Legislature(1997 - 1998)
02/16/1998 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 16, 1998
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 254(L&C)
"An Act relating to the exemption from levy, execution,
garnishment, attachment, or other remedy for the collection of debt
as applied to a permanent fund dividend, and to the fee for
processing a claim on a dividend."
- MOVED CSSB NO. 254 (JUD) OUT OF COMMITTEE
SENATE BILL NO. 195
"An Act relating to common law liens, to remedies, costs, and fees
imposed for the registration, filing, or recording of certain
nonconsensual common law liens, and to penalties for recording
common law liens."
- MOVED SB 195 OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 35
Proposing an amendment to the Constitution of the State of Alaska
relating to participation in an abortion.
- MOVED CSSJR 35 (JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 254 - See Labor and Commerce minutes dated 1/29/98, 2/5/98, and
2/10/98.
SB 195 - See Labor and Commerce Committee minutes dated 1/27/98.
SJR 35 - No previous action to report.
WITNESS REGISTER
Mr. Mike Pauley
Staff to Senator Loren Leman
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 254
Ms. Deborah Vogt
Department of Revenue
PO Box 110405
Juneau, Ak 99811-0405
POSITION STATEMENT: Commented on SB 254
Ms. Nanci Jones
Department of Revenue
PO Box 110460
Juneau, Ak 99811-0460
POSITION STATEMENT: Commented on SB 254
Sister Kaye Belcher
3200 Providence Drive
Anchorage, Ak 99519
POSITION STATEMENT: Supported SJR 35
Mr. Robert Flint
717 K Street
Anchorage, Ak 99516
POSITION STATEMENT: Supported SJR 35
Mr. Ken Jacobus
425 G Street #920
Anchorage, Ak 99501
POSITION STATEMENT: Commented on SB 254 and SJR 35
Ms. Jennifer Rudinger
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Ak 99520
POSITION STATEMENT: Opposed SJR 35
Ms. Tai Sorenson
Johnson Nissan Jeep Eagle
4660 Gambell
Anchorage, Ak 99503
POSITION STATEMENT: Supported SB 254
Ms. Deborah Joslin
PO Box 377
Delta Junction, Ak 99737
POSITION STATEMENT: Supported SJR 35
Mr. Steve Phillips
320 Bawden Street #312
Ketchikan, Ak 99901
POSITION STATEMENT: Commented on SB 254
Mr. Clifton Orme
Valley Hospital Association
PO Box 3588
Palmer, Ak 99645
POSITION STATEMENT: Supported SJR 35
Mr. Doug Wooliver
Ak Court System
820 West 4th Avenue
Anchorage, Ak 99501
POSITION STATEMENT: Presented SB 195
Ms. Rebecca Braun
Juneau Coalition for Pro-Choice
536 Park Street
Juneau, Ak 99801
POSITION STATEMENT: Opposed SJR 35
Mr. Tim Benintendi
Staff to Senator Tim Kelly
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 195
ACTION NARRATIVE
TAPE 98-8, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:32 and noted the presence of Senators Miller and
Parnell.
SB 254 - LEVY ON PERMANENT FUND DIVIDEND
MR. MIKE PAULEY, Staff to Senator Loren Leman, came forward to
present SB 254. MR. PAULEY said this bill will enhance the ability
of Alaskan businesses to collect from debtors who are in default.
He said existing law exempts 45 per cent of a person's Permanent
Fund Dividend (PFD) from collection by private parties, except if
the debt is a child support payment, student loan or other debts
owed to the state. MR. PAULEY said the state is entitled to collect
100 per cent of a PFD in those cases. He explained that the cost of
business increases for small businesses unable to collect debts
owed them and these costs are passed on to honest consumers.
Essentially, the majority of Alaskan consumers are paying for the
financial irresponsibility of a small minority, according to MR.
