02/09/2012 01:00 PM House MILITARY & VETERANS' AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB281 | |
| HB234 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 234 | TELECONFERENCED | |
| *+ | HB 281 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON MILITARY AND VETERANS' AFFAIRS
February 9, 2012
1:08 p.m.
MEMBERS PRESENT
Representative Dan Saddler, Co-Chair
Representative Steve Thompson, Co-Chair
Representative Carl Gatto, Vice Chair
Representative Alan Austerman
Representative Bob Lynn
Representative Sharon Cissna
Representative Bob Miller
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Bill Thomas, Jr.
COMMITTEE CALENDAR
HOUSE BILL NO. 281
"An Act establishing March 30 of each year as Welcome Home
Vietnam Veterans Day."
- MOVED HB 281 OUT OF COMMITTEE
HOUSE BILL NO. 234
"An Act relating to picketing or protests at a funeral."
- MOVED HB 234 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 281
SHORT TITLE: WELCOME HOME VIETNAM VETERANS DAY
SPONSOR(s): REPRESENTATIVE(s) THOMAS
01/17/12 (H) READ THE FIRST TIME - REFERRALS
01/17/12 (H) MLV
02/09/12 (H) MLV AT 1:00 PM CAPITOL 120
BILL: HB 234
SHORT TITLE: PICKETING AND PROTESTS AT FUNERALS
SPONSOR(s): REPRESENTATIVE(s) THOMAS
04/09/11 (H) READ THE FIRST TIME - REFERRALS
04/09/11 (H) MLV, JUD
02/09/12 (H) MLV AT 1:00 PM CAPITOL 120
WITNESS REGISTER
AARON SCHROEDER, Staff
Representative Bill Thomas, Jr.
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 281 on behalf of
Representative Thomas, prime sponsor.
REPRESENTATIVE BILL THOMAS, JR.
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking as the prime sponsor, provided
testimony and answered questions during the hearing on HB 281.
DOUG GARDNER, Director
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
234.
JEFFREY MITTMAN, Executive Director
American Civil Liberties Union of Alaska (ACLU of Alaska)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 234 and
answered questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Answered a question during the hearing on
HB 234.
ACTION NARRATIVE
1:08:49 PM
CO-CHAIR STEVE THOMPSON called the House Special Committee on
Military and Veterans' Affairs meeting to order at 1:08 p.m.
Representatives Thompson, Saddler, Miller, Cissna, Lynn, and
Gatto were present at the call to order. Representative
Austerman arrived as the meeting was in progress.
Representative Thomas was also present.
HB 281-WELCOME HOME VIETNAM VETERANS DAY
1:09:44 PM
CO-CHAIR THOMPSON announced that the first order of business
would be HOUSE BILL NO. 281, "An Act establishing March 30 of
each year as Welcome Home Vietnam Veterans Day."
1:09:54 PM
AARON SCHROEDER, Staff, Representative Bill Thomas, Jr., Alaska
State Legislature, introduced HB 281 on behalf of Representative
Thomas, prime sponsor. Mr. Schroeder informed the committee
that last year - on the 30th anniversary of the withdrawal of
U.S. combat and combat support units from Vietnam - the U.S.
Senate designated March 30 as Welcome Home Vietnam Veterans Day.
House Bill 281 proposes that March 30 of each year would be
designated as Welcome Home Vietnam Veterans Day, to be observed
by suitable observances and exercises by civic groups and the
invited public. Mr. Schroeder added that the bill does not call
for a state holiday.
1:11:06 PM
REPRESENTATIVE LYNN said he was in Vietnam on ceasefire day,
March 30, 1973, and he will remember it for a long, long time.
CO-CHAIR SADDLER asked what kinds of observances and activities
would be appropriate on this day.
MR. SCHROEDER suggested that groups such as the Veterans of
Foreign Wars (VFW) would hold services, and that organizations
of younger troops would also want to acknowledge the services of
Vietnam vets to the veterans' communities.
1:12:39 PM
CO-CHAIR SADDLER encouraged observers to be happy and upbeat
when recognizing this day.
CO-CHAIR THOMPSON opened public testimony.
