Legislature(1999 - 2000)
04/04/2000 08:10 AM House STA
| 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 STATE AFFAIRS STANDING COMMITTEE
April 4, 2000
8:10 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Joe Green
Representative Jim Whitaker
Representative Bill Hudson
Representative Beth Kerttula
Representative Hal Smalley
Representative Scott Ogan
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative John Coghill, Jr.
COMMITTEE CALENDAR
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
HOUSE BILL NO. 438
"An Act permitting certain emergency medical personnel in police
or fire departments or employed by the state troopers to convert
their credited service under the public employees' retirement
system to credited service as peace officers; and providing for
an effective date."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 49
Proposing an amendment to the Constitution of the State of Alaska
to guarantee the permanent fund dividend, to provide for
inflation proofing, and to require a vote of the people before
changing the statutory formula for distribution that existed on
January 1, 2000.
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
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)
3/15/00 2492 (H) REFERRED TO STATE AFFAIRS
3/15/00 2559 (H) COSPONSOR(S): WHITAKER
3/28/00 (H) STA AT 8:00 AM CAPITOL 102
3/28/00 (H) <Bill Postponed>
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
BILL: HB 438
SHORT TITLE: PERS BENEFITS FOR EMERGENCY MEDICAL TECHS
Jrn-Date Jrn-Page Action
3/24/00 2686 (H) READ THE FIRST TIME - REFERRALS
3/24/00 2686 (H) STA, FIN
3/24/00 2686 (H) REFERRED TO STATE AFFAIRS
4/04/00 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
PHILLIP REEVES, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Provided information on HB 387.
ROBERT ROYCE, Assistant Attorney General
Governmental Affairs Section
Civil Division (Anchorage)
Department of Law
1031 W 4th Avenue Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Provided information on HB 387.
MICHAEL STARK, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Provided information on HB 387.
ANGELA SALERNO
Division of Public Assistance
Department of Health and Social Services
PO Box 110640
Juneau, Alaska 99811-0640
POSITION STATEMENT: Provided information on HB 387.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Alaska 99520-1884
POSITION STATEMENT: Commented on HB 387.
PATRICK HARMAN, Legislative Aide
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Presented sponsor statement for HB 438.
BILL CHURCH, Retirement Supervisor
Division of Retirement & Benefits
Department of Administration
PO Box 110203
Juneau, Alaska 99811-0203
POSITION STATEMENT: Answered questions regarding HB 438.
MELVIN VOSTRY, EMS Section
Matanuska-Susitna Department of Public Safety
Wasilla, Alaska
POSITION STATEMENT: Commented on HB 438.
BILL MACKRETH, Paramedic EMT
Mat-Su Borough
Wasilla, Alaska
POSITION STATEMENT: Testified in support of HB 438.
DAVID HULL, Lieutenant
Ketchikan Fire Department
Ketchikan, Alaska
daveh@city.ketchikan.ak.us
POSITION STATEMENT: Commented on HB 438.
MIKE GOODWIN, State Park Peace Officer
Department of Natural Resources
HC52 PO Box 8999
Indian, Alaska 99540-9605
POSITION STATEMENT: Commented on HB 438.
ACTION NARRATIVE
TAPE 00-27, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:10 a.m. Members present at the
call to order were Representatives James, Green, Whitaker,
Kerttula, Smalley and Ogan. Representative Hudson arrived as the
meeting was in progress.
HB 387-FREEDOM OF RELIGION
Number 0047
CHAIR JAMES announced the first order of business is HOUSE BILL
NO. 387, "An Act prohibiting governmental entities, including
municipalities and school districts, from restricting a person's
free exercise of religion."
Number 0208
PHILLIP REEVES, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law, said he is
here to represent the Department of Law. He noted there are a
number of agency representatives who are going to testify
regarding direct impacts they are concerned about under HB 387 on
their specific programs. He explained he is here to speak to two
more general concerns that are relevant to the basic decision of
whether HB 387 should be passed when faced with the specific
problems that other agencies foresee. The Department of Law's
first issue is with the lack of any necessity for placing these
constitutional protections into state statute because the sponsor
of HB 387 has expressly stated that the intent is to establish in
state statute the same protections that the Alaska Supreme Court
has expressly found to be provided under Section 4 of the Alaska
State Constitution. Therefore, HB 387 is intended to merely
duplicate those constitutional rights.
MR. REEVES mentioned that sponsors have suggested that they are
intending to pre-empt any potential movement of the Alaska
Supreme Court in the direction of the U.S. Supreme Court's 1990
decision in Oregon v. Smith. The U.S. Supreme Court determined
that under the U.S. Constitution's protection of freedom of
religion law of general application (in the Smith case, anti-drug
laws) are applicable to restrict religious activities if the
state had a "reasonable basis" for enacting the regulation. He
informed the committee that this stated intention by HB 387
sponsors to pre-empt any change by the Alaska Supreme Court
ignores the fact that the Alaska court has specifically addressed
the U.S. Supreme Court's decision in Smith in the 1994 case of
Swanner v. Anchorage Equal Rights Commission. The Alaska Court
expressly found that the Alaska State Constitution's protection
of freedom of religion is much broader than the U.S.
constitutional protection. Consequently the Alaska Supreme Court
specifically reviewed the Smith decision and rejected it in 1994
and maintained the broader protection for the Alaska State
Constitution. In summation, there is no reasonable basis for
concern that the Alaska Supreme Court is about to narrow the
Alaska State Constitution's protections of freedom of religion;
hence there is no reason to attempt to restate and duplicate the
constitutional protections in statute.
MR. REEVES said that the second problem with HB 387 is the
problem identified by Representative Kerttula at last Thursday's
hearing (3/30/00). The problem is the very real possibility that
the current Alaska constitutional rights to freedom of religion
as defined by the Alaska Supreme Court decision may be
substantially altered by use of terms and language in HB 387 that
are different than the terms and language used in Alaska court
decisions. He stated that the sponsor suggests that HB 387
language will maintain the status quo, but he thinks that the
committee heard suggestions in public testimony that the public
is expecting to get greatly expanded rights or at least an
expansion of their rights to freedom of religion. One example of
direct expansion of rights under HB 387 is the allowance of award
of damages because HB 387, as written, provides that a person may
claim and be awarded "appropriate relief" for a civil claim. He
said that the term "appropriate relief" opens the door for a
court to determine that damages would be appropriate in a
particular case. He explained that this is a substantial
expansion of rights that are available when contesting a law
directly under the Constitution because the Alaska Supreme Court
has specifically determined that unless there is a statutory
right to damages a contest of the constitutionality of a law will
not raise the right to damages against the legislature or local
government.
MR. REEVES commented that HB 387 places potential financial
liability on all state agencies, municipalities, and school
districts even though the defendant agency will typically have no
prior notice or knowledge of the claimed impact on religion of
the challenged law or policy. He mentioned that they have no
prior notice as HB 387 expressly focuses on agency rules of
general applicability that do not intentionally discriminate
against religion. He envisioned that an agency will likely learn
for the first time of the claimed discriminatory impact through
receipt of a court complaint seeking both injunctive relief and
damages for unintended, unforeseen consequences of a law of
general application. He indicated that under HB 387, an agency
thus has no opportunity to address or accommodate the challenged
burden to religion prior to attachment of liability for damages.
MR. REEVES summarized by saying that the Department of Law is
concerned that HB 387 will encourage more litigation against
state and local government agencies by providing a new financial
incentive to sue for damages when claiming that a constitutional
infringement has happened. He emphasized that the Department of
Law is also concerned that HB 387 will encourage more litigation
by providing extensive statutory language that is different from
the court opinions and will lead to many people to believe there
is a broader protection of freedom of religion than under the
current status quo. He acknowledged that the Department of Law
believes that many people may feel that freedom of religion has
been elevated above other civil rights in Alaska and will thus
potentially litigate to establish those new rights.
Number 0693
CHAIR JAMES remarked that freedom of religion, the First
Amendment, is listed as number one in the original Bill of Rights
in the U.S. She asked if civil rights was one of the original
Bill of Rights and inquired as to where civil rights protection
came from.
MR. REEVES replied that he believes civil rights are scattered
throughout the Constitution, but the 14th Amendment specifically
re-states First Amendment rights and additional civil rights
protection and provides that the federal government may enforce
those against the states.
CHAIR JAMES said she would take that to mean that number one is
higher than number fourteen, and it seems to her that maybe
[religion] does have a little higher status than other civil
rights. She believes that the founding fathers did that was
because one of the reasons the founding fathers were here was to
escape intimidation problems regarding religion. She noted that
she is expressing a personal opinion as a lay person and probably
most of the public may feel the same way as she does. She asked
Mr. Reeves to repeat the information about agencies and payment
of damages.
