HOUSE JUDICIARY STANDING COMMITTEE April 12, 2000 1:55 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT Representative Norman Rokeberg COMMITTEE CALENDAR CS FOR SENATE BILL NO. 193(FIN) "An Act relating to the payment of wages and claims for the payment of wages." - MOVED CSSB 193(FIN) OUT OF COMMITTEE HOUSE BILL NO. 359 "An Act relating to notice requirements for certain final findings concerning the disposal of an interest in state land or resources for oil and gas; relating to administrative appeals and petitions for reconsideration of decisions of the Department of Natural Resources; and providing for an effective date." - MOVED HB 359 OUT OF COMMITTEE SENATE BILL NO. 268 "An Act relating to mandatory 99-year terms of imprisonment for persons convicted of certain murders." - MOVED HCS SB 268(JUD) OUT OF COMMITTEE 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 PREVIOUS ACTION BILL: SB 193 SHORT TITLE: COLLECTION OF UNPAID WAGES/WAGE PAYMENTS Jrn-Date Jrn-Page Action 1/14/00 1977 (S) READ THE FIRST TIME - REFERRALS 1/14/00 1977 (S) L&C, FIN 2/08/00 (S) L&C AT 1:30 PM BELTZ 211 2/08/00 (S) -- Rescheduled to 2/10/00 -- 2/10/00 (S) L&C AT 1:30 PM BELTZ 211 2/10/00 (S) Moved CS(L&C) Out of Committee 2/10/00 (S) MINUTE(L&C) 2/11/00 2272 (S) L&C RPT CS 4DP SAME TITLE 2/11/00 2272 (S) DP: MACKIE, TIM KELLY, DONLEY, LEMAN 2/11/00 2272 (S) ZERO FISCAL NOTE (LABOR) 2/22/00 (S) FIN AT 9:00 AM SENATE FINANCE 532 2/22/00 (S) Heard & Held 3/06/00 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/06/00 (S) Moved CS(Fin) Out of Committee 3/06/00 2529 (S) FIN RPT CS 7DP 1NR SAME TITLE 3/06/00 2530 (S) DP: TORGERSON, PARNELL, PHILLIPS, 3/06/00 2530 (S) GREEN, PETE KELLY, LEMAN, WILKEN, 3/06/00 2530 (S) NR: ADAMS 3/06/00 2530 (S) PREVIOUS ZERO FN (LABOR) 3/07/00 (S) RLS AT 12:00 PM FAHRENKAMP 203 3/07/00 (S) MINUTE(RLS) 3/08/00 2562 (S) RLS TO CALENDAR 03/08/00 3/08/00 2567 (S) READ THE SECOND TIME 3/08/00 2567 (S) MOVE TO BOTTOM OF CALENDAR 3/08/00 2576 (S) FIN CS ADOPTED UNAN CONSENT 3/08/00 2576 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/08/00 2576 (S) READ THE THIRD TIME CSSB 193(FIN) 3/08/00 2577 (S) PASSED Y19 N- E1 3/08/00 2577 (S) TORGERSON NOTICE OF RECONSIDERATION 3/15/00 2614 (S) RECONSIDERATION NOT TAKEN UP 3/15/00 2615 (S) TRANSMITTED TO (H) 3/15/00 2481 (H) READ THE FIRST TIME - REFERRALS 3/15/00 2481 (H) L&C, JUD 3/29/00 (H) L&C AT 3:15 PM CAPITOL 17 3/29/00 (H) Moved CSSB 193(FIN) Out of Committee 3/29/00 (H) MINUTE(L&C) 3/30/00 2786 (H) L&C RPT 6DP 1NR 3/30/00 2786 (H) DP: HARRIS, CISSNA, BRICE, SANDERS, 3/30/00 2786 (H) HALCRO, ROKEBERG; NR: MURKOWSKI 3/30/00 2786 (H) SENATE ZERO FISCAL NOTE (LABOR) 2/11/00 4/05/00 (H) JUD AT 1:00 PM CAPITOL 120 4/05/00 (H) Heard & Held 4/05/00 (H) MINUTE(JUD) 4/11/00 3063 (H) CROSS SPONSOR(S): HALCRO 4/12/00 (H) JUD AT 1:30 PM CAPITOL 120 BILL: HB 359 SHORT TITLE: DEPT NAT RES ADMIN APPEALS/OIL & GAS Jrn-Date Jrn-Page Action 2/09/00 2148 (H) READ THE FIRST TIME - REFERRALS 2/09/00 2148 (H) RES, JUD, FIN 2/09/00 2148 (H) ZERO FISCAL NOTE (DNR) 2/09/00 2148 (H) GOVERNOR'S TRANSMITTAL LETTER 3/27/00 (H) RES AT 1:00 PM CAPITOL 124 3/27/00 (H) Moved Out of Committee 3/27/00 (H) MINUTE(RES) 3/28/00 2723 (H) RES RPT 2DP 5NR 3/28/00 2724 (H) DP: HARRIS, HUDSON; NR: COWDERY, 3/28/00 2724 (H) MORGAN, WHITAKER, JOULE, KAPSNER 3/28/00 2724 (H) ZERO FISCAL NOTE (DNR) 2/9/00 4/12/00 (H) JUD AT 1:30 PM CAPITOL 120 BILL: SB 268 SHORT TITLE: MANDATORY 99-YEAR TERM OF IMPRISONMENT Jrn-Date Jrn-Page Action 2/11/00 2281 (S) READ THE FIRST TIME - REFERRALS 2/11/00 2282 (S) JUD, FIN 2/23/00 (S) JUD AT 1:30 PM BELTZ 211 2/23/00 (S) Moved Out of Committee 2/23/00 (S) MINUTE(JUD) 2/24/00 2406 (S) JUD RPT 3DP 2/24/00 2406 (S) DP: TAYLOR, HALFORD, DONLEY 2/24/00 2406 (S) ZERO FISCAL NOTES (ADM, COR) 3/16/00 2628 (S) FIN REFERRAL WAIVED 3/17/00 (S) RLS AT 11:30 AM FAHRENKAMP 203 3/17/00 (S) MINUTE(RLS) 3/21/00 2678 (S) RLS TO CALENDAR AND 1 OR 03/21/00 3/21/00 2678 (S) READ THE SECOND TIME 3/21/00 2678 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/21/00 2679 (S) READ THE THIRD TIME SB 268 3/21/00 2679 (S) COSPONSOR(S): TAYLOR, HALFORD, LEMAN 3/21/00 2679 (S) PASSED Y20 N- 3/21/00 2681 (S) TRANSMITTED TO (H) 3/22/00 2643 (H) READ THE FIRST TIME - REFERRALS 3/22/00 2643 (H) JUD 3/24/00 2695 (H) CROSS SPONSOR(S): MASEK 4/03/00 (H) JUD AT 1:30 PM CAPITOL 120 4/03/00 (H) Scheduled But Not Heard 4/12/00 (H) JUD AT 1:30 PM CAPITOL 120 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) 3/07/00 (H) HES AT 3:00 PM CAPITOL 106 3/07/00 (H) Moved CSHB 387(HES) Out of Committee 3/07/00 (H) MINUTE(HES) 3/07/00 (H) MINUTE(HES) 3/07/00 (H) MINUTE(HES) 3/15/00 2492 (H) HES RPT CS(HES) NT 5DP 2NR 3/15/00 2492 (H) DP: GREEN, DYSON, COGHILL, WHITAKER, 3/15/00 2492 (H) BRICE; NR: MORGAN, KEMPLEN 3/15/00 2492 (H) INDETERMINATE FN (LAW/ALL DEPTS) 3/3/00 3/15/00 2559 (H) COSPONSOR(S): WHITAKER 3/28/00 (H) STA AT 8:00 AM CAPITOL 102 Bill Postponed to 3/30/00 3/30/00 (H) STA AT 8:00 AM CAPITOL 102 3/30/00 (H) Heard & Held 3/30/00 (H) MINUTE(STA) 4/04/00 (H) STA AT 8:00 AM CAPITOL 102 4/04/00 (H) Moved CSHB 387(HES) Out of Committee 4/04/00 (H) MINUTE(STA) 4/05/00 2868 (H) STA RPT CS(HES) NT 4DP 1DNP 1AM 4/05/00 2868 (H) DP: JAMES, GREEN, WHITAKER, OGAN; 4/05/00 2868 (H) DNP: KERTTULA; AM: HUDSON 4/05/00 2868 (H) INDETERMINATE FN (LAW/ALL DEPTS) 4/12/00 (H) JUD AT 1:30 PM CAPITOL 120 WITNESS REGISTER KRIS KNAUSS, Staff to Senator Drue Pearce Alaska State Legislature Capitol Building, Room 111 Juneau, Alaska 99801 POSITION STATEMENT: Answered questions on SB 193. BOB LOEFFLER, Director Central Office Division of Mining, Land and Water Department of Natural Resources 3601 C Street, Suite 800 Anchorage, Alaska 99503-5935 POSITION STATEMENT: Presented HB 359. SENATOR DAVE DONLEY Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of SB 268. ROBERT ROYCE, Assistant Attorney General Governmental Affairs Section Civil Division (Anchorage) Department of Law 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501-1994 POSITION STATEMENT: Testified on HB 387. ALLISON MENDEL, Attorney at Law 8830 Banjo Circle Anchorage, Alaska 99502 POSITION STATEMENT: Testified on HB 387. LONNIE WIBBERDING P.O. Box 778 Glennallen, Alaska 99588 POSITION STATEMENT: Testified in support of HB 387 without amendment. ALTHEA BUCKINGHAM 118D Harvest Way Sitka, Alaska 99835 POSITION STATEMENT: Testified in support of HB 387. HARRY ROSENFELD, Rabbi 1407 Annapolis Street Anchorage, Alaska 99508 POSITION STATEMENT: Testified in opposition to HB 387. NICHOLAS P. MILLER, Executive Director Council on Religious Freedom 110 North Washington Street, Suite 404 Rockville, Maryland 20850 POSITION STATEMENT: Testified on HB 387. ED KRAFT (Address not provided.) POSITION STATEMENT: Testified in support of HB 387 as written. JIMMIE STORY 1507 Davidoff Street Sitka, Alaska 99835 POSITION STATEMENT: Testified in support of HB 387. KEN NELSON 600 Lake Street Sitka, Alaska 99835 POSITION STATEMENT: Testified in support of HB 387 as written. GAYLE A. KILDAL P.O. Box 456 Glennallen, Alaska 99588 POSITION STATEMENT: Testified in support of HB 387 as written. JENNIFER RUDINGER, Executive Director Alaska Civil Liberties Union P.O. Box 201844 Anchorage, Alaska 99510-1844 POSITION STATEMENT: Testified on HB 387. MICHAEL J. STARK, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on HB 387 on behalf of the Department of Corrections. ANGELA SALERNO Division of Public Assistance Department of Health & Social Services P.O. Box 110640 Juneau, Alaska 99811-0640 POSITION STATEMENT: Testified on HB 387, expressing concern in relation to eligibility technicians denying a benefit because a person cannot work outside the home due to religious beliefs. JOSEPH STORY, Government Relations Representative Northwest Religious Liberty Association 1507 Davidoff Street Sitka, Alaska 99835 POSITION STATEMENT: Testified in support of HB 387. