Legislature(1993 - 1994)
01/21/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE January 21, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair (arrived later) Rep. Pete Kott (arrived 1:35 p.m.) Rep. Gail Phillips Rep. Joe Green Rep. Cliff Davidson, absent Rep. Jim Nordlund (arrived 1:23 p.m.) MEMBERS ABSENT None OTHER LEGISLATORS PRESENT Sen. Dave Donley COMMITTEE CALENDAR HB 49 "An Act relating to facsimile absentee ballot application and facsimile absentee voting." HEARD AND HELD FOR FURTHER CONSIDERATION *HJR 45 Proposing an amendment to the Constitution of the State of Alaska relating to education. HEARD AND HELD FOR FURTHER CONSIDERATION SCR 4 Relating to the Alaska Supreme Court's interpretation Alaska Rule of Civil Procedure 82 and requesting that the court modify its interpretation of that rule. HELD UNTIL WEDNESDAY, JANUARY 26, 1994 (* First public hearing.) WITNESS REGISTER REP. AL VEZEY Alaska State Legislature State Capitol, Room 102 Juneau, Alaska 99811 Phone: 465-3719 Position Statement: testified on HB 49 as Chairman of the House State Affairs Committee; and testified as Prime Sponsor of HJR 45 TOM ANDERSON, Legislative Aide Rep. Terry Martin's Office Alaska State Legislature State Capitol, Room 411 Juneau, Alaska 99811 Phone: 465-3719 Position Statement: Testified on behalf of the Prime Sponsor of HB 49 JACK CHENOWETH, Legal Counsel Division of Legal Services Legislative Affairs Agency 130 Seward Street Juneau, Alaska 99811 Phone: 465-2450 Position Statement: Testified regarding legal opinion of HB 49 DANIEL CAMPBELL P.O. Box 290 Seward, Alaska 99664 Phone: 224-8985 Position Statement: Testified in favor of HJR 45 VALERIE MAXWELL P.O. Box 3701 Seward, Alaska 99664 Phone: 224-8689 Position Statement: Testified in favor of HJR 45 VALERIE HAUER P.O. Box 1315 Petersburg, Alaska 99833 Phone: 772-3408 Position Statement: Testified in favor of HJR 45 DUANE GUILEY Department of Education 801 W. 10th St., Suite 200 Juneau, Alaska 99811 Phone: 465-8679 Position Statement: Answered question on HJR 45 DAWN GROSSMAN P.O. Box 1284 Delta Junction, Alaska 99737 Phone: 895-1910 Position Statement: Testified in favor of HJR 45 SHERRIE GOLL Alaska Women's Lobby P.O. Box 22156 Juneau, Alaska 99802 Phone: 463-6744 Position Statement: Testified in opposition to HJR 45 PREVIOUS ACTION BILL: HB 49 SHORT TITLE: ABSENTEE BALLOTING BY FAX SPONSOR(S): REPRESENTATIVE(S) MARTIN,Brice JRN-DATE JRN-PG ACTION 01/13/93 52 (H) READ THE FIRST TIME/REFERRAL(S) 01/13/93 53 (H) STATE AFFAIRS,JUDICIARY,FINANCE 01/20/93 117 (H) COSPONSOR(S): BRICE 01/28/93 (H) STA AT 08:00 AM CAPITOL 102 01/28/93 (H) MINUTE(STA) 01/30/93 (H) STA AT 08:00 AM CAPITOL 102 01/30/93 (H) MINUTE(STA) 02/09/93 (H) STA AT 08:00 AM CAPITOL 102 02/11/93 (H) STA AT 08:00 AM CAPITOL 102 02/11/93 (H) MINUTE(STA) 02/13/93 (H) STA AT 08:00 AM CAPITOL 102 02/18/93 (H) STA AT 08:00 AM CAPITOL 102 02/18/93 (H) MINUTE(STA) 03/02/93 (H) STA AT 08:00 AM CAPITOL 102 03/02/93 (H) MINUTE(STA) 03/04/93 (H) STA AT 08:00 AM CAPITOL 102 03/04/93 (H) MINUTE(STA) 03/05/93 541 (H) STA RPT CS(STA) NEW TITLE 1DP 1DNP 5NR 03/05/93 541 (H) DP: VEZEY 03/05/93 541 (H) DNP: ULMER 03/05/93 541 (H) NR: B.DAVIS,OLBERG, G.DAVIS, SANDERS,KOTT 03/05/93 541 (H) -FISCAL NOTE (GOV) 3/5/93 04/21/93 (H) JUD AT 01:00 PM CAPITOL 120 01/19/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HJR 45 SHORT TITLE: CONTROL & FUNDING OF PUB & PVT SCHOOLS SPONSOR(S): REPRESENTATIVE(S) VEZEY,Sanders,James JRN-DATE JRN-PG ACTION 01/03/94 2006 (H) PREFILE RELEASED 01/10/94 2006 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2006 (H) JUDICIARY 01/12/94 2041 (H) COSPONSOR(S): SANDERS 01/13/94 2053 (H) COSPONSOR(S): JAMES 01/21/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: SCR 4 SHORT TITLE: REQUEST CHANGE IN RULE 82 FEES SPONSOR(S): SENATOR(S) TAYLOR JRN-DATE JRN-PG ACTION 03/29/93 974 (S) READ THE FIRST TIME/REFERRAL(S) 03/29/93 974 (S) JUDICIARY 04/05/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/06/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/12/93 (S) JUD AT 01:30 PM BELTZ ROOM 211 04/12/93 (S) MINUTE(JUD) 04/12/93 (S) MINUTE(JUD) 04/13/93 1331 (S) JUD RPT 3DP 1NR 04/13/93 1331 (S) ZERO FISCAL NOTE (S.JUD) 04/14/93 (S) MINUTE(RLS) 04/16/93 1440 (S) RULES RPT 3CAL 1NR 4/16/93 04/16/93 1449 (S) READ THE SECOND TIME SCR 4 04/16/93 1449 (S) PASSED Y11 N9 04/16/93 1449 (S) DUNCAN NOTICE OF RECONSIDERATION 04/18/93 1462 (S) HELD ON RECONSIDERATION TO 4/19/93 04/19/93 1554 (S) RECONSIDERATION TAKEN UP 04/19/93 1554 (S) PASSED ON RECONSIDERATION Y11 N9 04/19/93 1555 (S) TRANSMITTED