Legislature(1997 - 1998)
03/31/1998 02:25 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
March 31, 1998
2:25 P.M.
TAPE HFC 98 - 83, Side 1.
TAPE HFC 98 - 83, Side 2.
TAPE HFC 98 - 84, Side 1.
CALL TO ORDER
Co-Chair Therriault called the House Finance Committee
meeting to order at 2:25 P.M.
PRESENT
Co-Chair Hanley Representative Kelly
Co-Chair Therriault Representative Kohring
Representative J. Davies Representative Martin
Representative G. Davis Representative Grussendorf
Representative Foster Representative Mulder
Representative Moses was not present for the meeting.
ALSO PRESENT
Sarah Felix, Assistant Attorney General, Department of Law;
Brad Pierce, Policy Analyst, Office of Management and
Budget, Office of the Governor; Tim Sullivan, Staff,
Representative Eldon Mulder; Arthur Hippler, (Testified via
Teleconference), Executive Director, Alaska Right to Life,
Mat-Su.
SUMMARY
HB 356 An Act establishing the Joint Committee on
Military Bases in Alaska; and providing for an
effective date.
CS HB 356 (FIN) was reported out of Committee
with a "do pass" recommendation and with a fiscal
note by the House Finance Committee.
HB 462 An Act relating to the contents of certain state
documents.
CS HB 462 (STA) was reported out of Committee
with a "do pass" recommendation and with a zero
fiscal note by the Office of the Governor dated
3/23/98.
HJR 5 Proposing an amendment to the Constitution of the
State of Alaska relating to freedom of conscience.
CS HJR 5 (FIN) was reported out of Committee with
individual recommendations and with fiscal note
by the Office of the Governor dated 1/30/98.
HOUSE BILL NO. 462
"An Act relating to the contents of certain state
documents."
Co-Chair Therriault stated that HB 462 was designed to
curtail the increasingly prevalent practice of using State
publications to further personal political agendas.
HB 462 would place a number of publications off-limits to
State officials for personal purposes. In the past, these
documents have been used to disseminate legitimate
programmatic and deadline information. Co-Chair Therriault
continued, while any elected official would relish the
opportunity to send political and personal messages to the
electorate at the State's expense, these messages should be
restricted to individual stationary or a newsletter format
purchased through the appropriate budgets. The use of
routine publications has the potential of politicizing the
underlying programs. He pointed out examples of
politicizing contained in the members bill file packet.
BRAD PIERCE, POLICY ANALYST, OFFICE OF MANAGEMENT AND
BUDGET, OFFICE OF THE GOVERNOR, commented that the Governor
does not support the proposed legislation. The Governor
sees this work as part of his job as Chief Executive to the
public. Anyone who holds the position has the right and
obligation to have their photograph on official
communication with the public.
Co-Chair Therriault asked if the Governor is able to
differentiate between ongoing applications and programmatic
mailings and information put out by his press. Mr. Pierce
noted that he was not qualified to answer that question.
Representative Grussendorf commented that some of the
information cited by the Governor is both appropriate and
factual. Co-Chair Therriault interjected that over the
years, the Permanent Fund Dividend application has become
more visually pleasing except for the number of photographs
used. He suggested that these publications should be put
out by interests not running for election. He acknowledged
that any official running for office would like to be able
to use that avenue to disseminate their information. Co-
Chair Therriault added that dispersal of the Longevity Bonus
monthly checks should not be a place to politically
advertise.
Representative Kelly indicated his consternation with
political messages being distributed which he felt were
"pure political bantering". He noted that he took exception
to the use of a political tool being forced upon the public
through wide spread public mailings.
Representative J. Davies observed that in this Legislative
session, there are many bills which transfer power from the
Governor to the Legislature with the intent to limit the
power of the Governor. Representative J. Davies pointed out
that HB 462 had been sponsored by the House Finance
Committee without the approval of all members. He noted,
for the record, he did not support the bill.
