Legislature(1999 - 2000)
04/12/2000 01:55 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 12, 2000
1:55 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Norman Rokeberg
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 193(FIN)
"An Act relating to the payment of wages and claims for the payment
of wages."
- MOVED CSSB 193(FIN) OUT OF COMMITTEE
HOUSE BILL NO. 359
"An Act relating to notice requirements for certain final findings
concerning the disposal of an interest in state land or resources
for oil and gas; relating to administrative appeals and petitions
for reconsideration of decisions of the Department of Natural
Resources; and providing for an effective date."
- MOVED HB 359 OUT OF COMMITTEE
SENATE BILL NO. 268
"An Act relating to mandatory 99-year terms of imprisonment for
persons convicted of certain murders."
- MOVED HCS SB 268(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 387
"An Act prohibiting governmental entities, including municipalities
and school districts, from restricting a person's free exercise of
religion."
- MOVED CSHB 387(HES) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 193
SHORT TITLE: COLLECTION OF UNPAID WAGES/WAGE PAYMENTS
Jrn-Date Jrn-Page Action
1/14/00 1977 (S) READ THE FIRST TIME - REFERRALS
1/14/00 1977 (S) L&C, FIN
2/08/00 (S) L&C AT 1:30 PM BELTZ 211
2/08/00 (S) -- Rescheduled to 2/10/00 --
2/10/00 (S) L&C AT 1:30 PM BELTZ 211
2/10/00 (S) Moved CS(L&C) Out of Committee
2/10/00 (S) MINUTE(L&C)
2/11/00 2272 (S) L&C RPT CS 4DP SAME TITLE
2/11/00 2272 (S) DP: MACKIE, TIM KELLY, DONLEY, LEMAN
2/11/00 2272 (S) ZERO FISCAL NOTE (LABOR)
2/22/00 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/22/00 (S) Heard & Held
3/06/00 (S) FIN AT 9:00 AM SENATE FINANCE 532
3/06/00 (S) Moved CS(Fin) Out of Committee
3/06/00 2529 (S) FIN RPT CS 7DP 1NR SAME TITLE
3/06/00 2530 (S) DP: TORGERSON, PARNELL, PHILLIPS,
3/06/00 2530 (S) GREEN, PETE KELLY, LEMAN, WILKEN,
3/06/00 2530 (S) NR: ADAMS
3/06/00 2530 (S) PREVIOUS ZERO FN (LABOR)
3/07/00 (S) RLS AT 12:00 PM FAHRENKAMP 203
3/07/00 (S) MINUTE(RLS)
3/08/00 2562 (S) RLS TO CALENDAR 03/08/00
3/08/00 2567 (S) READ THE SECOND TIME
3/08/00 2567 (S) MOVE TO BOTTOM OF CALENDAR
3/08/00 2576 (S) FIN CS ADOPTED UNAN CONSENT
3/08/00 2576 (S) ADVANCED TO THIRD READING
UNAN CONSENT
3/08/00 2576 (S) READ THE THIRD TIME CSSB 193(FIN)
3/08/00 2577 (S) PASSED Y19 N- E1
3/08/00 2577 (S) TORGERSON NOTICE OF RECONSIDERATION
3/15/00 2614 (S) RECONSIDERATION NOT TAKEN UP
3/15/00 2615 (S) TRANSMITTED TO (H)
3/15/00 2481 (H) READ THE FIRST TIME - REFERRALS
3/15/00 2481 (H) L&C, JUD
3/29/00 (H) L&C AT 3:15 PM CAPITOL 17
3/29/00 (H) Moved CSSB 193(FIN) Out of Committee
3/29/00 (H) MINUTE(L&C)
3/30/00 2786 (H) L&C RPT 6DP 1NR
3/30/00 2786 (H) DP: HARRIS, CISSNA, BRICE, SANDERS,
3/30/00 2786 (H) HALCRO, ROKEBERG; NR: MURKOWSKI
3/30/00 2786 (H) SENATE ZERO FISCAL NOTE
(LABOR) 2/11/00
4/05/00 (H) JUD AT 1:00 PM CAPITOL 120
4/05/00 (H) Heard & Held
4/05/00 (H) MINUTE(JUD)
4/11/00 3063 (H) CROSS SPONSOR(S): HALCRO
4/12/00 (H) JUD AT 1:30 PM CAPITOL 120
BILL: HB 359
SHORT TITLE: DEPT NAT RES ADMIN APPEALS/OIL & GAS
Jrn-Date Jrn-Page Action
2/09/00 2148 (H) READ THE FIRST TIME - REFERRALS
2/09/00 2148 (H) RES, JUD, FIN
2/09/00 2148 (H) ZERO FISCAL NOTE (DNR)
2/09/00 2148 (H) GOVERNOR'S TRANSMITTAL LETTER
3/27/00 (H) RES AT 1:00 PM CAPITOL 124
3/27/00 (H) Moved Out of Committee
3/27/00 (H) MINUTE(RES)
3/28/00 2723 (H) RES RPT 2DP 5NR
3/28/00 2724 (H) DP: HARRIS, HUDSON; NR: COWDERY,
3/28/00 2724 (H) MORGAN, WHITAKER, JOULE, KAPSNER
3/28/00 2724 (H) ZERO FISCAL NOTE (DNR) 2/9/00
4/12/00 (H) JUD AT 1:30 PM CAPITOL 120
BILL: SB 268
SHORT TITLE: MANDATORY 99-YEAR TERM OF IMPRISONMENT
Jrn-Date Jrn-Page Action
2/11/00 2281 (S) READ THE FIRST TIME - REFERRALS
2/11/00 2282 (S) JUD, FIN
2/23/00 (S) JUD AT 1:30 PM BELTZ 211
2/23/00 (S) Moved Out of Committee
2/23/00 (S) MINUTE(JUD)
2/24/00 2406 (S) JUD RPT 3DP
2/24/00 2406 (S) DP: TAYLOR, HALFORD, DONLEY
2/24/00 2406 (S) ZERO FISCAL NOTES (ADM, COR)
3/16/00 2628 (S) FIN REFERRAL WAIVED
3/17/00 (S) RLS AT 11:30 AM FAHRENKAMP 203
3/17/00 (S) MINUTE(RLS)
3/21/00 2678 (S) RLS TO CALENDAR AND 1 OR 03/21/00
3/21/00 2678 (S) READ THE SECOND TIME
3/21/00 2678 (S) ADVANCED TO THIRD READING
UNAN CONSENT
3/21/00 2679 (S) READ THE THIRD TIME SB 268
3/21/00 2679 (S) COSPONSOR(S): TAYLOR, HALFORD, LEMAN
3/21/00 2679 (S) PASSED Y20 N-
3/21/00 2681 (S) TRANSMITTED TO (H)
3/22/00 2643 (H) READ THE FIRST TIME - REFERRALS
3/22/00 2643 (H) JUD
3/24/00 2695 (H) CROSS SPONSOR(S): MASEK
4/03/00 (H) JUD AT 1:30 PM CAPITOL 120
4/03/00 (H) Scheduled But Not Heard
4/12/00 (H) JUD AT 1:30 PM CAPITOL 120
BILL: HB 387
SHORT TITLE: FREEDOM OF RELIGION
Jrn-Date Jrn-Page Action
2/16/00 2215 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2215 (H) CRA, HES, STA, JUD
2/23/00 2289 (H) COSPONSOR(S): COGHILL, DYSON
2/25/00 2315 (H) COSPONSOR(S): HALCRO
3/01/00 2376 (H) COSPONSOR(S): CISSNA
3/02/00 (H) CRA AT 8:00 AM CAPITOL 124
3/02/00 (H) Moved Out of Committee
3/02/00 (H) MINUTE(CRA)
3/03/00 2391 (H) CRA RPT 1DP 5NR
3/03/00 2391 (H) DP: DYSON; NR: MURKOWSKI, HALCRO,
3/03/00 2392 (H) JOULE, HARRIS, MORGAN
3/03/00 2392 (H) INDETERMINATE FN (LAW/ALL DEPTS)
3/07/00 (H) HES AT 3:00 PM CAPITOL 106
3/07/00 (H) Moved CSHB 387(HES) Out of Committee
3/07/00 (H) MINUTE(HES)
3/07/00 (H) MINUTE(HES)
3/07/00 (H) MINUTE(HES)
3/15/00 2492 (H) HES RPT CS(HES) NT 5DP 2NR
3/15/00 2492 (H) DP: GREEN, DYSON, COGHILL, WHITAKER,
3/15/00 2492 (H) BRICE; NR: MORGAN, KEMPLEN
3/15/00 2492 (H) INDETERMINATE FN (LAW/ALL DEPTS)
3/3/00
3/15/00 2559 (H) COSPONSOR(S): WHITAKER
3/28/00 (H) STA AT 8:00 AM CAPITOL 102
Bill Postponed to 3/30/00
3/30/00 (H) STA AT 8:00 AM CAPITOL 102
3/30/00 (H) Heard & Held
3/30/00 (H) MINUTE(STA)
4/04/00 (H) STA AT 8:00 AM CAPITOL 102
4/04/00 (H) Moved CSHB 387(HES) Out of Committee
4/04/00 (H) MINUTE(STA)
4/05/00 2868 (H) STA RPT CS(HES) NT 4DP 1DNP 1AM
4/05/00 2868 (H) DP: JAMES, GREEN, WHITAKER, OGAN;
4/05/00 2868 (H) DNP: KERTTULA; AM: HUDSON
4/05/00 2868 (H) INDETERMINATE FN (LAW/ALL DEPTS)
4/12/00 (H) JUD AT 1:30 PM CAPITOL 120
WITNESS REGISTER
KRIS KNAUSS, Staff
to Senator Drue Pearce
Alaska State Legislature
Capitol Building, Room 111
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions on SB 193.
BOB LOEFFLER, Director
Central Office
Division of Mining, Land and Water
Department of Natural Resources
3601 C Street, Suite 800
Anchorage, Alaska 99503-5935
POSITION STATEMENT: Presented HB 359.
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of SB 268.
ROBERT ROYCE, Assistant Attorney General
Governmental Affairs Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Testified on HB 387.
ALLISON MENDEL, Attorney at Law
8830 Banjo Circle
Anchorage, Alaska 99502
POSITION STATEMENT: Testified on HB 387.
LONNIE WIBBERDING
P.O. Box 778
Glennallen, Alaska 99588
POSITION STATEMENT: Testified in support of HB 387 without
amendment.
ALTHEA BUCKINGHAM
118D Harvest Way
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387.
HARRY ROSENFELD, Rabbi
1407 Annapolis Street
Anchorage, Alaska 99508
POSITION STATEMENT: Testified in opposition to HB 387.
NICHOLAS P. MILLER, Executive Director
Council on Religious Freedom
110 North Washington Street, Suite 404
Rockville, Maryland 20850
POSITION STATEMENT: Testified on HB 387.
ED KRAFT
(Address not provided.)
POSITION STATEMENT: Testified in support of HB 387 as written.
