03/18/2003 08:01 AM House STA
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 18, 2003
8:01 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative Nancy Dahlstrom
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 4
Proposing an amendment to the Constitution of the State of
Alaska relating to the duration of a regular session.
- HEARD AND HELD
HOUSE BILL NO. 88
"An Act relating to prohibiting the use of cellular telephones
when operating a motor vehicle; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 92
"An Act relating to reports by members of the clergy and
custodians of clerical records who have reasonable cause to
suspect that a child has suffered harm as a result of child
abuse or neglect."
- MOVED CSHB 92(STA) OUT OF COMMITTEE
HOUSE BILL NO. 109
"An Act relating to the limitation on payment of state treasury
warrants; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HJR 4
SHORT TITLE:CONST AM: 90 DAY LEGISLATIVE SESSION
SPONSOR(S): REPRESENTATIVE(S)SAMUELS, ROKEBERG
Jrn-Date Jrn-Page Action
01/21/03 0025 (H) PREFILE RELEASED (1/10/03)
01/21/03 0025 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0025 (H) STA, JUD, FIN
01/21/03 0025 (H) REFERRED TO STATE AFFAIRS
03/11/03 (H) STA AT 8:00 AM CAPITOL 102
03/11/03 (H) Scheduled But Not Heard
03/17/03 0566 (H) COSPONSOR(S): CROFT
03/18/03 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 88
SHORT TITLE:PROHIBIT CELL PHONE USE WHEN DRIVING
SPONSOR(S): REPRESENTATIVE(S)WOLF
Jrn-Date Jrn-Page Action
02/10/03 0169 (H) READ THE FIRST TIME -
REFERRALS
02/10/03 0169 (H) STA, TRA, JUD
02/10/03 0169 (H) REFERRED TO STATE AFFAIRS
03/13/03 (H) STA AT 8:00 AM CAPITOL 102
03/13/03 (H) Scheduled But Not Heard
03/18/03 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 92
SHORT TITLE:CLERGY TO REPORT CHILD ABUSE
SPONSOR(S): REPRESENTATIVE(S)LYNN
Jrn-Date Jrn-Page Action
02/12/03 0186 (H) READ THE FIRST TIME -
REFERRALS
02/12/03 0186 (H) STA, HES
02/19/03 0257 (H) COSPONSOR(S): KERTTULA
03/06/03 (H) STA AT 8:00 AM CAPITOL 102
03/06/03 (H) Heard & Held
MINUTE(STA)
03/18/03 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
REPRESENTATIVE RALPH SAMUELS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HJR 4.
REPRESENTATIVE KELLY WOLF
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 88.
RICHARD BLOCK, Christian Science Committee on Publication
for Alaska
Anchorage, Alaska
POSITION STATEMENT: During hearing on HB 92, said Version I is
acceptable.
W.M. THOMAS MOFFATT, Rev., Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of the sponsor of HB 92,
explained the new language in Version I and answered questions.
CHIP WAGONER, Lobbyist
for the Alaska Catholic Conference
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 92 and answered questions.
JOANNE GIBBENS, Program Administrator
Division of Family & Youth Services (DFYS)
Department of Health & Social Services
Juneau, Alaska
POSITION STATEMENT: During the hearing on HB 92, testified
regarding the issue of neglect as it pertains to mandatory
reporting.
BRADLEY BRINKMAN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: Testified on the statutory definition of
abuse and neglect as it pertains to HB 92; answered questions.
ACTION NARRATIVE
TAPE 03-27, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:01 a.m. Representatives Holm,
Seaton, Dahlstrom, Lynn, Berkowitz, Gruenberg, and Weyhrauch
were present at the call to order.
HJR 4-CONST AM: 90 DAY LEGISLATIVE SESSION
Number 0068
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE JOINT RESOLUTION NO. 4, Proposing an amendment to the
Constitution of the State of Alaska relating to the duration of
a regular session.
Number 0109
REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature, sponsor,
told the committee HJR 4 would limit the legislative session
from 120 to 90 days and would be placed before voters in 2004,
the year of the next statewide general election. He said he
feels strongly that 90 days is more than enough time in which
the legislature can finish its business. He said limiting the
session would also promote more citizen [legislators], which
Alaskans want; with a shorter session, more people can
participate. Representative Samuels said although the fiscal
note shows a savings of approximately $1 million, he thinks it
would [save] more than that. He said having more laws isn't
necessarily a better thing.
REPRESENTATIVE SAMUELS noted one argument against [HJR 4]: it
would give the executive branch more power. He said he thinks
that is true, but suggested that "we're talking about nuances."
If the executive branch does something that the legislative
branch finds reprehensible, the legislative branch can call
itself back into session. He indicated that other arguments
against the resolution are with regard to rule changes,
statutory changes, the starting date, and the timeframe for
giving notice of a committee hearing, for example. He said all
of those can be taken care of if the voters pass the resolution.
Number 0342
REPRESENTATIVE SAMUELS mentioned an amendment he hoped
Representative Holm would offer to make the First Regular
Session of the Twenty-Fourth Legislature be 120 days and the
Second Regular Session be 90 days, with 90 days [for each
session thereafter]. This would allow new [legislators] to "get
their feet wet."
REPRESENTATIVE SAMUELS referred to a page ["Alaska State
Legislature Session Length And Percentage Of Days With Floor
Sessions, 1981-2000," in the committee packet]; in response to a
question by Chair Weyhrauch, he confirmed that it shows the
actual number of days [the legislature] is in session.
CHAIR WEYHRAUCH asked how many times a resolution like HJR 4 has
been introduced before.
REPRESENTATIVE SAMUELS answered probably five or six times; one
attempt may have moved through the House.
Number 0460
REPRESENTATIVE HOLM observed that the legislature used to have a
90-day session.
REPRESENTATIVE SAMUELS remarked that it used to have an
unlimited session.
CHAIR WEYHRAUCH concurred with Representative Holm that the
legislature used to meet for fewer than 120 days.
REPRESENTATIVE HOLM recalled that his father never spent 120
days [in a session while in the legislature]. He mentioned
looking back into the history to the 1960s and 1970s.
REPRESENTATIVE SAMUELS pointed out that the numbers on the
handout go back to the early 1980s.
CHAIR WEYHRAUCH noted that the legislature met in June and July
in the early 1980s.
REPRESENTATIVE GRUENBERG, in response to questions from Chair
Weyhrauch and Representative Samuels, said he did not meet for
an unlimited session [when he was a legislator previously]. He
added, "There was no constitutional limit prior to that time,
but the actual sessions may well have been limited."
REPRESENTATIVE SAMUELS, in response to a remark from Chair
Weyhrauch, said he thinks the legislature can do a lot more with
its time.
CHAIR WEYHRAUCH commented that it seems he's busier on the days
when the legislature isn't in session because of committee
meetings, constituents, and [special] interest groups, for
example.