Number 0879
MR. REEVES answered that he believed a number of the agencies
have representatives here who will speak to specific concerns
they have as to claims including damages that may be made against
their programs. He is concerned about the use of different
language in HB 387 other than that used in the Alaska Supreme
Court cases, and of course different language in the
constitutional protection which is the current codified language
because it will lead people to believe that they have broader
rights or different rights than under the current law. This
could lead to additional litigation to determine the extent of
those rights.
Number 0930
CHAIR JAMES asked if Mr. Reeves was saying that if the committee
passes HB 387 as it is currently written with this different
language that HB 387 may not be constitutional.
MR. REEVES replied no but that he was suggesting that the sponsor
has clearly indicated his intent that HB 387 preserve the status
quo and there will be no change in the current protections
provided under the constitutional analysis of the Alaska Supreme
Court. He suggested that the Department of Law has some real
concerns about whether that is the case since the language in the
statute is significantly different than used in the court
decisions. It is difficult to predict exactly how the court will
interpret the statute.
REPRESENTATIVE OGAN said he is not familiar with the Oregon v.
Smith case and asked if Mr. Reeves could provide a thumbnail
sketch of the case for the committee.
Number 1026
MR. REEVES replied that he can give a very broad sketch because
he is not a scholar on the case. He believes that the case
involved an Oregon criminal anti-drug law where some people had
been incarcerated for use of peyote, which they claimed under
their religious practices. The U.S. Supreme Court determined
that since the anti-drug laws were laws of general application
and were not targeting religion, they were applicable to these
gentlemen. He added that the incarcerated people could not
avoid the application of those laws under the federal
constitutional rights of freedom of religion.
REPRESENTATIVE OGAN asked if their prosecution was upheld.
MR. REEVES answered yes, and he believes that it actually had to
do with a state program.
Number 1117
ROBERT ROYCE, Assistant Attorney General, Governmental Affairs
Section, Civil Division (Anchorage), Department of Law, testified
via teleconference from Anchorage to provide information on HB
387. He reminded that committee that Representative Croft at
last Thursday's hearing had asked for the differences between the
current state of the law and the accuracy of the provisions in HB
387. He noted that the Findings section, Sec. 2(2) of HB 387,
provides that under the authority of Emp. Div. v. Smith "the
government no longer had to make reasonable exceptions to general
laws in order to accommodate the religious beliefs of its
citizens." He explained that the quote is not entirely accurate
because the Smith decision itself recognizes three exceptions to
holding that religiously motivated activity does not excuse
compliance with an otherwise valid, neutral and generally
applicable law toward religion.
MR. ROYCE commented that he could briefly address Representative
Ogan's questions regarding the facts of Smith. In the Smith
case, two native Americans used peyote in their religious
ceremonies, and the use of peyote without a prescription was
illegal under Oregon state law. As a result, the native
Americans were fired from their jobs with a private drug
rehabilitation clinic, and they claimed that they were entitled
to a religious exemption from the criminal law for purposes of
obtaining unemployment compensation. He indicated that the U.S.
Supreme Court upheld Oregon's denial of unemployment compensation
to the native Americans holding that the use of peyote, even
though religiously motivated, did not constitutionally entitle
them to a religious exemption to the criminal law under the First
Amendment right to the free exercise of their religion. However,
the court did acknowledge that there were exceptions to its
holding. The first exception is for the so-called hybrid rights
claim or theory recognized in Wisconsin v. Yoder. That case was
brought up last Thursday (3/30/00) and referred to in the sponsor
statement. He remarked that the Yoder case is where the Amish
brought a free exercise claim combined with a substitutive due
process right to direct the upbringing of their children that did
entitle them to religious exemption from the compulsory school
attendance law in Wisconsin. However, the Yoder court did not
reach its decision by applying the rigid legal standard of the
compelling interest test but instead looked to the history of the
Amish religion and their education and decided that there was
really no harm to the state's asserted interest by allowing the
Amish to adhere to their faith. He stated that the Amish
continued to educate their children after the eighth grade, and
they were all productive members of society. The important point
is that Smith did not overrule Wisconsin v. Yoder. He reiterated
that Smith distinguished Yoder on the basis of the hybrid rights
exception, so the sponsor statement that Smith somehow changed
Wisconsin v. Yoder, or retreated from Yoder, is really not
accurate.
MR. ROYCE said that the second exception recognized in the Smith
decision is for laws that are not generally applicable or neutral
toward religion, and HB 387 says that the state may not place a
substantial burden on a person's free exercise of religion,
unless it is in the form of a rule of general applicability and
does not intentionally discriminate against religion or among
religions. Thus, HB 387 says a law is invalid period if it is
not generally applicable toward religion. This provision does
not accurately reflect the status of the law because the U.S.
Supreme Court in Lukumi v. City of Hialeah said that a law that
is even motivated to effect or restrict religious practice is not
automatically rendered unconstitutional, rather there may be
situations where the state can set forth compelling interests to
justify a direct restriction on religious practice. He noted
that Lukumi was a case that was decided after Smith. In that
case, members of the Sanateria religion claimed they had a right
to engage in the ritual of animal sacrifice. He explained that
the city of Hialeah in Florida passed an ordinance that forbid
animal sacrifice for religious rituals within city limits. He
commented that the court held that the compelling interest test
may be applied in situations where the law is not neutral towards
religion so the court struck down the ordinance because the
state's asserted interest in public health and the disposal of
animal carcasses in open public places was under inclusive since
the ordinance did not deal with the disposal of carcasses by
hunters, the slaughter of animals for food or euthanasia for
pets.
MR. ROYCE reiterated that HB 387 does change the law in providing
that any law that intentionally discriminates against religion is
per se invalid even though a state may have sufficient interests
to justify such a law. He mentioned that in one U.S. Supreme
Court case he had read that there are 300 recognized religions in
this country which makes it difficult to foresee exactly what
conduct harmful to state interest can be justified by a
compelling state interest.
MR. ROYCE indicated that the third exception to Smith is in
unemployment cases that do not involve a violation of a criminal
law as a result of religiously motivated activity. He informed
the committee that courts apply a balancing test in situations
where the government conditions the availability of a monetary
benefit or violating one's religious beliefs or practices, but
Smith does not change or retreat from this principle.
Number 1645
MR. ROYCE emphasized that HB 387 requires that if a person can
show a substantial burden on his/her right to free exercise, the
state must demonstrate a compelling governmental interest and
show that the law is the least restrictive means of furthering
its interest. As an example of how demanding the statutory
compelling state interest (CSI) test is, he referred the
committee's attention to a 1995 court case in California that was
decided under the federal Religious Freedom Act which contains
the identical legal standards as HB 387. He explained that in
Chemma v. Thompson three elementary school children claimed their
Sikh religion required them to wear knives at all times, but when
school officials barred the children from wearing knives to
school, the children's parents sued the school district. The
court held that the school could not overcome the rigorous
standards of RFRA's compelling interest test; therefore, the
court allowed the children back to school grounds with their
knives. The total ban on weapons was not the least restrictive
means of furthering the school's interest in safety since the
knives could be dulled or riveted to their sheaths.
MR. ROYCE reminded the committee that the least restrictive means
test as laid out in HB 387 is nowhere to be found in the Sherbert
or Yoder decision or the Alaska Supreme Court decisions in Frank
where the court allowed the taking of moose out of season for
religious reasons. He recognized that the CSI test and the least
restrictive means test is criticized by the U.S. Supreme Court in
a case decided after Smith in the City of Barrow v. Flores
decision. The Flores decision takes away the flexible approach
that courts have used in applying an open balancing test where
the state's interest can outweigh a burden on religious exercise
under an intermediate standard of review.
MR. ROYCE stated that HB 387 would make it harder for government
employers to manage its employees because HB 387 requires a
public employer to accommodate its employees' religious beliefs
in virtually every case, since the public employer would probably
not be able to satisfy the CSI test. Therefore, mere
administrative convenience or avoidance of costs to the
government is not enough to satisfy the test. He also noted that
HB 387 potentially elevates religious rights of government
employees over private employee rights because government
employees would have statutory protection to free exercise of
religion unlike private employees. For example, a private
employee who did not want to work on Saturday due to religious
beliefs would not be protected by HB 387 unless he/she quit the
job and sought unemployment benefits. However, a government
employee would have to be accommodated in every situation if
he/she continued in his/her job.