PAULEY. He said the original bill eliminated the exemption
altogether, but it was amended to maintain a 30 per cent exemption,
making 70 per cent of a PFD available for collection by private
parties and 100 per cent available to the state.
MR. PAULEY said this bill also increases the fee for garnishing
checks to five per cent of the total value of the check, to be
taken from the defaulter's portion. Currently, the charge is two
dollars. The five per cent fee will apply both to private parties
and state agencies who are garnishing a PFD check. MR. PAULEY
concluded that this bill will help narrow the gap between what
private parties and state agencies can collect from debtors.
CHAIRMAN TAYLOR asked if the original purpose of the bill was to
change the exemption and MR. PAULEY replied that the original bill
completely eliminated the exemption, allowing 100 per cent of a
dividend to be garnished.
CHAIRMAN TAYLOR asked why citizens would be treated differently
than the state and SENATOR MILLER said they discussed that point
extensively in the labor and commerce committee and the concern
was, if 100 per cent was garnished, there would be no incentive to
file for a PFD at all. CHAIRMAN TAYLOR responded that the same
would be true on a debt to the state and SENATOR MILLER agreed but
added it might be required by a court order. He concluded that 70
per cent of something is better than 100 per cent of nothing.
SENATOR MILLER said the labor and commerce committee thought two
dollars was a ridiculously low fee and so increased it to five per
cent.
MS. DEBORAH VOGT, Deputy Commissioner of the Department of Revenue,
said garnished dividends are a big part of what is collected by
obligors and the department does not oppose the bill nor oppose the
change to a 30 per cent exemption. She said there are no program
implications if the exemption was eliminated but there is a concern
that people may not apply. She said debtors can be ordered to apply
but that has not yet occurred and the division is aware that some
people simply do not.
MS. VOGT questioned the public policy of the increase to a five per
cent fee, saying this would reduce the amount available to private
parties and state agencies attempting to collect debts. She said
the two dollar fee has resulted in program receipts to the
department of approximately $150,000 and this bill would generate
3.5 million dollars in program receipts. She explained the
Department of Revenue will be on one end of every transaction and
she thinks $3.5 million would be grossly disproportionate to the
actual administrative costs. She added this fee may have a
significant impact on creditors. She disputed the sponsor's
statement that said the state will continue to get 100 percent of
a garnished amount, saying they will only get 95 per cent and the
other five per cent will go to the general fund. She concluded this
bill will basically take money out of the hands of private
individuals and put it in the general fund.
SENATOR MILLER guessed that two dollars would not cover collection
costs. He said private collection agencies charge fees much greater
than five per cent.
CHAIRMAN TAYLOR explained his concern that many of these debts have
already been taken to private collection agencies and now another
five per cent will be lost to an additional collection fee.
CHAIRMAN TAYLOR agreed that two dollars is low but that there may
be public policy reasons to keep it that way. He estimated the
amount of work to the department for collection to be minimal.
DEBORAH VOGT agreed the task of garnishing a PFD is fairly
insignificant. She explained it is mostly done by computer and
involves a lot of phone calls and mailings.
SENATOR PARNELL asked what the cost of this function might be and
MS. VOGT believed the $150,000 they currently get from program
receipts covers the cost. She said that even with the increase they
would continue to request $150,000 in program receipts.
SENATOR PARNELL asked a question regarding the fiscal note and MS.
VOGT clarified that the fiscal note represents revenue from the
increase to five per cent and would not apply if the current two
dollar fee remained.
MS. VOGT mentioned that the IRS was not too happy with the two
dollar fee but acquiesced because it is a small amount. She thinks
charging a larger amount might push their willingness to accept the
state's collection of the fee.
MS. NANCI JONES, Director of the Permanent Fund Division, stated
that the way the bill reads currently each claim would be charged
the five per cent fee. She said many PFD's are garnished multiple
times. She mentioned that there was an informal discussion in the
previous committee regarding capping the garnishment fee at five
per cent but this is not reflected in the bill.
