Legislature(2003 - 2004)
04/16/2004 08:08 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 16, 2004
8:08 a.m.
TAPE(S) 04-42,43
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 323
"An Act relating to a project owner's liability for workers'
compensation and the exclusiveness of liability for workers'
compensation."
MOVED CSSB 323(JUD) OUT OF COMMITTEE
SENATE BILL NO. 219
"An Act relating to offenses against unborn children."
MOVED CSSB 219(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 451
"An Act relating to therapeutic courts; and providing for an
effective date."
MOVED HB 451 OUT OF COMMITTEE
HOUSE BILL NO. 503
"An Act relating to the tobacco product Master Settlement
Agreement; and providing for an effective date."
SCHEDULED BUT NOT HEARD
CS FOR HOUSE BILL NO. 514(FIN) am
"An Act relating to child support modification and enforcement,
to the establishment of paternity by the child support
enforcement agency, and to the crimes of criminal nonsupport and
aiding the nonpayment of child support; amending Rule 90.3,
Alaska Rules of Civil Procedure; and providing for an effective
date."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 323
SHORT TITLE: WORKERS COMPENSATION AND CONTRACTORS
SPONSOR(s): SENATOR(s) SEEKINS
02/13/04 (S) READ THE FIRST TIME - REFERRALS
02/13/04 (S) L&C, JUD
03/04/04 (S) L&C AT 1:30 PM BELTZ 211
03/04/04 (S) Heard & Held
03/04/04 (S) MINUTE(L&C)
03/09/04 (S) L&C AT 1:30 PM BELTZ 211
03/09/04 (S) Moved SB 323 Out of Committee
03/09/04 (S) MINUTE(L&C)
03/10/04 (S) L&C RPT 2DP 2NR 1AM
03/10/04 (S) DP: BUNDE, SEEKINS; NR: DAVIS,
03/10/04 (S) STEVENS G; AM: FRENCH
03/17/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/17/04 (S) Heard & Held
03/17/04 (S) MINUTE(JUD)
04/02/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/02/04 (S) Heard & Held
04/02/04 (S) MINUTE(JUD)
04/07/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/07/04 (S) Heard & Held
04/07/04 (S) MINUTE(JUD)
04/14/04 (S) JUD AT 5:30 PM BUTROVICH 205
04/14/04 (S) Heard & Held
04/14/04 (S) MINUTE(JUD)
04/16/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 219
SHORT TITLE: OFFENSES AGAINST UNBORN CHILDREN
SPONSOR(s): SENATOR(s) DYSON
05/11/03 (S) READ THE FIRST TIME - REFERRALS
05/11/03 (S) STA, JUD
04/06/04 (S) STA AT 3:30 PM BELTZ 211
04/06/04 (S) Moved SB 219 Out of Committee
04/06/04 (S) MINUTE(STA)
04/07/04 (S) STA RPT 2DP 1NR
04/07/04 (S) DP: STEVENS G, COWDERY; NR: STEDMAN
04/07/04 (S) FIN REFERRAL ADDED AFTER JUD
04/16/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 451
SHORT TITLE: THERAPEUTIC COURTS
SPONSOR(s): RULES BY REQUEST
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD, FIN
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
03/01/04 (H) Moved Out of Committee
03/01/04 (H) MINUTE(JUD)
03/03/04 (H) JUD RPT 7DP
03/03/04 (H) DP: GARA, HOLM, SAMUELS, ANDERSON,
03/03/04 (H) GRUENBERG, OGG, MCGUIRE
03/09/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/09/04 (H) Moved Out of Committee
03/09/04 (H) MINUTE(FIN)
03/12/04 (H) FIN RPT 7DP 1NR
03/12/04 (H) DP: MEYER, JOULE, CROFT, FATE, FOSTER,
03/12/04 (H) HARRIS, WILLIAMS; NR: STOLTZE
03/22/04 (H) TRANSMITTED TO (S)
03/22/04 (H) VERSION: HB 451
03/24/04 (S) READ THE FIRST TIME - REFERRALS
03/24/04 (S) JUD, FIN
04/16/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Jack Miller, Counsel
Alaska State Chamber of Commerce
217 Second Street
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions about SB 323
Senator Fred Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 219
Jerry Luckhaupt
Legislative Legal and Research Services Division
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about SB 219
Cassandra Johnson
Anchorage, AK
POSITION STATEMENT: Opposed to SB 219
Robin Smith for Dr. Carolyn Brown
Anchorage, AK
POSITION STATEMENT: Opposed to SB 219
Doug Wooliver
Alaska Court System
303 K St.
Anchorage, AK 99501-2084
POSITION STATEMENT: Presented HB 451 and answered questions
Sally Russell
Therapeutic Court Project Coordinator
Bethel
POSITION STATEMENT: Supports HB 451
Judge Stephanie Joannides
rd
3 Judicial District Anchorage
th
825 W 4 Ave.
Anchorage, AK 99501
POSITION STATEMENT: Supports HB 451
ACTION NARRATIVE
SB 323-WORKERS COMPENSATION AND CONTRACTORS
TAPE 04-42, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:08 a.m. Senators Ogan, French
and Chair Seekins were present. Chair Seekins announced the
committee would take up SB 323 first and reminded members that
during the last hearing on the bill, the committee discussed the
exclusiveness of liability and an amendment [Amendment 1] that
allows sole proprietorships and partnerships to opt out of
workers' compensation coverage in exchange for accepting
exclusive liability for any injuries. After discussing several
alternatives, that amendment was withdrawn.
