Legislature(1997 - 1998)
03/09/1998 01:35 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 9, 1998 1:35 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis OTHER MEMBERS PRESENT Senator Loren Leman Senator Jerry Ward Senator Lyda Green COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 42 Proposing an amendment to the Constitution of the State of Alaska relating to marriage. - MOVED CSSJR 42(JUD) OUT OF COMMITTEE SENATE CONCURRENT RESOLUTION NO. 25 Urging an appeal and an expeditious decision on the appeal of a case concerning marriage. - MOVED CSSCR 25(JUD) OUT OF COMMITTEE SENATE BILL NO. 201 "An Act relating to prohibiting recovery of damages and prohibiting a remedy to a person in a civil action." - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SJR 42 - No previous action to report. SCR 25 - No previous action to report. SB 201 - See Judiciary minutes dated 10/10/97, 1/28/98 and 3/6/98. WITNESS REGISTER Senator Loren Leman State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SJR 42 Mr. John Gaguine Department of Law PO Box 110300 Juneau, Ak 99811 POSITION STATEMENT: Commented on SJR 42 Professor Lynn Wardel Brigham Young University Salt Lake City, Ut POSITION STATEMENT: Supported SJR 42 Professor Don Cecil University of Alaska, Southeast 11120 Glacier Highway Juneau, Ak 88901 POSITION STATEMENT: Opposed SJR 42 Ms. Sara Boesser 9365 View Drive Juneau Ak 99801 POSITION STATEMENT: Opposed SJR 42 Ms. Marsha Buck PFLAG Juneau 8445 Kimberly St. Juneau, Ak 99801 POSITION STATEMENT: Opposed SJR 42 Ms. Pam Northrip 2810 Fritz Cove Rd. Juneau, Ak 99801 POSITION STATEMENT: Opposed SJR 42 Mr. Peter Pinney PO Box 82290 Fairbanks, Ak 99708 POSITION STATEMENT: Opposed SJR 42 Ms. Ellen Twiname 5306 Caribou Ave. Anchorage, Ak 99508 POSITION STATEMENT: Opposed SJR 42 Mr. Michael Jones PO Box 6185 Sitka, Ak 99835 POSITION STATEMENT: Opposed SJR 42 Reverend Howard Bess PO Box 2888 Palmer, Ak 99645 POSITION STATEMENT: Opposed SJR 42 Michael Johnstone Los Angeles, Ca Ms. Liz Dodd 100 Parks St. Juneau, Ak 99801 POSITION STATEMENT: Opposed SJR 42 Mr. Tom Gordy Christian Coalition of Alaska POSITION STATEMENT: Opposed SJR 42 Mr. Mike Pauley Staff to Senator Loren Leman State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Commented on SJR 42 Mr. Larry Carroll 3510 Mendenhall Loop Rd. Juneau, Ak 99801 POSITION STATEMENT: Commented on SB 201 ACTION NARRATIVE TAPE 98-15, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:35 p.m. and called SJR 42 as the first order of business. SJR 42 - CONSTITUTIONAL AMENDMENT RE MARRIAGE SENATOR LOREN LEMAN came forward to present the resolution on behalf of the Senate Health, Education and Social Services committee. SENATOR LEMAN explained that both the resolutions respond to the recent ruling by Superior Court Judge Peter Michalski, which decided that our society's traditional definition of marriage may be unconstitutional. He explained that SJR 42 proposes an amendment to the state constitution that defines marriage as a union between one man and one woman. SENATOR LEMAN said the judge's ruling ignores the clear public policy statement made by the Legislature in 1996 when it overwhelmingly passed SB 308, known as the definition of marriage bill. SENATOR LEMAN said this bill helped establish important social policy in Alaska. He said Judge Michalski argued the statute disallowing same sex marriage is unconstitutional unless the state can show compelling governmental interest to the contrary. SENATOR LEMAN commented that the judge arrived at this decision through some ironic reasoning, alleging the constitutional right to public recognition of one's choice of a life partner under the right to privacy clause of the Alaska Constitution. SENATOR LEMAN said our laws have never permitted granting licences to same sex marriages and these marriages are currently not recognized in any of the 50 states nor, to the best of his knowledge, any country in the world. SENATOR LEMAN predicted that if the Alaska court forces the state to recognize same sex marriage, state law would be in conflict with federal law in a multitude of ways, creating an explosion of litigation. SENATOR LEMAN noted that the word marriage appears in more than 800 sections of federal statute and the word spouse is used 3,100 times. In all these statutes and regulations the federal government recognizes marriage as a union between one man and one woman, regardless of what the Alaska court says. SENATOR LEMAN concluded that same sex marriage would cause a host of conflict with programs and services ranging from the Internal Revenue Service to Social Security benefits. He said some may argue this demonstrates the need to change the federal statutes, but SENATOR LEMAN maintained his disagreement and said the 1996 vote in Congress on the Defense of Marriage Act shows these proponents have their work cut out for them. SENATOR LEMAN advised CHAIRMAN TAYLOR he would hear arguments on both sides of this contentious issue and his belief is that the preservation of the definition of marriage as a union between one man and one woman is so important its loss would break down the very foundation of our society. He proposed that the issue is so profound, the people of Alaska should decide. SENATOR LEMAN noted there were amendments to both SR 42 and SCR 25 and offered them to the committee for consideration. He then introduced PROFESSOR LYNN WARDLE as an expert witness. MR. JOHN GAGUINE, representing the Department of Law, replied "no" to a question from CHAIRMAN TAYLOR asking if the amendment to the bill significantly changed the issue. CHAIRMAN TAYLOR asked MR. GAGUINE if it was appropriate to place this amendment on the ballot. MR. GAGUINE answered that he did not wish to speak for the administration, but said it appears to him that the amendment would moot the litigation, which seems to him its intent. Number 200 PROFESSOR LYNN WARDLE stated he has taught family law for 20 years and has done extensive research on the same issue. He indicated he was speaking on his own behalf. PROF. WARDLE said same sex marriage is not recognized by any jurisdiction in the world. He mentioned that about six jurisdictions, mainly in Scandinavia, have established same-sex domestic partnership, an institution quite different from marriage. PROF. WARDLE suggested that even these jurisdictions make a strong point of the fact that these partnerships differ from marriage. In the past 25 years in this country, many lawsuits have been filed in dozens of courts seeking same-sex marriage and until a short time ago, not a single court had accepted any one of these claims. However, in Hawaii, in 1996, a judge ruled that the refusal to give marriage licences to same- sex couples violated the state constitution. A few months later the Hawaii legislature proposed an amendment to the constitution to essentially overturn that decision, according to PROF. WARDLE. He said that amendment is now awaiting a vote. PROF. WARDLE said the decision of the Alaska judge is even more radical than that handed down in Hawaii. He said that court rejected the claim that there is a constitutional right to same sex marriage, reaching their claim through a convoluted route of legal analysis. In the Alaska case, Judge Michalski interpreted provisions of the Alaska Constitution as granting a fundamental