Legislature(1997 - 1998)

03/31/1998 02:25 PM FIN

Audio Topic
* first hearing in first committee of referral
+ 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.                                                  
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,                     
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                        
 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                                
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                              
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.                        
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                            
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                            
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                      
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.                                   
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                        
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                        
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.                               
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                       
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                         
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                              
A roll call vote was taken on the motion.                                      
IN FAVOR:  J. Davies, Grussendorf, Foster                                      
OPPOSED: Kohring, Martin, Mulder, G. Davis,                                    
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."                         
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                      
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                          
CS HB 356 (FIN) was reported out of Committee with a "do                       
pass" recommendation and with a fiscal note by the House                       
Finance Committee.                                                             
The meeting adjourned at 4:20 P.M.                                             
H.F.C. 11 3/30/98                                                              

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