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.