Legislature(1997 - 1998)
02/19/1997 01:54 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 19, 1997 1:54 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR 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." MOVED CSSB 24(JUD) OUT OF COMMITTEE SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska limiting the rights of prisoners to those required under the Constitution of the United States. ADOPTED CSSJR 3(JUD) SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10 Proposing amendments to the Constitution of the State of Alaska relating to the election and the duties of the attorney general. HEARD AND HELD SENATE BILL NO. 19 "An Act repealing the power and duty of the commissioner of fish and game to assist in the enforcement of federal laws relating to fish and game." MOVED SB 19 OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SB 24 - See Senate Health, Education & Social Services Committee minutes dated 1/29/96, 1/31/96 and 2/3/97. See Senate Judiciary minutes dated 2/12/97. SJR 3 - See Senate Judiciary minutes dated 2/5/97. SJR 10 - No previous Senate committee action. SB 19 - See Resources minutes dated 2/5/97. See Judiciary minutes dated 2/19/97. WITNESS REGISTER Michael Pauley, Staff Alaska State Legislature Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for the sponsor of SB 24. Judith Koehler Americans United for Life 343 South Deerborn St., Suite 1804 Chicago, IL 60604 POSITION STATEMENT: Testified in support of SB 24. Senator Loren Leman Alaska State Legislature Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 24. Senator Dave Donley Alaska State Legislature Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SJR 3. Bruce Richards Department of Corrections 240 Main St., Ste. 700 Juneau, AK 99801 POSITION STATEMENT: Commented on SJR 3. Tuckerman Babcock, Staff Alaska State Legislature Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for the sponsor of SJR 10. Josephine Hardy, Staff Alaska State Legislature Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for the sponsor of SB 19. ACTION NARRATIVE TAPE 97-9, SIDE A Number 000 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:54 p.m. Present were Senators Miller, Pearce and Taylor. The first item of business before the committee was SB 24. SB 24 PARENTAL CONSENT BEFORE MINOR'S ABORTION CHAIRMAN TAYLOR announced the committee previously held an extensive hearing on SB 24 and delayed passage of the bill from committee until additional information sought by the sponsor and committee members was received. The committee packets contain the information requested, as well as numerous letters from members of the public. MIKE PAULEY , staff to Senator Leman, sponsor of SB 24, discussed three changes made to the proposed committee substitute (0- LS0210\E). On page 2, line 25, language was added to correct a drafting oversight; on page 7, line 22, a new subsection (n) mandates the court system to make available judicial bypass forms and information at all official locations within the State; and the word "woman" was replaced with "minor" throughout the bill as the word "woman" could be perceived to mean an adult female. Mr. Pauley distributed a map that contained the official locations of superior courts, district courts, and magistrates in the State. CHAIRMAN TAYLOR noted the term "woman" could still be found in some areas of the proposed committee substitute. MR. PAULEY explained that word was retained throughout the bill if it was modified by qualifiers, such as an unmarried, unemancipated woman under 18 years of age. SENATOR MILLER moved to adopt CSSB 24(Jud)(0LS0210\E) as the working document before the committee. There being no objection, the motion carried. JUDITH KOEHLER , Senior Legislative Counsel for Americans United for Life (AUL), testified. AUL has been involved in virtually all abortion litigation in the U.S. Supreme Court since, and including, Roe v. Wade in 1972. She has been involved with the 50 states in passing legislation and in litigation through the court decision process. She addressed the federal and state constitutionality of SB 24 and answered specific questions previously raised in House and Senate committee hearings. SB 24 is derived from three U.S. Supreme Court cases: in Hodgeson v. Minnesota, the Court found a two-parent notice law constitutional in 1990; in Ohio v. Akron, the Court affirmed the constitutionality of a one-parent notice bill; and in Casey v. Planned Parenthood in 1992, the Court affirmed a one-parent consent bill. These bills were affirmed out of the Supreme Court's recognition of a state's interest in protecting the health and safety of its minor children, protecting parental involvement in the upbringing of their minor children, and in fostering family unity. SB 24 is consistent with all of the provisions of the Hodgeson, Ohio, and Casey litigation. It includes a judicial bypass that can be found constitutional under that case law; and it includes the provisions that require timely, expedited procedures, and confidentiality for that minor. Because SB 24 is consistent with those provisions, it can be successfully litigated at the federal level. With respect to the Alaska Constitution, Ms. Koehler stated 34 states have either parental consent or notice laws. Only Florida's state law has been struck on privacy