.                                                
                                                                               
Senator Parnell  asked for verification that  Ms. Lauterbach                   
was  referring to  a scintilla  of evidence.  Ms. Lauterbach                   
believed line 25  would read "the court finds  that there is                   
evidence  of  a  pattern."  She  communicated  that  if  the                   
committee  wanted to  go to  preponderance of  evidence, the                   
word evidence should  also be removed later  in the sentence                   
to  read  "the  court  finds  that there  is  a  pattern  of                   
physical, sexual, or emotional  abuse." She stated that with                   
the  change,  the  standard  would  be  a  preponderance  of                   
evidence.                                                                      
                                                                               
Senator Donley  had misunderstood  earlier testimony  by Ms.                   
Lauterbach; therefore, he WITHDREW Amendment 4.                                
                                                                               
Senator  Donley  MOVED  a revised  Amendment  4  that  would                   
delete  "clear  and  convincing   evidence"  and  the  words                   
"evidence of." The language would  read "and the court finds                   
that there  is a  pattern of..."  He asked  for verification                   
that the change would  establish a preponderance of evidence                   
in the legislation.                                                            
                                                                               
Ms. Lauterbach affirmed.                                                       
                                                                               
Senator Parnell  asked whether there were  any statutes that                   
enabled the termination of parental  rights for children who                   
were age  15 and younger  upon a preponderance  of evidence.                   
Ms.  Lauterbach replied  that the  phrasing of  the question                   
made it difficult to answer.  She surmised the committee had                   
been told  that minors  could consent to  their own  care in                   
certain  situations under  AS 25.20.025  [she was  uncertain                   
she had  stated the  correct statute]; parental  rights were                   
terminated  under the  scenario. She  summarized that  there                   
were other situations that did  not use clear and convincing                   
standards. She  noted that  it was  a matter  of terminology                   
and  explained  one  person  may   call  the  situation  the                   
termination  of  parental  rights; whereas,  she  called  it                   
minors  having the  ability  to consent  to  the receipt  of                   
medical or  dental treatment. She  remarked that  there were                   
many other parental rights that were not affected.                             
                                                                               
Senator  Donley  appreciated  the  time  the  committee  was                   
taking on the issue.                                                           
                                                                               
Senator  Sharp pointed  to line  27 of  the legislation  and                   
noted  that it  established  leaving a  decision  up to  the                   
judge's discretion without much  evidence with the exception                   
of  the  judge finding  that  a  decision  was in  the  best                   
interest.                                                                      
                                                                               
Ms. Lauterbach  answered that  it was  likely the  clear and                   
convincing standard carried through the entire sentence.                       
                                                                               
Senator  Donley   would  be  satisfied  if   the  clear  and                   
convincing  standard   only  applied  to  the   evidence  of                   
physical,  sexual,  or  emotional abuse.  He  restated  that                   
Amendment  4   would  delete  the  words   "...a  clear  and                   
convincing evidence" and the words  "evidence of" on line 25                   
of  the legislation.  The amended  sentence would  read "the                   
court finds that there is..."                                                  
                                                                               
Senator Parnell  asked for  verification that  the amendment                   
would reduce  the evidentiary requirement to  a scintilla of                   
evidence.  Ms.  Lauterbach  replied  in  the  negative.  The                   
change would  mean the requirement would  be a preponderance                   
of evidence.                                                                   
                                                                               
Senator  Donley   clarified  that  by  deleting   the  words                   
"evidence of"  the requirement would  be a  preponderance of                   
evidence.                                                                      
                                                                               
The OBJECTION to Amendment 4 was MAINTAINED.                                   
                                                                               
A roll call vote was taken on the motion.                                      
                                                                               
IN FAVOR: Senator Donley, Senator Phillips, Senator Pearce                     
OPPOSED: Senator Adams, Senator Parnell, Senator Sharp                         
                                                                               
The MOTION FAILED (3/3).                                                       
                                                                               
