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For the first time anyone can remember — and, if there is historical precedent, it is not accessible via current legislators’ institutional knowledge or the internet — the Alaska State Senate has turned down the request from the House for a joint session. The purpose of the two chambers meeting together, which had been scheduled for Thursday, is to confirm appointments made by the governor.
During a floor session Wednesday afternoon, Senate Majority Leader Peter Micciche (R-Soldotna) moved and asked unanimous consent to rescind the senate’s acceptance to the House’s procedural invitation. Democrats in the minority objected.
“We have a long process. The culmination is tomorrow. The candidates who have been appointed and are awaiting confirmation, waiting to roll,” Senate Minority Leader Berta Gardner (D-Anchorage) countered. “It should happen tomorrow.”
“The reality of it is, this is often an all-day process,” Micciche reasoned. “We have a couple days left and we want it to be dedicated to key legislation to get that across the finish line.”
He said that the joint confirmation hearing would be rescheduled. The body supported the move by a vote tally of 15-5 along caucus lines.
One lingering appointee is Acting-Attorney General Jahna Lindemuth. Another is Drew Phoenix, Acting-Commissioner of the Human Rights Commission (HRC). Both appointments have, in recent days, sparked controversy.
Campaign Against Drew Phoenix
HRC is a state agency tasked with enforcing the Alaska Human Rights Law, as defined by AS 18.80. Seven commissioners, appointed by the governor and confirmed by the legislature, serve five-year terms. Phoenix was one of two members nominated this session by Gov. Bill Walker (I-Alaska).
Before the appointment, Phoenix served for three years as executive director of Identity, Inc., a statewide nonprofit which advocates on behalf of LGBT Alaskans. He worked for the ACLU of Alaska Foundation before that. Phoenix currently lives in Fairbanks after moving from Anchorage with his wife.
“Between those two organizations, I’ve worked very much in depth with all kinds of civil rights, human rights issues,” Phoenix told the Senate Judiciary Committee during his first confirmation hearing on April 7.
None of which has to do with a current campaign being waged against his confirmation by the Alaska Family Council/Action (AFC/A), a conservative nonprofit that has fought against anti-discrimination legislation statewide.
In two email blasts sent out on Monday and Tuesday, as well as a Facebook post, AFC/A called on supporters to oppose Phoenix’s confirmation. In one such mailer, with the subject heading that read, “Walker Appoints Transgender ACLU Activist ! [sic] Time To Act[,]” AFA/C president Jim Minnery called Phoenix a “transgender activist” and implored his supporters to tell their “legislators that an extreme, left-wing, anti-religion ACLU activist is the wrong person to be serving on a quasi-judicial panel like the Commission for Human Rights.”
Phoenix, who is a transgender man, is also an ordained United Methodist minister who practiced for more than 19 years before moving to Alaska. He transitioned while ministering as pastor of St. John’s United Methodist Church of Baltimore City in Baltimore, Maryland.
While there is plenty of conflicting opinions over doctrinal interpretation as it pertains to sexual orientation and gender identity, calling him “anti-religion” is dishonest and without merit.
There is some fairly universal agreement among sects of Christianity regarding honesty.
“I think most of us down here really want individuals to be treated openly and fairly and it sounds like that’s been a goal of yours,” committee chair, Sen. John Coghill (R-North Pole) said during the hearing. “But, in the gender identity world, you certainly, I think, if that’s what you were referring to with the gay and lesbian work, that seems to be the hot button issue right now. Is that something you work on?”
Coghill said Phoenix’s affiliation with the ACLU concerned him.
“[W]hen we get into a public body, we have to look at the law and try to apply it as evenly as we can…. I could see some real tension there. I’m just, when reading your biography, it just got my attention up a little bit.”
“My role as commissioner is to enforce the human rights law as it exists in 18.080 and I will do that faithfully, and objectively, and impartially, to the best of my ability,” Phoenix responded.
Alaska human rights law does not offer workplace or housing protections for LGBTQ citizens, he pointed out.
