HOUSE FINANCE COMMITTEE March 26, 1998 1:45 P.M. TAPE HFC 98 - 78, Side 1. TAPE HFC 98 - 78, Side 2. TAPE HFC 98 - 79, Side 1. TAPE HFC 98 - 79, Side 2. CALL TO ORDER Co-Chair Therriault called the House Finance Committee meeting to order at 1:45 P.M. PRESENT Co-Chair Therriault Representative Kohring Representative J. Davies Representative Martin Representative G. Davis Representative Moses Representative Grussendorf Representative Kelly Representatives Hanley, Mulder and Foster were not present for the meeting. ALSO PRESENT Jerry Burnett, Staff, Senator Randy Phillips; Janice Adair, Director, Division of Environmental Health, Department of Environmental Conservation; Mike Tibbles, Staff, Representative Gene Therriault; Senator Dave Donley; Shari Paul, Special Assistant, Children's Trust, Office of the Governor; John Manley, Staff, Representative Terry Martin; Ted Deats, Staff, Representative Terry Martin; Representative Joe Ryan; David Pree, Staff, Representative Joe Ryan; Juanita Hensley, Division of Motor Vehicles, Department of Administration; Sid Heidersdorf, Alaskans for Life, Juneau; E. Betty Hall, Black Americans for Life, Juneau; Loraine Derr, Alaska State Hospital and Nursing Home Association, Juneau; Sarah Felix, Assistant Attorney General, Department of Law; Anne Carpeneti, Assistant Attorney General, Department of Law. TESTIFIED VIA TELECONFERENCE Dr. Gerald Phillips, Radiologist, Valley Hospital, Matsu; Dr. William Resinger, Radiologist, Valley Hospital, Matsu; Janet Oates, Director, Marketing and Government Relations, Providence Hospital, Anchorage; Jennifer Rudinger, Executive Director, Alaska Civil Liberties Union (AKCLU), Anchorage. SUMMARY HB 144 An Act authorizing the Department of Environmental Conservation to charge certain fees relating to registration of pesticides and broadcast chemicals; and providing for an effective date. HB 144 was HELD in Committee for further consideration. HB 252 An Act relating to criminal records; relating to notice about and registration of sex offenders and child kidnappers; and amending Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure. HB 252 was HELD in Committee for further consideration. SB 157 An Act establishing a children's trust motor vehicle registration plate. CSSB 157 (FIN) was reported out of Committee with individual recommendations and with a fiscal note by the Department of Administration dated 1/23/98. SB 221 An Act relating to negatively amortizing loans originated under a program approved or sponsored by the state or federal government. HCS CSSB 221(FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal note by the Department of Commerce and Economic Development dated 1/27/98. HJR 5 Proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. HJR 5 was HELD in Committee for further consideration. SENATE BILL NO. 221 "An Act relating to negatively amortizing loans originated under a program approved or sponsored by the state or federal government." Co-Chair Therriault stated that the committee work draft for SB 221, 0-LS1024\H, Cook, 3/26/98, specifies requirements which include the State with language added from the Fannie Mae program. JERRY BURNETT, STAFF, SENATOR RANDY PHILLIPS, noted that additional language had been drafted by Legal Services and was taken from provisions which govern the federal Fannie Mae program. Representative Martin MOVED that work draft, 0-LS1024\H, Cook, 3/26/98, be the version before the Committee. There being NO OBJECTION, it was adopted. Representative Martin MOVED to report HCS CSSB 221 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. HCS CSSB 221 (FIN) was reported out of Committee with a "do pass" recommendation and with a zero fiscal note by the Department of Commerce and Economic Development dated 1/27/98. HOUSE BILL NO. 144 "An Act authorizing the Department of Environmental Conservation to charge certain fees relating to registration of pesticides and broadcast chemicals; and providing for an effective date." Representative Grussendorf MOVED to adopt Amendment #7. [Copy on File]. He noted that the amendment would remove the repealer. The industry as well as the municipalities approve of this approach. Co-Chair Therriault indicated support for the amendment. There being NO OBJECTION, Amendment #7 was adopted. Representative J. Davies requested that Amendment #13 replace the old Amendment #10. [Copies on File]. Representative J. Davies MOVED to adopt new Amendment #10. MIKE TIBBLES, STAFF, REPRESENTATIVE GENE THERRIAULT, commented that the amendment would change the definition of "actual direct costs" which would move it toward the average so that the Department would be able to establish fixed fees. Co-Chair Therriault suggested that an average salary fee would be determined by classification of the work. JANICE ADAIR, DIRECTOR, DIVISION OF