Legislature(1999 - 2000)
03/07/2000 04:10 PM House HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL
SERVICES STANDING COMMITTEE
March 7, 2000
4:10 p.m.
MEMBERS PRESENT
Representative Fred Dyson, Chairman
Representative Jim Whitaker
Representative Joe Green
Representative Carl Morgan
Representative Tom Brice
Representative Allen Kemplen
Representative John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Professional Teaching Practices Commission
Patricia Truman - Palmer
- CONFIRMATION ADVANCED
HOUSE BILL NO. 387
"An Act prohibiting governmental entities, including
municipalities and school districts, from restricting a person's
free exercise of religion."
- MOVED CSHB 387(HES) OUT OF COMMITTEE
HOUSE BILL NO. 402
"An Act relating to runaway minors."
- HEARD AND HELD
CONFIRMATION HEARINGS
Professional Teaching Practices Commission
Christine Miller Dart - North Pole
Lawrence Lee Oldaker - Juneau
Linda Connelly - Palmer
- CONFIRMATIONS ADVANCED
PREVIOUS ACTION
BILL: HB 387
SHORT TITLE: FREEDOM OF RELIGION
Jrn-Date Jrn-Page Action
2/16/00 2215 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2215 (H) CRA, HES, STA, JUD
2/23/00 2289 (H) COSPONSOR(S): COGHILL, DYSON
2/25/00 2315 (H) COSPONSOR(S): HALCRO
3/01/00 2376 (H) COSPONSOR(S): CISSNA
3/02/00 (H) CRA AT 8:00 AM CAPITOL 124
3/02/00 (H) Moved Out of Committee
3/02/00 (H) MINUTE(CRA)
3/03/00 2391 (H) CRA RPT 1DP 5NR
3/03/00 2391 (H) DP: DYSON; NR: MURKOWSKI, HALCRO,
3/03/00 2392 (H) JOULE, HARRIS, MORGAN
3/03/00 2392 (H) INDETERMINATE FN (LAW/ALL DEPTS)
3/03/00 2392 (H) REFERRED TO HES
3/07/00 (H) HES AT 3:00 PM CAPITOL 106
BILL: HB 402
SHORT TITLE: PROBABLE CAUSE FOR RUNAWAY MINORS
Jrn-Date Jrn-Page Action
2/16/00 2219 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2219 (H) HES, JUD
2/16/00 2219 (H) REFERRED TO HES
3/07/00 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
PATRICIA TRUMAN, Appointee
to the Professional Teaching Practices Commission (PTPC)
PO Box 212792
Anchorage, Alaska 99521
POSITION STATEMENT: Testified as appointee to the PTPC.
THE REVEREND ROBERT NICHOLSON, Pastor
Chapel-by-the-Lake Presbyterian Church
Presbyterian Church USA
PO Box 210607
Auke Bay, Alaska 99821
POSITION STATEMENT: Testified in support of HB 387.
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: As sponsor of HB 387, presented a proposed
committee substitute.
THE REVEREND JOSEPH STORY, Pastor
Seventh-Day Adventist Church (Sitka and Juneau)
Northwest Religious Liberty Association
1507 Davidoff Street
Sitka, Alaska 99835
POSITION STATEMENT: Testified in support of HB 387.
WILDA RODMAN, Staff
for Representative Gene Therriault
Alaska State Legislature
Capitol Building, Room 511
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 402.
DEL SMITH, Deputy Commissioner
Department of Public Safety
PO Box 111200
Juneau, Alaska 99811
POSITION STATEMENT: Testified on HB 402.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811
POSITION STATEMENT: Answered questions on HB 402.
JANA STEWART, Administrator
Central Office
Family Services
Division of Family & Youth Services
Department of Health & Social Services,
PO Box 110639
Juneau, Alaska 99811
POSITION STATEMENT: Answered questions on HB 402.
CHRISTINE MILLER DART, Appointee
to the Professional Teaching Practices Commission (PTPC)
PO Box 57007
Fairbanks, Alaska 99705
POSITION STATEMENT: Testified as appointee to the PTPC.
RICHARD BLOCK
Christian Science Committee on the Publication
for the State of Alaska
360 West Benson, Number 301
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of HB 387.
CHRIS SOEBROTO
PO Box 965
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
JAMIE NALEPINSKI
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
LYLE AXELARRIS
PO Box 964
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
TABATHA PARKER
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
MICHAEL REILLY
PO Box 974
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
AMY JO RIST
PO Box 942
Tok, Alaska 99780
POSITION STATEMENT: Testified in support of HB 387.
LAWRENCE LEE OLDAKER, Appointee
to the Professional Teaching Practices Commission (PTPC)
PO Box 210996
Auke Bay, Alaska 99821
POSITION STATEMENT: Testified as appointee to PTPC.
