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." Co-Chair Sharp stated that SB 24 had been previously held in committee due to members' concerns regarding the wording of language on page 5 of the bill. He related that the drafter of the legislation was on hand to answer any questions from committee members. Senator Donley had questions regarding the "clear and convincing" standard of evidence;" he queried what this would mean in an ex parte proceeding and if it would have a subsequently different meaning in a proceeding in which there were advocates on both sides. THERESA LAUTERBACH, DIVISION OF LEGAL AND RESEARCH SERVICES, LEGISLATIVE AFFAIRS AGENCY, replied that the standard of evidence was the same regardless of what the proceeding was. Senator Donley inquired if there was something in writing that covered what the "clear and convincing" evidence standard was. Ms. Lauterbach responded that, relative to the standard's strictness, the "preponderance of the evidence" standard was the lowest, the clear and convincing evidence standard was in the middle, and "beyond a reasonable doubt" was the highest. Senator Phillips assumed that a judge gave a jury instructions regarding the meaning of the different standards and that it must be something that "laymen" could understand. Ms. Lauterbach replied that there were definitions of the standards in Black's Law Dictionary, but that she did not have them with her. She stated that a preponderance of the evidence required more than simply having quantity and that not all pieces of evidence would be given the same weight. She related that "clear and convincing" meant "more than a preponderance," but stated that she was unable to describe it further without consulting Black's Law Dictionary. Senator Donley wondered what standard a court would use if the bill did not specify a particular standard of evidence. Ms. Lauterbach responded that the preponderance of the evidence standard would be used. Senator Parnell queried what the clear and convincing standard was based on and why it was chosen in the legislation. Ms. Lauterbach replied that the sponsor had chosen the standard that would be used. Senator Parnell inquired if the clear and convincing evidence standard was used in other jurisdictions. Ms. Lauterbach responded that it was used in other laws. Senator Parnell further inquired if the clear and convincing evidence standard was used in other proceedings in Alaska. Ms. Lauterbach stated that she had not conducted an "exhaustive" study, but that the standard was used in the termination of parental rights proceedings; the court used a clear and convincing evidence standard to show that a child was endangered by parental conduct and that without the termination of parental rights, the harmful conduct would continue. She was unaware of other areas in Alaska that use the standard. Senator Parnell offered that the bill represented a termination of parental rights and opined that the reason the clear and convincing evidence standard was being used in the legislation was because it was similar to other areas of Alaska law where parental rights were terminated. Ms. Lauterbach stated that she would not characterize it that it way. She offered that she was only pointing out another area where the standard was used and was not claiming that it was related to the bill. Senator Parnell observed that the bill would terminate the parental rights to have a say in a minor's abortion and that the state required clear and convincing evidence in other proceedings where the parental rights were terminated. He offered that the bill seemed consistent with Alaska's current policy. Senator Parnell inquired if, assuming the judge or magistrate believed the child, a minor's testimony of abuse was enough to solely constitute clear and convincing evidence or if there was anything else required. Ms. Lauterbach responded that the bill did not require anything else, but that the judge would listen to a testimony's credibility and consistency. She furthered that a judge would ask questions in order to uncover inconsistencies or a lack of credibility in someone's testimony and that the questions would give the judge an idea of whether he or she was clearly convinced. Co-Chair Pearce stated that she had a copy of Black's Law Dictionary. She noted that the dictionary indicated that "preponderance of the evidence" was the standard of proof that was used in civil cases, which led her to believe that the clear and convincing evidence standard was used in criminal cases. Ms. Lauterbach interjected that the termination of parental rights was a civil case. Senator Parnell interjected that the "beyond a reasonable doubt" standard was used in criminal cases. Senator Pearce noted that Senator Parnell's comments were the most persuasive. She observed that under the confidentiality rules, a judge would be faced with one person asserting what was "her truth, as she sees it" and would not be presented with a lot of evidence to the contrary. She observed that the bill's standard of evidence left a lot of wiggle room in any direction. Senator Parnell noted that judges were used to judging the credibility of witnesses. Co-Chair Sharp clarified for the record that, absent of any comments or testimony to the contrary, a judge would make the determination of whether a child's testimony was factual. He observed that credibility was something the judge would have to determine, but that it would be hard for a judge or magistrate refuse a request if there was no opposing testimony or parent present to defend their parental right. He noted that different judges had different opinions. Senator Donley discussed a Florida State Statute that was found to be unconstitutional by the Florida Supreme Court and inquired if the statute had contained a clear and convincing standard. Ms. Lauterbach replied that she did not know. She stated that she did have the court's opinion with her, but she was not sure if it described