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health & Social Services P.O. Box 110630 Juneau, Alaska 99811 POSITION STATEMENT: Testified on HB 387. ACTION NARRATIVE TAPE 00-57, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:55 p.m. Members present at the call to order were Representatives Kott, Green, James, Murkowski, Croft and Kerttula. SB 193 - COLLECTION OF UNPAID WAGES Number 0045 CHAIRMAN KOTT announced that the first order of business would be CS FOR SENATE BILL NO. 193(FIN), "An Act relating to the payment of wages and claims for the payment of wages." He informed members that there was a proposed committee substitute (CS), Version K, [1-LS1263\K, Cramer, 4/07/00], which incorporates [the amendment adopted at the previous hearing]. It also will require a companion resolution, to his belief, because the title has been changed by including Rule 82 [Alaska Rules of Civil Procedure] and Rule 508 [Alaska Rules of Appellate Procedure]. The major change occurs on page 3, Section 7, through the end of the bill; that resulted from the amendment offered by Representative Croft and passed by the committee. Chairman Kott asked Representative Croft if he had looked over that language to be sure everything desired had been captured. Number 0140 REPRESENTATIVE CROFT answered yes, but the committee may have captured it too fully and completely. In talking to the sponsor, the sponsor's representative and the Department of Labor [& Workforce Development], he still feels that the discussion needs some closure. This isn't completely solving the problem that people have when they have unpaid wage claims and are having trouble either getting real relief or getting the department to pursue the claims; this [Version K] gives some direction in allowing small claims. As discussed, either this will require more departmental time and employee effort, or else some way to do this must be enabled. REPRESENTATIVE CROFT said it is getting late [in the session], and this makes a partial attempt in an area of law that should be looked at more fully. In completely taking over the attorney fee provisions from overtime and minimum wage, the bill brought in areas that are objectionable to the business community and possibly the "clear and convincing" standard. If there were more time, the committee might be able to get an attorney fee provision that is moderate enough to at least be acceptable to the business community without seriously delaying the bill. However, he would be willing to move out the [Senate] Finance Committee version instead of Version K, so that the issue of how unpaid workers get attorney fees can continue to be discussed next year. Number 0282 CHAIRMAN KOTT asked whether Representative Croft would want this bill referred to him as a subcommittee chair in order to work on the issues. REPRESENTATIVE CROFT answered thank you, but no. Although [Version K] makes an incremental change that helps a little, he believes there is a bigger issue to worry about. However, he doesn't want to kill "the little" to advance the greater, particularly because of how late it is getting in the session. CHAIRMAN KOTT asked whether the sponsor's preference is to pass out Version I [CSSB 193(FIN)]. KRIS KNAUSS, Staff to Senator Drue Pearce, Alaska State Legislature, answered yes. Number 0343 REPRESENTATIVE CROFT made a motion to adopt Version I [CSSB 193(FIN)]. CHAIRMAN KOTT, hearing no objection, announced that [CSSB 193(FIN)] was before the committee. He asked Mr. Knauss whether he wished to add any closing remarks. Number 0386 MR. KNAUSS commented that the sponsor [Senator Pearce] has indicated that Representative Croft's intentions are well noted, but does not agree with the proposed CS [Version K]; she believes it goes further than the intention of the legislation with CSSB 193(FIN). Number 0471 REPRESENTATIVE CROFT made a motion to move CSSB 193(FIN) out of committee with individual recommendations and zero fiscal note. There being no objection, CSSB 193(FIN) was moved from the House Judiciary Standing Committee. HB 359 - DEPARTMENT NAT RES ADMIN APPEALS/OIL & GAS Number 0530 CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 359, "An Act relating to notice requirements for certain final findings concerning the disposal of an interest in state land or resources for oil and gas; relating to administrative appeals and petitions for reconsideration of decisions of the Department of Natural Resources; and providing for an effective date." Number 0580 BOB LOEFFLER, Director, Central Office, Division of Mining, Land and Water, Department of Natural Resources (DNR), came before the committee to present HB 359. The bill