grounds. California's parental consent law has been upheld over a state privacy ground challenge; however, that law is still being litigated. Alaska's Supreme Court has never applied the privacy provision in its Constitution to a state abortion law and has made no decision that creates a state constitutional right to abortion. In fact, Alaska also protects parental rights in its Constitution. Ms. Koehler believes SB 24 can be successfully litigated in both federal and state courts. Ms. Koehler provided statistics from five states on teen abortion, pregnancy, and delivery rates before and after parental involvement laws went into effect. Her conclusion, with respect to parental involvement laws, is that those laws effectively changed teenage behavior. In response to testimony by a witness from the Center of Reproductive Law and Policy who said the medical emergency exception in SB 24 is "impermissibly narrow under longstanding federal constitutional precedents," Ms. Koehler stated that is simply not so. In 1992 the U.S. Supreme Court affirmed, in Planned Parenthood v. Casey, a parental consent law in the State of Pennsylvania contained an adequate medical emergency exception. That same provision is contained in SB 24. The judicial bypass procedure in SB 24 is consistent with parental involvement laws in the Minnesota, Ohio and Pennsylvania cases. With respect to the standard of evidence to be used by a judge in the judicial bypass procedure contained in SB 24, Ms. Koehler noted the clear and convincing evidence standard is included in the Ohio law, which was successfully litigated. Ms. Koehler addressed the issue raised by the National Association of Social Workers (NASW) that second trimester abortions among minors are likely to increase with passage of SB 24. While the total number of abortions performed on minors decreased after parental involvement laws were enacted, the number of second trimester abortions remained constant, so that number became proportionally larger. The same argument was used in the Mississippi legislative debate and the statistics did not bear out. Ms. Koehler disputed claims that physicians do not support parental involvement laws. An amicus brief was filed on behalf of the American Association of Physicians and Surgeons in support of the Minnesota law when it was successfully litigated in 1990. That organization is the largest association of private practicing physicians in the U.S., composed of physicians from every state and territory. They are interested, and understand the importance of, involving parents in the medical treatment of minors, particularly in the provision of surgical procedures. Ms. Koehler concluded by saying SB 24, if passed and signed by the Governor, can be successfully litigated and will support the state's interest in preserving a minor's health, parental rights, and fostering family unity. Number 327 SENATOR LEMAN , sponsor of SB 24, responded to comments made by previous witnesses in order to establish a clear record based on facts. The first topic is the effect of parental consent laws on teenage pregnancy. Last week a witness from the Alaska Women's Lobby claimed that SB 24 will not reduce the rate of teenage pregnancy, however he offered no evidence to substantiate his argument. I point out the experience of other states and Ms. Koehler did comment on this, and this information was provided quickly but is probably worth repeating. When Minnesota's parental notice law was in effect from 1981 to 1986, the pregnancy rate for teens age 17 and under declined 20 percent. In addition, the pregnancy rate for teens age 18 and 19 declined by 25.4 percent during the same time period. However, the pregnancy rates in both categories substantially increased between 1975 and 1980, the five year period immediately preceding the enactment of their law. The source of this data is the Minnesota Department of Health. this data was analyzed in a 1991 article in the American Journal of Public Health. The authors concluded (and I quote): "These data suggest that parental notification facilitated pregnancy avoidance in 15-17 year old Minnesota women. Abortion rates declined unexpectedly while birth rates continued to decline in accordance with a long-term trend." The next state is Massachusetts. A study of the parental consent law in Massachusetts shows that the teen pregnancy rate declined nearly 17 percent during the first 20 months the statute was in effect. This study was also published in the American Journal of Public Health, in 1986. I don't have photocopies of that article with me, but we are trying to track down one of good enough quality to make available to the committee. The third state's experience is Nebraska. To my knowledge there has not been a comprehensive study by social scientists on the effects of the Nebraska parental involvement statute which was approved in 1991. However, we do have some data available from the Nebraska Department of Health. There, statistics show that the number of abortions for minors decreased after enactment of the law. At the same time, however, the number of births in Nebraska declined after the law's passage, whereas in the four years before passage, the number of live births increased. So, we see a decrease in teenage abortions in Nebraska after passage of their