Senator  Donley   MOVED  [Amendment   5]  to   establish  an                   
evidentiary standard for the best  interest language on line                   
27 of  the legislation.  Following the  third word  "or" the                   
amendment would insert language  to read "by a preponderance                   
of the evidence that the consent."                                             
                                                                               
Senator Parnell  OBJECTED. He  believed the  amendment would                   
have  the same  result  as the  previous proposed  amendment                   
that had failed.  He reasoned that if the  same testimony of                   
abuse was present  and shown by a  preponderance of evidence                   
the judge  would be  able to find  under the  second section                   
that it was  not in the child's best  interest. He furthered                   
that anything, including an  allegation of physical, sexual,                   
or emotional  abuse could  be held  that it  was not  in the                   
best interest  of the child  if a preponderance  of evidence                   
was shown.                                                                     
                                                                               
Senator Sharp  agreed. He noted  the amendment  stated there                   
were other reasons besides patterns  of physical, sexual, or                   
emotional abuse that a judge could make a decision on.                         
                                                                               
Senator Donley  acknowledged that  the amendment  could have                   
the  effect   discussed  by  Senators  Parnell   and  Sharp;                   
however, he concluded that it  could have a different effect                   
as  well.  He  relayed  that line  26  dealt  with  specific                   
factual  findings by  the court  including either  physical,                   
sexual, or emotional  abuse. He furthered that  if the court                   
found  1 of  the forms  of abuse  to be  present, permission                   
would automatically  be granted.  He explained that  line 28                   
dealt with  best interest,  which was  a separate  issue. He                   
stated that it would be  possible to find by a preponderance                   
of evidence  that there  was some  emotional abuse,  but the                   
court  could also  find  that  it may  not  be  in the  best                   
interest of the child to grant permission.                                     
                                                                               
Senator Parnell countered that the  complaint would be filed                   
under the same subsection, which  was (b)(4)(B) on page 4 of                   
the bill,  that stated that a  person would go to  the court                   
because of  emotional, physical, or sexual  abuse or because                   
it was  in the  person's best interest.  He did  not believe                   
there should  be different standards  when filing  under one                   
section.                                                                       
                                                                               
Senator Donley countered that  the standards were different.                   
He  explained that  the first  half of  subsection (b)(4)(B)                   
dealt  with  the  court's  factual   finding  related  to  a                   
physical  or  mental  event;  the  second  half  dealt  with                   
whether something was in the  minor's best interest based on                   
the court's subjective  finding. He stated that  it would be                   
possible to  find that emotional abuse  had occurred without                   
clear  and  convincing  evidence   and  to  still  deny  the                   
permission under  the second standard  of best  interest. He                   
elaborated that  more factors were  included under  the best                   
interest analysis than under the  objective analysis on line                   
26.                                                                            
                                                                               
Senator  Sharp   opined  that  a   judge  would   have  more                   
subjective  opportunities  than  available  under  the  more                   
precise portion in the first half of the section.                              
                                                                               
Senator Donley agreed.                                                         
                                                                               
Senator Sharp continued that the  second half of the section                   
would provide a judge with  more discretion deciding on what                   
was  in  the best  interest  of  a  minor. He  believed  the                   
discretionary  ability lowered  the  standard  in the  first                   
section.                                                                       
                                                                               
Senator  Parnell wondered  why  a higher  standard of  proof                   
would not be required. Senator  Donley replied that it would                   
allow a  judge to  look to offsetting  circumstances outside                   
of the  factual circumstances defined in  the first section.                   
He expounded  that extenuating circumstances may  exist that                   
had corrected or mitigated the abuse.                                          
                                                                               
Senator Donley  formalized his motion and  MOVED Amendment 5                   
that  would  insert  the  words  "by  preponderance  of  the                   
evidence"  following the  [third]  "or" on  line  27 of  the                   
bill.                                                                          
                                                                               
Senator Parnell MAINTAINED his OBJECTION to Amendment 5.                       
                                                                               
A roll call vote was taken on the motion.                                      
                                                                               
