04/01/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB179 | |
| HB88 | |
| HB1 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 1 | TELECONFERENCED | |
| *+ | HB 179 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 88 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 1, 2011
1:06 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 179
"An Act relating to cruelty to animals and making failure to
care for five or more animals in a single continuous episode a
class C felony."
- MOVED HB 179 OUT OF COMMITTEE
HOUSE BILL NO. 88
"An Act prohibiting a court, arbitrator, mediator,
administrative agency, or enforcement authority from applying a
law, rule, or provision of an agreement that violates an
individual's right under the Constitution of the State of Alaska
or the United States Constitution."
- MOVED CSHB 88(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 1
"An Act stating a public policy that allows a person to choose
or decline any mode of securing health care services."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 179
SHORT TITLE: ANIMAL CRUELTY
SPONSOR(S): REPRESENTATIVE(S) LYNN
03/09/11 (H) READ THE FIRST TIME - REFERRALS
03/09/11 (H) JUD, FIN
04/01/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 88
SHORT TITLE: USE OF FOREIGN LAW
SPONSOR(S): REPRESENTATIVE(S) GATTO
01/18/11 (H) PREFILE RELEASED 1/14/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) STA, JUD
03/17/11 (H) STA AT 8:00 AM CAPITOL 106
03/17/11 (H) Heard & Held
03/17/11 (H) MINUTE(STA)
03/22/11 (H) STA AT 8:00 AM CAPITOL 106
03/22/11 (H) <Bill Hearing Rescheduled to 3/24/11>
03/24/11 (H) STA AT 8:00 AM CAPITOL 106
03/24/11 (H) Moved CSHB 88(STA) Out of Committee
03/24/11 (H) MINUTE(STA)
03/25/11 (H) STA RPT CS(STA) 3DP 2DNP 2NR
03/25/11 (H) DP: P.WILSON, KELLER, LYNN
03/25/11 (H) DNP: GRUENBERG, SEATON
03/25/11 (H) NR: JOHANSEN, PETERSEN
03/25/11 (H) FIN REFERRAL ADDED AFTER JUD
03/30/11 (H) JUD AT 1:00 PM CAPITOL 120
03/30/11 (H) Heard & Held
03/30/11 (H) MINUTE(JUD)
04/01/11 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 1
SHORT TITLE: POLICY FOR SECURING HEALTH CARE SERVICES
SPONSOR(S): REPRESENTATIVE(S) GATTO, LYNN
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) HSS, JUD
03/01/11 (H) HSS AT 3:00 PM CAPITOL 106
03/01/11 (H) Scheduled But Not Heard
03/08/11 (H) HSS AT 3:00 PM CAPITOL 106
03/08/11 (H) Heard & Held
03/08/11 (H) MINUTE(HSS)
03/15/11 (H) HSS AT 3:00 PM CAPITOL 106
03/15/11 (H) Moved CSHB 1(HSS) Out of Committee
03/15/11 (H) MINUTE(HSS)
03/16/11 (H) HSS RPT CS(HSS) 2DP 3NR
03/16/11 (H) DP: DICK, KELLER
03/16/11 (H) NR: SEATON, MILLER, HERRON
04/01/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
THOMAS REIKER, Staff
Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 179, responded to a
question on behalf of the sponsor, Representative Lynn.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 179.
KAYLA EPSTEIN, Member
Animal Control Advisory Board (ACAB)
Animal Care & Control Center
Department of Health and Human Services (DHHS)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Urged passage of HB 179.
DEBORA GAIL GARDNER, Commissioner
Animal Control Commission
Fairbanks North Star Borough (FNSB);
Volunteer
Pet Pride Cat Rescue;
Volunteer
Spay Neuter Your Pet
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 179.
RONNIE ROSENBERG
President
Fairbanks Animal Shelter Fund;
Commissioner
Chair
Animal Control Commission
Fairbanks North Star Borough (FNSB)
Fairbanks, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 179.
DOUGLAS GARDNER, Director
Legal Services
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 179.
