SENATE JUDICIARY COMMITTEE April 10, 1995 2:06 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR CS FOR SENATE BILL NO. 132(HES) "An Act relating to teacher tenure, teacher layoff and rehire rights, review of decisions of school boards concerning teachers, and to a retirement incentive program for employees of school districts and regional educational attendance areas; and providing for an effective date." SENATE BILL NO. 105 "An Act relating to a requirement that a parent, guardian, or custodian consent before a minor receives 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 Alaska Rules of Civil Procedure 40, 53, and 79; Alaska Rules of Appellate Procedure 204, 210, 212, 213, 508, and 512.5; and Alaska Administrative Rule 9." CS FOR HOUSE BILL NO. 115(JUD) am - SCHEDULED BUT NOT HEARD "An Act relating to settlement and payment of claims for overtime compensation claims and to liquidated damages and attorney fees for overtime compensation claims." CS FOR SENATE BILL NO. 95(L&C) - SCHEDULED BUT NOT HEARD "An Act relating to automobile liability insurance for uninsured or underinsured motor vehicles; and providing for an effective date." PREVIOUS SENATE COMMITTEE ACTION SB 132 - See Health, Education & Social Services minutes dated 4/7/95. SB 105 - See Health, Education & Social Services minutes dated 3/20/95 and 3/22/95. WITNESS REGISTER Carl Rose Executive Director Assn. of Alaska School Boards 316 W. 11th St. Juneau, AK 99801 POSITION STATEMENT: Supports CSSB 132 (HES) Jeff Cluteer National Education Association (NEA) 2920 Hogan Bay Circle Anchorage, AK POSITION STATEMENT: Opposed to CSSB 132 (HES) Rick Cross, Superintendent Fairbanks North Star Borough School District P.O. Box 71267 Fairbanks, AK 99707 POSITION STATEMENT: Commented on CSSB 132 (HES) Vernon Marshall Executive Director National Education Association 114 Second St. Juneau, AK 99801 POSITION STATEMENT: Opposed to CSSB 132 (HES) Claudia Douglas NEA President 114 Second St. Juneau, AK 99801 POSITION STATEMENT: Opposed to CSSB 132 (HES) Sue Templeton 13410 Baywind Circle Anchorage, AK 99516 POSITION STATEMENT: Supports CSSB 132 (HES) Dee Hubbard Anchorage, Alaska POSITION STATEMENT: Supports CSSB 132 (HES) Judy Kohler Americans United for Life 343 So. Dearborn St., Suite 1804 Chicago, Illinois 60604 POSITION STATEMENT: Supports SB 105 Lisa Penalver, President Fairbanks Coalition for Choice 1166 Skyline Drive Fairbanks, Alaska 99712 POSITION STATEMENT: Opposed to SB 105 Senator Loren Leman Alaska State Legislature Juneau, Alaska 99811-1182 POSITION STATEMENT: Sponsor of SB 105 Jan Rutherdale Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Provided information on SB 105 ACTION NARRATIVE TAPE 95-19, SIDE A Number 001 SB 132 JUDICIAL REVIEW:TEACHER TENURE DECISIONS  CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:06 p.m. The first order of business before the committee was SB 132. CARL ROSE, Executive Director of the Association of Alaska School Boards, testified in support of SB 132. He stated the intent of SB 132 was not to repeal tenure, but to provide more latitude to school managers experiencing funding difficulties. He gave the following sectional analysis. Section 1 brings former federal employees in line with the law. Section 2 changes the time required to attain tenure from the first day of the third year to the first day of the sixth year. MR. ROSE discussed Sections 3, 4, and 5. Recent college graduates spend five years or more getting certified to teach in public schools. Under current law, management does not have enough time to evaluate and make decisions that can be career altering. More observation time is needed, and new employees need more time for in-service professional development, as well as oversight. Current law contains four reasons for non-retention: substantial non- compliance; insubordination; immorality; and enrollment decline. The intent of including enrollment decline is to speak to financial emergencies. He suggested striking the enrollment decline provision from the non-retention section, and creating a new provision in Section 5 that would provide for layoff provisions. The layoff provisions should address the financial problems of revenue shortfall and enrollment, protect seniority and tenure, and address rehire provisions. He stated he does not believe school systems should non-retain employees because of a lack of funds by using the same provisions that are used to dismiss convicted felons. If a layoff provision needs to be used, it should be fair and should provide for rehire rights. MR. ROSE explained the academic program needs provision of Section 5 was included to direct the Department of Education to move into subject area endorsements, rather than secondary endorsements, to ensure that people are certified in the subjects they are teaching. Regarding rehire rights, the school districts should be able to look at qualifications before seniority. This would improve classroom instruction, and require appropriate endorsement in the workforce. MR. ROSE discussed the de novo provisions in Section 6. Standard practice for non-retention of a