SENATOR PARNELL asked if the bill could accomplish the reduced
exemption without the fee increase by deleting sections two and
three of the committee substitute. MS. VOGT replied it would.
MR. STEVE PHILLIPS, owner of a Ketchikan credit bureau, offered his
support for this bill in the original form, with reservations about
the lack of incentive to file. He expressed concern that the
current bill does not clearly specify where the five per cent will
come from. He said with a 30 per cent exemption and the statement
that the five per cent would come out of the debtors' portion, they
in fact would only receive 25 per cent. He believes this needs to
be clarified. He referred to the sponsor statement, and said that
was where the inconsistency lies.
MS. VOGT responded by saying sections two and three state the five
per cent comes from the debtors' portion when less than 100 per
cent is garnished. If 100 per cent is claimed, the five per cent
comes out of the creditors' portion.
CHAIRMAN TAYLOR asked for clarification and MS. VOGT restated that
the administrative fee would be paid by the debtor when less than
the whole check is garnished, resulting in an actual exemption for
25 per cent of the amount of the PFD.
CHAIRMAN TAYLOR asked if the amount that goes to the debtor is
reduced and MS. VOGT said it is, and the amount conveyed to state
agencies will also decrease.
MR. PHILLIPS argued that the statute is flawed and may be
problematic if it was brought to court.
CHAIRMAN TAYLOR replied that it may be wiser to return to the two
dollar fee. CHAIRMAN TAYLOR asked where this fee would be deducted
from. MS. VOGT said it would come from the dividend applicants'
portion.
CHAIRMAN TAYLOR inquired what happens in cases where child support
or student loans claim 100 per cent of a dividend. MS. VOGT
replied they take the two dollars off the top. CHAIRMAN TAYLOR
asked if the number of people who have their entire dividend taken
is significant and MS. VOGT replied that the majority of
garnishments are for the full amount of the dividend.
CHAIRMAN TAYLOR could not understand why someone who owed a debt
would not apply for a dividend. DEBORAH VOGT agreed but said
people are often very emotional and do not file. Her agency tracked
those who applied for a dividend which would have been garnished
had it been paid. She said in most cases, the dividend was not
awarded to anyone due to an imperfect application, left incomplete
by the applicant.
CHAIRMAN TAYLOR stated the court could have signed the application
for them or forced them to do so. MS. VOGT responded it would still
be necessary to determine eligibility for the dividend. CHAIRMAN
TAYLOR said his point was that state agencies and the public should
be treated equally and it must be a small percentage of people who
refuse this found money to pay their debts. MS. VOGT said she was
not sure of the proportion but knows it does occur. MS. JONES added
that there are no statistics on people who do not apply and the
only way they can infer this number is by comparing population
figures with the number of people applying for the dividend.
STEVE PHILLIPS stated he would like to see the amount available for
garnishment raised to 75 per cent. He said three quarters is a good
number to work with. He mentioned this bill deals with less than
five per cent of the population who are debtors and the remaining
95 per cent are paying for them. He said this is an avenue to reach
that five per cent who owe without hurting the other 95 per cent.
MS. TAI SORENSON, from Johnson Nissan Jeep Eagle, testified via
teleconference from Anchorage. She said she would like to see
governmental agencies and private businesses with equal right to
collect 100 per cent of a dividend. She said her company has
recently started charging interest on defaulted promissory notes.
She repeated that these debtors hurt the honest consumer.
MR. KEN JACOBUS, an attorney, testified via teleconference from
Anchorage. He commented that many Alaskans make it difficult to
collect judgments against them by doing business in cash and hiding
assets. He said this bill is a good tool for the small,
unsophisticated claimant to collect a judgment. He believes the
bill should be returned to its original form, saying overall it
will generate more money than the current bill regardless if a few
people do not file for their dividends. He concluded the more money
available to collect debts, the better off Alaskans are.