MARY ELLEN BEARDSLEY, Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 88, expressed a
concern regarding Conceptual Amendment 1.
PETER PUTZIER, Senior Assistant Attorney General
Opinions, Appeals, & Ethics
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 88.
KAREN SAWYER, Staff
Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 88, responded to
questions on behalf of the sponsor, Representative Gatto.
KAREN SAWYER, Staff
Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 1 on behalf of Representative
Gatto, one of the bill's joint prime sponsors.
STACIE KRALY, Chief Assistant Attorney General - Statewide
Section Supervisor
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 1.
ACTION NARRATIVE
1:06:46 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:06 p.m. Representatives Gatto, Gruenberg,
Lynn, Keller, and Thompson were present at the call to order.
Representatives Holmes and Pruitt arrived as the meeting was in
progress.
HB 179 - ANIMAL CRUELTY
1:07:41 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 179, "An Act relating to cruelty to animals and
making failure to care for five or more animals in a single
continuous episode a class C felony."
REPRESENTATIVE LYNN, as the sponsor of HB 179, explained that
[earlier in the year], authorities had to seize [approximately]
150 severely neglected dogs from a home in Willow - several so
neglected that they were already dead. Such incidents,
unfortunately, are not isolated; animal control officers have
had to rescue multiple neglected animals throughout Alaska since
2008, and these are only the cases that are known about. Cases
of mass animal neglect are shocking, and quickly overwhelm local
and state animal-rescue services. Under the changes proposed by
HB 179, contemporaneous violations of AS 11.61.140 involving
five or more animals would be a class C felony, whereas
currently such behavior warrants only a class A misdemeanor for
each animal neglected. Under HB 179, the gravity of the charges
would reflect the gravity of the crime, thereby discouraging
people from taking on multiple animals without the ability or
intention to care for each and every animal. The bill doesn't
limit the number of animals that a person may possess, he
assured the committee, and instead only addresses those
instances in which animals are not being cared for properly. In
conclusion, he asked members to support HB 179 - joining him in
taking a strong stand against serial animal cruelty.
CHAIR GATTO noted that proposed AS 11.61.140(a)(8) read:
(8) with criminal negligence, contemporaneously fails
to care for five or more animals and, as a result,
causes the death of five or more animals or causes
severe physical pain or prolonged suffering to five or
more animals.
REPRESENTATIVE LYNN, in response to questions, acknowledged that
if the behavior outlined in proposed AS 11.61.140(a)(8) was
directed at only four animals, it would still be a violation for
each animal but each violation would remain a class A
misdemeanor; assured the committee that the bill is only
addressing contemporaneous behavior rather than cumulative
behavior; and explained that when deciding what the threshold
should be for contemporaneous neglect, five animals appeared to
be the most appropriate and practical number.
CHAIR GATTO acknowledged that having to address such instances
of mass animal neglect as occurred in Willow could overwhelm any
animal-care facility and its community.
REPRESENTATIVE HOLMES noted that under existing AS 11.61.140(h),
if within the prior 10 years a person has been convicted of
violating AS 11.61.140(a)(2) - which addresses the neglect of
one animal - then any current conviction would then be a class C
felony; AS 11.61.140(a)(2) reads:
(2) with criminal negligence, fails to care for an
animal and, as a result, causes the death of the
animal or causes severe physical pain or prolonged
suffering to the animal;
REPRESENTATIVE HOLMES, in response to comments, offered her
understanding that in a domestic violence (DV) situation, if
behavior as severe as that outlined in paragraph (2) were
instead directed towards a person - thereby causing his/her
death or severe physical pain or prolonged suffering - it would
warrant a felony charge.
1:15:51 PM
THOMAS REIKER, Staff, Representative Bob Lynn, Alaska State
Legislature, on behalf of the sponsor, Representative Lynn, in
response to a question regarding the disposal of unwanted
animals, noted that existing AS 11.61.140(a)(2) requires that
the behavior be conducted with criminal negligence.