tenured teacher allows the teacher the right to a hearing at the local level. If that hearing is not favorable to a tenured teacher, he/she may apply for a trial de novo. In such a trial, the case must be recreated, as there is no record to review. Many times this occurs years after the infraction and the ability of the school district to recreate the case accurately is impaired. CSSB 132 (HES) would require the record to be recognized and reviewed by Superior Court to determine if either party's due process rights were abridged. This same system is used for state employees. Mr. Rose explained in one year, up until March of 1994, over $700,000 of expense was incurred by the Association in seven trials. Those costs could discourage a school district from dismissing an employee that was non- satisfactory or incompetent. He discussed the broad range of abilities that lie between excellence and incompetence, and believed that incompetence is too low of a standard to use for non- retention. Second, many insurance companies encourage out-of-court settlements in these cases, thereby increasing liability rates. Regarding other sections of the bill, MR. ROSE stated the AASB is not opposed to Section 7 as that ability is currently available with mutual consent. The AASB has not taken a formal position on the Retirement Incentive Program (RIP). He expressed concern with Section 18 since it would grandfather in Sections 1-6, which will prevent school districts from applying CSSB 132 (HES) to all but new employees. The AASB is adamantly opposed to Section 18 because school districts need the tools to deal with financial constraints. MR. ROSE discussed the question of whether school board members are qualified to address these issues. He commented school board members are elected locally to represent the people they serve, are held accountable at the polls, and can, and will be sued. Number 210 Jeff Cluteer, NEA, expressed concern that a bill that was designed to save money suddenly contains an axe to attack the teaching profession. He made the following comments on several sections of CSSB 132 (HES). Increasing the probationary period for tenure to five years does a disservice since training courses for administrators in the state assert the number one job of an administrator is to evaluate teachers to ensure teacher performance meets expectations. If administrators cannot adequately assess the worthiness of the employee, the administrators are not doing their jobs. Regarding the issue of the difficulty of removing tenured teachers, it happens in the state almost every year. He discussed comments made about the costs to school districts for their representation in de novo trials. Costs to the school board are approximately ten times that of employees. CSSB 132 (HES) would assign the superintendent and school board as judge, prosecuting attorney, and jury, all in one. A de novo trial ensures that does not occur and that there is independent review of whether the professional standards were upheld by the charging agency. Regarding open negotiations, he stated as a practitioner of the bargaining process for 25 years, bargaining publicly creates posturing to the audience on both sides. He stated tenured teachers have greater protection than many other state workers. That is an expectation one has when one is a professional, certificated employee in the State of Alaska, just as other certificated professionals have. To remove those protections demeans the profession. Number 300 SENATOR TAYLOR expressed his concern about the sunshine aspect (Section 6). He believes the public is tired of closed door negotiations, but will eventually want an executive session privelege after using an open door policy for awhile. MR. CLUTEER responded part of the bargaining process is teaching one's membership about the process. RICK CROSS, Superintendent of the Fairbanks North Star Borough School District, discussed the trial de novo aspect of CSSB 132 (HES). He stated he believes tenured teachers are entitled to due process and just cause protections. The Acevedo case in Fairbanks completely redefined a trial de novo as a completely new proceeding, which differed from the existing practice of a board hearing and judicial review of that record. Now a full hearing before the school board must occur, complete with cross examination of witnesses, and recorded. If appealed, a new trial is held at the court level. The Fairbanks School Board opposes the de novo trial provision for two reasons: the additional cost of conducting two trials; and the difficulties created by the delay that occurs between the two trials. They are also concerned about the impact on student witnesses, especially when they must return for a court trial long after they have appeared before the school board. The Fairbanks School District believes there should be one trial that could be reviewed, if necessary, in the form of an appeal to the Supreme Court. He discussed the costs associated with the Tony vs. Fairbanks School Board case. Number 385 SENATOR TAYLOR asked if the Fairbanks School District received any Rule 82 