the entire statute. Co-Chair Sharp noted for the record that Senator Adams had joined the committee. Ms. Lauterbach relayed that the part of the Florida State Statute that was in the court's opinion did not give a standard of evidence, but opined that it probably used the "preponderance of evidence" standard. She observed that part of the statute in question was in a footnote in the court's decision. She pointed out that the Florida Statute did discuss "good cause," which could be based on a showing that the child was sufficiently mature, the legal guardian unreasonably withheld consent, the minor's fear of physical or emotional abuse, or any other good cause shown. She concluded that the Florida statute had a good cause standard, which did not specify the burden of proof. She reiterated that "preponderance of evidence" was the standard most likely used in the statute, but that her opinion was conjecture without examining all of the Florida Statutes. Senator Parnell queried if Ms. Lauterbach had a similar California State Statute with her. Ms. Lauterbach replied in the negative. Senator Donley inquired what the penalty was for violating the bill's confidentiality clause. Ms. Lauterbach responded that she did not know that information offhand. Senator Donley requested that Ms. Lauterbach research the penalty and return to the committee with more information. Senator Donley observed that reasonable minds could differ not only on what standard to use, but also in the amount of distinction between standards. He offered that there might be a dichotomy between the public policy reason for requiring the clear and convincing standard for evidence of physical, sexual, and emotional abuse, as opposed to using "clear and convincing" evidence that it was in the best interest of the complainant. Senator Donley requested that the language "by clear and convincing evidence" be deleted from line 25 of the bill. He observed that the bill's placement of the word "pattern" in reference to physical and sexual abuse needed revisiting; he opined that "pattern" might be a more proper modifier for emotional abuse. He expressed concern that the bill may require clear and convincing evidence of a pattern of physical abuse. Co-Chair Sharp noted that the physical abuse could be determined to be anything from spankings to very harmful actions. He expressed concern regarding how physical and abuse was defined regarding justification. He stated that the wording "pattern" established good cause for the judge to make a decision on and noted that certain cases in the juvenile justice system could be based on "fragile testimony." Co-Chair Pearce stated that she had a great deal of sympathy for the concerns addressed by Co-Chair Sharp and noted that in Alaska, a teenager could allege abuse with very little evidence; in addition, a teenager's testimony was automatically given credence by the system. She opined that the system had been abused by youths in the state; however, she believed that the law should error on the side of the child regarding the cases that were covered in the bill. She mentioned that the state needed to be careful to provide protection to young women and that setting an artificial standard was unwise. She offered that although narrower standards were used in other areas of the law that dealt with child allegations, a broader categorization would be more appropriate in the bill's application because it applied to pregnant young women; furthermore, the broader categorization would allow the judges room to work. She expressed concern regarding the use of the word "pattern" in the legislation and offered that one rape could cause the pregnancy that brought the case before the judge; she concluded that the state should protect the child in this case. Co-Chair Sharp inquired which language Senator Donley wanted removed from the legislation. Senator Donley responded that he wanted the words "by clear and convincing evidence" removed from line 25 of the bill. Co-Chair Sharp stated that the language change would be Amendment 4. Senator Parnell OBJECTED. Senator Donley offered that there was a grey area regarding how the Alaska Supreme Court would react to the legislation and opined that Amendment 4 would make it more likely that the bill would be upheld as being constitutional in the courts. He pointed out that different jurisdictions were "splitting on this issue" and that it appeared that the Florida Statute did not require clear and convincing evidence, but instead used a lower standard of evidence, which was known as a preponderance of the evidence; he observed that a court in Florida had found the law to be unconstitutional. He concluded that how a court would respond to a law was unknown, but that the amendment gave the bill a higher probability of success in the Alaska Supreme Court. He stated that evidence of physical or sexual abuse was very significant and expressed concern that the clear and convincing standard was being used in relationship to those types of abuse. He noted that his understanding of the clause was that the clear and convincing standard would also have to be applied to whether or not it was in the best interest of the woman; he expressed concern regarding this aspect. Senator Parnell observed that the current bill represented a situation where a magistrate had to find clear and convincing evidence that there was evidence of a pattern of physical, sexual, or emotional abuse, or that the consent of the parents, guardians, etc. was not in the best interest of the complainant; he offered that his understanding was that only the girl would be testifying at that point, that no contrary evidence would be presented, and that it would be up to the judge to believe or disbelieve the testimony. He added that the only way that a judge or magistrate would find that a girl was not telling the truth was by her own inconsistent statements about the abuse. He noted that his understanding was that in every other area