1:17:02 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), explained
that in Alaska, animals are considered property and as such a
person is not precluded under AS 11.61.140(a) from causing the
death of his/her animal as long as it's done in a humane manner.
For example, a person may not kill an animal by knowingly
inflicting severe and prolonged physical pain or suffering, [by
failing to provide care,] or via the use of a decompression
chamber or poison. Shooting an unwanted animal would probably
be fine, she ventured, but surmised that whether drowning an
unwanted animal would be illegal would depend on the
circumstances, though it probably wouldn't be considered as
resulting in prolonged physical pain or suffering.
REPRESENTATIVE GRUENBERG disclosed that he [is married to] the
next testifier.
1:19:25 PM
KAYLA EPSTEIN, Member, Animal Control Advisory Board (ACAB),
Animal Care & Control Center, Department of Health and Human
Services (DHHS), Municipality of Anchorage (MOA), after
expressing appreciation for the progress made thus far with
regard to [preventing animal cruelty], noted that instances of
multiple-animal neglect place a large burden on local
government. For example, one recent animal-neglect case her
organization dealt with involved caring for 8 dogs, 23 cats, and
1 bird for over a year at an estimated cost of over $77,000 -
which was only even that low due to donations of food, shelter,
and medical care - with the resulting conviction eventually
allowing for the additional removal of approximately 50 more
animals from another location. That case, she relayed, was a
nightmare in terms of logistics, expenses, and the emotional
pain experienced by both the staff and volunteers who had to
care for those sick and dying animals. In conclusion, she urged
passage of HB 179, characterizing it as a logical step towards
fixing a true problem, though she mentioned that in addressing
the issue of criminal neglect - not simply stupid neglect or
ignorant neglect - her organization regrets that the bill's
proposed threshold for a felony crime is five animals, and
suggested that that proposed threshold should instead be three
animals.
1:22:44 PM
DEBORA GAIL GARDNER, Commissioner, Animal Control Commission,
Fairbanks North Star Borough (FNSB); Volunteer, Pet Pride Cat
Rescue; Volunteer, Spay Neuter Your Pet, said she is in support
of HB 179, and that she agrees with the comments of the
representative from the ACAB that HB 179 is a good start. She
remarked, though, that it would be nice to see any kind of
criminal negligence [of animals] be a felony, adding that caring
for such neglected animals is overwhelming, heartbreaking work.
Particularly for cats, such criminal negligence amounts to a
death sentence. In conclusion, she reiterated that she supports
HB 179.
1:23:59 PM
RONNIE ROSENBERG, President, Fairbanks Animal Shelter Fund;
Commissioner, Chair, Animal Control Commission, Fairbanks North
Star Borough (FNSB), after mentioning that the Fairbanks Animal
Shelter Fund provides support for the Fairbanks North Star
Borough's animal shelter, and that she has been active in animal
control issues in Alaska for over 15 years, relayed that over
the years, there have been several cases involving breeders,
hoarders, and other individuals who have been neglecting or
abusing large numbers of animals. Because of the prevalence of
such incidents, she opined, it's really important for HB 179 to
pass. Having to intake these large numbers of abused and
neglected animals puts a tremendous burden - including a large
financial burden - on shelters, and causes disruption in the
community. She offered her belief that providing for the
enhanced sentencing associated with a felony charge makes sense,
particularly for those who torture their animals, or who for
days on end, for no apparent reason, don't feed or care for
their animals in any reasonable fashion. She said she agrees
with the DOL representative that shooting one's unwanted animal
isn't a crime in Alaska, pointing out that in rural areas of the
state, it can be the only way of managing an overpopulation
situation. In conclusion, she urged passage of HB 179.
CHAIR GATTO mentioned that members' packets include a letter
from the executive director of the Alaska Society for the
Prevention of Cruelty to Animals (Alaska SPCA), and that that
letter's last sentence read, "We are very grateful to all of you
for your interest and hard work on behalf of animals, and hope
that you will take HB 179 just one more notch to make it truly
effective and meaningful for those creatures who depend entirely
upon your decisions for their very lives."
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 179.