Number 0719
REPRESENTATIVE SAMUELS replied that if Chair Weyhrauch "went for
300 days, then he would have 300 days of that." He said he
thinks it's inherent within the system that the posturing and
positioning takes place at the end, whether it's a 60-day or a
300-day session. The budget will not be addressed until the
last two weeks, regardless of the length of session. However,
Representative Samuels noted that advantages of HJR 4 would be
saving cash "right up front" and increasing the pool of people
who can run, for example.
REPRESENTATIVE GRUENBERG said term limits were in fashion for a
while, but he did not support them; subsequent studies have
shown they've seriously upset the balance of power in those
states that enacted them. He said the balance of power is
difficult to measure prospectively. He said he knows that some
states have significantly shorter session limitations, whereas
some states have [biennial] sessions.
REPRESENTATIVE GRUENBERG referred to a group called the
Institute of Governmental Studies (IGS) at the University of
California State Berkley (UCSB). He said he wonders if research
has been done on the effect of shorter legislative sessions and
the balance of power in states that have enacted it. He said he
has serious reservations and that the 120-day limit has turned
out to be okay. He posited that the question is what is needed
at this time.
REPRESENTATIVE SAMUELS noted that the National Conference of
State Legislatures (NCSL) has some reports.
REPRESENTATIVE GRUENBERG said he'd like to see them and to see
if the IGS has done any [studies].
Number 0888
REPRESENTATIVE HOLM requested that [Representative Samuels] look
further back historically than just the early 1980s. He said he
doesn't know if restricting [the length of session] is a bad
idea because he said he suspects that "work will fill all
voids." He said he shares [Representative Samuels'] concern
regarding how long the legislature runs.
Number 0960
REPRESENTATIVE SEATON referred to an e-mail that showed how many
bills had been introduced and how many had passed. He asked
Representative Samuels if he was saying that fewer bills should
be considered.
REPRESENTATIVE SAMUELS responded that there will likely be 600-
700 bills by the time the legislature is through, although
perhaps 80 or 90 will pass; some will be "feel-good bills,"
rather than big policy changes. He reiterated that having more
laws isn't necessarily a good thing. Representative Samuels
said, "We're asking every department in the State of Alaska to
do a little bit better job with their time and their money, and
we ought to look at ourselves and ask the exact same question."
He said many of the bills that get introduced are so somebody
can have a press conference, with no intention of moving the
bill. He said he has no issue with that being part of the
nature of politics; however, he doesn't "count that in the big
scheme of things as being important public policy."
Number 1103
REPRESENTATIVE SEATON remarked that unless the legislature
drastically changes the way bills go through the process, he
thinks a 90-day session might mean that bills wouldn't actually
be passed until the second session.
REPRESENTATIVE SAMUELS said he thinks some bills would move
faster, while others would take longer. He said if he could
leave earlier, he would be willing to do it much differently
than now. He mentioned night meetings.
REPRESENTATIVE GRUENBERG said things have gotten a lot more
complicated [in the legislature].
REPRESENTATIVE HOLM, in response to a question from
Representative Gruenberg, said he thinks the budget in 1972 was
$294 million during; only 36 people worked for the legislature
in those days, but now there are over 460. He said, "I think
what Representative Samuels is trying to say is that there may
be some economies of scale here, but we need to look at getting
them, rather than what we're doing."
REPRESENTATIVE GRUENBERG said it used to be the policy that
almost all bills were referred to at least two committees in
each house. He added, "Frankly, that was a check on the
majority, because most bills that move are majority bills." He
also said it was in vogue for a while to consider a unicameral
legislature.
Number 1287
REPRESENTATIVE HOLM moved to adopt Amendment 1, labeled 23-
LS0178\A.1, Cook, 3/10/03, which read:
Page 1, line 1:
Delete "an amendment"
Insert "amendments"
Page 1, following line 14:
Insert a new resolution section to read:
"* Sec. 2. Article XV, Constitution of the State
of Alaska, is amended by adding a new section to read:
Section 30. Transition; Regular Legislative
Session Duration. The 2004 amendment to Section 8 of
Article II first applies to the Second Regular Session
of the Twenty-Fourth Legislature and applies
thereafter. During the First Regular Session of the
Twenty-Fourth Legislature, Section 8 of Article II
applies as it read on January 1, 2004."
Renumber the following resolution section accordingly.
Page 1, line 15:
Delete "amendment"
Insert "amendments"
REPRESENTATIVE SAMUELS suggested that members could consider
[other numbers less than 120] if they didn't like the 90 days.
REPRESENTATIVE GRUENBERG referred to [language proposed to be
deleted on page 1] line 9, which read, "[FROM THE DATE IT
CONVENES]". He explained that because of the word "FROM", the
session is actually 121 days, rather than 120 days; therefore,
HJR 4 would shorten it by 31 days, rather than 30.
Number 1510
CHAIR WEYHRAUCH asked if there was any objection to adopting
Amendment 1 [text provided previously]. There being no
objection, it was so ordered.
Number 1548
REPRESENTATIVE SEATON noted that he has been busy and thinks the
90-day session would be difficult. Notwithstanding that, he
agreed that maybe some reduction would be a good thing.
REPRESENTATIVE SAMUELS maintained that if session were 300 days,
legislators would still be busy every day.
REPRESENTATIVE GRUENBERG noted that the second session is a lot
different from the first. He said the current session is
unusual because there is largely a new legislative body as well
as a new governor, and because of "the unusual fiscal situation
we find ourselves in." He said he thinks things are moving much
more slowly this year than in his recollection.
Number 1675
REPRESENTATIVE SAMUELS, in response to a question from Chair
Weyhrauch, referred to a handout showing the limits on
legislative session length in other states. He read random
samples showing that some states meet for a different number of
days in odd years than in even years, for example. He said
Alaska isn't out of the norm, but isn't on the low end.
CHAIR WEYHRAUCH noted that a publication called "Alaska
Legislature Roster of Members 1913-2002" lists the dates that
the legislature has convened and adjourned.
Number 1824
REPRESENTATIVE GRUENBERG said he'd like to get a copy of the
portion of the [Alaska] Constitutional Convention minutes where
the issue was considered of whether to impose a state
constitutional legislative session limit. He said he'd also
like the legislative history of the current constitutional
amendment.
REPRESENTATIVE SAMUELS responded, "We did read the minutes
[from] when they limited the session from unlimited to 120
days." He said he thinks HJR 4 is good public policy.
REPRESENTATIVE SEATON said he is trying to figure out the
previous philosophy. He surmised that the number of legislative
days excludes weekends.
REPRESENTATIVE SAMUELS related his belief that if the
legislature doesn't meet in floor session, it isn't counted as a
legislative day.