IN FAVOR: Phillips, Donley, Pearce                                             
OPPOSED: Parnell, Adams, Torgerson, Sharp                                      
                                                                               
The MOTION FAILED (4/3).                                                       
                                                                               
Senator  Parnell   asked  whether  the  current   clear  and                   
convincing  standard  also  related  to  the  best  interest                   
section.  Ms. Lauterbach  believed that  language should  be                   
inserted if the goal was  to clarify the meaning. She opined                   
that  the standard  probably applied,  but the  answer would                   
not be known until a court interpreted the language.                           
                                                                               
Senator  Adams asked  if the  different  standards had  been                   
debated in  the Senate  Judiciary Committee.  Ms. Lauterbach                   
did not know.                                                                  
                                                                               
Senator  Pearce noted  that there  had not  been significant                   
discussion on the topic previously.                                            
                                                                               
Senator  Parnell MOVED  Amendment  6 that  would insert  "by                   
clear and convincing evidence" on  page 5, line 27 following                   
the third "or."                                                                
                                                                               
Senator  Donley  believed  it was  prudent  to  specify  the                   
language. He  explained that  if a case  went to  the Alaska                   
Supreme  Court,  the  clarity could  make  a  difference  in                   
constitutionality whether  the court interpreted  the second                   
clause as a preponderance or clear and convincing.                             
                                                                               
There being NO OBJECTION, Amendment 6 was ADOPTED.                             
                                                                               
Senator Donley MOVED  Amendment 7 that would  move the words                   
"a pattern of"  for insertion in front of the  first "or" on                   
line 26, page 5. Line 26  would read "that there is evidence                   
of physical, sexual, or a pattern of emotional abuse."                         
                                                                               
Senator Parnell  asked whether the  term physical  abuse was                   
defined in  statute. Ms. Lauterbach  believed so,  but noted                   
that  the  term  was  not  defined  for  the  statute  being                   
discussed.                                                                     
                                                                               
Senator Parnell  provided a hypothetical example  related to                   
an abuse claim.  He asked whether a 15  year-old could claim                   
physical abuse if they had  been spanked by their parents at                   
the age  of 5.  Ms. Lauterbach answered  that a  judge could                   
find  that physical  abuse had  occurred if  they considered                   
the spanking to be physical abuse.                                             
                                                                               
Senator Parnell  asked for verification  that a  judge would                   
not  consider the  element of  timing under  the current  or                   
proposed language.  Ms. Lauterbach replied that  the current                   
language would not force a  judge to consider the element of                   
timing.                                                                        
                                                                               
Senator Parnell  reiterated his  question about  the element                   
of timing and  consideration by a judge.  Ms. Lauterbach did                   
not  know  what  a  judge  would do.  She  stated  that  the                   
language did  not include timing;  therefore, it  would need                   
to be added if that was the will of the committee.                             
                                                                               
Senator Parnell  believed making a change  related to timing                   
would be too complicated.                                                      
                                                                               
Senator Donley relayed that the  clause had been modified by                   
the clear  and convincing proof of  evidence standard, which                   
was one  element that would help  mitigate Senator Parnell's                   
concern related to timing.                                                     
                                                                               
Senator Pearce  wondered if  there was any  way for  a woman                   
under  the age  of 16  to  become pregnant  without a  crime                   
occurring.  She discussed  that the  amendment pertained  to                   
whether the court needed to  find that a pattern of physical                   
or  sexual abuse  existed or  if  one time  was enough.  Her                   
concern  was that  rape would  not  be included  if a  judge                   
could rule that that abuse  had not occurred because it only                   
happened one time.                                                             
                                                                               
Senator Donley proposed a conforming  change to Amendment 7.                   
The amendment  would move the  words "a pattern" on  page 5,                   
line 26 for  insertion after the first "or" on  line 26. The                   
amendment  would also  insert  the word  "of" following  the                   
words "a pattern."  The sentence would read  "that there was                   
evidence  of physical,  sexual,  or a  pattern of  emotional                   
abuse." The  amendment would  also modify  page 4,  lines 27                   
and 28 to read the same way.                                                   
                                                                               