Number 1821
MICHAEL STARK, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, said he is
here today on behalf of the Department of Corrections, and he
would like to explain to the committee some of the serious
problems that the Department of Corrections will experience if HB
387 is adopted. Contrary to representations that HB 387 will not
change the status of the law, it will change the status of the
law especially so in prisons and corrections area. He noted that
HB 387 does add another component, another layer, to the standard
used in evaluating challenges to impacts on religion, and it does
restore the CSI test. He explained that HB 387 adds an
additional layer to a CSI test. Whereas under pre-Smith, that is
all the government had to do, and even that was not an easy task
obviously, but they had to just establish a CSI. He commented
that HB 387 adds another layer in that even if the government can
establish a CSI, the only way the government can burden someone's
religious belief is by the least restrictive means possible, and
that is the specific rub, the difficulty, for the Department of
Corrections.
MR. STARK distributed information which showed some specific
examples, not hypotheticals, of inmate requests that the
Department of Corrections has received. He wanted the committee
to understand that this proposed new standard is more burdensome
than any that has existed up till now. He indicated that the
U.S. Supreme Court recognized that prisons are a special
situation dealing with intractable individuals, persons that do
not get along with society and harm other people, and they are
put in prison for punishment. When that happens, some of their
rights are lost or are modified, particularly in the area of
constitutional rights, which inmates certainly do not lose
entirely, but they must give way to valid "penalogical" state
interests. The most obvious interest that comes to mind is
security of the facility and protection of people, inmates and
staff. He acknowledged that inmates cannot be allowed to hurt
other people.
MR. STARK reminded the committee that the court said that
whenever there is a First Amendment right that might be
infringed, such as right to practice religion, there is a
balancing that takes place. If there is a valid "penalogical"
interest on the part of the state prison system, then the valid
state interest is weighed against the inmate's right to practice
religion. If the state's interest is more important, then it
prevails. The court reviews if there are less onerous ways for
the inmate to practice religion than the ways the inmate asserts.
The court also reviews what is the impact on staff, on other
inmates, financial burden and all kinds of things which require
balancing. The foregoing explanation has been the standard up
till today, which the courts still utilize in the prison context,
irrespective of what is going on outside the prison.
MR. STARK said that HB 387 will drastically change how courts
have been reviewing cases because HB 387 will require that the
Department of Corrections establish a CSI any time the department
wants to say no to an inmate's request to practice religion in a
certain way. Even if the Department of Corrections can establish
a CSI, it will only be able to stop the inmate's asserted right
if the department can do it by the least restrictive means
possible, and that is something that is not physically possible
in many situations.
MR. STARK referred to the first page of his examples that talks
about a situation the Department of Corrections had several years
ago regarding witchcraft practice. He commented that the courts
have recognized witchcraft as a valid religion, one of the 300 or
so already mentioned. Most of the 300 religions are represented
in the prison system. If not legitimately, then inmates take
these religions on to jerk the chain of the system. This does
not mean that many inmates do not have legitimate religious
interests, but many of them will do anything they can to cause
problems for the prison system. These people are not the most
socially compliant folks, or they would not be where they are.
Number 2115
MR. STARK said that the Department of Corrections had a situation
where inmates were asserting their right to witchcraft as being
their religion. A number of inmates from rural areas of the
state, primarily Alaska natives, were frightened of some of these
practices. He noted that the inmates' right caused serious
problems in two of the department's facilities in Fairbanks and
Palmer because the frightened inmates were threatening to kill
this person [practicing witchcraft]. He explained that the
frightened inmates thought something was going to happen to them
because of the witchcraft so they wanted to stop it.
MR. STARK referred to the second page that lists a whole number
of requests that come in routinely. One inmate was part of a
Muslim sect that required him to wear a large turban at all
times; whereas many Muslim sects require wearing of a turban at
certain times during the day when they are praying. The request
for this inmate to continue to wear his turban fortunately came
from the Palmer minimum custody facility where this inmate was
incarcerated. First of all, the facility determined that the
request was a legitimate religious tenet by consulting with the
department's chaplaincy service, which is available to make those
determinations, and this inmate was sincere in his beliefs.
However, had this request come from the Spring Creek Correctional
Center where maximum security inmates are housed, the department
would have had many more problems. He acknowledged that the
concern was that somebody could hide weapons under the turban
very easily, such as homemade knives, guns, contraband or
whatever it might be, which could be taken out at any time
resulting in a threat to other people.
MR. STARK emphasized that threats are not hollow threats because
he had seen hollowed out Bibles from both Spring Creek and Lemon
Creek here in Juneau where inmates have carved out holes, and
they have had drugs and weapons hidden inside their Bible
(religious inmates who held their Bible and guess what is
inside). At the Palmer facility, the department decided that
this person was not a security threat, and it allowed him to wear
his turban. He reminded the committee that the department
probably could have survived a challenge to [use of the turban]
as it would have done at Spring Creek in not allowing [use of the
turban] at all because of the dangerous people that are there
with weapons problems and gang problems. He recognized that
under the standard that exists today in testing challenges to
religious practices in prison, that case would not have been a
problem for the state, but it would very much be a problem under
HB 387. A threat to security is a probable state interest, and
courts have accepted that as a CSI in the prison context. He
asked what would be the least restrictive means in that situation
to deal with that problem. He asked if the inmate should be
required to take off the turban from to time to time to search
underneath it, and his answer was "perhaps," but he does not
know. He acknowledged that the turban example is a problem.
Number 2329
MR. STARK stated that the other legitimate requests that would
create problems are requests to use wine in religious ceremonies.
There are persons who actually come in from outside to help
conduct religious ceremonies and insist that wine be part of the
ceremony, and in the past, courts have accepted that grape juice
be used. He asked if would wine be required under HB 387; fine,
if it can be controlled without inmates getting access to the
wine because inmates can get become intoxicated, start fighting
and create real problems.
MR. STARK said that one request that would be a real problem is
inmates who are placed in segregation. He reminded the committee
that the department has solitary confinement, segregation for
inmates who are acting out the most, those who threaten to kill
people, those who fight and those who resist authority. He said
that prison facilities incarcerate murderers, child molesters,
rapists and kidnappers. The committee members and he would have
a hard time understanding what makes these folks click. These
inmates are segregated from the general population because they
prey on other inmates and assault them. If these [dangerous]
inmates requested to have a religious group service rather than
be able to exercise their religion individually in their own
cell, they would have a right to do that under HB 387.
MR. STARK said that now there is a CSI to protect security and
protect others from violence, but the least restrictive means in
the above described situation would be to bring staff members to
this group when an inmate holds religious group services. He
noted that if five or six inmates have [requested religious group
services, assign] seven staff, and that will probably deter
violence but maybe not. However, the problem is the department
does not have six or seven staff able to go there while these
inmates have their religious services. There is a vacancy factor
in the Department of Corrections and it is stretched very thin;
the department is managing, but it is tight because additional
staff just are not available. Therefore, the Department of
Corrections under the standard of HB 387 would probably lose a
challenge if the department denied an inmate's request for
religious group services.
Number 2461
MR. STARK reminded the committee that robes are easy to hide
weapons in. He indicated that inmates requested special foods,
which are difficult or expensive to obtain, or which are not safe
under health restrictions. There have been requests for native
foods, and the Department of Corrections tries to accommodate
inmates a few times a year by letting potlatches take place in
most of the facilities. Inmates also ask for natural foods and
game. In those cases, the Department of Environmental
Conservation (DEC) has been accommodating, but many of those
foods would not be able to pass DEC tests because they were not
processed in proper kitchens, and there is a risk of disease.
Under the HB 387 standard, he wondered if the Department of
Corrections would have to have its own testing for food because
that would be a least restrictive means, rather than barring food
and those kinds of food requests would have to be provided on a
regular basis, not just two or three times a year on special
occasions. Refusal to participate in groups, classes, work or be
housed with members of other races can be legitimate based on
religious practice. There are a number of religions which say
that their members cannot mix with other races, so if an inmate
refuses to be housed in the same part of the facility with other
races in consideration of his/her religious tenet, just imagine
the kinds of problems this would cause.
MR. STARK acknowledged that the department has been very
fortunate in its facilities probably because they are so small in
having escaped the types of race problems that exist in other
facilities. The Spring Creek Correctional Center superintendent
had informed him that the department did have a number of inmates
some years ago that subscribed to some Christian religion (not
meaning to say anything derogatory about Christians) in which the
inmates said they could not mix their race. He stated that a
number of those people have now left the facility, or the
department spread them out to keep them apart because when they
got together, it caused dissention and concerns.
MR. STARK said that gangs are another problem in many prison
systems around the country. Under the guise of religion, the
gangs group together, have meetings and have supposed religious
ceremonies, which creates a violence problem. The department has
been very fortunate that no Alaskan prisoner in an Alaskan
facility has ever been killed, although one Alaskan prisoner was
killed in a federal facility a number of years ago. These
problems [that he has talked about] are not hypothetical, and
they do occur in prison systems around the country all the time.