LINDA CONNELLY, Appointee
to the Professional Teaching Practices Commission (PTPC)
PO Box 762
Palmer, Alaska 99645
POSITION STATEMENT: Testified as appointee to PTPC.
ACTION NARRATIVE
TAPE 00-29, SIDE A
Number 0001
[The minutes for the Advisory Board on Alcoholism and Drug Abuse
Annual Report and the Audit Review: Division of Alcoholism and
Drug Abuse can be found in the 3:06 p.m. cover sheet for the same
day.]
CHAIRMAN FRED DYSON reconvened the House Health, Education and
Social Services Standing Committee meeting at 4:10 p.m. Members
present were Representatives Dyson, Whitaker, Green, Morgan,
Brice, Kemplen and Coghill.
CONFIRMATION HEARINGS
Professional Teaching Practices Commission
CHAIRMAN DYSON announced that the committee would consider four
nominees for the Professional Teaching Practices Commission.
Members would not vote for the nominees but would pass their
names out of committee for full consideration of the House and
Senate. [Resumes were provided for all appointees.]
Number 0096
PATRICIA TRUMAN, Appointee to the Professional Teaching Practices
Commission (PTPC), testified via teleconference from Palmer. She
teaches Eighth Grade Language Arts at Palmer Junior Middle
School. She moved to Alaska in 1978, teaching in Fort Yukon,
Fairbanks and in the Matanuska-Susitna area. She has a wide
experience not only with the regions of Alaska but with grade
levels, having taught every grade K-12 plus adults. She knows
the teaching profession and believes she has a stellar record.
Number 0164
REPRESENTATIVE BRICE asked Ms. Truman if she was applying for a
position on the PTPC.
MS. TRUMAN indicated it is an appointed position, and she was
asked to consider it.
CHAIRMAN DYSON asked Ms. Truman what she sees as the
responsibilities of the PTPC.
Number 0203
MS. TRUMAN said she sees the PTPC as a double-edged sword: it
protects the teachers who behave ethically and sanctions those
who don't.
CHAIRMAN DYSON asked: If a teacher is acting professionally
within the policies defined by a district and that teacher is
treated poorly or there is retribution for something, would the
PTPC come into play or would that be a place of remedy for that
teacher?
MS. TRUMAN explained that usually the PTPC doesn't act on any
case unless there has been a complaint filed. The PTPC
researches the case and either tells the district or the
complaining party that the PTPC will go forward with the case if
there is enough evidence of wrongdoing, or it will be deferred
back to be worked out at the local level.
Number 0315
CHAIRMAN DYSON asked Ms. Truman if principals are in the purview
of the responsibility of the PTPC.
MS. TRUMAN replied that she believed so. She is still new at
this, but believes that anybody who has an Alaskan teaching
certificate is in the purview of the PTPC.
Number 0375
REPRESENTATIVE GREEN asked Ms. Truman what "OBE" stands for in
her resume.
MS. TRUMAN explained it stands for outcome-based education.
[The confirmation hearings were suspended in order to take up
legislation. The other three appointees testified later in the
meeting.]
HB 387 - FREEDOM OF RELIGION
Number 0429
CHAIRMAN DYSON announced the next order of business as House Bill
No. 387, "An Act prohibiting governmental entities, including
municipalities and school districts, from restricting a person's
free exercise of religion."
Number 0478
THE REVEREND ROBERT NICHOLSON, Pastor, Chapel-by-the-Lake
Presbyterian Church, Presbyterian Church USA, came forward to
testify in support of HB 387. He explained that his church
nationally is a part of consortium of about 70 religious
denominations that are trying to see that religious freedom acts
like this are embraced by the states across the nation because
the Supreme Court has backed off from granting the kind of
religious freedom that is basic. He related an incident at a
church in Oregon that bought ten acres for a parking lot and a
buffer around the church but were told by the municipality that
it was a good plan, but the church couldn't have any weddings or
funerals. This is an example of consequences of not having this
bill. It could also limit having prayer meetings and gatherings
in homes because they are not licensed as churches. He also
pointed out that in China the single religious issue that is
giving the government more heartburn is house churches where
people walk to the house and gather and worship.
Number 0729
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor of
HB 387, presented a proposed committee substitute (CS).
Number 0760
REPRESENTATIVE GREEN made a motion to adopt the proposed CS for
HB 387, version 1-LS1461\G, Kurtz, 3/7/00, as a work draft.
There being no objection, Version G was before the committee.
REPRESENTATIVE CROFT explained the three substantive changes in
the proposed CS attempt to conform to the state of the law prior
to the Smith decision. The law previous to the Smith decision
allowed that general applicability which placed a substantial
burden on religion was invalid unless the government could show a
compelling interest. When Representative Croft wrote the bill,
he did not accurately state that substantial burden. It makes
someone show there is something more than an incidental effect on
a religion, and that it is an important one.