There is legislation to extend such protections currently in both the House and Senate, but there has been little movement. The HRC passed a resolution last year that would recognize such discrimination under the existing auspices of sex discrimination, mirroring the federal Equal Employment Opportunity Commission (EEOC), but Walker did not sign off on the move.
Senate President Pete Kelly (R-Fairbanks) also voiced concerns about the role of both the ACLU and the HRC in relation to court decisions pertaining to abortion.
“One of the things that I’m struggling with isn’t necessarily this candidate, it’s the Human Rights Commission,” he opined. “It seems to want to get out of the bounds that are created for them by the statutes that we have written. And it seems that the ACLU often comes to their aid in that.”
Kelly wondered allowed if, by confirming Phoenix, they were “going to add another person to the commission” who would be “willing to go through other means to achieve those ends.”
“It seems they’re planning to usurp the legislature’s authority,” he said ominously.
Sen. Bill Wielechowski (D-Anchorage) took issue with the remarks.
[T]he position that Drew Phoenix has taken, or his organization has taken — in which he hasn’t worked in four years — is a position in that the Alaska Supreme Court agreed with. So, I want someone on the Human Rights Commission that understands the law, that is advocating for justice and human rights, and I don’t care what his personal views are on these highly controversial issues that have absolutely nothing to do with his ability to perform his functions as commissioner on the Human Rights Commission.
“The Majority gave no reason for this unprecedented delay,” Wielechowski said about the joint session cancellation. He responded to my inquiry Wednesday evening, via email. “Tomorrow is Day 86 and we have had months to learn about these nominees. All I can say is there must be some nomination that they do not want to vote on.”
Earlier, I spoke with Micciche over the phone. He flatly denied one had anything to do with the other.
“I haven’t seen the emails from the Alaska Family Council,” he said emphatically. “It has not been mentioned by anyone in the Majority caucus. Leadership has not discussed it. It has no part in the decision to reschedule the joint session.”
“We’re trying to wrap up on the budget.”
Jahna Lindemuth Faces Public Opposition
While I spoke with Micciche, Walker’s attorney general pick was in the middle of her own Senate Judiciary confirmation hearing. Lindemuth has been serving as the acting-attorney general since Craig Richards resigned in June of last year.
Objection to Janna Lindemuth’s confirmation came largely from the public and stems from a case regarding land known as R.S. 2477 right of ways. Alaska has been in push-and-pull legal battles over development and use of those lands for over a century and that history is as complicated as it is extensive.
The federal Mining Act of 1866, Sec. 8 provided that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
That section of the law – defining the lawful use of those right of ways – is known as R.S. 2477. It lasted until Congress repealed and replaced it with the Federal Land and Policy Act in 1976 (FLPMA). FLPMA effectively froze the R.S. 2477 right of ways in Alaska.
The Alaska Native Claims Settlement Act (ANCSA), signed into law in 1971, disputed the land freeze in cases where land conveyed “is subject to valid existing rights… even if those existing rights are not recorded or otherwise identified.”
In the 1980s and ’90s, the Alaska Department of Natural Resources (DNR) mapped out more than 650 R.S. 2477 trails and the state legislature codified the State’s claim to them. The Dalton Highway, Farmers Loop Road in Fairbanks, DeBarr Road in Anchorage, the Klutina Lake Road near Copper Center, the Iditarod Trail, and the Chilkoot Trail are all R.S. 2477 right of ways.
Ahtna, which was incorporated under ANCSA as one of thirteen Alaska Native Regional Corporations, sued over use of R.S. 2477 lands conveyed to them under ANCSA in 2008. Their contention was that lands they held claim to could only be used as accessible for the public to travel through, and were ineligible for recognition by the State as land available for public commercial and recreational use. They were only available to the public to travel through (egress/ingress).
Anchorage Superior Court Judge Andrew Guidi, however, sided with Ahtna. The State has appealed that partial summary judgment. Acting-Attorney General Janna Lindemuth is heading that effort, and is pursuing a settlement. This has made her confirmation controversial to many members of the public. Senate Judiciary heard their views Wednesday afternoon.
“If anyone does disagree with my judgment in this one particular case, I ask that I be judged on my entire record, not only the eight months that I’ve served as Alaska’s attorney general but in my whole career,” she told committee members.
