Legislature(1997 - 1998)

02/27/1998 01:06 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                 February 27, 1998                                             
                     1:06 p.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Joe Green, Chairman                                             
Representative Con Bunde, Vice Chairman                                        
Representative Norman Rokeberg                                                 
Representative Jeannette James                                                 
Representative Eric Croft                                                      
Representative Ethan Berkowitz                                                 
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Brian Porter                                                    
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
HOUSE BILL NO. 390                                                             
"An Act relating to marriage; and amending Rules 54 and 56, Alaska             
Rules of Civil Procedure."                                                     
                                                                               
     - MOVED CSHB 390(JUD) OUT OF COMMITTEE                                    
                                                                               
HOUSE JOINT RESOLUTION NO. 5                                                   
Proposing an amendment to the Constitution of the State of Alaska              
relating to freedom of conscience.                                             
                                                                               
     - FAILED TO MOVE HJR 5 OUT OF COMMITTEE                                   
                                                                               
HOUSE JOINT RESOLUTION NO. 50                                                  
Proposing amendments to the Constitution of the State of Alaska                
relating to a public corporation established to manage the                     
permanent fund.                                                                
                                                                               
     - HEARD AND HELD                                                          
                                                                               
* HOUSE BILL NO. 430                                                           
"An Act relating to noneconomic damages resulting from an                      
automobile accident."                                                          
                                                                               
     - HEARD AND HELD                                                          
                                                                               
HOUSE BILL NO. 406                                                             
"An Act relating to subsistence uses of fish and game."                        
                                                                               
     - BILL HEARING CANCELLED                                                  
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL:  HB 390                                                                  
SHORT TITLE: CHARTER MARRIAGES                                                 
SPONSOR(S): REPRESENTATIVES(S) KELLY, Dyson, Therriault                        
                                                                               
Jrn-Date    Jrn-Page           Action                                          
02/11/98      2280     (H)  READ THE FIRST TIME - REFERRAL(S)                  
02/11/98      2280     (H)  JUDICIARY, FINANCE                                 
02/25/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
02/25/98               (H)  MINUTE(JUD)                                        
                                                                               
BILL:  HJR 5                                                                   
SHORT TITLE: CONST AM: FREEDOM OF CONSCIENCE                                   
SPONSOR(S): REPRESENTATIVES(S) MARTIN                                          
                                                                               
Jrn-Date    Jrn-Page           Action                                          
01/13/97        22     (H)  PREFILE RELEASED 1/3/97                            

01/13/97 22 (H) READ THE FIRST TIME - REFERRAL(S)

01/13/97 23 (H) STATE AFFAIRS, JUDICIARY, FINANCE 02/25/97 (H) STA AT 8:00 AM CAPITOL 102 02/25/97 (H) MINUTE(STA) 02/27/97 (H) STA AT 8:00 AM CAPITOL 102 02/27/97 (H) MINUTE(STA)

01/20/98 (H) STA AT 8:00 AM CAPITOL 102

01/20/98 (H) MINUTE(STA)

01/27/98 (H) STA AT 8:00 AM CAPITOL 102

01/27/98 (H) MINUTE(STA)

01/30/98 2176 (H) STA RPT 5DP 1DNP

01/30/98 2177 (H) DP: JAMES, IVAN, DYSON, VEZEY, HODGINS

01/30/98 2177 (H) DNP: ELTON

01/30/98 2177 (H) FISCAL NOTE (GOV)

01/30/98 2177 (H) REFERRED TO JUDICIARY 02/11/98 (H) JUD AT 1:00 PM CAPITOL 120 02/11/98 (H) MINUTE(JUD) 02/27/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 50 SHORT TITLE: PERMANENT FUND PUBLIC CORPORATION SPONSOR(S): REPRESENTATIVES(S) JAMES, Vezey Jrn-Date Jrn-Page Action

01/21/98 2099 (H) READ THE FIRST TIME - REFERRAL(S)