law, but there is no corresponding increase in live births. This suggests that the real effect is a reduction in the teen pregnancy rates and that is something I believe all who have testified and those on the committee have agreed is common ground. Mr. Chairman, I have the raw data here from the Nebraska Department of Health, which you are free to review and draw your own conclusions. I certainly have drawn mine. The next topic that I want to address is the health effects of abortion. We've already heard a number of people testify about this, and several witnesses, including Dr. Peter Nakamura, who was with us for the hearing in the HESS Committee and the first hearing of the Judiciary Committee, claimed that abortion is a very safe procedure and that carrying a baby to term is actually more dangerous. Mr. Chairman, I'm not a research scientist, nor is Dr. Nakamura I might add, but I am aware of many studies on the health risks of abortion and I have read them. I read several of these and produced a synopsis of some of these studies which I'll also leave with you. These studies were published in the American Journal of Public Health, the Journal of the American Medical Association, and other reputable periodicals. Some of the more typical complications from abortion include infections, hemorrhage, ripping or perforation of the uterus, anesthesia complications, cervical injury, and death. I note that even Dr. Nakamura agreed, when he said that it is common ground that abortion is not safe. There are risks involved with it. The fact that these complications may be rare is of little consolation to the parents of a child who has been victimized in this way. There are many case studies but I will cite one: In 1985 a 13 year old girl in Queens, N.Y., Dawn Ravenell, died as a result of complications from a legal abortion. Her parents were not informed that their daughter was pregnant nor that she was going to undergo an abortion, because New York has no parental involvement law. Dawn's parents filed a lawsuit and were awarded more than $1.2 million. [Source: New York Daily News and New York Post, Dec. 11, 1990.] Let me suggest to the committee that the relative risks of abortion versus childbirth is really an irrelevant question, regarding this legislation. Let me explain. The data I have just presented to the committee indicate that parental involvement laws cause a decrease in both abortions and live births because it causes a reduction in teen pregnancy. It really doesn't make much of a difference who wins the debate about which is safer. Let us agree that there is some health risk involved in both teen abortion and teen childbirth. This bill will cause reductions in both. From a public health standpoint this bill makes good sense. I'm disappointed that this Administration is opposing it. In my mind, Governor Knowles and Dr. Nakamura, the director of the Division of Public Health, should be leading cheerleaders for this effort. They should be joining the nearly 80 percent of Alaskans who support parental involvement regarding abortion decisions for minor girls. I want to touch on the topic of a breast cancer link. I think it's important to do this because last week Dr. Nakamura cited a study, and then he said, "and I hope we finally put this to rest." Well, we haven't put it to rest with such a casual treatment as he gave it, and I wouldn't want this committee to in any way, derive that type of information from his testimony. Dr. Nakamura cited a recent study from Denmark to justify his conclusion. As I previously told you, I'm not a research scientist, although I've research some areas of engineering, but not in medicine. I'm going to limit my remarks to quoting someone who is. Dr. Joel Brind is a Professor of Endocrinology at the Department of Natural Sciences at Baruch College, City University of New York. Dr. Brind is one of the leading researchers in this area. Last October Dr. Brind published a comprehensive review and "meta-analysis" of 23 different studies on breast cancer and abortion. Dr. Brind has stated that the methodology of the Danish study on abortion, which Dr. Nakamura quoted and cited, and breast cancer is highly flawed. I have a five page critique of the Danish study that Dr. Brind prepared, and I would like to submit it also to committee members as part of the record. I'll also point out that since 1957, there have been at least 30 studies done on the issue of an abortion-breast cancer link. Of these studies, 24 have shown an increased risk of breast cancer among women who have had abortions, as opposed to only six that do not show the increased risk. One of the more notable studies on the abortion-breast cancer link was performed not far away from here at Seattle's Fred Hutchinson Cancer Research Center. This study was conducted by Dr. Janet Daling and 3 other scientists in Washington. I also have copies of that study for your perusal. And Mr. Chairman while the breast cancer-abortion link is not something that I believe is foundational to whether the enforcement of parental consent is proper for the State of Alaska, I also believe it is important that we not take testimony that is flawed and accepted as fact in the public record. The next topic that I wish to address is the opinion of health professionals in groups regarding