Defending the efforts towards a settlement, Lindemuth added,
There will be boat launches, there will be fishing opportunities along the right of way, and there will be camping. And the main distinction is that Ahtna will be allowed to charge for camping. But this will be on Ahtna land, so there’s going to be additional areas cleared for camping – so, additional opportunities for camping. Ahtna would be allowed to charge a reasonable fee that’s not more than what a State campground charges. What they were experiencing with camping is folks leaving trash and that kind of thing. So, we’re trying to balance those rights in this particular case.
Scott Ogan opposed Lindemuth’s confirmation. Ogan served in both the House and Senate over a decade’s time — including as the vice-chairmen of the Judiciary Committee in both bodies — before moving onto the Department of Natural Resources, where he headed the Public Access Assertion Defense (PAAD), which recorded evidence supporting R.S. 2477 lands.
He said that the current suit, which Lindemuth was pursuing a settlement on, was the strongest case supporting historical use of any R.S. 2477 case in state history. Settling, he said, would be a mistake.
“I see this as a co-management of the State’s assets, which is very troubling to me. The AG mentioned in her testimony that the suit was against Ahtna. Ahtna sued the State and the State is being defended. Settling this, in my opinion, is not in the best interest of the State,” he explained. “I want an attorney general that is going to be aggressive about that and not roll over and capitulate, because I believe that’s what’s going on.”
Conversely, Michael Geraghty, attorney general under Gov. Sean Parnell (R-Alaska), said, “I do not see eye to eye with our governor on many issues, but his appointment of Ms. Lindemuth to the AG position was an excellent choice and one I wholeheartedly endorse.”
Rebutting Ogan’s comments, he added,
Only a fool or a neophyte believes they can achieve the best results by always taking their cases to trial and casting their fates to a jury, or a single judge, and then perhaps an appellate court. Any attorney general worth his or her salt will always explore opportunities to resolve cases at the appropriate time based upon the calculus of weighing the risks involved and whether there is a compromise available that can accommodate the critical needs of the people of Alaska, but also recognizing that all settlements aren’t perfect to one degree or another. But they’re far preferable to being shut out by the courts and coming away with nothing except perhaps years of appeal and continuing uncertainty and frustration.
“She’s simply an outstanding attorney,” he concluded. “She’s imminently qualified.”
“That was three minutes over, but very well said,” Coghill said, laughing.
Qualified to Serve
The House and Senate are constitutionally obligated to meet in joint session to consider gubernatorial appointments. Those appointees, whether confirmed or not, serve at the pleasure of the governor — and can be removed by law if warranted (Article III, Section 25 and 26). The only difference between a confirmation and no confirmation is the addendum of the word “Acting” in front of their job title.
There is no constitutional provision allowing either legislative chamber to punt due to time constraints or budgetary prioritization.
There is no constitutional provision requiring that nominees must agree with senators on policy issues.
Alaska has not turned down an appointment to the office of attorney general since 2009. That year’s achievement level was unlocked by Gov. Sarah Palin, who nominated Wayne Anthony Ross.
It was well deserved.
Ross’s controversial nomination was train wreck — though not in regard to employment with the ACLU, gender identity, or a pursuit of a settlement in a case about land use rights.
In 1993, the Anchorage lawyer who drove (drives?) a red Hummer with the license plate “WAR” wrote a letter to the Alaska Bar Association calling LGBTQ Alaskans “degenerates” whose “lifestyle was a crime only a few years ago, and whose beliefs are certainly immoral in the eyes of anyone with some semblance of intelligence and moral character.”
He likened his opposition to LGBTQ Alaskans to his aversion to lima beans — during his confirmation hearings.
In response to Palin’s critics, he suggested that “she needs to smile more.”
In his book, Blind Allegiance, former Palin aide Frank Bailey noted that Ross was,
brilliant and conservative, with the religious right — including the pro-life Alaska Family Council headed by tenacious religious conservative Jim Minnery — strongly supporting him.