ENVIRONMENTAL HEALTH, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, noted currently that already occurs. There being NO OBJECTION, Amendment #10 was adopted. Ms. Adair spoke to the fiscal note. She stated that the Department was waiting to see the final version of the bill before completing the note. She estimated the note would be approximately $1.6 million dollars, and would change from general fund program receipts to straight general funds. The biggest change would be the exclusion of overhead and other costs associated with service to capture fees. Representative J. Davies asked who would benefit the most from the reduction in fees. Ms. Adair stated that the largest switch would be to the seafood and sanitation component. Seafood processors and food service facilities will see their fees change the most. Additional changes will be to the water Program. Co-Chair Therriault stated that the bill would be HELD in Committee until the fiscal note was completed. HB 144 was HELD in Committee for further consideration. SENATE BILL NO. 157 "An Act establishing a children's trust motor vehicle registration plate." SENATOR DAVE DONLEY commented that SB 157 would establish a motor vehicle registration plate that the Division of Motor Vehicles (DMV) would design and issue to represent the Alaska Children's Trust. He commented that this action would allow the Legislature to appropriate funds received from the sale of these registration plates into the principal of the Alaska Children's Trust. Representative Martin voiced concern with the State becoming a fundraiser for nonprofit organizations. Co- Chair Therriault clarified that the money would accrue into the general fund and that the Legislature would deposit it into the Children's Trust. He advised that the Trust is not a charitable organization. Senator Donley commented that the Child's Trust had been created by statute. The revenue from the corpus would allow the Children's Trust Board to administer grants for child protection purposes, promoting children in the State. It will be subject to Legislative appropriation. JUANITA HENSLEY, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF ADMINISTRATION, commented that the Division currently has 45 different license plates in stock. In response to Representative Martin, Ms. Hensley noted the the revenue from the University plates goes back into the University's budget and that revenue received from the Veterans plates goes directly into the general fund. The University plate has been the only plate to date which generates income specifically for the authority represented. The cost range of plates is between $30 to $50 dollars per set. Co-Chair Therriault questioned the $5 thousand dollars which had been allocated for graphic design. He noted that Senator Donley had suggested that there could be a contest to create the design. Ms. Hensley replied that the Division would have to work with the plate manufacturers to assure the quality of the product made. Co-Chair Therriault asked why the fiscal note did not indicate the anticipated revenue. Ms. Hensley responded that it is difficult to predict the volume of specialty plates which will sell. Consequently, the anticipated revenue was asterisked. Representative Martin asked if the State would be reimbursed for the initial costs. Ms. Hensley advised such action would be the call of the Legislature. Senator Donley pointed out that language had been addressed on Page 2, Section 2. Ms. Hensley stressed that it is imperative during Conference Committee that the fiscal note be funded. She stressed that the Division does not have enough existing funds to substantiate the legislation. SHARI PAUL, SPECIAL ASSISTANT, CHILDREN'S TRUST, OFFICE OF THE GOVERNOR, explained that the primary purpose of the Alaska Children's Trust is to work in partnership with communities, private business, and government to reduce and prevent child abuse, neglect, and family violence. The Children's Trust will improve the status of children in Alaska by generating funds and committing resources to promote healthy families and by assisting in developing healthy communities. Representative J. Davies MOVED to report CSSB 157 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was adopted. CSSB 157 (FIN) was reported out of Committee with individual recommendations and with a fiscal note by the Department of Administration. HOUSE JOINT RESOLUTION NO. 5 Proposing an amendment to the Constitution of the State of Alaska relating to freedom of conscience. JOHN MANLEY, STAFF, REPRESENTATIVE TERRY MARTIN, opened by asking, "What is meant when we say 'Freedom of conscience'?" The United States is a nation founded on the freedom of religion; it is fundamental to the many institutions we have grown up with and take for granted. Mr. Manley pointed out that freedom of