Legislature(2011 - 2012)CAPITOL 120
02/20/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB267 | |
| 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 267 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 293 | TELECONFERENCED | |
| += | HB 262 | TELECONFERENCED | |
HB 234 - PICKETING AND PROTESTS AT FUNERALS
2:32:16 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 234, "An Act relating to picketing or protests at
a funeral."
CHAIR GATTO offered his understanding that many of the court
decisions are from the Southeast portion of the U.S. because
that's where the church that was doing the protesting was
located. He informed the committee that the Snyder v. Phelps,
2011 WL 709517 (U.S.), case in which Snyder's son, a Lance
Corporal in the U.S. Marine Corp, died due to injuries sustained
in the line of duty in Iraq. One of the slogans used [by
Westboro Church] at the Snyder funeral service was "Thank God
for Dead Soldiers". Mr. Snyder sued the Westboro Church for $10
million and although he prevailed, the case was set aside by the
court because the court ruled that the church had First
Amendment rights. He informed the committee that several states
have legislation requiring that there be no picketing within 150
feet [of a funeral service or procession]. There are also
[laws] regarding the prevention of picketing/protesting at
someone's home. Chair Gatto related his strong belief that
funerals should be protected. He noted that there doesn't seem
to be much resistance to the 150-foot barrier.
2:34:41 PM
AARON SCHROEDER, Staff, Representative Bill Thomas, Alaska State
Legislature, speaking on behalf of the sponsor, Representative
Thomas, explained that HB 234 would bring Alaska in line with 46
other states that have passed similar legislation. The
legislation proposes guidelines for a 150-foot fixed buffer from
the boundary of a church, cemetery, or funeral home one hour
before, during, and after the service. The sponsor believes, he
related, that the families and relatives that attend the funeral
warrant state protection and are members of a captive audience.
Under HB 234, there are five acts that must be committed at the
same time in order to commit the crime. Those five acts are
acts against the time and the distance, fall under the
definition of picketing, show reckless disregard, and disrupt
the funeral. Therefore, it's very difficult to commit the crime
[of disorderly conduct] and it doesn't regulate all speech from
occurring during the funeral. This legislation falls under
disorderly conduct as a class B misdemeanor and would carry a
penalty of no more than 10 days and a fine of no more than
$2,000. He then pointed out that the committee should have a
letter of support for HB 234 from the Alaska Peace Officers
Association.
REPRESENTATIVE KELLER, referring to the language on page 1,
lines 11-12, related his confusion with regard to the use of the
term "facility". He inquired as to whether the point of
demarcation is 150 feet from the property line that a facility
is on or is it 150 feet from a facility, which he would believe
to be a building. He expressed the need to be clear with the
language in order to avoid any ambiguity that could result in
litigation.
CHAIR GATTO surmised that a facility could be an air force base,
and thus the boundary would be the property line. Therefore, if
the air force base was 1,000 acres that would be the property
line.
MR. SCHROEDER concurred that the intent of the term "boundary"
is the property line, but deferred to Mr. Gardner, Legislative
Legal Services, for further clarification.
2:38:15 PM
REPRESENTATIVE LYNN questioned whether other cemeteries that are
private property would be able to control who enters the
cemetery.
MR. SCHROEDER replied yes.
REPRESENTATIVE LYNN surmised then that for a privately owned
cemetery the boundary would be 150 feet from the [property line]
of the private cemetery. However, there seems to be some
ambiguity with regard to public cemeteries, such as national or
state cemeteries.
CHAIR GATTO pointed out that the legislation doesn't make a
distinction between private and public cemeteries rather it just
refers to "boundary". He opined that everyone agrees that [the
term "boundary"] refers to the property line. However, he
questioned whether on an air force base the boundary would be
the cemetery or the perimeter of the air force base.
REPRESENTATIVE LYNN related his assumption that it would be the
boundary of the air force base.
REPRESENTATIVE PRUITT opined that the state wouldn't have
jurisdiction within an air force base.
MR. SCHROEDER concurred, and added that the federal guidelines
would be in force on federal property [such as an air force
base].
2:40:34 PM
REPRESENTATIVE GRUENBERG asked whether or how HB 234 would apply
in a situation in which a family gathers to scatter the ashes of
the deceased on a mountain top or at sea where there are no
boundaries.