right to same-sex marriage. PROF. WARDLE commented that no other court has ever reached this decision, which he sees as quite radical. He said the ruling is not yet final, but it does establish a clear legal standard that tells the world this is the view of marriage held by the people of Alaska. PROF. WARDLE sees this as an inaccurate portrayal. PROFESSOR WARDLE said marriage is the foundation of society and has always been understood to be between a man and a woman. He said it is unique and uniquely beneficial as men and women have a complementary relationship. He sees this to be the major flaw of the decision: the failure to recognize the heterosexual relationship provides more societal and individual benefits than any other. PROF. WARDLE said there is an honest answer to the question same- sex couples might ask about why their unions, meaningful to them, cannot be recognized in the same way as heterosexual marriage. He said the answer is that a man and a woman contribute fundamental things to society, unique to their relationship. Marriages meet social policy goals and that is why they have been singled out, historically, for preferred status. PROF. WARDLE identified some of the social policy purposes that merit special standing as PROF. WARDLE stressed another flaw in Judge Michalski decision was the tenet that all choices of life partners are equal. PROF WARDLE said the judge's opinion is lacking in the support, evidence and judicial precedence necessary for this type of dramatic conclusion. He believes that a right to privacy does not mandate a state must confer a preferred public status on anyone. He said the logical extension of this opinion would open the door for incestuous and multiple marriages. PROFESSOR WARDLE concluded that this matter goes beyond Alaska, as this decision will affect other states and prompt a constitutional crisis. He said the state has a compelling interest in not redefining marriage in such a radical way, especially in a way that will result in years of costly and confusing litigation. PROFESSOR WARDLE said the case will bring up questions of alimony, property interests, child support, inheritance, succession and benefits, among others. He said other states may refuse to recognize same-sex marriages from Alaska and he believes it is important for the legislature to act now. Finally, PROFESSOR WARDLE summed up by saying the legislature, who are also guardians of the constitution, must represent the people by allowing them to make the final decision regarding the definition of marriage. He urged quick action on this legislation. SENATOR ELLIS asked CHAIRMAN TAYLOR if he would afford the same time to Alaskans as he did to this out of town guest. CHAIRMAN TAYLOR replied he absolutely would and asked if there was a spokesman for the opposition, as there were far too many people present to allow unlimited testimony from each person. SENATOR ELLIS asked how many people were signed up to testify and CHAIRMAN TAYLOR said, counting those in the room as well as teleconference participants, it looked to be approximately 70 total. SENATOR ELLIS asked if the plan was to take two people and then cut off testimony. CHAIRMAN TAYLOR replied he would take one or two after that, and would have to as they were running out of time. Number 375 REVEREND DONALD CECIL, a Professor of Communications at the University of Alaska Southeast, said he wished Alaska's slogan was "Live free or die." He moved to Alaska in 1980 in search of a place where he could live free from interference by the government and others to the greatest possible extent. He wanted to live in a state uncluttered by excessive laws, in a place that allows people to march to the beat of a different drummer so long as no one got hurt. He quoted U.S. Supreme Court justice Lewis Brandice who said, "the makers of our Constitution sought to protect Americans in their beliefs, their emotions, and their sensations. They conferred the right to be left alone, the most comprehensive of rights and the right most valued by civilized man." He mentioned other Supreme Court Justices who validated these sentiments in other writings. REVEREND CECIL said the right to choose a marriage partner is a right of individual freedom and the people testifying in favor of that right are not asking for an endorsement. He said only a small percentage of Alaskans would evermake this choice and other Alaskans would continue living their lives according to their beliefs, freely honoring what is inside themselves biologically and emotionally. Likewise, the small minority of Alaskans would be able to honor what is inside of them and lead their lives according to their deepest beliefs. REVEREND CECIL remarked that the only injury would be to someone else's sacred idea of how others should live their lives. REVEREND CECIL affirmed that he would like to continue living in a state that fully embraces the concept of personal freedom. In his opinion, SJR 42 is an affront to freedom of choice. In the name of freedom for all Alaskans, he recommends they throw out SJR 42 and get back to the more important business before them. In response to SENATOR LEMAN's remarks regarding decisions that are out of the mainstream, REVEREND CECIL quoted Thomas Jefferson, who said, "I am not an advocate for frequent changes in laws and constitutions . . . laws and institutions must go hand in hand with the progress of the human mind, as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, well, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still a coat which fitted him when a boy as civilized society to remain ever under the regimen of their ancestors." MS. SARA BOESSER, representing the Statewide Committee for Equality, said there were 30-40 people out in the hall and another 60 around the state who came to testify against this bill. She said they worked hard to be there and all came expecting to be allowed to speak against this amendment to the Constitution. MS. BOESSER commented that if the remarks of the out-of-state speaker were true, the Attorney General would have no trouble showing the court a compelling reason why same-sex couples should not marry. MS. BOESSER suggested if the committee took the time to listen to all those assembled, they would hear plenty of reasons why lesbians and gays should be allowed to take on the responsibilities and rights of legal marriage. She said they'd hear stories how the inability to marry hurts them and their children, and also how gutting the constitution of fundamental privacy rights is as unAlaskan a precedent as there could be. MS. BOESSER emphasized that her point was the intense pain that the ballot procedure itself will cause innumerable people. She does not believe the committee understands how difficult it will be to face the type of angry, anti-gay onslaught some Alaskans will mount. She is sure over the next few weeks the legislators themselves will receive many cards and letters asking them to drop this proposition and let the court case proceed. Some of these letters may be from angry, upset people; MS. BOESSER said there is nothing she can do to control that, like there is nothing the legislature can do to control the barrage of hateful, prejudiced rhetoric that will ensue if this goes to the ballot. She said if they feel the uncomfortable sting of angry words, they