02/24/2021 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Presentation: History of Pandemics | |
| SB14 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 14 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 24, 2021
1:32 p.m.
MEMBERS PRESENT
Senator Lora Reinbold, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Jesse Kiehl
MEMBERS ABSENT
Senator Robert Myers
COMMITTEE CALENDAR
PRESENTATION: HISTORY OF PANDEMICS
- HEARD
PRESENTATION: COVID-19 & COURT CASES
- HEARD
SENATE BILL NO. 14
"An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 14
SHORT TITLE: SELECTION AND REVIEW OF JUDGES
SPONSOR(s): SENATOR(s) SHOWER
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) JUD
02/03/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/03/21 (S) Heard & Held
02/03/21 (S) MINUTE(JUD)
02/05/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/05/21 (S) Scheduled but Not Heard
02/10/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/10/21 (S) Heard & Held
02/10/21 (S) MINUTE(JUD)
02/12/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/12/21 (S) Heard & Held
02/12/21 (S) MINUTE(JUD)
02/15/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/15/21 (S) Heard & Held
02/15/21 (S) MINUTE(JUD)
02/17/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/17/21 (S) Heard & Held
02/17/21 (S) MINUTE(JUD)
02/22/21 (S) JUD AT 1:30 PM BUTROVICH 205
02/22/21 (S) Heard & Held
02/22/21 (S) MINUTE(JUD)
02/24/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
DAVE BARTON, Historian
Wallbuilders
Joplin, Texas
POSITION STATEMENT: By invitation, presented a PowerPoint on the
History of Pandemics.
PHIL KLINE Professor; Director
Amistad Law Project
Liberty University School of Law
Thomas More Society
Amherst, Virginia
POSITION STATEMENT: By invitation, presented a PowerPoint on
COVID-19 and Court Cases.
ACTION NARRATIVE
1:32:21 PM
CHAIR LORA REINBOLD called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Shower, Kiehl, Hughes, and Chair Reinbold.
^PRESENTATION: HISTORY OF PANDEMICS
PRESENTATION: HISTORY OF PANDEMICS
1:33:32 PM
CHAIR REINBOLD announced the consideration of a Presentation on
the History of Pandemics. She reviewed a brief bio for Mr.
Barton.
1:35:02 PM
DAVE BARTON, Historian, Wallbuilders, Joplin, Texas, via
teleconference, stated that Wallbuilders has over 120,000
original documents from prior to 1812 to WWII and beyond. He
offered his view that the new trend in education standards calls
for removing studies of American wars from the American
Revolution through WWII.
1:36:37 PM
MR. BARTON began his PowerPoint by stating that America has
suffered a major pandemic about every 15 years for the last 400
years. He highlighted the low COVID-19 mortality rate of .15
percent as compared to the smallpox epidemic in the 1600s, with
a mortality rate of 70 percent.
1:38:06 PM
At ease
1:43:39 PM
CHAIR REINBOLD reconvened the meeting.
1:44:14 PM
MR. BARTON repeated the statistics on slide 2 related to the
mortality rate of COVID-19. New York City's COVID-19 mortality
rate of 3.5 percent was 20 times higher than the national rate.
The world has had many pandemics, including scarlet fever in the
1850s, diphtheria from the 1600s to 1921, measles in the 1980s,
polio in the 50s, the Spanish flu of 1918, the Asian flu of
1957, the Hong Kong flu in 1968, and the Swine flu in 2009.
Except for the Swine flu, all of these pandemics had a much
higher mortality rate than COVID-19.
1:46:48 PM
MR. BARTON offered his belief that many pandemics have
intersected with legal principles. He stated that Federal
Practice and Procedures, Volume 30 devotes nearly 25 pages to
the history of due process. He offered his belief that the
source of many constitutional clauses for due process is the
Bible, particularly Proverbs verse 18:17, which read, "One side
sounds right until the other side is heard." That provides the
basis for the adversarial system in America, he said.
1:48:07 PM
MR. BARTON referred to the Great Barrington Declaration, which
he said provides another viewpoint on COVID-19. Its website has
hundreds of thousands of followers, he said. He expressed
concern that "big tech" has deemed the Great Barrington
Declaration view unsubstantiated. The debate is between public
and private sector health approaches.
MR. BARTON stated that the Centers for Disease Control (CDC) by
its own admission, has inflated its numbers. He said he was
unsure if this was true, but it was worth discussing.
1:49:50 PM
MR. BARTON reviewed public health history to illustrate that the
medical community does not always recommend the right approach.