Representative Mulder MOVED to report CSHB 462 (STA) out of
Committee with individual recommendations and with the
accompanying fiscal note. Representative J. Davies
OBJECTED.
A roll call vote was taken on the motion.
IN FAVOR: Kelly, Kohring, Martin, Mulder, G. Davis,
Foster, Therriault
OPPOSED: Grussendorf, J. Davies
Representatives Moses and Hanley were not present for the
vote.
The MOTION PASSED (7-2).
CS HB 462 (FIN) was reported out of Committee with a "do
pass" recommendation and with a zero fiscal note by the
Office of the Governor dated 3/23/98.
HOUSE JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the State
of Alaska relating to freedom of conscience.
DR. ARTHUR E. HIPPLER, (TESTIFIED VIA TELECONFERENCE),
EXECUTIVE DIRECTOR, ALASKA RIGHT TO LIFE, MAT-SU, spoke in
support to HJR 5. He noted that the concern of his
organization was direct, in that any person should not be
forced to perform or assist at abortions if they have a
moral objection to it. He advised that this is not an
unrealistic fear and stressed that there appears to be an
assurance by the Court by implication in the Valley Hospital
case, that the court could impose judicial tyranny over
people.
Mr. Hippler continued, at the core of civil liberties is the
respect for conscience. If conscience can be compelled,
then any other assumed liberty would be a joke and
meaningless. If one can only act on other's beliefs, one
would be continually compelled to act against their
conscience; then we would no longer live in a society with a
pretense of freedom. He claimed that the current judicial
system, as it is now implemented would impose it's own
liberal, anti-religious and pro-death ideas regardless of
what elected State officials do, unless, there exists a
patent constitutional provision limiting this arbitrary
power.
Mr. Hippler ascertained that constitutional "chains" not
infringe upon the conscience of the citizens as mandated by
the Courts. He strongly urged passage of HJR 5.
SARAH FELIX, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
advised that both the Civil and Criminal Division of the
Department of Law continue to have significant concerns with
HJR 5. She noted that the Department has had the
opportunity to review materials from HJR 5, specifically,
the article Protecting the Rights of Conscience of Health
Care Providers published in 1993.
Ms. Felix advised that a Westlaw search revealed that the
article had not been cited in any legal cases. The article
did list numerous cases which resulted from litigation over
"rights of conscience" laws. Examples of those include
lawsuits challenging state laws mandating autopsies, blood
transfusions, lawsuits claimed by hospital staff claiming
wrongful termination of conscientious objection to abortion,
patient lawsuits against hospitals for failure to advise
regarding the availability of "morning after" pills and
multiple other lawsuits between patients and hospitals.
Ms. Felix pointed out that the Department had reviewed other
state's charters which have "freedom of conscience"
provisions. It appears that the only state in which
"freedom of conscience" is a stand-alone provision is in New
Hampshire (NH). The New Hampshire Bill of Rights, Article
their very nature unalienable, because no equivalent can be
given or received from them. Of this kind are the Rights of
Conscience". She continued, however, the NH constitution
also contains a provision which limits the freedom of
conscience. The Bill or Rights, Article #3 states that
"When men enter into a state of society, they surrender up
some of their natural rights to that society, in order to
ensure the protection of others; and without such an
equivalent, the surrender is void".
Ms. Felix stated that caselaw in the NH interpretation, the
freedom of conscience provision has limited the exercise of
the right by reference to Article #3. At this time, there
is no provision in the Alaska Constitution to limit the
exercise of freedom of conscience. She suggested that
anarchy would result with the insertion of that language
into the Constitution.
Ms. Felix spoke to Amendment #2. [Copy on File]. The
Department maintains the concern of limiting an existing
constitutional right. Limiting the right to privacy could
have unintended consequences. Under the proposed amendment,
a business owner could not exercise the right of privacy so
as to prohibit a disgruntled employee from disclosing
business records. The proposed amendment has no limitations
on actions and reliance on a person's freedom of conscience.