Legislators, the public, and AFC/A may need to reevaluate what “unqualified” means if disagreements over policy decisions (which, in Lindemuth’s case, are her prerogative and to be adjudicated by the governor, barring demonstrable illegality necessitating legislative action) and past employment (which in normal years would be marked in the “plus” column, in Phoenix’s case) are to be accepted as newly adopted benchmarks.
The Senate needs to reschedule the joint session and give these appointees their constitutionally mandated confirmation hearings. Anything else sets a very dangerous precedent and departure from a functional legislative branch.
Alaska House Majority Co-Opts Senate Bill as Deficit Reduction Vehicle. We’re Sure That’ll Go Over Just Fine.
The Alaska House Finance Committee threw a late-session wrench into the gears Monday morning when they introduced a committee substitute (CS) for Senate Bill 26 — a bill passed by the Senate last month which originally intended to limit state spending while drawing from the Permanent Fund earnings reserve to diminish the fiscal gap.
The CS exemplifies everything lawmakers in separate chambers hate: It’s a massive rewrite, largely overturning the original intent of the Senate bill, complete with a prerequisite stating that the Senate has to now play by the House’s edits or else all deficit reduction measures fail.
The new version incorporates the bulk of the House’s previous deficit reduction proposal, House Bill 115. However, Finance co-chair Paul Seaton (R-Homer) said he chose to use SB26 as a vehicle over concerns of a potential legal challenge. Per KTOO’s Andrew Kitchenman,
Seaton said he expected that if that bill became law, it would likely have faced a lawsuit. While he said he expects the state Supreme Court would uphold the law, he wanted to avoid a legal battle.
The new bill bears quite a few changes from the original one passed by the Senate. It raises the ground floor on reductions to the draw from the earnings reserve when oil revenues exceed $1.4 billion, rather than the $1.2 billion in the previous version. Instead of being dollar-for-dollar, it is now 80 cents on the dollar. It also accelerates the change in the percent of market value (POMV) draw from the Permanent fund from 5.25 percent to five percent by a year, with an effective date of July 1, 2019, rather than July 1, 2020.
One quarter of the POMV is directed to the principle of the fund — a third of which goes to dividend funding and two-thirds of which pays for government. Further appropriations can be made to ensure a minimum dividend check of $1,250 in 2018 and 2019.
But Section 19 of the rewrite is the kicker. It requires that the act “only takes effect if the legislature also passes and signs into law a broad based revenue measure and HB111 as passed by the House.”
HB111 is a revision of the current oil tax regime, including production taxes, tax credits, and royalties.
“The Senate version would lower the amount that the state draws from Permanent Fund earnings by a dollar for every dollar the state raises in oil royalties and taxes above $1.2 billion,” Kitchenman noted. “The House version would increase that level to $1.4 billion and lower [cuts] to the Permanent Fund draw to 80 cents on the dollar.”
Meaning that, in the unlikely event of oil prices rebounding, the State could spend more. But, testifying before House Finance, Commissioner of the Department of Revenue, Randall Hoffbeck, estimated that current royalties and production taxes, combined, amount to about $600 million right now.
“This committee voted nine-to-one, with reason, as to why we would put the $1.2 billion draw limit and a dollar-per-dollar after. It would grow the fund, it would make more money available for dividends in the future, it would make more money available for the government to use,” Rep. Steve Thompson (R-Fairbanks) asked Taneeka Hansen, staff to Rep. Seaton.
Some members expressed interest in having funds available in years when oil prices might be higher to make additional appropriations to deferred maintenance during lean years, Hansen said.
“Is it fair to say that this is basically HB115, minus the income tax, placed into SB26?” Rep. Tammie Wilson (R-North Pole) asked Hansen.
“Yes, it’s very similar to the components we’ve seen before the committee in HB115,” Hansen replied.
The conditional language inserted, requiring a broad-based tax and the oil tax revisions included in HB111, prompted a very animated Rep. Lance Pruitt (R-Anchorage) to weigh in with a heavy accent steeped in rhetoric.
“If that doesn’t sound illegal, or quid pro quo, I don’t know what does. That right there scares the living daylights out of me, that you would try to say that the other body has absolutely no ability to determine whether or not they feel that that particular piece of legislation should be amended in a different manner.”