CHAIR SEEKINS said he had another amendment drafted to address
sole proprietors and partnerships. He also considered using SB
311 as the vehicle to address the issue, but he does not believe
SB 311 will pass this session. He then moved to adopt the new
amendment [Amendment 2], which reads as follows.
23-LS1498\D.6
Craver
4/15/04
A M E N D M E N T 2
OFFERED IN THE SENATE
TO: SB 323
Page 1, line 1, following "compensation":
Insert ", sole proprietors and partnerships without
employees,"
Page 2, following line 2:
Insert a new bill section to read:
"* Sec. 3. AS 23.30.045 is amended by adding new subsections
to read:
(g) Notwithstanding (a) of this section, a project
owner, contractor, or subcontractor is not liable for and
is not obligated to secure the payment of compensation to a
sole proprietor or member of a partnership if the sole
proprietor or member of a partnership agrees in writing
that the project owner, contractor, and subcontractor do
not, in regard to the sole proprietor or member of a
partnership, have
(1) an obligation to secure compensation; and
(2) liability for compensation payable under
AS 23.30.041, 23.30.050, 23.30.095, 23.30.145, and
23.30.180 - 23.30.215.
(h) A sole proprietor or member of a partnership who
has agreed under (g) of this section may not maintain an
action against the project owner, contractor, or
subcontractor, or an insurer of the project owner,
contractor, or subcontractor, at law or in admiralty for
damages on account of injury or death."
Renumber the following bill section accordingly.
SENATOR FRENCH objected for the purpose of discussion.
CHAIR SEEKINS informed members that Amendment 2 would prohibit
sole proprietors and partners who opt out of workers'
compensation coverage from having any recourse against a
contractor or project owner for injuries.
SENATOR OGAN stated support for Amendment 2 because he believes
many sole proprietors would prefer to carry their own health
insurance and accept the risk of being injured at the workplace.
He then declared a conflict of interest and asked to be excused
from voting, as he is likely to be a sole proprietor in the
future.
CHAIR SEEKINS objected and informed Senator Ogan he is required
to vote.
SENATOR FRENCH asked the status of the law now with respect to
sole proprietors' ability to sue for accidents caused by
negligence of the project owner. He expressed concern that
Amendment 2 will give the sole proprietor very little; it will
no longer require the project owner to provide workers'
compensation coverage but will take away a sole proprietor's
right to sue for negligence.
CHAIR SEEKINS responded:
I will guarantee you that I will not hire a sole
proprietor or a member of a partnership to perform any
work for me unless they have workers' compensation
insurance and neither would any other project owner,
simply because if they choose not to have insurance
under the way this law is read and they could - then I
could be liable for that at a later date. So, I have
120 employees, approximately; 119 of those are covered
by workers' comp - I'm not. So my only action for a
workers' comp accident in my dealership would be
against myself and what I'm saying here is that if
you're a contractor and you have workers' comp
insurance and you're a sole proprietor or partner and
you want to work for a project owner or another
contractor, a contractor would not hire you unless
they would have the same kind of recourse as if you
carried the insurance. That's what this amendment
does....
SENATOR FRENCH said in his thinking, the worker gets nothing out
of this benefit. He suggested giving project owners two choices:
either covering all workers with workers' compensation or being
subject to liability for any torts caused by negligence on the
project site. That way, the economic choice lies with the person
best able to control [safety at the work site].
CHAIR SEEKINS replied, "...I don't have any objection to leaving
the bill the way it is and putting small contractors out of
business if you don't, Senator." He said any subcontractor or
partnership with employees would have to cover his or her
employees. Amendment 2 will only allow the owners of the
business to exempt themselves and look only to themselves for
remedy in case of injuries that would normally be covered under
workers' compensation. He pointed out that many sole
proprietorships consist of single employees and, under the
current bill, they will have the choice of getting workers'
compensation coverage or not being hired. With Amendment 2, they
could opt out of workers' compensation coverage if they are
willing to take the risk themselves.
SENATOR THERRIAULT asked:
...If I own a company that does tile work and I employ
the three of you I will have to have insurance on the
three of you but I don't have to carry it on myself as
the owner of the company, why would you make me carry
it on myself if I have no employees? What's the
difference? I still own the business. It's just an
issue of whether I have employees or not, and whether
I have employees or not dictates whether I cover my
employees so why would I be held to a different
standard just because I have employees for coverage
for myself?