TO (H) 04/20/93 1346 (H) READ THE FIRST TIME/REFERRAL(S) 04/20/93 1346 (H) JUDICIARY 04/23/93 (H) JUD AT 01:30 PM CAPITOL 120 04/23/93 (H) MINUTE(JUD) 01/21/94 (H) JUD AT 01:15 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-6, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:20 p.m. on January 21, 1994. Members present were Reps. Phillips, Green, and Porter. Rep. Nordlund arrived at 1:24 p.m. CHAIRMAN PORTER explained that the committee would not be hearing SCR 4 (Request for a Change in Rule 82 Fees) because of a scheduling problem. He said it would be heard next Wednesday. Chairman Porter announced that the committee would take up HB 49 first. HB 49 - ABSENTEE BALLOTING BY FAX Number 049 REP. AL VEZEY, Chairman of House State Affairs Committee, testified that HB 49 had been heard extensively in the House State Affairs Committee and had gotten the endorsement from the Division of Elections that the bill is workable. He said there is debate over the fiscal note, not that the fiscal note is not accurate, rather how you would exercise your options as far as buying equipment and hiring people. REP. VEZEY said the purpose of the bill relates to where you have certain people in the service of their country, primarily in the military, others in the diplomatic service, and others of a similar nature who are in essence disenfranchised by the geographical locations of their assignments. He added that HB 49 would eliminate that by using communications, and there is sufficient protection there to prevent fraud, although what is sacrificed is the secrecy of the ballot. Number 098 REP. PORTER said there seems to be some conflict with the constitution as it regards secrecy. He asked if the issue of secrecy being waived by an individual voter was addressed in House State Affairs. Number 115 REP. VEZEY answered yes, and explained that it is not public information, so there is still privacy involved, but at least one public official on each end would have access to the ballot. Number 128 REP. GREEN asked about adequately safeguarding against fraud and asked Rep. Vezey how this would work. Number 146 REP. VEZEY responded that HB 49 is silent on that issue, and it would be worked out administratively. Number 162 REP. GREEN expressed concern that there are alleged improprieties even in the system we have. He said it could lead to a chance of greater improprieties that currently exist. Number 186 REP. VEZEY replied that the State Affairs Committee had asked similar questions, and the level and opportunity for impropriety was very marginal. Number 200 REP. GREEN referred to the fiscal note of $31,000 and asked for an explanation of the cost. Number 205 REP. VEZEY responded that it was a fiscal note from the Division of Elections and he really couldn't say what the actual expenses would be. Number 216 REP. GREEN said the only reason he brought it up was because a fiscal note would indicate that there are going to be additional expenditures, perhaps, and asked if those might then escalate. Number 220 REP. VEZEY replied that the House State Affairs Committee could have justified a zero fiscal note. Number 242 TOM ANDERSON, Legislative Aide to Representative Terry Martin, Prime Sponsor of HB 49, testified that they had worked with the Department of Defense with the main purpose of assisting the military, but also other absentee voters outside of Alaska or the United States. He stated the main idea is that an individual can fax a request for and receive by fax an application, complete an application, and fax that back to the Division of Elections, then have a ballot faxed backed, mark the ballot, and fax the completed ballot back to the Division of Elections if you are out of the United States. Mr. Anderson went on to say that if you are in the United States and an individual's application comes within the legitimate time, which is postmarked seven days prior to the election, and the Division of Elections feels it cannot send out the ballot in time, then they can opt to fax the ballot if you are in the United States but out of Alaska. He added that you must then send the faxed ballot back through the mail. Mr. Anderson explained that the only way an individual would be sending a faxed ballot is if he/she was out of the United States. MR. ANDERSON then cited statistics supporting the concept of HB 49, discussed how it works in other states that have already passed similar legislation, and referred to a legal opinion by Jack Chenoweth, Legislative Counsel for the Legislative Affairs Agency, Division of Legal Services addressing