HB 13-NO ST. FUNDS FOR FEDERAL REGISTRY  5:2:11 PM CHAIR CLAMAN announced that the first order of business would be HOUSE BILL NO. 13, "An Act prohibiting the expenditure of state or municipal assets to create a registry based on race or religion." 5:12:35 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, advised that this bill arose from a series of statements made by the national administration before the national election, after the national election, and after the inauguration. Essentially, he explained, Title 44.99, is called "Miscellaneous Laws" and this bill adds a prohibition to spending state assets by aiding federal agency in creating registries based on race, religion, ethnicity, or national origin. It is noteworthy, he related, that the section falls under "other prohibitions on uses of state assets," such as aiding the federal government in any infringement of Alaskan's Second Amendment rights to keep and bear arms and due process rights. He suggested that this legislation be viewed as a civil liberties and anti-federal overreach provision. 5:14:40 PM PAUL KELLY, Staff, Representative Andy Josephson, Alaska State Legislature, explained that HB 13 prevents state and municipal resources from being spent in order to violate the privacy of Alaskan residents on issues that should not be of public interest, including race, religion, ethnicity, and national origin. This bill is a preventative measure meant to stop an injustice before it happens and, he commented that it should save money for the state and its municipalities while securing liberties that should be protected by state and federal constitutions. He referred to Korematsu v. United States, [323 U.S. 214 (1944) contained within the committee packet], and explained that Fred Korematsu was an American citizen of Japanese ancestry who went into hiding rather than submit to Japanese internment camps required by the Department of the Army during World War II. Mr. Korematsu was arrested and he then took his case all the way up to the United States Supreme Court which, in the end, ruled against him. He surmised that many people regard this as one of the worst decisions of the United States Supreme Court, and it proved that the justice system is rarely expedient when rights are violated, and that justice is not always guaranteed in the end. Mr. Korematsu spent more than three years in custody until he and his family were released at the end of the war. MR. KELLY advised that the state stands to save money with this legislation, there is a zero fiscal note, and this bill prevents unfunded mandates of the federal government from consuming state and municipalities resources. Another reason to support the bill, he related, is to protect the liberty of constituents because they may arrive from the Philippines, Canada, Mexico, Europe, Russia, Japan, and Viet Nam, and Alaska's residents hold privacy and other constitutional rights sacred. In summary, he said, this bill is about the following: prohibiting the state or its municipality from using its assets to create a registry based on race, religion, ethnicity, or national origin; it spares Alaskans the expense, hassle, and uncertainty, of using the courts to defend their rights; it saves Alaska's state and municipalities resources that would be used to support an unfunded mandate; and it reduces government intrusion. 5:18:26 PM REPRESENTATIVE LEDOUX noted that the school districts must have some sort of records as to who speaks what language, and while the records are not necessarily based on race, religion, ethnicity, or national origin, they may be based simply on language, which offers a good idea of the student's origin. She asked how that interplays with this legislation. MR. KELLEY responded that this legislation addresses federal mandates, and Legislative Legal and Research Services found that although this information is sometimes collected within state and municipal agencies, it is never published other than in its aggregate form, such as a percentage of different races, ethnicities, religions, or national origins, in a statistical sense. 5:20:17 PM REPRESENTATIVE LEDOUX referred to Mr. Kelly's statement that "it's never published" and asked whether the school district has the information. MR. KELLEY replied that he was unsure exactly what information the school districts keep, but if the issue is the importance of what language someone speaks, it would not be necessary to know where they come from, simply the language they speak. REPRESENTATIVE LEDOUX expressed that the language someone speaks is probably a pretty good indication of their origin. REPRESENTATIVE JOSEPHSON explained that the research request included advising of the "benign registries" made currently, and Legislative Legal and Research Services reported that the Department of Health and Social Services (DHSS) does gather some of that information, and this bill does not allow Alaska's own assets to be used when there is a federal imposition for a registry request based solely on race and religion alone. The concern, he said, was that the administration wanted a list of Muslim Americans and Hispanic Americans, and this bill is actually a response to those race based registries. 