1:13:25 PM
REPRESENTATIVE BILL THOMAS, JR., Alaska State Legislature, prime
sponsor of HB 281, stated he is one of 2,500,000 soldiers who
served in-country during the Vietnam War, including
Representative Lynn, Representative Gruenberg, and the late
Representative Richard Foster. He noted that of the 58,272
soldiers who died in the war many were young; in fact, 25,000 of
those who died were 20 years old or younger and 57 soldiers from
Alaska were killed in action. Representative Thomas said the
bill is not just to honor those who served in-country, but is
for all of the veterans in all branches of the services who
served during the time period from 1964 to 1973. He related a
few of his experiences during that time and reminded the
committee of the suffering of surviving family members and that
of returning soldiers who are afflicted with post-traumatic
stress syndrome. He recalled the day he returned to the U.S. in
1968: There were wire screens on the windows of the buses and
the back door was welded shut because of the protesters
surrounding Travis Air Force Base, and there were more
protesters at the Presidio. He was very upset and angry on what
should have been the happiest day of his life. Representative
Thomas noted that "the attitude is a little different" for
veterans returning now. In addition, he opined the military
from any war should be buried with honors, with no protesting
allowed, and assured the committee that others feel just as
strongly.
1:21:27 PM
REPRESENTATIVE CISSNA observed that Alaska has the highest
number of veterans per capita in the nation. She asked how many
veterans in Alaska are veterans of the Vietnam War.
REPRESENTATIVE THOMAS said he was unsure, but in his home
village 1 percent of the population was serving in Vietnam at
one time. The percentage of Vietnam-era veterans in Hoonah is
approximately 40 percent. The percentages in Native communities
are very high because many of the residents were drafted.
1:23:23 PM
REPRESENTATIVE CISSNA said the nation has changed in its
understanding of the Vietnam War and many veterans sacrificed
their lives or their quality of life; in fact, as veterans age
they have much greater needs. She expressed her understanding
that Alaskans - especially rural Alaskans - have played a bigger
role in the U.S. military than the residents of other states.
1:25:02 PM
REPRESENTATIVE THOMAS agreed. His family includes many veterans
of the Army and the National Guard, and they are very patriotic.
Veterans are treated with respect now, but when he came home
he threw his medals and uniform in the trash. Now, however, he
said he is very proud and celebrates with other veterans.
CO-CHAIR THOMPSON said he and others offer to pay for troops'
meals.
REPRESENTATIVE THOMAS said when he encounters service members in
airports he welcomes them home.
1:27:28 PM
REPRESENTATIVE LYNN noted there is a tradition among Vietnam
veterans to welcome troops home now. He shared some of his
experiences while serving in the military, and expressed his
strong support for the bill.
REPRESENTATIVE THOMAS agreed.
1:30:00 PM
CO-CHAIR SADDLER asked whether the country has changed enough so
that this type of bill will not be necessary for those who
return from other conflicts.
REPRESENTATIVE THOMAS said each conflict is different and
deserves its own honor.
CO-CHAIR THOMPSON determined that no one else wished to testify.
1:31:49 PM
CO-CHAIR SADDLER moved to report HB 281, identified as Version
27-LS0791\M, out of committee with individual recommendations
and the accompanying zero fiscal notes. There being no
objection, HB 281 was reported from the House Special Committee
on Military and Veterans' Affairs.
1:32:50 PM
The committee took an at-ease from 1:32 p.m. to l:35 p.m.
1:35:54 PM
HB 234-PICKETING AND PROTESTS AT FUNERALS
1:36:05 PM
CO-CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 234, "An Act relating to picketing or
protests at a funeral."
1:36:12 PM
AARON SCHROEDER, staff, Representative Bill Thomas, Jr., Alaska
State Legislature, introduced HB 234 on behalf of Representative
Thomas, prime sponsor. Mr. Schroeder said since 1998 funeral
picketing has gained popularity with groups hoping to publicize
their political agenda. Currently the state does not have
guidelines for such cases, and HB 234 would bring Alaska in line
with 46 other states by setting guidelines for a 150-foot buffer
from the boundary of a church, cemetery, or funeral home one
hour before, during, and one hour after a funeral service.
Further, members attending the funeral are members of a captive
audience that warrant protection. In the case of a protest,
families are expected to conduct themselves in a certain manner,
and the sponsors of the bill expect the same of protestors.
REPRESENTATIVE LYNN said he supports the bill. However, he
questioned the choice of the distance of 150 feet when federal
law banning protests at national cemeteries sets the distance
from 150 feet to 300 feet. Other legislation indicates a buffer
zone ranging from 150 feet to 1,500 feet.
1:38:15 PM
MR. SCHROEDER explained that there are two parts to the federal
law; one part sets a 300-foot buffer around the boundary of a
cemetery, and the second part sets a 150-foot buffer around the
funeral procession as it travels along a route. In order to
make the "captive audience" argument, "there has to be a certain
amount of pressure there, they have to be close to make that
legal argument."