MR. SCHROEDER answered that although ultimately a law
enforcement official would make the decision on that, the
boundary would be the service itself. If [picketers/protesters]
disrupt the service, the law would be applicable.
REPRESENTATIVE GRUENBERG surmised, then, that the language on
page 3, lines 1-2, may warrant review. He opined that the
legislation seems to address smaller boundaries, although in
today's world one can be terrifically disruptive auditorily.
MR. SCHROEDER responded that such would fall outside the context
of HB 234. However, depending upon the volume and activity of
such a protest, the disruptive individuals could be disrupting
the peace, which is a class B misdemeanor.
REPRESENTATIVE GRUENBERG suggested then that the committee
should perhaps address either or both of those issues.
REPRESENTATIVE LYNN offered then that the language "if the sound
is audible within 150 feet" could be inserted.
CHAIR GATTO suggested that perhaps it would be appropriate to
refer to the decibel level at the perimeter.
2:44:19 PM
REPRESENTATIVE HOLMES, expressing support for the legislation,
pointed out that there are other types of protests beyond those
that intend to disrupt a funeral. For instance, one of the
letters in the committee packet highlighted situations in which
there are downtown cemeteries that are surrounded by buildings
and traffic or situations in which there are many churches and
synagogues in fairly dense urban areas and individuals protest
but don't intend to picket. Therefore, she expressed concern
that the legislation doesn't include those individuals who don't
intend to disrupt a funeral service but are targeting other
establishments in the area.
REPRESENTATIVE THOMPSON, regarding Representative Gruenberg's
concerns with funeral services at sea, opined that the language
"other facility" on page 3, line 2, would address such
situations.
REPRESENTATIVE GRUENBERG acknowledged that point, but maintained
his question regarding spreading someone's ashes on a mountain
top.
CHAIR GATTO related his belief that what one does with the ashes
is probably not covered.
REPRESENTATIVE GRUENBERG stated that in many cases the service
is the scattering of the ashes. Since HB 234 addresses a
criminal law, the committee should consider how it would apply
in a situation such as the funeral service being the spreading
of the ashes.
2:47:13 PM
REPRESENTATIVE KELLER offered his belief that
picketing/protesting a private ceremony on a mountain top
wouldn't happen as a practical matter. He opined that HB 234
proposes to protect a ceremony and although there may be cases
in which it's difficult to protect, it shouldn't stand in the
way of the legislation.
REPRESENTATIVE PRUITT questioned how to address situations in
which the ceremony of scattering one's ashes occurs in a river
that's accessible or a location that's off the road.
REPRESENTATIVE THOMPSON remarked that it's not farfetched to
think that folks on snow machines couldn't gather at the top of
a mountain top to protest where others were gathered to scatter
someone's ashes.
REPRESENTATIVE GRUENBERG assured the committee that there will
be some situations that the committee will miss.
REPRESENTATIVE KELLER clarified that his point is that even
though the legislation can't provide protection for every
ceremony, the legislation shouldn't be held up.
REPRESENTATIVE LYNN concurred. He indicated favor with the 150-
foot boundary, but pointed out that protests could be staged
using an airplane flying a banner. Again, the legislation can't
address every possible situation and shouldn't be held because
of that.
REPRESENTATIVE PRUITT questioned whether changing the language
to refer to "within 100 feet of a funeral ceremony" would be
helpful.
REPRESENTATIVE THOMPSON stated that a funeral ceremony isn't
usually spreading the ashes.
CHAIR GATTO related his preference for a facility and boundaries
as they would be clear, although he did note that the boundaries
for services held in downtown Anchorage would likely be the
curb, which would provide the opportunity [to protest at a
closer proximity to the service].
2:53:48 PM
REPRESENTATIVE HOLMES referred to the proposed definition of
"picketing" and expressed concern that with the use of the
language "that disrupt" as it is a bit broad. She posed a
situation in which an individual is picketing across the street
from a funeral service and that individual is targeting another
building for something else not the funeral service. However,
if someone from the funeral service charges that the picketer
disrupted the funeral service, the individual could face a class
B misdemeanor.
CHAIR GATTO disagreed, and directed attention to the language
"to disturb a funeral".
REPRESENTATIVE HOLMES asked whether those who lawfully picket
something else across the street from a funeral should be
criminals because that's what this would do. Representative
Holmes clarified that folks may be picketing a building all day
and not know that a funeral is being held [across the street]
later in the day. Therefore, Representative Holmes recommended
deleting the language "disrupt or are".