should realize that what they suffer is only the tip of the iceberg when compared to the hate speech, untrue stereotypes and misinformation that will be spread about her and her partner of 17 years. She dreads that. She suggested that when they feel stung, they should think about people like her, hearing daily attacks in the coffee shop, on the radio and in the press, attacks on themselves and their loved ones. MS. BOESSER concluded that this bill, whether it is intended or not, builds a podium for hate speech for eight long months of painful discourse. She charged the committee to understand their personal responsibility in unleashing that pain upon them and their loved ones. She urged the committee to stop the bill now and allow the courts to continue the appeals process. MS. MARSHA BUCK, representing Parents and Friends of Gays and Lesbians (PFLAG), said she is angry about SJR 42 and opposes it. She said she is angry for two reasons: first, because she has a daughter married to another woman and she knows this resolution will increase the hatred, violence and name-calling against her and she is a hardworking, churchgoing, voting person who doesn't deserve that; second, she is angry because she understood the Republican platform was to stay out of citizens' private business and this gets into it in a way she never expected. MS. BUCK noted that the legislature is now on resolution number 42, meaning there are 42 ways in which this Legislature is trying to change the Constitution. This also makes her angry, to see this attack against the Constitution when there are so many other important things to be done, like working on subsistence and school funding. MARSHA BUCK stated that the Constitution protects citizens' rights, including her daughter's rights. She wondered if the Legislature sees the connection between this type of resolution and the increase of hate crimes and violence against gays and lesbians. MS. BUCK identified herself as a long time Juneau resident and indicated she would use her time and resources to oppose this legislation. Number 475 MS. PAM NORTHRIP, a teacher of 25 years from Juneau, reflected on the marriage of her Presbyterian son to his partner by a Catholic priest in a Quaker church. She said the priest explained why he performed the ceremony saying in a world filled with violence, bitterness and hate crimes, it is inherent upon each one of us to do what we can to promote love. She said she hopes none of the committee, in the name of family values, would reject a son or daughter who came to them and revealed that, in addition to all the wonderful things they are, they are gay. MS. NORTHRIP said she has learned in her experience that families come in all sizes, races, and configurations. She said defining families as only mothers and fathers with children excludes single parent, multi-parent, divorced, widowed, multi-racial and adoptive families and tells their children that there is something wrong with them. She said it hurts families and increases our suicide rate. MS. NORTHRIP suggested that acceptance and inclusion do not mandate agreement, but only allow individual freedom and choice. She indicated that the rights of the minority are as important as the opinion of the majority and she is unable to see how the state has any compelling interest to discourage caring, kindness, commitment and love. MS. NORTHRIP hoped the committee would not pass this resolution that defines marriage so narrowly and hurts so many families. SENATOR ELLIS asked CHAIRMAN TAYLOR why he had set up what SENATOR ELLIS saw as an artificial time constraint. CHAIRMAN TAYLOR replied he only had about an hour and a half to take up three different matters. SENATOR ELLIS asked why this matter, due to all the public interest, couldn't be carried over. CHAIRMAN TAYLOR replied he intended to move the bill today. SENATOR ELLIS asked why, saying there were Alaskans who had come to testify and would not be able to do so due to this artificial scheduling crisis. CHAIRMAN TAYLOR agreed, saying if they were to take the time to allow every person to speak, because of the deeply felt emotions on this issue, he thinks every Alaskan would speak. He added he thought that may be part of the agenda also. SENATOR PARNELL asked if testimony could be faxed into the committee and CHAIRMAN TAYLOR said certainly, people could send their comments right through the Legislative Information Offices (LIOs). Number 515 MR. WILSON VALENTINE, an appointed member of the Commission for Human Rights (Juneau) and an Episcopal priest, did not address the right or wrong of homosexual marriages, but came to speak about the goal of the Human Right's Commission, protecting the rights of all people. He fears that if you write into the Constitution a discrimination against any group, you are against human rights and the work that modern people in the human family have been striving to accomplish. MR. VALENTINE said putting into concrete something that discriminates against anyone is wrong. He said the real question is the treatment and protection of the people of Alaska, which should be protected in our Constitution. MR. PETER PINNEY testified via teleconference from Fairbanks, where he spoke on behalf of the 20 people there at the LIO who opposed the bill. MR. PINNEY said he looked at the issue like gun control, if you start placing restrictions on it, who knows where they may end. He mentioned other bills under consideration by the Legislature, including those relating to "charter marriage" and behavior of people with HIV asked if this is how this Legislature wants to be remembered. He said there are other pressing issues. MR. PINNY said, as a long time Republican, he has always disdained intervention in people's lives. He said this action is not an economic one, but rather a moral one and the state needs to pay closer attention to economic issues. MR. PINNEY said the committee could not prove to him that any two people getting married creates a negative economic impact. He said for long time in Alaska, before the pioneers, there was no marriage in Alaska and nothing fell apart. Mr. PINNEY stated he did not feel comfortable with a government legislating against any group, and he especially did not feel comfortable with this Legislature presenting legislation against him. MS. ELLEN TWINAME testified via teleconference from a room of 15 people opposed to the bill at the Anchorage LIO. MS. TWINAME said she does not support this attempt to change the Constitution, which she feels will unfairly deny same-sex couples access to benefits that mixed couples take for granted. She remarked that married people enjoy privileges that have nothing to do with religion or procreation such as tax-breaks, health insurance benefits and rights to make health care and burial decisions for one another. She does not see how same sex marriages could hurt society, and suggested heterosexual couples are enjoying special rights that should belong to everyone. MS. TWINAME concluded by saying that our judiciary should not be afraid to set a precedent because that is how the world gets changed. She believes being the first state to allow same-sex marriages would be a reason for Alaskans to be proud. SENATOR WARD remarked that the person who testified via teleconference from Fairbanks said there was no marriage