would create a uniform appeals process for DNR and would fix a public notice problem with respect to DNR's Division of Oil & Gas. Currently, he explained, as an "artifact" of different laws passed at different times, DNR has a couple of appeals tracks. For some decisions there is a 30-day appeals process, while for other decisions there is a 15-day or 20-day appeals process. There can also be multiple appeals for some types of decisions; for example, in some cases an appeal can be made to him, if his staff has made the decision, then to the commissioner and then to the commissioner again. Therefore, HB 359 would create a uniform appeals process so that the public is not confused and so that staff don't "blow it," as they occasionally do. MR. LOEFFLER noted that it would be a one-shot appeals process in that if a person does not like a decision made by staff, that decision can be appealed to the commissioner; the person then has a right to go to court. A simple process, it would not take any rights away from the public, except for the chance of a multiple appeal in some cases. He believes the bill would help people understand the process, which would be quicker. Number 0722 MR. LOEFFLER pointed out that HB 359 would also fix a notice-related problem. The Division of Oil & Gas has to notice a lease sale three times: once for the preliminary finding; once for the final finding; and, as an "artifact," the division has to notice that it is going to notice the final finding - a "notice of a notice." The consequence is confusion and expense. It costs a certain amount of money to place a legal notice in a newspaper, especially oil and gas lease notices that must go statewide. He believes that the "fix" would not change the rights of either citizens or governments. All it would do is make government a little more efficient and less confusing. Number 0784 REPRESENTATIVE GREEN asked Mr. Loeffler whether [the state] is in any jeopardy of having set a precedent in relation to the "notice of a notice." MR. LOEFFLER replied that he doesn't think so. REPRESENTATIVE GREEN asked Mr. Loeffler whether that has been checked with the Office of the Attorney General. MR. LOEFFLER responded that the bill has been reviewed by the Office of the Attorney General; they believe that the "notice of a notice" is an "artifact." In reply to a further comment from Representative Green about a precedent, Mr. Loeffler stated, "I don't believe that's a problem, sir." Number 0818 REPRESENTATIVE MURKOWSKI asked Mr. Loeffler whether a person can request a reconsideration if a decision has not been appealed to the commissioner. MR. LOEFFLER answered that if the commissioner makes the decision, it is no longer called an appeal; it is called a reconsideration. If somebody other than the commissioner makes the decision, it is called an appeal. For example, the commissioner signs decisions made for very important decisions in relation to oil and gas leases. However, appeals of decisions made by his staff go to the commissioner, and under current law a person can ask the commissioner again for a decision under reconsideration. Number 0900 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed the meeting to public testimony. Number 0921 REPRESENTATIVE GREEN stated that he is in favor of anything that can streamline government without jeopardizing public notice. He pointed out that the bill is coming directly from the Office of the Commissioner [DNR]. CHAIRMAN KOTT indicated three DNR representatives in the audience were nodding their heads in agreement. Number 0943 REPRESENTATIVE GREEN made a motion to move HB 359 from the committee with individual recommendations and the attached zero fiscal note. There being no objection, HB 359 was moved from the House Judiciary Standing Committee. SB 268 - MANDATORY 99-YEAR TERM OF IMPRISONMENT CHAIRMAN KOTT announced that the next order of business would be SENATE BILL NO. 268, "An Act relating to mandatory 99-year terms of imprisonment for persons convicted of certain murders." Number 0966 SENATOR DAVE DONLEY, Alaska State Legislature, came before the committee to testify as sponsor of SB 268. To the current statutory provisions for a 