attorneys fees for the Tony case. MR. CROSS replied negatively, but the school district was insured. Number 401 SENATOR MILLER noted a proposed amendment that resulted from a meeting between the Interior delegation and the Fairbanks School Board, which repeals AS 14.97. He asked Mr. Cross' position on the amendment. MR. CROSS responded current law requires the lunch hour to be scheduled between 11:00 am and 1:00 pm. The Fairbanks School Board supports the amendment because there are situations when that lunch hour is not logical. SENATOR ELLIS asked for the Fairbanks School District's position on the Retirement Incentive Program (RIP). MR. CROSS stated they have taken no position on the RIP. Number 420 VERN MARSHALL, Executive Director of NEA Alaska, testified. NEA opposes the idea of extending the probationary window from two to five years, as less than ten states in the country have such a long probationary period. A person would not get tenure under this provision until the sixth year of employment. The NEA also feels the layoff provision is too broad and general, and leaves the regulatory discretion to the department to shape the length of the layoff, the rehire provisions, etc. Lines 1-6 of page 3 create a situation where a school system could effectively eliminate tenure altogether. He questioned the provision that allows a school district to layoff employees to "better meet the academic program needs of the district." He asked for clarification from the Senate HESS committee but an explanation was not available. He reiterated that provision is too broad. In regard to the judicial review provision in lines 14-20, MR. MARSHALL discussed the Mat-Su vs. Lumm case. The Supreme Court found that a school board does not have the expertise to measure quality relative to a professional teacher. The de novo trial issue was considered in that case. He hoped the committee would strive to create a hearing process where an unbiased body could grant an unbiased decision. The issue of a school board who hires a superintendent and hearing officer raises questions about bias. Under CSSB 132 (HES), a record would be created at the school board level. That record would then go to a Superior Court judge, who would be restricted to the contents of the particular record. He asked that the idea of an impartial arbiter, employed by the district to hear the case, be explored. The arbiter would have no interest from the management or union perspective. He noted if this section is enacted, the costs could shift to the administrative level because the teacher would have only one chance for defense. MR. MARSHALL stated the NEA is opposed to using the RIP to get rid of teachers. NEA feels RIP is not germane to the tenure issue and believes the RIP should be applied to all city and state employees if it is going to be applied to school districts. CLAUDIA DOUGLAS, President of NEA, stated NEA is trying very hard to figure out ways to help schools and children, and how to make a difference in classrooms. She questioned whether CSSB 132 (HES) was motivated by: funding problems; the need to discharge incompetent teachers; or because due process rights are too expensive. She stated the bill does not help children and is demoralizing to teachers. NEA would like to try to work with school boards and administrators to make the process better. It does not believe that teacher bashing and changing the law without establishing an evaluation process that would improve education for students is fair. Number 513 SUE GALVESTON testified for Kathy Gillespie of the Anchorage Council of PTAs. The 12,000 member organization supports CSSB 132 (HES) as it provides a reliable method of quality control over educators. No other professions give tenure; in the private sector professionals are maintained only if their performances indicate they are doing their jobs. While watching the Senate HESS committee meeting, they were shocked to hear members of the Anchorage Teachers' Union talk about the lack of effectiveness of the evaluation system for teachers in the Anchorage School District. In Anchorage, the PTA was represented on a district committee to review the evaluation system for teachers. It was reported to those representatives that the Teachers' Union blocked every improvement. The committee's work was never completed because negotiations were starting, and even the evaluation process was negotiated. The Council is deeply concerned about the issues of tenure. A resolution on acquisition of teacher tenure was passed by the Council membership recommending the probationary period be extended from two to five years. The Council also passed a resolution recommending public disclosure of public school employer/employee negotiations. The Council has been concerned about the lack of parental involvement in the collective bargaining process of public school employees. Approximately 82 percent of the Anchorage School District budget is spent on salaries and benefits negotiated in the collective bargaining process. The Council is interested in other collective bargaining issues as well. After contracts are