SENATOR OGAN said he was under the impression that Amendment 2
will allow a sole proprietor with no employees to opt out of
workers' compensation.
CHAIR SEEKINS agreed and said Amendment 2 will exempt the sole
proprietor or partner from carrying workers' compensation
coverage on himself and instead make his sole remedy against
himself, regardless of whether he has employees or not. He
explained that under the current law, the sole proprietor or
partner is not required to carry workers' compensation coverage
but there is no way under SB 323 to limit him to a single
remedy.
SENATOR OGAN said having been a sole proprietor for many years
and being willing to accept responsibility for his own actions,
he believes Amendment 2 needs to pass. As a sole proprietor, he
is aware of how difficult it is to wear many hats and deal with
business expenses. He noted without allowing them to be
accountable for their own actions, SB 323 is a nonstarter
without Amendment 2.
8:28 a.m.
SENATOR FRENCH opined that SB 323 has flaws and will be made
worse with Amendment 2 because a sole proprietor who is injured
on the worksite now can sue someone up the line. He explained:
"...if the crane swinging lumber over your head - if
the wire rope on that crane snaps and drops a load of
lumber on you, you can sue someone up the line for
their negligence, for not inspecting the cable, for
not hiring - for not following safe safety practices.
That's your remedy against the negligence against the
folks on the job site. This amendment is going to say
give it up. This amendment isn't going to cover you
with workers' comp, isn't going to make the project
owner cover you with workers' comp and, moreover is
going to take away your right to be made whole due to
the negligence of people upstream from you. So, I
don't see how the little guy in this situation is any
better off after the passage of this bill than he is
right now. Right now he's got 1,000 years of common
law protecting him and what he's going to have after
this is a statute that says you better go get workers'
comp and if you don't get workers' comp, you're on
your own when you step on to the job site. So I am not
under the impression that this is good for a small
business.
SENATOR THERRIAULT asked if, under the scenario presented by
Senator French, the small business owner with several employees
who does not carry workers' compensation on himself would have a
different remedy than a sole proprietor with no employees and no
coverage.
CHAIR SEEKINS asked if the objection to adopting Amendment 2 is
maintained.
SENATOR FRENCH interjected and attempted to answer Senator
Therriault's question. He maintained that someone without
workers' compensation coverage has the right to sue, therefore,
sole proprietors with and without employees are treated equally
under the law right now.
CHAIR SEEKINS added that if he were a major contractor who hired
a subcontractor with employees who did not cover himself, he
would ask the subcontractor to sign a waiver on himself, require
him to get workers' compensation coverage or not come on the job
site. He noted:
What we're contemplating is the small sole proprietor,
more than likely, who comes on the job site to perform
a job. If I was a major contractor and I never came on
that job site, there wouldn't be a risk, but I think
if I was the project owner and you were going to come
on that job site, I would want to protect myself from
that kind of risk by asking you either to make sure
you have coverage or that you have signed a waiver
yourself.... What this bill, quite frankly, when we
talk about the little guy, is it mandates that there
be coverage for that little guy but it also says you
can only take against any other party upstream from
you the same exclusive remedy that you can take
against your employer as if you were the only party
involved. So if that contractor or that business owner
was the only entity involved and something happens,
that employee's exclusive remedy is against workers'
comp....
SENATOR FRENCH argued the exclusiveness of the remedy has always
come in exchange for workers' compensation insurance coverage.
For giving up the right to sue, the employee gets covered by a
workers' compensation insurance policy. He said he sees this as
a bad bargain for working Alaskans.
CHAIR SEEKINS said if a person chooses not to have a policy,
that person should assume the risk.
SENATOR FRENCH maintained his objection to the adoption of
Amendment 2, therefore a roll call vote was taken. The motion to
adopt Amendment 2 carried with Senators Ogan, Seekins and
Therriault in favor, and Senator French opposed.
SENATOR OGAN repeated that he believes that SB 323 has improved
a lot and he appreciates the work done on it. He said his only
concern with the bill is that if a subcontractor or contractor
chooses not to have workers' compensation, liability could be
transferred to the project owner [for negligence]. However,
nothing in the bill will allow the project owner to pursue the
subcontractor or contractor who has no insurance. He expressed
concern that there will not be a lot of enforcement to ensure
that employers have workers' compensation and suggested adding a
provision to the bill to allow the project owner to pursue a
subcontractor or contractor.
CHAIR SEEKINS asked Mr. Miller to address Senator Ogan's
concern.
MR. JACK MILLER, counsel to the Alaska State Chamber of
Commerce, replied:
Yes, in fact, under normal subrogation law, if a - for
example, current law allows and, in fact, this is the
law that's in place, if a subcontractor's employee is
injured and the subcontractor does not have the
required workers' compensation coverage for that
employee, that employee can receive workers'
compensation benefits from the contractor. Once that
contractor - the contractor's insurer pays the
workers' compensation benefits, they are subrogated to
the rights of the injured worker to pursue a claim
against the subcontractor.