JIMMIE STORY
1507 Davidoff Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387.
KEN NELSON
600 Lake Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387 as written.
GAYLE A. KILDAL
P.O. Box 456
Glennallen, Alaska 99588
POSITION STATEMENT: Testified in support of HB 387 as written.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, Alaska 99510-1844
POSITION STATEMENT: Testified on HB 387.
MICHAEL J. STARK, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on HB 387 on behalf of the
Department of Corrections.
ANGELA SALERNO
Division of Public Assistance
Department of Health & Social Services
P.O. Box 110640
Juneau, Alaska 99811-0640
POSITION STATEMENT: Testified on HB 387, expressing concern in
relation to eligibility technicians denying a benefit because a
person cannot work outside the home due to religious beliefs.
JOSEPH STORY, Government Relations Representative
Northwest Religious Liberty Association
1507 Davidoff Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387.
ROBERT BUTTCANE, Juvenile Probation Officer
Youth Corrections
Division of Family and Youth Services
Department of Health & Social Services
P.O. Box 110630
Juneau, Alaska 99811
POSITION STATEMENT: Testified on HB 387.
ACTION NARRATIVE
TAPE 00-57, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:55 p.m. Members present at the call to order
were Representatives Kott, Green, James, Murkowski, Croft and
Kerttula.
SB 193 - COLLECTION OF UNPAID WAGES
Number 0045
CHAIRMAN KOTT announced that the first order of business would be
CS FOR SENATE BILL NO. 193(FIN), "An Act relating to the payment of
wages and claims for the payment of wages." He informed members
that there was a proposed committee substitute (CS), Version K,
[1-LS1263\K, Cramer, 4/07/00], which incorporates [the amendment
adopted at the previous hearing]. It also will require a companion
resolution, to his belief, because the title has been changed by
including Rule 82 [Alaska Rules of Civil Procedure] and Rule 508
[Alaska Rules of Appellate Procedure]. The major change occurs on
page 3, Section 7, through the end of the bill; that resulted from
the amendment offered by Representative Croft and passed by the
committee. Chairman Kott asked Representative Croft if he had
looked over that language to be sure everything desired had been
captured.
Number 0140
REPRESENTATIVE CROFT answered yes, but the committee may have
captured it too fully and completely. In talking to the sponsor,
the sponsor's representative and the Department of Labor [&
Workforce Development], he still feels that the discussion needs
some closure. This isn't completely solving the problem that
people have when they have unpaid wage claims and are having
trouble either getting real relief or getting the department to
pursue the claims; this [Version K] gives some direction in
allowing small claims. As discussed, either this will require more
departmental time and employee effort, or else some way to do this
must be enabled.
REPRESENTATIVE CROFT said it is getting late [in the session], and
this makes a partial attempt in an area of law that should be
looked at more fully. In completely taking over the attorney fee
provisions from overtime and minimum wage, the bill brought in
areas that are objectionable to the business community and possibly
the "clear and convincing" standard. If there were more time, the
committee might be able to get an attorney fee provision that is
moderate enough to at least be acceptable to the business community
without seriously delaying the bill. However, he would be willing
to move out the [Senate] Finance Committee version instead of
Version K, so that the issue of how unpaid workers get attorney
fees can continue to be discussed next year.
Number 0282
CHAIRMAN KOTT asked whether Representative Croft would want this
bill referred to him as a subcommittee chair in order to work on
the issues.
REPRESENTATIVE CROFT answered thank you, but no. Although [Version
K] makes an incremental change that helps a little, he believes
there is a bigger issue to worry about. However, he doesn't want
to kill "the little" to advance the greater, particularly because
of how late it is getting in the session.
CHAIRMAN KOTT asked whether the sponsor's preference is to pass out
Version I [CSSB 193(FIN)].
KRIS KNAUSS, Staff to Senator Drue Pearce, Alaska State
Legislature, answered yes.
Number 0343
REPRESENTATIVE CROFT made a motion to adopt Version I [CSSB
193(FIN)].
CHAIRMAN KOTT, hearing no objection, announced that [CSSB 193(FIN)]
was before the committee. He asked Mr. Knauss whether he wished to
add any closing remarks.
Number 0386
MR. KNAUSS commented that the sponsor [Senator Pearce] has
indicated that Representative Croft's intentions are well noted,
but does not agree with the proposed CS [Version K]; she believes
it goes further than the intention of the legislation with CSSB
193(FIN).
Number 0471
REPRESENTATIVE CROFT made a motion to move CSSB 193(FIN) out of
committee with individual recommendations and zero fiscal note.
There being no objection, CSSB 193(FIN) was moved from the House
Judiciary Standing Committee.
HB 359 - DEPARTMENT NAT RES ADMIN APPEALS/OIL & GAS
Number 0530
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 359, "An Act relating to notice requirements for
certain final findings concerning the disposal of an interest in
state land or resources for oil and gas; relating to administrative
appeals and petitions for reconsideration of decisions of the
Department of Natural Resources; and providing for an effective
date."
Number 0580
BOB LOEFFLER, Director, Central Office, Division of Mining, Land
and Water, Department of Natural Resources (DNR), came before the
committee to present HB 359. The bill would create a uniform
appeals process for DNR and would fix a public notice problem with
respect to DNR's Division of Oil & Gas. Currently, he explained,
as an "artifact" of different laws passed at different times, DNR
has a couple of appeals tracks. For some decisions there is a
30-day appeals process, while for other decisions there is a 15-day
or 20-day appeals process. There can also be multiple appeals for
some types of decisions; for example, in some cases an appeal can
be made to him, if his staff has made the decision, then to the
commissioner and then to the commissioner again. Therefore, HB 359
would create a uniform appeals process so that the public is not
confused and so that staff don't "blow it," as they occasionally
do.
MR. LOEFFLER noted that it would be a one-shot appeals process in
that if a person does not like a decision made by staff, that
decision can be appealed to the commissioner; the person then has
a right to go to court. A simple process, it would not take any
rights away from the public, except for the chance of a multiple
appeal in some cases. He believes the bill would help people
understand the process, which would be quicker.
Number 0722
MR. LOEFFLER pointed out that HB 359 would also fix a
notice-related problem. The Division of Oil & Gas has to notice a
lease sale three times: once for the preliminary finding; once for
the final finding; and, as an "artifact," the division has to
notice that it is going to notice the final finding - a "notice of
a notice." The consequence is confusion and expense. It costs a
certain amount of money to place a legal notice in a newspaper,
especially oil and gas lease notices that must go statewide. He
believes that the "fix" would not change the rights of either
citizens or governments. All it would do is make government a
little more efficient and less confusing.
Number 0784
REPRESENTATIVE GREEN asked Mr. Loeffler whether [the state] is in
any jeopardy of having set a precedent in relation to the "notice
of a notice."
MR. LOEFFLER replied that he doesn't think so.
REPRESENTATIVE GREEN asked Mr. Loeffler whether that has been
checked with the Office of the Attorney General.
MR. LOEFFLER responded that the bill has been reviewed by the
Office of the Attorney General; they believe that the "notice of a
notice" is an "artifact." In reply to a further comment from
Representative Green about a precedent, Mr. Loeffler stated, "I
don't believe that's a problem, sir."
Number 0818
REPRESENTATIVE MURKOWSKI asked Mr. Loeffler whether a person can
request a reconsideration if a decision has not been appealed to
the commissioner.
MR. LOEFFLER answered that if the commissioner makes the decision,
it is no longer called an appeal; it is called a reconsideration.
If somebody other than the commissioner makes the decision, it is
called an appeal. For example, the commissioner signs decisions
made for very important decisions in relation to oil and gas
leases. However, appeals of decisions made by his staff go to the
commissioner, and under current law a person can ask the
commissioner again for a decision under reconsideration.
Number 0900
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed the meeting to public testimony.
Number 0921
REPRESENTATIVE GREEN stated that he is in favor of anything that
can streamline government without jeopardizing public notice. He
pointed out that the bill is coming directly from the Office of the
Commissioner [DNR].
CHAIRMAN KOTT indicated three DNR representatives in the audience
were nodding their heads in agreement.
Number 0943
REPRESENTATIVE GREEN made a motion to move HB 359 from the
committee with individual recommendations and the attached zero
fiscal note. There being no objection, HB 359 was moved from the
House Judiciary Standing Committee.
SB 268 - MANDATORY 99-YEAR TERM OF IMPRISONMENT
CHAIRMAN KOTT announced that the next order of business would be
SENATE BILL NO. 268, "An Act relating to mandatory 99-year terms of
imprisonment for persons convicted of certain murders."
Number 0966
SENATOR DAVE DONLEY, Alaska State Legislature, came before the
committee to testify as sponsor of SB 268. To the current
statutory provisions for a 99-year sentence, he told members, the
bill would add a new category for persons who actually commit a
murder during a robbery. It would add a new standard to the three
existing provisions of law that also require the mandatory 99-year
sentence. They are as follows: 1) the defendant is convicted of
the murder of a uniformed or otherwise clearly identified peace
office, fire fighter or correctional employee who was performing
professional duties at the time of the murder; 2) the defendant
has been previously convicted of a murder in the first degree; or
3) the court finds clear and convincing evidence that the defendant
had subjected the victim to substantial physical torture.
SENATOR DONLEY explained that there have been problems with murders
during robberies in both Anchorage and Fairbanks over the last
couple of years with taxi drivers and late-night restaurant
workers. The bill was requested, therefore, by the Alaska
Hospitality Association in hopes that it sends a message of
deterrence.
Number 1093
REPRESENTATIVE GREEN asked Senator Donley what the average sentence
now is for these types of cases.
SENATOR DONLEY replied that the typical sentence is 99 years. The
mandatory minimum is 20 years; however, most judges are sentencing
a defendant in these types of cases to 99 years. If for some
reason a defendant had received a 20-year-sentence, the "good time"
provisions would "kick in," and that defendant would be out in 14
years or so. However, in the case of the three existing categories
mentioned earlier, the normal "good time" provisions do not apply;
instead, a defendant convicted of murder in the first degree who is
sentenced to 99 years receives a review after 50 years.
Number 1200
REPRESENTATIVE GREEN asked Senator Donley whether the new provision
would apply if Fred and John "do something" and Fred "gets it."
SENATOR DONLEY said the bill is not aimed at the felony murder
class. If someone was present at a robbery but didn't actually
pull the trigger, the new provision wouldn't apply; it would only
apply to those who actually committed the murder. He noted that in
at least 26 states individuals who commit a murder during a robbery
are subject to the death penalty, as the maximum provision.
Number 1252
REPRESENTATIVE GREEN asked Senator Donley whether the new provision
would apply to an individual who accidentally shoots someone.
SENATOR DONLEY replied, "Yes."
Number 1263
REPRESENTATIVE CROFT said he thinks that when an individual
accidentally shoots someone, it is a felony murder. It isn't
intentional murder; therefore, it must be a felony murder because
of the intent to commit a robbery.