Senator Parnell  proposed modifying the amendment  to insert                   
the  word "abuse"  after the  word "sexual."  Ms. Lauterbach                   
clarified  that  the  sentence would  read  "...physical  or                   
sexual abuse or a pattern of emotional abuse."                                 
                                                                               
Senator  Donley  WITHDREW  Amendment   7.  He  MOVED  a  new                   
Amendment 7  to change clauses on  page 5, line 26  and page                   
4, lines 27  and 28 to read "evidence of  physical or sexual                   
abuse or a pattern of emotional abuse."                                        
                                                                               
There being NO OBJECTION, the new Amendment 7 was ADOPTED.                     
                                                                               
Senator Pearce  discussed an  amendment aimed  at addressing                   
the  cycle of  dependence on  welfare that  some women  fell                   
into after having a child at  a very young age. She believed                   
the women's  parents should have  a responsibility  to their                   
child  and grandchild;  however,  she did  not  know if  the                   
amendment would  be acceptable within  the current  bill due                   
to the  state's single  title law. She  would not  offer her                   
amendment, but may decide to offer it on the Senate floor.                     
                                                                               
Senator   Parnell  offered   to  jointly   sponsor  separate                   
legislation with Senator Pearce.                                               
                                                                               
Senator  Parnell  MOVED  to  REPORT   CSSB  24(FIN)  out  of                   
committee   with   individual    recommendations   and   the                   
accompanying fiscal notes.                                                     
                                                                               
Senator Adams OBJECTED. He proposed  forming a task force on                   
the issue.                                                                     
                                                                               
A roll call vote was taken  on the motion to report the bill                   
from committee.                                                                
                                                                               
IN FAVOR: Parnell, Donley, Phillips, Torgerson, Sharp                          
OPPOSED: Adams, Pearce                                                         
                                                                               
The MOTION PASSED (5/2).                                                       
                                                                               
CSSB 24(FIN) was  REPORTED out of committee  as amended with                   
a  "do pass"  recommendation and  with a  new fiscal  impact                   
note from the Alaska  Court System; one previously published                   
fiscal impact  note from  the Department  of Administration;                   
and  two previously  published zero  fiscal  notes from  the                   
Department of  Administration and  the Department  of Health                   
and Social Services.                                                           
                                                                               
New TAPE: start TAPE 55.                                                       
                                                                               
Senate Bill No. 41                                                           
                                                                               
     "An Act relating to environmental audits to determine                     
     compliance    with   certain    laws,   permits,    and                   
     regulations."                                                             
                                                                               
                                                                               
Senator  Loren Leman,  related  that SB  41  was similar  to                   
legislation that he had introduced  in the 19th Alaska State                   
Legislature with SB 199;  furthermore, the prior legislation                   
had passed  the Senate,  but had been  in the  House Finance                   
Committee  when  the  legislature had  adjourned  the  prior                   
year.  He  noted that  when  the  bill had  been  originally                   
introduced,  it had  provided for  environmental audits,  as                   
well  as health  and safety  self-audits; however,  the bill                   
had  been  amended  in  the  judiciary  committee  over  his                   
objections and the health and  safety self-audit portion had                   
been deleted. He opined that  deleting the health and safety                   
self-audit portion  of legislation  was a mistake  and urged                   
the committee to  take another look at it  because having it                   
in the  bill would  provide additional benefits  to Alaska's                   
workers.  He reported  that SB  41 created  2 incentives  to                   
encourage  businesses   and  other  regulated   entities  to                   
conduct voluntary  self-audits of their  internal operations                   
and explained  that the  purpose of the  audits would  be to                   
identify and  correct any non-compliance  with environmental                   
regulations. He related that the  bill's first incentive was                   
limited immunity and explained  that entities that conducted                   
environmental  self-audits would  be immune  from civil  and                   
administrative   penalties   for    violations   that   were                   
discovered, provided  that several  conditions were  met. He                   
stated  that  the  regulated  entity  must  take  action  to                   
correct  the  identified  problem  and  prevent  its  future                   
occurrence  and that  immunity would  not  be available  for                   
violations   that  caused   substantial  offsite-damage   or                   
serious onsite  or offsite injury; additionally,  there were                   
several other conditions that must  be, which were contained                   
in the bill.                                                                   
                                                                               