Number 1949
REPRESENTATIVE GRUENBERG noted that he was in the Fourteenth,
Fifteenth, Sixteenth, and Seventeenth [Alaska] State
Legislatures. He said there was a significant difference in the
number of days that the bodies met; the Senate had a policy,
which the House didn't have, that on many days it would gavel
itself in and then out again, and that would count as a day in
session. Thus [the Senate] didn't have to get permission to not
meet, for example. [HJR 4 was held over.]
The committee took an at-ease from 8:29 a.m. to 8:33 a.m.
HB 88-PROHIBIT CELL PHONE USE WHEN DRIVING
Number 2047
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 88, "An Act relating to prohibiting the use of
cellular telephones when operating a motor vehicle; and
providing for an effective date."
Number 2060
REPRESENTATIVE KELLY WOLF, Alaska State Legislature, sponsor of
HB 88, told the committee the intent of the bill is to limit the
use of cell phones while people are operating an automobile. He
indicated perhaps a friendly amendment would be offered to
change "motor vehicle" to "automobile". He explained that
"motor vehicle" would restrict cell phone use in just about
anything that has a motor, including airplanes and boats.
Noting that a similar bill had been before a previous
legislature, he said he'd picked the bill back up because of
contacts from constituents who lost loved ones due to accidents
caused by cell phone use.
REPRESENTATIVE WOLF revealed that most of the arguments against
a bill such as HB 88 state that using a cell phone while driving
is no more dangerous than eating a hamburger, adjusting the
radio, or putting on makeup or nylons while driving, for
example. He said his own son asked him if he would get a ticket
[if HB 88 passed], and he admitted that he himself is just as
guilty as anybody [of using a cell phone while driving].
REPRESENTATIVE WOLF said cell phone use while driving disengages
the brain from [necessary] activities. He noted that Alaska has
some of the most adverse driving conditions in the country. He
said he believes in HB 88 because people are responsible for
their actions. He explained that the concern is that [a person
using a cell phone while driving] puts other people at risk. He
said he has a responsibility to protect his family [which
extends to driving].
REPRESENTATIVE WOLF noted that currently in Alaska all bus
drivers who carry a CDL [commercial driver's license] are
prohibited from using a cell phone. In response to questions
from Chair Weyhrauch, he clarified that although HB 88 would
allow for the use of hands-free cell phones in automobiles, the
law presently doesn't allow the use of either hands-free or
handheld cell phones by CDL drivers who drive buses with a
capacity of 15 or more passengers.
Number 2307
CHAIR WEYHRAUCH asked how this differs from helmet laws.
REPRESENTATIVE WOLF noted that a motorcycle rider usually rides
solitarily or with one other person. He revealed that he rode a
motorcycle in the past, and a helmet is the reason that he is
here today. He indicated he doesn't believe a motorcycle is the
same weight and category as a vehicle. In further response, he
confirmed that taxi drivers don't carry a CDL and therefore
would be included under HB 88.
Number 2368
REPRESENTATIVE HOLM referred to a study conducted in North
Carolina, dated May 8, 2001, which found that drivers are most
often distracted by the following: 29.4 percent by something
outside of their vehicle; 11.4 percent by adjusting a radio or
compact disk [CD] player; 10.9 percent by talking to other
occupants in the car; 2.8 percent by adjusting vehicle or
climate controls; 1.7 percent by eating or drinking; 1.5 percent
by using a cell phone; and 0.9 percent by smoking. He asked,
"Wherein do we respect or request that people use good judgment,
rather than making it a law that they use good judgment?"
REPRESENTATIVE WOLF responded that Representative Holm brings up
some good points, and he said he'd take a look at that study.
One of the intents of HB 88, he explained, is to bring up
discussion about the concerns. He proffered that a distraction
in Alaska could be a 1,200-pound moose stepping in the roadway.
Cell phone use is an additional distraction, albeit a small one
[physically].
Number 2523
REPRESENTATIVE BERKOWITZ referred to the North Carolina study
and said he'd be curious to know if it means 1.5 percent of all
drivers or 1.5 percent of drivers who are using cell phones,
because that would be a huge difference in the impact.
REPRESENTATIVE BERKOWITZ questioned the use of the word
"operating". He recalled that people can be convicted of
driving while under the influence for operating a vehicle if
they are standing on the side of the road with the ignition on,
for example. He suggested that poses a problem [in HB 88]
because he surmised that the intent of the bill is to have
people pull over to the side of the road to use their cell
phones.
CHAIR WEYHRAUCH suggested that Representative Wolf ask
Legislative Legal and Research Services, because he said there
are at least two court of appeals decisions regarding the
example given by Representative Berkowitz.
Number 2570
REPRESENTATIVE WOLF confirmed that the intent of the proposed
legislation is to have people pull over to the side of the road
to use their cell phones, and he concurred with asking
Legislative Legal and Research Services to adjust the bill's
wording in that regard.
Number 2585
REPRESENTATIVE BERKOWITZ remarked that he didn't see a fiscal
note from either Department of Public Safety (DPS) or the
courts. He said he thinks both would be appropriate, since DPS
would be enforcing the law and the courts would have to deal
with their end of it. He added that this would seem to apply to
police officers. Inquiring whether Representative Wolf had held
any discussions with insurance companies regarding the bill, he
asked, "If we pass this law, will insurance rates come down in
the state?"
REPRESENTATIVE WOLF replied that he has not discussed that with
insurance companies and agreed it is something to look into.
Number 2625
REPRESENTATIVE SEATON asked if anything in the literature that
establishes that people in motor homes, for example, who are
talking on CB [citizens band] radios are less distracted than
someone talking on a cell phone.
REPRESENTATIVE WOLF answered no, but said it is worth looking
into.
Number 2661
REPRESENTATIVE GRUENBERG recalled that there have been a number
of cases that define "operating" a motor vehicle; in one case,
the person was drunk and asleep and had the radio on. He opined
that anything that can be done to lower accident rates is worth
considering, and said he appreciated Representative Wolf's
introducing HB 88. He pointed out that HB 88 only applies to
motor vehicles, and only on highways. He noted that the bill
doesn't apply to people using a headset, and yet they may not be
able to hear a siren, for example. He remarked that people
using headsets would have their hands free, but might have their
minds distracted. He mentioned a young person he knew who died
in a tragic accident that didn't involve a cell phone, but
involved "something similar."
REPRESENTATIVE WOLF reiterated that his office would be making
an amendment changing "motor vehicles" to "automobiles" in order
to focus on motor vehicles on the road system.
Number 2761
REPRESENTATIVE BERKOWITZ expressed concern about duplicating
existing statutes in the criminal code. He explained, "I've
always thought that the reckless driving and the negligent
driving covered this behavior." He asked Representative Wolf if
he is aware of any cases that have been charged involving
reckless or negligent driving and cell phone use.
REPRESENTATIVE WOLF answered no.
REPRESENTATIVE BERKOWITZ asked if anyone from the Department of
Law or the DPS was scheduled to testify.