MR. SCHROEDER acknowledged Representative Holmes' point, but
noted that the disruption must also include "reckless
disregard", which is defined as "a gross negligence without
concern to danger for others". He offered his understanding
that the sponsor would want HB 234 to apply if the protest is
with reckless disregard, even if it isn't directed at the
funeral.
2:57:30 PM
REPRESENTATIVE GRUENBERG ventured that there would be two
separate standards: a reckless standard on page 2, lines 30-31;
intentional mens rea, mental state, on page 3, lines 18-19.
Given that the U.S. Supreme Court has issued one opinion that
upholds the right of free speech and that the conservative
majority on the court is more protective of free expression than
many have been in the past, the chance of this surviving a
constitutional challenge are greater within the intentional
standard on page 3, lines 18-19 than a reckless standard. He
then asked if any courts of last resort upheld a reckless
standard in this case.
MR. SCHROEDER replied yes, and informed the committee that the
language and definition was from an Ohio case in the 6th Circuit
Court. He further informed the committee that it has also
withstood a challenge in trial court in the 8th circuit.
REPRESENTATIVE GRUENBERG referred to the rule of lenity, which
says a criminal statute with an ambiguity is construed most
leniently in favor of the accused. Therefore, he opined that a
court would find it difficult, when there are two standards as
is the case in HB 234, to allow a reckless conviction to stand
and would resolve it under the rule of lenity to require intent.
3:01:30 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), returning
to the question regarding the language "disrupt" on page 3, line
19, pointed out that there are several culpable mental states
including knowingly to act, with reckless disregard that the
conduct occurs within the time and place of a service or
funeral, and the definition with culpable mental states. She
said that it's unusual to have a definition with culpable mental
states. She further said that she would interpret "undertaken
to disturb a funeral" to be an intentional culpable mental
state. However, the disruption is unclear. Usually when a
culpable mental state is read in from our general statutes, one
would read in reckless. She mentioned that she would assume
that this isn't a conduct but rather a circumstance and thus
"you read in 'reckless'." Therefore, Ms. Carpeneti didn't know
that there is a problem with those two in this definition
because one or the other would have to be proven. To
"recklessly disrupt" is the fact that one has disrupted the
funeral as opposed to undertaking intentional conduct to disturb
it.
REPRESENTATIVE HOLMES inquired as to what would constitute
recklessly disrupting a funeral for purposes of the
legislation's prohibition.
MS. CARPENETI explained that "reckless" means that a person is
aware of the circumstances and consciously disregards the risk
that the circumstance is occurring. For example, one who
protests hotel wages across the street from a church must know
that the funeral is happening and then determine he/she doesn't
care that the funeral is occurring and protests anyway.
3:04:55 PM
REPRESENTATIVE HOLMES pondered whether there's a difference
between holding signs versus shouting. In the situation Ms.
Carpeneti proposed, she asked whether only holding a sign [in
protest to hotel wages] would be construed as a disruption.
MS. CARPENETI cautioned that it depends on the circumstances,
but surmised that under such circumstances, if the person didn't
understand the risk and didn't understand that [holding signs]
was disrupting the funeral, then it wouldn't be something that
the Department of Law could prosecute.
REPRESENTATIVE GRUENBERG offered a hypothetical situation in
which there is picketing outside a funeral home in regard to a
labor dispute and has nothing to do with the content of the
funeral. He asked if that would violate HB 234.
REPRESENTATIVE THOMPSON interjected that it would be disrupting
the funeral.
MS. CARPENETI said that she didn't know whether it could be
proven to be picketing under the definition in HB 234, although
it's possible.
3:07:28 PM
DOUGLAS GARDNER, Director, Legal Services, Legislative Legal and
Research Services, Legislative Affairs Agency (LAA), explained
that in Phelps-Roper v. Strickland, 539 F.3d 356, the court, in
upholding restrictions similar to those proposed in HB 234 to
address the issue of over breadth, said the following:
Thus, properly read, the Funeral Protest Provision
restricts only the time and place of speech directed
at a funeral or burial service. If a protestor's
communication is not directed at a funeral or burial
service, the mere fact that one holds a picket sign
within 300 feet of a funeral or burial service during
the relevant time period, without more, will not
support a conviction under § 3767.30.