01/21/98 2099 (H) STA, JUDICIARY, FINANCE

01/29/98 (H) STA AT 8:00 AM CAPITOL 102

01/29/98 (H) MINUTE(STA) 02/12/98 (H) STA AT 8:00 AM CAPITOL 102 02/12/98 (H) MINUTE(STA) 02/12/98 2299 (H) STA RPT 1DP 3NR 02/12/98 2300 (H) DP: DYSON; NR: VEZEY, HODGINS, IVAN 02/12/98 2300 (H) FISCAL NOTE (GOV) 02/27/98 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 430 SHORT TITLE: AUTOMOBILE CIVIL LIABILITY SPONSOR(S): REPRESENTATIVES(S) KOTT, Mulder Jrn-Date Jrn-Page Action 02/18/98 2353 (H) READ THE FIRST TIME - REFERRAL(S) 02/18/98 2353 (H) JUDICIARY, FINANCE 02/27/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER REPRESENTATIVE PETE KELLY Alaska State Legislature Capitol Building, Room 411 Juneau, Alaska 99801 Telephone: (907) 465-2327 POSITION STATEMENT: Sponsor of HB 390. REPRESENTATIVE TERRY MARTIN Alaska State Legislature Capitol Building, Room 502 Juneau, Alaska 99801 Telephone: (907) 465-3783 POSITION STATEMENT: Sponsor of HJR 5. SARAH FELIX, Assistant Attorney General Civil Division (Juneau) Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified that the department has serious problems with HJR 5. PATRICK LOUNSBURY, Legislative Secretary to Representative Jeannette James Alaska State Legislature Capitol Building, Room 102 Juneau, Alaska 99801 Telephone: (907) 465-3743 POSITION STATEMENT: Presented HJR 50 on behalf of sponsor. JAMES HORNADAY, Legislative Assistant to Representative Pete Kott Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 Telephone: (907) 465-6848 POSITION STATEMENT: Presented HB 430 on behalf of sponsor. JOHN GEORGE National Association of Independent Insurers 3328 Fritz Cove Road Juneau, Alaska 99801 Telephone: (907) 789-0172 POSITION STATEMENT: Testified in support of HB 430. JUANITA HENSLEY, Chief Driver Services Division of Motor Vehicles Department of Administration P.O. Box 20020 Juneau, Alaska 99811-0020 Telephone: (907) 465-4361 POSITION STATEMENT: Testified on HB 430,; also testified on HB 95 in relationship to HB 430. ACTION NARRATIVE TAPE 98-26, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:06 p.m. Members present at the call to order were Representatives Green, Bunde, James and Croft. Representatives Berkowitz and Rokeberg arrived at 1:07 p.m. and 1:15 p.m., respectively. Representative Porter was excused. HB 390 - CHARTER MARRIAGES Number 0039 CHAIRMAN GREEN announced the first item of business would be a revisit of HB 390, "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." Before the committee, but not yet formally adopted, was Version Q (0-LS1062\Q, Lauterbach, 2/26/98). REPRESENTATIVE PETE KELLY, sponsor, referred members to the fourth paragraph of a letter dated February 27, 1998, from Terri Lauterbach, legislative counsel. He indicated at the previous hearing Mr. Zangri of Vital Statistics had requested a change so that anybody who currently had a marriage license in Alaska could come to them and opt for a new license. Representative Kelly stated, "If you'll look in that bottom paragraph, they point out some real difficulties in that, as far as equal protection problems, because we need to recognize marriages from other states. And there's really no way that they can. And the alternative, which is to say we'll only recognize Alaskan marriages, we'd probably end up having to defend that in court." Number 0138 REPRESENTATIVE KELLY told members that although he thought the provision was a good idea, he could certainly live without it. He suggested a conceptual amendment on page 2, line 1. CHAIRMAN GREEN noted that there was a written amendment to cover that, which specified the amendment was to Version Q and which read: Page 2, Lines 1-15, Delete all material and all additional references REPRESENTATIVE KELLY affirmed that was the right one. Number 0186 REPRESENTATIVE JEANNETTE JAMES offered that as Amendment 1. REPRESENTATIVE ETHAN BERKOWITZ objected, saying it was for equal protection purposes. REPRESENTATIVE JAMES said that is why they are taking it out. REPRESENTATIVE BERKOWITZ disagreed, saying it leaves him in a spot that the other members aren't in. He explained, "As the only single person here, speaking on behalf of all single Alaskans, I'd just like to say it's not really fair that we have to make this difficult choice about testamentary or charter marriage. And those of you who have already entered into that holy state of matrimony don't have to make that choice." Number 0304 REPRESENTATIVE KELLY asked whether they need to make references to any possible collateral amendments that would go along with that. He said he wasn't 100 percent sure there wouldn't be any. REPRESENTATIVE ERIC CROFT noted the technical matter of deleting "(a)". He asked whether the effect of the bill would be that a couple could enter into a new charter marriage but could not go from a testamentary marriage into a charter marriage. REPRESENTATIVE KELLY said yes. REPRESENTATIVE BERKOWITZ asked, "So you could get a divorce and then come back and get it straightened out the second time?" REPRESENTATIVE KELLY said that is correct. CHAIRMAN GREEN added, "Any marriage subsequent to the passage of the bill." Number 0353 REPRESENTATIVE KELLY said that was actually recommended, but he had thought it was a little overly complicated. CHAIRMAN GREEN suggested that is the effect. He asked whether the objection was maintained. REPRESENTATIVE BERKOWITZ said yes. Number 0416 CHAIRMAN GREEN requested a roll call vote. Voting for adoption of Amendment 1 were Representatives James, Bunde and Green. Voting against it were Representatives Berkowitz and Croft. Representatives Porter and Rokeberg were absent. Therefore, Amendment 1 was adopted by a vote of 3-2. REPRESENTATIVE KELLY advised members he had no objection to the next amendment, relating to licensed clinical social workers. Number 0442 REPRESENTATIVE JAMES offered Amendment 2, her own amendment, which read: Page 3, line 13: After associate insert: "licensed clinical social worker" CHAIRMAN GREEN pointed out that it adds licensed clinical social workers to the people qualified to do the counseling. He asked whether there was any objection. There being none, Amendment 2 was adopted. Number 0522 CHAIRMAN GREEN asked whether there were questions or further discussion, then indicated HB 390 would be held until later in the meeting. HJR 5 - CONST AM: FREEDOM OF CONSCIENCE CHAIRMAN GREEN brought before the committee HJR 5, proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. The resolution had been heard previously. Number 0568 REPRESENTATIVE TERRY MARTIN, sponsor, indicated he agreed with the proposed committee substitute [not yet adopted]. He suggested it goes along with probably the most important recommendation of U.S. Supreme Court Justice O'Connor, and it follows the law of Washington State. He expressed hope that it would answer many questions for those who thought the original version was too broad. Number 0622 REPRESENTATIVE CON BUNDE made a motion to adopt Version E [0- LS0199\E, Cook, 2/25/98] as a work draft. REPRESENTATIVE ERIC CROFT objected in order to review it. REPRESENTATIVE NORMAN ROKEBERG asked whether the language had been provided by the sponsor or the committee. CHAIRMAN GREEN said it is committee language, beginning with "however" on line 8. [It read, "; however, the freedom of conscience provided under this section does not excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State."] REPRESENTATIVE ROKEBERG asked whether counsel had suggested addition of the words, "does not excuse acts of licentiousness". CHAIRMAN GREEN answered that this is wording used in several other states to avoid problems that might be associated with people who are hiding behind this, rather than exercising it because of a true belief. Number 0694 REPRESENTATIVE ROKEBERG suggested it is the "other states" argument, but it also clarifies for the public, because this is a constitutional amendment, that these particular acts will not be excused. Number 0746 REPRESENTATIVE CROFT said he was still concerned about the distinction discussed at the previous hearing: Does this authorize someone to violate a law if that person's conscience says to? Even with the amendment, he wasn't sure how it would play out practically or in statute. He asked the sponsor, "Does it allow someone to object to a law and therefore refuse to comply with a valid law? Or only in these areas?" Number 0813 CHAIRMAN GREEN asked whether Representative Croft was referring to the first part or to the amendment. REPRESENTATIVE CROFT suggested that if the first part allowed it, that would show the need for the amendment. If not, he was unsure of the purpose of the amendment. CHAIRMAN GREEN said the purpose is to eliminate any confusion. He explained, "You can't do it if it's inconsistent with laws or the peace and safety of the state." REPRESENTATIVE CROFT pointed out that it doesn't say "laws of general application." It says "licentiousness or peace and safety." He asked whether he could violate a law with impunity if it was outside of the scope of this amendment. Number 0854 CHAIRMAN GREEN said that is not the intent, and this language is intended to prevent that. He suggested that if it would make it more clear, they could put in, "inconsistent with existing laws or the peace and safety of the state." REPRESENTATIVE BUNDE pointed out that if they want this to go before the voters, it should be explicit. He stated a preference for the language, "doesn't violate existing law," saying he could imagine a huge court fight over what is inconsistent with peace and safety. REPRESENTATIVE CROFT added, "Or what licentiousness means." Number 0905 REPRESENTATIVE JEANNETTE JAMES commented that freedom of conscience has been around for so long. People do violate the law based on freedom of conscience and spend time in jail, even where there exists freedom of conscience. One argument she has heard against having this constitutional amendment is that we have it already; she agrees but thinks this just makes it perfectly clear that we do. However, historically, if people choose to disobey the law, they pay whatever the price is. CHAIRMAN GREEN suggested this doesn't change that. REPRESENTATIVE JAMES concurred. Number 0978 CHAIRMAN GREEN responded, "Well, what I'm saying is that what this says is that you are allowed a freedom of conscience. You can't do it because you're going to break the law. You can't do it if it interrupts the freedom and safety of the state. But under existing law, as has been shown, you may be held accountable for lawfully objecting." REPRESENTATIVE BUNDE noted that he'd heard on the radio that morning that a 70-year-old nun in Fort Campbell, Kentucky, is going to jail for six months. She'd been warned at a protest a year ago, relating to training of South American soldiers, not to do it again. When she did it anyway, she was sentenced to jail. Representative Bunde asked whether anything about this resolution would change that. CHAIRMAN GREEN answered, "Not if she broke the law." REPRESENTATIVE BUNDE said that is critical for his support. There must be consequences for people's actions, even if they believe they are doing it for a greater good. REPRESENTATIVE CROFT said if it was the intention to add that amendment, he was removing his objection to adoption of Version E. Number 1099 CHAIRMAN GREEN noted that there being no further objection, Version E was before the committee as a work draft. REPRESENTATIVE BUNDE specified that he had been speaking to the proposed language to amend Version E, to say that it "does not excuse acts that violate ...." CHAIRMAN GREEN said, "... licentiousness, [comma] existing laws or justify ...." REPRESENTATIVE BUNDE replied, "As long as 'existing law' is in there, I guess we can leave the others in