negotiated, they are ratified by the school board outside of the public hearing process. The ratified contracts supercede and establish school board policy. The Council is concerned about the public's inability to have any control over the district's budget as long as the public is shut out of the collective bargaining process. Number 554 SENATOR SALO responded to comments made by the previous speaker. Current Alaska law allows open negotiations and is used by some districts. It is an agreement that is made early in the negotiation process between the ward and representative of the employee group. As a teacher involved in open negotiations, she found little public interest because the process can be boring. Number 568 DEE HUBBARD, a parent from Anchorage, stated her concern about provisions in prior contracts, specifically the right of teachers to bar their classrooms to parents. Currently, the teacher and principal must agree whether or not a parent is allowed in the classroom. She noted teacher negotiations in Tenessee are broadcast on the education network. SENATOR MILLER moved the adoption of amendment #1, repealing the requirement for duty-free mealtime for teachers in certain school facilities. SENATOR ELLIS objected to the motion. The motion carried with Senators Taylor, Green and Miller voting "Yea," and Senator Ellis voting "Nay." SENATOR GREEN moved the adoption of amendment #2, changing line 9 of page 18 to read Sections 1-2, instead of 1-6. SENATOR ELLIS objected. SENATOR GREEN explained the intent was that Section 18 apply to the first two sections, but during the drafting process, an error was made. SENATOR ELLIS withdrew his objection and the motion carried. TAPE 95-19, Side B SENATOR ELLIS moved the adoption of amendment #3, that would change the sections dealing with the de novo trial provision and provide for arbitration under the Alaska Uniform Arbitration Act. SENATOR MILLER asked if binding arbitration would be used. SENATOR ELLIS answered the arbitration methods provided for in AS 09.43.010 -09.43.180 would be used. SENATOR MILLER objected to the motion. SENATOR ELLIS indicated there would still be a limited judicial review following the arbitration although an arbitrator's decision is generally not overturnable. CARL ROSE stated the Association of Alaska School Boards wants the same process as is provided for all state employees. SENATOR TAYLOR noted state employees do not have arbitration available to them, with the exception of the state troopers. MR. ROSE stated the AASB is opposed to arbitration. Number 537 SENATOR ELLIS asked Mr. Rose about an earlier comment regarding a lack of respect for local school boards, and questioned who Mr. Rose was referring to. MR. ROSE replied he was responding to comments made by the other body, and comments attributed to Mr. Marshall during the Senate HESS hearing that school board members were not necessarily qualified to make these decisions. SENATOR ELLIS asked if Mr. Marshall said "qualified" or "unbiased." MR. ROSE stated he was not at the meeting. SENATOR ELLIS stated several people commented that considering the school board hearing the only trial for a tenured teacher may not be an unbiased approach. MR. ROSE apologized for any misinformation he had, but pointed out that in a number of arenas, an entire level of local governance is ignored. Number 521 SENATOR GREEN stated it is apparent this bill has revealed a "we" and "they" situation, and a great deal of frustration from parents, school boards, and PTAs has been expressed. CSSB 132 (HES) is designed to empower parents. SENATOR TAYLOR noted amendment #3 is before the committee, and Senator Miller's objection was maintained. The motion failed with Senator Ellis voting "Yea," and Senators Green, Taylor, and Miller voting "Nay." SENATOR TAYLOR asked teleconference participants to send written comments to the committee for distribution to committee members. He apologized for the schedule delay. Number 372 SENATOR ELLIS moved amendment #4 which gives the judge increased latitude in deciding whether a case should be reviewed at the Superior Court level. SENATOR MILLER objected to the motion because the review would be a factual review rather than a procedural review. The motion failed with Senators Taylor, Miller and Green voting "Nay," and Senator Ellis voting "Yea." Number 472 SENATOR ELLIS stated the committee has not adequately reviewed CSSB 132 (HES) and did not allot enough time to grapple and discuss the issues. The bill was pre-scheduled in Senate Judiciary before it passed out of the Senate HESS committee, and is already scheduled in Finance. SENATOR MILLER moved CSSB 132 (JUD) out of committee with individual recommendations. SENATOR ELLIS objected. The motion passed with Senators Green, Taylor and Miller voting "Yea," and Senator Ellis voting "Nay." SB 105 PARENTAL CONSENT BEFORE MINOR'S ABORTION  The committee took up SB 105. SENATOR TAYLOR announced the bill would be considered again on Wednesday to give teleconference participants the opportunity to testify. JUDY KOHLER, Senior Legislative Counsel for Americans United for Life (AUL), and