religion is not for any specific sect, but for all religions, and recognizes those basic tenets of many religions as a foundation to our society. He continued, what is it to claim freedom of religion if one is not able to act upon their conscience when religious beliefs collide with the secular world? He suggested that the freedom to act in accordance with one's religious and moral beliefs is a fundamental precept of freedom of religion. (Tape Change HFC 98- 78, Side 2). Mr. Manley continued, in Alaska, we have been careful to articulate the rights of the individual, through both the Alaska and the US Constitutions. In 1972, we added to the State Constitution, the right to privacy. Perhaps the right to freedom of conscience has simply been taken for granted, as implied by the protection of the freedom of religion, or as codified in Alaska Statutes. Mr. Manley noted that having the freedom of conscience in statute has not been sufficient and court challenges have sought to compromise individual Alaskans to perform actions which they personally object to as a matter of conscience. Specifically, providers of medical services, such as doctors and nurses, have been forced to perform or participate in certain medical procedures such as abortions, even though they are morally opposed. Mr. Manley feared that today's new emphasis on assisted suicide could well become public policy, mandated by the courts or the legislature. He added that any convoluted rationalization of a social policy which forces a person to participate in what he or she considers to be murder puts Alaska at the doorstep of Nazi Germany of the 1930's or of the several despotism's from the 1930's through the 1990's. Mr. Manley summarized that by adding the protection proposed in HJR 5 to the Alaska Constitution, would make it clear that Alaskans enjoy complete freedom of conscience as well as freedom of religion. He urged the Committee support of the resolution. Representative Kelly inquired if the freedom of conscience clause in other state constitutions had caused any significant challenges. TED DEATS, STAFF, REPRESENTATIVE TERRY MARTIN, replied that those situations appear to have been stopped at the lower court level. There are seventeen other states which have the freedom of conscience option. Courts and lawmakers are competent to separate actions protected by freedom of conscience. Mr. Deats stated that the legislation had resulted from a situation that occurred at Valley Hospital in Matsu last year. Resulting from a court decision, that hospital was forced to perform medical practices which were against its policy. Nurses and other health care professionals are particularly vulnerable because they hold subordinate positions. Representative Kelly agreed that freedom of conscience could be included in freedom of religion. Representative Grussendorf pointed out that the constitution is required to protect the public from acts of government or their agents. DR. GERALD PHILLIPS, (TESTIFIED VIA TELECONFERENCE), RADIOLOGIST, VALLEY HOSPITAL, MATSU, testified in support of the proposed legislation. He provided graphic examples which hospital staff had found themselves involved and in which they had no recourse to exercise freedom of conscience. Dr. Phillips noted that the hospital had lost technical staff because of involvement in abortive situations. Co-Chair Therriault asked how the hospital staff would exercise the rights as proposed in HJR 5. Dr. Phillips suggested that the pre-abortion patient could be sent to another clinic that supports abortions for ultra sound. Dr. Phillips noted that the hospital should rely on the referring physician to indicate if the work to be performed would be for a pre-abortive circumstance. Representative Martin advised that most often it is known who the abortionists are. He asserted that a doctor's license should not be threatened when that doctor is not willing to participate in abortion preparation. Representative J. Davies asked Dr. Phillips if he knew any doctor who the State had threatened to revoke their license for unwillingness to participate in this practice. Dr. Phillips acknowledged that he was not aware of any threats to any doctors as a result of this. Representative Grussendorf commented that it should not be assumed that physicians, who do perform abortion services, perform only that service and that all their patients be "blanketed" for any hospital service they may need. Dr. Phillips indicated that to his knowledge, there had only been three situations at Valley Hospital in which the staff considered opting for the right to exercise the freedom of conscience. DR. WILLIAM RESINGER, (TESTIFIED VIA TELECONFERENCE), RADIOLOGIST, VALLEY HOSPITAL, MATSU, spoke in support of the proposed resolution. He noted that he had taken the Hypnocratic Oath in 1969, which