there." Number 1131 REPRESENTATIVE JAMES said Representative Bunde's example sounds like apples and oranges. Demonstrating is entirely different from not doing something that is against one's conscience. CHAIRMAN GREEN suggested Representative Bunde wanted this in here so that people couldn't break the law. REPRESENTATIVE JAMES agreed that they shouldn't excuse people from breaking the law. CHAIRMAN GREEN concurred. Number 1186 REPRESENTATIVE MARTIN told members this came from Washington State, and "licentiousness" is a word James Madison had used. He agreed that people have always tested the freedom of conscience, and he cited examples relating to civil rights and the teaching of evolution. He pointed out that it is how laws have been changed. Number 1311 REPRESENTATIVE ETHAN BERKOWITZ said those examples are like Representative Bunde's, where someone got into trouble for doing something. They are sins of commission. REPRESENTATIVE MARTIN agreed. REPRESENTATIVE BERKOWITZ suggested Representative James' understanding is that the proposition solely covers sins of omission, a big difference. Number 1330 REPRESENTATIVE MARTIN replied, "I didn't say that, omission or commission. Both ways it works." REPRESENTATIVE BERKOWITZ asked, "So, omission and commission?" REPRESENTATIVE MARTIN answered, "Sure. It's called freedom." He reminded members that someone would pay the price for daring to challenge authority, however. Number 1344 REPRESENTATIVE JAMES referred to a memorandum from the sponsor, dated February 11, 1998, that quoted from Oregon's Bill of Rights, Article I, Section 3, as follows: "No law shall in any case whatever control the free exercise, and enjoyment of religious opinions or interfere with the rights of conscience ..." Representative James said that is the way she reads this whole issue. Generally, one can refuse to do things that are against one's conscience. REPRESENTATIVE JAMES cited the example of conscientious objectors in the military, where generally people whose objection was to war itself, or to killing, would be placed where they wouldn't be exposed to that; there was an understanding that a right of conscience is a basic right. Representative James said she didn't know that there is a big problem in Oregon, with this in the constitution. She concluded, "I think what it means to me is that you shall not make a law that requires somebody to do something against their conscience. That's what you shan't do." Number 1571 REPRESENTATIVE BERKOWITZ said he'd looked over the list provided by Representative Martin, and those propositions are so "well and good" that they are already included in Alaska's constitution. He read from Article I, Section 4, Freedom of Religion: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." He said that covers the concerns that were raised. REPRESENTATIVE MARTIN disagreed. CHAIRMAN GREEN suggested it almost does, saying it covers the right of religion but not the freedom of conscience. REPRESENTATIVE MARTIN said that is exactly the point. In calling around to hospitals, he'd found that Providence Hospital had thought it was safe because it is a religious institution. However, he had asked about the hospitals managed by Providence, such as in Sitka and Seward. Now, Providence Hospital doesn't know whether it is safe, because those were previously public institutions. REPRESENTATIVE MARTIN asked why a person of religion should have more freedoms than a person who is nonreligious but is a moral individual. He asked if only by having a religious conviction are we safe from what authorities tell us to do. He further asked if a moral person with freedom of conscience, who does not have a religious conviction, is a secondary citizen. Number 1488 REPRESENTATIVE BUNDE said he feels "licentiousness" is vague. He made a motion to remove "of licentiousness" on line 9 and replace it with, "contrary to existing law." REPRESENTATIVE BERKOWITZ objected, saying he believes that is also vague. CHAIRMAN GREEN stated his belief that he already had an amendment on the floor. He offered to withdraw it. REPRESENTATIVE BUNDE said he'd thought it was just discussion. He withdrew his own motion. Number 1564 CHAIRMAN GREEN said the motion that was made is that after the word "licentiousness", they insert, "violate existing laws, [comma]", which would be followed by "or justify practices ...." REPRESENTATIVE CROFT pointed out it would have to say, "that violate". Number 1571 REPRESENTATIVE BERKOWITZ said his objection has two parts. First, they don't know what "existing law" means. Is it existing at the time the constitutional amendment is enacted or at the time the interpretation is made? Second, it seems they are subordinating a constitutional provision to a statute, a strange anomaly. He explained, "We're basically saying, 'This constitutional amendment is all right except if there's a law.' In most cases, the constitution trumps law." REPRESENTATIVE JAMES agreed. CHAIRMAN GREEN responded that it doesn't say, "unless there's a law," but just says one can exercise freedom of conscience that does not violate a law, is not licentious, and so forth. He said if "licentiousness" is a problem, that can be eliminated. REPRESENTATIVE BERKOWITZ said he was talking about the law part. CHAIRMAN GREEN suggested they could fix it to include laws passed in the future, by just saying "laws." REPRESENTATIVE BERKOWITZ referred to use of the term "law" within a constitutional amendment. He restated, "The normal progression of events is that the constitution trumps statutes. And here, what we're saying is if there's a statutory provision, it's going to trump the constitution." Number 1647 REPRESENTATIVE BUNDE replied, "Existing law means, to me, law that exists at the time that this freedom of conscience issue would come before the courts. And while I understand 'rocks over scissors,' ... we have a constitutional amendment here that says existing law still applies." CHAIRMAN GREEN expressed willingness to drop "existing" from the amendment, so that it covers future laws. Number 1681 REPRESENTATIVE ROKEBERG said Representative Berkowitz is on point here, and they haven't even talked about retroactivity. For example, what would be the effect of an existing statute that may be inconsistent with this? He suggested this fails by that construct. CHAIRMAN GREEN said he would agree on that issue; if existing law would prevent this free exercise, this would prevail. He acknowledged the question about a law that passes next year. Number 1722 REPRESENTATIVE JAMES agreed with Representative Berkowitz that the constitution is a higher power than the statutory law. She suggested that by putting a basic right in our constitution for freedom of conscience, the state cannot make any law that would violate a person's freedom of conscience; that is the point. Neither can they make a law that requires people to violate their own religion, or the free exercise thereof, under a federal constitutional amendment. Conscience is just as important to people as their religion; it is the very inside of them. REPRESENTATIVE JAMES suggested this added language is to clarify that taxes are not necessarily a violation of the conscience, for example, but part of the peace and safety of the state. It sorts through what one can and cannot do. However, putting "laws" in there messes it up, because laws have to match the constitution, not the other way around. CHAIRMAN GREEN responded that the peace and safety of the state, in large part, are made up of laws. He said, "And so, if we are going to allow this regardless, or not allow any law to interfere with the freedom of conscience, and that freedom of conscience is that you join my religious organization that advocates something that's illegal, then the constitution should not give you a privy to hide behind that." REPRESENTATIVE MARTIN agreed. REPRESENTATIVE JAMES said, "I don't think it does, sir." CHAIRMAN GREEN replied, "It doesn't. And so, by putting in laws, we make sure that no young lawyer or someone else is going to misconstrue what we're really after here." Number 1842 REPRESENTATIVE JAMES emphasized that with "laws" in there, it says this constitutional amendment is subject to statutory law, which is the wrong way to go. "The constitution is a guide," she said. "You can't do any laws that violate the constitution." CHAIRMAN GREEN replied, "Well, if you don't do that, then we can't have this." REPRESENTATIVE JAMES said that might be true. CHAIRMAN GREEN disagreed with Representative James on that point. Number 1868 REPRESENTATIVE MARTIN first said he kind of agrees with Representative Berkowitz. He noted earlier discussion about having constitutional amendments that are general and broad, not tied up with too many details, as done by the constitutional drafters from the early days. He suggested the courts over the years have been balanced in deciding when someone uses or misuses the so-called freedom of conscience; they had been flexible regarding an individual, as long as it doesn't impact someone else. He cited a case where the person's religious beliefs would not allow him a blood transfusion; the court had upheld that person right, and his family's right, to not force him to have the transfusion. On the other hand, when there was a law pertaining to children, the government was allowed by the courts to overtake the protection of a sick child against his parent's wishes, in order to save the child's life. CHAIRMAN GREEN asked whether that was because of some statute. REPRESENTATIVE MARTIN said yes, even though the objections were for religious rights, such as not wanting a vaccination, they had ruled in favor of the child, that "the government has the right to protect the life of that child against their conscience." He said it will always be give and take. Representative Martin then stated, "But as Representative James said, if you've already put the law in there, your conscience cannot be objected to the law. That's the whole idea. That's why every time it comes to (indisc.), whether it be in Athens, whether it be in Rome, whether it be in Europe or even in America, these laws people objected to, as a freer people. And our Founding Fathers made it very clear: Freedom of conscience is extremely important." REPRESENTATIVE MARTIN asked that the committee not alter it much more, because this wording has been tested in at least two states. He said, "And if we put, say, 'as the law is,' then there's no conscience, because anyone can make a law. Any judge can interpret, as the supreme court here did - they interpreted a law of right to privacy. It was a constitutional right ...." Representative Martin recounted how a California pharmacist had lost his license and was sued because he wouldn't dispense some drugs meant to kill. He stated, "If a doctor believes in assisted suicide, let him administrate the pill; don't send it to the pharmacist to give these pills to someone he knows that it's going to be their deaths. And so, they're up in arms because the pharmacist feels just because he has a license it doesn't mean to give pills to someone for death. And he upheld the Hippocratic oath, 'I'm here to help people to live better. To help them, not to terminate their life.' And so, that's his defense in the California court." Number 2013 CHAIRMAN GREEN asked: If they didn't have that, but just peace and safety, would it be Representative Martin's opinion that these other states have not had the problem raised by Representative Croft? REPRESENTATIVE MARTIN said no, then cited Jamestown in 1620 and the Mayflower Compact as having included freedom of conscience. Number 2014 REPRESENTATIVE BUNDE commented that those people weren't perfect, mentioning the holding of slaves