He agreed with Mr. Royce that cost and administrative
inconvenience do not establish a CSI, so just the fact that it
would cost more to hire more staff does not survive a challenge
under the test in HB 387.
MR. STARK informed the committee that the concerns are two: 1)
the standard is much more difficult to meet, and 2) it will
create many more lawsuits against the facilities because the
facilities cannot meet the test. The facilities will not allow a
religious practice due to obvious security concerns, and then
they will be challenged in court. The lawsuits will be more
complicated because it involves much staff time responding to
discovery requests, and it is going to tie up state resources.
He remarked that the committee had probably heard of the Cleary
case that is certainly an extreme example, but thousands of hours
of staff time went into that early in the case producing
documents, discovery requests, depositions and those kinds of
things. These are lawsuits that the department may well win in
the long run but lose the battle by having to go to court on so
many lawsuits. He stated that he thinks that HB 387 is a bad
idea and adds more to the standard than has ever existed by using
the phrase "least restrictive means." He reiterated that HB 387
does not maintain the status quo, and it does do some serious
things in the prison context.
Number 2671
REPRESENTATIVE OGAN said he supposed that HB 387 would not be a
law of general applicability if the committee exempted the
prisons.
MR. STARK replied that an exemption could be one approach, one
possibility.
REPRESENTATIVE OGAN asked if someone's constitutional rights
would be violated if prisons are exempted from a statute that
supposedly interprets the constitution.
MR. STARK answered that HB 387 establishes a statutory standard
since it is a parallel standard to that established by the
Constitution. Under the Constitution, ironically, the Department
of Corrections could continue to do the balancing that has been
done as authorized by the U.S. Supreme Court back in 1987, but it
would also have to meet the statutory standard which is much more
restrictive.
REPRESENTATIVE OGAN asked Mr. Stark if Mr. Stark thought that the
state could make a CSI to exempt the prison system from HB 387.
MR. STARK replied in the affirmative.
Number 2739
REPRESENTATIVE HUDSON said that Mr. Stark had made some excellent
references to problems related to HB 387 and the prison systems.
He asked Mr. Stark, since Mr. Stark is a practicing attorney for
many years, if Mr. Stark was aware of any abuses that HB 387
would cure. He asked if a statement in the statutes of a
constitutional right has a good purpose, or can Mr. Stark think
of any applications where it might have been a positive.
MR. STARK explained that he thinks that HB 387 is well
intentioned. He would suggest that it is not necessary because
religious practice in Alaskan prisons, while curtailed to some
degree, has never been a burdensome situation. He mentioned that
the Department of Corrections has a very vibrant chaplaincy
program. In each facility there are volunteer chaplains and
members of religious communities who come in and conduct regular
services. If people looked at the list of programs in any of
these facilities, they would see religious programs throughout,
and that is without HB 387, so there has never been a compelling
interest of whatever type requiring this, but it is one that the
Department of Corrections always recognized because religious
programs offer some rehabilitation to inmates who are
legitimately interested. He agreed that perhaps there might be a
positive in HB 387, but the downside is so much that it outweighs
any positive.
Number 2839
ANGELA SALERNO, Division of Public Assistance, Department of
Health and Social Services, said that her division is also a
little concerned with the language found in Section 7 of HB 387,
which allows a person to bring civil action against a state
agency when the person feels that their free exercise of religion
has been substantially burdened. She noted that HB 387 could
make the division vulnerable to costly litigation. She explained
that an applicant for public assistance coming into an office
would routinely discuss eligibility requirements with his/her
eligibility technician (ET) at which time the ET will inform the
individual that work activities are a mandated feature of the
program. The applicant is required to fill out a family self-
sufficiency plan and to make good-faith efforts to go to work.
Should the applicant refuse at this point to participate in the
development of the plan or to work outside the home, that ET
could routinely deny assistance to that person. As she
understands it, if that individual were denied benefits and later
claimed that it was an infringement of his/her religious rights,
the individual could bring civil suit against the division. She
indicated that those damages would attach at that point, at that
very low level point of conversation, that she/he had with the
ET.
MS. SALERNO informed the committee that another general concern
that the division had is a real life situation of a case that
happened not too long ago in which the agency sanctioned a family
because the mother refused to work outside the home due to
religious reasons. The recipient finally prevailed in the case
because the division was not able to show a CSI for this case,
and the division had to pay back benefits and costs, and the
woman did not work outside the home. Overall, this concerns the
division because at that point its hands are tied, and the
division then has no way to help the individual become self
sufficient, and the 60-month clock is ticking. She reminded the
committee that welfare now is a limited benefit, and only 60
months is available to an individual, not a lifetime. She
reiterated that the division's ability is impinged to help folks
become self sufficient.
TAPE 00-27, SIDE B
Number 2969
CHAIR JAMES said she understands that people can receive benefits
for five years and then fall off the program, but it does not
trouble her at all if people want to do that because that is
their choice.
MS. SALERNO noted that her division is available to help folks
and really wants to see people become self sufficient. She
explained that her division is mostly concerned about children
because every family that falls off the cliff will fall off with
their children. She commented that her first story was to
illustrate the liability issues. It could very well be that an
ET, without an understanding of constitutional law or by making a
quick decision, could deny benefits, and that is where damages
would attach.
Number 2881
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union ACLU), said she is not here to oppose HB 387. However, the
ACLU proposes amendments which would simply protect free exercise
of religion, while also protecting equal rights and civil rights
for all because the Alaska State Constitution explicitly protects
both in Article 1, Section 1. She commented that Section 3,
Article 1, protects civil rights for all and Section 4, Article
1, protects freedom of religion. She mentioned that the
[protections] are equally important, and they can peacefully co-
exist. For example, free exercise of religion does not have to
in any way contradict equal protection.
MS. RUDINGER reminded the committee that the intended purpose of
these bills [RFRA] is not to weaken civil rights laws since the
intended purpose is to protect a person's religious practice from
government interference, which the ACLU wholeheartedly supports,
while also not giving one individual a sword with which to deny
another person individual rights. In other words, the catch
phrase is that this bill should be a shield from government
intrusion but not a sword used to harm other people. She
recognized that there had been quite a bit of misinterpretation
in last week's testimony regarding the position of the ACLU .
Since its inception, the ACLU has defended free exercise rights
around the country and here in Alaska. The ACLU has specifically
defended the rights of students to wear crosses, the star of
David, yarmulkes (the Jewish skull cap) and have Bible clubs and
Bible groups to pray in school at any time on their own.
MS. RUDINGER said that what the ACLU is opposed to is government
interference in religion. Right now the ACLU is involved in a
case in Florida where the government wants to remove religious
symbols from a cemetery, and the ACLU is putting a stop to that
or doing their very best to do so. She had cited in her position
paper examples of where the ACLU thinks HB 387 would be good.
Recently the ACLU in Anchorage consulted on a case where some
Muslim parents were going through the tragedy of their baby die
of sudden infant death syndrome (SIDS). The parents' religious
beliefs held that the baby would not get into heaven if the body
was not presented whole unto God. There is a state law of
general applicability facially neutral toward religion that says
that all SIDS deaths have to be autopsied. She asked the
committee to imagine the parents' fear that their baby would not
go to heaven if the government performed an autopsy on their
baby. Given there are less restrictive means of determining the
cause of death, the ACLU had agreed with the plaintiff's attorney
that those folks should not be subject to this law. She informed
the committee that the ACLU thinks that HB 387 would actually
help the parents because it would clarify their rights.
Number 2621
MS. RUDINGER emphasized that the reason the ACLU is coming to the
committee with proposed amendments is because the ACLU thinks
these claims are going to most often occur is in religion vs.
religion discrimination. Specifically the ACLU is seeking to
protect equal rights for everybody in employment, housing and
education. Anti-discrimination laws in Alaska fall into place
regarding those rights, and so the ACLU proposes to simply
clarify subsection (d) and rephrase it to read "this section may
not be construed to create an establishment of religion" (which
she thinks all agree upon) "or to authorize the infringement of
the rights of others by the person claiming a religious exemption
to a facially neutral law of general applicability" and then add
one more sentence, which would explicitly allow avoidance of
extended litigation: "this Act does not establish or eliminate a
defense to a civil action or a criminal prosecution under
federal, state, or local civil rights laws" or take out "civil
rights" and say "anti-discrimination laws."
Number 2495
MS. RUDINGER remarked that free exercise is absolutely
fundamentally important, but everyone's free exercise is
important and should not be an excuse for one person to hurt
another person. She reminded the committee that she is not here
to oppose HB 387; the Coalition essentially is urging similar
amendments to what the ACLU has proposed. The ACLU is working
with the NAACP [National Association for the Advancement of
Colored People], the Fair Housing Alliance, the Episcopalians,
the Friends Committee, the United Church of Christ, several
Jewish organizations and the Evangelical Lutheran Church simply
to protect religious freedom as it is codified in anti-
discrimination laws.