REPRESENTATIVE CROFT said in addition, it was not generally true
that one got money damages in this area; the proposed CS released
that. There was also a section that talked about the individual
rights of others, and "the individual rights of a third party"
was put in to eliminate some legal confusion. The title was also
changed to conform to that substantial burden.
NUMBER 0938
THE REVEREND JOSEPH STORY, Pastor, Seventh-Day Adventist Church
(Sitka and Juneau), Northwest Religious Liberty Association,
testified via teleconference from Portland, Oregon. He read the
following testimony:
We strongly support bill [HB] 387 for several reasons.
First, we are mindful of the fact that the Supreme
Court's decision in Sherbert v. Verner (1963)
specifically involved a Seventh-Day Adventist church
member who had been discriminated against at her place
of employment on the basis of her firmly held beliefs.
We take special interest in the fact that it was in
this particular case that the high court ruled that the
state's interest in denying unemployment benefits -
merely because Mrs. Sherbert would not make herself
available for work on Saturday (her Sabbath), as
required by the state's unemployment compensation law -
was insufficiently compelling to warrant an
infringement upon this most fundamental right: the
free exercise of religion.
Second, Representatives Croft, Dyson, Coghill, Halcro
and Cissna's efforts to restore the "compelling state
interest" and the "least restrictive means" tests, as
established in Sherbert v. Verner (1963) and Wisconsin
v. Yoder (1972), respectively, could not come at a
better time. Such a provision will effectively restore
an individual's right to free exercise of religious
convictions at the state level, and prevent the
unnecessary discrimination that occurs on a daily basis
in the public sector, particularly in the workplace.
As Justice Sandra Day O'Connor stated in the Supreme
Court's decision in Employment Division of Oregon v.
Smith, the court made a critical mistake when they
failed to offer "convincing" evidence "to depart from
the settled First Amendment jurisprudence." This
fundamental departure allows states to "make criminal
an individual's religiously motivated conduct" in a way
that burdens [an] individual's free exercise of
religion"; puts at a clear disadvantage minority
religions and religious practices when leaving
accommodation to the political process; and enables
government to ignore religious claims altogether, if it
suits them, without offering any compelling
justification to support their actions (494 U.S. 872 at
897, 902). However, as Justice O'Connor reiterated in
Smith:
The essence of a free exercise claim is relief
from a burden imposed by government on religious
practice or beliefs, whether the burden is imposed
directly through laws that prohibit or compel
specific religious practices or indirectly through
laws that, in effect, make abandonment of one's
own religion or conformity to the religious
beliefs of others the price of an equal place in
the civil community(494 U.S. 872 at 897).
Finally, to place on the shoulders of government the
burden to prove a compelling interest in order to
protect the greater, or common good, is to place an
individual's claim to religious freedom in its rightful
place. America's founders, namely Thomas Jefferson and
James Madison, believed that the free exercise of
religion was the most "liberal" of all the rights
Americans could claim, the one right that placed the
greatest trust in the capacity of private choice, and
the one least dependent on positive law. In other
words, a right that was considered "unalienable."
Again, as Justice O'Connor stated in Smith, "The First
Amendment was enacted precisely to protect the rights
of those whose religious practices are not shared by
the majority." (494 U.S. 872 at 897, 902) We believe
that HB 387 will restore this historical intent at the
state level.
CHAIRMAN DYSON suspended the hearing on HB 387 temporarily in
order to take up other matters.
HB 402 - PROBABLE CAUSE FOR RUNAWAY MINORS
CHAIRMAN DYSON announced the next order of business as House Bill
No. 402, "An Act relating to runaway minors."
Number 1208
WILDA RODMAN, Staff for Representative Gene Therriault, came
forward to present HB 402 on behalf of the sponsor. She read the
sponsor statement:
This legislation is one of many in a long list
attempting to deal effectively with minors who have run
away from home. Four measures have passed the
legislature and become law since 1994 - each of them
recognizing and strengthening the rights of parents and
legal guardians to make the decisions on placement of
the minor. House bill 402 continues that effort.
House Bill 402 raises the standard by which peace
officers determine whether or not to return runaway
minors to their parents' or legal guardians' residence.
Under current law, once a minor has been determined to
be a runaway, peace officers are required to return
them to their parents' or legal guardians' residence
unless they have reasonable cause to believe that the
minor has experienced physical or sexual abuse in the
parents' or legal guardians' household. This
legislation requires the peace officer to have probable
cause to believe such abuse has occurred - a higher
standard.
The legislature has long grappled with the balance
between the rights of parents to raise their children
to be productive members of society and the
responsibility of protecting those who have been abused
physically or sexually. House Bill 402 is an attempt
to make Alaska's statutes reflect the appropriateness
of minors abiding by the rules and limits set by their
parents.