Ms. Felix emphasized that the Department has no idea what
"freedom of conscience" would cover. She asked if it would
cover any individual opinion or belief. The proposed
language is very broad and vague and it is unknown how it
could limit the other's persons' right to privacy.
Representative Kelly understood that the right to privacy
would not cover "personal business records". He understood
that concern had been covered in the U.S. Constitution under
the 1st Amendment. Ms. Felix replied that this was covered
by both, although, the Alaska Constitution gives broader
rights to protection. Representative Kelly observed that
the right to privacy has been taken out of bounds.
Representative Martin noted that the right of democracy
should be the right of freedom of conscience. He took
offense that the Department of Law would indicate that the
proposed legislation could create anarchy. He pointed out
that the courts ruled against the freedom of conscience in
the Valley Hospital case. They stated that the freedom of
conscience was only a statutory right, not a constitutional
right. Ms. Felix cited the NH case, which stated that if
there were not a check on the freedom of conscience, such as
the check contained in the NH Constitution, Article #3,
there would result anarchy. She advised that the NH case
must be referenced because it is the only state which has
the freedom of conscience in the Bill of Rights. All other
states have it tied to the freedom of religion.
Representative Martin stated that Amendment #1 would provide
language, which Justice Sandra Day O'Connor suggests would
curtail the "freedom of conscience". He wanted to see the
freedom of conscience and the freedom of religion in the
same constitutional amendment. Representative Martin
stressed that the freedom of conscience is the most
important right that a person could have and that freedom of
religion is dependent on freedom of conscience.
Representative Grussendorf indicated that the proposed
language is complicated. The right to privacy is implied in
the first amendment by the "search and seizure" aspects of
what a government can do to a person under their
jurisdiction. He pointed out that the proposed amendment
only addresses one aspect of privacy, the reproductive
right. Privacy goes beyond that issue. Representative
Grussendorf stressed that the right to privacy can only go
as far and as long as it can without interfering with the
rights of others. The right of privacy is a very broad
situation. He pointed out that the right to conscience
provision in the New Hampshire charter resulted during the
times of witch-hunts, and then establishing the right of
religious freedom.
(Tape Change HFC 98- 83, Side 2).
Co-Chair Therriault advised that the issue at hand is
broader than the issue addressed by the Valley Hospital
court case. Representative Grussendorf pointed out that
language contained in Amendment #2 was basically the same
language ruled by the court. That decision was made from
statute and other provisions of the constitution without
attaching it to privacy.
Co-Chair Therriault asked if the Department thought that the
language of Amendment #1 was covered in the wording of
Amendment #2. Ms. Felix stated that the amendments were
similar. Co-Chair Therriault believed that Amendment #2 was
language which tempered an individual's right to freedom of
conscience with their right to privacy. He commented that
he tried to create language in which the right to privacy
would check the freedom of conscience. Ms. Felix replied
that Amendment #1 was narrowly focused and was a "stand
alone" freedom of conscience amendment which focused on
health care facilities. She agreed that the language of
Amendment #2 was broader and could cover most things in
regard to the right to privacy.
Representative J. Davies understood that a "right" created a
situation which prevents a person from doing wrongful things
to other people. He recommended that the way to balance
would be in providing two affirmative "rights"; then the
Courts would determine the decision. He believed that the
right to privacy should protect a person.
Representative Martin commented that the right of conscience
at this time is so narrow that it only pertains to
abortions. He stressed that the freedom of conscience is
the most important aspect to the freedom of liberty. The
Courts have indicated that only the direct participants
(i.e. doctors) could make the choice not to be present at a
hospital procedure. Consequently, the subordinate positions
at the hospital would be required to be present at any
procedure as long as the doctor authorized it.
Representative Martin felt that the Court's have forced a
division between people with relationship to their freedom
of conscience.