In 1831, fire was the highest cause of death. He said an article
on the preservation of human life in cases of fire that cited
the benefits of a fireproof suit consisting of a fireproof mesh,
gloves, and boots made from asbestos used to rescue people
appeared to save lives. The dangers of using asbestos were
unknown at the time.
MR. BARTON said a medical journal also recommended people
suffering from heatstroke avoid drinking cold water because they
might die. Although that advice is not accurate, it is where
medicine was at the time.
1:52:19 PM
MR. BARTON said the same types of problems have occurred with
COVID-19. Many other states are taking a different approach from
Alaska. Florida's governor stated their schools would not close.
Other governors have done the same. Population density is a
great contributor to COVID-19. However, Florida is a densely-
populated state yet, currently, Florida is 33rd out of 50
states, with its cases plummeting over the last few months. He
wondered if that approach might be the right one.
1:53:13 PM
MR. BARTON highlighted the governmental impact related to COVID-
19. He offered his belief that COVID-19 has directly affected
the Bill of Rights, which consists of the first ten amendments
to the US Constitution. He said the Second and Third Amendments
of the US Constitution have also been affected by the
government's decisions. He referred to a newspaper article [not
cited] that indicated a California church was fined $2,000 for
holding indoor worship services. That church faces $2 million in
fines for exercising its First Amendment rights. However, the US
Supreme Court ruling in a lawsuit brought by South Bay United
Pentecostal Church in Chula Vista struck down the governor's
rules forbidding indoor services because it violated First
Amendment rights. In 1866, the US Supreme Court addressed a
question about which constitutional rights could be suspended
during a crisis. He read from ex parte Milligan:
The Constitution of the United States is a law for
rulers and people equally in war and in peace. It
covers with a shield all protections and all classes
of men at all times and under all circumstances. No
doctrine, involving more pernicious consequences, was
ever invented by the wit of man than that any of its
provisions can be suspended during any of the great
exigencies of government. Such a doctrine leads
directly to anarchy or despotism, but the theory of
necessity on which it is based is false
1:55:11 PM
MR. BARTON referred to a September 14, 2020, ruling by US
District Court Pennsylvania Judge William Stickman in County of
Butler v. Wolf regarding stay-at-home orders. He read a portion
of the ruling:
Broad population-wide lockdowns are such a dramatic
inversion of the concept of liberty in a free society
as to be nearly presumptively unconstitutional unless
the government can truly demonstrate that they burden
no more liberty than is reasonably necessary to
achieve an important government end.
MR. BARTON stated that there have been hundreds of lawsuits
related to COVID-19.
1:56:04 PM
MR. BARTON pointed out that power struggles between branches of
government are not new, including debates between governors and
secretaries of state or governors and legislatures. He read a
quote from the Bill of Rights Institute, founded by the Koch
Foundation, about the Federalist Papers, a series of eighty-five
essays urging the citizens of New York to ratify the US
Constitution, "The Federalist Papers were considered to be the
most authoritative constitutional commentary."
1:57:30 PM
MR. BARTON referred to the Federalist Papers No. 50 and 78,
which indicate that in a republican form of government the
legislative authority necessarily predominates. He argued that
it is hard to think of the three branches of government as co-
equal if one predominates.
1:58:33 PM
MR. BARTON quoted from philosopher, John Locke's Second Treatise
of Civil Government: "This legislative is not only the supreme
power of the common-wealth, but sacred and unalterable in the
hands where the community have once placed it; ?." He said the
legislature does not have the right to give this power away.
MR. BARTON went on to say that James Otis, Jr., John Adams,
Alexander Hamilton, and James Madison all supported legislative
power as being sovereign and supreme over the other branches of
government.
MR. BARTON said legislative supremacy had been tested under
COVID-19. He said there is no way to know what direction it will
take. However, there is pushback from legislatures trying to
regain their power. There is more pushback from some states than
others.
2:02:54 PM
CHAIR REINBOLD remarked positively on the presentation.
2:05:43 PM
SENATOR HUGHES said many states are grappling with COVID-19.
Once power is relinquished, it is hard to pull it back. She said
the disaster declarations granted broad powers to the executive
branch. The legislature can amend the statutes to put in checks
and balances. For example, the legislature has the authority to
extend disaster declarations. Further, the governor could issue
a mandate in an emergency, but the legislature could decide to
sunset it. She asked what other states have done with respect to
their disaster statutes. She expressed an interest in reviewing
other states' statutes.
MR. BARTON responded that Texas represents the worst-case
scenario because it has a biennial session. The Texas
Constitution does not provide a means for the legislature to
call itself back into session, so Texas must determine if it can
do so. He reported that the governor spent $10 billion in
unappropriated funds and the legislature must consider how to
limit the governor's actions and reappropriate funds.