5:22:06 PM REPRESENTATIVE LEDOUX noted that it appears from Representative Josephson's testimony that this only relates to a federal order and asked why he wouldn't want to craft it so that if someone had this idea to do it in Alaska, such as the mayor of Anchorage or governor of Alaska, the bill doesn't prohibit them from creating those lists as long as it's not related to a federal mandate. She opined that California Governor Earl Warren, before he became the darling of the liberals as the Chief Justice of the Supreme Court, was "kind of a racist" with respect to the Japanese citizens. REPRESENTATIVE JOSEPHSON referred to an article from The Hill magazine published two months ago, and the Ambassador to the United Nations, Nikki Haley, former governor of South Carolina, repudiated the idea of a registry. Although, he noted, when Secretary of State Rex Tillerson was asked about it, Mr. Tillerson said that while he ruled out a blanket ban on Muslim immigration to America, he would need more information before deciding whether to support a registry of Muslims. Representative Josephson said he would have the same concern about the mayor of Anchorage or the governor of Alaska if they had made statements in that manner, but they haven't. Given that section the legislation was applied was about federal overreach, he said the concern was with the federal government's request for registry. 5:24:30 PM REPRESENTATIVE KOPP related that he certainly agrees with the spirit of the legislation, yet commented that this is more difficult than it appears because the state takes federal money in its education system and justice system, and both the Department of Corrections (DOC) and Department of Education and Early Development (DEED) have exhaustive lists on these issues. He advised that DOC can produce printouts on pretty much everything this bill tells them not to do, and he would be interested to know whether that is required as part of the federal penal system or receiving federal funding. He pointed out that in the state's education system, when applying for a student loan or graduate school, a person fills out all these blanks and some of it is to determine what kind of funding the person was eligible, and if they fit into a minority status it can actually open up doors, so they are not all nefarious reasons. In the legislature's fervor to do good, he said he wanted to be sure it didn't accidentally cross over into doing something harmful due to the federal nexus to state funding type issues. 5:25:58 PM REPRESENTATIVE JOSEPHSON noted that although constituents have said they would not support, for example, the efforts of immigration and customs to perform a "roundup," he did not want to get into those issues because there could be circumstances to support a roundup of someone who was dangerous. He pointed out that the focus in this legislation was on any federal effort to say, "This registration is based on this and this alone." He referred to a report by Tim Spangler, [Legislative Legal and Research Services, contained within the committee packets], who found no evidence that anything was done in isolation just because of one's race or religion, and that no one cared to have that data in isolation with no other purpose. For example, he related, it is a known fact that someone of a particular race may be medically predisposed to a certain disease, which may be a relevant area of race data. Certainly, he said, there is a lot of data on race, but not solely on race or religion and that is what this bill targets. 5:27:30 PM REPRESENTATIVE REINBOLD said the definition of a registry is "a place or an office where registers or records are kept," and she thought this may be the vehicle to get rid of the massive unconstitutional databases kept on students, families, and teachers within Alaska's schools, and asked the goal of the bill. REPRESENTATIVE JOSEPHSON responded that the goal was partly preventative, and partly to note that this is a historical moment, and that the people of Alaska would not tolerate the registry of individuals for the reasons alone that they are of that race or religion, and not for benign reasons. REPRESENTATIVE JOSEPHSON suggested adding the word "solely" to the following language as a friendly amendment on CSHB 13(STA), Version O, [AS 44.99.040(a)((1)(C), page 1, line 14 and page 2, line 1,] to read as follows: (C) create a registry [solely] based on  race, religion, ethnicity, or national origin; or  5:29:30 PM REPRESENTATIVE REINBOLD noted that "it's cool" to go back and look at the contributions of African Americans and the building of the Alaskan Highway, and offered that she could probably list a dozen of special days based on a specific race Alaska has celebrated, such as Black History Month. She asked whether this bill has anything to do with public safety because this is probably the biggest repeal of state government of any bill she had ever seen, and asked whether the ultimate goal was to have no registries. She then referred to the Pioneer Homes where staff enters the race and religion of new residents into the database due to various reasons. She again asked the goal of the bill. 5:31:38 PM CHAIR CLAMAN intervened and advised Representative Reinbold that Representative Josephson had previously answered her question, which is that it is not to have a registry, it is only a registry where the specific order from the president or federal government is, "Thou shalt create a registry of ethnicity." He explained that creating that registry is different from keeping track of ethnicity or different features regarding students in school because that order is that if Alaska is going to get federal funds for schools, it must keep this certain amount of data in exchange for receiving federal funds. This bill, as Representative Josephson testified, is strictly, if an order comes down from the federal government saying "Thou shalt create a registry of these people" this bill addresses that situation only, and it does not go more broadly. He said that Representative Josephson was not looking at wiping out every registry. 