and the burning of people. He agreed that peace and safety of the state relate to laws. From his point of view, he said, existing law is already covered; if not, he certainly can't support this. He noted that Representative James had said that if this passes, they couldn't pass a law that would impact somebody's freedom of conscience. Representative Bunde suggested if that is the case, they couldn't pass another law. He said he could search the state of Alaska and find someone, on almost any law, who thinks it limits his or her rights too much. CHAIRMAN GREEN agreed, saying the way it was before, with just "peace and safety," that is how he interpreted it also, which would be proactive into the future. Additional laws passed would still fall under peace and safety of the state, to answer Representative Rokeberg's question. Chairman Green said he had been trying to ease a concern brought up by a member, but it seems to be stirring up more problems than it is answering. Number 2108 REPRESENTATIVE CROFT stated his belief that the problems are inherent in HJR 5. He suggested they are putting a weight on freedom of conscience that it can't hold. He referred to materials provided by the sponsor quoting Sandra Day O'Connor and talking about Rhode Island's charter of 1663. In discussing "liberty of conscience," that document protected residents "from any ways being molested, punished, disquieted or called into question for any differences in opinion in matters of religion." Representative Croft suggested that conscience was used nearly identically with religion then. CHAIRMAN GREEN said, "Nearly." REPRESENTATIVE CROFT suggested they used it synonymously. He said the reason that is appropriate and can work is that it is easy to identify. He explained, "It said the state has no right to interfere in your religious beliefs, and that's still true today. It said when your beliefs turn into action - 'I must do anything, I must drink Communion wine on Sunday and it's Prohibition, ... or I cannot go to war' - that's where your religious beliefs turn into actions." REPRESENTATIVE CROFT said that is where the court has had the most trouble, in identifying real religions and not shams. He stated, "There are the Holy Church of Not-Paying-Taxes right now, so that's been tough, because who is the state to question what is a real religion and not? The courts have been very sensitive about ... getting them down to bona fide beliefs, and not saying, 'Has this church existed for a hundred or a thousand years?' That's really none of the state's business. 'Do we like the terms of its religion?' None of our business. But just, 'Is it something that you truly believe,' is finally what they settled on, which is pretty close to the definition of 'conscience' that we have today." REPRESENTATIVE CROFT said when it comes to actions is where it has been toughest. Until recently, there would be exceptions of a very limited nature, the biggest being sacramental wine during Prohibition; that was in statute, but a lot of people agree that if it had not been, they would have created one, because it would have been prohibiting the free exercise of the Catholic religion by this general prohibition. REPRESENTATIVE CROFT said the federal free exercise clause was recently re-interpreted by Justice Scalia to stop that; they took a church of Indians who used peyote for hundreds of years and said they couldn't do that. A lot of people thought that was a poor decision that hurt people's free exercise. Representative Croft stated, "We have kept the very limited, 'You can have an exception not immunizing yourself, not taking your kids to school.' So, we have that protection." He said if we open it to "any belief gives you this exception," he worries that goes too far. It has been troublesome from the day it came before this committee. He concluded, "What do we mean by it? If we open it up beyond sincerely held beliefs about the universe and its Maker, if that's what we mean by it, we have it. If we mean something else by it, I don't know what we mean, and I'm very worried about it." Number 2263 REPRESENTATIVE MARTIN cited examples from committee packets, including Pennsylvania's Article I, Section 3, as well as the dual freedom of religion and conscience in Indiana. Other states have split, and in some there are two different things. Representative Martin said, "And so, in this case here, I'm saying that in this state, are we going to say that only those people of religion have the superiority of freedom when they feel that something is morally wrong? And those that do not declare a religion, you cannot use your conscience? That is what's made clear in the Valley Hospital case, then they'd say the nurses and others cannot use freedom of conscience. That's why the Providence Hospital at first thought they were safe, because they're a religious hospital; now, they're not so sure they're safe, because freedom of conscience needs to be brought in. People need both of them." Representative Martin indicated that 45 states make clear three important things: freedom of religion, freedom of conscience, and free exercise thereof. Number 2321 REPRESENTATIVE BUNDE indicated Representative Martin first wins him over, but then the dialogue goes further. He requested help in understanding the practical application of this, without any amendment. He stated his understanding that abortion clinic bombers would still be subject to law, although their conscience tells them that they are saving more lives by killing people. REPRESENTATIVE MARTIN said that's why they have the public safety clause. Number 2360 REPRESENTATIVE BUNDE referred to Valley Hospital. He suggested part of the genesis of this was some people being told to either be involved or get fired. He asked if those people would be allowed to keep their jobs under freedom of conscience, or if they would have to suffer the consequences of not complying with the directive of whoever is in charge. REPRESENTATIVE MARTIN indicated Valley Hospital has been told, because it is quasi-public, that it must provide abortion services. He asked, "From that point on, who is to do it? The board of directors that is elected by the citizens in that community chose, after a number of elections, not to provide abortion services. Sitka went through that, Kenai went through that - I don't know what other hospitals, but I know those three did - where the people who elected a board of directors in that community chose, and this is one of the reasons why they chose it." REPRESENTATIVE MARTIN suggested the courts said a right to privacy equals the right to abortion. He asked, "But do they have a right to force someone else to perform that operation? No, not on their freedom of conscience, I say, but under freedom of religion, they say no. But we don't have a freedom of conscience right in this state." Number 2422 REPRESENTATIVE BUNDE said he understands all that but is not getting the answer to his question. As he understands it, the courts have said that if a hospital takes federal money, it must provide this service. The consequence for following their conscience, then, is not to take federal money. He suggested the hospital wouldn't do that, because they need the money. So, someone is working at the hospital, and the hospital must perform the abortion. If a person with a strongly held belief chooses not to be involved in the procedure, does that person then suffer the consequences of disobeying his or her superior and being subject to dismissal? Or could such people say that the organization cannot make them perform abortions or fire them if they choose not to? [Representative Martin's reply was cut off by the tape change. Log notes indicate he said the person would have the right to go to court over it.] TAPE 98-26, SIDE B Number 0006 REPRESENTATIVE BERKOWITZ clarified that the Valley Hospital case does not compel people to perform abortions. It quite clearly states that people who have a conscientious objection to abortions need have no role in the performance of those services. REPRESENTATIVE JAMES pointed that a hospital cannot have a conscience. She then referred to the phrase, "does not excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State." She suggested a vegetarian working at a meat market could have to sell meat but wouldn't have to eat it; otherwise, that person could find another job. She agreed that in the Valley Hospital case, there was no demand that anybody violate his or her conscience in performing those duties. She restated that the hospital itself can't have a conscience. Number 0080 CHAIRMAN GREEN said that is a point well-made. REPRESENTATIVE CROFT said he had been going to make the same point about the Valley Hospital case. Number 0094 REPRESENTATIVE ROKEBERG said a person may not be compelled to do something contrary to his or her conscience, but a hospital is a certified state organization. If they are compelled by the court to act, then what duties do they have under the rule? REPRESENTATIVE CROFT replied that on that point, Representative James had phrased it exactly right: A hospital can't have a conscience. He mentioned the previous example of immunizing children. Although some people don't believe they should for religious reasons, a person can also make that decision for himself or herself without having the government force it upon anyone, although it may result in a quarantine, for example. If a group of Christian Scientists took over a hospital board and said they didn't want to provide immunizations anymore to a community, however, they couldn't do that. No particular Christian Scientist serving in that hospital has to give immunizations, but they can't shut it down for the whole community. REPRESENTATIVE CROFT stated, "If we're trying to fix Valley Hospital, I don't think that's appropriate; but if you want to do it, let's do that, and we can fight about that, instead of something that I think is going to open up a huge, uncontrollable, really, can of worms." Number 0159 REPRESENTATIVE MARTIN responded, "My part in beginning this - and this legislation's been around for at least ten years - was not the Valley Hospital decision. It was the individual's rights of freedom of conscience, that to me is far more -- and we keep up bringing up religion. The Valley Hospital case made it very clear: There is a different between ... freedom of religion and freedom of conscience. In this state, the only way it's even suggested that you have any freedom of conscience is in the right to privacy. But it does not give a right -- pertaining to abortions, I should say. No one, against their conscience, has to participate in abortions. Well, now we're seeing that that may be not so, because the court says that 'directly in abortions.' So, the doctor performs the act, the nurse has to clean up, the janitor has to clean up and everything else." REPRESENTATIVE MARTIN continued, "And we got gobs of letters from the Valley Hospital people; you heard the testimony last week from nurses who were forced into doing something that they ... felt very, very strict about. That's where conscience come in. So, the Valley Hospital kind of brought up the subject again, inflamed the idea: Do we need to protect people - freedom of conscience? Yes, because they said, very clear, there's a difference between conscience and religion. And I believe in that, too." Number 0215 CHAIRMAN GREEN noted that the states cited as examples by Representative Martin don't have Valley Hospital as an issue. Number 0222 REPRESENTATIVE BUNDE said he keeps wrestling with this; he thinks he has a grasp, but then more questions come up. He stated, "Representative James said, if you don't want an abortion, don't have one, that's freedom