of Alaskan law that terminated parental rights, a clear and convincing standard was used and that it was not a very hard standard to meet when the only person testifying was the girl herself. He expressed concern that lowering the bill's standard would enable the lower standard to be used in other types of cases; furthermore, the lower standard would make it easier for the state to become part of those proceedings, which he did not think was a good idea. He reiterated that when a magistrate or judge was faced with only one witness, clear and convincing evidence was not a very high standard to meet and that it was an appropriate standard given the serious nature of the allegations. He urged his agreement that the child should be protected and that if they have been physically, sexually, or emotionally abused, they should not have to get consent; however, he was concerned that lowering the standard would make the court into a rubber stamp. Senator Adams stated that in rural Alaska, it was not often easy to get access to a court and that he was concerned about due process being lost; furthermore, villages sometimes had only one phone available and if rural Alaskan's were allowed to use the telephone to call in, they might not have any privacy. He offered that bill represented a violation of equal protection. Senator Parnell stated that he had discussed the issue with Senator Adams the prior day and that there was not an abortion provider in a rural area where there was not also access to a court. He expounded that a child would have access to a court system in the same place that they would be able to get an abortion. Senator Adams asserted that Senator Parnell's assertion was debatable. Senator Parnell interjected that he had asked the department, which did not support the bill, to come forward with any village that had an abortion provider but no court system; the department had so far been unable to provide any such places. Senator Phillips requested clarification regarding the types of evidence standards. Senator Parnell replied that there were 3 basic standards of evidence. He explained that a preponderance of the evidence represented evidence that barely tipped the scales. He furthered that a preponderance of the evidence was if you were convinced by 51 percent of the evidence and thought it was more likely true than not. He related that clear and convincing evidence was the next highest standard, but noted that Legal Services should probably have addressed it earlier because there was case law that defined what clear and convincing evidence was. He concluded that "beyond a reasonable doubt" was the highest standard. Senator Donley pointed out that there were also many modifiers to the different standards of evidence in the state's statutes. He related that "fair" was a modifier to "preponderance of the evidence" and shared that there were different variations to how the modifiers were used. Senator Phillips asked for an explanation of Amendment 4. Senator Parnell replied that Amendment 4 proposed a lower standard establishing that it was more plausible that a complainant was telling the truth. Senator Donley stated that in general, Senator Parnell had given a very accurate description of what a preponderance of the evidence was; however he produced an example of how the standard got "muddled" in Black's Law Dictionary. He related that in addition to Senator Parnell's description a "preponderance" was described as "that which best accords with reason and probability. The word preponderance means something more than weight; it denotes a superiority of weight or outweighing." He pointed out that although the classic definition of a preponderance of the evidence was 51 percent of the evidence being in favor of it being true, more could be applied to the standard; furthermore, there was a variance from judge to judge on how it was applied. Senator Phillips queried why the bill could not use a preponderance of the evidence standard instead of the clear and convincing standard. Senator Parnell responded that in every other case where the state terminated parental rights, clear and convincing evidence was required. He offered that in the case of the legislation, clear and convincing evidence was an easy burden to meet because the complainant was the only person testifying. Senator Pearce stated that after listening to Senator Parnell and thinking through the facts, she was less bothered by the clear and convincing standard than she was by the use of the word "pattern." She pointed out that the state should have consistency in the termination of parental rights proceedings. Senator Adams requested a legal perspective on the debate before the committee. Ms. Lauterbach clarified that she had not said that the clear and convincing standard was used in all of the state's statutes related to the termination of parental rights. For example, she pointed to a statute on removing the disabilities of a minor who could prove they were living apart from their parents that would terminate parental control; there was not a clear and convincing standard in this statute. She stressed that she had only provided 1 example in response to a question about whether there were other statutes that used a clear and convincing standard. She noted that inconsistency existed in the statues. Senator Sharp did not imagine the scenario would occur for children under the age of 16. Ms. Lauterbach replied that a person had to be at least 16 years of age. Ms. Lauterbach clarified that there were not only 3 standards of proof starting with preponderance of evidence. She stated that for some situations, showing a scintilla of evidence sufficed; if clear and convincing was removed, the standard would be any evidence. Senator Parnell asked for verification that Ms. Lauterbach was referring to a scintilla of evidence. Ms. Lauterbach believed line 25 would read "the court finds that there is evidence of a pattern." She communicated that if