forbids abortions and euthanasia. He added, that he strongly supports a constitutional amendment because of his fear that an activist judge could eventually mandate doctors and staff to perform actions against their conscience. JANET OATES, (TESTIFIED VIA TELECONFERENCE), DIRECTOR, MARKETING AND GOVERNMENT RELATIONS, PROVIDENCE HOSPITAL, ANCHORAGE, stated that Providence Hospital supports HJR 5. She believed that it should be an issue of choice to perform procedures which do not conform to one's ethical values. JENNIFER RUDINGER, (TESTIFIED VIA TELECONFERENCE), EXECUTIVE DIRECTOR, ALASKA CIVIL LIBERITIES UNION (ACLU), ANCHORAGE, spoke in opposition to HJR 5. She pointed out that HJR 5 is very vague and voiced concern on how it could be construed by a judge or court. She stated that it was an "anarchy" amendment, which could cover any assumption made by anyone, which they claimed would be against their conscience. Ms. Rudinger exposed some of the myths which have surrounded the Valley Hospital case. She denied that any of the hospital staff had been requested to participate in an abortion procedure. She quoted a specific judgement handed down by the courts expressing that any person at that hospital would not be required to participate in such activity. The Supreme Court decision stated that hospital could not have a policy banning abortions if there was a doctor on staff willing to perform them. The court based it decision on the fact that a woman's right to make that choice is a fundamental right. She added that Valley Hospital was a non-sectarian hospital built with State funds. The hospital does not have the right to assert a religious base for enforcing the abortion policy, whereas, privately funded hospitals are not covered by that provision. Ms. Rudinger recommended that the Legislature should instead pass a safe Religious Freedom Restoration Act (RIFRA) exemption to State law so as to protect the religious right. She noted that the ACLU had supported the federal RIFRA, although, it was struck down in the Supreme Court. Ms. Rudinger reiterated that the proposed amendment was too broad to be presented to the Alaskan voters. Representative Martin recommended that Ms. Rudinger read Justice Sandra Day O'Connor's writing on the freedom of conscience. He asked why should religious institution have a higher voice of freedom than a public institution. He disagreed to the fact that if a person was not attached to a religious group, in current law, they can not exercise freedom of conscience. Ms. Rudinger reiterated that the proposal is very vague. She urged that a more narrow definition be drafted. (Tape Change HFC 98- 79, Side 1). Representative Kelly asked if a RIFRA would be able to address the concern proposed by Representative Martin. Ms. Rudinger replied that the only reason that the RIFRA had been struck down in Court was because it exceeded its enforcement power. She noted that the ACLU supports religious freedom as long as it is specifically defined. Representative Kelly asked if there was proposed language submitted by the ACLU, which could narrow the legislation. Ms. Rudinger replied not at this time. Representative J. Davies commented that the difference between proposed HJR 5 and the various RIFRA, is that within the RIFRA, there exists an explicate direction as to how the individual, the state and the government would be balanced. SIDNEY HEIDERSDORF, PRESIDENT, ALASKANS FOR LIFE, INC., JUNEAU, noted that his organization supports HJR 5 which he felt was of fundamental importance to the protection of Alaskan's rights. He stated that the legislation would not open the gates to unlawful acts based on conscience because: 1. A freedom of conscience amendment to the constitution does not break new ground or unknown territory. It is too late to claim that a freedom of conscience clause in our constitution will cause chaos. 2. The proposed amendment does not give license for just any kind of behavior. The purpose of the freedom of conscience clause is to protect individuals from the tyranny of government requiring them to act in a manner they consider to be in violation of their conscience. Mr. Heidersdorf stated that his immediate concern was in regard to abortion and physician assisted suicide/euthanasia. The amendment would pre-empt such events from occurring. He stated that Alaskans should be given the opportunity to decide this issue as submitted in the proposed resolution. Mr. Heidersdorf noted that there is concern for future situations in which court pressure could build to provide more access to abortion. Representative J. Davies countered that the intent of the law is that the State not place barriers on a person exercising a legal right. The State is attempting to protect the existing rights of the individual. He emphasized that there is nothing in the