Senator Leman continued  to speak to SB 41  and related that                   
the second  incentive in the  bill was  qualified privilege.                   
He  stated   that  the   self-critical  analysis   that  was                   
contained  within  an  audit   report  would  be  considered                   
privileged  and  therefore  not admissible  as  evidence  or                   
subject   to   discovery    in   civil   or   administrative                   
proceedings; this provision recognized  that an audit report                   
by nature was a  self-incriminating document that discovered                   
problems,   identified   what    personnel   or   management                   
deficiencies  were responsible,  and recommended  corrective                   
action.  He  offered  that  many   studies  had  shown  that                   
businesses or individuals opted  not to perform audits based                   
on  the fear  that the  resulting reports  would be  used by                   
agencies  or   hostile  3rd  parties   as  a   "roadmap"  to                   
prosecution;  as  with  the bill's  immunity  benefit,  this                   
privilege  also  had  limitations.  He  expounded  that  the                   
privilege  could  be  overcome  if it  was  asserted  for  a                   
fraudulent purpose or if the  regulated entity had failed to                   
take  the required  actions  to correct  the  areas of  non-                   
compliance. He  opined that  some people  had misrepresented                   
what the privilege did and had  referred to it as a cloak of                   
secrecy, but  offered that  this was not  the intent  of the                   
bill. He  stated that the  intent of the legislation  was to                   
create the  incentive for  people to  make changes  to their                   
operations, not to  create a cloak of secrecy  and urged the                   
committee to  see through the  language of the  opponents of                   
the  bill's  concept  and  details.  He  asserted  that  the                   
purpose  of  self-auditing  would  be to  bring  about  full                   
compliance with  regulations that  were designed  to protect                   
the  environment  and  that  the  intent  was  to  encourage                   
businesses    and   public    institutions   to    integrate                   
environmental   protection   measures  into   their   normal                   
operating  procedures. He  stated that  currently more  than                   
1,000  of the  world's  larger  corporations had  self-audit                   
programs  and that  the state  needed  to encourage  smaller                   
companies to  adopt those  programs as  well. He  noted that                   
many  of  the larger  companies  in  Alaska were  conducting                   
self-audits  and  that  the  bill  would  help  the  smaller                   
businesses to participate. He expressed  a desire to improve                   
and expand  the existing audit  programs and noted  that the                   
state could  not totally depend on  government inspectors to                   
regulate  business.  He offered  that  the  bill would  help                   
bring people into compliance.                                                  
                                                                               
Senator Leman  continued to discuss  SB 41 and  related that                   
20  other   states  had  passed  some   form  of  self-audit                   
incentive  legislation; additionally,  8  other states  were                   
debating the same measures  in their respective legislatures                   
in the current  year. He thought that the  success from this                   
type of legislation  had been very good and  related that he                   
had recently  returned from a conference  in Washington D.C.                   
where  he  had spoken  with  legislators  from other  states                   
regarding  the issue.  He stated  that self-audit  incentive                   
bills had been in  place in Texas for 2 or  3 years and that                   
the  program had  completed about  400 audits;  furthermore,                   
there  had been  substantial evidence  that the  program was                   
working as  intended. He stated  that in addition  to Texas,                   
several other states with  similar environmental concerns as                   
Alaska had  self-audit laws;  these states  included Oregon,                   
Idaho,  Utah, Colorado,  and Wyoming.  He  pointed out  that                   
legislation to  encourage self-auditing had  been introduced                   
in  the  last  congressional  session  and  understood  that                   
similar  legislation  would  be   introduced  in  the  105th                   
Congress. He  pointed out that  while other  measures talked                   
about making Alaska  open for business, SB  41 actually took                   
Alaska in that direction  and concluded that the legislation                   
would make  it clear  that Alaska  wanted a  cooperative and                   
not  a   confrontational  relationship  with   the  business                   
community.                                                                     
                                                                               