99-year sentence, he told members, the bill would add a new category for persons who actually commit a murder during a robbery. It would add a new standard to the three existing provisions of law that also require the mandatory 99-year sentence. They are as follows: 1) the defendant is convicted of the murder of a uniformed or otherwise clearly identified peace office, fire fighter or correctional employee who was performing professional duties at the time of the murder; 2) the defendant has been previously convicted of a murder in the first degree; or 3) the court finds clear and convincing evidence that the defendant had subjected the victim to substantial physical torture. SENATOR DONLEY explained that there have been problems with murders during robberies in both Anchorage and Fairbanks over the last couple of years with taxi drivers and late-night restaurant workers. The bill was requested, therefore, by the Alaska Hospitality Association in hopes that it sends a message of deterrence. Number 1093 REPRESENTATIVE GREEN asked Senator Donley what the average sentence now is for these types of cases. SENATOR DONLEY replied that the typical sentence is 99 years. The mandatory minimum is 20 years; however, most judges are sentencing a defendant in these types of cases to 99 years. If for some reason a defendant had received a 20-year-sentence, the "good time" provisions would "kick in," and that defendant would be out in 14 years or so. However, in the case of the three existing categories mentioned earlier, the normal "good time" provisions do not apply; instead, a defendant convicted of murder in the first degree who is sentenced to 99 years receives a review after 50 years. Number 1200 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would apply if Fred and John "do something" and Fred "gets it." SENATOR DONLEY said the bill is not aimed at the felony murder class. If someone was present at a robbery but didn't actually pull the trigger, the new provision wouldn't apply; it would only apply to those who actually committed the murder. He noted that in at least 26 states individuals who commit a murder during a robbery are subject to the death penalty, as the maximum provision. Number 1252 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would apply to an individual who accidentally shoots someone. SENATOR DONLEY replied, "Yes." Number 1263 REPRESENTATIVE CROFT said he thinks that when an individual accidentally shoots someone, it is a felony murder. It isn't intentional murder; therefore, it must be a felony murder because of the intent to commit a robbery. SENATOR DONLEY replied that the classic example of felony murder is when, during a robbery, a gunfight ensues and a police officer kills a bystander. In that event, the criminal actors are guilty of felony murder, even though they did not shoot the bystander. That is an illustration of how expansive felony murder can be. The new provision, therefore, focuses on the individual who directly has caused the murder. Number 1316 REPRESENTATIVE CROFT stated that if a person intentionally kills another person, it is intentional first degree murder. If a person is robbing another person and accidentally kills that person, it is second degree felony murder. He asked Senator Donley which one the new provision refers to - murder in the first or second degree. He noted that the language [on page 2, lines 9-10, of the bill] reads, "the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery." SENATOR DONLEY replied that the new provision would require the normal elements of murder. He pointed out that the new provision is a little different in that the language reads, "and personally caused the death ...." [page 2, lines 8-9, of the bill]. Number 1390 REPRESENTATIVE CROFT said it appears that the new provision is a special category in addition to the other three provisions already in statute. SENATOR DONLEY specified that he wants to distinguish the new provision from felony murder. Number 1424 REPRESENTATIVE GREEN asked Senator Donley whether the new provision would include second-degree murder. SENATOR DONLEY replied that a person would have to be convicted of a murder in which