a former Illinois legislator, testified in support of SB 105. AUL drafts and defends legislation and is currently working in 40 states. She assisted Senator Leman in drafting SB 105. The bill protects parental rights, protects the minor's health, and will likely reduce teenage pregnancy, teen birth, and teen abortion rates. AUL believes SB 105 will be litigated successfully and upheld as constitutional because it has been drafted with an eye toward Alaska's interest in protecting the health and welfare of its minors, in fostering family unity, and in its interest in encouraging parental involvement in the upbringing of minor children. These three issues have been held to be of prime concern for state legislatures in Pennsylvania, Ohio, Minnesota, Mississippi, Utah, and the Dakotas. MS. KOHLER stated one of the primary reasons the Supreme Court held that parental involvement legislation is in the interest of states is because teenagers often have difficulty assessing long term consequences of difficult decisions. Parental involvement in the abortion decision is particularly on point because a parent remains responsible for a minor for many years after an abortion. If a 13 year old girl has an abortion then suffer medical complications, the parent will be required to give consent to any medical procedures to repair her injuries and to pay for her care until she is 18. MS. KOHLER noted Alaska has over 22 statutes that require parental consent or parental involvement. Abortions, although legal, are not always safe. In 1992, the Alan Goodmacher Institute reported that in Alaska nearly 2500 abortions were performed. AUL research and experience estimates 10 percent of those females may have experienced immediate complications, and 22 percent may have experienced infections. Evidence of breast cancer incidents among teenage females who have had an abortion without experiencing a pregnancy first has been demonstrated. Because Alaska does not have an enforceable parental consent requirement, many parents may be unaware of the risks imposed on their teenagers. MS. KOHLER discussed other states' experiences with parental involvement statutes. Documented evidence from the American Journal of Public Health (March, 1991) indicates that teenage pregnancy rates, teenage birth rates, and abortion rates decreased in Minnesota, after a parental consent law was adopted, and in Massachusetts after a parental notice law was adopted. Between 1980 (when Minnesota's law went into effect) and 1986, the teenage pregnancy rate declined by 20.5 percent. The abortion rate for teenagers decreased by 27.4 percent, and the birth rate fell by 12.5 percent. In Massachusetts the abortion rate for minors declined by 43 percent in the first 20 months after the law took effect. The teenage pregnancy rate declined by 16.6 percent. Nebraska, after the law took effect in 1991, reported a 30 percent decrease in the number of teenage abortions. They also reported the parental consent law has not resulted in more teenagers having babies. Currently 38 states have parental involvement statutes; 70 percent of those are in effect. The remainder are in different stages of litigation. A poll taken in Texas indicated that 74 percent of adults in Texas approve of parental involvement legislation. Similarly, the approval rate for the same legislation in Iowa was over 80 percent this year. SB 105 is designed to comply with decisions of the U.S. Supreme Court cases that address parental involvement. Number 350 LISA PENALVER, Fairbanks Coalition for Choice (FCC), testified in opposition to SB 105. The FCC believes it is inappropriate and futile public policy to attempt to legislate family interaction. It is not the role of government to interfere in private pregnancy decisions. That should be left up to an individual and her doctor, even in the case of a minor. Parental involvement laws jeopardize pregnant teens' health by delaying or blocking their access to necessary medical care. Proponents of this bill argue that such laws are responsible for decreases in overall teenage pregnancy rates in certain states, however similar decreases in teenage pregnancy have occurred in other states, such as Alaska in 1993. With so many variables affecting teen pregnancy rates, it is impossible to show clear cause and effect. MS. PENALVER stated there is no reason to believe that legislation is capable of creating parental involvement where none previously existed. Over 60 percent of teenagers in states without parental involvement laws do involve their parents, the others have significant reasons to do so. This bill targets young women from disadvantaged situations to deprive them of control over their bodies and of their lives. The threat to physicians implicit in the bill undermines a physician's ability to treat his/her patient. The safest abortion is an early abortion, and even at later stages, abortion is safer than teen pregnancy. She questioned Ms. Kohler's statements about complications and felt they were speculative. She stated young women in remote areas are most likely to be hurt by consent requirements. Confidentiality