1:27:55 PM
DOUGLAS GARDNER, Director, Legal Services, Legislative Legal and
Research Services, Legislative Affairs Agency (LAA), in response
to questions, offered his understanding that under the bill,
prosecutors would have discretion with regard to whether to
charge a person who'd criminally neglected five or more animals
with a felony under proposed paragraph (8), or with a
misdemeanor for each criminally-neglected animal under existing
AS 11.61.140(b); that judges would retain discretion with regard
to sentencing, including considering the effects associated with
felony convictions compared to misdemeanor convictions, and
whether to apply the rule of lenity; and that if a person acts
intentionally, knowingly, or recklessly, the requirement under
existing AS 11.61.140(a)(2) and proposed AS 11.61.140(a)(8) that
the person act with criminal negligence would be met, since
criminal negligence is the lowest mental state provided for
under Alaska's criminal statutes. In response to other
questions, he, too, agreed that humanely shooting one's own
unwanted animals, regardless of how many, would not be a crime
under Alaska law, and surmised that whether a situation
involving a breeder would warrant a felony charge under proposed
AS 11.61.140(a)(8) would depend on the circumstances, evidence
of causation, expert testimony, and prosecutorial discretion.
CHAIR GATTO expressed strong disfavor with "puppy mills."
1:44:03 PM
REPRESENTATIVE THOMPSON moved to report HB 179 out of committee
with individual recommendations and the accompanying
[indeterminate] fiscal notes. There being no objection, HB 179
was reported from the House Judiciary Standing Committee.
HB 88 - USE OF FOREIGN LAW
1:44:52 PM
CHAIR GATTO announced that the next order of business would be
HOUSE BILL NO. 88, "An Act prohibiting a court, arbitrator,
mediator, administrative agency, or enforcement authority from
applying a law, rule, or provision of an agreement that violates
an individual's right under the Constitution of the State of
Alaska or the United States Constitution." [Before the
committee was CSHB 88(STA); adopted as the working document on
3/30/11 was the proposed committee substitute (CS) for HB 88,
Version 27-LS0333\D, Bailey, 3/30/11.]
The committee took an at-ease from 1:45 p.m. to 1:48 p.m.
1:49:12 PM
REPRESENTATIVE KELLER made a motion to adopt [a written]
Conceptual Amendment 1, which [although incorrect with regard to
placement and text] read [original punctuation provided]:
Page2, line 28
(g) In this section, "foreign law" means a law, rule,
or legal code or system established and used or
applied in a jurisdiction outside of the United States
and the territories of the United States. "Foreign
law" does not mean nor shall it include a law
currently established in Alaska statute, or Case Law.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
REPRESENTATIVE KELLER indicated his belief that Conceptual
Amendment 1 would serve as a grandfather clause, thereby
addressing concerns raised during the bill's last hearing that
HB 88's prohibition of foreign law could mistakenly be applied
in situations involving Catholic canon law, for example.
REPRESENTATIVE GRUENBERG, citing his nescience regarding all of
Conceptual Amendment 1's possible implications, expressed
concern that its adoption may have some significant
ramifications.
The committee took an at-ease from 1:53 p.m. to 1:57 p.m.
CHAIR GATTO clarified that Conceptual Amendment 1 is proposing
to add to page 3, line 1, of Version D - after the words,
"territories of the United States." - the words:
"Foreign law" does not mean nor shall it include a law
currently established in Alaska statute, or Case Law.
REPRESENTATIVE KELLER concurred, and offered his understanding
that via either statute or case law, Catholic canon law is
currently being applied by the courts.
2:00:48 PM
MARY ELLEN BEARDSLEY, Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), in response to a question, relaying
that she would prefer to have a little more time to research the
issue, characterized Conceptual Amendment 1 as extremely broad,
and expressed concern that its ending word, "Law" could
encompass a lot of things.