SENATOR DONLEY replied that the classic example of felony murder is
when, during a robbery, a gunfight ensues and a police officer
kills a bystander. In that event, the criminal actors are guilty
of felony murder, even though they did not shoot the bystander.
That is an illustration of how expansive felony murder can be. The
new provision, therefore, focuses on the individual who directly
has caused the murder.
Number 1316
REPRESENTATIVE CROFT stated that if a person intentionally kills
another person, it is intentional first degree murder. If a person
is robbing another person and accidentally kills that person, it is
second degree felony murder. He asked Senator Donley which one the
new provision refers to - murder in the first or second degree. He
noted that the language [on page 2, lines 9-10, of the bill] reads,
"the defendant is convicted of the murder of and personally caused
the death of a person, other than a participant, during a robbery."
SENATOR DONLEY replied that the new provision would require the
normal elements of murder. He pointed out that the new provision
is a little different in that the language reads, "and personally
caused the death ...." [page 2, lines 8-9, of the bill].
Number 1390
REPRESENTATIVE CROFT said it appears that the new provision is a
special category in addition to the other three provisions already
in statute.
SENATOR DONLEY specified that he wants to distinguish the new
provision from felony murder.
Number 1424
REPRESENTATIVE GREEN asked Senator Donley whether the new provision
would include second-degree murder.
SENATOR DONLEY replied that a person would have to be convicted of
a murder in which all of the elements of murder were present.
REPRESENTATIVE GREEN suggested that it would have to be
first-degree murder.
SENATOR DONLEY paused, then replied, "Actually, I think you're
right." He noted that subsection (a) [page 1, lines 5-8] limits
the new provision to murder in the first degree. If that wasn't
there, he would agree that it would apply to murder in the second
degree.
REPRESENTATIVE GREEN asked Senator Donley whether there is a chance
that the new provision would be misinterpreted because the language
just reads "murder." He said the other provisions read first- or
second-degree murder.
SENATOR DONLEY replied that he doesn't think so because the
language "or" falls under subsection (a) [page 1, lines 5-8, of the
bill], which confines the actions to murder in the first degree.
REPRESENTATIVE GREEN pointed out that subparagraph (A) [page 1,
lines 13-14] specifically indicates murder in the first degree.
SENATOR DONLEY explained that the section is trying to define
murder in the first degree. In that regard, a murder someone had
committed in Oregon would have to have all the same elements of
first-degree murder in Alaska to count towards a second murder
offense. That is why the language is repeated in subparagraph (A)
[page 1, starting on line 13].
Number 1571
CHAIRMAN KOTT asked Senator Donley when a robbery is considered
concluded. He posed the following scenario:
I go in with not the intent of killing someone with a
weapon and ask the person for the cash register receipts.
I get them. I turn around, and someone comes in behind
me, and I shoot that person. I'm caught by surprise.
They come through the door. Would that then apply to
this particular situation, or ... is the robbery complete
once the transaction occurs?
SENATOR DONLEY replied that the new provision would be defined by
a court the first time it is used. The intent, he reiterated, is
to act as a deterrent to protect the public. He further stated
that not all murders are the same because some have an inherently
greater public safety risk. For example, if a person goes into a
public restaurant with a lot of people milling around and commits
a robbery, there is an inherently greater public safety risk; it is
not just the robber and one other person. He thinks that the
entrance and escape are part of the continuance of the commission
of a robbery. But, as he studied in law school, there is a
question in relation to a certain amount of time that has elapsed
after the commission of a robbery. He cited two hours as an
example. In that case, a judge would have to make a finding on
whether or not the law applies.
Number 1694
REPRESENTATIVE KERTTULA said she thinks that the language isn't
clear in relation to the defendant's being both the murderer and
the robber. The language reads, "the defendant is convicted of the
murder of and personally caused the death of a person, other than
a participant, during a robbery" [page 2, lines 9-10]. It doesn't
say that a person is convicted of a robbery. She pointed out that
subparagraph (C) [page 2, lines 3-6] specifically indicates that a
defendant has been previously convicted of homicide. Therefore,
the new provision could apply to a person who walks in while a
robbery is being committed and kills someone, but that person is
not convicted of the robbery.
REPRESENTATIVE JAMES noted that the language reads, "other than a
participant" [page 2, line 10]. She asked whether the language
refers to the person who was murdered or to the person who
committed the murder.
SENATOR DONLEY stated that he doesn't have a problem changing the
language so that it says a person has been convicted of a robbery
as well.
REPRESENTATIVE KERTTULA commented that otherwise there is a risk of
it "going the other way."
SENATOR DONLEY said he really doubts that prosecutors would "go
after that," but he doesn't have a problem with clarifying the
language because that is not the intent.
Number 1760
REPRESENTATIVE KERTTULA suggested the following language: "...
during a robbery of which the defendant was convicted."
REPRESENTATIVE CROFT commented that there are cases in the news of
police officers who are up for murder charges for the possible use
of excessive force. Therefore, if the language remains as-is, a
police officer who responds to a robbery, shoots negligently, and
kills a bystander could face a 99-year sentence.
SENATOR DONLEY restated that the change is fine. He doesn't think,
however, that those examples meet the elements of murder in the
first degree.
Number 1810
REPRESENTATIVE MURKOWSKI asked Senator Donley to assure her that
the new provision is not limited to a death that only occurs during
the robbery. The language reads "during a robbery" [page 2, line
10]. In other words, a person could die after a robbery.
SENATOR DONLEY said that is not his intent.
REPRESENTATIVE MURKOWSKI recognized that, but said she hopes that
the language can be fixed to make it clearer.
SENATOR DONLEY agreed with fixing the language to make it clearer.
He suggested the following language: "... and personally caused
the death of a person other than by some action during a robbery."
He explained that in that way, it is the action that occurred
during a robbery and not the death. He suggested perhaps the bill
drafter could come up with a better phrase.
Number 1900
REPRESENTATIVE KERTTULA asked Senator Donley whether sexual assault
is included in the definition of substantial physical torture.
SENATOR DONLEY replied that he has heard about two cases in
relation to substantial physical torture; one included sexual
assault as well as other [unspecified] acts.
Number 1925
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed the meeting to public testimony.
Number 1955
REPRESENTATIVE KERTTULA proposed a conceptual amendment [Amendment
1] to make it clear that the cause of death happened at the time of
the robbery, and that a person has to have been convicted of the
robbery. There being no objection, Amendment 1 was adopted.
Number 2017
REPRESENTATIVE GREEN made a motion to move SB 268, as amended, from
the committee with individual recommendations and the attached zero
fiscal note. There being no objection, HCS SB 268(JUD) was moved
from the House Judiciary Standing Committee.
HB 387 - FREEDOM OF RELIGION
Number 2044
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 387, "An Act prohibiting governmental entities,
including municipalities and school districts, from restricting a
person's free exercise of religion." [Before the committee was CSHB
387(HES), version 1-LS1461\H.]
Number 2061
REPRESENTATIVE CROFT, speaking as the sponsor of HB 387, explained
the bill. Until 1990, the law in the U.S. Supreme Court had been
that if a law of general application impinged upon a person's
religious practice in a substantial way, so that it burdened the
person's free exercise rights, that person could get an exception
unless the state could show a compelling interest. In that way,
there was a check. With regard to Prohibition, for example, the
court recognized that there would be a "free exercise problem" if
it didn't exempt wine used in church services from the general law.
REPRESENTATIVE CROFT continued. In 1990 the U.S. Supreme Court
reversed that entire line of cases, essentially saying that
exceptions would no longer be requested and that, under federal
law, a law of general application does not need an exception.
However, if the very purpose of a law were to get at a religious
practice, that part of the U.S. Supreme Court ruling stayed. This
caused a "fire storm" of controversy, Representative Croft told
fellow members, and led to enactment of the federal Religious
Freedom Restoration Act [RFRA] through a bipartisan effort.
Although signed by President Clinton, the Act itself was
unconstitutional in that there is no authority in the federal
constitution to tell states and municipalities how they should act.
It then became a state-by-state issue.
REPRESENTATIVE CROFT noted that there is continuing discussion and
disagreement with regard to the Smith [Smith v. Emp. Div., 494 U.S.
872 (1990)] decision. It has been upheld, but by the same narrow
5-4 ruling; many people, including [U.S. Supreme Court Associate]
Justice O'Connor, were very upset about it. Alaska has generally
kept to the compelling state interest test, essentially staying at
a "high level" while the U.S. Supreme Court has "retreated."
Because there is no guarantee of future court rulings, HB 387 would
set in statute that compelling state interest standard. In that
way, should the Alaska Supreme Court decide to follow the Smith
decision, there would be a statutory foundation or "backstop."
Number 2255
ROBERT ROYCE, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Anchorage), Department of Law, informed
members that he would summarize the current "free exercise" cases
under federal and state law, and would highlight some of the
differences that HB 387 would impose in analyzing free exercise
cases. He said the bill prohibits any state agency, municipality,
school board or school district from substantially burdening a
person's exercise of religion, even if the burden results from a
law of general applicability, unless the government can show a
compelling state interest and that it is the least constrictive
means of furthering that compelling interest.
MR. ROYCE said this is the identical statutory test contained in
the federal RFRA, which was struck down by the U.S. Supreme Court
in City of Boerne v. Flores [521 U.S. 507 (1997)]; RFRA was struck
down because it exceeded the enforcement authority of Congress as
applied to the states and local governments. He urged committee
members to read that decision because it said that RFRA was an
impermissible attempt by Congress to substantively change the
constitutional protections under the free exercise clause.
Congress argued that it was merely protecting, by statute, a right
in the U.S. Constitution. The U.S. Supreme Court, however, did not
allow that because the legislation altered the meaning of the
constitutional provision dealing with free exercise. Therefore,
Congress could not enforce a right that it was changing. Mr. Royce
quoted from the portion of the Boerne case that deals with the
statutory formula for addressing free exercise claims, as follows:
The stringent test RFRA demands of state laws reflects a
lack of proportionality or congruence between the means
adopted and the legitimate end to be achieved. Requiring
a state to demonstrate a compelling interest and show
that it has adopted the least restrictive means of
achieving that interest is the most demanding test known
to constitutional law. If compelling interest really
means what it says, many laws will not meet the test.
The test would open the prospect of constitutionally
required religious exemptions from civic obligations of
most every conceivable kind. ... Simply put, RFRA is not
designed to identify and counteract state laws likely to
be unconstitutional because [of] their treatment of
religion. And the Act imposes, in every case, a least
restrictive means requirement, a requirement that was not
used in the pre-Smith jurisprudence RFRA purported to
codify, which also indicates that the legislation is
broader than is appropriate if the goal is to prevent and
remedy constitutional violations.
MR. ROYCE advised members that the court had concluded that the
statutory formula radically altered the constitutional protection
of the free exercise clause. Justice Stevens, in a concurring
opinion, also found that RFRA violated the establishment clause.
