Legislature(1997 - 1998)
03/12/1997 09:08 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.