Legislature(1997 - 1998)

01/21/1998 01:40 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
          HOUSE FINANCE COMMITTEE                                              
              January 21, 1998                                                 
                   1:40 P.M.                                                   
                                                                               
TAPE HFC 98 - 3, Side 1                                                        
TAPE HFC 98 - 3, Side 2                                                        
TAPE HFC 98 - 4, Side 1                                                        
                                                                               
CALL TO ORDER                                                                  
                                                                               
Co-Chair Gene Therriault called the House Finance Committee                    
meeting to order at 1:40 p.m.                                                  
                                                                               
PRESENT                                                                        
                                                                               
Co-Chair Hanley    Representative Kelly                                        
Co-Chair Therriault   Representative Kohring                                   
Representative Davies  Representative Martin                                   
Representative Davis  Representative Moses                                     
Representative Foster                                                          
Representative Grussendorf                                                     
                                                                               
Representative Mulder was not present for the meeting.                         
                                                                               
ALSO PRESENT                                                                   
                                                                               
James Armstrong, Staff, Senator Donley; Angela Salerno,                        
Executive Director, National Association of Social Workers                     
Alaska Chapter; Margot Knuth, Assistant Attorney General,                      
Department of Law; Bill Elkinton, Juneau; George Buhite,                       
Division of Family and Youth Services, Department of Health                    
and Social Services; Kristen Bomengen, Assistant Attorney                      
General, Department of Law; Liz Dodd, Acting Director,                         
Alaska Civil Liberties Union; Nancy Weller, Division of                        
Medical Assistance, Department of Health and Social                            
Services; Ruth Ewig, Fairbanks; Sharon Smith, Fairbanks;                       
Blair McCune, Deputy Director, Public Defenders Agency,                        
Anchorage.                                                                     
                                                                               
SUMMARY                                                                        
                                                                               
SB 63 "An Act providing for automatic waiver of juvenile                       
jurisdiction and prosecution of minors as adults                               
for certain violations of laws by minors who use                               
deadly weapons to commit offenses that are crimes                              
against a person, and relating to the sealing of                               
the records of those minors."                                                  
                                                                               
 SB 63 was HELD in Committee for further                                       
consideration.                                                                 
                                                                               
HB 234 "An Act relating to assistance for abortions under                      
the general relief program; and relating to                                    
financial responsibility for the costs of                                      
abortions."                                                                    
                                                                               
 CSHB 234 (FIN) was REPORTED out of Committee with                             
a "do pass" recommendation and with a fiscal                                   
impact note by the House Finance Committee.                                    
SENATE BILL NO. 63                                                             
                                                                               
"An Act providing for automatic waiver of juvenile                             
jurisdiction and prosecution of minors as adults for                           
certain violations of laws by minors who use deadly                            
weapons to commit offenses that are crimes against a                           
person, and relating to the sealing of the records of                          
those minors."                                                                 
                                                                               
JAMES AMRSTRONG, STAFF, SENATOR DONLEY testified in support                    
of SB 63.   He observed that the Committee received a                          
proposed committee substitute for SB 63, work draft O-                         
LS0295\B, 6/30/98 (copy on file).   He maintained that the                     
proposed committee substitute would create a strong                            
deterrent to the repeated use of deadly weapons by                             
juveniles.  The proposed committee substitute would                            
prosecute as adult, minors that:                                               
                                                                               
1. Use a deadly weapon to commit a class B felony                              
crime against a person;                                                        
2. Are 16 or older, and                                                        
3. Were previously adjudicated delinquent or                                   
convicted as an adult of using a deadly weapon to                              
commit a crime against a person punishable as a                                
felony.                                                                        
                                                                               
Mr. Armstrong pointed out that the proposed committee                          
substitute would not waive juvenile offenders who have                         
committed class C felony offenses.  He clarified that                          
offenses committed with a dangerous instrument would not be                    
included under the proposed committee substitute.                              
                                                                               
Representative Davies asked how many cases the legislation                     
would affect.  Mr. James estimated that three cases would be                   
affected by the legislation                                                    
                                                                               
Representative Davies noted that the Department of Law                         
waived seven cases in the past year.  Mr. James observed                       
that the legislation expands the law to cover class B                          
offenses.                                                                      
                                                                               