The state constitution, Mr. Royce noted, has an establishment
clause similar to that in the federal constitution. [Justice
Stevens found that RFRA violated the establishment clause] because
in the Boerne case the Catholic Church was seeking an exemption
from a zoning law to add on to the church; however, the church was
located in an historic preservation area, so they sought an
exemption to the municipal law on the basis of their free exercise
of religion. Justice Stevens had said that if it were a bookstore
that wanted to expand in that area, it would not be entitled to an
exemption. And so it violates the establishment clause because
generally the government must maintain neutrality with regard to
religion.
Number 2453
MR. ROYCE said that was RFRA's attempt to create the identical
statutory test set out in HB 387; as Representative Croft had said,
RFRA was in direct response to the Smith decision of 1990. In
order to understand how RFRA altered the free exercise authority,
Mr. Royce told members he would talk about the facts and the
holding of Smith. That case involved two Native Americans who used
peyote in a religious ceremony, claiming the use was religiously
motivated. However, in Oregon, the use of peyote without a
doctor's prescription was illegal; as a result, the two were fired
from their jobs at a private drug rehabilitation clinic. They
claimed they were entitled to a religious exemption from the
criminal law for purposes of obtaining unemployment benefits. The
U.S. Supreme Court denied their claim, saying that the religiously
motivated conduct did not excuse them from complying with an
otherwise-valid, generally applicable law. The two Native
Americans argued that the same compelling interest test set out in
HB 387 should be applied to their claim, as well, and they refused
to apply what is called the [Sherbert balancing test.]
TAPE 00-57, SIDE B
Number 0001
MR. ROYCE said religious exercise does not have to be justified by
a compelling state interest, but the rule has several exceptions.
The first exception is for unemployment cases that are unrelated to
a violation of a criminal law. In unemployment cases, a person's
eligibility benefits have to be determined; the agency in every
case looks to whether a person left his/her employment for good
cause. A system has been created to consider those individual
claims, and in those cases a person cannot refuse to extend an
exemption for someone based on religious hardship without a
compelling interest. The Smith decision doesn't change that rule,
at all, for unemployment compensation cases or any cases that don't
involve a violation of a criminal law where the government is
making available a monetary benefit. Mr. Royce specified that his
point is that there are some exceptions to the Smith holding.
Number 0052
MR. ROYCE reported that the second exception is the so-called
hybrid rights theory in which a free exercise claim is combined
with some other protected constitutional right such as free speech
or the rights of parents to direct the upbringing of their
children; that is the Yoder [Wisconsin v. Yoder, 406 U.S. 205
(1972)] case, in which the court granted an exemption to the Amish
from Wisconsin's compulsory attendance laws. If one reads the
Yoder case, however, the court did not apply a rigid statutory
formula, a "compelling state interest, least restrictive means"
test. The court simply recognized that depending on the nature of
the right of a whole, in its totality, in some situations a higher
level of scrutiny is required, more than a legitimate, rational
relationship test. It might not rise to the level of compelling
state interest, but it might be an intermediate level of scrutiny
that the court would [use to] test the free exercise claim. In
that regard, in Yoder, the court allowed the Amish a religious
exemption because there really wasn't any harm to the state's
asserted interest. "They applied a flexible balancing test,
though, in ruling on that claim," Mr. Royce added.
Number 0110
MR. ROYCE told members that the third situation in which heightened
scrutiny may be applied is in situations where laws have been
passed to directly affect a religious practice. In those
situations, the compelling state interest test clearly applies;
that is the Lukumi [Church of Lukumi Babalu Aye v. Hialeah] case.
Mr. Royce pointed out that HB 387 would change that analysis
because it says, for example, that a school board or school
district may not place a substantial burden on a person's free
exercise of religion unless the burden is in the form of a rule of
general applicability and does not intentionally discriminate
against religion. That means, conversely, that a law passed to
affect a religious practice is, per se, unconstitutional. "That's
really not the state of the law," Mr. Royce commented, adding that
there may be a situation, because of the sheer number of religions,
where a state would have a sufficient interest to restrict a
religious practice. "I'm not saying there is one, but there might
be one, and so a state may very well want to leave that possibility
open," he explained. "And that would be foreclosed by HB 387."
Number 0167
MR. ROYCE turned attention to the changes HB 387 would bring about
in state law. As Representative Croft has already indicated, the
state constitution already affords greater protection in relation
to freedom of religion than is provided under the federal
constitution. The analysis adopted by the Alaska Supreme Court
under state law, however, includes three elements: whether
religion is involved; whether the conduct in question is
religiously based; and whether the claimant is sincere in his/her
beliefs. It does not contain a substantial burden element, which
HB 387 would impose. Therefore, if the claimant satisfies the
three elements, the state can "burden religion" only when it poses
some substantial threat to the public safety, peace or order, or
where there are competing governmental interests that are of the
highest order.
MR. ROYCE pointed out that under HB 387, in contrast, the analysis
is whether a person's religious right to free exercise is
substantially burdened; if so, the state, municipality, school
board or school district would have to show a compelling state
interest that is the least restrict means of furthering that
interest. There is no room, he said, for balancing whether a
state's interest outweighs the burden on the person's religion. It
takes the balancing out of the Sherbert balancing test, from which
this standard is supposedly adopted.
MR. ROYCE pointed out that "substantial burden" is not defined in
the bill, nor does it exist in prior Alaska Supreme Court case law.
It is also difficult to contest; courts don't like to be in a
position of challenging someone's religious belief, questioning
someone's sincerity or determining whether the belief is a central
one. Therefore, if someone makes a claim that is religiously
based, the courts pretty much accept it and don't let parties argue
over that. Mr. Royce referred to the Boerne case and said there
was no least restrictive means requirement pre-Smith or in the
Alaska Supreme Court.
Number 0279
MR. ROYCE explained the least restrictive means test. There could
be a total ban on the carrying of weapons by children at school,
for example. There was a case in California where the children of
members of the Sikh religion wanted to carry knives, he noted.
Allegedly, they had to carry knives at all times as part of their
religion. They brought suit under the federal [RFRA]; the court
decided there might be a legitimate interest in the safety of
schools, but it is not the least restrictive means because the
children could dull the knives or rivet them to their sheaths. Mr.
Royce indicated that even if there is a compelling interest, it
might not necessarily be the least restrictive means because, in
many situations, accommodation can be made or laws can be
redrafted.
MR. ROYCE said he believes HB 387 would change the way courts
handle or look to free exercise cases by trying to reduce them to
a rigid statutory formula that really doesn't exist according to
state and federal supreme court cases, which have more of a
balancing test. Furthermore, he believes HB 387 would make it
harder for governmental employers to manage employees because it
requires public employers to accommodate religious beliefs of its
employees in virtually every case. An employer probably would not
be able to satisfy the compelling state interest test or the least
restrictive means test; mere administrative convenience or
additional cost to an agency is not sufficient to satisfy the test.
Number 0380
MR. ROYCE told members that he thinks the bill's intent is to apply
to Alaskans who do business with state agencies or municipalities.
However, in one regard, it elevates the religious rights of
governmental employees over private employees because the bill
would provide statutory protection to governmental employees for
their free exercise of religion, but it would not apply to private
employees. Therefore, if a private employee indicated he couldn't
work on a Saturday because of his religion, for example, the
private employer would not have to accommodate the employee. Only
if the employee quit his job and sought unemployment benefits would
the protections of HB 387 be triggered. The government, on the
other hand, would have to make an accommodation - by redoing other
employees' schedules - in that situation, and the government
employee could continue in his or her job. In that regard, Mr.
Royce believes that the bill raises claims of equal protection.
Number 0453
REPRESENTATIVE KERTTULA requested confirmation that in terms of
Alaska's constitution, the state has already upheld the same kinds
of rights that the bill is generally seeking.
MR. ROYCE answered that the court has adopted the Sherbert
balancing test. It did so in Frank [Frank v. State, [604 P.2d 1068
(Alaska 1979)], a case in which a person was convicted for taking
moose out of season but the Alaska Supreme Court had allowed [that
person] to be exempt from the fish and game laws. The court
applied the compelling state interest test in that case. However,
that case doesn't say that the court first looked to whether the
person's religion was substantially burdened; instead, it looked at
whether it was sincere, religiously motivated conduct and didn't
pose any substantial threat to the public. It is just worded
differently than what is presented in HB 387.
Number 0512
REPRESENTATIVE KERTTULA suggested that Alaska already has the
protection, then, under the Alaska Supreme Court and the state
constitution.
MR. ROYCE affirmed that. He said the Alaska Supreme Court has
repeatedly recognized that the state constitution provides greater
protection than the federal constitution.
Number 0527
REPRESENTATIVE MURKOWSKI asked Mr. Royce whether it is correct that
"we" are getting the same end with the compelling state interest
standard but, the way it is currently structured, there is greater
flexibility than HB 387 would allow.
MR. ROYCE replied, "Yes."
REPRESENTATIVE MURKOWSKI asked whether this needs to be put into
statute in case the court should change its mind later down the
road.
MR. ROYCE specified that it wasn't his own comment but is
Representative Croft's [belief]. Mr. Royce referred to
Representative Croft's suggestion that the makeup of the supreme
court may change. He said there is the principle of stare decisis
in which a court has to follow previous case law. In reading the
supreme court decision, he said, it summarizes a century of free
exercise clause cases; it really doesn't overrule any prior
decisions. The Yoder decision is still good law, for example. He
can't speak for Representative Croft's concern, but he doesn't know
of any cases "out there" that would cause the court to go in a
different direction.
Number 0627
REPRESENTATIVE CROFT asked Mr. Royce whether he specializes in this
area of law.
MR. ROYCE replied that he specializes in employment discrimination
law.
REPRESENTATIVE CROFT asked Mr. Royce whether that brings in a lot
of the religious areas in relation to free exercise.
MR. ROYCE replied, "Yes."
REPRESENTATIVE CROFT asked Mr. Royce whether he is familiar with
any of these three cases; he specifically mentioned Bowen v. Roy
[476 U.S. 693 (1986)].
MR. ROYCE replied yes, it is a Social Security case under the U.S.
Supreme Court.
REPRESENTATIVE CROFT noted that the language was taken from the
federal RFRA, which incorporates the least restrictive means.
MR. ROYCE replied, "Right, that's identical out of federal RFRA."
REPRESENTATIVE CROFT asked, "But you don't think the least
restrictive means language was in pre-Smith jurisprudence?"
MR. ROYCE replied, "No. ... It's in other constitutional law tests,
but it was never used in free exercise cases."
REPRESENTATIVE CROFT asked Mr. Royce to expound on Bowen v. Roy.
MR. ROYCE explained that it was a case where a Native American did
not want to get a Social Security number for his daughter because
of the belief that it would rob her of her spirit. It was a
religious case. The court said there was a valid interest in
maintaining the Social Security system; therefore, no exemption was
granted in that case.
Number 0736
REPRESENTATIVE CROFT read the following opinion relating to Bowen
v. Roy, in which Associate Justice O'Connor was writing for the
plurality:
This court has consistently asked the government to
demonstrate that unbending application of its regulation
to the religious objector is essential to accomplish an
overriding governmental interest.