all of the elements of murder were present. REPRESENTATIVE GREEN suggested that it would have to be first-degree murder. SENATOR DONLEY paused, then replied, "Actually, I think you're right." He noted that subsection (a) [page 1, lines 5-8] limits the new provision to murder in the first degree. If that wasn't there, he would agree that it would apply to murder in the second degree. REPRESENTATIVE GREEN asked Senator Donley whether there is a chance that the new provision would be misinterpreted because the language just reads "murder." He said the other provisions read first- or second-degree murder. SENATOR DONLEY replied that he doesn't think so because the language "or" falls under subsection (a) [page 1, lines 5-8, of the bill], which confines the actions to murder in the first degree. REPRESENTATIVE GREEN pointed out that subparagraph (A) [page 1, lines 13-14] specifically indicates murder in the first degree. SENATOR DONLEY explained that the section is trying to define murder in the first degree. In that regard, a murder someone had committed in Oregon would have to have all the same elements of first-degree murder in Alaska to count towards a second murder offense. That is why the language is repeated in subparagraph (A) [page 1, starting on line 13]. Number 1571 CHAIRMAN KOTT asked Senator Donley when a robbery is considered concluded. He posed the following scenario: I go in with not the intent of killing someone with a weapon and ask the person for the cash register receipts. I get them. I turn around, and someone comes in behind me, and I shoot that person. I'm caught by surprise. They come through the door. Would that then apply to this particular situation, or ... is the robbery complete once the transaction occurs? SENATOR DONLEY replied that the new provision would be defined by a court the first time it is used. The intent, he reiterated, is to act as a deterrent to protect the public. He further stated that not all murders are the same because some have an inherently greater public safety risk. For example, if a person goes into a public restaurant with a lot of people milling around and commits a robbery, there is an inherently greater public safety risk; it is not just the robber and one other person. He thinks that the entrance and escape are part of the continuance of the commission of a robbery. But, as he studied in law school, there is a question in relation to a certain amount of time that has elapsed after the commission of a robbery. He cited two hours as an example. In that case, a judge would have to make a finding on whether or not the law applies. Number 1694 REPRESENTATIVE KERTTULA said she thinks that the language isn't clear in relation to the defendant's being both the murderer and the robber. The language reads, "the defendant is convicted of the murder of and personally caused the death of a person, other than a participant, during a robbery" [page 2, lines 9-10]. It doesn't say that a person is convicted of a robbery. She pointed out that subparagraph (C) [page 2, lines 3-6] specifically indicates that a defendant has been previously convicted of homicide. Therefore, the new provision could apply to a person who walks in while a robbery is being committed and kills someone, but that person is not convicted of the robbery. REPRESENTATIVE JAMES noted that the language reads, "other than a participant" [page 2, line 10]. She asked whether the language refers to the person who was murdered or to the person who committed the murder. SENATOR DONLEY stated that he doesn't have a problem changing the language so that it says a person has been convicted of a robbery as well. REPRESENTATIVE KERTTULA commented that otherwise there is a risk of it "going the other way." SENATOR DONLEY said he really doubts that prosecutors would "go after that," but he doesn't have a problem with clarifying the language because that is not the intent. Number 1760 REPRESENTATIVE KERTTULA suggested the following language: "... during a robbery of which the defendant was convicted." REPRESENTATIVE CROFT commented that there are cases in the news of police officers who are up for murder charges for the possible use of excessive