“That, right there, is dangerous,” he added, insinuating that the majority caucus was attempting to hold the Senate “hostage.”
The House minority and the Senate majority have been outspoken in their opposition to the proposed income tax supported by the Gov. Bill Walker (I-Alaska) administration and the House majority caucus, the latter of which predominantly is comprised of Democrats.
Rep. Les Gara (D-Anchorage) responded to Pruitt, after pleading for more civility and decorum during debate over the bill.
There have been attempts by legislators in this legislature to say, “Only reduce the Permanent Fund earnings. Don’t do anything to raise other revenue. Let the oil industry keep the law in place that benefits their bottom line the most and don’t ask those with the greatest privilege to chip in.”
The Permanent Fund only hits the poorest people in Alaska the hardest. If you have $10,000 of income and you lose your Permanent Fund income, and you don’t live in a cash economy, you are hit hard by just a Permanent Fund plan. So, there’s an attempt here to raise the dividend. But, there’s also an attempt to say that a fiscal plan should be fair to everybody. If somebody who struggles to make ends meet is going to chip in – and I’m glad the dividend in here is largest – but those with the greatest privilege should also chip in, in a fair way.”
The House, in both HB115 and the CS for SB26, have required that the minimum Permanent Fund Dividend (PFD) payout be at least $1,250, whereas the Senate has proposed capping it at $1,000.
The Senate’s plan, as originally written, “leaves a structural deficit of $500 million every year over the next decade,” Craig Tuten noted last month. The House plan, including an income tax (required in the CS of SB26), “is expected to bring in about $680 million, closing the deficit.”
But do the poison-pill requirements of the CS, killing all other aspects of the bill unless a broad-based tax and oil and gas tax reform are included, poison the well?
“It takes away the other body’s mandate to represent their constituents and vet a bill,” Wilson asked Hoffbeck. “We’re going to say that only one way can it happen.”
“It does increase the chance of failure, but not by much,” Hoffbeck answered, pegging the chance of failure at under two percent. “I think the bigger issue — that raising [of] the threshold and doing the 80 cents on the dollar — it is not nearly as effective in taking volatility out of the revenue forecasts. You’ll still see more volatility in budgeting.”
That outweighs the possible risks to the Permanent Fund, he concluded, adding,
Nobody came into this administration saying, “Let’s figure out a way to use the Permanent Fund.” We came in, we saw we had a huge structural deficit in our budget and said, “How can we use the Permanent Fund to cover this structural deficit?” It was never intended to add just another layer of income on top of existing revenues. It was intended to be a way to fill the gap when we needed it, but not to use it when we didn’t need it.
Pressed further by Wilson, Hoffbeck said, “We’re in a fiscal situation where all things are on the table and everything that we do will have some kind of impact on someone. We look at the conditional language in this bill as a strong statement from this particular committee — and, I assume, from the House in general — of their commitment to a full fiscal plan. That includes both oil and gas tax reform and a broad-based tax.”
“Every year, the previous year, we had a larger amount of money to be able to invest and stabilize [the economy]. But we didn’t do anything, we didn’t do anything, we didn’t do anything,” Rep. David Guttenberg (D-Fairbanks) told his colleagues.
We’re at the point now, we have ability to stabilize the state’s economy; make sure we’re on the long term footage. We can take out some of the spikes in the volatility of the Permanent Fund; we can keep the people getting a dividend, which is important; we can balance this over the years — or we cannot. You know, we can just do this in segments and be in crisis every year…. Whether it’s kids in college or K-12, or industry being able to invest, or a mom-and-pop store knowing that people in their neighborhood are going to have cash to spend — that’s what’s important. And I think we’re there. We have the opportunity to do that and I think we should move forward and get it done.
And thus, the battle that everyone saw coming — not a neatly partisan divide, but a divide between the majorities in the Senate and House — is here. The tension in House Finance, as the deliberations over the new version of SB 26 proceeded, was
an insanely unproductive series of cross examinations palpable, and echoes of the 140-day session in 2015 loom large, as the hackles on each corner of every side are currently standing at attention.