parental consent/parental involvement statutes. There has been considerable discussion about how the medical community views this bill. Critics of the bill and the enforcement of parental consent laws have represented to this committee that medical professionals are largely opposed to parental consent for abortion. I've had several doctors contact me, and based on that testimony, and what I've heard, I do not believe this is true. I believe there are medical professionals who do oppose it and we've heard from some, and we heard from some last year when we were debating SB 105. I think it's fair to say that society as a whole is deeply divided on the issue of abortion and probably because of that there is carryover that muddies the thinking of some people when it comes to a topic that, in my opinion, can be as clear as parental consent for minors. But neither the judiciary or the medical community is immune from these divisions on the topic of abortion. Critics have represented that the American Medical Association opposes parental consent. I'll point out that many medical professionals have arrived at a different conclusion. When the Supreme Court reviewed Minnesota's parental consent law, one of the most effective defenders of the law was the Association of American Physicians and Surgeons, and that was cited in Ms. Koehler's testimony earlier. This is the largest association of private practicing physicians in the United States. This group submitted an amicus brief defending the State's law. The main theme of their brief centered on the effectiveness of the Minnesota law in reducing teenage pregnancies and as I commented earlier, that is a public health goal we can all endorse. I have copies of their brief. It contains charts and graphs that demonstrate the effectiveness of the Minnesota law and we will distribute that also to you. Closer to home, I have received letters from several Alaska doctors who strongly support SB 24. One of these doctors is an obstetrician/gynecologist. I would like to present all of these letters that we have received, at least through this time today, for the Committee's review. At last week's hearing, Senator Parnell touched on the fact that there is an economic interest at play in the abortion controversy. Abortion has regrettably become one of the most common surgical procedures in the United States. It is estimated, including by sources from those within the abortion community themselves, using their own statistics, that more than 35 million abortions have been performed in the United States alone since 1973. Bear in mind that some of the testimony we've heard comes from medical professionals who would be adversely affected economically by the passage of this bill. One final point - at last week's hearing Dr. Nakamura told the Committee that he had a list of, as he said, better than 40 health-related organizations, to use his terms, which oppose parental consent before abortion. With all due respect to Dr. Nakamura, I suggest he is guilty of some exaggeration, probably not unlike many others in this Capitol. But perhaps his is unintentional. About half of the 42 groups on his list cannot be fairly described as health professional organizations. They include such organizations as the American Civil Liberties Union, the National Organization for Women, Zero Population Growth, People for the American Way, Voters for Choice. I could comment on what I think of some of those organizations but I'll refrain. I'll just suggest that they are not organizations that I would call health professional organizations. I have a copy of the list, by the way, we got it from Dr. Nakamura and I'll make that available to you. More importantly, the list Dr. Nakamura provided does not specifically pertain to the issue of parental consent for abortion. The organizations are listed under a statement which reads as follows: "The undersigned organizations OPPOSE mandatory parental consent or notification requirements for teens" - and get this - "receiving services at Title X-funded family planning clinics." The reference is to an attempt made by Congressman Ernest Istook, who is from Oklahoma, to amend the Title X family planning program to require parental consent before services are provided to minors. The effort failed in committee but that is largely irrelevant to the issue of abortion consent because abortions are not performed in Title X clinics, and therefore would have been unaffected by Representative Istook's amendment. To be sure, many of these organizations, especially groups like Voters for Choice, are probably also opposed to parental consent before abortion. But that's not what this list is all about. I believe we have a duty to be accurate in our representations. The next topic is the federal constitutionality of SB 24. Last week several witnesses claimed that the bill, as written, would not withstand a constitutional challenge in the federal courts. Let me suggest that precisely the opposite is true, and Ms. Koehler spoke to that far more eloquently than I could. SB 24 was carefully modelled to conform with other states' statutes that have been tested by the U.S. Supreme Court and found to be constitutional. In fact, the whole purpose of this bill is to add the judicial bypass - the procedure the Supreme Court has said