SENATOR PARNELL declared a conflict of interest. He explained his
law firm does collections, attaches dividends and he may possibly
benefit form this legislation. He asked to be allowed to abstain
from voting on the bill and any amendments. CHAIRMAN TAYLOR
objected.
SENATOR MILLER said he felt strongly about the 70 per cent but
would be willing to return to the two dollar collection fee,
although he would be very upset if the agency came back in a few
years saying it is inadequate. He moved to strike sections two and
three from the bill and, without objection, it was so ordered.
CHAIRMAN TAYLOR mentioned he would also like to see 100 per cent
available for collection but understood the concerns presented. He
said maybe eventually citizens will be on equal footing with the
government in this regard.
SENATOR MILLER moved the bill out of committee as amended with
individual recommendations. Without objection, the bill moved from
committee.
SB 195 - COMMON LAW LIENS
MR. TIM BENINTENDI, staff to Senator Kelly, presented SB 195 as a
bill designed to reduce filing of nuisance liens as a form of
retribution. He said such liens have been filed maliciously against
property owned by public officials who have fallen into disfavor
with opposing groups. MR. BENINTENDI stated these liens rarely have
a commercial foundation and are used as harassment. SB 195 would
make it a misdemeanor to file this type of lien and ease the
process of releasing or invalidating the lien. The bill would also
set out civil penalties for filers of such liens. MR. BENINTENDI
mentioned the bill enjoys wide support and carries two zero fiscal
notes.
CHAIRMAN TAYLOR asked for a general explanation of a common law
lien. MR. BENINTENDI characterized it as a filing against property
on behalf of an individual who feels they have an action against
the property owner.
MR. DOUG WOOLIVER, representing the Alaska Court System,
acknowledged this is a growing problem in Alaska. He said this type
of lien has no relation to the property itself. Usually, a lien
has a direct connection to the property, as in a lien placed
against a building as a result of non-payment of construction
services. MR. WOOLIVER said this common law lien has been used in
retribution for zoning enforcement actions, specifically against
public officials. In one case, the lien itself specified it was in
retaliation for a zoning enforcement act. He added this action has
been threatened against employees of the child support enforcement
division, clerks of court, magistrates, police officers and others.
He stated there are plenty of legitimate liens available to people
with a claim. He added this bill is narrowly drafted to deal with
this problematic non-consensual common law lien.
SENATOR PARNELL asked if there are categories of common-law liens.
MR. WOOLIVER replied the only legitimate type of common law lien
was several years ago, recorded by a real estate agent who alleged
misdealing by a client.
SENATOR PARNELL asked if this is the same thing as a lis pendens
and CHAIRMAN TAYLOR questioned if it would affect lis pendens
liens. MR. WOOLIVER said it will not affect the separate entity of
lis pendens, which informs people a title is in dispute. He said,
unlike a lis pendens, these non-consensual common law liens do not
allege a title is in dispute.
CHAIRMAN TAYLOR informed the committee that common law property
liens could still occur, but only when there is consent by the
owner. MR. WOOLIVER agreed.
SENATOR PARNELL asked what the maximum potential penalty for this
offense would be. MR. WOOLIVER replied it would be a class A
misdemeanor, with a possible $5,000 fine and up to a year in jail.
Number 524
SENATOR PARNELL moved SB 195 from committee with individual
recommendations. Without objection, the bill moved from committee.
SJR 35 - CONST AM: PARTICIPATION IN ABORTION
SENATOR MILLER, sponsor of SJR 35, presented the resolution, saying
it comes out of the Supreme Court decision of November 21, 1997.
This decision struck down a part of the 1970 statute 18.16.010b
and decided quasi-public organizations have to participate in
abortion, regardless of their beliefs, according to SENATOR MILLER.