Co-Chair Therriault MOVED to ADOPT work draft O-LS0295\B,                      
6/30/98.  There being NO OBJECTION, the motion was adopted.                    
                                                                               
Representative Davies asked the significance of the language                   
"a crime punishable as a class B felony."  He questioned if                    
the language would reach beyond class B felonies; such as in                   
the case of a class C aggravated offense.  A class C                           
aggravated offense would be punishable as a class B offense.                   
Mr. James did not think that a class C aggravated offense                      
would be waived by the legislation.                                            
                                                                               
MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,                   
DEPARTMENT OF LAW AND GOVERNOR'S CHILDRENS CABINET ON ISSUES                   
OF JUVENILE JUSTICE testified that SB 63 represents a change                   
in Alaskan law.  She observed that, currently, automatic                       
waivers only occur for unclassified and class A felony                         
offenses.  She noted that the Governor's Conference on Youth                   
and Justice considered the issue of extending automatic                        
waivers to other offenses.  The Governor's Conference on                       
Youth and Justice concluded that dual sentencing for younger                   
offenders or lesser offenses would be a better alternative.                    
She pointed out that HB 16 would include a dual sentencing                     
provision for this type of offense.  The Governor's                            
Conference on Youth and Justice recommended more prevention                    
for the bulk of juvenile offenses.  She acknowledged that                      
the legislation is improved by the proposed committee                          
substitute.  She estimated that eight juveniles a year would                   
be affected by the legislation.                                                
                                                                               
In response to a question by Co-Chair Therriault, Ms. Knuth                    
clarified that the Senate Finance Committee's fiscal note                      
was in reaction to the Department of Corrections' request                      
for a new facility. The Senate Finance Committee disputed                      
the Department of Corrections' claim that the legislation                      
would require an expansion of existing facilities. She noted                   
that the Department of Corrections' revised fiscal note only                   
includes incarceration costs of new offenders.                                 
                                                                               
Co-Chair Therriault provided members with a copy of the                        
offenses that would be captured by the proposed committee                      
substitute (copy on file).                                                     
                                                                               
Co-Chair Hanley noted that the Department of Corrections                       
estimated that eight juveniles would be affect by the                          
mandatory waiver per year.  He questioned if this estimate                     
reflects the number of juveniles that would be waived under                    
the current discretionary law.                                                 
                                                                               
Ms. Knuth did not know if the figure included juveniles that                   
would be waived under current law.  She clarified that the                     
language "punishable as" applies to a unclassified felony, a                   
class A felony and a class B felony.   She observed that                       
sections 1 and 3 are not parallel.  She explained that                         
"punishable as an unclassified felony" indicates that it is                    
a crime against a person and is also an unclassified felony.                   
                                                                               
Representative Davies provided members with Amendment #1                       
(copy on file).  The amendment would removed "punishable                       
as".  He emphasized that his intent is to clarify the                          
language.  He asked that the legislation be held in                            
Committee in order to clarify the best method of drafting.                     
                                                                               
Mr. Armstrong provided members with a list of cases that                       
occurred in the previous year (copy on file).  Senate Bill                     
63 would have affected three of these cases.                                   
                                                                               
Representative Kelly observed that juveniles are adjudicated                   
as delinquents for offenses that would be punishable as                        
unclassified, class A, or class B felonies in adult court.                     
                                                                               
GEORGE BUHITE, STATEWIDE, YOUTH CORRECTIONS, DIVISION OF                       
YOUTH AND FAMILY SERVICES, DEPARTMENT OF HEALTH AND SOCIAL                     
SERVICES stated that he would try to determine the number of                   
new cases that would be waived under SB 63.                                    
                                                                               
BLAIR MCCUNE, DEPUTY DIRECTOR, PUBLIC DEFENDERS AGENCY                         
testified via teleconference from Anchorage.  He reiterated                    
that the waiver would be mandatory.  He spoke in support of                    
retaining discretion.  He emphasized that some of the                          
offenders would be amenable to treatment as juveniles.  He                     
clarified that, in automatic waiver cases, the case is taken                   
to a grand jury.  The juvenile is arraigned in adult court.                    
If the jury finds the defendant guilty of a lesser degree                      
offense than what they were charged with, the defendant can                    
request consideration as a juvenile.                                           
                                                                               