law requiring the individual to participate against their conscience. Representative J. Davies reiterated that there is no trend occurring contrary at this time. Co-Chair Therriault questioned if there was a problem in tempering the right to privacy. He noted that some concern has been expressed preventing any further expansion of the right to privacy. Representative Kelly remarked that there exists problems in the Alaska State Courts regarding the right to privacy and delineating between actions in law which are prohibitive, and actions in law that are preferred. He stated that with this legislation, "tolerated" would be removed and the right to privacy would be preferred. He feared that the courts are vastly expanding the right to privacy. Representative J. Davies disagreed with Representative Kelly in respect to abortion funding as the establishment of preference. He suggested that it is the other way around and that if medical services are being provided to pregnant women, those services can not be discriminated against based on religion. It will be protected, as it is a service provided by the State. He emphasized that everyone must be treated equally. E. BETTY HALL, BLACK AMERICANS FOR LIFE, JUNEAU, testified in support of the legislation. She stated that she is not a Christian and is not affiliated to any organized religion, but that she opposes abortion for moral reasons. LORAINE DERR, ALASKA STATE HOSPITAL AND NURSING HOME ASSOCIATION (ASHNHA), JUNEAU, spoke in opposition to the proposed legislation. She pointed out that her membership was directly involved in the Valley Hospital situation and that the whole abortion issue is extremely pertinent to ASHNHA. ASHNHA members believe that the freedom of conscience issue is too broad, therefore, members oppose the proposed language of the legislation. She noted that opposing the language does not suggest that ASHNHA is against any new language regarding a constitutional amendment and that the Association would like to see language more narrowly defined regarding the right to privacy. Discussion followed between Ms. Derr and Representative Martin regarding the possible wording of the amendment. SARAH FELIX, ASSISTANT ATTORNEY GENERAL, GOVERNMENTAL AFFAIRS DIVISION, DEPARTMENT OF LAW, spoke to the Department's concern with the proposed legislation. She stated that the legislation would allow a person to act according to his or her own conscience without regard to the collective will of the people as expressed in the law. Ms. Felix added that the Department is concerned that HJR 5 would open up a "Pandora's Box" in epic portion which could lead to anarchy. Civil and criminal laws could be violated and the person breaking the law could claim justification based upon the individual's conscience belief that they had the right to break the law. The freedom of conscience in the context of religion, already established in the federal constitution, has been recognized that the State may impose limits on a person's action resulting from a person's religious belief while the protection of a person's right to believe is absolute. However, HJR 5 specifically protects a person's actions which could impact the State's ability to enforce important laws. The Department is concerned that HJR 5 is wide and over-broad and could be construed as granting broader rights than currently are recognized under the 1st amendment to the US Constitution, Freedom of Religion. Neither the terms nor the legislative record have been significantly developed to allow for enforcement or interpretation of what this provision means. She summarized that the Department foresees a flood of litigation resulting from enacting HJR 5. Representative Martin asked if the Courts could narrow the people's choice only to freedom of religion. Ms. Felix replied that the reference to religion was made only to set the proposal in context. She stated that freedom of religion generally does include freedom of conscience. Without that context, there is no indication how a court would interpret it. Representative Kelly pointed out that there are other states which do have a freedom of conscience provision. He asked how they had addressed the circumstance. Ms. Felix responded that in the U.S. Digest, which she used for reference, places freedom of religion and freedom of conscience together. Most of the other states, which have a freedom of conscience provision, have it under the freedom of religion clause in their constitution. Ms. Felix advised that HJR 5 appears to go beyond that, offering a broader protection. Representative Martin spoke to the need to broaden the terms of constitutional freedom in State legislation and the constitution. Ms. Felix advised that legislation addressing this matter would be preferable and more workable than a constitutional amendment. HJR 5 