MR. ROYCE stopped Representative Croft and emphasized the word
"overriding." He said that is a balancing process.
REPRESENTATIVE CROFT continued:
The interests asserted by petitioners cannot be
accommodated with that ... compelling governmental
interest, and no less restrictive means are available to
achieve the governmental interest.
Noting that there are two other cases as well, he asked Mr. Royce
whether Associate Justice O'Connor wasn't talking about least
restrictive means. He said Associate Justice O'Connor had
dissented in Smith but was in the plurality in that decision.
MR. ROYCE agreed, but added that "the Boerne case says we have
never used a least restrictive means test in pre-Smith; that's
[Associate Justice] Kennedy summarizing."
REPRESENTATIVE CROFT stated that Associate Justice O'Connor had
dissented in Smith, but she was [among] the plurality in that
decision.
MR. ROYCE responded:
Right, and the Boerne case says we have never used a
least restrictive means test in pre-Smith. That's
[Associate Justice] Kennedy summarizing. ... There have
been differences that the supreme court has used, and
they have applied that test. But in Smith the court says
we have never really applied that test outside of the
unemployment compensation cases, or even when we
purported to apply it, we haven't found the test met,
which is the Bowen v. Roy situation where they did not
grant an exemption, even though they purported to apply
the test. They found the test not met. ...
I guess I would agree that cases are all over, and what
Smith did was try to reconcile all those cases and say
"we'd never allowed an exemption from a generally
applicable law that involved a violation of a criminal
law." It tried to take all these prior decisions and
give some general rule: ... if it's a generally
inapplicable law, generally not entitled to a religious
exemption, regardless ... of the burden, because the
courts ... have never applied any really heightened
scrutiny or found that test met in all of its prior
decisions. ...
There has been substantial dispute over the
interpretation of Smith under federal law, but it's clear
that our state supreme court has adopted a test. And if
you read any Alaska Supreme Court on [the] free exercise
clause, you won't see that language as in the federal
cases that you've cited.
Number 0854
REPRESENTATIVE CROFT said he thinks it was difficult for [U.S.
Supreme Court Associate Justice] Scalia to encompass all of the
different case law out there protecting religious freedom to reach
a conclusion that didn't [protect religious freedom]. To say,
however, that in Boerne or Smith there was never any least
restrictive means seems, to him, stretching it to the point of
being inaccurate. He commented, "It was there. It wasn't in other
cases. It is easier to say there was a misunderstanding there than
it is to overrule that line of cases, particularly when, in Smith,
you only had 5 to 4."
Number 0890
MR. ROYCE stated that RFRA had adopted the Sherbert balancing test.
He pointed out that the least restrictive means test is in neither
Sherbert [Sherbert v. Verner, 374 U.S. 398 (1963)] nor Yoder, the
two cases that RFRA relied on. However, it has been applied in
other areas - sometime inconsistently - to free exercise cases, but
only when the court has not allowed a religious exemption. Mr.
Royce said he is trying to explain why there is inconsistency.
Number 0940
REPRESENTATIVE CROFT said it [the least restrictive means test] was
in Bowen [v. Roy], a U.S. Supreme Court decision from 1986 relating
to a religious claim; Bob Jones [University v. United States, 461
U.S. 574 (1983)]; and Thomas [v. Review Board, 450 U.S. 717
(1981)]. Therefore, it has been part of the jurisprudence
pre-Smith. It is just that Associate Justice Scalia "can't explain
it away."
MR. ROYCE clarified that it was [Associate Justice] Kennedy, in the
Boerne case.
Number 0960
REPRESENTATIVE CROFT referred to Boerne and called it a fascinating
decision. He said, "I had taken it ... that it was compelling
state interest for a general application, pre-Smith, but you target
a religion that's just, per se, out. You're telling me they can
apply the compelling state interest to both."
MR. ROYCE replied yes, in the Lukumi case, the Santeria religion
claimed a right to engage in animal sacrifice, and the City of
Hialeah passed an ordinance forbidding animal sacrifice for
religious reasons; the court said that because it was directly
targeted to religious activity, the court would apply the
compelling state interest test.
Number 0996
REPRESENTATIVE CROFT said he would be glad to change [the bill] to
do that. He asked Mr. Royce whether it is his impression that
Boerne eliminated federal RFRA "as it applies to state and local
[governments] but kept it for federal." In other words, is the
federal government still bound by federal RFRA?
MR. ROYCE replied, "Yes." He said Boerne dealt with a municipal
ordinance; no federal agency was involved. He added, "What they
said is that it exceeded ... Congress's power under ... Section 5
of the Fourteenth Amendment, which makes their law applicable to
the states." He added, "It is still left standing to federal
agencies."
REPRESENTATIVE CROFT asked whether the federal prison system
operates under federal RFRA.
MR. ROYCE replied that it is still on the books on the federal
level. As to whether there will be any challenges to it, he
doesn't know.
Number 1125
ALLISON MENDEL, Attorney at Law, testified via teleconference from
Anchorage, noting that she has been in private practice there for
almost 20 years; the emphasis of her practice is in relation to
civil rights litigation. She told members that she agrees with
most of the statements made by Mr. Royce with regard to the
weaknesses of the bill. Her particular concern, however, is that
the bill exalts religious freedom as the constitutional value over
other important constitutional values. While she supports the free
exercise of religion as a very important constitutional right, she
doesn't find it more important than all others. She further said:
Our important state interest, both in freedom from
religion and freedom to ... exercise religions that
conflict with the exercise of other religions, and to
exercise a person's civil rights - that has nothing to do
with religion. And although the statement of the sponsor
... claims that it's not the intent of the bill to
infringe [upon] the rights of others, there's nothing
attached to the bill to support that assertion.
The bill, by its terms, in fact, would exempt from civil
rights laws, probably, and from other laws protecting
other rights and other actions of citizens, which
conflict with alleged free exercise of religion of people
who are seeking the protection of this law -- I think
that's bad policy. I think that is very likely
unconstitutional policy. And I'm very concerned about
the effect of this bill on civil rights law and on the
free exercise of religion.
Number 1259
LONNIE WIBBERDING testified via teleconference from Glennallen. He
said Representative Croft had pretty much stated his own position
when introducing the bill. He specified that he supports the bill
without amendment.
Number 1285
ALTHEA BUCKINGHAM testified via teleconference from Sitka. She has
been trying to understand the legalese so far, she told members.
She feels that the bill is adequate, and she would support it 100
percent.
Number 1311
HARRY ROSENFELD, Rabbi, testified via teleconference from
Anchorage. He advised members that he is opposed to the bill on a
few different levels. First, the Alaska Supreme Court has upheld,
since the Smith decision, the higher standards in the state. In
that regard, he thinks that the supreme court will continue to
provide those protections. He also thinks that the supreme court
and the court system as a whole are in a better position to provide
the balancing required to interpret legislation and to put it into
perspective. In that regard, the court has shown that there isn't
a problem in Alaska.
RABBI ROSENFELD told members that second, on a national level, the
interfaith RFRA coalition has fallen apart for a number of reasons;
the vast majority of religious denominations, both Christian and
Jewish, that originally supported RFRA no longer do so. The
reasons primarily have to do with a realization that what has been
happening in the courts has been fair and adequate, and allows for
a balance; furthermore, the groups couldn't agree on where the
balance should be within the legislative Act. Finally, he believes
that many issues facing Alaska which the courts have decided have
left the state in a bind, starting with subsistence.
RABBI ROSENFELD said that while he appreciates the desire to be
proactive, a lot of reacting still needs to be done. He doesn't
believe it is good public policy to be dealing with this kind of
material now, when so many other issues are facing "us" and when
the protection is there, within the state supreme court, in some of
the cases mentioned and also in the Swanner cases; the Alaska
Supreme Court did use the test and found, on a balancing level,
"the way it did."
RABBI ROSENFELD said that finally, especially with "the amendment"
[unspecified], one cannot violate civil rights law - local, state
or federal - and use this bill as a defense. If, for example, he
tries to rent an apartment near his synagogue - because, according
to Jewish law, he needs to walk to synagogue - and then a coalition
of landlords gets together and decides that their religious belief
prohibits renting to Jews, the court has to balance that, whether
this legislation exists or not. He concluded, "Neither of us could
use this to establish or eliminate a defense to civil action or
criminal prosecution under federal, state or local civil rights
law, based on the amendment that has been proffered."
Number 1580
NICHOLAS P. MILLER, Executive Director, Council on Religious
Freedom, testified via teleconference from an off-net site in
Rockville, Maryland. He is also an attorney, he noted. He works
with the national religious liberty organization that is supporting
the state RFRAs around the country. He informed members that he
was there primarily to talk about prisoner issues. However, he
would begin by responding to comments made in the last few minutes.
One was the rabbi's claim that the national coalition has fallen
apart and that a vast number of Christian and Jewish groups now
oppose these bills; Mr. Miller said that is just not the case. He
attends meetings of this group every couple of weeks, he said, and
believes that the vast number of Christian and Jewish groups
support the concept of state religious freedom Acts at the local
level. He specified that he is talking about the small groups that
represent millions of religious Americans.
Number 1665
MR. MILLER acknowledged that some division has come from the "far
left wing." The ACLU [American Civil Liberties Union] has dropped
out of the coalition and opposes it, basically in relation to gay
rights issues. However, the heart of the coalition is still very
active. As far as the claim that HB 387 would exalt religious
freedom over other values, he doesn't view that as being the case
at all. Instead, it is an attempt to restore religious freedom as
a fundamental right on equal footing with other fundamental rights.
After the Smith case, religious freedom has become a secondary
right, Mr. Miller suggested, behind the freedom of speech, freedom
of association and other civil rights. This bill wouldn't make
religious freedom win every time in competition with other rights;
rather, it would return it to the courts to be balanced and weighed
against the various other rights.
MR. MILLER continued. In relation to the issue of the least
restrictive means test, the supreme court can make the law for the
future, but it cannot change history. In at least one case, Thomas
v. Review Board, the very words "least restrictive means" were used
to protect and uphold a claim of religious freedom; that case
involved unemployment claims by a Seventh Day Adventist who had
been terminated because of his convictions about the Seventh Day
Sabbath. In the case of Sherbert v. Verner - which the Alaska
Supreme Court has explicitly adopted as part of its jurisprudence
- while the words "least restrictive means" are not found in that
case, language that means the same thing is in the case; it says
basically that the government would need to show that there were no
alternative forms of regulation that would combat the abuses
without infringing upon the First Amendment right. The point is
that the least restrictive means became a "term of art" when RFRA
was created, but the idea behind the test is in at least six or
eight cases, including Sherbert and Yoder. Mr. Miller offered to
provide that language, which he said he had provided to Pastor
Joseph Storey.
Number 1871
MR. MILLER continued. Prior to taking this position [executive
director], he was an attorney for the District of Columbia
government dealing primarily with lawsuits brought by prisoners.
