Legislature(1997 - 1998)

02/19/1997 01:54 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
  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)                                                         
 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              
   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              
 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                        
 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                      
  "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                
 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                   
 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               
  "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                
  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                 
 -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                
  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                    
  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.                          

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