SB 63 was HELD in Committee for further consideration.                         
HOUSE BILL NO. 234                                                             
                                                                               
"An Act relating to assistance for abortions under the                         
general relief program; and relating to financial                              
responsibility for the costs of abortions."                                    
                                                                               
House Bill 234 was placed in subcommittee during the                           
previous legislative session.  The Subcommittee consisted of                   
Representative Kelly, Chair and Representatives Martin and                     
Davies.                                                                        
                                                                               
Representative Kelly provided members with a proposed                          
committee substitute for HB 234, work draft 0-LS0848\K,                        
dated 1/19/98 (copy on file).  He noted that provisions for                    
financial responsibility and the definition of abortion were                   
removed.  In addition, an exception for the life of the                        
mother was included.                                                           
                                                                               
BILL ELKINTON, JUNEAU testified in support of HB 234.  He                      
provided members with written testimony  (copy on file).  He                   
maintained that government should not fund elected                             
abortions.  He provided members with the Bill of                               
Responsibilities distributed by the Freedoms Foundation at                     
Valley Forge (copy on file).                                                   
                                                                               
ANGELA SALERNO, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF                    
SOCIAL WORKERS ALASKA CHAPTER testified in opposition to HB
234.  She maintained that the bill eliminates public funding                   
of abortions for poor women. She asserted that if passed,                      
the legislation would be costly and unconstitutional.  She                     
estimated that the State would save $5.82 dollars for every                    
dollar spent on abortions for poor women.  She noted that                      
the State would incur additional public medical and welfare                    
expenses as a result of the additional births.  She reviewed                   
her calculations to demonstrate that the state of Alaska                       
could save $2.44 million dollars with continued funding of                     
the abortion elective.                                                         
                                                                               
Ms. Salerno stated that 68% of low-income women have                           
unintended pregnancies and that 17% have unwanted                              
pregnancies.  She noted that unwanted children:                                
                                                                               
? Experience more mental handicaps and are twice as likely                     
to receive psychiatric care at government expense;                             
? Are more than twice as likely as wanted children to have                     
a record of juvenile delinquency;                                              
? Are six times more likely to receive some form of                            
welfare between the ages of 16 and 21;                                         
? Are at increased risk of suffering abuse, neglect,                           
abandonment and removal to foster homes or institutions.                       
                                                                               
Ms. Salerno stated that research done in 1995 shows that                       
women with unintended pregnancies are four times more likely                   
to experience physical violence during pregnancy than women                    
with intended pregnancies.                                                     
                                                                               
Ms. Salerno observed that the Alaska Supreme Court has found                   
that reproductive rights are fundamental, and that they are                    
encompassed in the right to privacy found in the Alaska                        
Constitution.  She maintained that state restrictions on                       
public funding for abortion make it difficult and often                        
impossible for poor women to exercise their constitutional                     
right to safe and legal abortion.  She asserted that passage                   
of HB 234 would result in a costly legal battle.                               
                                                                               
 Representative Kelly maintained that the right to have an                     
abortion does not incur a state responsibility to fund the                     
right.                                                                         
                                                                               
 (Tape Change, HFC 98 - 4, Side 2)                                             
                                                                               
 Representative Kelly argued that financial concerns should                    
not be used to justify abortion.                                               
                                                                               
 Ms. Salerno acknowledged that the issue is not just                           
financial.                                                                     
                                                                               
 Co-Chair Hanley observed that the Department of Health and                    
Social Services' fiscal note was based on the assumption                       
that 80 percent of low-income women who want to have an                        
abortion would carry their pregnancy to term.  Ms. Salerno                     
stated that her figures were based on research published in                    
the Journal of Obstetrics and Gynecology.                                      
                                                                               
 Representative Grussendorf questioned if pregnancies                          
resulting from criminal action would be covered.  Ms.                          
Salerno stated that she would like to see exceptions                           
included for sexual assault, rape and incest.                                  
                                                                               
 Representative Davies summarized that the state of Alaska is                  
obligated to fund elective abortions because the state                         
provides public money for general relief medical care.                         
Abortions are classified as general relief medical care.                       
                                                                               