force. Therefore, if the language remains as-is, a police officer who responds to a robbery, shoots negligently, and kills a bystander could face a 99-year sentence. SENATOR DONLEY restated that the change is fine. He doesn't think, however, that those examples meet the elements of murder in the first degree. Number 1810 REPRESENTATIVE MURKOWSKI asked Senator Donley to assure her that the new provision is not limited to a death that only occurs during the robbery. The language reads "during a robbery" [page 2, line 10]. In other words, a person could die after a robbery. SENATOR DONLEY said that is not his intent. REPRESENTATIVE MURKOWSKI recognized that, but said she hopes that the language can be fixed to make it clearer. SENATOR DONLEY agreed with fixing the language to make it clearer. He suggested the following language: "... and personally caused the death of a person other than by some action during a robbery." He explained that in that way, it is the action that occurred during a robbery and not the death. He suggested perhaps the bill drafter could come up with a better phrase. Number 1900 REPRESENTATIVE KERTTULA asked Senator Donley whether sexual assault is included in the definition of substantial physical torture. SENATOR DONLEY replied that he has heard about two cases in relation to substantial physical torture; one included sexual assault as well as other [unspecified] acts. Number 1925 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed the meeting to public testimony. Number 1955 REPRESENTATIVE KERTTULA proposed a conceptual amendment [Amendment 1] to make it clear that the cause of death happened at the time of the robbery, and that a person has to have been convicted of the robbery. There being no objection, Amendment 1 was adopted. Number 2017 REPRESENTATIVE GREEN made a motion to move SB 268, as amended, from the committee with individual recommendations and the attached zero fiscal note. There being no objection, HCS SB 268(JUD) was moved from the House Judiciary Standing Committee. HB 387 - FREEDOM OF RELIGION Number 2044 CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 387, "An Act prohibiting governmental entities, including municipalities and school districts, from restricting a person's free exercise of religion." [Before the committee was CSHB 387(HES), version 1-LS1461\H.] Number 2061 REPRESENTATIVE CROFT, speaking as the sponsor of HB 387, explained the bill. Until 1990, the law in the U.S. Supreme Court had been that if a law of general application impinged upon a person's religious practice in a substantial way, so that it burdened the person's free exercise rights, that person could get an exception unless the state could show a compelling interest. In that way, there was a check. With regard to Prohibition, for example, the court recognized that there would be a "free exercise problem" if it didn't exempt wine used in church services from the general law. REPRESENTATIVE CROFT continued. In 1990 the U.S. Supreme Court reversed that entire line of cases, essentially saying that exceptions would no longer be requested and that, under federal law, a law of general application does not need an exception. However, if the very purpose of a law were to get at a religious practice, that part of the U.S. Supreme Court ruling stayed. This caused a "fire storm" of controversy, Representative Croft told fellow members, and led to enactment of the federal Religious Freedom Restoration Act [RFRA] through a bipartisan effort. Although signed by President Clinton, the Act itself was unconstitutional in that there is no authority in the federal constitution to tell states and municipalities how they should act. It then became a state-by-state issue. REPRESENTATIVE CROFT noted that there is continuing discussion and disagreement with regard to the Smith [Smith v. Emp. Div., 494 U.S. 872 (1990)] decision. It has been upheld, but by the same narrow 5-4 ruling; many people, including [U.S. Supreme Court Associate] Justice O'Connor, were very upset about it. Alaska has generally kept to the compelling state interest test, essentially staying at a "high level" while the U.S. Supreme Court has "retreated." Because