in this issue is the big concern, and the judicial bypass option cannot promise anonymity. Substantial costs to the state to enforce this law are likely as it requires the appointment of both an attorney and a guardian ad litem, and the time of a judge. SB 105 shows a callous disregard for the privacy rights of minors and for their health and well being. In times of severe budget cuts it is not in the interest of the state to enact legislation that will be both costly to enforce and costly to defend in court. Nor is it in the state's interest to force teens to bear children against their will, especially when welfare reform is likely to eliminate support for these children. Alaska has one of the highest teen pregnancy rates as well as two and one-half times the national average for rape. She urged the committee to oppose the bill. Number 294 SENATOR TAYLOR asked Ms. Penalver if she had any statistical information from any of the other 22 states that have a consent or notice law in effect, that would substantiate her statements that this law forces teens into back alley abortions. MS. PENALVER replied she did not have any information immediately available, however the American Medical Association opposes parental notification laws and believes the number of deaths from illegal abortions are directly related to a young woman's desire for privacy. SENATOR TAYLOR asked Ms. Penalver if she had any information in the form of statistics that would counter MS. KOHLER'S statement that the number of teens giving birth had decreased in several states after parental consent/notice laws went into effect. MS. PENALVER replied the 1993 teen pregnancy rate in Alaska declined without enforcement of the parental notification law. Number 264 SENATOR LEMAN, sponsor of SB 105, stated the bill was introduced to help pregnant teens to seek parental guidance for one of the most important decisions they will make. The issue comes down to parental rights, and who is responsible. Parents are responsible for so many other things, and to not have the same rights for something as serious as an abortion is incongruous. SB 105 does not provide for parental consent in the State of Alaska; that is in existing statute. SB 105 provides for judicial bypass, which will enable the existing statute to be enforced. The Attorney General's Office has chosen to not enforce the law, rather than enforce it and litigate it. SB 105 is crafted carefully to create a judicial bypass procedure that has already withstood the scrutiny of the U.S. Supreme Court. The Attorney General's Office has argued that SB 105 will not withstand the scrutiny of the Alaska Supreme Court because of the issue of privacy. He disagreed and stated his belief that minors should be treated differently than adults in many circumstances. In regard to privacy rights, parental rights should supercede a minor's right to privacy. SENATOR LEMAN indicated 22 states now enforce parental involvement laws, and polling shows 74-80 percent support of such rights. He added a recent polling of Texas democrats show 65 percent in favor, 28 percent opposed, and 7 percent undecided. SB 105 is a step in how the issue of abortion is dealt with in the State of Alaska, however it is not a cure-all for the devastating impacts of abortion on demand. He estimated the bill may save 100 lives this year, yet if it only saved one it would be worth it. SENATOR TAYLOR asked for an explanation of the changes made in the proposed committee substitute. SENATOR LEMAN replied the changes were proposed by the Alaska Court System. The main change is on page 5, lines 4-5 of SB 105, and allows the court to refer the case to a juvenile master. The second change removes references to Court Rule 53, which deals with the juvenile master. The third change is the addition of the identification of the Office of Public Advocacy as the agency that provides the guardian ad litem and the attorney. Number 129 SENATOR MILLER moved to adopt the proposed CSSB 105 (Lauterbach, 4/7/95) version in lieu of the original bill. There being no objection, the motion carried. SENATOR ELLIS commented that Senator Leman referred to SB 105 as "parental involvement" legislation. He asked if that was the terminology used in the public opinion surveys conducted, as he would expect 99.9 percent support among all parties for parental involvement in young peoples' lives. He clarified the bill requires parental consent, not merely parental notification. Number 052 SENATOR LEMAN stated the measure provides for a judicial bypass procedure to activate the existing parental consent provision, therefore, after passage, it will require one-parent consent with judicial bypass. Different states have used several approaches: one-parent notification with judicial bypass; two-parent notification with judicial bypass; one-parent consent with judicial bypass; and two-parent consent with judicial bypass. All four approaches have been found to be constitutional. The approach in SB 105 would keep the existing one parent consent provision with a judicial bypass. Regarding the polls he referred to, the Texas