SENATOR MILLER said historically, a person or hospital was not
required to participate in an abortion, nor could they be held
liable for refusing to do so. SENATOR MILLER stated this was added
to ensure abortion was a truly personal decision and no coercion
was applied. SENATOR MILLER said this constitutional amendment
would restore that delicate balance that was set out in the 1970
law by allowing people to refrain from participating in an
abortion. He emphasized the idea that choice goes both ways.
SENATOR MILLER finds it ironic that the State Supreme Court has
regarded our constitutional right to privacy the right to an
abortion. He recalled conversations with his brother, the primary
author of the right to privacy clause, and said it never had
anything to do with the abortion issue.
CHAIRMAN TAYLOR called the next witness, SISTER KAYE BELCHER who
testified via teleconference from Anchorage.
SISTER BELCHER, the Assistant Administrator for Mission Integration
and Community Services for Providence Hospital, voiced her strong
support for this resolution. She said the Providence Health System
continues to support the right of individuals and organizations to
opt out of services they find objectionable. SISTER BELCHER stated
that they respect the beliefs and conscience of others, and, even
though they make no secret of their own values, they do not seek to
impose their values on others, nor do they want others' values to
be imposed on them. She believes SJR 35 will maintain this kind of
respect.
SISTER BELCHER stated that the Supreme Court case made clear the
necessity for this type of recognition of choice to be added to the
State Constitution. She said without it, the state law is
unconstitutional as it applies to quasi-public hospitals. She added
that the definition of quasi-public hospitals is broad enough to
encompass every hospital in Alaska. SISTER BELCHER said without
this language, the right to choose could be construed as a mandate
to participate in abortion services. She expressed her appreciation
to the sponsor and urged support for the bill.
MR. ROBERT FLINT testified via teleconference from Anchorage. He
represented himself and said he was also authorized to speak on
behalf of Archbishop Francis Hurley in support of SJR 35. He
characterized the bill as a return to the status quo that existed
for 27 years prior to the Supreme Court Decision.
TAPE 98-8, SIDE B
Number 001
MR. FLINT commented this language is the same as in the old statute
because the point cannot be made any better. He said the theory was
that everyone had their choice and no coercion was involved. He
argued that the Supreme Court has changed this and now coercion is
involved. He suggested four reason why the decision is erroneous.
The first reason he suggests is that the Supreme Court took a law
proclaiming a right and turned it into a mandate. Secondly, MR.
FLINT believes the court wrongly interpreted the right to privacy
amendment. Thirdly, MR. FLINT asserted the court downgraded rights
traditionally respected in this country, including moral and
religious beliefs. He said traditionally these rights have been
infringed upon only in strict emergency circumstances. Lastly, MR.
FLINT expressed his feeling that the court has infringed on the
people through the legislature to involve themselves in and make
profound decisions. He cited a recent court decision affirming the
right to assisted suicide which was overturned and said he views
this as a similar situation, in which the people and the
legislature have a right and an obligation to sort this out. He, on
behalf of himself and Archbishop Hurley, urged support of SJR 35.
MR. KEN JACOBUS, an attorney who represented some amicus curiae
legislators in the Valley Hospital case, testified via
teleconference from Anchorage. MR. JACOBUS agreed with the previous
speaker on all points and repeated the idea that the Supreme Court
has turned a right into a weapon. Alaska now has the strongest
abortion rights in the United States and the Supreme Court has
tossed out freedom of religion as well as freedom of conscience,
according to MR. JACOBUS. He feels this resolution should be
enacted in order to balance the interests of the two competing
sides on this issue. He said this will not prevent a woman from
getting an abortion should she choose to do so, and it ensures the
right of the hospital and individual to refuse to participate in an
abortion procedure. He concluded it will protect the freedom of
conscience and religious beliefs of the hospitals and individuals
and is narrowly addressed to the specific problem needing remedy.
He urged its placement on the ballot.