Senator Adams  noted that  he was  trying to  understand the                   
bill and  inquired if  it encouraged  companies to  clean up                   
their  acts   without  penalties  from  the   Department  of                   
Environmental   Conservation   (DEC)  through   self-audits.                   
Senator   Leman  replied   that  the   bill  would   provide                   
incentives  so that  companies would  make changes  to their                   
existing operations  if they had identified  shortcomings in                   
operations  that  they  did  not  know  existed  outside  of                   
conducting the  audit; in this  case there would  be limited                   
immunity and privilege.                                                        
                                                                               
Senator Adams inquired  if the bill provided  the same right                   
to   municipalities.   Senator   Leman  responded   in   the                   
affirmative and stated that municipalities  would be able to                   
participate. He  related that in  the Texas,  the university                   
and the municipalities had profound participation.                             
                                                                               
Senator Adams directed the committee's  attention to page 6,                   
line  27  through  page  7,  line  15  of  the  bill,  which                   
discussed  an  exemption  of disclosure  by  the  court;  he                   
inquired  if  this  section represented  a  "catch  22"  and                   
further queried  how a party  seeking disclosure  under this                   
section would prove  anything if they did not  know what the                   
report   contained  and   therefore,   did   not  have   the                   
information.  Senator Leman  responded that  the section  in                   
question provided  for an in-camera  review and it  would be                   
looked  at in  the  judge's chambers.  Senator Adams  opined                   
that this represented a problem.                                               
                                                                               
JANICE  ADAIR,  DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION,                   
ANCHORAGE (via teleconference), stated  that the sponsor had                   
been working with  DEC on the bill, but  that the department                   
still had areas of concern.  She related that the department                   
thought there  was a way  to properly construct  a privilege                   
and immunity  for self-audits that would  not jeopardize the                   
primacy  of federally  delegated programs.  She stated  that                   
the  bill's  sponsors  had  been  open  to  several  of  the                   
department's suggestions, but that  there were still several                   
areas  that needed  to  be addressed;  the  burden of  proof                   
section  that Senator  Adams had  pointed out  was one  area                   
that the department felt should  be addressed. She explained                   
that the department  wanted to ensure that  the objective or                   
underlined  facts were  not subject  to  the privilege.  She                   
thought that  some of the  definitions had been  affected by                   
amendments  that  had  been made  in  the  Senate  Judiciary                   
Committee   and  that   those  needed   to  be   looked  at;                   
additionally,  similar  terms  in  the  bill  needed  to  be                   
reviewed. She  related that there  was concern in  DEC about                   
how the bill would impact pipeline-tariff cases.                               
                                                                               
Co-Chair  Sharp  inquired  if Ms.  Adair  had  Amendments  1                   
through 7.  Ms. Adair  replied in the  affirmative. Co-Chair                   
Sharp requested Ms.  Adair to address any  of the amendments                   
that the department felt would meet some of its concerns.                      
                                                                               
Ms. Adair stated  that Amendment 6 was  the tariff amendment                   
that the  department had offered to  address those concerns;                   
however,  the  other amendments  had  not  been designed  to                   
address concerns of the department.                                            
                                                                               