Representative Kelly remarked that the right to privacy was
not language used in the original constitution and that it
has since become problematic when used to confer benefits.
Representative Kelly referenced various case laws.
Representative Grussendorf pointed out that such cases
resulted because there had been "no compelling" evidences or
interests to differ. Representative Kelly argued that the
right to privacy was taking the State in very broad "leaps"
across the legal "landscape". He suggested that currently,
the Courts are using the right to privacy in an
inappropriate manner and that it should be more narrowly
focused.
Representative Foster questioned how the legislation might
affect "conscientious objectors" during a national
emergency. Ms. Felix replied that currently, there exists a
body of law addressing conscientious objection to the draft.
In the event of a national crisis, it would be addressed in
conjunction with that law. Representative Foster referenced
Amendment #1, Section (a)2. He asked if that language would
allow for a person or facility, if they conscientiously
objected, from participating in a national disaster. Ms.
Felix stated that would be wide open. Representative
Foster voiced concern where the line of an objection would
"end". He acknowledged the complicated subject of the
legislation.
Co-Chair Therriault asked if under the language of Amendment
job linked to the privilege of another person's right to
privacy, would they be exempt from performing their job
under the right of conscience. Ms. Felix acknowledged that
was correct, which created a huge concern for the Department
of Law. Co-Chair Therriault questioned if that could be
linked to another individual's right to privacy. He
understood that if a person were employed to do a job, they
would have to do carry out that job or leave the employment.
Ms. Felix emphasized that could continue to occur when the
freedom of conscience laws exists. Co-Chair Therriault
believed that would be true if the language for freedom of
conscience were wide open, although, he believed that
Amendment #2 was not that broad. Discussion followed
regarding the difference between the right to privacy and
the responsibilities within an employment contract.
Representative Grussendorf agreed that Amendment #2 was
dangerously broad. Representative Martin noted that
Amendment #1 had been offered in consideration of member's
concerns expressed during a previous meeting.
Representative J. Davies spoke to the right to privacy. He
pointed out that a right protects individuals. The
motivation for the right to privacy began with a concern of
"big brother" in the development of telecommunications. The
concern resulted from the fear of abuse of computer data
base information and/or unreasonable search and seizure.
Representative J. Davies cautioned that it is important to
be careful when adjusting language which could affect those
types of situations. He advised that the right to privacy
predominately protects an individual whose right to be free
in their own pursuit of happiness and undisturbed by the
government. Representative J. Davies noted that the Courts
continue to provide a balancing act between the individual's
rights and the State's interest in regulating those rights.
(Tape Change HFC 98- 84, Side 1).
Representative Martin MOVED to adopt Amendment #1 for the
purpose of discussion. He reiterated that Amendment #1 was
being offered, although, he preferred for the Committee to
pass the bill as it moved from the House Judiciary Committee
(JUD). He stressed that he wanted to place the freedom of
conscience above or equal to the right to privacy.
Representative Foster applauded the work of Representative
Martin, although, questioned who would protect the right of
the minority group. Co-Chair Therriault pointed out that
the individual would be protected in Section (a)1 of the
amendment and an institution would be protected under
Section (a)2.
Representative J. Davies OBJECTED to adoption of Amendment
provide limitations to employment contracts. Representative
Martin replied that there exist many cases in which the
employee has been forced to do something against their
conscious. Representative J. Davies ascertained that the
discussion is not debating the "doing" of something
unlawful, but rather something against a person's
conscience. He asked how this legislation would apply to
that circumstance.
Representative J. Davies WITHDREW his OBJECTION to adopting
Amendment #1. He commented that the amendment as well as
the entire bill was misdirected. Amendment #1 was adopted.
Co-Chair Therriault WITHDREW Amendment #2. There being NO
OBJECTION, it was withdrawn.