MS. JENNIFER RUDINGER, Executive Director of the Alaska Civil
Liberties Union (ACLU), testified via teleconference from
Anchorage. She stated the mission of her organization is to
preserve and defend individual liberty guaranteed by the Bill of
Rights and the Alaska Constitution. She urged the committee to kill
the bill, saying it is based on myths and misinformation. MS.
RUDINGER said the Valley Hospital case was brought by the ACLU. MS.
RUDINGER enumerated the myths surrounding the Valley Hospital
decision. First myth, the idea that people will be forced to
participate in abortion. She quoted the decision, saying nothing
shall require any member of the medical staff or any other employee
to participate directly in the performance of any abortion
procedure if that person, for reasons of conscience or belief,
objects to doing so. The second myth, according to MS. RUDINGER, is
that Valley Hospital would have to hire staff to perform abortions
if the current staff is unwilling. MS. RUDINGER argued this is not
true and the decision only said the hospital could not have a
policy banning abortion if there were doctors on staff willing to
perform the procedure. Third, MS. RUDINGER said the myth that
hospitals can not assert a religious basis for restricting abortion
is also false, and the Supreme Court has left open the option to
do so, according to MS. RUDINGER's testimony. She urged the
committee to read the Valley Hospital opinion.
SENATOR MILLER said he was mystified by what the previous speaker
was getting at. He explained the amendment says nothing shall
require participation in abortion and echoes many of the points MS.
RUDINGER made, without restricting a woman's ability to get an
abortion. He does not understand her opposition.
MS. RUDINGER replied that the problem with the amendment is
redundancy; the court has already said no one will be required to
participate in an abortion, putting this same wording in the
Constitution is unnecessary. She added that nothing now requires a
hospital to participate in an abortion, only that a public or
quasi-public hospital receiving state funds, which can not or does
not assert a religious basis, can not ban abortion if there are
doctors willing to perform them. She said also hospitals can not
force a doctor to participate in an abortion if the doctor is
unwilling to do so. MS. RUDINGER concluded that a state-funded
hospital can not pass a policy infringing on individual choice of
it's doctors or staff to perform and abortion.
CHAIRMAN TAYLOR asked MS. RUDINGER if a hospital board deciding on
allowable procedures should be able to restrict certain procedures
due to concerns about liability. He asked, for example, if the
board of Wrangell General Hospital should allow a member of their
surgical staff to perform neurosurgery if one doctor wants to do
so. He asked if the Valley Hospital decision would prevent the
board from restricting that physician from performing that type of
surgery.
MS. RUDINGER replied the difference is reproductive choice is a
fundamental right under the U.S. Constitution and the Alaska
Constitution. She said this raises the stakes and means a state-
funded hospital has to show a compelling interest in order to
restrict it, unlike neurosurgery. CHAIRMAN TAYLOR replied that a
patient who would want neurosurgery in Wrangell is likely an
extremist who would die without this surgery. He argued that this
patient has a right to life. CHAIRMAN TAYLOR said the right to
life, liberty and property is fundamental. He hoped the ACLU does
not place the right to privacy above the right to life.
SENATOR PARNELL interjected that CHAIRMAN TAYLOR's analogy also
implicates the right to privacy, saying these are both private
medical choices made by individuals. He asked what the distinction
was.
CHAIRMAN TAYLOR wondered the same thing and asked if MS. RUDINGER
could identify a distinction. MS. RUDINGER replied that in the
Valley hospital case itself the Alaska Supreme Court says there is
a fundamental right to reproductive choice. This is a personal
decision between a woman and her physician and the difference is
there has never been a case establishing a fundamental right to
neurosurgery. Ms. RUDINGER said this has not been necessary since
neurosurgery does not carry the same moral questions as abortion.
She repeated that the ACLU would never say a an individual who has
a conscientious objection to performing an abortion should be
forced to do so. She said no one is forced to do so now and they
can not, by law, be compelled. She concluded that a flat ban can
not be passed in a state-funded hospital nor can the hospital
insist unwilling doctors perform abortions. She repeated these are
all individual choices as set out in the Supreme Court case
regarding Valley Hospital.