Senator  Adams  requested  an  explanation  of  the  section                   
contained within page 6, line 17  through page 7, line 15 of                   
the bill  and admitted  that he  was having  difficulty with                   
that section. She explained that  the section stated that if                   
a   person   believed   that    the   privilege   had   been                   
inappropriately  applied to  the  audit  report, they  could                   
request  the  court or  hearing  officer  to set  aside  the                   
privilege; furthermore,  the bill lined out  the reasons why                   
a person could  make such a request. She  explained that the                   
problem was that  subsection (b), which was on  page 7, line                   
15, put  the burden of proof  on the person that  any of the                   
exceptions applied.  She explained  that case  law indicated                   
that asking somebody  prove something for which  they had no                   
knowledge   was   an   extremely   difficult   hurdle;   the                   
department's suggestion was that  a party seeking disclosure                   
could make  a prima facie  case that  gave a reason  why the                   
exception should  apply. She offered that  asking someone to                   
prove something from  a document that they had  not seen was                   
impossible.                                                                    
                                                                               
Senator Adams  observed that needing  an exception  would be                   
difficult  to  prove  without  the  information.  Ms.  Adair                   
stated for  example that  a prima  facie case  might involve                   
the second  exception, which was injury;  she explained that                   
if  a party  was injured  and believed  that an  audit would                   
show  that  the  company  in  question  knew  the  potential                   
existed  but  did not  take  action  or contributed  to  the                   
injury,  then the  party would  have to  demonstrate to  the                   
court why  they thought that.  She explained that  the prima                   
facie  case would  not require  someone to  prove something,                   
but would  require a  reasonable explanation  as to  why the                   
party thought  there was  an exception;  at this  point, the                   
court would be  in a position to agree or  disagree with the                   
case  and   whether  or  not   the  information   should  be                   
disclosed.                                                                     
                                                                               
MIKE  HANUS, SENIOR  STAFF  ENGINEER,  EXXON COMPANY  U.S.A.                   
(via  teleconference), stated  that the  Alaska Oil  and Gas                   
Association  (AOGA)  supported  the  intent  of  SB  41.  He                   
explained  that  AOGA  was  a  19-member  trade  association                   
company  that accounted  for  the majority  of  oil and  gas                   
exploration,   production,  transportation,   refining,  and                   
marketing  activities  in  Alaska.   He  related  that  AGOA                   
supported   the    intent   of    environmental   self-audit                   
legislation  that  provided   immunity  from  penalties  and                   
ensured confidentiality  and explained that the  majority of                   
AGOA members  currently conducted self-audits as  a means of                   
ensuring compliance;  furthermore, the company saw  value in                   
legislation  that  encouraged  the  regular  utilization  of                   
self-audits   by  providing   immunity  and   privilege.  He                   
explained  that  immunity  would  act as  an  incentive  for                   
companies   to   identify,    correct,   and   prevent   the                   
reoccurrence of non-compliant  behavior; privilege protected                   
the   company   from   the  unnecessary   repercussions   of                   
disclosing  all  of  it  results  and  helped  preserve  the                   
integrity of the  audit process. He stated  that looking for                   
deficiencies,  identifying  them,  disclosing  them  to  the                   
appropriate  agencies,  and  making  corrections  were  what                   
self-auditing was  about. He offered that  self-auditing was                   
an  important tool  for voluntary  compliance and  that AOGA                   
believed  the  legislation moved  the  lines  in a  positive                   
direction  towards encouraging  self-auditing. He  concluded                   
that AOGA  would continue to  work with DEC,  the Department                   
of Law, and bill's sponsors on SB 41.                                          
                                                                               