He understands that there is concern about prisoners in Alaska and
their abuse of this bill. In that regard, he assured committee
members that under the "Limited Freedom Restoration Act" between
1993 and 1997, there was no significant increase of litigation
relating to the religious freedom of prisoners. Information
provided by attorneys general's offices in other states showed that
prisoner religious freedom claims increased by only about three and
a half cases in each state for each year that RFRA was in force.
"We" carried out an independent study of the Lexis legal database,
Mr. Miller said, which showed an increase of only about one and a
half reported decisions per year during that same period.
MR. MILLER noted that he was a coauthor of a paper titled "Prisoner
Claims for Religious Freedoms of state RFRAs," published in the
U.C. Davis Law Review. In researching about Alaska, there were no
reported decisions brought by prisoners during the time that RFRA
was in effect. He thinks, therefore, that there is no supporting
evidence for any claim that prisoners are going to abuse or bring
frivolous lawsuits. And, frankly, that concern is taken care of by
the federal Prison Litigation Reform Act passed in 1996, which
"essentially requires prisoners to take filing fees." Mr. Miller
further explained, "It has a three-strikes-and-you're-out provision
regarding frivolous suits. The courts screen pro se prisoner
filings. And that's the right way to cut down on frivolous
lawsuits, rather than targeting religion for a special disability."
Number 2011
MR. MILLER related his concern that although HB 387 allows for
damages and injunctive relief, there is no provision for attorney
fees. As a practical matter, he noted, most religious freedom
claims do not result in damage awards; they are usually about
injunctions to allow a person his/her religious freedom, and often
a monetary damage cannot be shown. Therefore, if there isn't an
attorney fees provision for prevailing claims, as a practical
matter, it is often impossible to bring a lawsuit because it is
very difficult for a pro se plaintiff to navigate the federal or
state system; involving an attorney requires him/her to be paid.
It also penalizes the individual because larger institutions
protect their religious interests, but individuals and small groups
cannot. That hardly seems fair. Under the First Amendment and the
federal RFRA, attorney fees were allowed for prevailing parties, he
noted. In the end, the religious liberty given to prisoners is a
measure of religious liberty that "we" possess. If "we" can exempt
certain groups from the coverage of religious freedom, "in a sense
we're saying that religious liberty isn't a God-given right;
rather, it's a state policy that we extend, or remove, from groups
that fall into the state's disfavor at some point in time."
Number 2150
REPRESENTATIVE CROFT requested that Mr. Miller stay online in case
there were questions later.
Number 2176
ED KRAFT testified via teleconference from an off-net site in
Anchorage. He specified that he agrees with what Mr. Miller had
just said. As to the objection that the bill would infringe upon
the civil rights of others, he doesn't believe that is valid. The
bill clearly states, "as long as the legislative action does not
interfere with the right of other persons." Mr. Kraft said he
feels that should the bill be enacted into law, it would strengthen
the cause of religious freedom in Alaska. He urged the committee
members to support the bill, without amendments.
Number 2273
JIMMIE STORY testified via teleconference from Sitka. She told
members that she supports HB 387 and wishes to see a "sane bill"
pass.
Number 2330
KEN NELSON testified via teleconference from Sitka. He specified
that he supports HB 387 as written, and he indicated that Mr.
Miller had very eloquently expressed his own feelings.
Number 2357
GAYLE A. KILDAL testified via teleconference from Glennallen,
stating that she supports HB 387 without any amendments.
Number 2397
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union
[AkCLU], testified via teleconference from Anchorage.
TAPE 00-58, SIDE A
Number 0001
MS. RUDINGER first listed the materials that she had provided to
the committee members with her memorandum dated April 12, 2000.
[The following list is taken verbatim from the memorandum]:
1) 1-page summary of amendments suggested by AkCLU;
2) 11-page AkCLU position paper on CSHB 387;
3) Two 2-page letters by NAACP in opposition to federal RLPA
unless civil rights are protected;
4) 2-page testimony by Texas Representative Scott Hochberg
regarding the civil rights amendment to the Texas RFRA,
signed into law by Gov. George W. Bush;
5) 2-page letter from National Fair Housing Alliance urging
civil rights amendment in federal RLPA;
6) 2-page letter from Coalition for the Free Exercise of
Religion opposing federal RLPA because it could
jeopardize civil rights laws;
7) 1-page letter from the Episcopal Church withdrawing
support for federal RLPA because of civil rights
concerns;
8) 3-page letter from a consortium of church organizations
(United Church of Christ, Friends Committee on National
Legislation, United Synagogues of Conservative Judaism,
Evangelical Lutheran Church in America, and Union of
American Hebrew Congregations) opposing federal RLPA
without civil rights protections; and
9) 4-page Jewish Telegraphic Agency on-line article citing
withdrawal of support for federal RLPA by Baptist and
Jewish religious groups.
MS. RUDINGER pointed out that when she had drafted her position
paper, she had suggested amending subsection (d). That, however,
is now subsection (c). She asked members to keep that in mind when
reading the material that she had provided.
MS. RUDINGER informed members that [Texas] Representative Scott
Hochberg had offered an amendment that the AkCLU supports and which
is similar to what they are offering in the form of an amendment.
Texas, she explained, is the only state that has passed a RFRA
since the Boerne case; that bill was signed into law by [Texas]
Governor George W. Bush just last year. Representative Hochberg
points out in his letter to the chairman and members of the U.S.
Senate Judiciary Committee that RFRA was intended to be a shield to
protect a person's free exercise from government infringement; it
was never intended to be a sword with which one individual could
injure the rights of others. The AkCLU, she said, agrees with that
wholly.
MS. RUDINGER pointed out that the information-containing letters
are from a variety of religious organizations, not left-wing
organizations as previous testimony has indicated. She mentioned
the following organizations: Episcopalians; a Coalition for the
Free Exercise of Religion; the United Church of Christ; Friends
Committee on National Legislation, a Quaker organization; the
United Synagogues of Conservative Judaism; Evangelical Lutheran
Church in America; the Union of American Hebrew Congregations; and
several other Jewish and Baptist organizations.
MS. RUDINGER said these organizations have pulled out of supporting
the federal RLPA [Religious Liberty Protection Act] unless civil
rights are protected. Rabbi [Harry] Rosenfeld was correct in his
assertion that many religious groups have pulled out, she said, and
explained why. The ACLU nationally was part of the coalition that
supported the original RFRA; they had helped form the coalition and
worked hard to pass the Act. Historically, the ACLU and the Alaska
affiliate [AkCLU] support protecting the free exercise of religion
from the government. In that regard, the ACLU has repeatedly had
to step in and defend the rights of students to have a Bible club;
the rights of students to say grace before they eat lunch in the
school cafeteria; and the rights of a myriad of people, including
students, to wear a cross at school.
MS. RUDINGER also noted that the ACLU is currently involved with a
free exercise case in Florida where a city wants to remove all
vertical religious symbols from the cemetery. In a nutshell, she
said, the ACLU/AkCLU believes that a person has the right to
exercise a religion freely as long as someone else isn't hurt in
the process. In that regard, the AkCLU is proposing an amendment
that would clarify subsection (c) to make it clear that the bill
would not create or eliminate any current defenses to any
discrimination laws or civil rights laws. This, she said, is very
important because civil rights protect religious exercise. State
and federal anti-discrimination laws not only protect people from
being discriminated against on the basis of race, sex, national
origin, disability or age, but they also protect people from being
discriminated against on the basis of their religion. The ACLU
would expect to see claims of exemption, in relation to
religion-to-religion discrimination, if a federal RLPA were passed.
MS. RUDINGER cited cases relating to religion-to-religion
discrimination. In Chap (ph) v. Bowman (ph) (Wisconsin), Mr.
Bowman (ph) had refused to sell his house to Mr. Chap (ph) - who
was ready to provide cash on the spot - because Mr. Chap (ph) would
not say that he had chosen Jesus as his savior. Eventually Mr.
Bowman (ph) was enjoined from selling the house to anyone other
than Mr. Chap (ph). There is also case law out of Ohio in which a
secular country club had made available summer bungalows only to
Catholics; they claimed religious exemption but were unsuccessful.
The court found that they couldn't discriminate on the basis of
religion.
MS. RUDINGER said there are landlord-tenant situations in which the
[National Fair] Housing Alliance has had to step in. The AkCLU
feels that if their amendment or one similar to that passed in
Texas is incorporated, it would protect religious people who want
to get a job or buy a house from having to answer these kinds of
intrusive questions. Alluding to a document in committee packets
from the NAACP Legal Defense and Educational Fund, Inc., Ms.
Rudinger informed members that the AkCLU also concurs with the
analysis of the NAACP [National Association for the Advancement of
Colored People] that this throws into question whether race
discrimination would be allowed by those claiming religious
exemption. Indeed, she said, there are faiths that claim races
should be kept apart, and which cite biblical justification for
that claim. There also are people who believe that diseases,
everything from cancer to mental disabilities, are God's punishment
for sin.
MS. RUDINGER noted that the Consortium for Citizens with
Disabilities has pulled out of supporting the federal RLPA unless
civil rights laws that protect people from discrimination based on
disability are exempted from its scope. This, she said, is not a
left-wing/gay-rights-oriented type of opposition. Current civil
rights laws in Alaska protect a myriad of different classes, and
the legislature, municipal assemblies and boroughs have enacted
those laws because people with disabilities needed protection. The
legislature, she said, wouldn't draft a law that they felt to be
unnecessary. These laws protect the weakest members of society.
Number 0803
MS. RUDINGER reported that the AkCLU was asked to consult on a case
where two Muslim parents in Anchorage had lost their child to SIDS
[Sudden Infant Death Syndrome]. Current law requires an autopsy
for all SIDS cases. Muslims, however - as well as people of other
faiths - deeply believe that a baby would not go to heaven if its
body was not presented whole unto God. Ms. Rudinger asked members
to imagine the burden on those parents if an autopsy were
performed. In that way, HB 387 would help to protect parents in
that situation and other situations that the AkCLU has had to get
involved in, in protecting individuals from government intrusion.
But in none of those cases where the AkCLU has defended the rights
of religious people to be free of government intrusion has the
exercise of their religion threatened or harmed others. That is
where the line is drawn. Ms. Rudinger closed by saying there is
nothing simple about HB 387. She wished members luck and offered
to answer questions.
Number 0975
MICHAEL J. STARK, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, informed
members that he was asked to testify on behalf of the Department of
Corrections as chief counsel. The bill's sponsor, in prior
committees, had indicated it would maintain the status quo, Mr.
Stark noted; in other words, it would not change the standard by
which burdens on religious rights cases are interpreted by the
courts. Testimony has already indicated that that is not the case,
however, and that there is significant disagreement with regard to
the least restrictive means standard.
MR. STARK explained that the bill says if a person's religious
rights are substantially burdened, the only way the state can
justify doing that is by demonstrating a compelling interest. The
state would then have to go on and show that burdening this
religious right can only be done by the least restrictive means
available; it is that additional step that creates the hardship
from the state's perspective, particularly from the Department of
Corrections' perspective. In that way, the standard of compelling
state interest - the standard in Alaska - is not the standard that
applies in cases regarding prisoners because they are not
law-abiding citizens.