1:39:05 PM
REPRESENTATIVE LYNN expressed his belief that the bill does not
include a public street or roadway - where the funeral
procession goes from the mortuary to the cemetery - and said
"depending on where the lot is, it could be a long drive from
the entrance of the cemetery to the gravesite." He asked
whether the road could be inside the cemetery.
MR. SCHROEDER explained that the 150-foot distance applies to
the boundary of the funeral home, cemetery, or church. In
further response to Representative Lynn, he said "the perimeter,
correct."
1:39:58 PM
REPRESENTATIVE LYNN asked for an estimate of the distance, and
opined "that's pretty close if I'm grieving for a loved one, and
some clown is over there."
MR. SCHROEDER suggested that if the committee is interested in
extending the buffer zone it may seek advice from the director
of Legislative Legal and Research Services, Legislative Affairs
Agency.
1:40:54 PM
CO-CHAIR SADDLER referred to page 3, lines 18 and 19 of the bill
and read the definition of picketing:
, engaged in by a person, that disrupt or are
undertaken to disturb a funeral.
CO-CHAIR SADDLER cautioned that could include "some element of
what someone's state of mind or intent is," and the person may
claim he or she is not trying to disturb a funeral. He
explained further that some groups that engage in protests at
funerals may not be seeking to disturb the funeral, but to get
attention and publicity. This language in the bill may allow
them to enter the buffer zone.
1:42:56 PM
MR. SCHROEDER clarified that the drafter of the bill inserted
this language in order to help law enforcement determine what
picketing means. He deferred to Mr. Gardner for further
response.
1:43:28 PM
DOUG GARDNER, Director, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), restated Co-Chair Saddler's
concern about mental state: whether a person may argue that they
were not trying to disrupt the funeral itself. He advised that
when the legislature is drafting statutes that affect First
Amendment rights, it must look to other cases to provide
appropriate language. In 2008, the Phelps-Roper v. Strickland
case specifically provided for this section in the proposed
bill, in that it described other protest activities meant to
disrupt or disturb a funeral or burial service. Thus, HB 234
does not restrict all activities, and the mental state of a
person is addressed on page 2, lines 30 and 31, which read:
(8) the person knowingly engages in picketing with
reckless disregard that the picketing occurs
MR. GARDNER continued to explain that "knowingly engages in"
demonstrates mental state and the "reckless disregard" is with
respect to the disruption to the funeral. Further, in order for
the state to establish a significant state interest, the state
has to have an interest in protecting from certain types of
conduct, and the statute would restrict disruption, even though
the disruption could be considered a positive statement or a
negative one by different parties. He said, "The statute
attempts to draw a narrow, narrow border around the types of
activities that are being regulated, [and] in doing so, to
comply with the First Amendment requirements that this not be
overly broad."
1:47:40 PM
CO-CHAIR SADDLER surmised the existing language has been upheld
by the U.S. Supreme Court.
MR. GARDNER pointed out that the U.S. Supreme Court has not
dealt with a state criminal statute regulating picketing at
funerals. However, the U.S. Court of Appeals for the Sixth and
Eighth Circuits are split on this issue, thus the language has
passed constitutional muster, and the definition was included in
the proposed bill.
1:49:08 PM
CO-CHAIR SADDLER asked whether "reckless" presumes activity
within the geographic 150-foot limit and during the
chronological limits of one hour before and one hour after, so -
outside of those parameters - reckless activities are allowed.
MR. GARDNER confirmed that the statute only attempts to regulate
time, place, and manner. However, other laws or ordinances may
be applicable to behavior outside the reach of the statute.
1:50:38 PM
CO-CHAIR SADDLER asked for guidelines as to the "numerical
outside limits" of buffer zones that would be upheld by the
courts.
MR. GARDNER recalled 300-foot buffer zones "received a
considerable amount of scrutiny;" however, that distance seemed
too far for some small Alaska communities and 150 feet was
deemed appropriate.
REPRESENTATIVE LYNN asked whether egregious or insulting signs
are disruptive.
1:52:40 PM
MR. GARDNER opined that the bill as drafted would hold that
language on signs and picketing would fit in the definition of
disrupting a funeral. The concept of the bill is to allow
attendees to have a funeral in peace without interference from
people on either side of an issue, and signs "would fit within
the statute."
1:54:32 PM
REPRESENTATIVE LYNN asked whether there is a criminal equivalent
to suing for emotional distress.
