Legislature(2011 - 2012)CAPITOL 120

02/09/2012 01:00 PM House MILITARY & VETERANS' AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 234 PICKETING AND PROTESTS AT FUNERALS TELECONFERENCED
Moved Out of Committee
*+ HB 281 WELCOME HOME VIETNAM VETERANS DAY TELECONFERENCED
Moved Out of Committee
           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