we must have - if our state's parental consent statute is to be enforced. I'd remind you that is existing state law, in statute, except for the bypass. This makes it enforceable. There have been 8 Supreme Court decisions that have upheld the validity of parental involvement statutes. The most recent was Planned Parenthood v. Casey in 1992. I quote from the concurring opinion of Chief Justice Rehnquist in that case: "We think it beyond dispute that a State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest." I'll comment briefly on the state constitutionality of SB 24. Other objections raised suggest that SB 24 will not withstand a state constitutional challenge because of the "right to privacy" clause in our State's Constitution. Critics have pointed out that the Florida Supreme Court struck down that state's parental involvement law on privacy grounds. However, let me point out that California also has a privacy clause, similar to Alaska's, and in April of last year the California Supreme Court upheld the California statute. A review has been granted in that case, though the issue is not completely settled, as Ms. Koehler also testified to, and of course we do not know what the Alaska Supreme Court will do. We can only guess, but my hope is that they will employ the same reasoning the justices in California used if they have an opportunity to review this. Let me quote to the committee the conclusion of the California court: "We conclude that the judicial bypass is minimally intrusive: it is speedy, informal, and confidential. There is no substantial evidence supporting the trial court's finding that requiring an unemancipated minor to appear before a juvenile court judge for an expedited, informal hearing on these important questions -- even if somewhat intimidating -- poses a gratuitous threat to the physical or emotional well- being or either a mature or an immature unemancipated minor." And that, Mr. Chairman, concludes my testimony in response to that offered by others. I commend this legislation to you. I believe it represents common ground, if ever there is common ground on the issue that even touches on abortion, it would be in the area of parental consent. I believe that it is timely for us to have a law, not only on the books, but one that is enforceable and enforced. The result of that, I believe in the State of Alaska, will be the saving of lives, will be the protection of children and the protection of our families. I commend it to you and suggest you report the bill as quickly as possible. CHAIRMAN TAYLOR informed committee members Dr. Nakamura was attending a meeting and would not be available to testify. SENATOR MILLER moved CSSB 24(JUD) out of committee with individual recommendations and all accompanying fiscal notes. SENATOR ELLIS objected. The motion carried with Senators Miller, Parnell, and Taylor voting in favor, and Senator Ellis opposed. SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS SENATOR DAVE DONLEY , sponsor of SJR 3, discussed changes made to a proposed committee substitute. CSSJR 3(JUD) was broadened to encompass all rights currently provided to prisoners in Alaska. Traditionally, prisoners rights in the U.S. have stemmed from the federal cruel and unusual punishment clause. Under the Alaska Constitution, Alaska courts might extend due process clause rights to prisoners. CSSJR 3(JUD) now reads, "The rights and protections and the extent of those rights and protections afforded to prisoners by this constitution shall be limited to those rights and protections and the extent of those rights and protections afforded to prisoners under the Constitution of the United States" to encompass Alaska's due process rights that have been interpreted differently from those under the U.S. Constitution. TAPE 97-9, SIDE B Number 568 SENATOR PARNELL asked what other prisoners' rights might change under CSSJR 3(JUD). SENATOR DONLEY replied Alaska is required to provide and maintain a law library and photocopier, among other specific things, according to the Cleary settlement. The federal Constitution allows for less expensive, alternative means to guarantee prisoners access to the courts and other areas. Under CSSJR 3 (JUD), Alaska would still have to provide the means to legal access approved by federal courts, but would not have to maintain an updated law library in every institution. Another distinguishable feature of prisoners' rights is the provision of rehabilitation programs, mandated by the Alaska Constitution. SENATOR PARNELL moved to adopt CSSJR 3 (0-LSO268\E) as the working draft of the committee. There being no objection, CSSJR 3 was adopted. SENATOR PARNELL asked Senator Donley to elaborate on the purpose of SJR 3, because he finds it ironic that Alaska would want to be subject to the federal Constitution instead of our own state's Constitution. He noted he is troubled by the implications of taking this action related to other federal issues, such as the state sovereignty issue. SENATOR DONLEY replied there are two reasons. Alaska's Constitution provides its citizens with more individual rights than those under the U.S. Constitution. We think of those rights as applying to law-abiding citizens in the general population. When those rights are extended into the prison system they create a different standard