CHAIR SEEKINS affirmed that is already in place.
SENATOR OGAN asked if anything in SB 323 would change that.
MR. MILLER said SB 323 would not. If a contractor has to step in
and pay for workers' compensation benefits for an injured worker
down the line, once the payment is made, the project owner or
contractor is subrogated to the rights of the injured worker to
pursue a claim for compensation against the employer of that
injured worker. He noted that since that is existing law,
nothing needs to be added to SB 323 on that point.
SENATOR OGAN pointed out that the bill says, "If the employer is
a contractor and fails to secure the payment of compensation to
its employees of a subcontractor, the project owner is liable
for and shall secure the payment...." He asked for further
explanation of subrogation.
CHAIR SEEKINS said if he was a contractor and Senator Ogan
subcontracted with him and one of Senator Ogan's employees was
hurt and Senator Ogan did not have workers' compensation
coverage, Chair Seekins would have to make sure that employee
receives all benefits due him under workers' compensation. Then,
Chair Seekins' insurance company would sue Senator Ogan for the
cost of that claim.
MR. MILLER affirmed that is correct and repeated that is the
current subrogation law in Alaska.
SENATOR FRENCH maintained his objection to SB 323 and referred
to an e-mail from Mr. Miller that said the bill will have no
effect on the obligation of the parties to procure workers'
compensation coverage. He expressed concern that it will exclude
from liability any person who was liable for or potentially
liable for securing payment of compensation.
MR. MILLER responded:
Let me just say, Senator French has mentioned this
several times. When he first mentioned it, I actually
contacted him. I didn't want to make a big deal of it
on the record and I told him he had been
misrepresenting me and he actually sent me an e-mail
apologizing for doing that. So let me now, on the
record, state clearly that that is a misrepresentation
of that e-mail. The question I was asked is are
insurance policies going to have to change. Is there
going to be some expanded need for more workers'
compensation coverage with this bill and the answer is
no. However, the injured workers have expanded rights
because they now have rights again from the
subcontractor to contractor to the project owner and,
again, the benefits of this bill are that all
[indisc.] parties [indisc.] to a project can integrate
their safety practices and I believe dramatically
reduce work related injuries.
SENATOR FRENCH said his question goes right back to the
sentence: Is there anything in this bill that forces a project
owner to buy a workers' compensation policy to cover a
subcontractor's employees?
MR. MILLER said project owners already have it. All workers'
compensation policies in the state must fully comply with the
terms of the workers' compensation act. He opined that Senator
French is asking the wrong question because if a project owner
has a workers' compensation policy, it complies with the
workers' compensation act and will automatically cover the
subcontractor's employees if injured.
SENATOR FRENCH questioned what would happen if the project owner
does not have a workers' compensation policy.
MR. MILLER replied, "If the employee does not have a workers'
compensation remedy against anyone, under those circumstances
only, they would default into another section of the statute,
which allows for a tort claim."
CHAIR SEEKINS asked if no one has that policy upstream, the
employee has a direct action against the project owner.
MR. MILLER said the employee could sue either for workers'
compensation benefits or for a tort remedy against his direct
employer if neither the subcontractor, the contractor, nor the
project owner have coverage.
SENATOR OGAN moved CSSB 323(JUD) from committee with individual
recommendations and attached fiscal notes. He stated that
today's discussion cleared up a lot of questions he had about
the bill and that he appreciates the amendment.
SENATOR FRENCH objected.
The motion carried with Senators Ogan, Therriault and Seekins in
favor and Senator French opposed.
SB 219-OFFENSES AGAINST UNBORN CHILDREN
The committee took up SB 219, sponsored by Senator Fred Dyson.
SENATOR FRED DYSON, District I, told members that he filed the
bill last year but expected the House version to be the vehicle
that moved forward. However that bill got "high centered" in the
House so, at the request of the sponsor of the House bill, he
has been working to get SB 219 passed.
SENATOR DYSON informed members that Congress has enacted an
unborn child protection act but it is only in effect under
federal law and federal jurisdiction. Thirty-one states have
enacted or are in the process of enacting similar legislation in
state law. SB 219 mirrors the intent of the federal law but is
tailored to fit into Alaska's statutory structure. He asked
members to adopt the proposed committee substitute (CS), labeled
version H. In that version, a few lines were changed to make
sure that this law does not apply to people involved in abortion
services with the permission of the mother.
SENATOR OGAN moved to adopt version H as the working document
before the committee.
CHAIR SEEKINS announced that without objection, version H was
before the committee.