SUSAN  SCHRADER,  EXECUTIVE DIRECTOR,  ALASKA  ENVIRONMENTAL                   
LOBBY  (via teleconference),  testified against  SB 41.  She                   
explained  that   the  Alaska  Environmental  Lobby   was  a                   
coalition  of   different  conservation   groups  throughout                   
Alaska  that represented  about 10,000  members. She  shared                   
that she  had been  the draftee of  the position  paper that                   
Senator  Leman "has  suggested  perhaps misrepresented  this                   
legislation." She  respectfully disagreed that  her position                   
paper misrepresented the bill and  opined that it offered an                   
alternative interpretation  of "these"  bills that  had been                   
passed  in  other  states.  She  reported  that  the  Alaska                   
Environmental Lobby  supported the  goal of the  bill, which                   
was  to encourage  compliance  by  providing incentives  for                   
regulated  industry  to   voluntarily  find,  disclose,  and                   
correct  violations  of  environmental  laws;  however,  the                   
lobby was  of the  opinion that the  bill would  not achieve                   
this  goal. She  offered that  responsible corporations  did                   
not need the added secrecy  and immunity privileges in order                   
to  audit their  operations. She  stated that  in 1997,  the                   
Environmental  Protection Agency  adopted its  self-policing                   
program  and  reported  that  the  program  appeared  to  be                   
working  nicely;  to  date, 105  companies  had  voluntarily                   
disclosed  violations at  over 350  facilities. She  offered                   
that  responsible  companies  were doing  fine  without  the                   
added privilege  and secrecy provisions within  the bill and                   
opined that  the legislation  would make  it easier  for the                   
industries that  were irresponsible to continue  to act that                   
way.  She stated  that the  Alaska Environmental  Lobby felt                   
that  the bill  was one  of  secrecy that  would keep  vital                   
information hidden  from review by the  agencies that Alaska                   
depended on to  enforce the laws, as well as  keep it hidden                   
from the legal system. She  pointed out that the legislation                   
limited employees'  right to know,  as well as the  right to                   
know  of  property  owners  who  were  adjacent  to  certain                   
industries.  She related  that in  other states,  there were                   
cases in which residents who  were living near landfills had                   
great  difficulty obtaining  information regarding  concerns                   
of possible contaminated ground  water and problems with air                   
quality due to methane escapes.                                                
                                                                               
Ms.  Schrader continued  to speak  to the  bill and  offered                   
that  it would  increase litigation  because the  people who                   
needed  the  information  would   have  to  undergo  a  long                   
laborious  court process  to try  to overcome  the privilege                   
requirement   in  the   legislation;  furthermore,   in  the                   
meantime,  drinking water  may have  been contaminated.  She                   
opined  that  the  legislation   would  allow  companies  to                   
conceal and  condone non-compliance and that  the supporters                   
of the bill were making  the assumption that companies would                   
come forward  with their  violations and  correct them  in a                   
timely manner;  however, she did  not see the  incentive for                   
companies to come forward with  their violations and correct                   
them in  a timely  manner. She  opined that  past experience                   
had shown that  prompt compliance was not  always the course                   
of action that industry would  choose. She reported that the                   
Alaska Environmental  Lobby felt that the  bill would create                   
more  confusion, litigation,  and  expense  and pointed  out                   
that DOL  had offered over  a 12  amendments to the  bill in                   
previous committees  in order to clarify  the legal language                   
in  the  legislation;  this  was  a  prime  example  of  the                   
problems that the courts would  be facing if the legislation                   
was  enacted.  She  pointed out  that  the  term  "construed                   
broadly" in the legislation's  definition section would pull                   
in all  manner of  federal, state,  and municipal  laws. She                   
offered  that legislation  that safeguarded  the environment                   
was passed out of necessity  and was typically a reaction to                   
a  nasty problem  that  needed  to be  fixed.  She spoke  of                   
industry's "less  than admirable" record  of self-regulating                   
and  opined that  the bill  would only  weaken a  process in                   
Alaska  that  was  already  weakened  by  budget  cuts.  She                   
offered that  the bill's intent  could and should be  met by                   
simple  legislation that  provided clear  incentives through                   
leniency  for  self-disclosure  and  correction  that  would                   
define  the time  windows and  would  not contain  privilege                   
provisions.                                                                    
                                                                               
SB  41  was   HEARD  and  HELD  in   committee  for  further                   
consideration.                                                                 
                                                                               
SB 35 was SCHEDULED but not HEARD.                                             
                                                                               
SB 109 was SCHEDULED but not HEARD.                                            
                                                                               
Co-Chair Sharp discussed the following meeting's agenda.                       
                                                                               
ADJOURNMENT                                                                  
                                                                               
The meeting was adjourned at 10:53 P.M.                                        
                                                                               
                                                                               

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