REPRESENTATIVE HUDSON asked for a layman's quick example of how a
religious right might be in opposition to a civil right if the
committee were to pass HB 387 because Ms. Rudinger had said that
guaranteeing a religious right should not violate civil rights.
He asked her to explain what she means.
Number 2402
MS. RUDINGER replied that she can give some specific examples of
cases that were brought to her by the Fair Housing Alliance. She
said that in one case called Chap v. Bowman, Chap wanted to buy a
house right next door to Bowman's from Bowman. Bowman asked Chap
whether Chap was a "good Christian" and whether Chap "had chosen
Jesus as his Saviour." She explained that Bowman told Chap that
money was not a problem, and Bowman would sell the house to a
good Christian for less than full price . But what ACLU saw here
was that anti-discrimination laws protect people in the housing
arena, who want to purchase a house, from being discriminated
against because of their religious beliefs. She noted that Chap
simply did not comply with Bowman's religious beliefs, and so,
despite the fact that Chap offered Bowman cash in full, Bowman
would not sell to Chap.
MS. RUDINGER cited another example of a campground in Ohio where
the owners of a house and the campground leased property to a
tenant. The campground owners sought eviction because the tenant
did not meet the owners' religious requirements including
participation in the campground's religious activities. These
are cases where the Fair Housing Alliance has had to step in, and
under existing anti-discrimination laws, protect the religious
rights of the tenant in this case. Another example cited in her
position paper includes religious landlords not wanting to rent
to unmarried couples because of the landlord's sincerely held
religious belief that sex outside of marriage constitutes the sin
of fornication. This attitude is currently under review in the
9th Circuit Court of Appeals, and that was also the fact pattern
in the Alaska Supreme Court Swanner case, which has been cited
for the committee. In the Alaska Supreme Court case, judges
found that the state has a CSI in preventing this kind of
discrimination in the commercial housing arena. It is important
to note that no state or federal anti-discrimination law applies
to the private home, consequently, a landlord or anyone who wants
to discriminate against people coming into their private home has
a right to refuse to let anyone into their home for any reason,
and no one has to be religious to do it. She added that the
Alaska Supreme Court has recognized the sanctity of the home.
Number 2208
MS. RUDINGER said she understands that the famous Bob Jones
University case is an example of an organization that is anti-
Catholic, against mixed marriages and against interracial dating.
The Bob Jones University wanted to discriminate on the basis of
race, and that went all the way to the U.S. Supreme Court. The
NAACP has submitted concerns about how this could play out in
terms of race discrimination, since there are religions that hold
that mixed marriages are against God's law or claim Biblical
justification for certain types of racial discrimination. She
noted that the NAACP is concerned if there is no explicit
exception for civil rights laws, and this does have to be
evaluated under strict scrutiny.
MS. RUDINGER explained that while the government may probably be
able to show a CSI in preventing race discrimination based on
past history in this country, the government would have a tougher
time showing, as has already been testified today, that applying
the civil rights law to this one landlord is the least
restrictive means. In other words, HB 387 could be used as a
shield by individuals claiming the right to discriminate for any
reason, and it may be that the least restrictive means of
upholding the law would be to allow individual exceptions. She
commented that the ACLU thinks that individual exceptions is what
rightly frightens the NAACP.
Number 2118
MS. RUDINGER mentioned that the committee has heard from folks
who are concerned about domestic violence and religions that
justify domestic violence. The United States has more than 1500
different religious bodies and sects; there are 75 divisions of
Baptists alone. This country has churches, mosques and
synagogues all co-existing in relative harmony. The ACLU seeks
to protect one religion from discrimination by another in its
amendment and to protect everyone's right to equality as the
Alaska State Constitution guarantees.
CHAIR JAMES asked what happens when a church builds a retirement
home for folks expecting that the people who come into the
retirement home are from that religion.
Number 2067
MS. RUDINGER replied that religious organizations are typically
exempt from anti-discrimination laws. She said that the federal
standard is that religious organizations can prefer members of
their own religion, and the ACLU does not object to that. She
noted that she thinks that religious organizations would continue
to be exempt; nevertheless, what the ACLU is concerned about is
that individuals would be able to claim HB 387 as a sword to harm
the rights of others.
Number 2027
CHAIR JAMES asked Representative Croft what his attitude was
about the proposed amendments as suggested by the ACLU and the
Department of Corrections.
REPRESENTATIVE CROFT answered that he does not like either the
civil rights "carve out" or the prison "carve out" that
Representative Ogan talked about. Representative Croft stated
that Thomas Jefferson and other drafters such as John Adams did
not say freedom of religion except for civil rights and in
prisons. He reiterated that these rights create difficulties.
He said that the Smith decision which is the decision that
retreated from the prior high standard of protection for civil
rights in the United States Supreme Court is very clean and easy
to administer like all governmental regimes that do not purport
to protect civil rights, and it is very easy to predict. There
have been various people who talked about the problems government
would have with compliance. He explained that the entire thrust
in this area is to cause government a problem in administering
its provisions when it impacts the free exercise rights of
individuals because that is the point of it. He wants to force
government to justify its actions when it infringes religious
practices of people. He acknowledged that the government can
meet HB 387 by showing that there is a very important reason for
what the government is doing.
Number 1699
REPRESENTATIVE CROFT remarked that in most areas of civil rights
it is his opinion that a CSI will be found, and that is borne
clearly out by case law in racial discrimination and in other
areas of civil rights laws. In other words, the religion usually
has to bow to a CSI that is found and similarly in prison
litigation most of the time a CSI is found. He reminded the
committee that testifiers here today testified that courts had
accepted security as a CSI and they have; therefore, he thinks
that 9 out of 10, 95 out of 100, civil rights cases do win, and
prison officials are able to articulate a CSI. He recognized
that the problem really lies in these blanket exemptions in that
small 1 out of 10. If prison civil rights are simply carved out,
then the legislature has said in effect that HB 387 does not
apply in prisons, and religious beliefs or religious protection
does not even have any place here at all. He stated that in a
rare case a prisoner will win. He is familiar with the prison
regulation that banned any necklaces. He said that a prisoner
had a small star of David or a small crucifix, and the prison
justified the ban on security concerns claiming that the necklace
could be used as a weapon of some kind. He commented that such a
justification does not even pass the "red face" test, and that is
the function of HB 387.
REPRESENTATIVE CROFT explained that civil rights encompasses a
broad range of activity, and essentially an exemption to a
constitutional standard of religious protection is being placed.
He asked what is going to happen next in the civil rights arena.
Right now civil rights laws do not cover an individual's home,
but there are restrictions against discriminating on race,
religion or other factors in renting out commercial apartments.
It was decided that civil rights laws for good privacy reasons
would not be extended to the small area of an individual home,
but it had been decided to include the home. He indicated that
he and Ms. Rudinger agreed that people should be able to make
those decisions in their own home. He informed the committee
that civil rights cannot be carved out from religious practice
because civil rights includes religious practice. In his
opinion, the most flexible, adequate and appropriate way to pass
HB 387 is to keep the standard and have factual determinations
continue to be made [by courts]. He acknowledged that either
prisons could be carved out or recognize that in most prison
situations the CSI is going to be met, and a few will not when
they cannot pass the "red face" test. The CSI standard can be
kept with civil rights, and it will often be met. This is a
policy call for this committee, the next committee and the
legislature as whole.
REPRESENTATIVE CROFT recognized that his opinion on it is nothing
more than an opinion, but he thinks that "carve outs" have a
comforting simplicity to them because what is going to happen is
known in every prisoner and civil rights litigation. The result
has been predetermined with "carve outs" and that may be, given
the testimony heard today, what the committee feels comfortable
with. "Carve outs" certainly are cleaner, but he does not
believe that they are the appropriate fix to some of these
troubling areas.
Number 1601
CHAIR JAMES asked if the least intrusive method does away with a
CSI.
REPRESENTATIVE CROFT replied that maybe "least intrusive method"
should be taken out of HB 387. He said he had thought that
"least intrusive method" was a standard part of the CSI test, but
if "least intrusive method" is not, and he accepts testimony
given here that at least in some cases it is not, then he would
not have any objection to taking it out. He explained that he
has also been reviewing the Turner case that was cited. He noted
that he does think that there are some drafting changes that were
suggested today that need to be made here, or even more properly
in the Judiciary Committee, to make sure that HB 387 accurately
encompasses the current state of the law.