poll asked the question, "Do you favor or oppose parental notification of abortions to minors?" He has found the results from polls referring to parental consent are very similar and only differ by two or three percent. SENATOR TAYLOR commented existing law is more conservative than it will be if SB 105 passes. SB 105 allows the juvenile the opportunity to bypass parental consent and have a court order for consent issued by a judge. SB 105 allows a greater level of choice than existing law. SENATOR LEMAN agreed, but stated in order to accomplish the greater good of saving lives, the opportunities have to be liberalized. SENATOR TAYLOR questioned the fiscal impact on physicians' malpractice insurance rates since SB 105 allows people to sue doctors for this practice. SENATOR LEMAN replied that opportunity already exists. TAPE 95-20, Side A JAN RUTHERDALE, Assistant Attorney General with the Department of Law, stated it is the position of the Attorney General's Office that it is highly likely that SB 105, if enacted, would not be upheld by the Alaska Supreme Court, because it violates the Alaska Constitution privacy clause. Unlike the U.S. Constitution, the Alaska Constitution contains a privacy clause. SENATOR TAYLOR believed the question would focus on the rights of privacy between the child and the child's parent. MS. RUTHERDALE replied there is case law on the right of privacy issue in Alaska. Number 030 SENATOR TAYLOR asked Ms. Rutherdale to cite the case. MS. RUTHERDALE stated the case is Raven v. State. SENATOR TAYLOR commented the case was about the legalization of marijuana. MS. RUTHERDALE explained the right to make procreative decisions, which includes the right to have an abortion, has been determined to be a fundamental right. When that fundamental right kicks in, the next question is whether a compelling state interest exists to justify intruding on that fundamental right. If the compelling state interest is determined to exist, then a nexus between the means and the ends must be determined, the ends in this case would be the goal of furthering parental involvement. Number 056 SENATOR TAYLOR asserted Ms. Rutherdale's argument would pertain to adults, but the Supreme Court has upheld repeatedly the right of the state to establish an age for consentual activity, which is age 13 in the State of Alaska. If that is a legitimate function of government, he asked why, if a minor cannot choose to get pregnant, she would have a greater right to abort the pregnancy. MS. RUTHERDALE clarified that under criminal law, the age for consentual sexual activity is 16, and there is no law that says people of any age have to ask their parents for permission to engage in sexual activity. The law specifies that a person three years older than a partner under the age of 16 is committing a prosecutable crime. That does not apply if the partner is between the ages of 16 and 18. MS. RUTHERDALE explained there are two other states with privacy clauses in their constitutions: California and Florida. Both have struck down similar statutes. They did find compelling state interests almost identical to those listed in SB 105. It was determined that the statute did not further those compelling state interests as there was no fit between what the statute accomplished and what the compelling state interests were trying to achieve. She added that Ms. Kohler specifically referred to states that do not have a privacy clause in their constitutions, therefore the law in those states was upheld by the U.S. Supreme Court. Because of Alaska's Constitution, a similar case would not get to the U.S. Supreme Court. MS. RUTHERDALE discussed Ms. Kohler's comment about the decrease in the pregnancy rate in states that enacted similar legislation. She cited an Appendix attached to the California decision, which found that although the pregnancy rate had dropped in Minnesota, Missouri, and Massachusetts, it had also dropped in other states and other factors contributed to that decrease. The drop in the number of abortions in those states was due to the fact that minors had abortions in other states. In states without a parental consent statute, the teenage pregnancy rate also dropped. The Appendix also listed other less restrictive ways to reduce teen pregnancies less injurious to the right of privacy, such as birth control education and counseling. Other evidence found credible by the Court was that adolescents by the age of 14 or 15 are capable of making medical decisions, including abortion. A minor must consent to counseling and information requirements before an abortion will be performed. Also evidence was presented that showed most minors do consult with their parents when deciding whether to have an abortion, therefore the enactment of such a statute had no effect on the consultation. They found that ten percent of the minors might be in danger if they consulted with parents because of problems such as physical and/or sexual abuse. It also found that most of that ten percent choose to go through the judicial bypass procedure and an infinitessimal number of petitions are denied by the