the committee wanted to go to preponderance of evidence, the word evidence should also be removed later in the sentence to read "the court finds that there is a pattern of physical, sexual, or emotional abuse." She stated that with the change, the standard would be a preponderance of evidence. Senator Donley had misunderstood earlier testimony by Ms. Lauterbach; therefore, he WITHDREW Amendment 4. Senator Donley MOVED a revised Amendment 4 that would delete "clear and convincing evidence" and the words "evidence of." The language would read "and the court finds that there is a pattern of..." He asked for verification that the change would establish a preponderance of evidence in the legislation. Ms. Lauterbach affirmed. Senator Parnell asked whether there were any statutes that enabled the termination of parental rights for children who were age 15 and younger upon a preponderance of evidence. Ms. Lauterbach replied that the phrasing of the question made it difficult to answer. She surmised the committee had been told that minors could consent to their own care in certain situations under AS 25.20.025 [she was uncertain she had stated the correct statute]; parental rights were terminated under the scenario. She summarized that there were other situations that did not use clear and convincing standards. She noted that it was a matter of terminology and explained one person may call the situation the termination of parental rights; whereas, she called it minors having the ability to consent to the receipt of medical or dental treatment. She remarked that there were many other parental rights that were not affected. Senator Donley appreciated the time the committee was taking on the issue. Senator Sharp pointed to line 27 of the legislation and noted that it established leaving a decision up to the judge's discretion without much evidence with the exception of the judge finding that a decision was in the best interest. Ms. Lauterbach answered that it was likely the clear and convincing standard carried through the entire sentence. Senator Donley would be satisfied if the clear and convincing standard only applied to the evidence of physical, sexual, or emotional abuse. He restated that Amendment 4 would delete the words "...a clear and convincing evidence" and the words "evidence of" on line 25 of the legislation. The amended sentence would read "the court finds that there is..." Senator Parnell asked for verification that the amendment would reduce the evidentiary requirement to a scintilla of evidence. Ms. Lauterbach replied in the negative. The change would mean the requirement would be a preponderance of evidence. Senator Donley clarified that by deleting the words "evidence of" the requirement would be a preponderance of evidence. The OBJECTION to Amendment 4 was MAINTAINED. A roll call vote was taken on the motion. IN FAVOR: Senator Donley, Senator Phillips, Senator Pearce OPPOSED: Senator Adams, Senator Parnell, Senator Sharp The MOTION FAILED (3/3). Senator Donley MOVED [Amendment 5] to establish an evidentiary standard for the best interest language on line 27 of the legislation. Following the third word "or" the amendment would insert language to read "by a preponderance of the evidence that the consent." Senator Parnell OBJECTED. He believed the amendment would have the same result as the previous proposed amendment that had failed. He reasoned that if the same testimony of abuse was present and shown by a preponderance of evidence the judge would be able to find under the second section that it was not in the child's best interest. He furthered that anything, including an allegation of physical, sexual, or emotional abuse could be held that it was not in the best interest of the child if a preponderance of evidence was shown. Senator Sharp agreed. He noted the amendment stated there were other reasons besides patterns of physical, sexual, or emotional abuse that a judge could make a decision on. Senator Donley acknowledged that the amendment could have the effect discussed by Senators Parnell and Sharp; however, he concluded that it could have a different effect as well. He relayed that line 26 dealt with specific factual findings by the court including either physical, sexual, or emotional abuse. He furthered that if the court found 1 of the forms of abuse to be present, permission would automatically be granted. He explained that line 28 dealt with best interest, which was a separate issue. He stated that it would be possible to find by a preponderance of evidence that there was some emotional abuse, but the court could also find that it may not be in the best interest of the child to grant permission. Senator Parnell countered that the complaint would be filed under the same subsection, which was (b)(4)(B) on page 4 of the bill, that stated that a person would go to the court because of emotional, physical, or sexual abuse or because it was in the person's best interest. He did not believe there should be different standards when filing under one section. Senator Donley countered that the standards were different. He explained that the first half of subsection (b)(4)(B) dealt with the court's factual finding related to a physical or mental event; the second half dealt with whether something was in the minor's best interest based on the court's subjective finding. He stated that it would be possible to find that emotional abuse had occurred without clear and convincing evidence and to still deny the permission under the second standard of best interest. He elaborated that more factors were included under the best interest analysis than under the objective analysis on line 26. Senator Sharp opined that a judge would have more subjective opportunities than available under the more precise portion in the first half of the section. Senator Donley agreed. Senator Sharp continued that the second half of the section would provide a judge with more discretion deciding on what was in the best interest