of conscience, but you can't prevent other people. Now, Representative Martin says freedom of conscience says ... the janitor, who is only tertiarily involved, he has to mop up the halls where abortion patients walk or he has to clean up the operating room. He is not actively participating in providing the abortion, but he's an employee of the hospital, and ... we can go as far as want: the cook who makes the meal that the doctor eats who provides the abortion. I still don't have an answer to my question: ...If that janitor, or that cook, refuses to do their assigned duties, are they subject to dismissal? Or can they say, 'My freedom of conscience does not allow me to clean that floor, but I can clean this floor, or cook for this guy, but I can cook for that guy'?" REPRESENTATIVE MARTIN responded that throughout 300 years of American history, that has been the challenge in state courts and the U.S. Supreme Court. At least the people in most other states have the guaranteed right in their constitutions; but in this state, people don't have anything to hat their hats on. Representative Martin proposed examples: "I'm not a religious person, but I have my own morals, and therefore, I'm not going to do what that doctor tells me to do; and then I get fired. And then I can say, 'Hey, the state fired me, too, from my job. I did not want to ... put someone to death, because I didn't believe in it; that person does, let them do it. They insisted I give the lethal injection. I didn't want to do that. So, you're fired." CHAIRMAN GREEN announced that following the testimony of Sarah Felix, there would be a wrap-up and vote. Number 0315 SARAH FELIX, Assistant Attorney General, Civil Division (Juneau), Department of Law, informed members that her office had testified on HJR 5 the previous year. She stated, "We believe that there are serious problems with the joint resolution, such as the ones you have articulated. We're not quite sure how it would be enforced. We're not quite sure what we would do in the situation that Representative Bunde has raised, where someone is going to raise that ... in their wrongful employment termination lawsuit against the state. We're not sure how this would work with people who are morally opposed to paying child support. ... Alaska is a big state, full of a lot of people with a lot of ... fervently held beliefs, and we're not quite sure how this would work. And we're very concerned that it wouldn't work." Number 0376 CHAIRMAN GREEN noted that this is not addressing the Valley Hospital case, but it is an example. Although one person making beds might not adversely impact the operation, if the place is not cleaned up, a janitor might adversely affect the operation. He asked, "Would you see, from the AG's [attorney general's] viewpoint, that peace and safety of the state not being held in jeopardy because of your belief would protect and distinguish between various occupations?" MS. FELIX replied that they aren't sure what "the peace and safety of the state" would mean, as it is a broad expression. She stated, "I'm not certain that it would cover your example. I mean, I think that person would have some 'wiggle room' to say that their action is not inconsistent with the peace and safety of the state, so that therefore their belief should be protected." She noted that the Valley Hospital case specifically said that nothing in the permanent injunction required anyone affiliated with the hospital, to participate directly in the performance of any abortion procedure, if that person, for reasons of conscience or belief, objects to doing so. CHAIRMAN GREEN said, "Directly." He mentioned the janitor. MS. FELIX replied, "Indirectly. I know. ... I think that's open to question, open to litigation, and one of the problems that we'd have to address, were this to become law." Number 0467 REPRESENTATIVE JAMES read from Oregon's Bill of Rights, as attached to the sponsor's memorandum of February 11, 1998: "No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience." She said she grew up in Oregon and had never known it to be a problem. She asked whether Ms. Felix would see any problem in that language. MS. FELIX replied that she would see a lot of the same problems that she sees in this language. "Oregon's lucky, I guess," she said. "Maybe ... that hasn't been discovered as a possible defense to prosecution for various offenses. I could see, in this state, someone using this, HJR 5, as a defense to prosecution for not paying child support, not paying taxes, any of those things. ... I can't tell you why it hasn't happened in Oregon. I can only say that our projection is that it would happen here." Number 0536 REPRESENTATIVE JAMES suggested the reason for this struggle is that Alaska didn't have this first, before all these examples where people refuse to do things. However, she doesn't think it means that, at all. The other reason for confusion is that when the United States was first founded, it was based on Christianity, although the country has come to understand that there are lots of other religions, as well as people who are religious but not attached to any particular religion. Representative James said that religion means what a person believes; religion and conscience are actually the same thing, but there is a misunderstanding tying religion to churches. Representative James said she feels comfortable putting conscience in with religion, because then it includes people whether they are members of a regular church or not. One can have a religion without any church affiliation, she concluded. Number 0594 REPRESENTATIVE BERKOWITZ said he thinks it is important to respect the diversity of belief systems and ways of worshiping. A law like this, on its face, seems to promote some kind of freedom. However, it really leads to an anarchy that erodes everybody's freedom, because one can take individual freedom of conscience in such a way as to impinge upon the freedom of one's neighbor. "And that's the root of my objection to this bill," he concluded. CHAIRMAN GREEN said the amendment would preclude that. He suggested that other states have articles far more permissive, without anarchy or a plethora of lawsuits. He cited Arkansas and Delaware as examples. He submitted that perhaps the legal minds are seeing problems, which is what they should do, that may or may not exist and that don't seem to exist in other states. Number 0678 MS. FELIX said she not familiar with the materials provided to the committee regarding other states. Perhaps the distinguishing factor in HJR 5 is the language that says, "may not be compelled in a manner that violates the individual's conscientious objections to the act," which is more specific than broader language of other states; that may be something that a litigant could latch onto and use to advantage when the state tries to get that person to pay taxes or child support, or to do whatever the state has enacted laws about. "And then they would say they had a firmly held conscientious objection to that act," she concluded. Number 0740 REPRESENTATIVE CROFT pointed out that the provisions for the bills of rights for Arkansas and Delaware are both titled, "Freedom of Religion." Both start similarly, addressing the right to worship Almighty God according to the dictates of one's own conscience. He suggested that in using "conscience" in this way, it means an aspect of freedom of religion. He offered Ms. Felix a copy of those attachments to the sponsor's memorandum of February 11, 1998. He asked if that is the way Ms. Felix would read those. MS. FELIX said it does seem as if these clauses are more similar to the clause Representative Berkowitz had read earlier from the Alaska constitution on freedom of religion; perhaps that would be the distinction. She explained that her office is not saying that individuals don't have the right to exercise freedom of conscience. People do it all the time in individual cases, in litigation on individual acts. She suggested that right already exists, and people can still exercise those rights. Number 0809 CHAIRMAN GREEN withdrew his amendment. Number 0824 REPRESENTATIVE BUNDE made a motion that on line 9, they delete "of licentiousness" and insert "contrary to existing law". He requested Ms. Felix' input. CHAIRMAN GREEN noted concerns about a law passed the next week, for example. MS. FELIX responded, "I think that that is a problem: What does existing law mean? And I think that all the interpretations that were mentioned are equally valid, and they could be upheld. I think that the broader concern is the concern raised by Representative James ... and Representative Berkowitz, in that if we're going to put this 'existing law' language in a constitutional amendment, we get even more confused because of the hierarchy of the laws, and the constitution then being subordinate to other laws. And then what does it mean?" Number 0890 REPRESENTATIVE BUNDE withdrew his amendment. Number 0899 CHAIRMAN GREEN asked whether Ms. Felix sees something that could be inserted there to circumvent the concern of not wanting people to run amok. MS. FELIX replied that she understands the concern, and the department shares that concern. However, she cannot think of a way to do this. CHAIRMAN GREEN commented that maybe that's why the other states don't have it in, either, and they seem to be all right. He asked the wish of the committee. Number 0929 REPRESENTATIVE JAMES made a motion to move HJR 5, Version E [0- LS0199\E, Cook, 2/25/98], from committee with individual recommendations and attached fiscal note(s). REPRESENTATIVE BERKOWITZ objected and requested an at-ease. CHAIRMAN GREEN called an at-ease at 2:15 p.m. He called the meeting back to order at 2:16 p.m. Number 0961 CHAIRMAN GREEN requested a roll call vote. Voting to move the resolution from committee were Representatives Rokeberg, James and Green. Voting against it were Representatives Croft, Bunde and Berkowitz. Representative Porter was excused. Therefore, HJR 5, Version E, failed to move out of the House Judiciary Standing Committee by a vote of 3-3. HB 390 - CHARTER MARRIAGES Number 1046 CHAIRMAN GREEN announced that for the second time that day, the committee would take up HB 390, "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." He noted that they had not yet adopted the proposed committee substitute. Number 1046 REPRESENTATIVE JAMES made a motion to adopt Version Q [0-LS1062\Q, Lauterbach, 2/26/98] as a work draft. There being no objection, it was so ordered. REPRESENTATIVE JAMES made a motion to move HB 390, Version Q, as amended, from the committee with individual recommendations and attached fiscal note(s). Number 1130 REPRESENTATIVE BERKOWITZ objected. CHAIRMAN GREEN requested a roll call vote. Voting to move the bill from committee were Representatives Rokeberg, James, Bunde and Green. Voting against it were Representatives Croft and Berkowitz. Representative Porter was excused. Therefore, CSHB 390(JUD) moved from the House Judiciary Standing Committee by a vote of 4-2. HJR 50 - PERMANENT FUND PUBLIC CORPORATION [Contains discussion of HB 81.] CHAIRMAN GREEN announced the next item of business would be HJR 50, proposing amendments to the Constitution of the State of Alaska relating to a public corporation established to manage the permanent fund. Number 1135 PATRICK LOUNSBURY, Legislative Secretary to Representative Jeannette James, Alaska State Legislature, presented HJR 50 on behalf of the sponsor. He explained that it is an amendment that, if passed, will go before the voters at the next election. It essentially accomplishes two goals, one of which is to provide continuity within the board of the permanent fund. Mr. Lounsbury reminded members that former-Governor