CHAIR WEYHRAUCH said no one had signed up to testify. He
surmised that Representative Wolf wanted to get a sense of what
the questions are and then bring the bill back before the
committee.
Number 2799
REPRESENTATIVE WOLF said he believes the legal portions of HB 88
will be [fleshed] out in the House Judiciary Standing Committee.
REPRESENTATIVE BERKOWITZ asked Representative Wolf to do the
research and check with DPS, which keeps fairly exhaustive
records, or with [the Department of Law]. He said, "If it is a
problem in prosecution, then there might need to be a particular
fix, which may or may not fit in with what your bill's doing.
It's better to have the facts."
REPRESENTATIVE WOLF agreed to do that.
Number 2836
REPRESENTATIVE HOLM asked Representative Wolf if there are any
statistics reporting how many people are [using cell phones
while driving]. He questioned whether the legislature should
make laws that would affect that many people at one time. He
added, "Are we going to tell everybody that they're illegal?"
He compared it to the seatbelt law or the motorcycle helmet law.
He remarked that the motorcycle helmet law is for the benefit of
those who get in the crash, not for the benefit of the public.
He opined that there is a problem with where the benefits derive
and what kind of costs there will be. He noted that there is a
zero fiscal note attached to the bill; however, it comes from
the Department of Law, not DPS. He asked, "If we don't know how
many we're going to affect, can we get a decent fiscal note, and
will it come from [DPS], as well?"
Number 1900
REPRESENTATIVE WOLF said he could contact DPS and doesn't know
the statistics on how many people use a cell phone in general or
while driving, specifically. He commented that its use is
becoming more common, as a safety line for many; for example, he
knows many people who have crashed planes while flying in Alaska
and whose cell phones were a lifeline. He included boating as
an activity for which a cell phone has been lifesaving. Saying
cell phone use is expanding beyond landline use, he referred to
a study which reported that by the time all the fiber optics are
laid throughout the nation, they will be made obsolete by the
cell phone.
CHAIR WEYHRAUCH said he is torn over the issue because he uses
his own cell phone during his 20-minute one-way commute to work
in order to return calls and check his voice mail.
TAPE 03-27, SIDE B
Number 3002
CHAIR WEYHRAUCH opined that the worst of cell phone use is the
distraction of punching in the numbers in heavy traffic. He
said he knows of cases when people have been found negligent and
had to pay damages because of cell phone use and operating motor
vehicles negligently. He commented that the previously stated
question regarding insurance companies was probably a good one
because they are probably having to pay coverage on some of
those accidents.
Number 2957
REPRESENTATIVE GRUENBERG related that some close friends of his
were killed by a young man who was driving and leaned down to
pick up a soda from the floor of his truck.
CHAIR WEYHRAUCH concluded, "So, whatever we can do to make life
safer is great; it's just this tension between making it safer
and interference with personal liberties and individual
responsibility." He described it as the classic policy call.
Number 2919
REPRESENTATIVE WOLF said he is the last person who'd want to
stand before the committee and deny freedom of speech or freedom
of movement. He said the encouragement of HB 88 is to attempt
to direct people to use a hands-free unit or to pull off the
side of the road. He indicated a correlation between hands-free
cell phones and responsible driving. He noted that some cell
phone units are even voice-activated.
CHAIR WEYHRAUCH announced that HB 88 would be held over.
HB 92-CLERGY TO REPORT CHILD ABUSE
Number 2828
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 92, "An Act relating to reports by members of the
clergy and custodians of clerical records who have reasonable
cause to suspect that a child has suffered harm as a result of
child abuse or neglect."
Number 2810
REPRESENTATIVE HOLM moved to adopt the proposed committee
substitute (CS), Version 23-LS0257\I, Lauterbach, 3/12/03, as a
work draft.
CHAIR WEYHRAUCH said he wanted to hear from Richard Block.
Number 2761
RICHARD BLOCK, Christian Science Committee on Publication for
Alaska, noted that he'd testified at the [March 6, 2003] hearing
on HB 92, at which time he'd indicated his organization didn't
take a position on HB 92 in general, but recognized the
important problem it attempts to address. Mentioning a proposed
CS from the prior hearing [Version D, adopted March 6, 2003], he
pointed out that an important provision in the original bill had
been removed; however, he'd spoken with Representative Lynn's
staff, who [added] language in Version I. He said [the
Christian Science Committee on Publication for Alaska] finds
Version I acceptable.
Number 2690
CHAIR WEYHRAUCH announced that without objection, Version I was
before the committee for discussion.
Number 2685
REPRESENTATIVE LYNN, sponsor of HB 92, thanked members for their
constructive questions and concerns expressed at the previous
hearing. He said the whole purpose of HB 92 is to help protect
children and all the various faith communities. He told the
committee that he thinks they will like the changes [in
Version I]. He deferred to his staff to address those
questions.
Number 2628
W.M. THOMAS MOFFATT, Rev., Staff to Representative Bob Lynn,
Alaska State Legislature, began by noting that Chair Weyhrauch
had expressed concern previously regarding abuse of elders.
Father Thomas said, "I think, when we talked with your office,
that's covered in another section of the bill under 'abuse of
the vulnerable', where, parenthetically, 15 categories of
individuals who are required to report - number 10 of which is
the clergy. Here, of course, in this bill, we're seeking to add
clergy as [paragraph (9)]."
FATHER THOMAS referred to the concerns stated by Representatives
Holm and Seaton with respect to the reporting of neglect as well
as abuse. He explained that the language in Version I was
changed so that the clergy would only be required to report
abuse. He referred to page 2, beginning on line 10, which read:
a clergy member is not required to report a reasonable
suspicion of harm to a child if the clergy member
believes that the harm comes only from neglect.
FATHER THOMAS noted that because of a query by Representative
Berkowitz during the previous hearings asking for the definition
of a "recognized religious community", [the sponsor] had removed
the word "recognized". He said Representative Gruenberg had
brought up a question regarding the "look-back" provision in the
original bill that would only apply to the clergy. Father
Thomas said that provision was removed "to place the clergy on
an even keel with the other eight categories required to
report."
FATHER THOMAS reported that at "bishop" was added at the request
of Representative Dahlstrom's office on [page 3, line 1] of
Version I; "Christian Science practitioner" was added at the
behest of a representative of the Christian Science Church;
"pastor" was added in response to testimony from "the
evangelical community"; and the phrase "or person in a similar
leadership position" was added as a "catch-all." Father Thomas
opined that the changes make HB 92 a much better bill.
REPRESENTATIVE GRUENBERG and REPRESENTATIVE BERKOWITZ commended
Representative Lynn and Father Thomas for their efforts.