MR. GARDNER said emotional distress is a civil matter not
addressed by criminal law.
REPRESENTATIVE CISSNA agreed with Representative Lynn on the
horror of those who abuse the grieving, but expressed her
concern for the loss of constitutional rights. She noted that
there may be activities in a community that are "very loud or
very bold," and asked for a way to judge the distance of the
buffer zone.
1:57:01 PM
CO-CHAIR THOMPSON stated that 150 feet is one-half of the length
of a football field.
MR. GARDNER, in response to Representative Cissna's question
about how loud noise would be at the 150-foot distance, said he
did not know what "a decision-maker would conclude is
disruptive." For example, someone could be using a "giant
bullhorn mounted on the top of a car" or talking in a normal
voice.
REPRESENTATIVE CISSNA pointed out that respect is the important
issue and urged the consideration of reasonable definitions.
REPRESENTATIVE GATTO gave the example of a person attempting to
speak at a funeral and being prevented by others who are making
noise. He asked which party holds the First Amendment right to
be heard. In response to Mr. Gardner's request for
clarification, he asked, "When am I allowed to exercise my free
speech, unhindered by their free speech?"
MR. GARDNER said, " ... the remedy for speech that you don't
like is speech of your own ... but I don't know how to answer
that question in the context of this bill."
2:00:51 PM
REPRESENTATIVE GATTO surmised the 150-foot distance is a
sufficient buffer that will protect a speaker's free speech
until the noise level and the size of the signs are increased.
In that case the 150-foot buffer becomes meaningless, and the
quandary is, "When are [the original speaker's] rights violated,
that's clear to anyone else?"
2:02:42 PM
MR. GARDNER explained that these are classic First Amendment
questions about how to tailor a statute to serve the interests
of the government and yet leave channels of communication that
are protected by the First Amendment. The balance for the
protection of First Amendment rights is found in the history of
court decisions, and for the proposed bill the range of distance
fell between 300 feet and 150 feet.
REPRESENTATIVE MILLER said he strongly supports the intent of
the bill, but asked whether this is really a problem in Alaska.
2:04:09 PM
MR. SCHROEDER responded that he was not aware of any protests in
the state.
REPRESENTATIVE LYNN observed that there are a lot of prospective
laws in Alaska.
2:04:43 PM
CO-CHAIR THOMPSON opened public testimony.
2:04:59 PM
JEFFREY MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), stated that ACLU of Alaska and
he support the intent of the bill which is to allow individuals
who are grieving to do so in a respectful manner. Also, he and
ACLU of Alaska do not support the "incredibly offensive"
protests of the members of the Westboro, Kansas, Baptist Church.
He informed the committee that ACLU of Alaska has a mandate to
protect constitutional freedoms enjoyed by Americans, yet the
protection of constitutional rights is not always easy or
pleasant, as in the case of its defense of the rights of Nazis
in the 1960s. Unfortunately, although the proposed bill
attempts to move in the right direction, his organization
believes there are infirmities such as the definition of
picketing as protest activities. He advised that a court will
define a protest as "actions which express disrespect or
disapproval," and this puts the bill in the realm of "noncontent
neutral legislation." Mr. Mittman reminded the committee that
the U.S. Court of Appeals Eighth Circuit disapproved similar
legislation and the Sixth Circuit approved; however, the U.S.
Supreme Court has clearly indicated its disapproval of a case
regarding the intentional infliction of emotional distress.
Mr. Mittman opined the language in HB 234 broadly defines the
areas protected as churches, mortuaries, funerals, and
cemeteries, and in Anchorage the bill would not be found
content-neutral in time, place, and manner restriction. He
offered to work with the bill drafter and the committee to
remedy the bill.
2:08:49 PM
CO-CHAIR SADDLER asked for the distance between a protester and
a funeral event that would be supported by the courts.
MR. MITTMAN stated that the issue must be broken into two
aspects and analyzed separately: the action of a silent sign
holder may be offensive, but is not disruptive of the funeral;
the action of one far away may "pierce the walls of the church"
with sound and successfully disrupt the conduct of the funeral.
He said distance may not be the best way to determine the
constitutional issues because the courts will protect the rights
of one to conduct a ceremony, but will not protect an individual
from hurtful behavior in a public place.
2:10:46 PM
MR. MITTMAN, in response to Representative Lynn, said an
offensive sign can be avoided or fleeting, so the courts have
determined that it is protected. However, the same message
repeated in a manner to disrupt a ceremony, is not protected.