Hickel had come in and simply wiped out the board; four years later, Governor Knowles did essentially the same thing. With the Alaska Permanent Fund Corporation being such an important corporation and having more liquid wealth than any other asset in the state, continuity would be a reasonable goal. Equally important, HJR 50 also provides accountability by allowing board members to be confirmed by a joint session of the legislature. This would give Alaskans a little more access and improved scrutiny. Mr. Lounsbury described the resolution as straightforward. Number 1224 REPRESENTATIVE BUNDE referred to the executive director of the Alaska Permanent Fund Corporation and asked how the directorship is achieved. MR. LOUNSBURY said HJR 50 would not affect that. Number 1247 REPRESENTATIVE BUNDE asked about the provision for removing board members. MR. LOUNSBURY explained that presently, board members may serve at the pleasure of the governor, which is how entire boards have been eliminated. This language would allow board members to be removed as provided by law. There is enabling legislation, HB 81, now before the House Finance Standing Committee. Number 1293 REPRESENTATIVE CROFT referred to HB 81 and asked whether these are two-year, staggered terms, with members appointed by the governor but not confirmed by the legislature. MR. LOUNSBURY said no, he believes those two-year, staggered terms would have removal for cause. REPRESENTATIVE CROFT asked if they are confirmed by the legislature. MR. LOUNSBURY said yes. Number 1348 REPRESENTATIVE ROKEBERG referred to an unsigned letter in the bill packet dated January 6, 1995, from Governor Knowles to Mr. Carl F. Brady, Jr., removing him from the Board of Trustees of the Alaska Permanent Fund Corporations. He asked how this legislation overcomes the right of the governor to appoint. MR. LOUNSBURY explained that the letter is an example of how arbitrarily some appointees can be removed. He added, "Don't get me wrong. I believe in our constitution. I believe in a strong constitution. I believe in a strong governorship. However, when dealing with the permanent fund board, I think fiduciary responsibility, and acting in the best interests of the fund for the people of the state of Alaska, is more important than a politician's philosophy of government." Number 1438 REPRESENTATIVE ROKEBERG asked whether HB 81, the enabling legislation, provides for the removal of the head of the board. MR. LOUNSBURY answered that it is the entire board. REPRESENTATIVE ROKEBERG asked whether they could be removed for cause. MR. LOUNSBURY said they hadn't wanted to change the constitution. They had tried to do it in statute, but were thwarted. Mr. Lounsbury stated, "Article III, Section 26, of the constitution, provides that you have to be the head of a principal department, a regulatory agency or quasi-judicial, which clearly the permanent fund does not lie under any of that jurisdiction. So, to deal with the permanent fund corporation, it ... has to be in the constitution. And that's why we chose this course." REPRESENTATIVE ROKEBERG asked for clarification. Number 1517 REPRESENTATIVE JAMES explained, "Basically, this was a bill that we passed in 1996 and was vetoed by the Governor because of its unconstitutionality. ... So, I put the bill back in again. We tried to work around the constitutionality of it. The problem is that we wanted to be sure that the permanent [fund] board could only be removed for cause, because we wanted to maintain the continuity on the board, as having such an important responsibility. And it can't be, under the current constitution, because what allows us to do that in the constitution doesn't include the permanent fund board." REPRESENTATIVE JAMES further explained that they had to make the permanent fund board subject to legislative confirmation in order to make a law that says members only can be removed for cause. Otherwise, members serve at the pleasure of the governor, and any governor could come in, take the board completely apart and put another one in. She concluded, "We have support from all of the previous board members since the beginning of the permanent fund, plus Oral Freeman, who is the father of the permanent fund, and the current board members support this policy and this procedure. The reason why we have the constitutional amendment is to be able to pass HB 81." REPRESENTATIVE ROKEBERG mentioned language referring to a member of the board of the corporation who is not the head of a principal department. He asked what the intention is, and whether they are adding to the board. Number 1638 MR. LOUNSBURY replied that they are trying to dovetail the Alaska Permanent Fund Corporation into the constitution, so that the legislature may insert the provision, "as provided by law," to get to removal for cause. REPRESENTATIVE ROKEBERG expressed his understanding that what Mr. Lounsbury had stated earlier is already in the constitution. He asked whether it is to make sure it is not contrary to another portion. MR. LOUNSBURY said yes. REPRESENTATIVE ROKEBERG expressed understanding that the bill then provides "for cause" authorization, as for the Alaska Public Utilities Commission and the few quasi-judicial bodies in the state that would have "for cause only." REPRESENTATIVE JAMES said that is correct. Number 1695 REPRESENTATIVE BERKOWITZ suggested HB 81 should have been provided. He then mentioned that the notion of cause exists in a universe with the idea of expanding fiduciary duty. The question of what the reasonably prudent investor would do is also evolving. It used to be that the reasonably prudent investor was investing for the highest rate of return. Now, however, there might be a more social agenda, such as the question of whether to invest in tobacco stock. Representative Berkowitz said, "And in my estimation, that kind of philosophical difference to the notion of what constitutes a reasonably prudent investor means there's a difference in the expectation of what the fiduciary responsibility would be, and that would amount to cause." REPRESENTATIVE JAMES said that is arguable. Number 1792 REPRESENTATIVE CROFT asked whether it is Article III, Sections 25 and 26, and particularly the latter, that limits them in this area. MR. LOUNSBURY said yes. REPRESENTATIVE CROFT said, "So, we're not allowed to establish that any executive agency appointee serves for good cause, or any other restriction, except if they fit under Section 26?" MR. LOUNSBURY replied that if it is not in the constitution, they can't do it like that. He cited the Alaska Railroad as an example. REPRESENTATIVE CROFT noted that the previous try had been vetoed by the Governor. He asked whether there had been any other determination, such as by the court, that it was unconstitutional. MR. LOUNSBURY answered that Bradner v. Hammond had addressed that specific issue. Number 1869 CHAIRMAN GREEN agreed that the committee needs to see the companion bill, HB 81. He announced they would hold over HJR 50. HB 430 - AUTOMOBILE CIVIL LIABILITY [Contains discussion of HB 95.] CHAIRMAN GREEN announced the final item of business would be HB 430, "An Act relating to noneconomic damages resulting from an automobile accident." Number 1990 JAMES HORNADAY, Legislative Assistant to Representative Pete Kott, Alaska State Legislature, presented HB 430 on behalf of the sponsor. He first read from the sponsor statement: "This bill denies recovery for noneconomic damages (such as pain and suffering) to drunk drivers, if they are subsequently convicted, and to uninsured motorists who were injured while operating a vehicle. The bill provides one exception: when an uninsured motorist is injured by a subsequently convicted drunk driver. With this one exception, an insurer is not liable for noneconomic damages. "This bill would limit the liability of certain people to recover losses suffered in accidents. It prohibits the recovery of noneconomic losses in certain car accidents. Specifically, an uninsured driver or a driver subsequently convicted of driving while intoxicated at the time of an accident could not sue someone at fault for the accident for noneconomic losses. These drivers could still sue for economic losses. However, an uninsured motorist injured by a drunk driver in an accident could still sue to recover noneconomic losses from the drunk driver. "... The legislation should reduce the number of lawsuits handled by the courts, reducing court-related costs. The legislation should also result in fewer lawsuits filed against state and local governments, with savings as a result of avoiding these lawsuits. ... And it could result in a lower cost or premiums for auto insurance." MR. HORNADAY informed members that a sectional analysis had been provided. The bill would become effective to a cause of action occurring on or after the effective date of the Act. It is the sponsor's intent to encourage people to become insured; to discourage drunk drivers; to reduce costs and legal fees; to save state and local governments, as well as businesses, money; and to reduce premiums for auto insurance. He noted that Mr. George and others were present to answer specific questions. CHAIRMAN GREEN asked whether there were any questions for the sponsor's representative. He then called upon John George. Number 2193 JOHN GEORGE, National Association of Independent Insurers (NAII), came forward in support of HB 430, specifying that the NAII is a trade association of property casualty insurance companies that is responsible for slightly less than half of the automobile insurance written in Alaska. He and his clients support this legislation. They believe it is a matter of fairness, and that people who obey the law and buy the insurance will feel much better when this law is passed. California did something similar by initiative; a year following its passage, a survey found that almost 80 percent of the people with insurance thought it was a great idea and working well. In addition, almost the same percentage of uninsured drivers thought it was fair and the right thing to do. "Very few issues can you find where 80 percent of the people on both sides of the issue think that it was the appropriate action to take," Mr. George commented. MR. GEORGE stated his belief that HB 430 will encourage motorists to obtain the required mandatory automobile insurance, which the legislature has previously determined to be a laudable goal. If there are more insured drivers, by definition there will be fewer uninsured drivers; therefore, premiums for uninsured motorist insurance coverage should go down. In addition, there should be less disputes with uninsured drivers "going after each other." Number 2311 MR. GEORGE told members this is self-enforcing; it will not require hiring more state troopers or judges. One either has insurance or doesn't. If not, the adjuster for the insurance company on the other side will determine that the person is not eligible for those, and that portion of the claim will "go away." Although it could go to court in case of a dispute, Mr. George believes such cases would be easily resolved and there should be fewer of them. MR. GEORGE said those who pay for insurance get more out of the system than those who don't pay. However, this is not a cutting off of people without insurance. It is relatively easy to determine economic damages, such as for fixing a car or paying medical bills or lost wages. What they are saying is that a person cannot claim noneconomic damages such as for pain suffering, disfigurement and the things that are generally argued over in court. Number 2432 MR. GEORGE informed members that HB 430 will not affect someone who is not the owner or operator of the car. Passengers will have the