5:32:31 PM REPRESENTATIVE JOSEPHSON remarked that Chair Claman was precisely correct. Legislative Legal and Research Services research found that none of the entities it quiered reported that they desegregate the data in a manner that would identify people based on race, ethnicity, religion, or country of origin of individuals. Basically, he explained, that means no one is gathering this data just to say "Here's a list of people from Syria that live in Alaska." He referred to the celebration of Black History Month, and offered that it would be an odd thing for the federal government to say, that before the nation could celebrate Black History Month it needed every African American to enter their names on a registry. He stressed that that is what he is trying to avoid. 5:33:33 PM REPRESENTATIVE REINBOLD offered a scenario that the federal government could decide that a person from Syria or wherever, may cause a health concern. Also, she said, "ANSWERS" was a federal mandate so "you can't have a double standard here" where the federal government wanted ANSWERS to collect a tremendous amount of data on Alaska's students, which is a registry. She offered that it appears to be a double standard that if the federal government is going to ask Alaska for people who may have originated from a certain place or religion, it probably is for a public safety, health concern, or potentially a public threat of some antagonists in another country such as ISIS. She asked what Representative Josephson thought "if it's a public safety concern to people, which is a specific group of specific origin, and possibly even a specific religion where they are following the laws of their country and trying to impose them over here." In the event it is a public safety concern, she asked whether that weighs into the ability to have some sort of information for public safety and homeland security. 5:35:30 PM REPRESENTATIVE JOSEPHSON answered that the federal government, no doubt does that, and he is glad to some degree that the federal government knows where people are traveling which is legitimate state and national security interest. Except, he reiterated, this bill reads that Alaska does not need to participate when it is solely based on race with no other putative or obvious reason. Research found that juvenile justice and public assistance have records on race, but it was always linked to some other public governmental policy purpose and it was not just a naked, "We want a list of Muslims and, we, the federal government, insist on it, and please give us that list." He pointed out that this bill should not be described as alarmist because the national administration, although it had been tamped down a little bit lately, said that, indeed, it does intend to do these things. He explained that part of the goal is that when future generations look back on the Thirtieth Alaska State Legislature and see that the legislature caught a Korematsu situation, that it made a statement, and that it did something about the Korematsu situation. 5:36:59 PM REPRESENTATIVE EASTMAN said Representative Josephson made a distinction as to whether it's the sole purpose of anyone of these individual categories, but it seems like the distinction is "too easy of being evaded." For example, he could have a database of religion except not for the sake of religion because that would be a violation. Rather, he decided that he would have a category of religion because he wanted to study minority religions, and find ways to promoting the fact that are not many minority religions. Thereby, giving distinction to some kind of recognition, and whether with that type of add on would satisfy Representative Josephson's sole reason for prohibition. REPRESENTATIVE JOSEPHSON responded that these are the kinds of tests courts engage in frequently and are skilled in knowing whether something is pretextual or legitimate. Presumably, he said, a court would apply a test to something like that and reach a conclusion as to whether the interest was legitimate or pretextual. 5:38:46 PM REPRESENTATIVE EASTMAN said he understands that a court would try to identify the intent, but he was specifically asking the sponsor how that scenario lines up with his intent for how the bill would be used. He asked whether he would find it to be legitimate or a subterfuge. REPRESENTATIVE JOSEPHSON commented that it would depend on the facts and the circumstances, and said he didn't want to muddy the water too much but that he had spent a fair amount of time looking at school prayer litigation, and referred to Wallace v. Jaffree, 472 U.S. 38 (1985). For example, he offered, if there was a moment of silence legislation, [he would consider] what was said in committee, and whether this was really about a prayer in public school. Given that the court had previously said that was a violation of the separation of church and state, the court would look to see whether there was