Finance co-chair Neal Foster (D-Nome) told his colleagues that all amendments to the CS for SB26 need to be submitted to his office by 11:00 am Tuesday morning. House Finance will reconvene at 1:30 pm.
Tuesday will be day 85 of the 90-day session.
The House unanimously passed Friday a bill that will quantify the untested rape kits throughout Alaska so the State can determine how best to clear the backlog.
Gov. Bill Walker’s administration began a statewide audit of the kits last year. Using federal grant money, the State began testing a backlog of sexual assault kits in possession of the Alaska State Troopers, but participation in the audit by municipal and tribal law enforcement agencies was voluntary.
HB 31 will require all 200 law enforcement agencies in Alaska to count and date their untested rape kits. The information will be compiled in a report by November 1.
Rep. Dan Saddler (R-Eagle River) said he cautiously supports the bill as a balance between oversight and micromanagement.
In a dig, Saddler said he would have hoped Department of Public Safety (DPS) Commissioner Walt Monegan would have taken care of the audit gaps himself.
“It appears… that that is not the case,” said Saddler.
Tarr said there are at least 3,600 untested sexual assault kits in Alaska.
“The system is very, very broken,” she said. “Until we have a full picture of how many untested kits there are, we can’t really move forward.”
Originally, HB 31 would have cleared the backlog and required all rape kits to be tested within 18 months.
Tarr said the information collected through the new version of HB 31 will help legislators determine the cost of testing all the kits and whether an 18-month limit is realistic.
Rep. Gary Knopp (R-Soldotna) and Rep. DeLena Johnson (R-Palmer) both said Friday that they opposed the original version of the bill, but they supported the House Finance Committee substitute without the 18-month mandate.
“I really think the process worked in this particular case,” Johnson said.
HB 31 contains what Tarr called the “gold standard in victim reporting options.”
Evidence of sexual assault has to be collected within 72 hours to be viable, she said. But, “You want to have a program that is very victim-centered.”
To that end, HB 31 allows collection of the evidence while maintaining the anonymity of the victim. Victims can also file an identifying medical report that does not involve law enforcement.
An amendment in House Finance, supported by Tarr, adjusted the age at which a victim can choose how to report rape from 16 to 18. Tarr explained in a hearing that there are already statutes that mandate reporting for sexual assault of a minor.
The reporting options allow victims time to heal before potentially filing charges, Tarr said. Yet the sexual assault kits with the important DNA evidence still make it into the hands of law enforcement for testing.
“We know that DNA evidence can get dangerous criminals off our streets,” Tarr told the House.
Tarr pointed to the story of Clifford Lee, covered by Alaska Dispatch News. Lee committed multiple rapes in 2014. DNA evidence from those rapes linked Lee to unsolved rapes in 2001 and 2005.
Lee’s story “really motivates me to work on this issue,” said Tarr.
“I believe as strong as ever that victims deserve justice, and this is part of getting them justice,” she said of HB 31.
The bill adds sexual assault training to the domestic violence training required of law enforcement officers in Alaska. The House Finance amendment clarifies that the training should last at least 12 hours for each subject.
Rep. Tammie Wilson (R-North Pole) thanked DPS Friday for already following that standard prior to passage of the bill.
The Alaska House Health & Social Service Committee (HSS), Thursday afternoon, heard House Bill 54.
HSS is the first committee of referral and this was the second hearing on the bill, sponsored by Rep. Harriet Drummond (D-Anchorage).
In states where such measures have been enacted — California, Colorado, Oregon, Vermont, and Washington — the legislation is generally referred to as the “Death with Dignity” act and is aimed at allowing terminally ill patients to coordinate end of life treatment with their physicians.
Drummond filed a similar bill last session, HB99. That attempt also was referred to House HSS. It, too, received two hearings the first year it was introduced, but was shelved and expired at the close of session without further attention in 2016.
“House Bill 53 is about patients’ rights and end of life care,” Drummond said, with staffer Kristin Kranendonk seated next to her. “It allows patients to have important end of life discussions with their own doctors. Doctors they already know and trust. It allows a patient to ease their pain and suffering and live and die on their own terms, according to their own beliefs.”