2:08:35 PM
MR. BARTON explained that during the Cold War, many states
enacted emergency powers. These emergency powers were intended
to be in effect until their legislatures were back in session
and were not designed for shutdowns lasting eight or nine months
or longer. Some states, such as Illinois, require legislative
approval every 30 days to continue any emergency declaration.
Other states, such as Oklahoma and Arkansas, seek to limit
disaster declarations to three days. This raises questions as to
whether financial limits can be imposed and whether federal
COVID-19 funding needs to go through the legislature for
appropriation. He predicted that some governors might veto bills
to retain power. However, it will take time for states to go
through various processes, including veto overrides. Thus far,
states have taken wide-ranging approaches to COVID-19 issues.
For example, many legislatures seek to regain power, set time
limits on declarations, disperse funding and conduct fund
tracing.
2:12:28 PM
SENATOR KIEHL asked if he was involved in efforts to remove
Cesar Chavez or Thurgood Marshall from Texas history books.
MR. BARTON answered no. He said he supported moving this type of
history to civics lessons.
2:13:19 PM
SENATOR KIEHL asked if his book [title not identified] was
withdrawn or recalled by the publisher for historical
inaccuracies and misstatements.
MR. BARTON answered no. He said his book [not identified] was
not pulled for that reason, but rather due to a change of
publishers. He said it had stood the test of time.
2:13:53 PM
SENATOR KIEHL asked if he knew the difference between the
mortality rate, which he listed at 0.15, and the case fatality
rate, which is 1.8 percent for COVID-19.
MR. BARTON said the figures are still low. He explained that the
mortality rate is based on a total of all of the people in the
US compared to all of the deaths.
2:14:33 PM
SENATOR KIEHL noted that it isn't possible to compare mortality
rates for pandemics that have ended with rates for pandemics
that are ongoing. He asked the Chair to distribute his questions
for Mr. Barton and the source material to be distributed to
members and posted to BASIS for the record.
CHAIR REINBOLD responded that she would discuss his request at a
future time.
2:15:02 PM
SENATOR SHOWER asked if any other states were asserting their
legislative authority on judicial appointments.
MR. BARTON answered that many states are doing so to some
degree. He reported that the Missouri Plan was adopted in whole
or in part by 24 states. He said Wallbuilders has posted an
extensive report on the Missouri Plan on its website that
highlights which elements were adopted by each state. One issue
with the Missouri plan is that the courts have become more elite
in every state, and the judiciary has become more untouchable
and unaccountable. He characterized the modified Missouri plan
as "Missouri light." Thus, some states are moving to allow the
voters to elect their judges or to involve the legislature in
the process. As the founding fathers pointed out in the US
Constitution, the judiciary does not exist as a separate branch
because its members are chosen by the president and confirmed by
the legislature, he said. The justices cannot place themselves
on the court, so they depend on the other two branches for their
existence.
2:18:17 PM
SENATOR HUGHES highlighted his concern that some governors might
veto the bills passed by legislatures to address checks and
balances in their disaster statutes. She said she hopes Governor
Dunleavy will work with the legislature and not veto any efforts
to address this issue. The governor will recognize the
importance of legislative supremacy.
CHAIR REINBOLD echoed Senator Hughes's remarks. She mentioned
her relevant bills before the legislature. She expressed concern
about the governor's actions taken this summer on disaster
declarations. She highlighted the current tension between the
executive branch and the legislative branches of government in
Alaska.
PRESENTATION: COVID-19 & COURT CASE
2:22:39 PM
CHAIR REINBOLD announced consideration of the Presentation on
COVID-19 and Court Cases by Phil Kline.
2:23:57 PM
PHIL KLINE Director, Amistad Law Project, Professor, Liberty
University School of Law, Thomas More Society, Amherst,
Virginia, clarified he is not associated with Liberty Counsel.
He said the Amistad Law Project has been involved in litigation
for the past 18 months related to the perpetual use of emergency
police orders by executives throughout the nation.
2:24:36 PM
MR. KLINE stated that in 1989 then-Supreme Court Justice
Thurgood Marshall wrote in his dissenting opinion in Skinner v.
Railway Labor Executives' Association, 489 US 602 (1989),
"History teaches that grave threats to liberty often come in
times of urgency, when constitutional rights seem too
extravagant to endure." He offered his view that political
speeches and gatherings have been silenced and that laws
important to elections were sidestepped and undermined. Some
governors act as though they are above the law, he said. He
stated that liberty not protected in process will become liberty
lost.