CHAIRMAN TAYLOR asked about doctors exercising unlimited individual
choices in the types of procedures they carry out, he thinks this
invades the authority and obligation of the hospital board to
protect the hospital. He did not assume she advocated allowing
incompetent doctors to perform procedures. He further asked, if
this case was so narrow, how it would apply to the state-funded
hospital in Ketchikan run by the Sisters of Saint Joseph of Peace.
JENNIFER RUDINGER replied that the court left that question open.
MS. RUDINGER said Valley Hospital had no religious affiliation and
this was part of the basis of the decision. She said whether or not
another quasi-public hospital might assert a religious exemption
was not decided. She stated it was clear that a private hospital is
not covered under this decision, as they obviously may assert a
religious exemption and can prohibit abortions.
SENATOR MILLER mentioned that brought up the question of an
individual who might want an abortion in Ketchikan, he asked where
the ACLU would stand on this issue, noting they brought the first
suit.
MS. RUDINGER clarified that SENATOR MILLER was referring to a
quasi-public hospital with a religious affiliation. SENATOR MILLER
said that was his understanding and MS. RUDINGER said she would
need to present the question to the ACLU board and review it with
their attorneys and she would get back to him.
MS. DEBORAH JOSLIN testified via teleconference from Delta Junction
to express her support for the resolution. She believes any
hospital has the right to establish their own policy, regardless of
the desires of their staff. She said the hospital would be the
liable party in case of an accident. Ms. JOSLIN suggested that
perhaps HJR 5, the freedom of conscience bill, may cover this issue
better. She said HJR 5 may also cover future issues that arise,
including assisted suicide. She mentioned that she and her husband
are considering opening a Christian day care center and hoped they
could do it without fear of interference.
SENATOR MILLER said he had looked at that resolution which is
currently working it's way through the House. He explained this
bill is tailored specifically to the Valley Hospital case, but he
would follow HJR 5 with interest.
MS. REBECCA BRAUN, representing the Juneau Coalition for Pro-
Choice, opposed SJR 25. MS. BRAUN said the Supreme Court decision
recognized that a woman's right to reproductive choice is
constitutionally protected. She said the decision also found that
lay people, charged with overseeing the fiscal health of the
hospital, cannot restrict that constitutional right for reasons
that have nothing to do with medical practice. She stated this
resolution would change that, allowing a handful of people to make
reproductive choices for their whole community. MS. BRAUN's
organization does not believe hospital board should make decisions
that will limit the options of thousands of women based on their
persona;l value systems. She asserted that a quasi-public hospital
belongs to the community and it's patients. She feels it is
disrespectful for a group of non-medical citizens to overrule the
decision of a woman and her doctor. She suspected that the sponsors
of this resolution are not attempting to protect the rights of
hospital personnel to exercize their personal belief system,
rather, since there is nothing in the Valley Hospital decision to
undermine that, they are attempting to get around a Supreme Court
decision they do not like. MS. BRAUN expressed fear of a
legislature that takes the Constitution so lightly. She predicted
this act will outrage the pro-choice majority of Alaskans, as well
as those who value their liberty. She urged the committee not to
pass the bill.
REBECCA BRAUN added her opinion of the difference between abortion
and neurosurgery in CHAIRMAN TAYLOR's analogy was that in the
former case the doctor would be qualified to perform the procedure,
whereas in the latter they may not be. CHAIRMAN TAYLOR emphasized
that was not what he meant, he was attempting to get at the idea
that hospital boards are charged with limiting liability to the
hospital and this makes smaller hospitals more conservative in the
types of procedures they perform. CHAIRMAN TAYLOR said this is
based on the freedom of choice of those board members attemping to
exercize their judgment on behalf of their community.
