Legislature(1997 - 1998)
01/21/1998 01:40 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
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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