than that provided under the federal constitution. While Alaska courts may interpret the Alaska Constitution to extend those individual rights to prisoners, that extension may not be the wisest public policy. Second, the Cleary settlement can only be revisited if significant changes occur. SJR 3 would create a significant enough change to allow renegotiation. Number 437 SENATOR PARNELL asked if SJR 3 would apply only to convicted, and not pre-trial, prisoners. SENATOR DONLEY said the federal standard prohibiting cruel and unusual punishment only applies to people who have been convicted and incarcerated but Alaska Courts could extend due process rights to those prisoners as well. His intent, when drafting SJR 3, was that it only apply to people who have been convicted and incarcerated. He was unsure whether Alaska has any distinct rights for pre-trial prisoners separate from federal constitutional rights. SENATOR PARNELL noted Alaska's right against self incrimination is much broader than the federal right; the Legislature passed a discovery bill during the previous session in an attempt to get the Supreme Court to narrow the scope. SENATOR DONLEY believed that is not an element of one's incarceration, but is a separate issue. Number 409 SENATOR PARNELL suggested including a definition of "prisoners" in the resolution to clarify it applies to convicted prisoners, not pre-trial prisoners. SENATOR DONLEY believed the court would have difficulty applying it to anyone other than prisoners who are incarcerated after conviction because otherwise there would be a dual system of rules for pre-trial prisoners: those who could make bail, and those who could not. BRUCE RICHARDS , Special Assistant to the Commissioner at the Department of Corrections, did not state a position on SJR 3, but submitted the following testimony for the record on behalf of Commissioner Pugh. I understand that discussion in the last hearing included some thought that if the Department did not have to abide by the caps set by the Court that we could put more prisoners in existing correctional facilities. I wanted to take the opportunity to go into that premise a little deeper. From a correctional management standpoint, overcrowding is not solely created by the Court caps. I welcome the opportunity to discuss with the committee the other issues that limit the number of inmates that can be housed in a facility. 1. Inmate management, security, and programs are impacted negatively. I am firmly on record regarding the dangers of increased violence, not enough work or treatment programs to keep inmates busy, and the dangers inherent in inmate idleness in a correctional institution. In addition to idleness, the ability to deliver rehabilitative programs decreases. And on top of it all, the staff are stretched too thinly to provide a safe level of oversight. I could speak at great length about these conditions. I've spent the better part of the last 26 years of my career in and around institutions in Alaska - as a Superintendent and as a line worker - so I believe I can attest to what I tell you, not just from a theoretical or philosophical standpoint, but from actual hands-on experience in Alaska. 2. The other issue involved in placing more prisoners in an institution needs to be discussed. That is that each facility was designed to support a specified prisoner population. There is a limited capability to absorb increases in population. What I'm talking about is design capacity of physical plants. -There are fire, life safety, and building codes to consider. There is the Uniform Fire Code, the Uniform Building Code, the Uniform Mechanical Code, the American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE) standards, the Uniform Plumbing Code, not to mention DEC, EPA considerations, OSHA and ADA. -Someone said to me the other day that it is like an elevator that is rated for X pounds. That doesn't mean that you can't put more pounds in it, but that you tempt system failure with potentially disastrous results if you exceed the rating -- and the problem is exacerbated if you exceed the rating every single time the elevator is called into service. -I want to give you a few examples of just what I mean. HMCC in Eagle River is rated for x gallons of effluence handled by the sewer system and draining into Eagle River. That translates into 285 inmates. We run the sewer treatment system and measure the outfall and report to DEC. We're right at 285. So even if we could put more bunks in cells there, we would not be able to handle the sewage problem. -One other comment about sewer discharge: too much sewer discharge in undersized lines can back up badly. UPC requirements aren't to be taken lightly. Just last month at Spring Creek the sewer system backed up into the kitchen, we had raw sewage in the kitchen area which had to be closed, system unclogged, kitchen sanitized and the sandwiches bought from AVTec. At Palmer Correctional Center in Sutton we have 2 wells. And the water system and well capacity are at maximum capacity. We are double bunked at Palmer. Even if we could triple bunk, which we can't, we would need to put in a new well. We included the cost of a new well in our bond bill last year which included an expansion at Palmer. -In the supplemental budget bill we're asking for