the secrecy issue. Number 322 REP. PORTER addressed the requirement to the Division of Elections to start this process on something that was postmarked seven days before, not necessarily received within the seven days. Number 330 MR. ANDERSON responded that the requirement was not a problem to the sponsor. Number 333 REP. PHILLIPS noted that in the information back-up on the bill there were no opinion papers from municipal clerks, and asked if a position paper had been requested from them. Number 340 MR. ANDERSON replied that he had not. Number 345 REP. PHILLIPS requested that he do so. Number 353 REP. PORTER said in reviewing Jack Chenoweth's opinion, he noted that Montana has a close or similar constitution provision as Alaska relating to privacy, and Montana doesn't seem to have had a problem with the secrecy aspect of the legislation. Number 372 REP. PHILLIPS referred to Mr. Chenoweth's opinion, wherein it states that if the current director of the Division of Elections wants to make changes to the deadline provision, it is allowable. Rep. Phillips asked if that had been specifically discussed in the committee substitute for HB 49. Number 382 REP. PORTER replied that it had not. Number 384 REP. VEZEY indicated that his recollection was that the House State Affairs Committee had debated that issue at length. Number 389 MR. ANDERSON explained that the original bill had a two day postmarked deadline, and presently it's four days in law, and the committee substitute changed it to seven days postmarked. Number 394 REP. PORTER recommended holding HB 49 until position papers had been received from the municipal clerk's. Number 415 JACK CHENOWETH, Legal Counsel, Division of Legal Services, Legislative Affairs Agency, testified that in the time he had to go back through the file, and to quickly look at the states identified a year ago, he was able to find a close analogy to Montana, and he didn't see any problems that had been raised there. He also noted that both Louisiana and Washington also had constitutionally explicit rights to privacy and it didn't stop them from adopting the same kind of approached. Mr. Chenoweth added that Montana statutes were used as the model for HB 49. Number 428 REP. PORTER said he would continue HB 49 to a date to be announced. He then brought up HJR 45. HJR 45 - CONTROL & FUNDING OF PUB & PVT SCHOOLS Number 454 REP. AL VEZEY, Prime Sponsor of HJR 45, testified that HJR 45 came about this past summer when Attorney General Charlie Cole issued a legal opinion stating it was unconstitutional to use public funding for transportation of private school students. Rep. Vezey researched the opinion and concluded that Attorney General Cole was 100 percent correct. He said HJR 45 would eliminate two sentences in the constitution delegating responsibility to the judicial system relating to public funding of private schools, and if the public votes in favor of HJR 45, then funding of education simply reverts back to the legislative branch and the administration branch, and removes the judicial branch from having oversight. Number 521 DANIEL CAMPBELL testified via teleconference from Seward in support of HJR 45, stating that it should be an option for the legislature. Number 541 VALERIE MAXWELL testified via teleconference from Seward in support of HJR 45, saying she would be pleased to see it move out of committee and before the voters. Number 559 VALERIE HAUER testified via teleconference from Petersburg in favor of HJR 45, and asked for clarification of the word "public." Number 577 DUANE GUILEY, Department of Education, stated that a simplistic definition of a public education institution would be one that offers educational opportunities to all students on a comparable basis, free of tuition and free of discrimination. Number 583 VALERIE HAUER said she is interested in a voucher system similar to what they tried to put in in California. Number 592 REP. NORDLUND said he had a few things he wanted to say about the bill before winding up here but, in terms of that definition, perhaps another addition to the definition of what a public education institution is that there is a governing body that is elected by the public that governs what goes on in that school, is accountable to the public, and therefore the tie back to the expenditure of funds to elected officials who are responsible for the expenditure of those funds, which you don't have in a private institution. Number 600 REP. PORTER said to a degree, if an institution is certified, it's under public control. He asked if a private institution