MR. STARK noted that in 1987 the U.S. Supreme Court, in a couple of
different cases [O'Lone v. Shabazz and Turner v. Safley], had
discussed the standards when a governmental agency holding
prisoners is going to affect a fundamental right of a prisoner
including religion; it concluded that a simple showing of a valid
penal reason for burdening the right is enough for the court to
balance the interests of the state and inmates. For example, if
inmates in segregation - "the worst of the worst" - were to ask for
a religious ceremony that includes group participation, the state
would have to show a compelling interest such as the issue of
security in relation to an outbreak of violence.
MR. STARK said under the bill, the state can only burden the
religious right of the inmate by the least restrictive means
possible, which means that the Department of Corrections would have
to provide additional staff to protect against an outbreak of
violence. In that regard, the resources do not exist to satisfy
the least restrictive means. Under the present standard, the court
would look at the compelling state interest in relation to an
outbreak of violence and balance the prisoner's right versus the
state's interest. It would look at other means to restrict the
right, but it would not say "you can only do this if you find the
least restrictive means possible, and if there is a least
restrictive means other than simply prohibiting it, then this bill
requires it." Mr. Stark added, "The present analysis the courts
follow don't require us to go that far and shouldn't. We're
dealing with people that are a threat to us all."
Number 1250
MR. STARK distributed a list of requests for "religion" in the
prisons, one dealing with witchcraft. He explained that there have
been a number of cases where persons who followed witchcraft as
their religion were sex offenders; many of their requests for books
depicted naked women, instructions on how to tie up women in
witchcraft ceremonies, and instructions on making sacred witchcraft
knives to draw blood. Another request demanded religious clothing
such as robes and turbans.
MR. STARK explained that the prison tries to find a balance to
accommodate a religious belief. In the case of the turban, the
prison had asked that the inmate wear it only during his practice.
The prisoner had said "no," however, because his religion required
a turban to be worn all the time. Fortunately, the prisoner was in
minimum custody at the Palmer minimum [security] facility. If he
had been at the maximum-security Spring Creek Correctional Center,
in contrast, the department would not have been able to allow him
to keep his turban because it is too easy to hide a weapon under
it. The same is true for robes and handmade weapons, which are
found all the time. He has personally seen two Bibles hollowed
out, where weapons and other forms of contraband were kept. There
have been requests for candles for religious ceremonies, which
obviously require matches and present a fire hazard. Furthermore,
there have been requests for wine for religious ceremonies when
certainly there is a compelling state interest to prevent inmates
from becoming intoxicated. However, is there a least restrictive
means to prevent its being used inappropriately? If there is
enough staff, it is arguable, Mr. Stark said.
MR. STARK told members that under the standard in HB 387, the
correctional system would have a very serious problem in that
regard. There also is a constant problem with monitoring "pruno,"
a homemade alcoholic beverage from fruit and sugar; in that regard,
allowing an inmate to use wine for a ceremony would only create
more concerns. There have been requests to conduct religious
ceremonies during different time frames, such as "count." In
prisons, he explained, everything shuts down during "count" to make
sure that nobody has escaped, and there might be a compelling state
interest to say "no" and allow for another time.
MR. STARK advised members that a more serious request had dealt
with prisoners who subscribed to the Church of Jesus Christ
Christian, a religion founded in 1946; central to their belief is
that white, Anglo-Saxon Aryans are the superior race. They refused
to participate in any programs, live in housing units, or eat with
members of any other race; however, there is a diversity of races
in the prisons. Mr. Stark noted that there isn't a serious problem
with gangs, but prisons have to be constantly aware of the
possibility. Furthermore, these kinds of requests are more likely
to create gangs; he mentioned riots in prison systems around the
country because of gangs.
MR. STARK noted that there is an excellent chaplain program in the
prison system; they are not trying to stifle religious beliefs. In
fact, there is a strong belief within the Department of Corrections
that religion offers a valuable form of rehabilitation. In that
way, prisons try to accommodate inmates' religious requests, and
there are religious volunteers in all of the institutions around
the state. But there has to be a balancing between the state's
genuine interest and the requests of inmates, some of which are
outlandish. Who would support giving a knife to a prisoner who is
a convicted murderer or sex offender? That is a case in which the
state might prevail in court, but the problem is not simply winning
a case when challenged in court; it is an issue related to the time
and resources needed to litigate a case.
Number 1657
MR. STARK responded to Representative Croft's suggestion that the
federal prisons are not having a problem complying with RFRA; Mr.
Stark said it is true that RFRA was found to be unconstitutional as
it applies to states and municipalities, but not to federal
agencies. However, after discussing the issue with general counsel
for the Federal Bureau of Prisons, there are problems. It is much
more burdensome, time consuming and resource consuming compared to
the pre-Smith standard, which the Alaska Supreme Court follows
today. It seems that Representative Croft is trying to fix
something that isn't broken, Mr. Stark said, particularly in a
prison context. He encouraged the committee members to not support
the bill, especially in a prison context.
Number 1687
CHAIRMAN KOTT announced an at-ease at 3:55 p.m., then called the
meeting back to order at 4:10 p.m.
Number 1712
ANGELA SALERNO, Division of Public Assistance, Department of Health
& Social Services, advised members that the division is concerned
with the language on page 3, line 26, of CSHB 387(HES). The
language read as follows:
... (b) A person may bring a civil action against a state
agency for a violation of this section, and the court may
grant appropriate relief ...
Ms. Salerno said the language allows for a court to grant
appropriate relief, which could make public assistance vulnerable
and result in costly litigation. If, for example, an applicant
claimed that working outside the home was against her religious
beliefs, the eligibility technician would routinely deny the
application because an applicant for public assistance is required
to work outside the home, complete a family self-sufficiency plan,
and outline the steps to be taken to reach self-sufficiency through
work. The division, therefore, is concerned that damages could be
attached at this point of interaction.
Number 1825
REPRESENTATIVE CROFT asked Ms. Salerno whether the division is
worried about the damage to the individual employee, the state or
both.
MS. SALERNO said she is assuming that both could be named in a
civil action.
REPRESENTATIVE CROFT offered to check on it further. The intent is
to not attach individual liability to individual employees, he
explained. The question is: Is the state doing this improperly?
Number 1883
JOSEPH STORY, Government Relations Representative, Northwest
Religious Liberty Association, came before the committee to
testify. The association strongly supports HB 387, he told
members. The first reason relates to the U.S. Supreme Court's
decision in Sherbert v. Verner, which involved a Seventh Day
Adventist member who had been discriminated against, at her place
of employment, on the basis of her firmly held beliefs. The
association takes special interest because the high court ruled
that the state's interest in denying unemployment benefits merely
because Ms. Sherbert would not make herself available for work on
Saturday - her Sabbath day - was insufficiently compelling to
warrant an infringement upon the free exercise of religion.
MR. STORY said the second reason relates to the sponsor's efforts
to restore the compelling state interest test as established in
Sherbert and Yoder. The association appreciates the inclusion of
the twin principle of the least restrictive means established in
Bowen v. Roy, Bob Jones University v. United States, in 1983, and
Thomas v. Review Board, in 1981. It was also a principle stated in
synonymous language in at least six other U.S. Supreme Court cases.
If enacted, HB 387 would effectively protect an individual's right
to free exercise of his/her religious convictions at the state
level and prevent the unnecessary discrimination that occurs in the
public sector, particularly in the workplace. As Associate Justice
Sandra Day O'Connor had stated in the U.S. Supreme Court's decision
in regard to employment division in Oregon v. Smith:
The court made a critical mistake when they failed to
offer convincing evidence to depart from the settled
First Amendment jurisprudence. The fundamental departure
allows states to make criminals' and individuals'
religiously motivated conduct in a way that burdens an
individuals' free exercise of religion. It puts at a
clear disadvantage minority religions and religious
practices when leaving accommodation to the political
process, and enables government to ignore religious
claims altogether, if it suits them, without offering any
compelling justification to support their actions.
MR. STORY continued:
Justice O'Connor also said the following in Smith:
The essence of a free exercise claim is relief from a
burden imposed by government on religious practice or
beliefs, whether the burden is imposed directly, through
laws that prohibit or compel specific religious
practices, or indirectly, through laws that in effect
make abandonment of one's own religion or conformity to
the religious beliefs of others the price of an equal
place in the civil community.
Number 2043
MR. STORY continued. Third, placing the burden on the government
to show a compelling interest in order to protect the greater or
common good is to place an individual's claim to religious freedom
in its rightful place. Thomas Jefferson and James Madison, two of
America's founders, believed that the free exercise of religion was
the most liberal of all of the rights Americans could claim; it was
the one right that placed the greatest trust in the capacity of
private choice, and the one least dependent on positive law. In
other words, it was a right that was considered inalienable. As
Associate Justice O'Connor stated in Smith, "The First Amendment
was enacted precisely to protect the rights of those whose
religious practices are not shared by the majority."
Number 2080
MR. STORY said Smith left the free exercise clause virtually
toothless in all but the rarest of cases. Yet two different groups
have suggested that amendments or carve-outs are necessary, which,
in his opinion, would leave believers statutorily defenseless.
Specifically, the AkCLU has indicated that they support HB 387 with
a friendly amendment exempting civil rights. Call it by any other
name, he said, but that would be a carve-out, a repudiation of the
bedrock of inalienable rights and equal protection of the laws.
The Northwest Religious Liberty Association, a member of the
national Coalition for the Free Exercise of Religion, in that
regard would have to vigorously oppose the Alaska [Religious]
Freedom of Protection Act if it were amended to exclude a class of
religious practices or claims from its protection.
MR. STORY asked: As a matter of principle, should the first
freedom always prevail over anti-discrimination law? No, he
answered. Society's interest in eradicating racial discrimination
will continue to "trump" claims that one's religion compels racist
practices. There is a long history of jurisprudence on that issue.
But neither should the opposite extremes be legislated so that
certain civil rights always "trump" the believer's interest in
religious exercise. That is precisely what the AkCLU's amendment
would do. It would put religious freedom exactly where it is
without this bill - a second-class freedom at best. The AkCLU
states that they want a bill that would not hurt others, but if
their amendment is attached, no one would be hurt except for
sincere religious believers.
MR. STORY said a principal religious freedom protection Act would
apply the same test to all religious practices substantially
burdened by government and leave the courts a case-by-case
application of that uniform test. The explicit and prominent
constitutional regard for free exercise of religion admits of no
exceptions, qualifiers or disclaimers. The first freedom protected
by the Framers in the Bill of Rights is religious freedom,
including protection from government prohibition of the free
exercise of religion. Religious freedom is a civil right, and,
arguably, the foundational and preeminent one upon which all others
depend. If a government will not accommodate a citizen's
fulfillment of his or her obligation to God, then no other human
right is safe from government.