before the pioneers. SENATOR WARD refuted this, saying Athabascans married for thousands of years and did not have same-sex marriage. MR. MICHAEL JONES testified via teleconference from Sitka. MR. JONES suggested that publicity around this bill has expressed the need for it in order to retain the sanctity of marriage. MR. JONES said this amendment would not sanctify marriage, but only define the exclusivity of marriage. He suggested if the act of marriage is to be sanctified, perhaps outlawing divorce or making it more difficult to obtain would be more appropriate. He said only one of five dictionary definitions he looked at defines marriage in terms of opposite sex partners. MR. JONES concluded by saying the Legislature certainly has more important things to do and he urged them to drop this proposal. TAPE 98-15, SIDE B Number 001 REVEREND HOWARD BESS, a Baptist minister, testified via teleconference from Mat-Su and said marriage is a part of our society and stabilizes social structures and creates an orderly society. However, when government seeks to interfere with a person's choice of a life partner, it defeats the purpose of the government, confuses property rights and disrupts orderly decision making. REVEREND BESS believes the judge's ruling in this case was right on target and was supported by sound legal reasoning. He urged the committee to leave the ruling alone and allow the courts to do their job. MR. MICHAEL JOHNSTONE testified via teleconference from Los Angeles, but said he had lived in Alaska for 23 years. MR. JOHNSTONE is the head of a ministry dedicated to providing a Christian view of homosexuality, and helping individuals who decide to reject homosexuality. His ministry was founded in Alaska. He serves on the board of the National Legal Council as well as the Steering Committee for the National Campaign to protect marriage. MR. JOHNSTONE stated he is a former homosexual, having rejected his homosexuality in 1998. He is HIV+ and developed AIDS in 1997. MR. JOHNSTONE said that the idea of rejecting same sex marriage in terms of public policy is well entrenched, with 28 states already having adopted legislation to prohibit the redefining of marriage. He said the public is clearly against such a change, some would say due to mass homophobia or mean-spirited religious bigots who want to stomp on the freedoms of others, he says it is because people instinctively understand that to redefine marriage is to destroy it and to destroy marriage is to destroy the structure and meaning of families, the glue that bonds society together. MR. JOHNSTONE said despite the best intentions of some homosexuals to replicate the family, they simply cannot, as the family bond is rooted in the ability to create life. MR. JOHNSTONE said if traditional marriage is the superglue of society, same sex marriage and the counterfeit homosexual family is merely white paste. He said same sex marriage is an experiment being played out by intellectual elites and social scientists. He says we have been down this road before, experimenting with marriage and the family through no-fault divorce, which has resulted in destroyed homes, fatherless children and serial marriages. MR. JOHNSTONE said those who utilize the courts in an attempt to thwart the fundamental understanding of the public are the same people whose sexual philosophy is anti-family and anti-children, and who envision a future that embraces the idea that all sex is good and healthy recreation, without norms. MR. JOHNSTONE said their belief is truly in sexual freedom and the ultimate extension of this would be incest, pedophilism and other aberrations. MR. JOHNSTONE concluded that the traditional family is the foundation of strong society and deserves special social privileges, providing fulfillment of important functions such as procreation, education, protection and provision. He commented that the right to privacy is not an absolute, and the state must foster and protect the institution of marriage, as it has through the ages. He believes this amendment does that. MS. LIZ DODD, a local Juneau resident and representative of The Alaska Civil Liberties Union (ACLU), said she was somewhat amused to hear SENATOR LEMAN saying Alaska should defer to the federal government on this issue. She hadn't counted him among those who deferred to federal authorities on such things as subsistence, management of the Tongass National Forest and others. She said she grew up in Alaska and has seen a tendency to try and maintain freedom from federal interference to the greatest extent possible. MS. DODD also remarked that it was interesting that SENATOR LEMAN had brought a key person from out of state to comment on this bill, specifically from Utah. She commented that Alaska is not Utah. Alaska is governed by a wonderful, carefully deliberated Constitution crafted by great minds; she said we should not usurp that work without thinking long and hard about it. MS. DODD asked why this proposed amendment would be added to the back of the Constitution rather than being included in Article 1, Section 1, the declaration of rights. LIZ DODD said this amendment seems to make a cataclysmic change to that section of inherent rights, critical rights. These rights affirm that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the rewards of their own industry; that all persons are equal, and entitled to equal rights and opportunities under the law. MS. DODD said the amendment before them drops a footnote to this section excluding some people from its protection when it comes to marriage. She believes this is a dangerous leap, and once it has been made it may never end. She said regardless of a person's belief in same-sex marriage, anyone who cares about the Constitution should be worried that, when a piece of legislation was found to be unconstitutional, this Legislature tried to go back and change it. MS. DODD said, growing up in Juneau, she encountered a lot of strange people, but was trained by her parents to leave people alone. She agreed that it will be a big deal if the state allows same-sex marriages, but explained that this change is coming and why shouldn't it come first in the state that most prizes individual rights and where a person can live and let live. She said she did not hold out much hope, but urged the committee to come to their senses and reject this bill. CHAIRMAN TAYLOR asked MS. DODD how she could characterize this as a cataclysmic change when there has never been a different interpretation than this amendment assumes. LIZ DODD replied that there had never been a challenge to this assumption previously, as far as she knew. CHAIRMAN TAYLOR argued that there had been a ruling on benefit packages for same sex couples. He added that the courts do not have a monopoly on interpretation of the Constitution, as the Legislature must do it daily. MS. DODD said what she meant was that it is an unprecedented idea, as far as she knows, to take away from Article 1, Section 1, the inherent rights of people. She said this amendment nullifies the concept of inherent rights and allows for an exception that says only some people are equal. She said this is a big change for Alaska and that is why she used the term cataclysmic. SENATOR LEMAN agreed that the change could be made to Article 1, Section 1, but the drafter of the legislation was the person who chose where it would be included. SENATOR LEMAN clarified that this is not his bill, but a resolution, which he supports, by the SENATE HESS COMMITTEE, the true sponsor of the legislation. He also remarked that he did not invite PROF. WARDLE, nor did he pay for his trip, and had only met him that very day. Having said that, he expressed appreciation for the Professor's testimony and his knowledge of the issue. SENATOR LEMAN also mentioned an article, written by MS. DODD, in which she referred to him as a "moralist extremist," saying if he is extreme, along with the 80 per cent of Alaskans who believe in traditional marriage, she should not be worried about the amendment, since the people of Alaska would not support it. SENATOR LEMAN said he is not the aggressor in this case, he is only trying to defend the institution of marriage and put it in the Constitution so a judge cannot misinterpret it. MS. DODD asked to respond, and said the reason she referred to SENATOR LEMAN as an extremist, is because a state legislator should defend the Constitution, not the Bible. She clarified that she was not making a personal attack on LEMAN, only meant to defend against his attack on our Constitution. MR. TOM GORDY, state Chairman of the Christian Coalition, said this decision has opened up a can of worms that could destroy the traditional meaning of marriage as we know it. MR. GORDY referred to several portions of the decision and commented that the decision is what brought everyone there today and necessitated a constitutional amendment. He said the state already has laws prohibiting bigamy and incest, and asked if these prohibitions implicate the right to privacy. MR. GORDY asked if we were prepared as a state to recognize multiple person marriages or incestuous marriages. He said he sees on t.v. sickening things that are being done in our society and added that they will be pushing for these rights, all of which are possible due to this decision. MR. GORDY asked how we keep these things from happening as a result of a liberal judicial system seeking to legislate rather than interpreting laws. He said we must change the Constitution to avoid the crumbling of our society. He suggests we learn from history, saying every single society who has weakened marriage or even eased divorce all came crumbling down. He urged the committee to pass the bill in order to preserve the sanctity of marriage and protect our society. SENATOR MILLER moved amendment #1. SENATOR ELLIS objected to ask what the purpose of the amendment is. SENATOR MILLER said it just cleans up the language. SENATOR PARNELL asked if the new work draft had been adopted and CHAIRMAN TAYLOR said it had not and asked SENATOR MILLER to remove his motion in order to do so. SENATOR MILLER withdrew his motion and SENATOR PARNELL made a motion to adopt the work draft (version "E") as a judiciary committee substitute. SENATOR ELLIS objected, asking what the changes from the previous version are. SENATOR LEMAN said it is an attempt to clarify and ensure the amendment covers what it is intended to do. SENATOR LEMAN said the amendment to the amendment just clarifies things further with some simplified language. SENATOR ELLIS asked about MS. DODD's question about the placement of the amendment. He asked if there was any difference in weight given to any section of the Constitution due to its placement and CHAIRMAN TAYLOR replied that everything in the Constitution is given equal weight, regardless of location. CHAIRMAN TAYLOR asked if there was objection maintained to the work draft and SENATOR ELLIS said there was. Roll call was taken and the work draft was adopted. SENATOR MILLER moved the amendment and SENATOR ELLIS objected, again commenting on what he saw as a false time constraint imposed by CHAIRMAN TAYLOR. SENATOR ELLIS also said there was insufficient time for people around the state to receive the relevant materials and he believed it to be an uninformed decision. He cited these as reasons why he needed to object every chance he could. SENATOR MILLER remarked that the public will have the ultimate input, on the November ballot, if this amendment goes forward. SENATOR ELLIS replied that it is the job of the committee to scrutinize and discuss these issues, and to push it through so quickly in the space of one hearing does a disservice. He said they are not really giving it the consideration it deserves. SENATOR ELLIS said it is all very transparent and rushed and he does not believe the committee is doing an adequate job. CHAIRMAN TAYLOR remarked they had spent an hour and 25 minutes on the matter and he did not consider that rushed. He said the concept is not rocket science. CHAIRMAN TAYLOR commented that they had testimony where every person in the room indicated they were going to say the same thing. He said, in the room, there were three or so witnesses in support and probably 15 in opposition. He concluded that the testimony, in his opinion, was becoming repetitive and there reaches a certain point where additional testimony is going to do very little to embellish something that has repeatedly been said before. SENATOR ELLIS countered that people on both sides of the issue had taken off work and changed their schedules in order to testify and in normal conditions would have been heard. CHAIRMAN TAYLOR said he was acting out of courtesy to people waiting to be heard on some other matters that were supposed to come up. Roll call was taken on the amendment and the amendment was adopted. SENATOR MILLER moved CSSJR 42 out of committee with individual recommendations and SENATOR ELLIS objected, saying he thinks those supporting the bill would be better off doing what the judge asked them to do, and show the judge a compelling state interest. SENATOR ELLIS noted that if SENATOR LEMAN and the witness from Utah are correct, it would be easy to prove and that is where they should direct their energy and not attempt to subvert the court decision. He said that this constitutional amendment seems like the easy way, and when the decision was handed down he thought there would be work by the sponsors to show the state's compelling interest. CHAIRMAN TAYLOR asked what he suggested be done and SENATOR ELLIS said the legal experts know what is required, he envisions the marshaling of opinions. CHAIRMAN TAYLOR asked if this wouldn't be done in the appeals process, and did he believe legislation was necessary. SENATOR ELLIS replied he was not sure. SENATOR LEMAN said SENATOR ELLIS had referred to him and indicated that he participate in showing a compelling a state interest. He stated he has not at all been involved in this litigation, but does support a resolution introduced by the HESS committee regarding this matter; specifically SCR 25. With no further discussion, once again the roll was called and SJR 42 moved from committee. CHAIRMAN TAYLOR announced SCR 25 as the next order of business. SCR 25 - APPEAL OF MARRIAGE DECISION SENATOR LEMAN said his opening comments on SJR 42 also apply to this bill and he had no further comment. He did recommend an amendment to the committee. CHAIRMAN TAYLOR asked if the appeal has yet been filed. SENATOR LEMAN said he understood it would be filed today. CHAIRMAN TAYLOR asked for testimony on SCR 25 and there was none. He did note that several opponents