SENATOR DYSON pointed out that on page 2, line 31, subsection
(3) is new. It exempts acts by a pregnant woman committed
against herself and her unborn child. Similar language on page
3, lines 26 -27, makes clear that a woman who consciously does
something to herself or with the assistance of medical people to
abort a child is not subject to prosecution.
CHAIR SEEKINS asked if this law would only apply to acts done
unwillingly against a mother and unborn child.
SENATOR DYSON said that is correct. He said the bill is clear
that the crime is murder if the offender intended to harm the
unborn child; the crime is manslaughter if harm was done
unintentionally but occurred as the result of assault, rape,
burglary, etc. He believes the bill is well drafted; it follows
model legislation.
CHAIR SEEKINS referred to the language on page 2, lines 16-19,
and said the standard is recklessly rather than negligently.
SENATOR DYSON affirmed that is correct. He then noted the first
law of this type was enacted in California in 1970 after a
tragic occurrence in which an unborn child died.
SENATOR OGAN said he would be more comfortable with the language
that exempts a woman who harms herself or unborn child if it
only applied to an abortion performed by a doctor or some type
of standard medical practice for the sake of safety.
CHAIR SEEKINS agreed but said SB 219 is meant to apply to acts
done by an outside party that are not agreed to by the woman. He
stated:
We would now be bringing under the law, if we made
this any more difficult, someone who maybe was a very
emotionally distraught prospective mother who may do
something without whatever the level of culpability
is, simply trying to avoid all kinds of emotional
problems, as they might be, we would simply be
widening the net and taking that person in. And I
think the intent - tell me if I'm wrong here Senator,
is that you're bringing the net in for those people
outside of that woman herself who would cause the
death of the baby but not trying to put the woman,
herself, inside that net. Under current law, all of
them are outside of the net.
SENATOR DYSON said he is sympathetic to Senator Ogan's concern
but he does not believe this bill is the proper place to address
that concern.
TAPE 04-42, SIDE B
He noted such a change would open up the possibility of
prosecuting the woman for assault if she, for instance, was
imbibing alcohol or smoking and damaged the child. He said
although those concerns might be legitimate and worthy of
consideration, they are outside of the scope of SB 219.
SENATOR OGAN said, for the record, he has spent a lot of time
thinking about children who are assaulted by their parents by
alcohol abuse and that is avoidable.
CHAIR SEEKINS agreed that the damage done to unborn children as
the result of alcohol abuse is a terrible scourge on Alaska and,
more data is showing the amount of damage is so huge as to
compel the legislature to address that issue, but not in this
bill.
SENATOR DYSON agreed and mentioned some of his personal
experiences with fetal alcohol syndrome children.
SENATOR FRENCH asked Senator Dyson if it is his intention to
"weed out" of this bill any harm a woman might do to her fetus
through smoking, drinking alcohol, or use of recreational drugs.
SENATOR DYSON said that is correct.
SENATOR FRENCH asked Senator Dyson why he chose the moment of
conception for protection rather than the viability standard.
SENATOR DYSON asked Mr. Luckhaupt, the drafter, to help him
address the question. He believed SB 219 follows model
legislation from other states.
MR. JERRY LUCKHAUPT, legislative counsel, Legislative Legal and
Research Services, explained that he used the moment of
conception as the definition of unborn child because the model
legislation he was supplied with used that definition, as does
the federal legislation. He believes it will be difficult to
apply.
SENATOR DYSON noted that historically, the law has tended to
follow the science, and up until the 1860s or 1870s, the law
generally got involved past the stage of "quickening," which is
when the mother first notices movement of the fetus. He
furthered:
As our understanding of embryology and so on and so
forth has progressed, they realized that that was kind
of an arbitrary point and that obviously it was life
of a developing child far beyond that. So somewhere on
that spectrum - and from my perspective
philosophically or in terms of a worldview, as long as
it is clear that that's a wanted child, you know, in
that spectrum, in that progression, caught doing
activity that caused the damage or termination from
that has the same effect of damaging or killing a
wanted human being and so on, so that's why I picked
it.... What if it's after conception but before
implantation and actually no one would know at that
point and it would be very difficult to even know that
a crime had happened because previous to implantation,
the woman is not receiving any chemical signals in her
body that it's happened and the hormonal changes are
not happening so it would be very difficult to prove
that there was even a conceived child starting that
process. So I think there will be no prosecutions here
under this until there's some evidence that there was
a pregnancy in process.
SENATOR FRENCH said he could foresee prosecutions brought in
front of members of the community in other states where all of
the voir dire before the jurors centers on when one believes
life begins. He said that would stray off of the normal path of
criminal prosecution. His sense is that the closer the
definition gets to a viable fetus, the more workable the law
will be in the hands of the prosecutor, judge, and jury.
CHAIR SEEKINS noted in many cases, viability is considered to be
as late as the seventh month of pregnancy.
