Legislature(1997 - 1998)

02/16/1998 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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             
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                    
            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             
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'                
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                    
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             
                   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             
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             
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             
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             
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              
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                        
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                        
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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