Public testimony lasted about a half hour and succeeded in facilitating the views of everyone who wished to opine. The conversation was emotional, because the bill is intimately a matter of life and death — which could potentially result in a lot of grey area with a bill that takes medical diagnoses, which don’t consistently operate according to forecasts, and allows terminally ill patients to opt out of treatment.
Take, for instance, the case of James “J.J.” Hanson, who testified as the Chair of the Patients Rights Action Fund, which, according to their website, “provides financial and strategic support throughout the U.S. to protect the rights of patients and people with disabilities by opposing assisted suicide legalization efforts.”
Hanson is a U.S. Marine war veteran, husband, and father, who went to the hospital in 2004 after experiencing a grand mal seizure. After being cleared by doctors after a CAT Scan, he told the committee, his wife insisted an MRI. That’s when they found two inoperable brain tumors — Grade Four Glioblastoma, sadly the doctors at the last hospital he had visisted didn’t pay enough attention to this, The Medical Negligence Experts had to take care of the situation.
At the time, his son had just turned one.
“When I was diagnosed, the neurosurgeon told me that it was inoperable and that I probably only had fourth months to live. I had not only one but three different doctors tell me that there was nothing I could do about it,” Hanson told the committee, via his wife, because Hanson was unable to read. “I, fortunately, did not listen to those doctors. I chose to do standard treatment and experimental treatment.”
Those four months have turned into three years, which he has dedicated to fighting legislation like HB54.
Hanson said it hasn’t been easy.
“There has been a lot of physical and emotional pain. I’ve had countless seizures. There have been days where I have completely lost all of my most basic abilities. At some points, I’ve been unable to walk, talk, read, or write,” he said.
But, if this legislation was legal at the time I was diagnosed and told I was terminal, I could have gotten a doctor prescribed suicide pill when I was in good spirits and motivated to fight my illness. I could have had them with me as I laid in bed during month five when I was in pain and questioning whether life was worth living. I could have had them on my night stand and no doctor would have have been with me as I wondered, am I too much of a burden to my family? I could have had them at a time when my entire family was under a great deal of stress trying to cope with my illness, and then I ask the question, is ending my life easier than this? I thought about it and I considered it. Ultimately, I did not end my life and that is why I am here today.
“If I had suicide pills with me in those dark moments, I might not be here today. And you can’t undue that,” he concluded. “You can’t unmake that decision. There’s no going back. You’re dead. My wife would be without a husband and my son would be without a father.”
Hanson, through his wife, said it’s a very dangerous situation where suicide becomes normalized among terminal patients, especially among the veteran community who may have a terminal illness compounded by depression and PTSD.
Dr. Jeanne Anderson, a medical oncologist in private practice at Katmai Oncology Group in Anchorage who received her medical degree from Stanford and trained at the University of Washington, praised Hanson in her testimony.
“From a standpoint of a physician, the concept of terminal and defining it as you have less than six months to live is just a fallacy and I’m very strongly against that,” she said. “Physicians come up with estimates on survival duration based on published data. Those data come from studies that were performed years earlier. There also using treatments that are not the most up to date treatment. And is also based on narrowly based on narrowly defined patient populations. We then use our clinical judgment to say whether or not the patient fits those published data. Even well informed, well meaning oncologists, such as myself, make drastic mistakes in estimating prognoses.”
Anderson cited three specific examples in which patients she had treated would have fallen within the categories qualifying patients as likely to die within six months who had lived years — the time frame that would qualify someone for physician assisted suicide under the auspices of HB54.
“Cancer is very unpredictable. We will say that they’re going to die soon, but we don’t know the natural history of one person’s individual cancer. There’s changes in the aggressiveness of it, there’s changes in unexpected response to treatment, there’s new treatment options available. There’s inaccuracies in assessing the stage or the response to treatment. And then there’s also the patients’ inherent will to live,” she said.
Testimony was lopsided, with all but one opposing the measure. This may or may not have been fueled by calls from Alaska Family Council President Jim Minnery releasing a barrage of email blasts objecting to the proposal, clad with whatever this image is supposed to be.