SENATOR DYSON said he is aware of a child who survived [outside
of the womb] at 19 weeks and as technology moves forward, that
target will change. He said he is not sure he would want to
support a law that says a person is culpable for killing a child
at 28 weeks but not at 24 weeks. In his view, the value of that
unborn child shouldn't be set based upon available technology.
SENATOR OGAN noted that many women have miscarriages that are
stress induced. He questioned how stress caused by another's
actions, whether intentional or not, would be handled.
SENATOR DYSON said he believes this bill addresses that scenario
exquisitely because if one's intent is to engage in another
crime, such as setting a fire to a house, that person would be
prosecuted for arson and whatever damage was done to the people
and their possessions. In addition, if that crime caused a
miscarriage or premature birth, the person could be charged with
that unintended action. However, that would only apply if the
harm done to the unborn child occurred as the result of another
crime.
CHAIR SEEKINS asked, if the charge was manslaughter, an
automobile accident would be included.
MR. LUCKHAUPT said it would not in the example given by Senator
Dyson. He tried to adopt Alaska's murder statutes with changes
to apply in this situation. He retained crimes like felony
murder so that if someone was in the process of committing a
felony and caused the death of an unborn child, that person
would be prosecuted for murder. He said one could be prosecuted
for manslaughter or criminally negligent homicide resulting from
an auto accident if other circumstances are involved, for
example driving while under the influence of alcohol or engaging
in drag racing.
CHAIR SEEKINS took public testimony.
MS. CASSANDRA JOHNSON, an Anchorage resident, said all agree
that domestic violence is a serious problem in our society and
that it is all too prevalent in Alaska. She believes SB 219 is
not about protecting pregnant women; if it were, it would
include sentence enhancement provisions for assault or mandatory
education programs. With eight years of work experience in
domestic violence, she thinks SB 219 is the wrong approach to
protect women from assault by husbands, partners, or former
partners. The National Domestic Violence Advocates and National
Advocates for Pregnant Women opposed this bill on the federal
level. She urged the committee to not pass the bill.
MS. ROBIN SMITH, a resident of Anchorage, read the following
testimony for Dr. Carolyn Brown, an OB-GYN who was unable to
attend. She apologized in advance if the testimony does not
apply to the new committee substitute.
I have read through SB 219 a number of times and would
like to offer the following comments to the proposed
legislation. I ask that these remarks be incorporated
into the record and they be considered by the Senate
Judiciary Committee.
Homicide is the number one killer of pregnant women in
our country. 240,000 pregnant women, 6 percent of all
pregnant women, are battered each year. Injury to a
fetus is first and foremost in an injury to a pregnant
woman, where the fetus presides. It is imperative that
any fair and just legislation deal with that issue.
The proposed legislation deals with none of that if it
does not address the injuries to the pregnant woman.
So where is the protection provided in the name of SB
219 that [is] desperately needed for that mission?
Otherwise, what does this proposed legislation mean to
the pregnant woman who carries that fetus or the
alleged perpetrator?
[Indisc.] offenses perpetrated by a pregnant woman on
the fetus. These may include, but are not limited to,
abuse of alcohol, tobacco, legal and illegal drugs and
pharmaceuticals, attempted suicide, self abortion,
missing prenatal appointments, abandonment of
reasonable nutrition, resulting in obesity, a
[indisc.] injury, refusal of prenatal care, prenatal
negligence, working with environmental hazards, sexual
promiscuity resulting in sexually transmitted diseases
and [indisc.] of tubal pregnancy, to name a few. Many
of these can result in the death of the fetus. What
will this proposed legislation do with these women and
will they be charged with murder?
There may be offenses perpetrated by physicians and
[indisc.] with an in vitro fertilization or an idea
for assistive reproductive technology, where multiple
zygotes or [indisc.] may be destroyed or frozen. Is
this murder and are the zygotes and [indisc.] unborn
children if this results in destruction? There also
may be offenses where the pregnant woman chooses not
to file charges against the alleged perpetrator. How
does this proposed legislation plan to deal with this?
The [indisc.] just what the offenses are, who the
offenders are, and the manner of the offenses are so
convoluted and [indisc.] so as to make this proposed
legislation as written a threat to due process, right
to privacy, freedom from unreasonable search and
fundamental rights of women, including reproductive
rights. Who is [indisc.] pregnancies to assure that
offenses are not committed against the fetus with
drugs, tobacco, alcohol, neglect that may lead to
fetal death and injury? How will we know? And what
about second-hand smoke? Will all stillbirths be
mandated to be investigated as potential murder and
who will do this and at what cost?
[The remainder of Dr. Brown's testimony was inaudible.]
SENATOR DYSON informed Ms. Smith that a paragraph is included in
the bill that says a woman cannot be prosecuted if the actions
that resulted in the death or injury to the unborn child were
committed under usual and customary standards of medical
practice during diagnostic testing or therapeutic treatment. He
believes that will provide protection from prosecution if the
damage occurred during a medical procedure.