something pretextual or whether it was just meant to be meditative and truly a moment of silence. He explained that the intention of this bill is to preclude these registries based solely on race, religion, ethnicity, and national origin, with no obvious other reason that is apparent in the administrative order, the executive order, or the law. 5:40:29 PM REPRESENTATIVE LEDOUX noted that basically the committee was reading into this now, even though no member had offered an amendment, that it would be based solely on race, religion, ethnicity, or national origin. She offered a scenario of the federal government's concern regarding the great deal of terrorism involving Muslim Americans and, as a matter of national security, it would keep a registry. Under this bill, she remarked, that would be something the government could still order so what was the purpose of the bill. 5:41:20 PM REPRESENTATIVE JOSEPHSON answered that Alaska obviously cannot stop the federal government from doing anything, but Alaska could watch the federal government and someone could intervene by seeking an injunction stating that the federal government was painting every Muslim in Alaska with the same brush, and it was against the law in Alaska [in the event this bill is enacted into law]. Or perhaps, people would cower in the same manner as when Japanese Americans were rounded up by not responding. He pointed to the "very poignant bench" in Pocket Park, next to the Terry Miller Building, which expresses shame for the fact that the citizens of Juneau watched this happen, but he acknowledged that perhaps there was nothing they could do about it. The bench was designed to mark that sort of concern. He expressed that the federal government could do something, but it doesn't mean that Alaskans must follow. 5:42:13 PM REPRESENTATIVE LEDOUX related that she hates to sound politically incorrect, but she pointed to "national origin" and offered a scenario of this country being at war with another country. Mr. Korimatsu was an American citizen and this doesn't just apply to American citizens, and she offered her belief that it might be relevant when at war with another nation to know where those people live in America. MR. KELLEY replied that nothing in this bill prevents Alaska from aiding in keeping track of the nation's citizenship, but national origin is the issue. For example, Mr. Korimatsu was an American citizen and probably shouldn't have been considered a threat, but there would be no record that he was of Japanese ancestry. 5:43:53 PM REPRESENTATIVE REINBOLD asked whether Representative Josephson has any problem with the federal government using state or local resources to track groups such as ISIS. REPRESENTATIVE JOSEPHSON responded that he does want ISIS tracked and has no problem with that. REPRESENTATIVE REINBOLD described the state's most important mandate as public safety, and the delicate balance in privacy rights and public safety, and that she understands the government's need to know the perpetrators and the targets. World history has shown religions persecuted in the past, such as the Jewish religion or Christians, and if religions are being persecuted, possibly by another religion, the important concept is where the government intervenes to put public protections in place. Possibly, she said, the government would want to know who was a Christian if they were receiving immense attacks, such as in India. REPRESENTATIVE JOSEPHSON related that he didn't have a comment. 5:47:04 PM CHAIR CLAMAN opened public testimony on HB 13. 5:47:32 PM KAYLA EPSTEIN, advised she was speaking for herself and she supports the bill. She related that she is Jewish and is "very sensitive" to the fact that it has never worked out to the benefit of anyone to keep a list of someone by their religion. She remarked that she has seen no evidence verifying that the keeping of lists of persecuted people benefited those people in any manner. Also, she pointed out that if a person was Christian and worried about being persecuted, she has not seen that a list would work to their advantage. At the time the United States was at war with Italy, Japan, and Germany, the plight of the Japanese people was clearly a matter of greed and discrimination. At that time, the federal government had been extremely careful watching these groups before the war, watching organizations advocating the destruction of America, and were well aware of the Italian, German, and the Japanese individuals who posed a threat, and they were arrested. She explained that President Franklin Delano Roosevelt had been notified by the military that the Japanese people were of no threat, except he ignored that information due to the political pressure from, for example, Governor Earl Warren of California, and proceeded to allow Japanese people to be rounded up. She stated that she is "totally in favor" of this bill. 5:49:38 PM CHAIR CLAMAN, after ascertaining no one wished to testify, closed public testimony on HB 13. 