of SJR 42 indicated that the matter should be left up to the court, CHAIRMAN TAYLOR suggested they would support this resolution. SENATOR MILLER moved amendment #1 and SENATOR ELLIS objected for the purpose of an explanation. SENATOR MILLER replied it looked self-explanatory. CHAIRMAN TAYLOR asked about the phrase "bearing in mind that this is a court authorized by the people." SENATOR ELLIS commented it is apparently not all that self-explanatory. SENATOR LEMAN said he believed that the Supreme Court must be contemplative in deciding this. Number 120 MR. MIKE PAULEY, staff to SENATOR LEMAN, said the amendment is technically inaccurate as there is not yet an appeal in progress, he said the revised language is more appropriate. He said the phrase "bearing in mind it is a court authorized by the people" simply speaks to the issue that it is a discretionary matter and the court does not have to take it up, but given the great social and legal ramifications, the public has an interest in the court granting review, which they do not have to do. SENATOR PARNELL suggested removing that phrase, as the court is well aware of that fact and to be expressly reminded of it might generate some negative connotations and detract from their goal. SENATOR PARNELL moved this as an amendment to the amendment: the deletion of the phrase "bearing in mind it is a court authorized by the people." Without objection, it was so ordered. CHAIRMAN TAYLOR said that brought back the original motion, the passage of Amendment #1 as amended. SENATOR ELLIS maintained his objection, roll was called and the amendment (#1) was adopted. SENATOR MILLER moved SCR 25 out of committee out of committee with individual recommendations. SENATOR ELLIS objected, roll was called and SCR 25 moved out of committee with individual recommendation. SB 201 - PROHIBIT RECOVERY BY WRONGDOER CHAIRMAN TAYLOR announced the continuing inquiry into the time line report received last week from the Legislative Budget and Audit Committee. CHAIRMAN TAYLOR called MR. LARRY CARROLL to testify. MR. CARROLL came forward and said he was with the Division of Banking, Securities and Corporations (BSC) for 22 years and was the senior examiner at the time of the World Plus, Incorporated (WPI) matter. He said he is somewhat constrained by confidentiality and certain aspects of the case may best be discussed in a private session with the committee. CHAIRMAN TAYLOR responded that he would like to keep the hearing open as long as possible. MR. CARROLL replied his only concern was for certain people's personal finances, which should not become public record. CHAIRMAN TAYLOR asked if MR. CARROLL had had a chance to review the time line provided by the auditors, saying there was concern on the part of the committee based on this document. CHAIRMAN TAYLOR expressed concern that it had been reported to him that the events that had transpired may have affect his perception of his ability to continue in state employment. CHAIRMAN TAYLOR, commending MR. CARROLL as a person of high integrity, wanted to give MR. CARROLL the opportunity to comment on that. MR. CARROLL said reasonable people may disagree on courses of action, and his determination to undertake or refrain from an investigation may have been different from another persons, but this decision was the purview of the Department of Law. He said he did not agree with the decision to leave the matter to the federal investigators. MR. CARROLL said he tried to persuade the Attorney General to agree with him and failed to do so. MR. CARROLL said he was not satisfied with the ongoing federal investigation, but thinks the Attorney General acted in good faith based on the information that he had. MR. CARROLL understood that simultaneous investigations can interfere with each other, but liked to think that with some discretion, a state case could have been pursued. MR. CARROLL said Alaska statute does not allow for the return of investors' funds, as there is no possibility for rescission. MR. CARROLL said the state did do a number of things in the World Plus matter. He indicated that there was careful scrutiny of registered individuals dealing with WPI and one person received a letter of sanction, while another was suspended and fined. MR. CARROLL said he contacted the U.S. Securities and Exchange Commission, who then traveled to Fairbanks and eventually issued an injunction. Mr. CARROLL said that the Attorney General had assured him that if the federal government did not follow through and deliver justice, he would revisit the matter. LARRY CARROLL said, having done what they could do, his division stepped back. He also said the evidence he obtained was not tainted by the quashed subpoena, like the other evidence previously amassed. CHAIRMAN TAYLOR clarified that no state action was brought and again asked MR. CARROLL if that lack of action affected his view of his job. MR. CARROLL replied probably not. He cited the generous Retirement Incentive Program offered at the time as his temptation to leave, although he said he certainly was not pleased that the state did not go forward with charges. MR. CARROLL said that the first wave of investors they contacted wanted the scheme to go forward so they could get paid. He said a big part of the propaganda surrounding this scheme was "don't tell anyone about any of this." He said he understands that there is a group of investors in Fairbanks suing the state so he wouldn't say anything further, on the advice of counsel. CHAIRMAN TAYLOR asked if the federal authorities had brought in a clean group of people after having recused the first set of investigators. LARRY CARROLL replied that this was true, saying they started over from square one and he provided them with all the information he had. He also said that when the first glimmer of this occurred, around November, he sent a bank examiner up to Fairbanks to help the bankruptcy controller estimate the size of the scheme. He said he was not happy that he was unable to continue with the investigation after having started it. CHAIRMAN TAYLOR inquired if, in his report to the Attorney General, he had recommended state charges different from the federal charges being pursued. MR. CARROLL said he had also recommended charging people with false filings, that is providing sworn information to his division that was untrue. He said none of that would help return money to investors as the money is gone. Number 202 CHAIRMAN TAYLOR understood that the money was gone, but commented that if this woman had been stopped, a new round of Alaskans could have been protected from investing money in her fraudulent scheme. MR. CARROLL replied that the time frame suggests that the state became aware of the alleged violation sometime in 1995 or 1996, when the federal authorities were aware of it as early as 1992, and yet did not make the state aware of it. CHAIRMAN TAYLOR said that MR. CARROLL was aware of problems with WPI also in 1992, as documented in correspondence between his division and the State of Idaho. MR. CARROLL agreed, but said before they approved Ms. Bonham's exemptions, they had representations that all her Idaho accounts were settled and there were to be no further sales of that nature. CHAIRMAN TAYLOR interjected that in fact all of these representations were fraudulent and yet no charges have