2:11:48 PM
REPRESENTATIVE LYNN expressed his belief that an offensive sign
is disruptive by its nature.
MR. MITTMAN agreed that the point can be argued, but the U.S.
Supreme Court said this was constitutionally protected.
2:13:06 PM
CO-CHAIR THOMPSON observed that the penalty created by the bill
is that of a misdemeanor of disorderly conduct, which is the
same as 36 other states. However, several states direct that
the second offense is a felony, and Indiana and Michigan
classify the first offense as a felony. He inquired as to
Alaska's penalties for misdemeanor crimes of disorderly conduct.
2:14:25 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, advised that the
penalty for disorderly conduct is a maximum of 10 days in jail
and a $300 fine.
CO-CHAIR SADDLER asked if the bill is passed as drafted, on what
grounds it may be challenged.
2:16:11 PM
MS. CARPENETI said a challenge may arise if someone were
prosecuted for violation of the statute.
MR. GARDNER stated that a challenge may be close to the issues
previously raised by ACLU of Alaska in its written memorandum
found in the committee packet. Although the statute would be
litigated on the particular facts of the situation, the legal
issues that would come up are outlined in the memorandum. He
agreed with Mr. Mittman that the outcome would be up to the
Alaska Supreme Court and whether it is persuaded by the Sixth
Circuit, or the Eighth Circuit, appellate courts. As to the
second question, Mr. Gardner said the weakness of all picketing
cases is the balance between the protection of free speech and
the protection of the interests of people to be free from
interference, while they are a captive audience. The cases
regarding people in the position of a captive audience have
divided the courts, and he opined this could be debated before
the Alaska Supreme Court on whether the captive audience
description should be extended to funeral protests. Precedent
on the captive audience cases has been focused on protest
activities in the home or in abortion clinics, and the final
answer is unknown.
CO-CHAIR THOMPSON determined there was no further public
testimony.
2:19:29 PM
REPRESENTATIVE LYNN offered a conceptual amendment to change
"150 feet" to "300 feet" anywhere it appears in HB 234.
2:19:57 PM
REPRESENTATIVE CISSNA objected for the purpose of discussion.
REPRESENTATIVE CISSNA said her concern is that it specifies more
space than is needed.
REPRESENTATIVE GATTO expressed his concern that changes to the
bill will increase the chance of legal challenges later on.
2:21:49 PM
REPRESENTATIVE AUSTERMAN asked for the sponsor's opinion on the
change to 300 feet.
2:22:08 PM
MR. SCHROEDER advised the sponsor agrees with Representative
Gatto.
CO-CHAIR SADDLER agreed with the intent of the amendment, but
without a firm answer from legal counsel, would not support the
amendment.
REPRESENTATIVE CISSNA maintained her objection.
2:25:47 PM
A roll call vote was taken. Representative Lynn voted in favor
of the conceptual amendment. Representatives Miller, Gatto,
Austerman, Cissna, Saddler, and Thompson voted against it.
Therefore, the conceptual amendment failed by a vote of 1-6.
2:26:04 PM
REPRESENTATIVE MILLER proposed a situation in which a terrorist
is being buried with much ceremony in his town, and suggested he
may want to protest. With the passage of HB 234, he cautioned
that he may lose his right to protest. Representative Miller
said he was not sure if the bill could withstand a challenge.
CO-CHAIR THOMPSON pointed out that a legal protest could take
place.
2:26:33 PM
REPRESENTATIVE LYNN stressed that the bill protects those who
are grieving, and they are innocent of any wrongdoing, no matter
what were the actions of the deceased.
CO-CHAIR SADDLER condemned the activities of the Westboro
Baptist Church and commended the committee's willingness to
study constitutional implications, and its efforts to pass
defensible law. He said he would support the bill.
REPRESENTATIVE LYNN moved to report HB 234, Version 27-LS0627\B,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HB 234 was
reported out of the House Special Committee on Military and
Veterans' Affairs.
2:28:33 PM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Military and Veterans' Affairs meeting was
adjourned at 2:28 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 1 HB 234A- Bill.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 2 HB 234 Sponsor Statement.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 3 Support Doc- HB 234.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 5 HB0281A- Bill.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 281 |
| 6 Supporting_Doc HB 281.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 7 Sponsor Statement_Vietnam Veterans Day- HB 281.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 4 Fiscal Note HB234-LAW-CRIM-02-03-12.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 8 Fiscal Note HB281-DOA-FAC-2-4-12.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 5 HB 234 ACLU Review- Letter of Opposition.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |