Legislature(2011 - 2012)CAPITOL 120
02/09/2012 01:00 PM House MILITARY & VETERANS' AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB281 | |
| HB234 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 234 | TELECONFERENCED | |
| *+ | HB 281 | TELECONFERENCED | |
HB 234-PICKETING AND PROTESTS AT FUNERALS
1:36:05 PM
CO-CHAIR THOMPSON announced that the final order of business
would be HOUSE BILL NO. 234, "An Act relating to picketing or
protests at a funeral."
1:36:12 PM
AARON SCHROEDER, staff, Representative Bill Thomas, Jr., Alaska
State Legislature, introduced HB 234 on behalf of Representative
Thomas, prime sponsor. Mr. Schroeder said since 1998 funeral
picketing has gained popularity with groups hoping to publicize
their political agenda. Currently the state does not have
guidelines for such cases, and HB 234 would bring Alaska in line
with 46 other states by setting guidelines for a 150-foot buffer
from the boundary of a church, cemetery, or funeral home one
hour before, during, and one hour after a funeral service.
Further, members attending the funeral are members of a captive
audience that warrant protection. In the case of a protest,
families are expected to conduct themselves in a certain manner,
and the sponsors of the bill expect the same of protestors.
REPRESENTATIVE LYNN said he supports the bill. However, he
questioned the choice of the distance of 150 feet when federal
law banning protests at national cemeteries sets the distance
from 150 feet to 300 feet. Other legislation indicates a buffer
zone ranging from 150 feet to 1,500 feet.
1:38:15 PM
MR. SCHROEDER explained that there are two parts to the federal
law; one part sets a 300-foot buffer around the boundary of a
cemetery, and the second part sets a 150-foot buffer around the
funeral procession as it travels along a route. In order to
make the "captive audience" argument, "there has to be a certain
amount of pressure there, they have to be close to make that
legal argument."
1:39:05 PM
REPRESENTATIVE LYNN expressed his belief that the bill does not
include a public street or roadway - where the funeral
procession goes from the mortuary to the cemetery - and said
"depending on where the lot is, it could be a long drive from
the entrance of the cemetery to the gravesite." He asked
whether the road could be inside the cemetery.
MR. SCHROEDER explained that the 150-foot distance applies to
the boundary of the funeral home, cemetery, or church. In
further response to Representative Lynn, he said "the perimeter,
correct."
1:39:58 PM
REPRESENTATIVE LYNN asked for an estimate of the distance, and
opined "that's pretty close if I'm grieving for a loved one, and
some clown is over there."
MR. SCHROEDER suggested that if the committee is interested in
extending the buffer zone it may seek advice from the director
of Legislative Legal and Research Services, Legislative Affairs
Agency.
1:40:54 PM
CO-CHAIR SADDLER referred to page 3, lines 18 and 19 of the bill
and read the definition of picketing:
, engaged in by a person, that disrupt or are
undertaken to disturb a funeral.
CO-CHAIR SADDLER cautioned that could include "some element of
what someone's state of mind or intent is," and the person may
claim he or she is not trying to disturb a funeral. He
explained further that some groups that engage in protests at
funerals may not be seeking to disturb the funeral, but to get
attention and publicity. This language in the bill may allow
them to enter the buffer zone.
1:42:56 PM
MR. SCHROEDER clarified that the drafter of the bill inserted
this language in order to help law enforcement determine what
picketing means. He deferred to Mr. Gardner for further
response.
1:43:28 PM
DOUG GARDNER, Director, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), restated Co-Chair Saddler's
concern about mental state: whether a person may argue that they
were not trying to disrupt the funeral itself. He advised that
when the legislature is drafting statutes that affect First
Amendment rights, it must look to other cases to provide
appropriate language. In 2008, the Phelps-Roper v. Strickland
case specifically provided for this section in the proposed
bill, in that it described other protest activities meant to
disrupt or disturb a funeral or burial service. Thus, HB 234
does not restrict all activities, and the mental state of a
person is addressed on page 2, lines 30 and 31, which read:
(8) the person knowingly engages in picketing with
reckless disregard that the picketing occurs
MR. GARDNER continued to explain that "knowingly engages in"
demonstrates mental state and the "reckless disregard" is with
respect to the disruption to the funeral. Further, in order for
the state to establish a significant state interest, the state
has to have an interest in protecting from certain types of
conduct, and the statute would restrict disruption, even though
the disruption could be considered a positive statement or a
negative one by different parties. He said, "The statute
attempts to draw a narrow, narrow border around the types of
activities that are being regulated, [and] in doing so, to
comply with the First Amendment requirements that this not be
overly broad."
1:47:40 PM
CO-CHAIR SADDLER surmised the existing language has been upheld
by the U.S. Supreme Court.
MR. GARDNER pointed out that the U.S. Supreme Court has not
dealt with a state criminal statute regulating picketing at
funerals. However, the U.S. Court of Appeals for the Sixth and
Eighth Circuits are split on this issue, thus the language has
passed constitutional muster, and the definition was included in
the proposed bill.
1:49:08 PM
CO-CHAIR SADDLER asked whether "reckless" presumes activity
within the geographic 150-foot limit and during the
chronological limits of one hour before and one hour after, so -
outside of those parameters - reckless activities are allowed.
MR. GARDNER confirmed that the statute only attempts to regulate
time, place, and manner. However, other laws or ordinances may
be applicable to behavior outside the reach of the statute.
1:50:38 PM
CO-CHAIR SADDLER asked for guidelines as to the "numerical
outside limits" of buffer zones that would be upheld by the
courts.
MR. GARDNER recalled 300-foot buffer zones "received a
considerable amount of scrutiny;" however, that distance seemed
too far for some small Alaska communities and 150 feet was
deemed appropriate.
REPRESENTATIVE LYNN asked whether egregious or insulting signs
are disruptive.
1:52:40 PM
MR. GARDNER opined that the bill as drafted would hold that
language on signs and picketing would fit in the definition of
disrupting a funeral. The concept of the bill is to allow
attendees to have a funeral in peace without interference from
people on either side of an issue, and signs "would fit within
the statute."
1:54:32 PM
REPRESENTATIVE LYNN asked whether there is a criminal equivalent
to suing for emotional distress.
MR. GARDNER said emotional distress is a civil matter not
addressed by criminal law.
REPRESENTATIVE CISSNA agreed with Representative Lynn on the
horror of those who abuse the grieving, but expressed her
concern for the loss of constitutional rights. She noted that
there may be activities in a community that are "very loud or
very bold," and asked for a way to judge the distance of the
buffer zone.
1:57:01 PM
CO-CHAIR THOMPSON stated that 150 feet is one-half of the length
of a football field.
MR. GARDNER, in response to Representative Cissna's question
about how loud noise would be at the 150-foot distance, said he
did not know what "a decision-maker would conclude is
disruptive." For example, someone could be using a "giant
bullhorn mounted on the top of a car" or talking in a normal
voice.
REPRESENTATIVE CISSNA pointed out that respect is the important
issue and urged the consideration of reasonable definitions.
REPRESENTATIVE GATTO gave the example of a person attempting to
speak at a funeral and being prevented by others who are making
noise. He asked which party holds the First Amendment right to
be heard. In response to Mr. Gardner's request for
clarification, he asked, "When am I allowed to exercise my free
speech, unhindered by their free speech?"
MR. GARDNER said, " ... the remedy for speech that you don't
like is speech of your own ... but I don't know how to answer
that question in the context of this bill."
2:00:51 PM
REPRESENTATIVE GATTO surmised the 150-foot distance is a
sufficient buffer that will protect a speaker's free speech
until the noise level and the size of the signs are increased.
In that case the 150-foot buffer becomes meaningless, and the
quandary is, "When are [the original speaker's] rights violated,
that's clear to anyone else?"
2:02:42 PM
MR. GARDNER explained that these are classic First Amendment
questions about how to tailor a statute to serve the interests
of the government and yet leave channels of communication that
are protected by the First Amendment. The balance for the
protection of First Amendment rights is found in the history of
court decisions, and for the proposed bill the range of distance
fell between 300 feet and 150 feet.
REPRESENTATIVE MILLER said he strongly supports the intent of
the bill, but asked whether this is really a problem in Alaska.
2:04:09 PM
MR. SCHROEDER responded that he was not aware of any protests in
the state.
REPRESENTATIVE LYNN observed that there are a lot of prospective
laws in Alaska.
2:04:43 PM
CO-CHAIR THOMPSON opened public testimony.
2:04:59 PM
JEFFREY MITTMAN, Executive Director, American Civil Liberties
Union of Alaska (ACLU of Alaska), stated that ACLU of Alaska and
he support the intent of the bill which is to allow individuals
who are grieving to do so in a respectful manner. Also, he and
ACLU of Alaska do not support the "incredibly offensive"
protests of the members of the Westboro, Kansas, Baptist Church.
He informed the committee that ACLU of Alaska has a mandate to
protect constitutional freedoms enjoyed by Americans, yet the
protection of constitutional rights is not always easy or
pleasant, as in the case of its defense of the rights of Nazis
in the 1960s. Unfortunately, although the proposed bill
attempts to move in the right direction, his organization
believes there are infirmities such as the definition of
picketing as protest activities. He advised that a court will
define a protest as "actions which express disrespect or
disapproval," and this puts the bill in the realm of "noncontent
neutral legislation." Mr. Mittman reminded the committee that
the U.S. Court of Appeals Eighth Circuit disapproved similar
legislation and the Sixth Circuit approved; however, the U.S.
Supreme Court has clearly indicated its disapproval of a case
regarding the intentional infliction of emotional distress.
Mr. Mittman opined the language in HB 234 broadly defines the
areas protected as churches, mortuaries, funerals, and
cemeteries, and in Anchorage the bill would not be found
content-neutral in time, place, and manner restriction. He
offered to work with the bill drafter and the committee to
remedy the bill.
2:08:49 PM
CO-CHAIR SADDLER asked for the distance between a protester and
a funeral event that would be supported by the courts.
MR. MITTMAN stated that the issue must be broken into two
aspects and analyzed separately: the action of a silent sign
holder may be offensive, but is not disruptive of the funeral;
the action of one far away may "pierce the walls of the church"
with sound and successfully disrupt the conduct of the funeral.
He said distance may not be the best way to determine the
constitutional issues because the courts will protect the rights
of one to conduct a ceremony, but will not protect an individual
from hurtful behavior in a public place.
2:10:46 PM
MR. MITTMAN, in response to Representative Lynn, said an
offensive sign can be avoided or fleeting, so the courts have
determined that it is protected. However, the same message
repeated in a manner to disrupt a ceremony, is not protected.
2:11:48 PM
REPRESENTATIVE LYNN expressed his belief that an offensive sign
is disruptive by its nature.
MR. MITTMAN agreed that the point can be argued, but the U.S.
Supreme Court said this was constitutionally protected.
2:13:06 PM
CO-CHAIR THOMPSON observed that the penalty created by the bill
is that of a misdemeanor of disorderly conduct, which is the
same as 36 other states. However, several states direct that
the second offense is a felony, and Indiana and Michigan
classify the first offense as a felony. He inquired as to
Alaska's penalties for misdemeanor crimes of disorderly conduct.
2:14:25 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, advised that the
penalty for disorderly conduct is a maximum of 10 days in jail
and a $300 fine.
CO-CHAIR SADDLER asked if the bill is passed as drafted, on what
grounds it may be challenged.
2:16:11 PM
MS. CARPENETI said a challenge may arise if someone were
prosecuted for violation of the statute.
MR. GARDNER stated that a challenge may be close to the issues
previously raised by ACLU of Alaska in its written memorandum
found in the committee packet. Although the statute would be
litigated on the particular facts of the situation, the legal
issues that would come up are outlined in the memorandum. He
agreed with Mr. Mittman that the outcome would be up to the
Alaska Supreme Court and whether it is persuaded by the Sixth
Circuit, or the Eighth Circuit, appellate courts. As to the
second question, Mr. Gardner said the weakness of all picketing
cases is the balance between the protection of free speech and
the protection of the interests of people to be free from
interference, while they are a captive audience. The cases
regarding people in the position of a captive audience have
divided the courts, and he opined this could be debated before
the Alaska Supreme Court on whether the captive audience
description should be extended to funeral protests. Precedent
on the captive audience cases has been focused on protest
activities in the home or in abortion clinics, and the final
answer is unknown.
CO-CHAIR THOMPSON determined there was no further public
testimony.
2:19:29 PM
REPRESENTATIVE LYNN offered a conceptual amendment to change
"150 feet" to "300 feet" anywhere it appears in HB 234.
2:19:57 PM
REPRESENTATIVE CISSNA objected for the purpose of discussion.
REPRESENTATIVE CISSNA said her concern is that it specifies more
space than is needed.
REPRESENTATIVE GATTO expressed his concern that changes to the
bill will increase the chance of legal challenges later on.
2:21:49 PM
REPRESENTATIVE AUSTERMAN asked for the sponsor's opinion on the
change to 300 feet.
2:22:08 PM
MR. SCHROEDER advised the sponsor agrees with Representative
Gatto.
CO-CHAIR SADDLER agreed with the intent of the amendment, but
without a firm answer from legal counsel, would not support the
amendment.
REPRESENTATIVE CISSNA maintained her objection.
2:25:47 PM
A roll call vote was taken. Representative Lynn voted in favor
of the conceptual amendment. Representatives Miller, Gatto,
Austerman, Cissna, Saddler, and Thompson voted against it.
Therefore, the conceptual amendment failed by a vote of 1-6.
2:26:04 PM
REPRESENTATIVE MILLER proposed a situation in which a terrorist
is being buried with much ceremony in his town, and suggested he
may want to protest. With the passage of HB 234, he cautioned
that he may lose his right to protest. Representative Miller
said he was not sure if the bill could withstand a challenge.
CO-CHAIR THOMPSON pointed out that a legal protest could take
place.
2:26:33 PM
REPRESENTATIVE LYNN stressed that the bill protects those who
are grieving, and they are innocent of any wrongdoing, no matter
what were the actions of the deceased.
CO-CHAIR SADDLER condemned the activities of the Westboro
Baptist Church and commended the committee's willingness to
study constitutional implications, and its efforts to pass
defensible law. He said he would support the bill.
REPRESENTATIVE LYNN moved to report HB 234, Version 27-LS0627\B,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HB 234 was
reported out of the House Special Committee on Military and
Veterans' Affairs.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 1 HB 234A- Bill.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 2 HB 234 Sponsor Statement.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 3 Support Doc- HB 234.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 5 HB0281A- Bill.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 281 |
| 6 Supporting_Doc HB 281.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 7 Sponsor Statement_Vietnam Veterans Day- HB 281.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 4 Fiscal Note HB234-LAW-CRIM-02-03-12.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |
| 8 Fiscal Note HB281-DOA-FAC-2-4-12.pdf |
HMLV 2/9/2012 1:00:00 PM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 281 |
| 5 HB 234 ACLU Review- Letter of Opposition.pdf |
HMLV 2/9/2012 1:00:00 PM |
HB 234 |