Number 2233
MR. STORY continued. Another carve-out that has been suggested in
an exemption for corrections. As a former acting medical officer
at the Anvil Mountain Correctional Center [Department of
Corrections] in Nome, Mr. Story said he is sympathetic to the
concerns. He is well aware that prisoners are not where they are
because they are "nice." However, he has seen some prisoners
completely change because of religion. With or without HB 387
passing, he asserted, [requests for religious-based practices] will
continue; it is the nature of prisoners. In that regard, he is not
concerned about an increased load of frivolous litigation; he
doesn't think that would happen because the national RFRA has been
governing the state from 1993 to 1997, as well as all 49 other
states.
MR. STORY said the statistics nationwide indicate one and a half
RFRA decisions per year per state. In Alaska during the four-year
period that the law applied, there were 2,307 civil cases in total,
of which 387 were prisoner-related civil cases - 16.8 percent of
the total. In addition, there was 155 total prisoner civil rights
cases - 6.7 percent of the total civil cases or 40.1 percent of
the total prisoner civil cases. Furthermore, there were two RFRA
cases - less than 1/10 of 1 percent of the total. Given the
statistics, he is concerned that unfounded, unsupported
emotionalism would wreck a perfectly good bill because one
amendment paves the way for others. He strongly recommends
accepting the bill without amendments. A good example is the state
of Texas where one carve-out led to another and another, he said,
pointing out that Idaho just passed a state RFRA.
MR. STORY continued. The association doesn't want anyone to get
hurt, he said, but they aren't so naive as to believe that both
parties in any litigation would always come out on top. The
association simply wants religious believers to have an even
playing field. A person should have the opportunity to practice
his/her religion as with any other civil right. This is a law with
a track record of at least 27 years of U.S. Supreme Court tests of
compelling interest and least restrictive means between various
civil rights, and even between religions. Under nearly four years
of federal statutory regulations, it is possible to see the
probable impact on corrections. Mr. Story again asked the
committee to oppose any carve-out amendments to HB 387 and to
support the bill without exemptions.
Number 2427
ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections,
Division of Family and Youth Services, Department of Health &
Social Services, came before the committee to testify. His concern
is in relation to jousting at shadows, he said. On the one hand,
attorneys have indicated this is the practice in place today. His
attorneys, on the other hand, have indicated that HB 387 would
raise the bar. He echoes the concerns of Ms. Angela Salerno in
relation to civil liability, he said, citing the following example:
A young person fresh out of college is working as a youth
counselor, trying to rehabilitate juvenile delinquents.
Some smart aleck gets out of bed at 10:30 at night and
says, "I want to light my candle, and it is time for me
to do my prayers." And the youth counselor says,
"Nonsense, go back to bed." The kid says, "OK," gets up
the next morning, and starts a series of actions that
claim the youth counselor violated the right to exercise
his religious freedoms.
MR. BUTTCANE specified that he is concerned about the civil
liability issues related to municipalities, school and state
agencies.
TAPE 00-58, SIDE B
Number 0001
MR. BUTTCANE conveyed concern about having his youth counselors
make the best decisions that they can at the moment, and yet bear
civil responsibility on behalf of the whole state of Alaska in
infringing upon some religious act or right that a young person in
the youth corrections system has. He asked committee members to
take a look at his concern. He noted that the bill sponsor had
indicated earlier that that is not his intent, however.
Number 0036
MR. MILLER [Executive Director, Council on Religious Freedom]
testified again, saying he thinks the language is clear in that a
claim is to be brought against a school board, school district or
municipality, not an individual. The law that he is familiar with
would not allow for individual liability, Mr. Miller said. He
endorsed Pastor [Joseph] Story's testimony in relation to prisoners
and civil rights. He also noted that the attorney for the
Department of Corrections [Michael J. Stark] was technically
correct in that the religious freedom standard for prisoners was
lower prior to Smith. O'Lone v. Shabazz prefigured the loss of
religious liberty that was experienced in Smith, which in a way
that underscores his concern. At the federal level, he noted,
prisoners first lost their civil rights, and most did not pay
attention; and then, three to four years later, that same standard
was extended to everybody else, which is what he is trying to avoid
happening with HB 387.
MR. MILLER told members, "If we exempt prisoners, we create a
different standard. We essentially set out something that we are
in fact willing to extend to others." He noted that Patrick Story
had eloquently stated that between 1993 and 1997 there were no
cases that caused security concerns or problems in relation to
prisoners and religious claims, even though Mr. Stark had listed a
series of claims by prisoners. Mr. Miller called the discussion of
the claims modest, saying he has seen claims relating to nightly
steak dinners, access to drugs and ritual sex. But what was not
stated was that all of those claims are routinely denied. In other
words, Mr. Stark had cited claims but not cases or decisions in
which the security or operation of the prison had been compromised.
The reason is that there aren't any cases to cite. In that regard,
the phrase "jousting at shadows" is a good one for describing many
of the complaints, including the civil rights complaints.
MR. MILLER said race discrimination has never been an issue, but it
certainly has been raised as a defense. The courts have always
said that race discrimination is a compelling interest. He cited
Bob Jones University [v. United States] as an example. He said the
essential question for the committee relates to whether religion is
an equal among fundamental rights or a "second cousin" to those
rights. He explained:
Because any exemption for other kinds of laws, for civil
rights laws, essentially says we're not going to weigh;
we're not to have a balancing test. We're going to allow
some other interest to always "trump" the religious
interest. And I think that's the extreme that Pastor
[Joseph] Story and I are trying ... to avoid here.
Number 0173
MR. MILLER continued. He noted that Texas [Monthly, Inc. v.
Bullock, 489 U.S. 1 (1989)] has been miscited as being the only
case in which a state RFRA has been passed since the Boerne case
came down. That is not true, he said. State RFRAs have been
passed in Illinois, Florida, South Carolina, Alabama and Idaho; one
is pending in New Mexico. Texas, however, is the only state to
pass a RFRA with a civil rights exemption. As Pastor Joseph
[Story] has accurately pointed out, when the exemption was added it
came with a slew of other exemptions, such as prisoner exemptions.
In that way, it got the bill off to a very bad start, and, in fact,
ended up being opposed by many groups, including the Council on
Religious Freedom. He thanked members for their time and wished
them the best in dealing with HB 387.
Number 0219
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed the meeting to public testimony.
REPRESENTATIVE CROFT offered closing remarks. He said there was a
lot of concern, when the U.S. Supreme Court established the
precedent, that it was going to be horrible and unworkable. It is
difficult to worry about these types of conjectural "things," he
said, but it has been a standard that works. It works currently in
federal prisons. It also has worked, under varying degrees of
interpretation, for the 30-odd years since the decisions in Yoder
and Sherbert.
REPRESENTATIVE CROFT said he had found a March 31, 2000, federal
district court case that applied the federal RFRA in the prison
context, applying the compelling state interest and the least
restrictive means; in this case, prisoners had claimed they didn't
have to shave and cut their hair because it was against their
religion, even though there was a prison policy requiring them to
do so. The court had upheld the restriction. In that regard, the
idea that courts and prison systems cannot accommodate it is simply
not true, he said, then he read the following:
The court is mindful of the supreme court's
pronouncements regarding the deference due to the
judgment of prison administrators. The Senate Committee
report on RFRA pointedly refers to this deference and
states, "The committee expects that the courts will
continue the tradition of giving due deference to the
experience and expertise of prison and jail
administrators."
REPRESENTATIVE CROFT stated:
I expect, and put on the record here today, the same
thing. I do not think the "parade of horribles" is going
to come true in the prison context. And I found the
point that was made just here recently very telling. I
mean, what happened first in the federal court is they
essentially eliminated or greatly reduced the ...
religious rights of prisoners. And that's an easy step
to take, and nobody noticed, in effect. And then came on
the heels of that, from the late '80s, development that
did that. 1990, they took it away for everybody. And I
... do worry that's the kind of thing to watch for, and
another reason that I oppose carve-outs on either side.
I think most often, like this case shows, even under a
compelling state interest, even under a least restrictive
means, that you're gonna be able to show that prison
officials have a wide discretion because of the prison
system and the dangers inherent there. And, similarly,
most of the time in civil rights you'll find a compelling
state interest because there is a compelling interest in
eliminating racial discrimination and others. And so I
think that the bill imposes the right standard. I think
there are a lot of people who have general worries about
it, but they haven't shaken my belief that it's the
proper course and even the proper course without
amending.
Number 0394
CHAIRMAN KOTT asked Representative Croft what his "take" is on the
issue surrounding the concerns relating to individual civil
liability.
REPRESENTATIVE CROFT responded that the bill refers to a school
board, school district, municipality or state agency, which can
only act through individuals as agents. In that regard, he
believes that an individual may be named in court papers, but he
doesn't think that a person acting as an agent would be
individually liable.
Number 0464
REPRESENTATIVE MURKOWSKI remarked that she had been prepared to
introduce an amendment to provide a carve-out for civil rights, but
now she is concerned that it would put civil rights ahead of any
religious rights.
Number 0531
REPRESENTATIVE KERTTULA said her fear of the bill comes from the
exact opposite end of the spectrum. She asked Mr. Royce whether a
carve-out really solves the problems.
MR. ROYCE replied that the committee has to be mindful of Article
1, Section 1, of the state constitution, which provides that all
Alaskans are entitled to equal rights. There is no question that
there is a constitutional right to the free exercise of religion as
found in Section 4 [of Article I]. There are also protections for
race, age, disability, pregnancy and gender. He therefore can't
answer the question in relation to shifting the balance, but it
could be a potential area for litigation.
Number 0592
REPRESENTATIVE CROFT made a motion to move HB 387 [CSHB 387(HES)]
out of committee with individual recommendations and the attached
indeterminate fiscal notes.
Number 0608
REPRESENTATIVE KERTTULA objected. She explained that she had sat
through hearings on HB 387 in two committees and has heard the
heartfelt testimony of concern on both sides. She has also worked
with one of the supreme court justices and knows all of them well.
In that regard, the rights already exists, and the state supreme
court has shown no sign of changing them. She also noted that HB
387 would cause confusion and litigation, and it could easily be
amended. It may also mean that religious rights might always
"trump" other rights. She therefore feels strongly that this is a
poor move.
Number 0661
REPRESENTATIVE CROFT responded that he would have bet "big" money
in 1989 if he had been asked to guess whether the U.S. Supreme
Court was going to go back on at least 30 years of tradition in
protection of religious freedom. In that regard, he doesn't know
what the Alaska Supreme Court is going to do. He believes,
therefore, that it is appropriate to codify in statute a protection
for religious freedom. He hopes that there isn't a significant
departure from the Alaska Supreme Court practice for a long time,
he concluded, but if that ever changes, this level of protection
would be in statute.
CHAIRMAN KOTT requested a roll call vote. Voting to move HB 387
[CSHB 387(HES)] from committee were Representatives James,
Murkowski, Croft, Green and Kott. Voting against it was
Representative Kerttula. Therefore, by a vote of 5-1, CSHB
387(HES) was moved from the House Judiciary Standing Committee.
ADJOURNMENT
Number 0730
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:46 p.m.
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