MS. RODMAN explained that Representative Therriault wanted this
bill brought up to hear the concerns of the department and
committee members.
Number 1278
REPRESENTATIVE WHITAKER asked if it is correct that it would be
reasonable for a police officer to have a runaway child simply
say "I have been abused," and that would be reason enough for
that child to not be returned to the family.
Number 1321
DEL SMITH, Deputy Commissioner, Department of Public Safety, came
forward to testify. As a law enforcement officer of many years,
he is concerned about raising this standard. He believes there
was at least one incident that prompted this legislation. As the
incident was related to him, he believes the officer did not act
appropriately. He doesn't believe the law needs to be changed
because an officer did not appropriately apply it. As to
Representative Whitaker's question, he believes if the runaway
minor articulates a fairly reasonable story, he, as a law
enforcement officer, would not want to take the runaway home. He
would at least want a timeout to look into whether something had
really occurred or not.
MR. SMITH noted that most horrific story he ever heard was when
the police took the child back to Jeffrey Dahmer's house. He is
not equating any of that here, but he does not want to put an
officer in a position of saying "Sorry kid, you don't make the
mark for probable cause," which is certainly a higher standard
than reasonable cause. Practically speaking, most officers are
going to err on the side of saying maybe there needs to be a
timeout for somebody to take a look at this. Probable cause is
the standard used to arrest somebody. He has to believe that a
crime happened to get to probable cause. That is a pretty tough
standard to arrive at in a police car before the officer can
decide what to do with the child. This is too high a standard to
determine whether or not to take someone's freedom away to arrive
at whether something has really happened to this young person.
Number 1495
REPRESENTATIVE BRICE asked what the legal tests are for
reasonable cause and probable cause.
MR. SMITH answered he can only speak to the practical
applications; Anne Carpeneti can better talk about the legal
standards. Probable cause to him is that something has happened
and there is someone who has done it. He has difficulty applying
it to a situation where somebody is telling him something that
has happened to them or not. Generally if someone comes up to a
police officer and says this has happened to him/her, the officer
doesn't try to set some standard about whether it did or not.
The report is taken and if it turns out to be false, a false
police report is filed against the person. That kind of triage
would not occur in this kind of situation. Reasonable cause is
in a situation like this: a kid says "I don't want to go home;"
"Why don't you want to go home?" "Well, I've been made to do
things that I don't like to do," or "They beat me." Then the
officer would try to fill out the story when, where, how, who and
how many times.
REPRESENTATIVE BRICE commented that there's a vague issue between
reasonable cause and probable cause.
MR. SMITH said the terms he refers to are "reasonable suspicion"
and "probable cause." He isn't sure exactly where reasonable
cause came from. Reasonable suspicion might be if he sees a guy
sneaking around in a neighborhood late at night where burglaries
have been happening, he might have reasonable suspicion to
believe that he is about to do a burglary or has done one, at
least enough to stop him and do a field interrogation. It would
not be probable cause to take him into custody unless he'd found
more evidence.
Number 1654
REPRESENTATIVE GREEN asked: If the standard was left at
reasonable cause, would the officers have to make a lot more
decisions because they might have a reasonable suspicion, but
they know they don't have probable cause? So, if it were
probable cause, they would deal with this kid differently.
MR. SMITH said if it were a probable cause standard and the law
were changed, the officer would probably have to take the child
home unless he/she had evidence that established probable cause.
As a practical matter, most law enforcement officers are going to
err toward taking a timeout and having someone else sort it out.
They are not going to stick the kid back into a situation where
he/she may be abused. In the situation where the kid says "I
just don't want to go home," if the officer applies the law in
the right way, he'd say "Sorry, we're going home." If the kid
says "I don't want to go home because things have happened to
me," the officer would need to question further about what is
happening to him/her. To get to the probable cause level takes a
lot more time, energy, investigation than should be required of
law enforcement officers on the street.
Number 1749
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came
forward to testify. She explained that a few years ago the
standard used to be "reasonable suspicion"; it was changed to
"reasonable cause" to raise that a little bit. The Department of
Law supports and agrees with the Department of Safety when it
voices its concerns about the probable cause standard. That is
the legal standard used to arrest somebody. No one wants to take
a child home in every case unless there is enough evidence to
arrest the parent; that would be dangerous. The police need the
chance to apply the reasonable cause standard if the reasons
given by the child seem to make sense and take some time to
investigate them out before taking the child home to what could
be a dangerous situation.
REPRESENTATIVE BRICE asked Ms. Carpeneti for the definitions of
probable cause and reasonable cause.
MS. CARPENETI answered that it is a very dynamic standard. She
could find case law for Representative Brice to see how courts
have defined it; it is not defined in Alaska's statutes. When
she thinks of "reasonable cause," she thinks of good reasons to
believe that there might be something bad happening to a child.