was HELD in Committee for further consideration. HOUSE BILL NO. 252 "An Act relating to criminal records; relating to notice about and registration of sex offenders and child kidnappers; and amending Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure." REPRESENTATIVE JOE RYAN advised that HB 252 was offered to intensify sex offender and kidnapper registration statutes and the registration process in order to better protect citizens from convicted criminals. The intent of the legislation is to comply with recent changes to the law including Department of Justice, Office of the Attorney General, the Jacob Wetterling Act, so that Alaska remains eligible to receive $200 thousand dollars from the feds through the Byrne Formula Grant. Representative Ryan noted that the bill would allow for: ? A two-tier system put in place for offenders that fail to register, fail to register properly or fail to re-register and who are guilty of a first offense Class A misdemeanor. ? Persons responsible for hiring and employing people who will have access to current and criminal histories. ? An offender who registers while in the 30 days of sentencing, thus, eliminating the opportunity to fail to register and providing for a dramatic reduction in reporting times for re-registration and change of address. ? The length of time a sex offender or a child kidnapper must register in order to meet requirements of the US Constitution 14071 as adjusted and requiring the Department of Public Safety (DPS) to notify the Federal Bureau of Investigation (FBI) if a sex offender or child kidnapper does not register or cannot be found or if such a person moves to another state, the FBI and the other state would then be notified. Co-Chair Therriault asked if the legislation would bring Alaska into compliance with federal regulations. (Tape Change HFC 98- 79, Side 2). ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, replied that the Jacob Wetterling Act does require the State to include sex offender registration, for a child kidnapper or for a person who encourage or forces a 17 or 18 year old to engage in prostitution. These people would be required to register as a sex offender, although, kidnapping would not include acts related to child custody. Co-Chair Therriault asked the time requirement the State was given to fall into compliance and what would be the potential loss of funding if that was not met. Ms. Carpeneti remarked that the State receives $200 thousand dollars a year under the Byrne Formula Grant, and that 10% of that total would be lost if the State does not come into compliance with the Wetterling Act. Ms. Carpeneti advised that Section 6 of the bill was causing confusion. That section defines the drafting provisions of AS 12.63, relating to a criminal justice information provision. The section does not define the provisions which require sex offender registration, although, it does define where the State can release that information. Representative J. Davies asked what solicitation or conspiracy would warrant. Mr. Carpeneti advised that to prove an attempt, there would need to be proof that a substantial step toward the offense had been taken and that the person specifically intended to commit that offense. Clarification of attempt is found in Title 11, Chapter 31. Discussion followed between Representative J. Davies and Ms. Carpeneti regarding the scope of crimes being considered and the rate of recidivism of these crimes. They also discussed the federal requirements of the required registration times associated with such acts. Alaskan law requires that there be a lifetime registration for sex offenders. Co-Chair Therriault voiced concern that the kidnapping provision had the same stipulation for registration as a sex offender. He asked if that was essential to meet federal requirements. Ms. Carpeneti understood that under federal law, those individuals must be registered, although, they would not have to be registered for any longer than the basic requirement of that law. Representative J. Davies inquired if under federal law, would non-sexual motivated kidnapping registration be required. Ms. Carpeneti acknowledged that it would be and that it would be penalized in the same manner as sexually motivated, given up to 10 years. The Jacob Wettterling Act covers all offenses, which victimize children. She advised that the State had exceeded the compliance deadline. Ms. Carpeneti added, for the most part, the Administration is in favor of the proposed legislation. Representative Ryan recounted that the legislation had been drafted in working with the Administration and the Minority. He reiterated that passage is essential for the State to qualify for the funding. HB 252 was HELD in Committee for further consideration. ADJOURNMENT The meeting adjourned at 4:20 P.M. H.F.C. 16 3/26/98