more than $600,000 to replace a boiler in Fairbanks. Putting more bodies in a building increases the load on a boiler to carry the heat and hot water. At the very least, this decreases the life cycle of the boiler. -KCC is double bunked, it was built for single, but now has doubles. There is literally no space for a third bunk. The dayroom is rated for the number of inmates for a single bunk. Half of the inmates are locked down while the other half are in the dayroom. The dining room is actually the multi-purpose room where many other of the activities take place. Inmates eat in shifts. If another shift is added, for example, the multi-purpose dining room is not available for scheduled afternoon activities. -The Fire Marshall has established exiting criteria, so that if one would propose housing inmates in areas not designed as housing, there would be problems with managing exits. If exits are internal, etc. -There are standards for minimum ventilation requirements, typically based on minimum air flows and air changes per hour. Substantial overcrowding would violate these code requirements. And while mentioning ventilation codes, I should point out that prison populations have a relatively high incidence of TB and hepatitis and other airborne pathogen diseases. Overcrowding in poorly-ventilated housing units subject staff and other prisoners to the diseases. Financial claims and costly litigation often precede expensive facility modification. -One last example ... security control systems have switches and other moving parts. Most mechanical devices are rated for x number of uses before failure. If you double or triple the number of uses the switches or parts wear out ... their life cycle is shorter. -And from here we could get into a discussion of existing deferred maintenance needs. I will spare you that, except to say, we have over $13 million in deferred maintenance and another $9 in equipment. Over-use of systems just exacerbates the deferred maintenance problem. I hope I have answered some questions and given you a broader glimpse into a day in the life of a correctional manager. It's not simple and not just a matter of how many people can fit in an elevator. SENATOR MILLER moved CSSJR 3(JUD) out of committee with individual recommendations. SENATOR ELLIS objected and asked about Senator Parnell's drafting concern. After a brief discussion, SENATOR MILLER withdrew his motion so that a definition of "prisoner" could be included in CSSJR 3(JUD). Number 351 CHAIRMAN TAYLOR noted he would be willing to reschedule CSSJR 3(JUD) at any future hearing, and informed committee members of testimony from Mr. Paul Sweet who was unable to be connected via teleconference. Mr. Sweet supports SJR 3 and believes prisoners should work 12-hour rotating shifts. SJR 10 ELECTION OF ATTORNEY GENERAL TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of SJR 10, described materials included in committee members' packets. Similar legislation passed the House in the mid-1980's but failed by 5 votes in the Senate. Mr. Babcock noted the Governor and Attorney General have responded to SJR 10 in the media by saying the position of attorney general will be used as a stepping stone and that there will be the likelihood or possibility of partisan differences between the attorney general and governor. Both of those concerns are specifically addressed in SJR 10. Number 326 SENATOR PARNELL asked Mr. Babcock to elaborate on the requirement, at page 3, lines 14-16, that an attorney general not hold the office of governor or lieutenant governor until one full term has intervened. He noted the stepping stone argument can be made for any office, and questioned on what policy ground that requirement is being established for one office and not others. MR. BABCOCK replied that provision is an effort to accommodate concerns that had been raised that the attorney general's focus might unduly be on becoming governor. While that is a legitimate focus for any Alaskan to have, the primary purpose in pursuing the election of an attorney general is to focus his/her attention on representing the people on issues of particular importance. SENATOR PARNELL asked, if one presumes the worst motives, if the attorney general might actually be pursuing cases the public wants him or her to pursue? MR. BABCOCK replied public pressure could be positive. He explained Senator Green's primary concern is to establish an election for the office of the attorney general, not to require a time lapse between elections. SENATOR PARNELL stated he sees the same difficulties with other offices yet, as a policy matter, it is not of big enough concern to require a waiting period. MR. BABCOCK commented the lieutenant governor is elected specifically for the purpose of replacing the governor, if need be. The governor and lieutenant governor are the only offices elected on a statewide basis. Each legislator has duties that encompass the scope of state responsibilities. The attorney general would be dedicated toward upholding the Constitution and laws of the state, defending the state in any civil actions and prosecuting under any criminal action. The scope of the attorney general's responsibilities are more narrow than those of other elected officials of the state, that justifies encouraging the attorney general to focus