ever been brought against the attorney that submitted them. LARRY CARROLL said this was true, but believed he was currently under suit by the bankruptcy trustee. CHAIRMAN TAYLOR stated that he was glad someone had cleaned house and actually gone out and attempted to protect the people. He said his main concern was the audit he received which reported that the Attorney General was not sufficiently independent to make this determination and should seek an independent prosecutor to make recommendations on these offenses. CHAIRMAN TAYLOR expressed concern that the statute of limitations might have passed on infractions by state employees who deceived MR. CARROLL's division. MR. CARROLL replied that the Securities Act was good for three years from the infraction and he agreed that CHAIRMAN TAYLOR may be correct. CHAIRMAN TAYLOR asked if the federal government is prosecuting Ms. Bonham for bad checks. LARRY CARROLL did not know, but said she did issue bad checks. CHAIRMAN TAYLOR asked the amount and MR. CARROLL said she did have an account she ran money through that ended up about $80,000 overdrawn. SENATOR WARD asked for clarification that LARRY CARROLL had spoken to the A.G. and was told that if the federal government did not come through he would pursue charges. MR. CARROLL explained that what the Attorney General said was he would revisit the issue. SENATOR WARD said he must have known that there was an issue, and asked MR. CARROLL if he knew who had advised the Attorney General to do this. MR. CARROLL said SENATOR WARD would have to ask the Attorney General himself, but did know that he relied heavily on his deputy, Lori Otto. SENATOR WARD said so it was Lori Otto who advised him and MR. CARROLL repeated that SENATOR WARD would have to ask the Attorney General. He did say Ms. Otto told him they ran a great risk of "screwing up" the federal investigation if they went forward. LARRY CARROLL said other things she said were best discussed outside of the public domain. CHAIRMAN TAYLOR said he would like to keep the proceeding open to the public as long as possible but understood they were likely going to end up in executive session. MR. CARROLL mentioned that Ms. Otto was his attorney at the time and CHAIRMAN TAYLOR added that, tragically, she was also the attorney for all the victims in the state and they person they had to rely upon to protect them from a fraudulent perpetrator like Ms. Bonham. MR. CARROLL said he did not argue with this. CHAIRMAN TAYLOR replied that the most troubling part was the question of why they chose not to go forward. CHAIRMAN TAYLOR said, if they were to believe the words of the Attorney General as quoted in the Daily News-Miner, the investigation did not go forward because there were too many of their own people involved in the scheme. LARRY CARROLL agreed there were a number of them involved. CHAIRMAN TAYLOR said the feds also ran into the same problem of having investigators involved, but they did the right thing by recusing their people and bringing in new people to prosecute the case. CHAIRMAN TAYLOR noted that they then had to rely on the work done by MR. CARROLL and was glad no one in his department had suggested they back off and not investigate in order to spare some state employees. LARRY CARROLL said, to the contrary, he distinctly recalls the Director saying to Ms. Otto, "we are not going to ignore our law". CHAIRMAN TAYLOR asked why he would have made this statement to Ms. Otto, and MR. CARROLL said in response to her opinion that there was no need to proceed as there was a parallel proceeding already underway. CHAIRMAN TAYLOR asked if MR. CARROLL knew for a fact that Mr. Kirkpatrick responded to something that indicated he disagreed with Ms. Otto and would proceed with an investigation. CHAIRMAN TAYLOR asked if Mr. Kirkpatrick was asked to back off or told that he should do so. LARRY CARROLL said he was privy to this conversation and, though not quite in this context, he thinks the rationale was that the continued investigation could cause problems with the federal proceeding especially in aspects such as immunization of certain people. CHAIRMAN TAYLOR commented that this would only be important if someone was trying to protect a person involved in the scheme, probably a state employee. CHAIRMAN TAYLOR said all the people involved in the case essentially ended up with total immunity due to the fact that someone decided not to prosecute. CHAIRMAN TAYLOR noted that Mr. Hompesch did not appear to be a victim in the scheme; MR. CARROLL replied that Mr. Hompesch had told him he was "equally bamboozled" by Ms. Bonham and that she had lied to him as well. CHAIRMAN TAYLOR asked MR. CARROLL if, in the process of conducting his investigation, he received any unsolicited endorsements from Ms. Bonahm's attorney, written by state employees, some of which would be the very same people who would have been prosecuting Ms. Bonham had the Attorney General decided to go forward with the case. LARRY CARROLL said he received 35 such letters and CHAIRMAN TAYLOR said someone had gone out and rounded those letters up, especially from influential folks so BSC would not investigate. LARRY CARROLL said, at that time, the only thing they had considered was remedying the fact Ms. Bonham was selling unregistered securities and then going forward with an exemption. MR. CARROLL said he believes these letters were an attempt to demonstrate that this was a legitimate business enterprise, which turned out to be untrue. MR. CARROLL said, regardless of these letters, his organization moved slowly on the exemption process, in fact, imposing requirements for the filing of quarterly reports. He said these reports were filed and were totally false. CHAIRMAN TAYLOR expressed suspicion regarding these letters, particularly one written by the very person who would have investigated the scheme had it been pursued. CHAIRMAN TAYLOR hypothesized that if he were Ms. Bonham, he might think it was a good strategy to embroil the people who would prosecute him. He might then have them send letters to BSC at the request of his attorney, further entangling those who might prosecute him to the extent that they are in jeopardy of losing their own funds if they do so. LARRY CARROLL said he was also quite concerned with this scenario, and got in a bit of trouble from an indignant Ms. Otto when he chuckled about this very predicament. CHAIRMAN TAYLOR mentioned his additional concern that, after the heat on WPI began to build and further inquiries came in from both the IRS and the SEC (who began putting pressure on Ms. Bonham), Ms. Bonham was writing bad checks as well as witdrawing large sums of cash. CHAIRMAN TAYLOR would like to know if there was any investigation to determine whether there were any significant cash deposits to the accounts of those people who sent in these written endorsements about the same time these letters appeared. LARRY CARROLL replied that the bankruptcy trustee has filed suit against 200-300 investors who had good returns, but there were no subpoena of bank records by BSC. SENATOR WARD asked how much money was invested in WPI after MR. CARROLL recommended to Ms. Otto they pursue an investigation. LARRY CARROLL replied there was none. CHAIRMAN TAYLOR clarified that this type of scheme needs a tremendous amount of money to flow in