5:49:50 PM REPRESENTATIVE EASTMAN surmised from Representative Josephson's response to Representative LeDoux that he had decided not to put the distinction of "citizenship" on the list. REPRESENTATIVE JOSEPHSON advised that he had said the national government is free to do what it will, but that if the federal government asked this state or its municipalities to use assets, treasurer and human resources, to make such a list it would violate this law if it passed. He described this law as a good thing as a matter of principle. REPRESENTATIVE EASTMAN said he thought Representative Josephson had made a distinction not to put citizenship on this list of things that are not for the government's knowledge. REPRESENTATIVE JOSEPHSON replied that the word "citizenship" was not considered and he was unaware whether it was an absence of considering the word, or that a legitimate decision that "citizenship" would not be included in the list. He opined that it was the former, and he would have to give it some thought. MR. KELLEY advised that the important aspect of this bill is not tracking national origins. For example, with someone who is an American citizen, there is no interest in knowing whether they might be Muslim or from Syria. Although, he said, perhaps there is an interest in knowing what citizenship someone holds when they arrive in America. For example, a current Syrian citizen in America on a visa, there may be the distinction that perhaps there was a legitimate government interest in tracking their citizenship, but not the national origin and especially not of American citizens. 5:52:40 PM REPRESENTATIVE EASTMAN offered a situation where citizenship information may not be available, what would be the procedure in obtaining that information. He described that it is important information to have, at least statistically, as there would be a strong correlation between national origin and citizenship. REPRESENTATIVE JOSEPHSON responded that fundamentally it is not the job of a state to entertain such ideas. In the event the federal government wanted to go house-by-house to see who should or shouldn't be here, those actions would be a massive historical chapter for which the federal government would have to account. President Franklin D. Roosevelt is regarded broadly as one of the better presidents, yet it is widely known that he has a very black mark for his treatment of Japanese Americans. He said, "And as you've noted in a letter to the floor about Korimatsu being one of the worst decisions." Fundamentally, he stated, Alaska does not have to be involved in deputizing in order to gather that sort of information. 5:54:33 PM REPRESENTATIVE EASTMAN commented that whether deputized or not, citizenship is important to Alaska because its citizenship is fundamental to its state election laws in order to identify citizenship correctly. 5:54:57 PM REPRESENTATIVE REINBOLD surmised that people will not be able to say "African American or Russian American or Greek American, or whatever," that it's just going to be American if no resources are allowed at the municipality or state level, and the state wouldn't have knowledge of that information. She asked whether that was Representative Josephson's understanding. REPRESENTATIVE JOSEPHSON said, "No." He explained that those are terms in the nomenclature and each generation will have to decide its comfort level with that sort of terminology. Also, he pointed out that Representative was talking about how things are spoken in the vernacular and that is not what this bill is about. 5:55:44 PM REPRESENTATIVE REINBOLD said she would like to know the bottom line of this bill, and also an explanation as to the language "(REAL ID Act of 2005)" on page 2, line 2. REPRESENTATIVE JOSEPHSON responded that the importance of the reference to REAL ID Act is that it speaks to how "wonderfully appropriate" this bill is placed in Title 44, because it is about overreach. This legislation is akin to the REAL ID Act in that it is designed to stop federal overreach. REPRESENTATIVE JOSEPHSON advised that the intent of this bill is about the fact that it flies in the faces of our Founding Fathers to require a list. For example, he advised, President George Washington famously spoke at the Providence Rhode Island Synagogue about the importance of Jewish Americans and how welcomed they were as citizens of the country. President Washington did not tell the Jewish American citizens to put their names on a tracking list. This bill was designed, in keeping with President Washington, to state there cannot be a benign registry based solely on race, religion, ethnicity, or national origin, and he stressed that almost by definition there must be some ill motive that is an un-American motive. 5:57:37 PM REPRESENTATIVE REINBOLD described concern that the bill stripped local control by telling municipalities that even if its taxpayers wanted to spend money keeping track of an organization such as ISIS, it could not. In addition, she said, she is concerned that the state collects a tremendous amount of data, and commented that any data can be used for good or evil. She then asked whether Representative Josephson would allow a friendly amendment that in the cases where Alaska's citizens were at risk, if a list needed to be compiled to protect Alaska's citizens, whether he would support the amendment. REPRESENTATIVE JOSEPHSON answered "No." First of all, he explained, he is not on the committee and the committee can amend this bill in any manner it prefers. Secondly, he pointed out that he would not want local governments or factions to decide to target a group based on religion because it was "freaked out" about a certain group and felt it needed to intervene. He described, that would be a blemish akin to what President Roosevelt was stuck with for all time. [HB 13 was held over.]