wanting to provide education to K through 12 would have to meet certification requirements to qualify. Number 608 MR. GUILEY responded no, under current statute private schools that want to be accredited have to follow certain state statutes and regulations, but they are exempt from many other state statutes and regulations, one of which is the control of an elected governing body. Number 621 REP. PORTER asked if the state still provides certification requirements for those institutions. Number 625 MR. GUILEY replied that the state provides minimum statutory guidelines and regulatory guidelines, but does not have a specific certification process. MS. HAUER discussed home schooling and her concerns about the right to schooling choice. Number 645 MR. GUILEY said that home schooling is available to all Alaskans. Number 650 MS. HAUER testified that she would like public school facilities available to her children during school hours, for use of equipment, pool, and so on. Number 671 REP. PHILLIPS asked Ms. Hauer if she was under the state of Alaska curriculum. Number 677 MS. HAUER replied she was under the Christian Light curriculum out of Harrisburg, Virginia. Number 680 REP. PHILLIPS inquired if she had any connection at all with the Alaska school system. Number 681 MS. HAUER replied no, but she would be looking into the state curriculum next year. Number 682 REP. GREEN asked if it was the case that home schooled children did not have access to public school facilities, and if not, why. Number 688 MR. GUILEY responded that each local school district establishes policy in relationship to access to the facility for children and parents of children who are not enrolled in the public school system. He added that the Department of Education currently has out for public comment regulations that specifically allow for part time enrollment of students in classes such as chemistry, physics, physical education, and things that are not normally available in a home school environment. Number 714 DAWN GROSSMAN testified via teleconference from Delta Junction in support of HJR 45. Number 733 SHERRIE GOLL testified on behalf of the Alaska Women's Lobby (AWL) against HJR 45. Ms. Goll said AWL believes in maintaining the separation of church and state. Number 760 REP. PHILLIPS commented that there is nothing in the legislation that says anything about private religious schools. REP. PHILLIPS and Ms. Goll discussed whether HJR 45 would affect funding for private and religious schools. Number 784 REP. NORDLUND said he thinks that if you are taking the words out of the constitution, you are taking a prohibition out of the constitution, you are by default endorsing it, saying therefore, it is o.k. Rep. Nordlund said he thinks that is the way the court would interpret it, obviously, otherwise what would be the intent of this. He asked who are the schools that would be getting this funding if they are not private schools? He added that this is the practical reality, that is what the backup is, that's what the legislation history will read, and he thinks that is the way the court will interpret it. Rep. Nordlund continued, saying the effect of HJR 45, if passed, would be private religious schools getting state money. Number 795 REP. PORTER said his impression was that the effect of HJR 45 would make the question open for consideration and legislation and appropriations, by removing the prohibition, but it would not perform those things, nor cause it to happen. Number 802 MS. GOLL said the bill was introduced less than a week ago, and she didn't believe the public was aware this was happening. REP. NORDLUND said there was no fiscal note from the Division of Elections. Number 827 REP. PORTER pointed out there was a fiscal note from the Division of Elections. Number 847 REP. PORTER closed the hearing for public testimony and entertained a motion. Number 849 REP. GREEN moved HJR 45 with individual recommendations. Number 852 REP. PHILLIPS asked Rep. Vezey for position papers from the Department of Law and Department of Education. Number 862 REP. VEZEY said he had not requested position papers. Number 866 REP. PORTER asked if the Fairbanks transportation funding issue would be solved by this action. TAPE 94-6, SIDE 2 Number 000 REP. VEZEY said HJR 45 would eliminate the problem, but you have to go back and read the supreme court decisions. Number 020 REP. KOTT asked if other states use public dollars for transportation of private students. Number 026 REP. VEZEY said that was his understanding, but he couldn't give any case examples. Number 031 