Number 2369
REPRESENTATIVE BERKOWITZ said he is a strong believer in the
separation of church and state; one reason is that it protects
churches from the state. Expressing concern that the definition
of "clergy" singles out a particular faith, he referred to the
definition of penitential communication in Section 2 [page 2,
lines 17-23], which read:
In this subsection, "penitential communication" means
a communication intended to be in confidence,
including a sacramental confession made to a clergy
member, who, in the course of the discipline or
practice of the clergy member's church, denomination,
or organization, is authorized or accustomed to hear
those communications and, under the discipline,
tenets, customs, or practices of the church,
denomination, or organization, has a duty to keep
those communications secret.
REPRESENTATIVE BERKOWITZ said [the definition] in some ways
makes those disciplines, tenets, and customs elements of proof
at a trial and thus puts a judge or a jury in a position of
determining whether these are disciplines, tenets, or customs,
which seems to cross the barrier between church and state. He
explained that he is just looking for a preferable way of
defining what "penitential communication" means, because one
other problem he has with [Section 2, text stated previously] is
that it doesn't describe whom [the communication] is between.
It could be between people who are repeating hearsay and gossip,
for example.
REPRESENTATIVE BERKOWITZ therefore suggested adding "between
clergy member" after the word confidence [on line 18], followed
perhaps by "and a penitent". He said he doesn't think it needs
to be any broader, and that "getting into" [the subject of lines
19-23] is incredibly problematic.
Number 2210
REPRESENTATIVE GRUENBERG referred to part of [Section 1,
paragraph (9), page 2, lines 9-12], which read:
(9) clergy members, except as provided in AS
47.17.021 and except that, notwithstanding other
provisions of this section or this chapter, a clergy
member is not required to report a reasonable
suspicion of harm to a child if the clergy member
believes that the harm comes only from neglect.
REPRESENTATIVE GRUENBERG suggested that rather than "discipline,
tenets, customs, or practices", the focus could be on whether
the clergy member believed he/she had a duty to keep the
communication secret. Furthermore, regarding line 12, he asked
whether that belief should be subjective or objective. He
explained, "When you say 'if somebody believes,' that's ...
subjective whether this person actually believed." He defined
"objective" as whether it was a reasonable belief - "whether the
person reasonably believed ... they had a duty to keep the
communications secret, on the one hand, and on the other,
reasonably believed that the harm came only from neglect."
Number 2155
REPRESENTATIVE GRUENBERG said he thinks the word "penitent"
comes from the word "repent." He added, "I don't know you want
to leave it to only people who are repenting." He said he
thinks the priest-penitent privilege is the broadest evidentiary
privilege in the law. He related his belief that clergy should
be absolutely protected in their ability to communicate with
anyone who comes to them in a confidential manner, not just with
members of their congregation.
Number 2095
REPRESENTATIVE SEATON referred to Rule 506 of the [Rules of
Evidence, handed out by Representative Gruenberg during the
previous hearing on HB 92]. He said he supports the intent of
the bill, but asked if [the issues being discussed by the
committee] would modify the [Rules of Evidence].
CHAIR WEYHRAUCH said no. In response to a follow-up question,
he said, "There's absolutely no modification of a court rule or
evidence rule in this. It may have influenced its application
or interpretation or provide nuance, but ... specifically to
this bill, there's no court or evidentiary rule amendment."
Number 1999
REPRESENTATIVE BERKOWITZ asked, "The same men that added a
subsequent trial - the penitent or the individual - could assert
the privilege in evidentiary fashion, which would preclude
admission of a confession?"
REPRESENTATIVE GRUENBERG observed that Chip Wagoner was shaking
his head and appeared to want to say something.
REPRESENTATIVE LYNN noted that Bob Flint, an attorney, was also
available for comment.
Number 1945
CHIP WAGONER, Lobbyist for the Alaska Catholic Conference, said
that conference is the entity that the Roman Catholic bishops of
Alaska use to speak on public policy matters. He noted that the
exception to the evidentiary rules is very limited in that it
only applies to the proceedings and actions that are before the
court.
MR. WAGONER mentioned an Alaska case in which a man who was a
clergy member, pastor, and psychologist counseled a member of
his congregation; during that session, the member brought up the
fact that he'd sexually abused a child, and the clergyman
reported it. The case went to court, and the court held that
the [exception in the evidentiary rules] didn't apply because
there was no case, action, or proceeding at the time of the
reporting. Therefore, Mr. Wagoner said he didn't think the
[Rules of Evidence] exception would "apply to this issue of
reporting, at this time."
Number 1814
REPRESENTATIVE SEATON responded, "I appreciate this. I just
wanted to make sure that it was brought out and that we figured
out whether we had a problem before we forward this."
Number 1803
REPRESENTATIVE GRUENBERG said he thinks the relevance of Mr.
Wagoner's testimony to Representative Seaton's question is that
the [evidentiary rule] only applies to a person who is
testifying in court. He asked, "Am I right?"
MR. WAGONER replied that the issue is that the [evidentiary
rule] did not apply in the aforementioned case because there was
no action preceding the case at the time of the reporting. He
said he was absolutely sure that this is what that case said.
REPRESENTATIVE BERKOWITZ suggested the issue might be discussed
in the House Judiciary Standing Committee.
CHAIR WEYHRAUCH said the current committee must decide if it
believes it's in the state's interest to have information of
child abuse reported that was obtained in a "religious forum."
Number 1625
REPRESENTATIVE GRUENBERG asked, "If a person gets a
communication and then reports it, does that basically waive the
privilege, in some manner, in a subsequent court proceeding?"
MR. WAGONER said yes, according to the way he'd read the
aforementioned case.
REPRESENTATIVE SEATON said he wanted to flag [this issue] for
the House Judiciary Standing Committee. He added that he is
"happy enough with where the bill is."
Number 1531
MR. BLOCK referred to Representative Berkowitz's previous
comment about the definition of "clergy member" and including
reference to a specific religion; Mr. Block surmised that
Representative Berkowitz was referring to the Christian Science
practitioner. Mr. Block explained that any reference to that
was removed in the first proposed CS. He mentioned a past
discussion with Father Thomas and a request for the language -
he said he thinks it was "religious practitioner" - to be put
back in. He said he thinks the concern was that the language
wasn't clearly defined. At the time of that discussion, Mr.
Block said, [Father Thomas] asked if using the term "Christian
Science practitioner" wouldn't be more specific and more
acceptable. Mr. Block said he agreed with Father Thomas at that
time, which is "how that term got in there."
MR. BLOCK noted that the term "religious healing practitioner"
is currently used in statute and is "somewhat more generic, but
also sufficiently specific." He said, "We would accept that
language, as well, if that would tend to make it less
denominational, but preserve the intent of both our concerns and
the objectives of the bill."
Number 1410
MR. BLOCK referred to discussion regarding the definition of
"penitential communication" as being between the penitent and
the clergy. Noting that he isn't sure what that means without a
definition of who the penitent is, Mr. Block pointed out that
somebody coming to a religious healing practitioner could be the
alleged perpetrator seeking healing and how to change his/her
own course of action; however, it could be the victim seeking
healing of the impact that such an event had. He added, "That
communication, as well, under the tenets and bylaws of our
church, [is] required to be kept confidential. And, certainly,
we would want to see those communications protected as well."