CHAIRMAN TAYLOR did not see the religious and moral implications of
the board exercising their freedom of choice on behalf of their
community. MS. BRAUN said the difference is in one case, the
reasons behind restricting a procedure are medical, in the other
they are religious.
CHAIRMAN TAYLOR said he understood her argument that the board
members should not exercise their religious beliefs on the board
but did not feel that fit his analogy. He recalled the ACLU
advocating for the rights of the Nazi Party to march in Illinois
and remarked it takes some courage to stand up for rights and is
sometimes difficult to understand the motivation of advocating
certain rights and disregarding others.
MS. BRAUN restated that no one would be compelled to perform an
abortion and CHAIRMAN TAYLOR asked if they would be compelled to
clean up the room afterwards. He asked where the line would be
drawn and said that is an important question. REBECCA BRAUN agreed.
She went on to say Bartlett Hospital in Juneau is quasi-public and
does not perform abortions, but it also has no policy expressly
prohibiting them.
SENATOR PARNELL asked if Providence Hospital in Anchorage would be
considered a quasi-public hospital. MS. BRAUN was unsure.
SENATOR MILLER remarked that there are three criteria for
determining a public or quasi-public hospital. The first is that
the hospital participate in the certificate of deed program. The
second requires the hospital receive construction funds, land, or
operating funds from state and federal governments. The third
criterion says a portion of operating funds must come from
government sources. SENATOR MILLER voiced his belief that
Providence fits at least two, if not all, of these criteria.
MR. CLIFTON ORME, Chief Executive Officer of Valley Hospital,
testified via teleconference from Mat-Su. He declared his support
for SJR 35. He read a letter from the Valley Hospital Board to it's
association members which explained the situation and characterized
the federal law as a negative right to abortion, meaning states
can not out law abortion, not mandating hospitals to perform
abortions. MR. ORME said his organization is making every effort
to comply with the state's permanent injunction while at the same
time attempting to protect the beliefs of their employees. MR. ORME
informed the committee that the hospital board is meeting tonight
and will likely endorse a resolution in support of this
legislation.
MR. ORME disagreed with the comments of MS. RUDINGER and restated
the question of direct versus indirect participation in an
abortion. He professed there is a real possibility of staffing
problems under this decision. He also noted that this decision
applies to all facilities that receive government funding, not just
quasi-public ones.
In response to REBECCA BRAUN, MR. ORME said the hospital is set up
in a co-op format, where the members are elected by the community.
He contended that these members do not operate in a vacuum, but
represent the voice of the community. He concluded by expressing
his support for this measure.
SENATOR PARNELL asked if the word hospital would be too limiting if
there are other facilities that receive state funding and provide
health care services. The committee and participants discussed the
question of whether or not hospital would be the appropriate
wording and MR. JACOBUS suggested they might replace "hospital"
with "health care facility". CHAIRMAN TAYLOR said he and SENATOR
PARNELL were concerned with the wording as it does have
significance.
SENATOR PEARCE asked the ACLU representative about living wills and
Do Not Resuscitate Orders (DNRs). She quoted Alaska Statute
18.12.050, saying if the attending physician is unwilling to
comply, that doctor must pull out as the attending physician; and
if the policy of the health care facility precludes compliance the
facility must take steps to explain the policy to the patient and
their family and take the necessary steps to transfer the patient
to a facility that will comply. SENATOR PEARCE asked if the ACLU
supported this living will/Do Not Resuscitate Order amendment in
1994. JENNIFER RUDINGER was not certain and told SENATOR PEARCE she
would find out and get back to her.
TAPE 98-9, SIDE A
Number 001
SENATOR PARNELL moved an amendment to delete "hospital" on page 1
line 6 and replace it with "health care facility". Without
objection, the amendment was adopted. SENATOR PEARCE noted the term
"health care facility" is defined in law.
SENATOR MILLER moved SJR 35 pass from committee with individual
recommendations. Without objection, it was so ordered. With no
further business to come before the committee, the judiciary
committee was adjourned.
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