When she thinks of probable cause, she thinks of what Del [Smith]
described as enough reason to convince a judge to get a warrant
for his/her arrest - that a crime has been committed and that
person committed the crime.
REPRESENTATIVE BRICE said it is not clear to him that
"reasonable" to "probable" aren't interchangeable simply because
when the reasonable cause standard was established, nobody knew
what it was.
MS. CARPENETI said when talking about reasonable cause, it is
less talking about who did it than whether something bad
happened. That's how she would think of it. If the child gives
reason to believe that something bad has happened, no one wants
to return him/her to the original environment. In probable
cause, it is more likely than not that something bad has
happened, and that a particular person did it. She would be
happy to get case law on it; it is something used all the time,
but there isn't a good Webster's type definition. She will get
some court decisions for him.
CHAIRMAN DYSON asked Mr. Smith what an officer does with a child
when he has heard things and doesn't want to take the child home.
Where does he take him?
Number 1948
MR. SMITH answered that if there is not a DFYS person on duty, he
can call the Division of Family and Youth Services (DFYS) and
say, "I've got this person; where do you want me to take him?"
The officers are trying to avoid keeping him in the police car at
the police station.
CHAIRMAN DYSON asked what happens next.
Number 1974
JANA STEWART, Administrator, Central Office, Family Services,
Division of Family & Youth Services(DFYS), Department of Health &
Social Services, came forward to answer questions. She indicated
that in general, the DFYS supports the Department of Public
Safety's interpretation of this. The DFYS is not comfortable
with adding a second set of standards. The DFYS already uses
reasonable cause for mandatory reporters and police are mandatory
reporters. This is something the division is familiar with in
the civil context; to then throw in a standard which is most
traditionally used in criminal law which is so infrequently used
in civil law is going to confuse the issue for police officers
and may subsequently confuse the issue for DFYS when there is an
officer who has had to articulate something based on a criminal
law standard. It's not going to be as clear to the social
workers if the police officer has made an assessment based on a
criminal standard and now they're coming to DFYS with a child
that has to be placed under civil standards. The division
believes that is going to be apples and oranges and will cause
confusion for the police and social workers.
CHAIRMAN DYSON asked what happens to the child if the officer
decides not to take the child home.
MS. STEWART explained that it becomes a report of harm, and the
division will do an intake investigation and assess it. Then
there is a hearing before a magistrate in 48 hours.
Number 2044
REPRESENTATIVE BRICE asked if the "runaway" statutes are under
the civil laws, not criminal laws.
MS. STEWART answered yes, it is all through the child-in-need-of-
aid (CINA) statutes, which are not criminal statutes.
REPRESENTATIVE COGHILL asked: If the standard is probable cause
at the 48-hour hearing, are they going to determine whether that
is a child in need of assistance?
MS. STEWART said that is a second proceeding and an issue that
relates directly to the child's placement.
REPRESENTATIVE COGHILL asked if it comes back to reasonable cause
for deciding the child's placement.
MS. STEWART said reasonable cause is the entry level criterion at
present.
REPRESENTATIVE COGHILL asked if that is the point at which the
parent is contacted.
MS. STEWART said the parent would be contacted at that point,
depending on a whole panoply of circumstances.
Number 2107
REPRESENTATIVE GREEN asked Ms. Stewart if she has a feeling for
how many children have been finally adjudicated as having had
problems at home that would not have been brought in if the bar
had been raised, as proposed here.
MS. STEWART said she has no feeling on that and doesn't know how
even to go about getting statistics on that.
REPRESENTATIVE BRICE said he has never heard of runaways going to
the magistrate hearing. He wondered if all runaway pickups go to
the 48-hour hearing.
MS. STEWART answered no. An individual assessment will have to
be made. Those cases may not be heard about because there isn't
always a 48-hour hearing under the rubric of it being a runaway.
There will be a 48-hour hearing because the information obtained
from the runaway is this is a child who has been physically or
sexually abused in the home.
CHAIRMAN DYSON turned attention to other matters before the
committee [HB 402 was held over].
HB 387 - FREEDOM OF RELIGION
CHAIRMAN DYSON reopened the hearing on HOUSE BILL NO. 387, "An
Act prohibiting governmental entities, including municipalities
and school districts, from restricting a person's free exercise
of religion."
Number 2272
REPRESENTATIVE CROFT apologized for how heavy on the legal
analysis this whole thing is, but at its fundamental heart, it is
protection of religious liberty. It brings in a lot of legal
history and ideas he wanted to go over to briefly establish where
it is today. It has been a longstanding course of respect for
religious freedom that general respect was specifically codified
in constitutional interpretations in the late 1960s and early
1970s that required that a law of general applicability, a law
that wasn't targeted at religion. The more important question is
when a general law is passed, not directed at religion, but in
its application affects a religious practice, puts a substantial
burden in the phraseology of the court what should be the
decision. There are really two poles there.