Mr. Block said [the Christian Science Committee on Publication
for Alaska] thinks the current language in subsection (a) is
appropriate and sufficiently specific, and that it is
appropriate to move forward with the bill.
CHAIR WEYHRAUCH said, "I'm not sure he had your intent down,
Representative Berkowitz. I didn't pick that up from your line
of questioning."
Number 1298
JOANNE GIBBENS, Program Administrator, Division of Family &
Youth Services (DFYS), Department of Health & Social Services,
said she wanted to share some information regarding to the issue
of neglect as it pertains to mandatory reporting. She reminded
the committee that all "current mandated reporters" are required
to report if they have reasonable cause to suspect that a child
has suffered harm as a result of neglect. She suggested it is
important to look at the issue of neglect as it pertains to the
actual child-in-need-of-aid (CINA) statutes in AS 47.10, which
govern legal issues regarding the department's taking custody of
a child; that happens when the court determines a child could be
a child in need of aid. Citing AS 47.10.014 and AS 47.10.019,
she told members:
Receiving a call reporting neglect does not
automatically mean that a social worker comes to the
door and takes custody of a child. Very often, by
receiving a call concerning neglect, the division is
able to assess the situation and provide help that the
family may not have been able to receive, had we not
been called. Often, we are able to arrange for
assistance to families with things like protective
daycare, which they would not have access to without
our intervention.
In other situations, a call concerning neglect may
uncover more serious issues in the home, for example,
substance or physical abuse. Responding to concerns
of neglect often helps us to assist families before
situations get worse. Sometimes the stresses in
families can escalate to situations where children are
more severely abused. And responding before those
things happen may protect children and help families.
I guess the point I'm making here is that just because
a family is poor is not reason, in and of itself, to
call DFYS for a concern of neglect. I would also like
to add that should members of the clergy become
mandated reporters, the division would work with the
clergy on providing education and training being a
mandated reporter, like we do for others.
Number 1042
REPRESENTATIVE GRUENBERG recalled that a number of years ago the
legislature amended perhaps AS 47.17 to include emotional harm
[as an abuse] that must be reported. He asked where the
citation of statute is that says what people must report.
MS. GIBBENS responded that AS 47.17.020 lists persons required
to report, and AS 47.17.290 gives the definition.
REPRESENTATIVE GRUENBERG referred to the definition of child
abuse or neglect in AS 47.17.290. He said, "My recollection is,
it was required under federal law. And that's already in the
law, and I think that whether or not we add neglect in this
bill, that's what you have to report under current law, right?"
MS. GIBBENS answered yes. She added that she is not certain
that the way the current version of the bill is written would,
potentially, alter that.
REPRESENTATIVE GRUENBERG said he thinks this law should be
absolutely congruent with the rest of the law. Otherwise,
federal funding might be jeopardized, for example.
MS. GIBBENS said she wasn't sure it would jeopardize federal
funding.
REPRESENTATIVE GRUENBERG recalled that the legislature
specifically had to put that language in to comply with federal
law. He said he doesn't want to violate federal law.
Number 0794
REPRESENTATIVE SEATON said his sole concern regarding the bill
is that the committee may be putting the clergy "in a spot" of
reporting something that may [result] in violating statute and
being guilty of a misdemeanor for every case when they have a
suspicion that there may be neglect.
Number 0580
REPRESENTATIVE BERKOWITZ suggested that the previously stated
intent of DFYS to help members of the clergy should be reflected
in a positive fiscal note.
[Ms. Gibbens nodded in agreement.]
Number 0524
REPRESENTATIVE BERKOWITZ noted that [HB 92] has a subsequent
referral to the House Health, Education and Social Services
Standing Committee. He opined that it would be more appropriate
that it go to the House Judiciary Standing Committee.
REPRESENTATIVE LYNN concurred.
Number 0512
REPRESENTATIVE GRUENBERG said he supports Representative
Seaton's previous remarks. He pointed out that [Ms. Gibbens']
initial discussion of the definition of neglect came from a
different part of Title 47. He explained that this doesn't deal
with [AS] 47.10, but [AS] 47.17. "And the definitions you were
using do not apply," he said, offering his belief that the
definitions in AS 47.17 apply to this bill, and that there is a
definition of what has to be reported already in [AS] 47.17,
which he'd just read. He sought a legal opinion on whether
using a definition that excludes neglect might possibly not be
in compliance with federal law.
MS. GIBBENS deferred to Mr. Brinkman, who she said hears the
civil DFYS cases.
Number 0339
BRADLEY BRINKMAN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law, told the
committee he is one of two attorneys who does the day-to-day
CINA cases for Southeast Alaska. Referring to Representative
Gruenberg's question, he said he didn't know. Mentioning the
mandates required by the domestic violence laws that went into
effect in the last five years and the monies that have flowed
through the state with regard to that, he suggested Ms. Gibbens
might know that.
MR. BRINKMAN highlighted that AS 47.17 mirrors many of the
requirements in AS 47.10. The mandatory reporting laws are made
to address neglect and abuse that a child may suffer and to stop
that abuse before it becomes severe or before removal from the
home is necessary. He said abuse and neglect have always been
consistent throughout both sides of the statute, and to carve
out an exception in one-half of the statute, for one out of nine
categories [of reporters], may lead to confusion later. For
example, those in the other eight categories may say they only
want to report neglect or only want to report abuse.
MR. BRINKMAN said he understands Representative Seaton's concern
regarding interference with the relationship between a pastor or
priest and his congregation, but the bottom line is this: the
end result of neglect is the same for the child as it is with
sexual abuse. He said a parent, because of an addiction like
gambling, for example, may be neglecting a child by not
providing that child with food, which could result in
malnutrition or starvation, or [not providing the home with]
fuel oil, which might result in pneumonia. He said, "We think
that that should apply equally in the mandatory reporting
requirements, just as abuse, because the ultimate result - the
harm to the child - would be ... the same."
TAPE 03-28, SIDE A
Number 0001
REPRESENTATIVE SEATON said all the other [categories currently
required to report] are required to "have some kind of a state
license," but clergy are not. He said he thinks "we" are
expanding the state's reach too far into the matter of the
clergy by requiring that clergy members, who are not licensed by
the state, report anyone to the police who they suspect fails to
provide necessary food, care, clothing, shelter, or medical
attention for a child.
Number 0172
CHAIR WEYHRAUCH noted that both the original bill and the
proposed CS [Version I] have received broad ecclesiastical
support. He said he thinks clergy would be the ones to bring
forward concern or opposition, and he has heard none.
REPRESENTATIVE SEATON noted that there had been response from
clergy which indicated they had looked at the bill from the
aspect of child abuse, not from the aspect of neglect.
Number 0289
REPRESENTATIVE LYNN said he supports the language of Version I.
