Legislature(1997 - 1998)
02/16/1998 01:30 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.