But, whether or not AFC needed to invoke the spectre of Skeletor, there are questions about what road HB54 would put Alaska down.
Rep. David Eastman (R-Wasilla) asked, “if I want to commit suicide… and I receive the drugs, and I take them, and my relatives, you know, suspect there was foul play involved – suspected it wasn’t really me to do that; somewhere there was bad actors involved — what sort of written documentation would be available for them to verify that what actually happened was supposed to happen?”
“The terminal patient has to… personally request the medication on two separate occasions separated by… 15 days,” Drummond explained. “They have to request it again of their primary care physician or whoever is — whatever physician is caring for them at this end stage of their life. They have to be determined to be terminally ill, such that they would most likely be dead within six months.”
She added that there’s paperwork that would need to be filed declaring the patient requesting physician assisted suicide capable of making the decision and not being coerced. If the physician deemed them to be in a state where they may not be capable of making rational decision, they would be recommended for counseling.
“So, there are a number of safeguards that would keep – keep it between the patient and their doctor. Now, if there’s actual wrongdoing, like somebody got a hold of the medication, that would be murder. Someone who would not be authorized to using this medication. And it’s supposed to be self-administered by the patient themselves. So, if that doesn’t happen, then there’s potential for murder charges if somebody else got a hold of the medicine and shouldn’t have it,” Drummond said.
Eastman worried aloud about “some of the things going on in California and Oregon” where health insurance companies might push for assisted suicide, versus continued care and coverage, for cost saving measures.
“[T]here’s a tendancy to want to prefer a less expensive option as opposed to something that would be life saving but perhaps more expensive,” he said.
This is a valid concern. As Diane Coleman wrote for CNN in 2014,
The idea of mixing a cost-cutting “treatment” such as assisted suicide into a broken, cost-conscious health care system that’s poorly designed to meet dying patient’s needs is dangerous to the thousands of people whose health care costs the most — mainly people living with a disability, the elderly and chronically ill.
Assisted suicide drugs cost less than $300. Compare that with the cost of treating a terminal illness.
“Alaska currently has a lot of amazing and dedicated palliative care and hospice care providers in the state that work with terminally ill individuals every day,” Kranendonk responded. She noted that the State Department of HSS currently houses the Comfort One Program, established in 1996.
Your physician fills out a form for you when you have been diagnosed with a terminal disease, and they start talking about all of the things that go along with your diagnosis: treatment, end of life options, hospice, palliative care – all of that stuff is on there… State regulations contain a “do not resuscitate” protocol for physicians and other health care providers, including EMTs, to set out a standardized procedure for withholding CPR, things like that. So, any qualified patient, which all qualified patients for Comfort One would not also qualify for this legislation. But, all the ones that are qualified for this legislation would qualify for Comfort One…. So, again, they have a card with them in their wallet at all times and, under statewide protocol, CPR is not started if you’ve signed up for Comfort One.
In 1998, a bill was passed to remove, in that same program, the duty of a peace officer to respond to an expected home death. So, anyone in the Comfort One program who is in hospice or at home at the time of their death doesn’t have to go to a coroner. There’s a form already filled out and it’s on file. So, we do already have several options in place in terms of that kind of care for our patients.
“We have hundreds of communities in this state that are inaccessible by road. We have thousands of patients that aren’t always able to travel to see their doctors,” Drummond added. “I can’t imagine what it would be like and I hope none of us and nobody in my family would ever have to undergo this option.”
But, she said, the geographic reality of the state makes end of life management — and continued treatment for a terminal illness prognosis — extremely expensive. Drummond said she offered the bill as an attempt to explore options for people faced with those realities and expenses.
“I’m trying to make end of life decisions for Alaskans easier, not harder,” she said.
The committee held the bill and expect to return to it next week.
SCR2, dedicating April as Sexual Assault Awareness Month, sponsored by Sen. Kevin Meyer (R-Anchorage) and Rep. Scott Kawasaki (D-Fairbanks), was moved from the committee and now heads to the House floor.
The hearing on HB25, dealing with insurance coverage for contraceptives, was postponed until the next hearing.