He said [Representative Seaton's concerns] may be included in
future legislation, but are "beyond the scope of what we're
trying to do here."
REPRESENTATIVE SEATON explained that the idea behind his concern
came from a witness's testimony during a previous hearing that,
in part, neglect is based on a community standard.
Representative Seaton said his reading of the law showed that is
not the case, however; every clergy [member], whether in a rural
or urban area, would be required to report. The reporting is in
state statute; it is not a community standard. He reiterated
that this is his problem with the bill "if it goes back the
other way."
Number 0443
CHAIR WEYHRAUCH, referring to the neglect issue, community
standard, and a previous statement by Representative Berkowitz,
said the definition is this: "You know it when you see it, and
you don't know it until a jury defines what negligence and
neglect was." A jury of peers defines the community standard
[as it relates to neglect], he suggested.
REPRESENTATIVE SEATON responded that the bill doesn't ask the
clergy to define a community standard, but asks them to report,
based on a statute.
CHAIR WEYHRAUCH remarked, "Except from the law, except for
neglect. I understand that."
Number 0515
REPRESENTATIVE HOLM noted that the committee is making policy
for the whole state, not for Anchorage or Fairbanks, but for
many [rural] places that will have a different idea of how to
parent. He suggested that perhaps what the committee is
addressing is the tolerance of society for aberrant behavior or
for what is called "antisocial" behavior - behavior that does
not meet the norms. He said he has a problem with clergy's
having to subscribe to the confines of the state's definition of
what neglect is. He said it is a difficult situation. He said
"none of us sitting here" wants children to be neglected. He
related that his wife, as a teacher, sees many children with
different ranges of parental care. He opined that it would be a
good thing if people had to pass a test to become parents,
although he admitted society can't do that. He said [the
committee] obviously has to consider policy for the whole state
that allows some flexibility.
REPRESENTATIVE HOLM told the committee that he grew up on a
homestead with nothing. He said people today in Anchorage or
Fairbanks could say that his parents abused him because he
didn't have a lot of things. He said he was not abused; he
didn't know any better. He said there are no definitive terms
for what neglect really is and that he doesn't want to make
crooks out of the clergy.
Number 0727
MR. BRINKMAN, regarding the other eight categories [required to
report abuse], noted that paid employees of crisis intervention
programs, for example, do not have licenses. Furthermore, he
noted that although childcare providers do have licenses, they
probably have a lot less training than clergy members have.
MR. BRINKMAN explained, "All this simply does is say, ... when
you have a ... reasonable suspicion that this child may not be
getting fed, may not be getting medical care, ... may be
suffering from pneumonia because the parents used the monies to
go out to play bingo, to drink, or whatever, you report." He
said DFYS then looks at the report, but may do nothing because
it might not agree with the standard of the person reporting.
He said, "This just gets an early intervention, an early look
the majority of the time, without removing the children from the
home." In fact, he stated, [the reporting] sometimes helps in
putting in services such as fuel oil assistance or food stamps.
MR. BRINKMAN said, "So, from the division's standpoint and the
department's standpoint, neglect can end up in as serious a
situation as sexual abuse." He added, "And if we are attempting
to provide for the safety of the child, we are simply asking
that the same statutory matters apply to the clergy as to the
other eight ... categories."
Number 0930
REPRESENTATIVE HOLM suggested to Mr. Brinkman "It's different
than saying you're 'simply' just reporting. You're simply
having a misdemeanor if you don't report." He said he thinks
the situation is different; that, in essence, is where his
problem [with the issue] lies.
MR. BRINKMAN concurred. He said, "We have put that, as a
society, on school aides, daycare providers, policemen, domestic
violence folks, nurses." He agreed that it is a policy call.
REPRESENTATIVE HOLM opined that all who work those [jobs Mr.
Brinkman listed] are paid to do what they do.
MR. BRINKMAN responded that some aren't paid, but work
voluntarily.
REPRESENTATIVE HOLM replied, "Most are." He said he and Mr.
Brinkman could "go round and round with this" without changing
each other's minds, and stated his appreciation.
MR. BRINKMAN asked that the committee consider the department's
position with regard to this matter.
CHAIR WEYHRAUCH said the questions being asked are an indication
of the committee's concern for [the issue].
Number 1017
REPRESENTATIVE GRUENBERG stated, "I don't believe, in this area
of the law, it's a community standard. I think it's a statewide
standard." He suggested that these issues generally arise in
CINA cases and are something the judge interprets as a statutory
standard.
MR. BRINKMAN responded that there is some community standard put
into place. He explained, "Neglect may be different in a
village with the ability to get medical care from a physician to
address a problem, as opposed to a health aide."
REPRESENTATIVE GRUENBERG said, "But it's not like the statute
for medical malpractice or something like that."
MR. BRINKMAN said no.
REPRESENTATIVE GRUENBERG said he sees potential for at least
four amendments.
CHAIR WEYHRAUCH stated his intention to ask for the next
committee of referral to be switched from the House Health,
Education and Social Services Standing Committee to the House
Judiciary Standing Committee so that the latter can address the
legal issues.
Number 1156
REPRESENTATIVE GRUENBERG offered Amendment 1: On page 3, line 2
[of Version I], between "rabbi" and "practitioner", delete
"Christian Science" and add "religious healing".
REPRESENTATIVE LYNN said he would have no problem with that.
CHAIR WEYHRAUCH announced that there being no objection,
Amendment 1 was adopted.
Number 1285
REPRESENTATIVE GRUENBERG offered Conceptual Amendment 2, as
follows: On page 2, line 18, in between "intended" and "to",
add "by the penitent" or whatever the correct term would be.
REPRESENTATIVE GRUENBERG explained that he wanted to clarify
that ["communication intended to be in confidence"] does not
mean that the clergy "intended". In response to a request for
further clarification, he mentioned the evidentiary rule and
said the privilege belongs to the penitent, not to the clergy.
Number 1330
REPRESENTATIVE LYNN asked Mr. Wagoner to address the proposed
amendment.
MR. WAGONER said that without doing research, he doesn't think
the privilege in the Rules of Evidence applies to the penitent.
He added, "I think that may also apply to the clergy member,
also."
REPRESENTATIVE GRUENBERG said the commentary, subsection (c),
"Who May Claim the Privilege" from the [Rules of Evidence] makes
clear that the privilege belongs to the communicating person.
He suggested that "communicating person" could be used, rather
than "penitent". He continued:
However, a prima facie authority on the part of the
clergyman to claim the privilege on behalf of the
person is recognized. The discipline of the
particular church and the discreetness of the
clergyman are believed to constitute sufficient
safeguards for the absent communicating person.
REPRESENTATIVE GRUENBERG said he wants it clear that "we" are
tracking the evidence rule in this respect. He said he would
change the amendment from "penitent" to "communicating person".