LIZ DODD, ACTING PRESIDENT OF THE BOARD OF DIRECTORS, ALASKA                   
CIVIL LIBERTIES UNION testified in opposition to HB 234.                       
Ms. Dodd referred to, Valley Hospital Assn. v. Mat-Su                          
Coalition, Supreme Court, No. 4906, dated November 21, 1997.                   
She observed that the Board of Directors of Palmer Valley                      
Hospital, a non-profit corporation that receives substantial                   
public funds, voted not to provide abortion services at the                    
hospital.  In its decision, the Court found Valley                             
Hospital's action to be in violation of a woman's                              
fundamental right to an abortion, under the Alaska                             
Constitution's Article I, section 22.   This section is                        
commonly referred to as the privacy clause. She read the                       
following excerpt from the unanimous opinion of the court:                     
                                                                               
We are of the view that reproductive rights are                                
fundamental, and that they are encompassed within the                          
right to privacy expressed in Article I, section 22 of                         
the Alaska Constitution.  These rights may be legally                          
constrained only when the constraints are justified by                         
a compelling state interest, and no less restrictive                           
means could advance that interest.  These fundamental                          
reproductive rights include the right to an abortion.                          
The scope of the fundamental right to an abortion that                         
we conclude is encompassed within Article I, section 22                        
is similar to that expressed in Roe v. Wade.  We do                            
not, however, adopt as Alaska constitutional law the                           
narrower definition of that right promulgated in the                           
plurality opinion in Casey. [p. 12]                                            
                                                                               
Ms. Dodd summarized that the state of Alaska would be                          
required to demonstrate a compelling state interest for why                    
these services should be singled out for de-funding. She                       
maintained that the legislation will not stand up to a court                   
challenge.                                                                     
                                                                               
Ms. Dodd quoted from an Alaska court opinion issued by                         
Superior Court Judge Reese, July 1997.  The opinion was                        
issued pursuant to litigation by the Alaska Civil Liberties                    
Union, relating to late-term abortion procedures.  The                         
opinion stated that:                                                           
                                                                               
Respect for constitutional legal principles is                                 
fundamental to the fairness and security we enjoy in                           
Alaska and in the United States.  The bottom line is                           
that we have rules, which control what our government                          
can do to us.  The ebb and flow of public opinion and                          
the gratification of current political needs cannot                            
cancel our fundamental rights.  The legislature cannot                         
eliminate freedom of speech because it doesn't like                            
what we say, and it cannot eliminate the right to a                            
jury trial for the accused even if we all are convinced                        
of the person's guilt . . . . [O]ur privacy rights are                         
essential.  Government cannot take them from us without                        
very strong reasons in support of more important                               
rights.                                                                        
                                                                               
Representative Martin maintained that the issue is whether                     
the state of Alaska is responsible for paying for elected                      
abortions.  He noted that supreme courts of other states                       
have ruled that the fundamental, constitutional right of                       
freedom of choice does not require that the government pay                     
for abortions.  He observed that the North Carolina Supreme                    
Court ruled that the state of North Carolina did not have to                   
pay for abortions.                                                             
                                                                               
Ms. Dodd noted that once the right is established it cannot                    
be selectively infringed upon.   She observed that testimony                   
by the Department of Law stressed that states with a strong                    
privacy clause cannot defund abortion services without                         
defunding other pregnancy related care.                                        
                                                                               
Co-Chair Therriault emphasized that a direct correlation                       
cannot be drawn between states.                                                
                                                                               
Representative Kelly pointed out that abortion is an elected                   
procedure.                                                                     
                                                                               
Representative Kohring stated that because the Constitution                    
is interpreted to permit abortion it does not mean that                        
there should be state funding of elective abortions.                           
                                                                               
Ms. Dodd reiterated that funding decisions have to be                          
consistent with the rule of law that stems from the State's                    
Constitution.                                                                  
                                                                               
Co-Chair Hanley observed that the argument is, that because                    
the state of Alaska funds its birthing services through the                    
Medicaid program and the Constitution grants the right to                      
privacy, that abortion services have to be funded one-                         
hundred percent.  He pointed out that the federal government                   
does not fund abortion services.  He noted Ms. Dodd's                          
argument is that if the State provides any health care                         
services for poor people that abortion services have to be                     
included.                                                                      
                                                                               