continuously in order to pay off previous investors. MR. CARROLL said it needed to double. CHAIRMAN TAYLOR asked if those people who knew Ms. Bonham was under suspicion and wrote a letter to BSC did not benefit by assuring continued investment and their own payoff in this scheme. MR. CARROLL said, for the purposes of discussion, they should assume the people who wrote the letters did so in good faith in response to a request. Mr. CARROLL said, assuming all this, what Ms. Bonahm had done with the letters is known as "lulling", meaning lulling new investors into her scheme on the strength of these letters. MR. CARROLL said the letters absolutely did help perpetrate the scheme, but that he did not know that the people who wrote the letters knew, at the time, that it was a scheme. CHAIRMAN TAYLOR noted that no one has checked to see if, as the scheme began to crumble, these peoples' bank accounts ballooned. Again Larry Carroll expalined that the rationale was that there was an ongoing federal investigation and the guilty parties would be held accountable. He said those were the instructions received form the Department of Law. Additionally, he said there is a letter to that effect the committee may want to look at. CHAIRMAN TAYLOR asked if this letter was written by Ms. Otto. LARRY CARROLL said it was, and the letter was the result of several discussions with Ms. Otto. CHAIRMAN TAYLOR asked if he could date when the first discussions occurred. MR. CARROLL estimated the discussions began shortly after Thanksgiving 1995 and ran through February 1996. CHAIRMAN TAYLOR asked when WPI was shut down and MR. CARROLL replied it was late November of 1995, to the best of his recollection. SENATOR WARD commented that it had just occurred to him that a letter from a prosecutor endorsing this deal would be a heck of a selling tool. SENATOR WARD asked if Ms. Otto solicited these letters and MR. CARROLL said he presumed the letters were solicited by Ms. Bonham or Mr. Hompesch, and in fact Ms. Otto did not now anything about them until informed by BSC. CHAIRMAN TAYLOR asked if, during the course of an investigation, MR. CARROLL found someone in his department was involved in a fraudulent scheme, would he not recuse that employee immediately. LARRY CARROLL affirmed he would absolutely recuse that employee immediately. CHAIRMAN TAYLOR then asked if he would stop his investigation because of it and MR. CARROLL said he would not. LARRY CARROLL said in discussion with the Attorney General, he asked what he should say if calls came in asking why the investigation was not being pursued, and the Attorney General said he would field those calls and he did. CHAIRMAN TAYLOR asked if BSC had received calls prior to the Master of Bankruptcy shutting Ms. Bonham down. LARRY CARROLL recalled only one investor calling, who was having trouble transferring his note. MR. CARROLL said it was a firm rule of Ms. Bonham that no investor talk about the scheme. He said when people did began to talk, BSC heard her four basic stories that she sold to investors. MR. CARROLL said he doesn't know what she thought was going to happen, as there was no legitimate business enterprise underlying the scheme. MR. CARROLL explained that BSC had no idea the whole thing was so huge, they honestly believed it was limited to 15 investors dealing in airline mileage. SENATOR WARD said he has been contacted by people who believe that the state somehow held this whole thing together until prominent people like lawyers and judges got their money and then allowed the scam to fall apart. MR. CARROLL said, indeed, some of the people who won big were prominent in Fairbanks. He did not go so far as to agree with SENATOR WARD's statement, saying some of these people also rolled over their money and lost. MR. CARROLL agreed with CHAIRMAN TAYLOR's conclusion that to to really find out who won and who lost would take a great deal of investigation. He did say they had an open and shut case against Ms. Bonham. CHAIRMAN TAYLOR clarified that MR. CARROLL was told by the A.G. that if the federal authorities failed to catch the perpetrators, he would revisit the case. MR. CARROLL agreed this was what had transpired, and he was concerned about the direction of the case as the search warrant had been quashed and the evidence was delivered back to Ms. Bonham and he was not comfortable leaving the investigation in their hands. CHAIRMAN TAYLOR explained that he was concerned about the extent to which BSC relied on these endorsements submitted by state employees. He said it seemed there was a plethora of state laws violated and the only person now being prosecuted is Raejean Bonham. CHAIRMAN TAYLOR asked MR. CARROLL if, when he got that committment from the A.G., he thought additional players would be prosecuted. LARRY CARROLL said yes, to the extent that there were other culpable players involved. MR. CARROLL indicated he hypothesized that other people might have some problems that would come to light in an investigation. He stated this, also, "did not sit well". TAPE 98-16, SIDE B Number 001 CHAIRMAN TAYLOR asked to whom MR. CARROLL was referring by this last comment and LARRY CARROLL replied he meant Ms. Otto, who suggested he "be careful" making those types of styatements. He said he indicated he was speaking to her as his lawyer. CHAIRMAN TAYLOR asked if she told him to "be careful" about investigating state employees and MR. CARROLL clarified she said to "be careful" about making a statement implying the possible guilt of state employees. CHAIRMAN TAYLOR said it was, though, ok to make the statement that Raejean Bonahm was culpable and MR. CARROLL said it was already apparent, through a preponderance of the evidence, that she was implicated. MR. CARROLL said he still does not know if there is anyone else who may be culpable, due to the fact that there was no further investigation of the matter. He again suggested that the committee look at the letter sent to the division, which clearly sets out instructions given to employees of the Department of Law. He stated very clearly that he is not accusing anyone of anything, and indicated to CHAIRMAN TAYLOR that they may be getting into that grey area he hoped to avoid. CHAIRMAN TAYLOR thanked MR. CARROLL for his testimony. LARRY CARROLL expressed appreciation for the opportunity to speak. He said the division does a lot of good work and catches a lot of bad guys. He said this scam turned out to be one of the biggest, and was taken over by the feds who finally completed it. He said he is sorry for the people who lost their money and he is glad to have aided the federal investigation. He concluded by saying he makes no apologies for what he did and CHAIRMAN TAYLOR replied that he hopes others will be able to make that same statement. CHAIRMAN TAYLOR said the Legislative Auditors had been authorized to do an audit of BSC and the Department of Law relating to their decisions surrounding this case. He hopes to see a preliminary report in 30 days, and indicated that, at that point, it may be necessary to go into executive session. MR. CARROLL remarked he wanted to be clear that he is no longer affiliated with BSC, and that he is not a spokeman for them. CHAIRMAN TAYLOR aknowledged this was understood and, with no further business to come before the committee, adjourned the meeting at 4:02.