REPRESENTATIVE CROFT said Justice Scalia would argue and did
eventually prevail that general law, since religion isn't being
targeted, no exceptions have to be made. So under his
interpretation, in prohibition, there had not been an exception
for the use of sacramental wine on Sundays for religious
practice, if it had just said alcohol was prohibited in this
country without exception, and it couldn't be shown that it was
targeted at religion, prohibition had many other purposes. There
would be no exception, and police could haul away a priest on
Sunday who served wine. That seems ridiculous at least contrary
to tradition that that could happen. It could without the
protection that an exception will be made unless the state can
show a compelling interest.
TAPE 00-29, SIDE B
Number 2352
REPRESENTATIVE CROFT explained that the United States Supreme
Court precedents in the 1960s and 1970s said even if a law wasn't
intended to affect religion, if that is the effect of it -
placing a substantial burden - then the person is excused from
compliance with that law unless the government can show a
compelling state interest and that this is the least restrictive
way to do it. In other words, the burden is reversed. Once it
has been shown that this puts a substantial burden on one's
religious practice, that person is exempt unless the government
now has the burden of proof to show that the law should be upheld
and applied because it's a compelling state interest. That was
the law from the early 1970s. He mentioned the sponsor statement
and the Yoder case, which was in some ways the defining law.
REPRESENTATIVE CROFT said that all changed in 1990 with the U.S.
Supreme Court decision of Smith v. Employment Division, which
Pastor Story referred to. In it, Justice Scalia - writing for a
divided court, 5-4 - said, quoting Justice O'Connor's dissent:
The Court today ... interprets [the free exercise] clause to
permit the government to prohibit, without justification,
conduct mandated by an individual's religious beliefs so
long as that prohibition is generally applicable.
REPRESENTATIVE CROFT paraphrased the sponsor statement, which
read:
The Smith decision met a storm of protest. In 1993, a
broad bipartisan majority of both houses of Congress
passed The Religious Freedom Restoration Act (federal
RFRA) and the bill was signed into law by President
Clinton. The RFRA attempted to use congressional
power to restore the "compelling state interest" test
for religious freedom.
In 1997, the United States Supreme Court ruled that the
federal RFRA statute was an unconstitutional extension
of federal power. City of Boerne v. Flores, 521 U.S.
507 (1997). The Flores decision effectively left any
protection of religious freedom to the individual
states. The Alaska Supreme Court has consistently
interpreted the free exercise clause of the Alaska
[State] Constitution to require a compelling state
interest analysis.
There is no present indication that the Alaska Supreme
Court intends to follow the direction of the Smith
decision in interpreting the Alaska [State]
Constitution. However, a change in the composition of
the court or judicial philosophy could lead to this
change in the future.
House Bill 387 ... will provide statutory protection
for religious freedom in Alaska by enshrining the
compelling state interest test for all state,
municipal, and school district actions. House bill 387
is not intended to create an establishment of religion
or allow a claim of religious freedom to authorize the
infringement of the rights of others. It simply
recognizes that Alaskans value their religious
liberties and are willing to allow an exception from
generally applicable laws for religious freedom unless
the government shows a compelling state interest.
REPRESENTATIVE CROFT explained to the testifiers that this bill
is an increase in protection for religious freedom. It is not
something that is intended to or will have the effect of
decreasing religious protection.
Number 2138
CHAIRMAN DYSON suspended the hearing on HB 387 temporarily in
order to hear testimony from an appointee to the Professional
Teaching Practices Commission.
CONFIRMATION HEARINGS
Professional Teaching Practices Commission
CHAIRMAN DYSON returned the committee's attention to the
confirmation hearings.
Number 2117
CHRISTINE MILLER DART, Appointee to the Professional Teaching
Practices Commission (PTPC), testified via teleconference from
Fairbanks. She was born and raised in Alaska and has lived in
Alaska all her life except for college. She has been a speech
therapist for the Fairbanks North Star School District for 21
years. This will be her second term on the PTPC. She was first
appointed in 1996-1997, she is beginning her fourth year and is
the secretary for the PTPC. It is an invaluable commission, and
she would like to continue serving on it. She said she feels
very responsible for the profession and for monitoring the
profession to see that there are good quality teachers who follow
a very strong code of professional ethics.
CHAIRMAN DYSON asked Ms. Miller Dart what some of the issues were
that have come before the PTPC during her tenure.