REPRESENTATIVE HUDSON said that he was trying to draw up the
frame of reference that America's forefathers had when they tried
to protect religious freedoms, and he suspects that the reference
of religion was a great deal more narrower than today. He stated
that the committee has heard from the gentlemen who represents
the prison interest that inmates are fabricating new religions
perhaps even to justify their own individual freedoms, rights to
speak out or to act out while they are incarcerated. He has
visited the Lemon Creek Correctional facility on a few
afternoons, and he is very glad to get out of there when he is
done, but it is good because it shows just how unregulated
society really has different viewpoints [than law-abiding
citizens]. He commented that he thinks that unless someone has
some understanding of what religion is being protected and the
protection is not wide open, it surely could infringe upon other
people's legitimate civil rights. In some cases religion trumps
civil rights generally speaking. But maybe in the context that
HB 387 might be applied, he is not so sure, and it worries him a
little bit about setting something in the law that might provide
a tool for people in a prison setting or even people outside a
prison setting [to cause harm]. When starting to protect
religion, it is easy to do it when thinking of one's own context,
but when thought about in a broader, undefined, evolving context
then he gets a little nervous about it. He emphasized that he is
nervous about trying to uphold religion in the name of religion
without understanding what the broader application of it will be.
Number 1292
REPRESENTATIVE CROFT acknowledged that other states that have
passed religious freedom protection acts or restoration acts have
put in those two "carve outs" because they clearly felt safer and
comfortable. He remarked that he has a theoretical disagreement
with ["carve outs"] but he perfectly understands the point and
the practical difficulties that "carve outs" solve.
CHAIR JAMES recognized that people can falsify and take on
religions, but if that is a reason why religion is not to be
protected, then her religion is not protected and neither is
anybody else's. To protect the good, the bad has to be protected
as well, and the problem is worse if nothing is protected. She
stated that she has always believed that the freedom afforded by
this country, of which she is so proud to be a citizen, only
extends up to where she runs into someone else's freedom, and
everyone needs to understand that. She said that because there
are more people now which result in more challenges, different
views and diversity, individual freedoms are narrower. She noted
that everyone has to live within those [new] parameters, but no
one wants others to invade or infringe upon their individual
parameters, and that is the whole issue. She commented that
[narrower parameters] are probably something that are understood
by everyone, and the opportunity to be protected is coveted in
this country. She would put religion ahead of any other civil
right, and she says that simply because she thinks it is more
important.
CHAIR JAMES reiterated that she thinks that most of America's
forefathers came to America looking for religious freedom and
knew what it was like to not have religious freedom. She said
that since Americans depend upon religious beliefs to direct
personal lives, she thinks that religion is ahead of any other
civil right such as discrimination, any collision between male
and female, married and non-married, races or whatever. She
explained that it is hard for her to believe that there are
religions who would discriminate in such a manner because her
religion does not discriminate whether it is against the law or
not. She commented that maybe she is a little more biased in
that way because she does not understand how other people feel;
therefore, she is willing to move HB 387 to the Judiciary
Committee. She mentioned that she believes that her vote on HB
387 would be that it does meet the issues that this committee
would consider a policy issue and ought to be addressed in this
committee. She indicated that legalities and other issues might
better be addressed in the Judiciary Committee.
Number 1023
REPRESENTATIVE KERTTULA said that constitutional law is a
remarkable area of study, but it is not is clean and easy. She
noted that the sponsor of HB 387 rightfully continued to say he
did not know the answer to many of the questions, and that is
truthful because that is the way it often is in constitutional
law. However, some of the things that give her pause are because
predictions cannot be made, since understanding of all of the
religious tenets that other beliefs hold are not known. She
asked what happens if the committee allows HB 387 to go forward
and it indeed became law. Some of the things heard by the
committee are that there will be changes in how monetary awards
are given regarding constitutional rights. The committee has
entered into the whole discussion about not only having a CSI so
that there has to be an extremely good reason for the government
to be infringing on a right, but that also a least restrictive
means must be established for the imposition of infringement.
She indicated that in Alaska traditionally [the courts] have used
a sliding scale which Mr. Stark explained as a balancing test and
looking at what makes sense. She emphasized that [the courts]
have not been as rigid as the U.S. Supreme Court, and that comes
about because in Alaska, individuals are valued, and that value
really is very high up on the list. In the Alaska State
Constitution, civil rights is in Article 1, Section 3, and
religion comes in Section 4, so [it is apparent] that Alaskans
may look at things just a little bit differently, and Alaskans
always have done that. She reminded the committee that state
constitutional right has been upheld as recently as 1994 after
the U.S. Supreme Court decisions started to affect Alaska. She
said that HB 387 obviously causes confusion and is unpredictable.
She stated that it would be easy to amend it in statute; if the
legislature puts HB 387 in statute, the committee could look
forward to seeing amendments. Finally if a situation arises
where religion always trumps, she just thinks that it is too big
of a risk to see the committee taking this step [of moving HB
387]. She knows everyone feels strongly about [religion] and
wants to do the right thing, but she does not feel comfortable
with HB 387 at all, even with the civil rights and prison "carve
outs" because she believes that the same kind of confusion is
left in other areas, notably schools and hospitals. She
explained that she thinks everyone is well intentioned, and the
committee is making an effort but she cannot support the
legislation.
Number 7885
REPRESENTATIVE WHITAKER commented that he is fascinated by his
attorney colleagues when they use terms such as "comforting,
simplicity, clean, and easy" because it gives him pause. He
mentioned that he has to stop and think what do those words mean.
He asked the committee to take a historical leap and imagine
writing the Bill of Rights. Would the committee look at this
situation and try to find something with comfort and simplicity?
If that were the case, he would say religious freedom is not
comforting, simplistic, clean or easy, so to hell with it and not
include religious freedom in the Bill of Rights. He emphasized
that he would be expeditious and not have religious freedom.
Well, [religious freedom] is not going to be clean and easy or
comforting in its simplicity but, nonetheless, it is imperative
and important. He stated that the committee should accept the
challenge and let HB 387 move forward.
Number 0680
REPRESENTATIVE OGAN remarked that he is tempted to move a
conceptual amendment but he will let it slide for now. He noted
that he had heard some compelling arguments regarding "carving
out" prisoners, but he just has to believe that the courts have
somewhat twisted interpretations of what he believes the First
Amendment is all about. He reiterated that [courts] prohibit his
free exercise of his religious beliefs in certain governmental
activities. He said that nowhere in the Constitution does it say
that there is separation of church and state, but he believes
that it is a court doctrine, or maybe it was a statement by one
of the founding fathers. He noted that in the name of being
politically correct [courts], have restricted people's abilities
to express their religious beliefs freely. For example, he
cannot go into a school and make moral statements about what he
thinks would help guide young people to make better decisions in
their lives. He reminded the committee that there is a move
afoot right now to allow display of the Ten Commandments in
schools, and he guesses it is good that the Ten Commandments are
carved into the walls of the U.S. Supreme Court [building],
otherwise the Ten Commandments would have been painted over by
now. He commented that he will let caution go to the wind and go
for passing HB 387 out [of committee].
Number 0509
REPRESENTATIVE HUDSON explained that the House State Affairs
Standing Committee really is more of a policy forum than the
Judiciary Committee. Next to the Floor of the House, the House
State Affairs Standing Committee is probably the biggest policy
forum in the process. The committee process is paramount, and
trying to put something out there truly states a non-conflicting
(as much as possible) public policy statement. He indicated that
he does not view HB 387 [as non conflicting] because after all of
the testimony that he has heard, he is really of the belief that
there has to be some "carve outs" in HB 387, or it is not a
policy that he can support; for that reason, he will not vote to
move it out.
Number 0423
REPRESENTATIVE GREEN made a motion to move CSHB 387(HES) out of
committee with individual recommendations and attached
indeterminate fiscal note.
REPRESENTATIVE KERTTULA objected.
A roll call vote was taken. Representatives Green, Ogan,
Whitaker, and James voted in favor of moving the bill.
Representatives Hudson, Kerttula, and Smalley voted against it.
Therefore, CSHB 387(HES) moved from the House State Affairs
Standing Committee by a vote of 4-3.
CHAIR JAMES called for a brief at-ease at 9:40 a.m. and called
the meeting back to order at 9:41 a.m.
HB 438-PERS BENEFITS FOR EMERGENCY MEDICAL TECHS
CHAIR JAMES announced the next order of business is HOUSE BILL
NO. 438, "An Act permitting certain emergency medical personnel
in police or fire departments or employed by the state troopers
to convert their credited service under the public employees'
retirement system to credited service as peace officers; and
providing for an effective date."