2:01:42 PM
PETER PUTZIER, Senior Assistant Attorney General, Opinions,
Appeals, & Ethics, Civil Division (Anchorage), Department of Law
(DOL), on the issue of tribal law, explained that in suggesting
the wording [currently in Version D's legislative intent section
and proposed AS 11.61.140(g)] regarding HB 88's inapplicability
to tribal law and its definition of the term, "foreign law",
respectively, his assumptions were that tribal law was not the
focus of the bill, and, even if it were the focus, that the
legislature doesn't have any authority to restrict the inherent
authority of tribes. Specifically, because the term "foreign
law" is being defined in the bill as being a law outside the
jurisdiction of the United States and its territories, then
including language stating that foreign law does not mean nor
include tribal law is unnecessary given that federally-
recognized tribes - and certainly the tribes in the state of
Alaska - are within the jurisdiction of the United States. And
to clarify that point further, Version D now includes a
legislative intent section that reads:
LEGISLATIVE INTENT. It is the intent of the
legislature that AS 09.68.140, enacted by sec. 3 of
this Act, does not address, directly or indirectly,
any question of tribal law or the application of
tribal law or otherwise address the intersection
between state law and tribal law.
2:05:05 PM
KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of the sponsor, Representative Gatto, in
response to a question, concurred that Version D does
incorporate Mr. Putzier's suggested wording.
MR. PUTZIER, in response to a question, offered his belief that
including the aforementioned legislative intent section would be
sufficient, and that tribal law is not, in any event, implicated
under the term, "foreign law" as defined in the bill. In
response to another question, he said he tends to agree with Ms.
Beardsley that Conceptual Amendment 1 is potentially
complicated. He said he questions, for example, whether its
proposed exclusion - [although perhaps intended to address] the
application of Catholic canon law - also includes regulations
or, given that it specifies only Alaska's statutes, laws from
other states. He opined that Conceptual Amendment 1 ought to be
scrutinized further to ensure that it hasn't any unintended
consequences. In response to a further question, he said he'd
have to do more research regarding the underlying concern about
the application of Catholic canon law before being able to speak
to whether Conceptual Amendment 1 would adequately address that
concern.
REPRESENTATIVE HOLMES surmised that because Catholic canon law
isn't - to the best of her knowledge - contained in Alaska's
statutes or case law, that Conceptual Amendment 1 wouldn't
really accomplish the stated goal.
REPRESENTATIVE KELLER, concurring with that point and
acknowledging that Conceptual Amendment 1 is broader than he had
in mind, withdrew Conceptual Amendment 1.
REPRESENTATIVE GRUENBERG offered an example of a horrendous
spousal-rape-and-subsequent-divorce case he was involved with
many years ago that was ultimately settled but in which had the
courts allowed for the application of Jewish law, a terrific
injustice could have resulted, and pointed out that conflict of
laws constitutes a very complex body of law, one derived solely
from judicial rulings, upon which a bill such as HB 88 would
have a [huge] effect.
2:17:54 PM
MS. SAWYER indicated that Janet Levy - who spoke during HB 88's
last hearing - relayed in an e-mail that her attorneys assert
that the [U.S. Supreme Court] has made it clear that under the
First Amendment, intra-church/mosque/synagogue disputes remain
internal unless neutral principles of law can be applied.
CHAIR GATTO offered his belief that HB 88 is meant to address
conflicts between religious law and secular law.
MS. SAWYER pointed out, however, that HB 88 only addresses civil
law, not religious law, though she acknowledged that in some
foreign jurisdictions, civil law is associated/intertwined with
religious law.
REPRESENTATIVE GRUENBERG indicated a belief that how the courts
address [various potentially-conflicting laws] is too complex to
be laid out in statute because all such cases are fact driven,
and that to attempt to do so would be Procrustean in nature.
The principles, whether they be equitable principles or choice-
of-law principles or contractual principles, are all designed to
make the legal system work in instances involving private
disputes.
REPRESENTATIVE KELLER offered his belief that the bill merely
states a legislative preference that the courts not use a law
that isn't derived from the constitutions.
REPRESENTATIVE LYNN disclosed that he is a practicing Catholic,
and relayed that he intends to vote "yes" on HB 88.