Ms. Dodd reiterated that the Court has ruled that one                          
pregnancy related procedure cannot be selectively removed.                     
                                                                               
Co-Chair Hanley emphasized that the concept that the privacy                   
clause gives the right to abortion is hard for him to grasp.                   
He noted his willingness to have the Alaskan Supreme Court                     
deliver an opinion on this issue.                                              
                                                                               
In response to a comments by Ms. Dodd, Representative Kelly                    
emphasized that religious beliefs are not the only                             
motivation for his opposition to state funding of elective                     
abortion.                                                                      
                                                                               
KRISTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES                   
SECTION, DEPARTMENT OF LAW noted that the proposed committee                   
substitute has cleared up a number of legal complications.                     
She stated that one constitutional concern remains.  She                       
observed that other states with strong privacy provisions                      
have found that when state government seeks to act for the                     
common benefit, as it does in providing medical care to the                    
poor, it has a obligation to do so in a neutral manner, so                     
as not to infringe on the constitutional rights of its                         
citizens.  This was taken from a 1993 decision in the state                    
of West Virginia.  She observed that the Alaska Supreme                        
Court has ruled that reproductive rights are fundamental and                   
that there needs to be a compelling state interest in order                    
to influence the exercise of those rights.  The Court                          
rejected the test applied under the Federal Constitution as                    
narrower than the state test.  She noted that a law would be                   
invalid if its purpose is to place a substantial obstacle in                   
the path of women seeking an abortion, before the fetus                        
obtains viability.  An exception that limits the                               
availability of abortion services only to cases where the                      
death of the mother is to be considered would also face a                      
constitutional test.  She observed that the legislation                        
would restrict the availability of abortion services to                        
instances where the mother's life is threatened.                               
                                                                               
Representative Kelly asked what would happen if the state of                   
Alaska did not fund the general relief medical program.  Ms.                   
Bomengen acknowledged that the State has the right not to                      
administer a general relief medical program.  She observed                     
that, should the State not fund a general relief medical                       
program, assistance might revert to mandatory services                         
required under Medicaid. The Court would then review if the                    
election of services only covered under Medicaid would                         
impose an infringement of a constitutional right.                              
                                                                               
Representative Kelly pointed out that Medicaid does not fund                   
abortions.                                                                     
                                                                               
Co-Chair Therriault asked if the Court would be influenced                     
by the fact that it is permissive on whether the service can                   
be provided depending on the level of funding.  Ms. Bomengen                   
observed that the issue is whether separating this service                     
out from other pregnancy related services is supportable as                    
something other than an intention to curb the exercise of                      
what is considered a constitutionally protected right.                         
                                                                               
Co-Chair Therriault noted that under the general title of                      
pregnancy services, all other services are intended to                         
facilitate pregnancy to a live birth.  He questioned whether                   
this would be a point for differentiation.  Ms. Bomengen                       
could not answer how the court would view the issue.                           
                                                                               
In response to a question by, Co-Chair Hanley, Ms. Bomengen                    
observed that, under federal distinctions, states are                          
allowed to regulate after viability in means that can place                    
a number of restrictions on the availability of abortions.                     
                                                                               
Representative Kelly questioned what determines viability.                     
Ms. Bomengen stated that she would provide him with a                          
definition.                                                                    
                                                                               
RUTH EWIG, FAIRBANKS testified via teleconference, in                          
support of HB 234.   (Ms. Ewig's full written testimony is                     
on file.)  She spoke in support of eliminating state support                   
of abortion.  She expressed her support for crisis pregnancy                   
centers to help mothers and their children.  She emphasized                    
adoption as an alternative to abortion.                                        
                                                                               
SHARON SMITH, FAIRBANKS testified via teleconference in                        
support of HB 234.  (Ms. Smith's full written testimony is                     
on file.)  She observed that unborn babies cannot speak or                     
defend themselves.  She maintained that public financing                       
should not be used for abortions on demand.  She emphasized                    
that it is a moral issue.                                                      
                                                                               