Number 0221
PATRICK HARMAN, Legislative Aide to Representative Pete Kott,
said the genesis of HB 438 was HB 230, which was a Public
Employees' Retirement System (PERS) bill that this committee
heard and moved on. He noted that HB 230 had been amended along
the way and has been approved. He explained that when HB 230 was
in the Senate Senator Mackie, Chairman of Senate, Labor and
Commerce Committee, wanted to use the same concept for emergency
medical technicians (EMT). Because of a required title change,
that can be a little difficult, and he had agreed to submit a
similar bill to HB 230 for EMTs. He indicated that HB 438
provides EMTs with the option to retire at 20 years of service as
an EMT. He mentioned that at retirement the EMT pays the full
actuarial cost of the 20-year retirement or takes a reduced
pension. The effect on the PERS is revenue neutral or no cost
for this benefit to the state of Alaska. He said he hoped that
this type of entitlement would improve EMT retention because of
EMT burnout. If retention is improved in that particular job
classification, cost is reduced to both the state and
municipalities. He remarked that the number of EMTs or
emergency medical services (EMS), who are not firemen, are
probably a very small part of the population, but he does not
have exact numbers. Hopefully there will be testimony on line
that [can verify that there are just a handful of people]. He
thinks the bottom line here is the sponsor's intent that a 20-
year retirement be revenue neutral for states and municipalities.
The annual cost for the employer contribution and long-term
actuarial costs must be achieved at no cost to the state or
municipalities. He stated that the sponsor has achieved this and
there is a zero fiscal note.
TAPE 00-28, SIDE A
Number 0030
REPRESENTATIVE SMALLEY asked if the individual would have to
spend a full 20 years as an EMT or could he/she take ten years in
one aspect of the retirement system with the state and ten years
as an EMT.
BILL CHURCH, Retirement Supervisor, Division of Retirement &
Benefits, Department of Administration, replied that the way HB
438 is written would address someone who has completed 20 years
in the position as an EMT, a medical service officer or medical
technician. He agreed with Mr. Harman that HB 438 in general is
going to apply to a much smaller group because individual
employers have the ability of crafting position descriptions
independently from one another. He informed the committee that
many of these folks in this situation are classified as fire
fighters and part of their duties are as an EMT or emergency
medical officer; therefore, [their EMT work] becomes part of
their fire fighting duties. He acknowledged that fire fighters
are covered under the "20 and out" system in the state retirement
system so he does believe that EMTs is a much smaller group. Mr.
Church remarked that as Mr. Harman has testified HB 438 is a zero
cost bill because once the employees have worked 20 years in
these positions they may come and make a claim to the division to
convert their service so that they can be treated as a peace
officer or fireman. At that point an employee could retire, but
he/she would be required to pay the full cost of providing
benefits under that "20 and out" system.
Number 0284
REPRESENTATIVE HUDSON asked if HB 438 would largely relate to
municipal employees since very few, if any, state employees would
fall under this [EMT designation].
MR. CHURCH answered that he believes that state employees are
specifically classified under the "20 and out" system as
firefighters. He cannot guarantee that because he is not
familiar with every situation in the various departments with the
state.
REPRESENTATIVE HUDSON asked if municipal employers are prepared
to testify on HB 438 since municipal employers would be largely
affected.
CHAIR JAMES replied that HB 438 does not affect municipal
employers financially.
REPRESENTATIVE HUDSON noted that HB 438 does affect them perhaps
in early departure because it is just like "early outs" and many
policy questions that have come before this committee. He
explained that it is always important for the record to reflect
[testimony and discussion].
Number 0388
MELVIN VOSTRY, EMS Section, Matanuska-Susitna (Mat-Su) Department
of Public Safety, testified via teleconference from Wasilla. He
said that this morning he had arrived fully intending to speak in
favor of HB 438, but unfortunately he had not received a copy of
the bill prior to his arrival. As he read HB 438 this morning,
he noted that it speaks to personnel who are in a police
department or in a fire department and serve in an EMS capacity.
Currently the Mat-Su Borough administers EMS services under the
Department of Public Safety, which has no police powers, and also
administers equally fire protection on a fire service area basis.
So HB 438 as it is worded does not speak to his situation or his
colleagues' situation. He commented that he was hoping that EMS
personnel would finally receive equal footing with fire
department and law enforcement personnel in recognition of the
service that they provide in terms of danger and stress. He
mentioned that it is very painfully apparent from his perspective
that EMS personnel are suffering burnout, and for someone to stay
in EMS for 30 years before they retire may very well work a
hardship on them.
Number 0567
CHAIR JAMES said that Mr. Vostry had indicated that the Mat-Su
Borough has a Department of Public Safety, but it does not have
police powers. She asked if that was correct.
MR. VOSTRY answered in the affirmative. He noted that the Mat-Su
Borough does not have any law enforcement agency. He explained
that the city of Palmer, the city of Wasilla and the Alaska State
Troopers are the law enforcement agencies within the Mat-Su
Borough.
CHAIR JAMES asked if there are any EMS folks who work for the
borough that do not work for a fire department.
Number 0697
MR. VOSTRY replied in the affirmative. He commented that he is
one, and his colleague is another. The Mat-Su Borough is
exploring the possibility of providing full-time EMS services
within the next two years, which would probably account for 18-20
positions, and these people would be ambulance personnel only,
not be fire personnel. Fire service is provided on a fire
service area basis in the borough, whereas EMS is boroughwide.
CHAIR JAMES informed Mr. Vostry that the committee might be able
to fix [the discrepancy] in HB 438, and that is why she asked
those particular questions.
Number 0739
BILL MACKRETH, Paramedic EMT, Mat-Su Borough, testified via
teleconference from Wasilla in support of HB 438. He reiterated
that stress and the occasional hazard that Mr. Vostry referred to
is very real. He said that the physically demanding nature of
EMS would make 20-year retirement a great advantage for EMS
personnel. Like Mr. Vostry, Mr. Mackreth is employed strictly in
an emergency medical capacity. He is a paramedic coordinator but
has no fire fighting or law enforcement responsibilities. He
thinks that it is inevitable that in the Mat-Su Borough and
statewide, the pattern will mirror what has happened in the rest
of the country. He explained that as population grows and
demands more EMS, there will be more full-time EMS personnel
employed. It would certainly be an advantage if HB 438 could
address their status as well.
CHAIR JAMES asked Mr. Mackreth to tell her what his status is now
for retirement.
Number 0832
MR. MACKRETH replied that he can retire in 30 years.
CHAIR JAMES asked Mr. Mackreth if he would be able to buy into a
20-year retirement with his own money, without any cost to the
municipality or the retirement system, if the committee included
municipalities in HB 438 or the Department of Public Safety of
the Mat-Su Borough as an example.
MR. MACKRETH answered that HB 438 was explained to him in that
manner.
Number 0882
DAVID HULL, Lieutenant, Ketchikan Fire Department, testified via
teleconference from Ketchikan. He read his testimony as follows:
My name is David Hull and I am a career Lieutenant for
the Ketchikan Fire Department. I have been a
firefighter for 25 years. I am also a paramedic and
have been involved with Emergency Medical Services
(EMS) for over 23 years.
Before you this morning for your consideration is HB
438, an act permitting certain emergency medical
personnel to convert their retirement under PERS to a
20-year program instead of the 30-year program that
they fall under now.
Career Emergency Medical Technician (EMT), Paramedics
and EMS officers are currently not included in the PERS
20-year retirement plan even if they are a fire or
police based system. Recently the House Judiciary and
the Senate Labor and Commerce Committees passed HB 230
allowing dispatchers in a police or fire department
coverage by the PERS "20 and out" system. This was a
right decision. The inclusion of the dispatchers is
much deserved as the compelling testimony pointed out;
however, career EMS personnel would also be added to
this definition.
Under pressure from PERS last year, our fire department
had to make changes to the job description of our
career EMS specialists to include primary fire fighting
duties or face having them removed from this "20 and
out" provision. We are now conducting a search for a
new EMS captain to head our EMS division. This
person's duties will involve maintaining the level of
service that this department is currently providing.
Without changing the job description, this position
will not be covered under the "20 and out" provision of
the PERS system. This position should be covered, a
should other career EMS positions without having to
change the duties and intent of their EMS position.
Over 60% of the calls this department responds to are
EMS calls. That compares with the national average.
In fact, all across the nation, EMS is being recognized
as a "bread and butter" operation for fire departments
large and small alike.
While there is no denying the dangers involved in
fighting fire, EMS has its very real dangers also.
Hepatitis B, Hepatitis C. antibiotic resistant strains
of tuberculosis (TB), and of course human
immunodeficiency virus (HIV) and acquired
immunodeficiency syndrome (AIDS) are just a few of the
dangers that face EMS personnel on every call they go
on. These people cold be holding your life or
someone's life you know in their hands. The skills and
equipment they put to use save lives. Even if the
situation is not life threatening, EMS providers still
save life styles by handling broken limbs and spines
properly thereby limiting additional damage and
possibly a lifetime of disability. Trauma is one of
the leading causes of death and disability nation wide.