REPRESENTATIVE HOLMES, after mentioning that she agrees with
many of Representative Gruenberg's comments, expressed concern
that from the discussion she's heard thus far, the committee
appears to be trying to protect certain types of religious law
while outlawing other types of religious law - specifically,
trying to protect Catholic canon law and Jewish law while
outlawing Shari'a law. For her, she relayed, this raises legal
questions - for example, how would one draw that line - as well
as ethical and moral concerns. Furthermore, as previously
mentioned, the bill is addressing a very complex area of law and
will therefore have huge consequences for international business
and for Alaska's reputation as a welcoming business venue, and
will complicate contractual choice-of-law decisions for
individuals. Extensive research illustrates that even when the
issue of shari'a is raised in court, judges are already refusing
to apply it, stating that in this country, this country's laws
and constitution apply. Therefore, by attempting to protect
against something that isn't actually happening in the courts, a
whole host of problems regarding conflict of laws and
international business will instead be created. For these
reasons, she relayed, she would be voting against HB 88.
CHAIR GATTO, citing England as an example, argued that judges
don't always make correct decisions, and offered his belief that
even incorrect judicial rulings can create legal precedence.
2:27:19 PM
REPRESENTATIVE THOMPSON referred to the DOL's March 21, 2011,
legal opinion included in members' packets - specifically to the
portion that read, "HB 88 might affect a foreign entity's
willingness to do business with individuals or businesses in
Alaska if it knows that provisions of the contract may be void
by law should HB 88 become law" - and expressed concern that the
bill would hurt Alaskans economically when they attempt to
conduct business with entities outside of Alaska. He indicated
a desire, though, to ensure that foreign laws aren't being
applied in Alaska.
CHAIR GATTO offered his belief that it's rare for an individual
to enter into a contract with a foreign entity.
REPRESENTATIVE HOLMES explained that that's not the case;
instead, contracts between individuals and foreign entities are
used in a lot of situations, such as those pertaining to
employment, travel, the purchase of goods and services,
warrantees, and many other, everyday-type situations that most
people don't think of as involving a contract.
REPRESENTATIVE PRUITT observed that Article. VI. of the U.S.
Constitution says in part:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary Notwithstanding.
REPRESENTATIVE PRUITT, referring to the aforementioned legal
opinion, indicated concern that HB 88 would have unintended
consequences, and suggested that the issues raised thus far be
researched further to ensure that business and economic
opportunities for Alaskans won't be endangered by the bill.
REPRESENTATIVE KELLER acknowledged that conflict of laws appears
to be a very complicated area of the law, and observed that
HB 88 doesn't ban consideration of foreign law, merely the
application of foreign law.
MS. SAWYER, in response to Representative Thompson, explained
that to address the concern expressed in the aforementioned
legal opinion, language was added in the House State Affairs
Standing Committee providing an exemption for corporations,
partnerships, and other forms of business association. In
conclusion, she offered her understanding that there is a
shari'a court operating in Texas.
2:35:06 PM
REPRESENTATIVE KELLER moved to report the proposed committee
substitute (CS) for HB 88, Version 27-LS0333\D, Bailey, 3/30/11,
out of committee with individual recommendations and the
accompanying fiscal notes.
CHAIR GATTO said there was an objection to the motion.
A roll call vote was taken. Representatives Thompson,
Gruenberg, Lynn, Keller, Pruitt, and Gatto voted in favor of
reporting the bill from committee. Representative Holmes voted
against it. Therefore, CSHB 88(JUD) was reported from the House
Judiciary Standing Committee by a vote of 6-1.
The committee took an at-ease from 2:36 p.m. to 2:39 p.m.
HB 1 - POLICY FOR SECURING HEALTH CARE SERVICES
2:39:24 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 1, "An Act stating a public policy that allows a
person to choose or decline any mode of securing health care
services." [Before the committee was CSHB 1(HSS).]
REPRESENTATIVE LYNN mentioned that he is one of HB 1's joint
prime sponsors.