just on those duties. Number 273 SENATOR PEARCE referred to a memo dated 3/11/85 to former Representative Fritz Pettyjohn from a legislative analyst and read the following: The major difference between Alaska's prosecutorial system and that of other states is that most states have elected local prosecutors whose job it is to investigate suspected criminal conduct and to prosecute. Thus, even with an appointed attorney general, there is always someone independent of the governor with authority to investigate and prosecute. The authority of the attorney general to intervene in local prosecutions provides a check and balance on local prosecutors...By contrast, in Alaska, the district attorneys are all employed by the attorney general, who in turn, serves at the will of the governor. SENATOR PEARCE asked, if a constitutional amendment passes, and the attorney general becomes an elected official, whether the Legislature will have to rewrite the statutes to decide what functions would change in that office. MR. BABCOCK commented at the time that memo was written, the State of Pennsylvania had recently undergone that transition. In SJR 10, Section 28 (c) describes the functions. The first elected attorney general would not take office until the end of 2002 which would leave plenty of time for the Legislature to address any necessary statutory changes. The question would be on the ballot in 1998, and those changes could be addressed during the next four years. Number 222 SENATOR PEARCE clarified the prosecutors would still be appointed, but would be appointed by yet another elected official. One would assume, if there is misconduct by a state official, the attorney general's staff would not be unwilling to prosecute. MR. BABCOCK confirmed that is how the system would work under SJR 10. CHAIRMAN TAYLOR commented he has historically opposed this type of legislation, with some exceptions, because he is concerned about creating another entity that has to spend a fortune to run for office and then not be able to move on from that office for a limited amount of time, although he agrees with the waiting period requirement. He created legislation two years ago to set up a Constitution Defense Council which would take a middle ground approach. That Council would act should the attorney general or governor fail to defend our State's Constitution. He believes there has been a pattern, with this Administration and Attorney General, to sell out the Constitution in favor of special interest groups that helped put them into office. He discussed the Attorney General's decision to dismiss the tribal status and Babbitt suits for political, rather than legal, purposes. Those dismissals forfeited major organic rights of the people of the State of Alaska and the cases were dropped solely to benefit a specific special interest group. CHAIRMAN TAYLOR specifically requested the Governor and/or Attorney General to appear before the committee and explain why the committee should not directly elect an attorney general, since it is the duty and responsibility of the Executive Branch to defend both its actions and the current constitutional framework under which they serve. If, in fact, the Governor is contemplating vetoing such legislation, then the appropriate place for that debate is in the public forum of the Legislature. If this legislation is to have any merit at all, it can only be because those currently serving have misused the position to such an extent that there may be no other alternative but to turn to the people to decide on a direct election of that office. CHAIRMAN TAYLOR noted his intention to hold the bill for one week so that the Governor and/or Attorney General's presence can be requested. MR. BABCOCK thanked the committee for hearing the bill in such a timely manner, and supported the Chairman's intention to hold the bill for one week. He reviewed testimony of former Attorney General Norm Gorsuch, who was opposed to the election of the attorney general. SB 19 REPEAL FED ENFORCEMENT DUTIES/F&G COMSNR JOSEPHINE HARDY , staff to Senator Sharp, sponsor of SB 19, explained SB 19 repeals the present statutory mandate, AS 16.05.050, Section 1, reqiuring the State of Alaska to assist federal agencies in the enforcement of federal laws and regulations as they apply to fish and game resources in Alaska. In light of aggressive federal actions to assume management of fish and game over large areas of our State in violation of our Statehood Compact, Senator Sharp believes the repeal of this statute is prudent and in the best interests of the citizens of Alaska. The content of SB 19 was included in SB 77, sponsored by Senator Sharp during the last legislative session, but was vetoed by the Governor. CHAIRMAN TAYLOR believed the Alaska Peace Officers' Association position before the Senate Resources Committee during the previous session was that, as long as the legislation only removes the mandatory language that forces the Commissioner to enter into agreements, it did not object to the legislation. KEN TAYLOR , Department of Fish and Game, stated he was not aware of any objections from ADFG on SB 19. SENATOR PARNELL moved SB 19 from committee with individual recommendations. There being no objection, the motion carried. CHAIRMAN TAYLOR adjourned the meeting at 3:50 p.m.