MR. GARDNER surmised that if a labor group is protesting wages
in front of the capitol and there is a church within 150 feet
and a funeral procession is occurring, the statute wouldn't
reach to criminalize those protesting in front of the capitol.
The more difficult question is regarding silent protestors
holding signs that someone at a funeral finds offensive, because
there has to be knowing conduct and reckless conduct with
respect to disrupting or undertaking to disturb a funeral. He
highlighted the portion of the definition of "recklessly" that
the risk must be of the nature and degree that disregarding it
constitutes a gross deviation from the standard of conduct that
a reasonable person would observe in that situation. Therefore,
he opined that the statute doesn't attempt to reach coincidental
acts or negligent acts but rather acts that a reasonable person
would consider to be a gross deviation from the standard of
conduct that a person would be expected to understand would be
disrupting a funeral in the circumstances.
MR. GARDNER told the committee that per the sponsor's direction,
the statute was drafted to draw from the case law and the
definitions primarily from the 6th circuit cases that have
approved of this type of language as an appropriate time, place,
and [manner] restriction on speech. In response to
Representative Holmes, Mr. Gardner confirmed that the language
in HB 234 is similar to that of Phelps-Roper v. Strickland. The
6th Circuit case definition of "other protest activities" is
equivalent to the definition of "picketing" in HB 234. Although
the 8th Circuit found language similar to this unconstitutional,
but the three-judge panel wanted the case referred back to the
en banc court because it was concerned that the court had
reached the wrong conclusion on the captive audience analysis as
it relates to people attending a funeral at a funeral home.
3:13:16 PM
REPRESENTATIVE HOLMES asked whether the language in HB 234 would
be considered content neutral.
MR. GARDNER offered his belief that the courts which have
reviewed this language have considered it to be content neutral.
The language doesn't focus on a particular type of speech;
rather it focuses on disruptive activities while recognizing
that there are limitations as the U.S. Supreme Court recently
held in the Snyder case. There are limitations on speech so
long as they're content neutral in their time, place, and
manner. He acknowledged, though, that he didn't know what an
Alaska court would do with it. There are risks inherent in
legislating in an area involving speech and balancing the rights
of peaceful association and freedom of religion. The latter are
involved in this particular case in terms of the rights of
others who aren't the speaking parties in the speech analysis
such that they can conduct their activities free from unwanted
speech.
REPRESENTATIVE HOLMES said that she likes the intent of HB 234.
3:15:29 PM
REPRESENTATIVE THOMPSON moved to report HB 234 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 234 was reported from the
House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB267 Sponsor Statement.pdf |
HJUD 2/20/2012 1:00:00 PM HL&C 2/6/2012 3:15:00 PM |
HB 267 |
| HB267 Sectional Analysis.pdf |
HJUD 2/20/2012 1:00:00 PM HL&C 2/6/2012 3:15:00 PM |
HB 267 |
| HB267 Supporting Documents-Letter AK Assoc. Realtors.pdf |
HJUD 2/20/2012 1:00:00 PM HL&C 2/6/2012 3:15:00 PM |
HB 267 |
| HB 262- Bill.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 262 |
| HB 262- Sponsor Statement.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 262 |
| HB262-LAW-CRIM-02-10-12.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 262 |
| HB293-DOA-OPA-1-27-12.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB293-DOA-PDA-2-11-12.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB293 Sponsor Statement.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB293 Sectional Analysis.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB293-LAW-CRIM-02-10-12.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB 293 CS Version M.pdf |
HJUD 2/15/2012 1:00:00 PM HJUD 2/20/2012 1:00:00 PM |
HB 293 |
| HB0267B.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 267 |
| HB 234.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB 234 Sponser Statement.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB 234 Support Doc.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB 234 APOA_Letter of Support.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB 267 Title Amendment. Gruenberg.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 267 |
| HB 234 Legal Memo.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB 234 ACLU Letter.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB0234-1-2-021012-LAW-N.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 234 |
| HB267 Munoz Amendment (H)JUD.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 267 |
| HB 267 AREC minutes-Asst AG remarks Licensed Assistant.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 267 |
| HB 262 CS ( ) I.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 262 |
| HB 262 Amendment Cissna I.1.pdf |
HJUD 2/20/2012 1:00:00 PM |
HB 262 |