2:26:02 PM
MR. KLINE said the Thomas More Society has litigated and
prevailed against governors in Pennsylvania and Michigan. He
advocated for a transparent and open decision-making process. He
characterized science as tools against deadly viruses. Science
should inform elected officials about the exercise of freedoms;
however, it is not the sole determinant. When one person makes
decisions behind closed doors, it disenfranchises the public and
elected officials.
MR. KLINE referred to a Pennsylvania case in which US District
Court Judge William Stickman IV issued a decision to strike down
Governor Wolf's proclamation of a disaster emergency to combat
the spread of COVID-19 by imposing limits on gatherings, issuing
stay-at-home orders and mandating closure of some businesses
that were not essential. He read:
Good intentions toward a laudable end are not alone
enough to uphold government action against a
constitutional challenge. Indeed, the greatest threat
to our system of constitutional liberties may arise
when the ends are laudable and the intent is good,
especially in times of emergency. In an emergency,
even a vigilant public may let down its guard over
constitutional liberties, only to find that liberties,
once relinquished, are hard to recoup and that
restrictions run expedient in the face of emergency
situation may persist long after immediate danger has
passed.
2:29:00 PM
MR. KLINE stated that the separation of powers is provided by
the three branches of government to protect individual liberty
and ensure that one ruler could not arbitrarily impose his or
her position and restrict the rights of individuals. He reminded
members that the Declaration of Independence provides core
truths. He read:
We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.
MR. KLINE said this means a person's value in society is
intrinsic and government cannot take it away.
2:30:27 PM
MR. KLINE said the US has enshrined protections in the US
Constitution, including equal protection under the law and
separation of power and due process. The non-delegation doctrine
is a principle in administrative law that states that Congress
cannot delegate its legislative powers to other entities. In
terms of due process, every individual has due process in
procedural law, including the right to counsel and the right to
a hearing. Every individual is also entitled to substantive due
process of law.
2:31:23 PM
MR. KLINE said most decisions by governors related to COVID-19
rely on the US Supreme Court decision in Jacobson v.
Massachusetts (1927). The court upheld the authority of the
states to enforce compulsory vaccination. Because Mr. Jacobson
refused to get the vaccine, he was prosecuted and charged a $5
fine. The law provided exceptions for people with health
conditions which made it harmful for them to get vaccinated.
Over the years, this has meant that the US does not quarantine
the healthy, he said. He opined that most laws that require
quarantining someone require that the individual has been
exposed and might be contagious or ill. In all instances, it
requires that the person have a right to a hearing, counsel, and
a written order and how that order applies, and that governor
should impose the least restrictive measure to protect public
health.
2:33:00 PM
MR. KLINE stated that is not being done today. He listed
instances in which people were quarantined.
He referred to a US Supreme Court case, Buck v. Bell (1927), in
which the court upheld sterilization of the mentally disabled.
He said the defense used this case in the Nuremberg trials.
These cases illustrate instances of quarantine and restriction
of rights of healthy individuals. It represents a dark stain in
our nation's history. He elaborated on these injustices.
2:35:43 PM
CHAIR REINBOLD said the committee was experiencing some audio
problems that might be related to his bandwidth.
2:36:20 PM
MR. KLINE offered his view that emergency orders are so broad in
many states that they control virtually every action of human
relationships. For example, they control whether family members
can visit a loved one dying, attend a graduation or a wedding.
They control whether people are subject to mandated mask or
social distancing policies. When laws are so restrictive, he
said it is impossible to police them. He related some cases
where people have been discriminated against because they dared
to speak up. He related that when a barber in Michigan spoke out
against a mandatory mask order, the government tried to revoke
the barber's professional license and prosecute him. He said the
government must have more faith in its citizenry to allow
freedom to flourish. He said wisdom does not always reside in
the executive branch. He urged Americans to exercise their
freedom because these infringements have gone on for too long.
2:38:52 PM
CHAIR REINBOLD related the COVID-19 restrictions in her
district, such that church services were canceled. She said the
governor's Mandate 16 was used as a guide for restrictions,
including how far apart parishioners must park their cars, mask
requirements they must adhere to, and their interactions with
clergy.
2:40:24 PM
SENATOR KIEHL stated that the US Supreme Court recently ruled in
South Bay United Pentecostal Church v. Newsom that reasonable
restrictions applied to places of worship were constitutional,
including density, singing and chanting. It allowed limiting the
length of time for services. He asked where the courts erred in
interpreting the US Constitution.