SENATOR OGAN felt the secondhand smoke issue should be
addressed. He asked if a person could not be prosecuted unless
criminal intent was involved.
MR. LUCKHAUPT said that is an interesting issue and would
involve questions of fact and approximate cause. He said medical
science has not progressed so far as to be able to prove that
secondhand smoke was the cause of a miscarriage. He surmised if
one required a pregnant woman to sit in a smoky room with the
intent of doing harm to the fetus, and medical testimony could
back that up as the cause of the miscarriage, he could see that
occurring.
CHAIR SEEKINS thought, if the woman was unknowingly forced into
that situation, that would be an assault.
MR. LUCKHAUPT said he could clearly see that situation, just
like forcing a pregnant woman to drink alcohol.
CHAIR SEEKINS asked if current law already addresses similar
acts against the woman herself.
MR. LUCKHAUPT said it does. He noted the definition of serious
physical injury specifically includes miscarriage.
CHAIR SEEKINS said those laws are not reiterated in this bill
but that does not indicate an intent to not provide the same
coverage to the woman that this bill will provide to the unborn
child.
MR. LUCKHAUPT replied:
That would be correct. We are not attempting to - or
at least the draft legislation I was provided, what I
could discern from that, it was not attempting in any
way to define a person for purposes of our murder and
assault statutes to include an unborn child within
that definition and so thereby you avoid all those
questions about a child being born alive or being
viable, or any of those things, but it was an attempt
to create a whole new area of law to protect this
unborn child outside of all of the existing law that
already exists.
SENATOR OGAN said many women who work in bars are exposed to
secondhand smoke and noted that an assault charge requires
intent. He wondered whether the state would have to prove
criminal intent on the part of an employer if a child was born
with a defect because of exposure to secondhand smoke in a work
environment.
MR. LUCKHAUPT said the state of culpability required for an
assault charge is "knowingly" so a person would have to be aware
that the conduct is of that nature. He noted the scenario
described by Senator Ogan presents one of the problems, for
example, the woman's pregnancy might not be obvious. There will
be many circumstances in which it will be difficult to show the
perpetrator had the requisite criminal intent to cause harm to
the unborn child. That will always be a limitation in regard to
the assault provisions of the bill.
SENATOR FRENCH referred to the definitions on page 2 and asked
for reassurance that the bill would not apply to anything in the
area of assistive reproductive techniques if something went
wrong with a procedure.
SENATOR DYSON said that is correct; the bill is not intended to
deal with any fertilized human cells outside of the womb.
SENATOR FRENCH suggested expanding subsection (2) on page 2,
lines 29-30, to make certain the bill does not cover any of
that. His concern is this could stray into legitimate areas of
medical technology and in the hands of the wrong prosecutor,
could lead to trouble.
SENATOR DYSON said he is not an expert in that area and does not
have the tools to deal with that. He added, "But I think that
there's got to be intent here - gotta be intent to have done a
criminal act or a criminal act against the woman that leaves us
in the clear there."
MR. LUCKHAUPT noted that "therapeutic treatment" is fairly broad
but he could add the correct phrase dealing with reproductive
therapy.
CHAIR SEEKINS noted the committee is talking about attempts to
assist in conception.
SENATOR FRENCH commented that Senator Dyson made a good point
but he pointed out the manslaughter standard is reckless, which
is a high standard but it can be overcome.
CHAIR SEEKINS said the committee is only attempting to address a
conceived egg within the woman and there must be intent to cause
harm.
SENATOR DYSON said he is aware of a situation that involved
enhanced fertility with implantation of several embryos. Later
in the pregnancy, the doctors felt development of the three
embryos was threatening the chance of success of any of them and
performed a therapeutic abortion. During that surgery, the leg
of the surviving embryo was amputated.
SENATOR FRENCH said that although he understands the intent of
the bill, the definition of "unborn child" is fairly broad and
does not say whether it is inside the womb.
CHAIR SEEKINS suggested adding the phrase to page 2, line 30,
after the word "or", "medical practice to assist pregnancy."
MR. LUCKHAUPT thought that was a good start.
SENATOR DYSON said he would be open to inserting "and in utero"
on page 5, line 10, after the word "conceived."
SENATOR FRENCH said the federal definition of "unborn" child
means a child in utero, which means a human child at any stage
of development who is carried in the womb.
CHAIR SEEKINS again suggested adding "medical practice to assist
pregnancy" at the end of line 30 on page 2 [Amendment 1].
SENATOR DYSON accepted that as a friendly amendment.
SENATOR OGAN moved to adopt Amendment 1.
CHAIR SEEKINS announced that with no objection, Amendment 1 was
adopted.
SENATOR DYSON suggested a conceptual amendment to adopt the
federal definition of an unborn child [Amendment 2].
SENATOR OGAN so moved.
CHAIR SEEKINS announced that with no objection, Amendment 2 was
adopted.
SENATOR FRENCH asked for the opportunity to work on a definition
that moves closer to viability. He believes without that, this
bill will be very difficult to implement.