Alaska leads the nation in this per capita statistic.
The stresses involved in this activity rival any
produced on a fire scene or police action. While it
has been said that EMS personnel do not face the levels
of stress that firefighters or police officers do in a
life and death situation, I can tell you from personal
experience that holding someone's life in your hands
and the only reason they may have a chance at all is
based on your making a right decision, that level of
stress is every bit as intense and difficult to deal
with. I can make that statement freely and truthfully.
I have been o both sides of the issue. I have worked
on countless people and countless fires these last 23
years and having gotten killed a couple of times and
living through it, my preference, stress wise, is still
a good old house fire any day.
I tried to have EMS personnel added when HB 230 was in
House Judiciary Committee, but was late in my
interaction. Representative Williams informed me that
the bill had already cleared the House and was on its
way to the Senate. He suggested I put in my request
there.
My first information put the bill in the Senate
Judiciary Committee. Jim, in Senator's Taylor's office
was kind enough to steer me in the right direction and
also informed me that the addition of EMS personnel
will carry no fiscal note to the bill, the same effect
as adding in the dispatchers. That was how I ended up
testifying before the Labor and Commerce Committee,
again I was a little late.
Regardless of the outcome of my request, I want to
thank Representative Kott and Senator Mackie, and the
members of both their committees for giving me a second
chance at rectifying this exclusion of EMS personnel
from the PERS 20-year retirement. I also need to thank
their respective aids, Patrick Harman and Dave Grey for
their guidance of this politically inept individual
through the rigors of legislative reality.
I want to conclude by saying that I am proud to be a
firefighter and a paramedic. Both professions have
been equally rewarding to me, and equally stressful.
EMS should be able to stand on its own when compared to
the police and fire professions. Police and fire
personnel, as well as police and fire dispatchers,
belong in this PERS provision, base done their job
description. Having said that, I strongly believe that
career EMS positions would also be included in this
provision without the necessity of changing their job
descriptions to make them eligible.
Number 1253
MIKE GOODWIN, State Park Peace Officer, Department of Natural
Resources, testified via teleconference from Anchorage. He said
he supports the EMTs employed in state trooper, police and fire
departments in their efforts to get their service time under the
PERS recognized as credited service as peace officers. He
explained that he understands that other bills before the
legislature are trying to include police, state troopers, fire
department dispatchers, juvenile detention employees and some
correctional employees under the PERS as peace officers as well.
He also understands most if not all bills are revenue neutral
asking for no fiscal notes but requiring the employee to pay
indebtedness at the time of conversion.
MR. GOODWIN said he is a state park peace officer so designated
by state statute and a 20-year veteran within the Department of
Natural Resources. Commissioned as a state park ranger, he needs
the committee's help to understand how state park rangers can
also be included in a bill that recognizes them as PERS peace
officers. He indicated that state park rangers have authority,
make arrests, issue citations and wear a uniform, a firearm, and
a body arm. He informed the committee that state park rangers
enforce laws of the state within their jurisdiction, perform
emergency medical services and provide search and rescue to
citizens in need of aid. He emphasized that he is asking for the
committee's due consideration in the legislature to include not
only those EMTs, dispatchers, juvenile detention employees and
correctional employees but also commissioned state park peace
officers within the PERS.
Number 1412
CHAIR JAMES asked if park rangers attend the police academy to
get their jobs.
MR. GOODWIN replied in the affirmative. He said that most of the
park rangers do attend the Department of Public Safety Academy in
Sitka the same as municipal police officers.
CHAIR JAMES asked Mr. Harman if the committee is missing anyone
doing these little PERS bills. She commented that she does not
know how expensive it would be to put [the park rangers in the
bill].
REPRESENTATIVE HUDSON mentioned that he had an idea that he
thought might solve all of our problems. He directed committee
members to page 2, line 7, (g) of HB 438, which states: "When an
employee who was employed as an emergency medical service officer
or an emergency medical technician in a state trooper office or
in a police or fire department..." and if "or in any other
emergency medical capacity" and then continue in paragraph (g) it
seems to him like that wording would catch the park EMT and the
municipal EMTs that are not a part of the fire or police. He
indicated that the committee could [do that].
Number 1501
CHAIR JAMES remarked she would take [that suggestion] as a
conceptual amendment and thinks that the committee would have to
ask the drafters, if the sponsor agrees to this, to tell the
committee how that would work.
REPRESENTATIVE HUDSON agreed that the drafter would have to
supply specific words.
MR. HARMAN said immediately where the sponsor needs to do a
conceptual amendment to the title and in the body of HB 438 to
get the Department of Public Safety and the sponsor to agree to
that [change]. He stated that as far as getting other job
classifications into HB 438 at every step of the way different
career groups have tried to get into it, and he thinks that it is
probably better that everybody get an airing out individually
through the whole process instead of hanging additional but
closely related job classifications onto these various bills.
Number 1557
CHAIR JAMES said she had been wondering about that and wanted to
know if the committee has left any [related career group] out.
She noted that the committee has done Corrections, Fire, EMS, and
technically what the committee was doing was picking on people
who live a dangerous lifestyle in their jobs that are currently
under a 30-year retirement system. She explained that HB 438 and
the other PERS bills would allow them to buy in at their choice
with no cost to their employer to get a 20-year retirement. She
commented that she does not think any one group has been left out
but asked if the committee has left out any [group].
REPRESENTATIVE KERTTULA replied that she has a bill for juvenile
correctional officers but it went to House Health and Social
Services (HESS) instead of House State Affairs. She mentioned
that it was odd.
CHAIR JAMES indicated that the other concern that she has is
whether or not HB 438 can pass this year.
Number 1618
MR. HARMAN answered that if the committee can get a waiver in
Finance Committee, which he is hoping to do to keep it simple so
that no policy issues are entered into and keep it narrow in
scope, HB 438 can be passed over to the Senate. He reminded the
committee that Senator Mackie has a companion bill going through
the Senate right now.
CHAIR JAMES asked if Mr. Goodwin had EMT certification.
MR. GOODWIN replied that his department requires its commissioned
state park rangers to obtain a level called emergency trauma
technician (ETT) which is different than EMT.
CHAIR JAMES said that the committee could expand the language
according to the sponsor in HB 438 to include EMT officers
wherever they are working, and that basically is for whom HB 438
was drafted. She stated that the committee could do a conceptual
amendment that would include language that would not be so
definitive as to be "a state troopers office or police or fire
department." She asked if Representative Hudson would like to
make that conceptual amendment.
Number 1702
REPRESENTATIVE HUDSON offered the conceptual amendment to add "or
in any other emergency medical capacity" and let the drafting
people as well as the prime sponsor perhaps deal with that in the
next committee of referral, but it would require a bill drafter
to put it in the right context.
CHAIR JAMES said she did not know if the committee wanted to
include the ETT or the EMT.
REPRESENTATIVE OGAN suggested a first card [as a requirement]
because it could be interpreted that broadly.
CHAIR JAMES commented that she thinks the committee should stick
with EMT.
REPRESENTATIVE HUDSON stated that HB 438 would say that.
CHAIR JAMES explained that this gentleman from Anchorage whom the
committee just heard from said that his department has a
designation called ETT, which is lesser than an EMT.
Number 1801
REPRESENTATIVE HUDSON replied that he is not suggesting that. He
indicated that he is simply saying that regarding (g) in HB 438,
where it reads, "When an employee who was employed as an
emergency medical service officer or an emergency medical
technician...," that stands and "...in a state trooper office or
in a police or fire department.." and add "or any other emergency
medical capacity."
CHAIR JAMES asked if everyone understood that conceptual
amendment. She said that what she will do if the committee wants
to pass this amendment is get a proposed CS, and before this
committee passes HB 438 on to the next committee of referral,
this committee will review the language again.
REPRESENTATIVE SMALLEY said he guesses that the committee needs
to get an interpretation for him to feel comfortable because that
last statement "or any other medical capacity" could cover an
ETT.
CHAIR JAMES agreed and she wants to know if anyone is in favor of
this conceptual amendment because she will bring it back to the
committee and see what the language does. She stated that she
will have to talk to the drafter and tell him/her what the
committee is trying to include. She informed the committee that
she would get a proposed CS on HB 438 and bring it back to the
committee, and it can be moved out first thing Thursday (4/6/00)
morning.
MR. HARMAN reiterated that the sponsor's intent was that EMTs
primary duties are medical service. [HB 438 was held over.]
ADJOURNMENT
Number 1824
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 10:08
a.m.
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