MR. KLINE suggested that his interpretation is wrong. The US
Supreme Court struck down some of the orders. He related cases
that his organization had won. The primary concern relates to
orders that appear arbitrary. In those instances, the court has
consistently struck them down. He offered his belief that due to
emergency orders issued, wealth has shifted from the mom and pop
businesses to big technology companies. He said those companies
have political alliances. The US Supreme Court might be
concerned about the duration and may decide these restrictions
should not be in place when the legislature is in session.
2:43:25 PM
SENATOR KIEHL asked if he had a license to practice law.
MR. KLINE responded that his license was suspended.
SENATOR KIEHL said he submitted two articles to the committee
and asked that they be posted to BASIS about Mr. Kline's license
suspension, which was issued, in part, for giving false and
misleading statements to the Kansas courts.
CHAIR REINBOLD offered to hold this discussion offline.
MR. KLINE responded that he disagreed with the Kansas court. He
offered his views on the ways that dissenters are silenced and
his concern that Americans are losing special protections
granted to them in the Bill of Rights. He suggested members
should debate the issues and not the people.
CHAIR REINBOLD said she was currently being attacked politically
by the governor because of her strong opposition to the
governor's disaster declarations. She acknowledged that the US
Constitution provides the rights of debate and due process.
2:46:44 PM
SENATOR SHOWER echoed the concern about the impacts to small
businesses and the disparity in enforcing COVID-19 mandates on
small businesses, many of whom have not survived due to COVID-
19. Further, Alaska's cruise ship industry shut down their
sailings to Alaska due to COVID-19, which has impacted Southeast
Alaska. He asked how the legislature can assert its authority as
the representative voice of the people.
2:49:37 PM
MR. KLINE responded that the legislature could begin by
examining the purpose of government. He said if the primary aim
is to keep people safe, that goal is different from one built on
liberty and freedom. He characterized these actions as
government overreach to keep people safe. He offered his view
that the courts generally will find that legislatures can
delegate their authority to the executive branch. He highlighted
the importance of requiring findings and a reasonable timeframe
for review. Otherwise, the courts will rule that the legislative
action taken was an unconstitutional delegation of legislative
authority.
MR. KLINE asked members to keep in mind the aggregate harm to
the economy by imposing restrictions on businesses. He said it
was excessive for people to lose the opportunity to provide
services or products for over a year. People must assert the
rights of others or their freedoms will be lost, he said. He
predicted that in time the courts or legislatures will rule on
COVID-19 actions.
MR. KLINE said the legislature holding public hearings to
challenge and debate the disaster declarations was an
appropriate response. Some scholars reported three years ago
that lockdowns do not help and are largely unenforceable. In his
experience, he has found that the dominant emotion in the US is
fear, including that small business owners are afraid to
challenge or criticize the government for fear of reprisal.
2:53:08 PM
SENATOR HUGHES said the committee has discussed ways to improve
Alaska's disaster statutes to provide legislative oversight and
additional checks and balances. She asked if he had any
suggested statutory language that could help prevent lawsuits.
MR. KLINE responded that the legislature should provide
transparency, assert legislative authority, and treat people
equally. He highlighted the importance of being accountable to
the public.
CHAIR REINBOLD expressed concern at the vast number of suspended
regulations due to COVID-19, noting that the legislature did not
appropriate the COVID-19 funding or impose its authority on the
mandates and health orders or disaster order extensions issued
by the administration.
SB 14-SELECTION AND REVIEW OF JUDGES
2:58:04 PM
CHAIR REINBOLD announced the consideration of SENATE BILL NO.
14, "An Act relating to the selection and retention of judicial
officers for the court of appeals and the district court and of
magistrates; relating to the duties of the judicial council;
relating to the duties of the Commission on Judicial Conduct;
and relating to retention or rejection of a judicial officer."
[This was the seventh hearing on SB 14 and public testimony was
opened on 2/10/21 and closed on 2/15/21.]
2:58:12 PM
SENATOR SHOWER moved to adopt a proposed committee substitute
for SB 14, work order 32-LS0171\B.
CHAIR REINBOLD objected for discussion purposes.
2:58:29 PM
CHAIR REINBOLD explained that Version B incorporated the
amendments previously adopted by the committee.
2:59:32 PM
At ease
2:59:46 PM
CHAIR REINBOLD reconvened the meeting and removed her objection.
SB 14, Version B was before the committee.
[SB 14 was held in committee].
3:00:04 PM
There being no further business to come before the committee,
Chair Reinbold adjourned the Senate Judiciary Standing Committee
meeting at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB14 email testimony 2.pdf |
SJUD 2/24/2021 1:30:00 PM |
SB 14 |
| SB14 CS Bill.pdf |
SJUD 2/24/2021 1:30:00 PM |
SB 14 |