SENATOR DYSON committed to Senator French that such an amendment
would be considered at "other stops along the way," although he
would not support it.
SENATOR OGAN recalled seeing a photo on a national magazine
cover of an in utero operation in which a tiny hand was hanging
on to the fingernail of the surgeon. He noted that baby was not
viable but it looked like the baby knew he was having a life
altering operation.
With no further discussion, SENATOR OGAN moved CSSB 219(JUD)
from committee with individual recommendations and its attached
fiscal notes.
SENATOR FRENCH objected.
The motion carried with Senators Therriault, Ogan and Seekins in
favor and Senator French opposed.
The committee took a brief at ease.
9:45 a.m.
HB 451-THERAPEUTIC COURTS
MR. DOUG WOOLIVER, administrative attorney for the Alaska Court
System (ACS), explained that HB 451 was introduced by the House
Rules Committee at the request of the ACS. It does two things:
it extends the termination date of two pilot therapeutic court
programs and it deletes a sunset clause on a superior court
judge position that was added to the Anchorage bench in 2001.
He noted that in 2001, Speaker Brian Porter introduced HB 172,
which created two pilot felony DUI courts, one in Anchorage and
one in Bethel. The purpose of the therapeutic courts was to
combine intensive outpatient treatment with close court
supervision in hope of significantly reducing the recidivism
rate for people with drug and alcohol related problems. These
programs have had great success. Judge Wanamaker oversees the
therapeutic court in Anchorage at the district court level. His
program shows recidivism rates of 25 percent. The more standard
rate for people in that category is 70 percent. Speaker Porter
wanted to apply that same success to felony level offenders so
introduced HB 172.
As part of that legislation, the Alaska Judicial Council was
tasked with studying the effectiveness of the program, which is
important because those programs are labor-intensive for ACS.
Unfortunately, the bill required a report in July of 2005,
almost a year after the two therapeutic courts will have closed.
HB 451 will allow the two programs to continue until July of
2006 to give the legislature a chance to see whether they are
effective. The bill also deletes the sunset clause that was put
on the Anchorage superior court judge position in the last
committee of referral. The superior court had not had a new
judge position since 1984, therefore HB 172 was used as the
vehicle to create that position to handle the therapeutic court
and to handle the increase caseload in Anchorage. Since 1984,
Anchorage has seen a 100 percent increase in its felony
caseload. At the same time, Representative Rokeberg had
sponsored several bills related to felony DUIs and other DUI
changes. ACS cannot afford to lose that judge and go back to its
1984 level of coverage.
SENATOR FRENCH said he attended two graduations at the
therapeutic court and was very impressed by the program. He
asked whether the report will provide information on how those
graduates are doing six months later.
MR. WOOLIVER said the Alaska Judicial Council also wants that
information and Judge Wanamaker has statistics on people who
have been out of the program for two or three years.
SENATOR OGAN asked if the study will contain a cost analysis
that includes the savings from the lower recidivism rate.
TAPE 04-43, SIDE A
MR. WOOLIVER said that information will also be included. He
noted the two judges who run the programs are available to
testify on-line.
MS. SALLY RUSSELL, Therapeutic Court Project Coordinator in
Bethel, informed members that Judge Devaney had to leave for a
9:30 hearing so she would testify in his place. She said Judge
Devaney wanted to pass on that the Bethel Therapeutic Court has
been wildly successful and has changed people's lives. They hope
the program will go on forever.
ANCHORAGE SUPERIOR COURT JUDGE STEPHANIE JOANNIDES told members
she presides over the felony DUI and felony drug court. The drug
court model has been used on a national level since the 1980s.
Throughout her legal career as a prosecutor in Juneau and as a
judge in Anchorage, she has heard many lawyers and judges
express frustration about seeing the same people in court over
and over, even though they receive longer jail terms with each
successive offense. She believes our society cannot afford to
not use therapeutic courts from the standpoint of economics and
public safety. The drug court model is based on the theory that
insanity is behaving the same way repeatedly and expecting
different results. The drug court model is working across the
country. When Alaska began its first drug court in 2001,
approximately 400 were in operation. Because of its overwhelming
success nationwide, over 1,000 drug courts are now operating
around the country.
JUDGE JOANNIDES explained that in therapeutic court, people are
held accountable. The drug court model forces the workers from
different agencies to sit at the same table and come up with an
effective plan to make sure the person on probation will
actually succeed. The offender appears before her every week and
the probation officer reports to her immediately if the offender
is not adhering to the requirements of the program. In addition,
the treatment provider gives her information.
SENATOR OGAN said he believes extending the program is
worthwhile because it works for some people. He then moved HB
451 from committee.
CHAIR SEEKINS announced that without objection, HB 451 had moved
from committee. He thanked Judge Joannides for her testimony and
adjourned the meeting at 10:00 a.m.
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