Representative Mulder MOVED to report CS HJR 5 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. Representative J. Davies
OBJECTED. He stated that he understood that since
Amendment #1 had just been offered, the Committee would be
given time to consider the impact of it. He requested that
an opportunity to amend the legislation be provided.
Representative Mulder WITHDREW the MOTION to move the bill
from Committee.
Representative J. Davies MOVED to AMEND Amendment #1 by
deleting "a public or" to Section #a(2). Representative
Martin OBJECTED. Representative J. Davies advised that if
"public" was not deleted, restriction of a lawful service
would create an unconstitutional situation. Representative
Martin emphasized that language was the heart of the entire
act and had been added as a protection for public
hospitals.
A roll call vote was taken on the motion.
IN FAVOR: J. Davies, Grussendorf, Foster
OPPOSED: Kohring, Martin, Mulder, G. Davis,
Therriault
Representatives Kelly, Moses, and Hanley were not present
for the vote.
The MOTION FAILED (3-5).
Representative Mulder MOVED to report CS HJR 5 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HJR 5 (FIN) was reported out of Committee with a "do
pass" recommendation and with a fiscal note by the Office
of the Governor dated 1/30/98.
HOUSE BILL NO. 356
"An Act establishing the Joint Committee on Military
Bases in Alaska; and providing for an effective date."
TIM SULLIVAN, STAFF, REPRESENTATIVE ELDON MULDER, testified
that HB 356 would establish a Joint House and Senate
Committee on military bases in Alaska. The committee would
monitor the activities of a new Base Realignment and Closure
Commission (BRAC) and would work to strengthen the military
presence in Alaska. In the case of reauthorizing, the BRAC
process would work with the Military, the Administration and
the affected community in order to protect our bases from
closure.
Mr. Sullivan stated that the joint committee would have an
existence longer than that called for in the Uniform Rules,
Rules 21 (b) & (c), because of the reactivation of the
federal BRAC Commission. Creating the joint committee for
longer than the duration of the current 20th Legislature
would require a change in statute. It could not be done by
means of a concurrent resolution, hence the bill. The joint
committee would expire on the date in which the 22nd
Legislature convenes. The time frame corresponds with the
activity period of federal BRAC which will be reviewing all
military facilities in North America for justification of
their continued existence.
Mr. Sullivan indicated that the attention by the federal
BRAC given to Alaska bases, presents a considerable
challenge and necessitates vigilance and a strong unified
response from the Legislature. The military establishment
in Alaska accounts for approximately $1.7 billion general
fund dollars. In addition, the base closures experienced to
date, have shown that the process requires considerable
attention on the part of State government to monitor the
economic impact and the reuse potential. The joint
committee could provide that focus.
Mr. Sullivan noted that the work draft reflected a couple of
clean-up measures.
Representative Mulder commented that without a state BRAC,
the U.S. military would try to close at least one military
installation in Alaska. He suggested that the process was
political. Representative Mulder recommended that the
Committee adopt a new House Finance Committee fiscal note to
replace the note passed from the Senate Finance Committee.
Co-Chair Therriault asked what the time-line would be for
the committee. Representative Mulder replied that it would
cover the next three interim sessions.
Representative Mulder MOVED that work draft, 0-LS1436\H,
Bannister, 3/28/98, be the version before the Committee.
There being NO OBJECTION, it was adopted.
Representative J. Davies MOVED a conceptual amendment to
Page 2, Line 11 and 13, with the insertion of language: "two
from the majority and one from the minority". There being
NO OBJECTION, it was adopted.
Representative Kohring MOVED to report CS HB 356 (FIN) out
of Committee with individual recommendations and with the
new fiscal note. There being NO OBJECTION, it was so
ordered.
CS HB 356 (FIN) was reported out of Committee with a "do
pass" recommendation and with a fiscal note by the House
Finance Committee.
ADJOURNMENT
The meeting adjourned at 4:20 P.M.
H.F.C. 11 3/30/98
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