Number 1458
MR. BLOCK said if any changes are to be made, the one suggested
by Representative Gruenberg is the right one because "by the
communicating person" could include both the victim and the
wrongdoer. He said it is important for both to be encouraged to
communicate with the clergy.
CHAIR WEYHRAUCH clarified that Conceptual Amendment 2, page 2,
lines 17-18, would read: "a communication intended by the
communicating person to be in confidence".
REPRESENTATIVE LYNN said he had no objection.
Number 1512
REPRESENTATIVE BERKOWITZ suggested the following:
Just to be clear on this, then it would seem to me,
... "a communication by a communicating person to be
held in confidence to a clergy member". And then I
think you can have a period after "the clergy member",
and the subsequent portion of that paragraph is not
necessary.
MR. WAGONER stated the preference of keeping the additional
clause in the language because "sacramental confession" is
extremely important to [the Roman Catholic] Church.
REPRESENTATIVE BERKOWITZ told Mr. Wagoner that "sacramental
confession" may have a particular application for [the Roman
Catholic] Church, but he doesn't think it's the state's business
to determine what a sacramental confession is. He opined that
it is particularly critical, from the church's perspective, to
determine on its own what a sacramental confession is.
MR. WAGONER responded:
As long as the intent of this committee in deleting
that language is that the church's sacramental
confession is an exception to the reporting, because
if you take the language out and you don't say
anything about that, then the court could look into
the legislative history, and would say, "Oh, they took
it out." That's my concern.
Number 1612
REPRESENTATIVE BERKOWITZ said he thinks the evidence would
support his understanding that a sacramental confession the
Catholic Church is intended to be held in confidence. In
response to a question from Mr. Wagoner, he added, "Even without
this language." He continued as follows:
But I just don't think that the church ever wants to
be in the position of going into a court and trying to
prove that, a) it is a sacramental confession, and b)
that it should be held in confidence. That's not
something, from the church's perspective, I think
you'd ever want to have happen.
MR. WAGONER commented that he doesn't think his church would
ever have a problem if it had to go to court and define what its
sacramental confession is.
Number 1649
REPRESENTATIVE GRUENBERG restated Conceptual Amendment 2,
page 2, beginning on line 17, as follows:
In this subsection, "penitential communication" means
a communication to a member of the clergy intended by
the communicating person to be in confidence to the
clergy member.
He added, "And we strike the remainder of that paragraph."
Number 1826
MR. BLOCK said, since the definition of "clergy" has been
expanded, it would cover most situations; however, the value of
including the language [on page 2, lines 19-23] does add scope
for those clergy who are part of a religious denomination where
a penitential communication or sacramental confession isn't part
of its rites. He indicated the language makes it clear that
even though some churches don't have those rites, they are still
protected. In response to a question from Representative
Gruenberg, he clarified that the aforementioned amendment to the
language [on lines 17-18] defines "penitential communication" in
a limited way, which technically is probably adequate; however,
he did appreciate the inclusion of the language [on lines 19-23]
"because it does then, specifically, include in its scope, our
situation."
Number 1952
REPRESENTATIVE GRUENBERG noted that in Title 1 of the general
statutes the word "including" is defined to mean "including but
not limited to"; therefore, he concurred with Mr. Block.
CHAIR WEYHRAUCH suggested the language, per Mr. Block's and
Representative Gruenberg's discussion, should be as follows [on
page 2, lines 17-23]:
In this subsection, "penitential communication" means
a communication to a member of the clergy intended by
the communicating person to be in confidence to the
clergy member who, in the course of the discipline or
practice of the clergy member's church, denomination,
or organization, is authorized or accustomed to hear
those communications and, under the discipline,
tenets, customs, or practices of the church,
denomination, or organization, has a duty to keep
those communications secret.
REPRESENTATIVE BERKOWITZ [and an unidentified committee member]
objected. He said the language needs to be broader and
explained:
When we put the ... disciplines, tenets, customs, or
practices of any church denomination or organization
before a trier of fact, that's an encroachment on
freedom of religion, and I am loath to go there. I
think the salient feature of what we're trying to do
in this bill is require reporting. We're not putting
the religion itself on trial. It's a different thing
to put the belief of the clergy member and the belief
of the communicating individual on trial about the
confidence. But when you put the tenets, customs, and
principles in front of a jury, that's something
altogether different, and I think we ought not go
there.
REPRESENTATIVE GRUENBERG said, "I don't want to limit it to
those people; I want to say they are included along with other
people, as well." He offered his estimation that the foregoing
is the committee's intent here.
REPRESENTATIVE GRUENBERG suggested a possible conceptual
amendment on line 21: "and including communication to clergy
people who, under the discipline, et cetera, have a duty to keep
the communication secret." He added, "So, it would be including
language that'd be exemplary, but it wouldn't be limited to
those people." He asked how that would be.
Number 2085
REPRESENTATIVE BERKOWITZ responded:
You're adding elements of proof here, in the
"including" section. And this might be tedious for
people who are paying attention who don't actually
have to prove things in court, but I think it's a very
critical distinction. You're changing the focus ...
of what we're trying to do here. The focus should be
very narrow. We are trying to focus on penitential
communication being the ... communication that's held
in confidence.
When we bring in the tenets and principles and customs
and practices of a religious entity, that's something
separate. And I don't think that those customs and
practices should ever, ever come before a court or a
trier of fact.
Number 2134
CHAIR WEYHRAUCH reiterated that the people testifying as
representatives of churches haven't said they have a problem
with the language. Regarding the broader context and separation
of church and state, he noted that the committee is currently
dealing with "church" in the bill, so it can't be ignored. He
said he appreciates [Representative Berkowitz's] concern, but
suggested the issue may be one for the House Judiciary Standing
Committee to address.
CHAIR WEYHRAUCH announced that he would like to act on
Representative Gruenberg's specific amendment, "leaving that
language in there," to accommodate the concerns expressed by
Mr. Wagoner and Mr. Block. With regard to the philosophical
notion of the discipline, tenet, custom, and practice, he
suggested that needs to be worked on.
REPRESENTATIVE GRUENBERG said he would commit to work on this in
the House Judiciary Standing Committee with the sponsor and
Representative Berkowitz.
CHAIR WEYHRAUCH asked whether there was any objection to
[Conceptual Amendment 2, as amended], as previously read. He
clarified that it would be: "for communication to a member of
the clergy intended by the communicating person to be in
confidence to the clergy member".
REPRESENTATIVE LYNN added, "Comma, 'including'."
CHAIR WEYHRAUCH said the [other] language would stay the same.
[No objection was stated, and Conceptual Amendment 2, as
amended, was treated as adopted.]
Number 2120
REPRESENTATIVE BERKOWITZ moved to report CSHB 92, Version 23-
LS0257\I, Lauterbach, 3/12/03, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 92(STA) was reported from the
House State Affairs Standing Committee.
ADJOURNMENT
Number 2158
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at
10:13 a.m.
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