same rights as before, as will bicyclists and pedestrians. They are only talking about the person required to have insurance. The person at the steering wheel is required to drive cars that are insured, by having his or her own insurance or by driving a car that is insured. People that own the vehicles are also required to have insurance. TAPE 98-27, SIDE A Number 0006 MR. GEORGE told members a co-owner of the vehicle who is a passenger would still be responsible to have that vehicle insured; in his opinion, that person would be excluded. MR. GEORGE indicated Ms. Hensley had posed a question to him before the hearing that day, which he would try to answer; he asked Ms. Hensley to correct him if he misstated her concern. She had stated what he believes is a legitimate concern. She has an obligation to suspend someone's license if that person was at fault and had failed to pay damages. If a person was allegedly drunk, stopped at a stoplight, and someone plowed into the car and hurt him, the police report would say this guy sitting at the light was drunk. The police would issue a citation for drunk driving, file the report, and then the insurance company would come along to settle the case and say, "Well, we aren't paying your noneconomic damages because you were drunk." However, he hasn't been convicted. MR. GEORGE said the question is whether Ms. Hensley has to suspend the license of the person that hit him, because his insurance company had not paid the noneconomic damages, "and/or, if they said, 'We're not going to pay anything until you give us a full release,' and the guy says, 'I'm not going to give you a release for my noneconomic damages, because I wasn't drunk, they haven't proven I'm drunk.'" Mr. George asked how that works. MR. GEORGE continued, "And if, indeed, she is required to suspend the license, I think maybe that's the flaw in the law. In my opinion, a person that buys insurance, whether their insurance company ever pays or not, has met the requirements of mandatory auto insurance, and that should meet the requirements of financial responsibility. Now, if they've got a flaky insurance company that didn't pay when they're required to pay, then I think the Division of Insurance has an obligation to go and take some action, and they can take severe action. But I'm not sure that it should be [the Division of] Motor Vehicles' responsibility to suspend someone's insurance if their insurance company fails to pay, when they bought the insurance." Mr. George asked whether he had represented that fairly; Ms. Hensley said she would talk about it later. Number 0280 MR. GEORGE continued, "And certainly if ... it's not a disputed amount, the guy says, 'Yeah, I was drunk, pay for my car, pay for my medical bills,' then it's not a problem. It only becomes a problem when he says, 'I will not sign a release for the physical damage and my medical bills until you pay my noneconomic damages.' And I think there are ways that that can be dealt with, the insurance company making an offer. And it happens all the time now where there's a disputed amount, where someone says, 'I think my noneconomic damages are half a million,' and the insurance company says, 'No, they're $2.98.' The way you resolve that is to file a civil case." Number 0335 REPRESENTATIVE BERKOWITZ asked how many cases in Alaska annually would invoke this statute. MR. GEORGE said he doesn't have statistics on that. According to the Division of Motor Vehicles, in discussions out in the hall, 13 percent of the drivers in Alaska do not meet the financial responsibility law. Of those, he believes 7 percent are failing to buy insurance. Mr. George noted that there are small, rural communities in this state without mandatory insurance requirements, having to do with how many vehicles pass a certain point daily, for example. He said he believes Ms. Hensley's statement was that 7 percent of those people who they recognize as really having to have insurance do not. "How many of those are involved in these accidents, I can't tell you," he added. Number 0435 REPRESENTATIVE BERKOWITZ asked if they have any idea whether the magnitude of cases per year is in the tens, hundreds or thousands. MR. GEORGE replied that he didn't have a specific number, but any case is too many because people are required to have mandatory automobile insurance. Number 0450 REPRESENTATIVE BERKOWITZ asked how many uninsured drivers got insurance on account of this provision in California. MR. GEORGE said he didn't have any statistics on that. REPRESENTATIVE BERKOWITZ asked how much the insurance rates in California went down. MR. GEORGE indicated the belief that statements he has seen from the insurance commissioner in California said it was 5 percent. He himself has clients who write in California as well as Alaska, and who say they have seen a dramatic drop in uninsured motorist claims being filed. Mr. George recalled hearing about something like a 20 percent reduction, which he thinks is a lot; he can't verify that. REPRESENTATIVE BERKOWITZ said he would appreciate seeing those numbers. MR. GEORGE offered to see what he could develop. Number 0541 REPRESENTATIVE BUNDE indicated he has concerns about that also. REPRESENTATIVE JAMES commented that rates never go down, but they may not go up so much if costs go down. She referred to the example of the drunk driver sitting at the intersection, with somebody else hitting that person. Representative James said she didn't understand in this bill that drunk drivers don't get noneconomic damages. She asked whether in that scenario, the other person had insurance. Number 0594 MR. GEORGE at first said there are two times that drunk driving comes into it. If the person who came up to the intersection and ran into the stopped car was drunk, then regardless of whether the person in the stopped car had insurance, that person could collect noneconomic damages because the driver at fault was drunk. "If you had no insurance, it wouldn't apply it any event," he then said. "If you had no insurance, you could not collect for pain and suffering, whether you were drunk or not. True. Now I see why it was confusing." REPRESENTATIVE JAMES said Jim Sourant had just reminded her that State Farm Insurance had reduced rates 2.7 percent in Alaska. They had sent her a check, which she had forgotten. Number 0677 REPRESENTATIVE CROFT referred to Mr. George's example. If a drunk driver was stopped legally at the stoplight and was hit, that person could not recover noneconomic damages under this bill. MR. GEORGE asked, "An insured drunk driver or an insured?" REPRESENTATIVE CROFT said either one. MR. GEORGE said he believes that is correct; it is the driver and/or the owner of the vehicle, and so, an owner in the passenger seat would be precluded, as well. If they were drunk, even if they had insurance, the driver couldn't collect. If they were uninsured, neither could collect. CHAIRMAN GREEN asked why the passenger could not. MR. GEORGE answered that it is because he is an owner with no insurance. It becomes convoluted, because if he is a passenger in a car that he doesn't own, and he's drunk, it doesn't matter; he can still collect for pain and suffering because he is an innocent rider in the car. But if he is an owner of the vehicle, the owner is required to have insurance. CHAIRMAN GREEN said, "And if he does, then he can collect, even though he's drunk. But if he doesn't have insurance, and he's drunk, he can't." MR. GEORGE said he thinks that is right. CHAIRMAN GREEN asked, "If he's uninsured and sober, can he?" MR. GEORGE said no. CHAIRMAN GREEN suggested if a person is uninsured, it doesn't matter what the state of inebriation is. REPRESENTATIVE CROFT replied, "Right, so we can leave that out. And if he's drunk, it doesn't matter what his state of insurance is, so we can leave that out. We can just say, 'If you're drunk and operating the vehicle, or you're uninsured, you're not going to get these noneconomic damages." Number 0785 REPRESENTATIVE CROFT further explored the example. He asked, "It doesn't matter, the culpability of the drunk driver, if the person was proved negligent who hit me, proved it wasn't my fault? If it was proved the other person was trying to killing me, ... a mad constituent, intentional torts, it doesn't matter, I don't get any noneconomic damage?" MR. GEORGE replied, "If you were driving in violation of the law, without automobile insurance, as this is written, I believe ... that you're correct." Number 0831 REPRESENTATIVE CROFT described an example: He is driving his wife home, and they are co-owners of the car; he has had too much to drink, either slightly or totally, but over the legal limit. They are hit, either negligently, recklessly or intentionally. Both suffer damages. MR. GEORGE asked whether this car has no insurance. REPRESENTATIVE CROFT replied, "The car has no insurance, let's say that, or I'm drunk." MR. GEORGE said he thinks there would be different answers. If the car has no insurance, his wife as an owner has failed to buy insurance and therefore would not recover damages. If she had bought insurance but was not the driver, he believes she would be entitled, although the driver would not. REPRESENTATIVE CROFT said he hadn't understood that distinction before. MR. GEORGE asked whether that makes sense. REPRESENTATIVE CROFT replied that it doesn't make any sense, but it is consistent. He stated his understanding that if he and his wife are driving as uninsured motorists and are catastrophically injured, and she is working as a housewife but he is working outside the home, he would get economic loss. Neither would get noneconomic loss, no matter how great the pain and suffering they could prove to a jury and regardless of loss of consortium, loss of enjoyment of life and so forth. Number 0923 MR. GEORGE affirmed that, saying that is the incentive for obeying the law and buying the mandatory auto insurance. Number 0952 REPRESENTATIVE BUNDE noted that HB 430 denies recovery of noneconomic damages to a drunk driver or to an uninsured motorist. However, it says that an uninsured motorist who gets hit by a drunk driver gets noneconomic damages; that seems inconsistent. He suggested that to be consistent, noneconomic damages should be denied to all uninsured motorists. "It's sort of like we're trying to get rid of drunk drivers, but maybe you'll get lucky and get hit by one," he commented. REPRESENTATIVE JAMES agreed. Number 1010 REPRESENTATIVE ROKEBERG referred to Representative James' comments and told members that as the chairman of the House Labor and Commerce Standing Committee, he had other examples of insurance rates going down over a period of years. He also expressed concern about the numbers and experiences in California, agreeing that having that information would be helpful. Representative Rokeberg noted that there seems to be some confusion about the intent, then expressed hope that they could take testimony and move this along. He expressed the belief that anything they can do to encourage Alaskans to get insurance should be looked upon favorably. Number 1071 REPRESENTATIVE BERKOWITZ posed a situation where an unlicensed and therefore uninsured mother has an emergency at home and jumps in the family car with her child. Stopped properly at a stoplight, the car gets rear-ended. Under this bill, it would seem that she couldn't collect noneconomic damages. MR. GEORGE questioned whether being uninsured and having no license necessarily go hand in hand, adding that he isn't sure an unlicensed person driving an insured car would be excluded. Mr. George pointed out that he is not an insurance agent, nor does he underwrite insurance policies. He then suggested the woman in that situation should have called