REP. KOTT indicated that it was his recollection that there was a U.S. Supreme Court case in the early 80's that afforded states the opportunity to use public dollars to transport children. Number 060 REP. VEZEY said it was his understanding that using public dollars for this type of activity was the norm in most states, but Alaska has a relatively new constitution. Number 074 REP. PORTER asked if there was a motion. Number 080 REP. GREEN asked to withdraw his motion and asked for position papers from the Department of Education and Department of Law. Number 092 REP. NORDLUND requested that the committee get a fiscal note from the Department of Education because Sherrie Goll made a good point that there's a limited amount of dollars available for education in this state, and if we have a whole group of new institutions competing for those dollars, there will be even less dollars for public institutions. Rep. Nordlund continued, saying that it will be a really difficult fiscal note to prepare, but he would like to get some notion of what it would cost. Number 111 REP. PORTER said he was considering that there was an opportunity to save some money with HJR 45. If the amount of money that went to a private institution per student was less than what it cost the public, it would save money, depending on which way you look at it. Number 123 REP. NORDLUND commented that they should at least address that in the Finance Committee. He said he had another request, and that basically he thinks this is a really radical bill because it will open up the floodgates for public education for any private school, conceivably any other kind of school in the state. He added that his interpretation of that might be wrong; there might be other prohibitions either in the state or federal constitution against separation of church and state that would not allow that. Rep. Nordlund said he doesn't think it is clear to the Judiciary Committee what the effect of this bill would be. He said he would like to hear somebody testify to this act, some legal scholar or constitutional scholar or whatever who could come in and say how the courts would likely interpret this if enacted, and what would the effect be on our public education system. He continued, saying he thinks it has far reaching affects, violating the fundamental doctrine that's the separation of church and state, and public funds should not be going to educational systems that are not accountable to the public. Rep. Nordlund objected to putting public funds into private schools in which the public has no handle or accountability. REP. NORDLUND discussed other aspects including which religious schools would be eligible and the ramifications of approving one and denying another. Number 177 REP. PORTER asked Rep. Vezey to get position papers from the Department of Education and the Department of Law. Number 187 REP. VEZEY said he didn't request any fiscal notes from any department other than Elections because there's no appropriation other than the cost of putting HJR 45 on the ballot, and unless the legislature decides to appropriate money, there is not a fiscal note that goes with this. REP. PORTER said he would guess that a position paper from the Department of Education would deal with that issue in any event, and he asked if it would be possible to get the position papers. Number 210 REP. VEZEY said he would be glad to request position papers from the departments. Number 212 REP. PORTER said he would hold the bill until the position papers were available and the committee members had a chance to look them over. Number 222 REP. KOTT asked DUANE GUILEY from the Department of Education to comment on whether or not the state public education system is providing any dollars at the present time, or any materials to private schools. Number 234 MR. GUILEY replied, not at this time; however, the state provides a centralized correspondence study system which is open to all students in the state which does not require a tuition charge and provides textbooks and materials to students enrolled in the program. He added that the students cannot be enrolled simultaneously in the local school system, so they must choose an option. Number 264 REP. PHILLIPS asked what percentage of home schooled children are not in the state correspondence study program. Number 272 MR. GUILEY stated about 500 students. Number 292 REP. PORTER recognized that Senator Dave Donley was in the audience. REP. PORTER said HJR 45 would be held over for further action. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 2:20 p.m.