2:40:01 PM
KAREN SAWYER, Staff, Representative Carl Gatto, Alaska State
Legislature, on behalf of Representative Gatto, one of HB 1's
joint prime sponsors, said HB 1 is about state's rights, and
indicated that the joint prime sponsors are alleging that the
federal Patient Protection and Affordable Care Act (PPACA)
infringes upon the constitutional rights of U.S.
citizens/residents by mandating that everyone either have
qualifying healthcare coverage or pay a tax penalty, that this
mandate exceeds the federal government's constitutional
authority, and that Congress doesn't have the authority under
the Commerce Clause to regulate inactivity. The PPACA is
challenging Alaska's authority as a state, and thus it is up to
Alaska to defend itself from such federal "takeover," she added.
House Bill 1 - by establishing in Alaska's uncodified law a
state policy that a person has the right to choose or decline
any mode of obtaining healthcare services without penalty or
threat of penalty - would ensure that everyone in Alaska is and
shall continue to be free from federal mandates regarding the
selection of health insurance, and would preclude any State of
Alaska employee from enforcing any penalty assessed in violation
of this policy.
MS. SAWYER, referring to a handout in members' packets
containing examples, noted that language in HB 1 - specifically
in proposed AS 44.99.130(b) - stipulates that the proposed state
policy shall not apply to healthcare services provided or
required by the state, a political subdivision of the state, or
a court of the state, and may not impair a contract right that
provides healthcare services. Members' packets also include an
explanation of the change incorporated into CSHB 1(HSS), that
being the addition of language in proposed AS 44.99.130(c)(3)
stipulating that as used in proposed AS 44.99.130, the term,
"penalty" is not referring to one's liability for the cost of
healthcare services. She offered her understanding that at
least 40 states thus far have introduced legislation to limit,
alter, or oppose specific federal actions [related to the PPACA]
- including that of mandating the purchase of insurance - with
the states of Virginia, Idaho, Utah, Georgia, Louisiana,
Arizona, [Oklahoma,] Missouri, and North Carolina having already
passed [such legislation].
MS. SAWYER, in response to questions, indicated that the
aforementioned handout containing examples was derived from
material pertaining to similar legislation in another state; and
that the exemption provided for in proposed AS 44.99.130(b)
would not apply to private employers/employees - in other words,
the state policy outlined in proposed AS 44.99.130(a) would
apply to private employers/employees.
CHAIR GATTO, speaking as one of HB 1's joint prime sponsors,
concurred with the latter point.
2:48:05 PM
REPRESENTATIVE GRUENBERG indicated that he didn't want HB 1 to
be misinterpreted as allowing someone to refuse medical
treatment for his/her child, or as allowing someone to refuse to
pay for medical treatment.
CHAIR GATTO offered his belief that the requirement of a parent
to care for his/her child wouldn't be diminished by the bill,
and indicated that he would be amenable to amending the bill in
order to ensure that that is actually the case.
REPRESENTATIVE KELLER observed that proposed AS 44.99.130(a)
says in part, "a person has the right to choose or decline any
mode of obtaining health care services without penalty or threat
of penalty", and that language in proposed AS 44.99.130(c)(2)
defines the phrase, "mode of obtaining" to mean either directly
purchasing healthcare services from a healthcare provider, or
purchasing insurance to cover the cost of healthcare services.
House Bill 1, therefore, addresses the purchasing of healthcare
services [or the purchasing of insurance to cover healthcare
services], not the obtaining of medical treatment.
CHAIR GATTO and MS. SAWYER concurred.
CHAIR GATTO, in response to a question, offered his belief that
under the bill, a union member would have the right to decline
any insurance coverage provided by the union, surmising that the
other union members would have to absorb any extra cost
associated with that member's declination.
REPRESENTATIVE HOLMES expressed concern that because the
proposed state policy uses the phrase, "a person has the right
to choose or decline any mode of obtaining health care
services", the bill would allow an employee to dictate which
insurance coverage his/her employer must provide him/her with.