of a minor. He believed the discretionary ability lowered the standard in the first section. Senator Parnell wondered why a higher standard of proof would not be required. Senator Donley replied that it would allow a judge to look to offsetting circumstances outside of the factual circumstances defined in the first section. He expounded that extenuating circumstances may exist that had corrected or mitigated the abuse. Senator Donley formalized his motion and MOVED Amendment 5 that would insert the words "by preponderance of the evidence" following the [third] "or" on line 27 of the bill. Senator Parnell MAINTAINED his OBJECTION to Amendment 5. A roll call vote was taken on the motion. IN FAVOR: Phillips, Donley, Pearce OPPOSED: Parnell, Adams, Torgerson, Sharp The MOTION FAILED (4/3). Senator Parnell asked whether the current clear and convincing standard also related to the best interest section. Ms. Lauterbach believed that language should be inserted if the goal was to clarify the meaning. She opined that the standard probably applied, but the answer would not be known until a court interpreted the language. Senator Adams asked if the different standards had been debated in the Senate Judiciary Committee. Ms. Lauterbach did not know. Senator Pearce noted that there had not been significant discussion on the topic previously. Senator Parnell MOVED Amendment 6 that would insert "by clear and convincing evidence" on page 5, line 27 following the third "or." Senator Donley believed it was prudent to specify the language. He explained that if a case went to the Alaska Supreme Court, the clarity could make a difference in constitutionality whether the court interpreted the second clause as a preponderance or clear and convincing. There being NO OBJECTION, Amendment 6 was ADOPTED. Senator Donley MOVED Amendment 7 that would move the words "a pattern of" for insertion in front of the first "or" on line 26, page 5. Line 26 would read "that there is evidence of physical, sexual, or a pattern of emotional abuse." Senator Parnell asked whether the term physical abuse was defined in statute. Ms. Lauterbach believed so, but noted that the term was not defined for the statute being discussed. Senator Parnell provided a hypothetical example related to an abuse claim. He asked whether a 15 year-old could claim physical abuse if they had been spanked by their parents at the age of 5. Ms. Lauterbach answered that a judge could find that physical abuse had occurred if they considered the spanking to be physical abuse. Senator Parnell asked for verification that a judge would not consider the element of timing under the current or proposed language. Ms. Lauterbach replied that the current language would not force a judge to consider the element of timing. Senator Parnell reiterated his question about the element of timing and consideration by a judge. Ms. Lauterbach did not know what a judge would do. She stated that the language did not include timing; therefore, it would need to be added if that was the will of the committee. Senator Parnell believed making a change related to timing would be too complicated. Senator Donley relayed that the clause had been modified by the clear and convincing proof of evidence standard, which was one element that would help mitigate Senator Parnell's concern related to timing. Senator Pearce wondered if there was any way for a woman under the age of 16 to become pregnant without a crime occurring. She discussed that the amendment pertained to whether the court needed to find that a pattern of physical or sexual abuse existed or if one time was enough. Her concern was that rape would not be included if a judge could rule that that abuse had not occurred because it only happened one time. Senator Donley proposed a conforming change to Amendment 7. The amendment would move the words "a pattern" on page 5, line 26 for insertion after the first "or" on line 26. The amendment would also insert the word "of" following the words "a pattern." The sentence would read "that there was evidence of physical, sexual, or a pattern of emotional abuse." The amendment would also modify page 4, lines 27 and 28 to read the same way. Senator Parnell proposed modifying the amendment to insert the word "abuse" after the word "sexual." Ms. Lauterbach clarified that the sentence would read "...physical or sexual abuse or a pattern of emotional abuse." Senator Donley WITHDREW Amendment 7. He MOVED a new Amendment 7 to change clauses on page 5, line 26 and page 4, lines 27 and 28 to read "evidence of physical or sexual abuse or a pattern of emotional abuse." There being NO OBJECTION, the new Amendment 7 was ADOPTED. Senator Pearce discussed an amendment aimed at addressing the cycle of dependence on welfare that some women fell into after having a child at a very young age. She believed the women's parents should have a responsibility to their child and grandchild; however, she did not know if the amendment would be acceptable within the current bill due to the state's single title law. She would not offer her amendment, but may decide to offer it on the Senate floor. Senator Parnell offered to jointly sponsor separate legislation with Senator Pearce. Senator Parnell MOVED to REPORT CSSB 24(FIN) out of committee with individual recommendations and the accompanying fiscal notes. Senator Adams OBJECTED. He proposed forming a task force on the issue. A roll call vote was taken on the motion to report the bill from committee. IN FAVOR: Parnell, Donley, Phillips, Torgerson, Sharp OPPOSED: Adams, Pearce The MOTION PASSED (5/2). CSSB 24(FIN) was REPORTED out of committee as amended with a "do pass" recommendation and with a new fiscal impact note from the Alaska Court System; one previously published fiscal impact note from the Department of Administration; and two previously published zero fiscal notes from the Department of Administration and the Department of Health and Social Services. New TAPE: start TAPE 55.