MS. MILLER DART noted her first year was hard because the PTPC
dealt with several issues of sexual misconduct between educators
and children. The decisions were easy to make but listening to
the issues was tough. Since then there have been fewer of those
cases. A more recent issue has to do with the upcoming teacher
shortage which has included people breaking contracts in the
middle of the year. Often the teachers have good mitigating
circumstances, family and health issues, but because the teachers
are difficult to replace, the districts are often unwilling to
let them go. The PTPC has to deal with the issue of what is
appropriate notice and what are appropriate mitigating
circumstances to leave contracts. Other issues include
monitoring the process of certifying teachers in the state;
monitoring some newer issues brought about by teachers having to
mark whether they have misdemeanors in the past; harassment and a
superintendent's misuse of funds.
CHAIRMAN DYSON asked Ms. Miller Dart if the PTPC has dealt with
any cases of teachers inappropriately disciplined when a teacher
was doing the right thing but the district or school board
disciplined him/her or showed prejudice or retribution against
him/her.
MS. MILLER DART said that doesn't come to mind right away. There
have been some claims that that has happened. The PTPC has an
excellent director who does most of the investigation and then
presents the case to the members of the commission.
CHAIRMAN DYSON asked Ms. Miller Dart if the purview of the PTPC
extends to all credentialed educators.
MS. MILLER DART answered it does include all credentialed
educators. She explained there are educators that are not
credentialed such as those in the university system.
[The confirmation hearings again were suspended in order to
return to legislation before the committee.]
HB 387 - FREEDOM OF RELIGION
Number 1875
CHAIRMAN DYSON returned attention to the hearing on HOUSE BILL
NO. 387, "An Act prohibiting governmental entities, including
municipalities and school districts, from restricting a person's
free exercise of religion."
Number 1861
RICHARD BLOCK, Christian Science Committee on the Publication for
the State of Alaska, testified via teleconference from Anchorage.
He has been asked by the Christian Science churches in Alaska to
keep an eye on how the practice of Christian Science and the
church and its activities are viewed by the public, and that
includes overviewing legislative activity that would affect the
practice of Christian Science by those who follows its beliefs.
He expressed support of HB 387 and urged its adoption. He didn't
have a copy of the CS, but from Representative Croft's
explanation of the changes, he supports the CS.
Number 1673
CHRIS SOEBROTO testified via teleconference from Tok. She
expressed support for the protection of religious freedom and the
intention of HB 387. However, the wording of this bill does not
satisfy her because it does not clearly define compelling
governmental interest. She urged the committee to take time to
clearly define this so that the bill can truly fulfill the
purpose originally intended to protect religious freedom in
choosing methods of education and medicine. These are at least
two areas that are not clearly protected under religious freedom
even though they are essential aspects of religious practice.
Number 1638
JAMIE NALEPINSKI testified via teleconference from Tok. She
expressed agreement with Ms. Soebroto's testimony and agreement
with HB 387. Furthermore, when things such as compelling
government issues are not clearly defined, it is left for
interpretation by a judge. She does not want a judge deciding
how she chooses to practice her spirituality or religion. By
doing that, people give away their personal power. She urged the
committee to take the time to clearly define compelling
government issue.
Number 1595
LYLE AXELARRIS testified via teleconference from Tok. He
expressed support for HB 387 along with the previous testifiers.
He supports protection for religious freedom, and he wants to be
sure the bill will work. The wording in the bill is still very
vague and therefore open to misinterpretation by the courts. To
rectify this and safeguard religious freedom, he suggested two
statements that should be included in the bill. The first
statement comes from the Smith case: "Prohibiting the free
exercise of religion includes requiring any individual to observe
a generally applicable law that requires (or forbids) the
performance of an act that his religious belief forbids (or
requires)." This reference is from the majority and in his copy
it is on page 7, and he will fax it to the committee. He
believes that the inclusion of this statement will help to ensure
the correct interpretation of this bill, and the constitutional
rights to freely exercise religion.
MR. AXELARRIS noted that the second statement he believes should
be included in HB 387 is a definition of compelling governmental
issues and a definition of religious practices. He read the
statement he wrote:
Compelling governmental interest is when the government
finds that the conduct of an individual is harmful to
another individual or the community at large. Conduct
that falls under the definition of religious practice
as is stated below is automatically exempt from
restriction even on the compelling governmental
interest test.
"Religious practices" as it is applied according to the
Alaska [State] Constitution, Article I, Section 4,
include but are not limited to 1) personal expression
in worship in both life and death; 2) the choice of
medicine and healing methods or the refusal thereof; 3)
the choice of education style and content for adults
and children; 4) the choice of dietary practices,
including the foods eaten or not eaten, and the foods
used for spiritual practices including ceremonies
involving around one's death and the means of
harvesting such foods; 5) the method of raising and
caring for the children under the form of worship.
Number 1413
TABITHA PARKER testified via teleconference from Tok. She
expressed support for the protection of religious freedom and the
intention of HB 387. However, she believes there is a vagueness
in certain areas which are problematic and need clarification.