NANCY WELLER, DIVISION OF MEDICAL ASSISTANCE, DEPARTMENT OF                    
HEALTH AND SOCIAL SERVICES stated that the Department                          
supports changes made by the proposed committee substitute.                    
She referred to the Department's fiscal note.  She explained                   
that the 80 percent assumption, used in the fiscal note, was                   
an estimation.  She assumed that there would have to be an                     
upward adjustment of any national statistics to account for                    
Alaska's younger average population.                                           
                                                                               
Co-Chair Hanley stressed that if the national average, of                      
women that stay on the program, is 20 percent than the                         
Department's fiscal note based on an 80 percent assumption                     
would be high.  Ms. Weller emphasized the difficulty of                        
making assumptions.  Co-Chair Hanley noted that some mothers                   
would put their children up for adoption.                                      
                                                                               
In response to a question by Representative Kelly, Ms.                         
Weller clarified that coverage under the general relief                        
medical program is limited to hospital, physician and                          
prescription drugs for certain chronic and terminal                            
conditions.                                                                    
                                                                               
Representative Kelly noted that approximately $500 thousand                    
dollars would be saved by discontinuing coverage of elective                   
abortions.  He asked if the additional funding would allow                     
coverage of emergency dental care.  Ms. Weller explained                       
that Medicaid recipients receive emergency dental care.                        
Emergency Dental Care is not covered in the general relief                     
medical program.                                                               
                                                                               
Ms. Weller clarified that Medicaid covers funding for                          
abortions in cases of rape, incest, or danger to the                           
mother's life.                                                                 
                                                                               
Representative Kohring spoke in support of the legislation.                    
He emphasized that elective abortions for the poor should be                   
funded by private dollars.                                                     
                                                                               
Representative Kohring MOVED to report  HB 234 out of                          
Committee.   Representative Davies OBJECTED.  He stated that                   
the fiscal note should be considered prior to moving the                       
bill.                                                                          
                                                                               
A roll call vote was taken on the motion to move HB 234 from                   
Committee.                                                                     
                                                                               
IN FAVOR: Davis, Foster, Kelly, Kohring, Martin, Therriault,                   
Hanley                                                                         
OPPOSED: Davies, Grussendorf                                                   
                                                                               
Representatives Mulder and Moses were absent from the vote.                    
                                                                               
The MOTION PASSED (7-2).                                                       
                                                                               
Co-Chair Therriault MOVED to ADOPT a reduced fiscal note for                   
the Department of Health and Social Services, based on an                      
assumption that 20 percent of the pregnant women eligible                      
for Medicaid would give birth and remain on Medicaid.                          
                                                                               
(Tape Change, HFC 98 -5, Side 1)                                               
                                                                               
Representative Davies MOVED to AMEND the motion by                             
increasing  the assumption to 40 percent.  Co-Chair                            
Therriault OBJECTED.                                                           
                                                                               
Co-Chair Therriault spoke in support of retaining the 20                       
percent assumption.                                                            
                                                                               
A roll call vote was taken on the motion to amend.                             
                                                                               
IN FAVOR: Davies, Grussendorf                                                  
OPPOSED: Davis, Foster, Kelly, Kohring, Martin, Therriault,                    
Hanley                                                                         
                                                                               
Representatives Mulder and Moses were absent from the vote.                    
                                                                               
The MOTION FAILED (2-7).                                                       
                                                                               
A roll call vote was taken on the motion to adopt a revised                    
Department of Health and Social Services fiscal note based                     
on a 20 percent assumption.                                                    
                                                                               
IN FAVOR: Davis, Foster, Kelly, Kohring, Martin, Therriault,                   
Hanley                                                                         
OPPOSED: Davies, Grussendorf                                                   
                                                                               
Representatives Mulder and Moses were absent from the vote.                    
                                                                               
The MOTION PASSED (7-2).                                                       
                                                                               
CSHB 234 (FIN) was REPORTED out of Committee with a "do                        
pass" recommendation and with a fiscal impact note by the                      
House Finance Committee for the Department of Health and                       
Social Services.                                                               
ADJOURNMENT                                                                    
                                                                               
The meeting adjourned at 3:35 p.m.                                             
House Finance Committee 5 1/21/98                                              

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