an ambulance or a taxicab, or contacted a neighbor. The goal is to have people acting responsibly, and to him, it is not responsible for an unlicensed, uninsured person to drive a child to the hospital. Number 1225 JUANITA HENSLEY, Chief, Driver Services, Division of Motor Vehicles (DMV), Department of Administration, came forward to testify, saying as she sees it, HB 430 has some flaws. For example, if a drunk driver is at fault in an accident, under last year's tort reform that person could not recover noneconomic losses. She doesn't condone drunk driving, about which she has gone on record for years; however, if a victim stopped at a light is hit by an at- fault driver, that victim cannot recover damages for noneconomic losses under this bill. MS. HENSLEY posed another scenario: The person who hit the not-at- fault drunk driver has insurance for property damage and injuries, which are legitimate economic losses. Ms. Hensley asked, "Would the insurance industry not pay him for his economic losses pending the criminal case on the drunk driving, which can take up to a year, possibly even more in some cases, ... to convict a person of drunk driving, especially if there is injuries involved or felony assault-type charges or something else against the other party, too? What if you've got two drunk drivers hitting each other ...?" Number 1346 MS. HENSLEY continued, "In this circumstance, I view Chapter 28.20 of Alaska Statutes as being I would have to take suspension action on the insured driver - the at-fault driver - until the insurance company or until they pay the injuries, the legitimate cost of the drunk driver's claim." Ms. Hensley said she doesn't know what happens in that scenario; she had posed that question to Mr. George, to State Farm's representative and to the bill sponsor, and now she was posing it to this body. Would she come back and suspend the at-fault driver, who is insured, because that insured's insurance company fails to pay the damages to the individual pending a conviction for drunk driving on the person? MS. HENSLEY noted that HB 430 does not address the differential treatment given to persons under the influence of illegal drugs, who are not covered under the bill. That is still under the drunk driving provisions of law. But if the other party is under the influence of drugs, how do they handle that? Number 1409 REPRESENTATIVE BERKOWITZ suggested it would be best to choose one's use of intoxicants carefully. Number 1420 MS. HENSLEY next pointed out that if a single mother, for example, must choose between buying groceries that month or buying insurance, she will buy groceries for her family. If something happened that she had to drive that car and was involved in a motor vehicle accident, she would not be covered for noneconomic losses. The state would have to step in with welfare, if the woman was too injured to work. Ms. Hensley said these are just questions that she poses. She commented, "And we thought we had this covered last year in the tort reform bill. And we wanted to give time enough for everything to settle down and look and see what kind of premiums were going to be reduced, and things of that nature." Number 1465 CHAIRMAN GREEN posed his own example. If he were a 20-year-old college student driving an old but safe car, he would have liability insurance but no collision insurance. If someone who is insured hits him, how would he be covered? MS. HENSLEY explained that under Alaska law, only liability insurance is required, not comprehensive collision. The other party's insurance would be required to pay for his damages under that scenario. If an uninsured motorist hit him, the DMV would suspend that person's driver's license until they paid it. She specified that by having liability only, that is insurance coverage under the bill. "Under the collision coverage, it would be your loss," she added. MS. HENSLEY referred to the 13 percent uninsured motorist rate mentioned by Mr. George. She stated, "That is true, but in 1984 or 1982, we had a 25 percent uninsured motorist rate. After we had the mandatory insurance law that went into effect in 1986, that dropped down to approximately 7.7 percent and has kind of fluctuated between 7.7, 11.9 and 13 percent of uninsured motorists. Now, that does not mean that it's all motorists that are financially responsible. These are some people that are not responsible for the accidents. This is just a total number of uninsured motorists, based on the collisions that we have in this state." Number 1564 MS. HENSLEY brought up HB 95, which is in the House Finance Standing Committee and which this committee had heard last year. Noting that it creates an insurance data base, she suggested that HB 95 would essentially fix Section 2, subsection (2) of HB 430, in that it would allow the DMV to verify insurance before registering a car. That would cut the uninsured motorist rate even further. MS. HENSLEY told members that the financial responsibility law requires that anyone who is at fault in a motor vehicle accident be able to pay for the damages of the victim. There are sections of the state that are exempt from the mandatory insurance law; these are villages and communities with fewer than "499 average daily traffic," based on the Department of Transportation and Public Facilities (DOT/PF) traffic studies. However, those people are not exempt from meeting their financial responsibility, if they are at fault in an accident. That 13 percent includes those who are not insured but who are financially responsible. Number 1633 REPRESENTATIVE JAMES asked whether Ms. Hensley had said the tort reform the previous year provided that drunk drivers do not get noneconomic damages. She asked for confirmation that it is already in law. MS. HENSLEY said that is correct; a drunk driver involved in a crash does not get noneconomic losses. REPRESENTATIVE JAMES said this bill doesn't change that at all. She referred to the law that requires the DMV to suspend the license of someone without insurance. She noted that Oregon also has a financial responsibility law; people can lose their licenses if they cannot prove financial responsibility by either posting a bond or providing proof of insurance. She suggested there is a flaw in the law, if the DMV must suspend a person's license for not having paid but it is simply a case of waiting on the insurance company for payment. She said it seems that by buying the insurance, the person has protected himself or herself. "If that's not the case, we need to fix it," she concluded. Number 1705 MS. HENSLEY replied that Alaska has basically the same financial responsibility law that Oregon has. She explained, "You have an option: You either have to have insurance, you can post security, or you can get a release of the party ... that was the victim. In the cases where the security is posted, the only way that the victim then can come back and get that security is with a civil judgment against the at-fault party. ... That has been law since 1959; the financial responsibility has been in place, so that we do have that same mechanism here, that it does require me to suspend the driver's license unless they post security or they have paid damages or they have shown insurance. And in most cases, if they're insured and the insurance company is not paying the damages off like they should, then the person could come back and request suspension of the driver's license of the insured party, until they either posted security or have some means of (indisc.--simult. speech) financial responsibility." REPRESENTATIVE JAMES said that is a flaw in the law, and that it can't be right. Number 1762 REPRESENTATIVE ROKEBERG suggested that contradicted earlier testimony that if a person has insurance, the DMV doesn't have to make the suspension. He further suggested that whether the insurance company is paying the claim is a different issue. MS. HENSLEY replied that in most cases, the insurance companies pay up. She is thinking of a hypothetical situation. If there is someone whose insurance company refuses to pay a legitimate economic loss claim pending a conviction for drunk driving, she doesn't know whether she will required to invoke Chapter 20 of Title 38, which says "you have to file security, or you have to have your insurance company pay, or you have to pay the damages yourself, or you're going to get your license suspended." REPRESENTATIVE ROKEBERG asked whether the statute says that if a person has insurance coverage, as required under financial responsibility, then he or she should be okay. MS. HENSLEY explained that there are two different chapters they are dealing with here: Chapter 22, the mandatory insurance law that says everybody must have insurance, and Chapter 20, the financial responsibility law that says a victim in an accident is entitled to have injuries and property damage covered. REPRESENTATIVE ROKEBERG agreed with Representative James that something is flawed and that they should look into it. Number 1851 REPRESENTATIVE CROFT clarified that what tort reform did was say that when a person is drunk, or under the influence of a controlled substance, and if that is the cause of the action, that person gets neither economic nor noneconomic recovery. He noted, "But the key there is some link between the behavior we're trying to punish and the harm. Because we already have that, we're essentially only in this bill dealing with the innocent, if you will, drunk driver: the drunk driver who is not at fault for the accident. We've already covered the ones where it's linked to the accident. Now, we're just saying, 'those sitting at the stoplight or at .011.' ... And where the alcohol had nothing to do with the accident, we've taken away a major element of their damage." Number 1891 REPRESENTATIVE BERKOWITZ mentioned the owner/operator under the insurance provision. He said it seems there is a pretty strong equal protection argument. It denies someone the right to recover if that person is uninsured and is a victim, as opposed to someone who is insured and is a victim. "And it doesn't seem that there's a compelling state interest involved in making that distinction which would justify that constitutional distinction," he added. CHAIRMAN GREEN asked whether, by encouraging insurance coverage, they were thereby protecting other people, which would be a benefit to the state. REPRESENTATIVE BERKOWITZ replied that he himself isn't an expert in this area of law. However, if seems that if that is the objective, there are more direct means of reaching that objective. He stated that HB 95 seems like a more direct means, whereas this is a little arbitrary and haphazard. Number 1935 REPRESENTATIVE JAMES explained that her objection to HB 95 had been because of the massive amount of reporting that the insurance companies had to do, which would result in increased costs to consumers, including herself, to cover it. "I liked the idea, but the implementation was too expensive, and I didn't support it for that reason," she concluded. Number 1954 MS. HENSLEY reported that Utah uses a third-party vendor to do that data-base program. She told members, "Their bill sunsetted this year, and they had to go back to the legislature to reenact it. It was reenacted overwhelmingly by both bodies. ... It is working, and it has not cost their insureds any money." REPRESENTATIVE JAMES pointed out that there are a lot more people in Utah to cover it. She restated that she liked the idea of the law [HB 95]. CHAIRMAN GREEN asked whether there were further questions, then announced that HB 430 would be held over. ADJOURNMENT Number 2005 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 3:16 p.m.

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