CHAIR GATTO offered his understanding that the employee could
only accept or decline the mode that was being offered.
REPRESENTATIVE HOLMES pointed out, though, that the bill doesn't
say, "accept" - it instead says, "choose". Furthermore, the
proposed state policy doesn't specify that the particular
healthcare services being obtained must be legal in Alaska.
2:59:52 PM
STACIE KRALY, Chief Assistant Attorney General - Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law (DOL), concurred that the word,
"choose" has a different connotation than the word, "accept",
and indicated that that point ought to be clarified,
particularly if the intent of the bill is to address only
offered modes of obtaining healthcare services.
CHAIR GATTO suggested that they change the word, "choose" to the
word, "accept", and add the word "offered".
MS. KRALY surmised that such changes would address the concern
that under the bill as currently written, an employee could
dictate which insurance coverage his/her employer must provide
him/her with. On the issue of healthcare services that aren't
legal in Alaska, she ventured that this probably isn't going to
be a problem because of the definitions of the terms, "health
care services" and "penalty" provided for via proposed AS
44.99.130(c)(1) and (3), and because the term, "penalty" as used
in the bill pertains to the preclusion of any penalty that might
be assessed a person simply because he/she exercised his/her
right to choose or decline a mode of obtaining healthcare
services. In conclusion, she reiterated her belief that the
suggested change would provide clarity.
REPRESENTATIVE HOLMES ventured that perhaps they also ought to
alter the definitions in proposed subsection (c). She then
asked whether the bill would also apply to other federal laws,
not just the PPACA.
MS. KRALY surmised that HB 1 potentially could apply to other
federal laws that address the issue of obtaining healthcare
services, since the bill isn't exclusively tagged to or tasked
to the PPACA. In response to a question, she offered her belief
that under HB 1 as currently written, a person would have the
right to accept or decline any mode of obtaining healthcare
services, regardless of who offers the mode.
REPRESENTATIVE HOLMES disagreed, pointing out that proposed AS
44.99.130(b)(1) stipulates that the proposed state policy shall
not apply to healthcare services provided or required by the
state, a political subdivision of the state, or a court of the
state.
MS. KRALY concurred with that clarification.
3:05:44 PM
MS. SAWYER, on the issue of healthcare services that aren't
legal in Alaska, questioned whether altering proposed
AS 44.99.130(c)(1)'s definition of the term, "health care
services" by inserting the word, "legal" on page 2, line 2,
before the phrase, "service or treatment", would perhaps address
members' concerns.
MS. KRALY, indicating that she would have to research that issue
further, posited that perhaps it would be more important to
clarify in the bill that it is intended to allow individuals to
choose not to purchase/have healthcare insurance.
MS. SAWYER, in response to a question, clarified that the PPACA
just mandates that everyone have insurance or be penalized, and
that the joint prime sponsors' concern is that they don't want
the federal government telling Alaskans that they have to do a
particular thing or be penalized for inactivity. In further
response, she offered her understanding of what the penalty
amount would be under the PPACA, noting that the amount would
increase after the first year.
REPRESENTATIVE THOMPSON - on the question of whether under the
bill, union members would have the right to decline insurance
coverage provided by the union - pointed out that [contrary to
something mentioned earlier,] proposed AS 44.99.130(b)(2)
stipulates that the proposed state policy may not impair a
contract right that provides healthcare services.
3:09:37 PM
CHAIR GATTO made a motion to adopt Conceptual Amendment 1, to
replace the word, "choose" with the word, "accept", on page 1,
line 9; and to add the word, "offered" to page 1, line 10.
MS. SAWYER observed that the title of the bill should be
similarly altered.
CHAIR GATTO - noting that the drafter would determine the best
placement for the added word, "offered" - clarified that
Conceptual Amendment 1 would also make a conforming change to
the title on line 1 of page 1. After ascertaining that there
were no objections, he announced that Conceptual Amendment 1 was
adopted.
CHAIR GATTO then relayed that [CSHB 1(HSS), as amended,] would
be held over.
3:11:04 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:11 p.m.