courts. It found the judicial bypass procedure to be costly, unwieldly, and an essentially pointless procedure which achieves no purpose other than to cause stress to the minors and delay the implementation of their decision to abort. Number 200 SENATOR TAYLOR stated, according to previous testimony, there are 22 provisions in Alaska statutes that require parental consent of minors, most of which involve medical procedures. If a minor is injured in an automobile accident, parental consent is required before a physician will treat the minor. He asked how that would be more invasive of the minor's privilege of privacy than an abortion. He added there is a whole series of statutes enforced by the Attorney General's Office which involve medical procedures, but because this one has a measure of political correctness about it, the privacy issue has been risen. MS. RUTHERDALE replied the difference between abortion and other medical procedures is that the right to procreative decisions invokes the right to privacy, whereas other medical procedures do not have the same privacy rights attached. SENATOR TAYLOR asked if Ms. Rutherdale had any case law to support that opinion. She offered to provide committee members with case law at a later date. SENATOR TAYLOR asked at what age such a medical procedure would not be an invasion of a child's right to privacy. He asked if a child cannot privately make the decision to procreate with another person, how can the child make the decision to have an abortion. MS. RUTHERDALE replied the law is directed toward criminal prosecution of the perpetrator, rather than the child. MS. RUTHERDALE explained that often in criminal prosecutions of sexual abuse of a minor cases, there is consent on the part of the minor, but the fact that the child does not have the ability to consent in those cases is not a defense to the crime. Number 290 SENATOR TAYLOR asked if his 15 year old child gave consent to a medical or dental procedure, without consulting him, whether he would be unable to sue the physician or dentist for performing the procedure without parental consent. He asked whether the Attorney General's Office would defend the physician based on the child's right to consent based on privacy. MS. RUTHERDALE replied it would be a tort case. SENATOR TAYLOR felt the case would be assault and battery, and that certain religious groups would be extremely upset. SENATOR TAYLOR noted the issue is at what age does the right to privacy apply. MS. RUTHERDALE responded she has reviewed how the Alaska Supreme Court would rule on SB 105, based on the analysis of other cases. She added Ms. Lauterbach from the Division of Legal Services has written an opinion on the issue. Number 311 SENATOR ELLIS asked Ms. Rutherdale to research any existing case law for cases in which a lawsuit was brought against a physician or clinic for the treatment or screening of a minor for a sexually transmitted disease without parental notification or consent. Number 325 SENATOR MILLER asked for the name of the material cited by Ms. Rutherdale. She responded it is the appendix to the decision by the California Supreme Court, the American Academy of Pediatrics v. Lundgren, 1994. SENATOR MILLER commented Ms. Rutherdale's testimony alludes to a reason not to defend SB 105 should it be enacted. He expressed his concern that the Administration may decide not to defend a law passed by the Legislature if challenged, because it might not be the politically correct thing to do. MS. RUTHERDALE noted all of the Administrations have not enforced the existing law because of the judicial bypass issue. SENATOR TAYLOR indicated Ms. Rutherdale said that if SB 105 is enacted and resolves the judicial bypass issue, the law would still violate the right of privacy. He asked how she would redraft SB 105 to accommodate the right to privacy concern. MS. RUTHERDALE replied the bill has been drafted well, and she did not think a better job could be done. Number 368 SENATOR GREEN discussed a recent situation in which a minor was convicted of driving without a license and caused damage of under $1,000 in an accident. The parents accompanied the minor to court for the sentencing. MS. RUTHERDALE responded the parents are not required to attend the court hearings, but many parents do. SENATOR ELLIS noted the judicial bypass procedure would allow the child to appear in court without parental participation. SENATOR TAYLOR stated SB 105 would be held in committee and heard next Wednesay. He asked Ms. Rutherdale to review the other 22 sections of law that require parental consent, and give the committee her opinion of why each of those statutes are not violative of the same right of privacy issue. He discussed the Raven case and added reliance upon it is weak at best since it was based on incorrect information. MS. RUTHERDALE commented the Supreme Court did rule on a similar case in which cocaine was found in the defendant's home and found the state to have a compelling interest. SENATOR TAYLOR announced SB 105, HB 115, and SB 95 will be held over until Wednesday's meeting. He adjourned the meeting at 4:10 p.m.