She would like to know how the Alaska State Constitution defines
compelling governmental interests. It was said in the Community
and Regional Affairs Committee meeting last week that compelling
governmental interest is the highest standard. If this is true,
she wondered why has this not been defined clearly in the bill.
Furthermore, her understanding of the compelling governmental
interest test is it is more of an interpretation or judgment made
by a judge or group of judges that clearly defined objective form
of evaluation.
MS. PARKER wondered how one's religious rights can be protected
when - as in the 1990 Employment Division v. Smith case - the
interpretation of the law is decided on by a subjective judicial
system which may have absolutely no understanding of the
underlying beliefs of the religion judged. This is problematic
and has been throughout history. She asked how does one know
that "compelling governmental interest" won't be used against
religious practices. If compelling governmental interest is
determined by the court, then what stops the judge from declaring
that it is a compelling governmental interest for example, to
restrict the use of alcohol even in religious uses, or to mandate
vaccinations even if that seems to fundamentally offend one's
religious belief. It seems that compelling governmental interest
can override religious freedom at the whim of the court's
position. She would like the vagueness of the bill to be more
clearly defined to ensure that freedom of religion is protected.
Number 1322
MICHAEL REILLY testified via teleconference from Tok. He
expressed his support for HB 387 and its intention. He asked the
following questions: If the bill becomes law and a religious
freedom case goes to the U.S. Supreme Court, would Alaska's law
prevent the U.S. Supreme Court from ruling against the religious
practitioner? Would compelling governmental interest as stated
in HB 387 definitely apply to all laws in all situations? In the
Employment Division v. Smith case (1990) the Supreme Court said
that the compelling governmental interest does not apply to
across the board criminal laws. Would HB 387 guarantee that it
does apply to all generally applicable laws? Does it apply to
civil laws and what would prevent the Alaska Supreme Court from
doing the same thing that the U.S. Supreme Court case did if HB
387 in enacted? Furthermore, could HB 387 be challenged five
years down the road and the court throw it out as
unconstitutional?
Number 1245
AMY JO RIST testified via teleconference from Tok. She expressed
support of the protection of religious freedom and the intention
of HB 387. She agreed with previous testimony that further
clarification is needed regarding compelling governmental
interest. She wondered why the state legislature and
corporations are not covered along with school districts,
municipalities and state agencies in the bill.
MR. AXELARRIS said he would be interested in hearing the answers
to the questions raised.
CHAIRMAN DYSON suggested Mr. Axelarris contact Representative
Croft.
REPRESENTATIVE CROFT offered to call the Tok Legislative
Information Office and talk to the people who testified.
Number 1131
REPRESENTATIVE GREEN made a motion to move CSHB 387, version 1-
LS461\G, Kurtz, 3/7/00, out of committee with individual
recommendations and attached fiscal notes. There being no
objection, CSHB 387(HES) moved from the House Health, Education
and Social Services Standing Committee.
CONFIRMATION HEARINGS
Professional Teaching Practices Commission
CHAIRMAN DYSON returned the committee's attention to the
confirmation hearings.
Number 1046
LAWRENCE LEE OLDAKER, Appointee for the Professional Teaching
Practices Commission (PTPC), came forward to testify. He
explained that he is a professor emeritus at the University of
Alaska Southeast. He has been invited to be a nominee for the
higher education position on the PTPC. This will be his first
time serving.
CHAIRMAN DYSON asked Mr. Oldaker why he wants to serve.
Number 0996
MR. OLDAKER said he has always had a sense of fairness and
equity. He was a teacher for three years and a superintendent for
nine years. He was involved in the desegregation days and can
reflect on them more pleasantly with the passage of time. At the
time he was dealing with issues related to equity, school
admission and school policies. Later he went into higher
education at Valdosta State College to help create a leadership
program; then he was recruited to the University of Alaska
Southeast to do the same thing. During this time he picked up an
academic interest in law and ethics and has taught the course for
30 years. He has conducted research, made presentations and
publications on that subject.
Number 0875
LINDA CONNELLY, Appointee for the Professional Teaching Practices
Commission (PTPC), testified via teleconference from Palmer. She
explained she has been an educator for over 25 years both as a
teacher and an administrator for the last 12 years. This is a
reappointment for her to the PTPC for a second term. She
currently is the chair of the PTPC. She finds it fascinating and
is interested in the profession and upholding professionalism and
overall ethics of all educators. She served on the Alaska
Association of Elementary School Principals for approximately ten
years and has become more involved in state activities. She has
become interested in just serving the profession. She added that
she has been principal at both small and large schools.
[End of confirmation hearings; all confirmations were advanced.]
ADJOURNMENT
There being no further business before the committee, the House
Health, Education and Social Services Standing Committee meeting
was adjourned at 5:35 p.m.
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