there is no guarantee of future court rulings, HB 387 would set in statute that compelling state interest standard. In that way, should the Alaska Supreme Court decide to follow the Smith decision, there would be a statutory foundation or "backstop." Number 2255 ROBERT ROYCE, Assistant Attorney General, Governmental Affairs Section, Civil Division (Anchorage), Department of Law, informed members that he would summarize the current "free exercise" cases under federal and state law, and would highlight some of the differences that HB 387 would impose in analyzing free exercise cases. He said the bill prohibits any state agency, municipality, school board or school district from substantially burdening a person's exercise of religion, even if the burden results from a law of general applicability, unless the government can show a compelling state interest and that it is the least constrictive means of furthering that compelling interest. MR. ROYCE said this is the identical statutory test contained in the federal RFRA, which was struck down by the U.S. Supreme Court in City of Boerne v. Flores [521 U.S. 507 (1997)]; RFRA was struck down because it exceeded the enforcement authority of Congress as applied to the states and local governments. He urged committee members to read that decision because it said that RFRA was an impermissible attempt by Congress to substantively change the constitutional protections under the free exercise clause. Congress argued that it was merely protecting, by statute, a right in the U.S. Constitution. The U.S. Supreme Court, however, did not allow that because the legislation altered the meaning of the constitutional provision dealing with free exercise. Therefore, Congress could not enforce a right that it was changing. Mr. Royce quoted from the portion of the Boerne case that deals with the statutory formula for addressing free exercise claims, as follows: The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If compelling interest really means what it says, many laws will not meet the test. The test would open the prospect of constitutionally required religious exemptions from civic obligations of most every conceivable kind. ... Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because [of] their treatment of religion. And the Act imposes, in every case, a least restrictive means requirement, a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify, which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations. MR. ROYCE advised members that the court had concluded that the statutory formula radically altered the constitutional protection of the free exercise clause. Justice Stevens, in a concurring opinion, also found that RFRA violated the establishment clause. The state constitution, Mr. Royce noted, has an establishment clause similar to that in the federal constitution. [Justice Stevens found that RFRA violated the establishment clause] because in the Boerne case the Catholic Church was seeking an exemption from a zoning law to add on to the church; however, the church was located in an historic preservation area, so they sought an exemption to the municipal law on the basis of their free exercise of religion. Justice Stevens had said that if it were a bookstore that wanted to expand in that area, it would not be entitled to an exemption. And so it violates the establishment clause because generally the government must maintain neutrality with regard to religion. Number 2453 MR. ROYCE said that was RFRA's attempt to create the identical statutory test set out in HB 387; as Representative Croft had said, RFRA was in direct response to the Smith decision of 1990. In order to understand how RFRA altered the free exercise authority, Mr. Royce told members he would talk about the facts and the holding of Smith. That case involved two Native Americans who used peyote in a religious ceremony, claiming the use was religiously motivated. However, in Oregon, the use of peyote without a doctor's prescription was illegal; as a result, the two were fired from their jobs at a private drug rehabilitation clinic. They claimed they were entitled to a religious exemption from the criminal law for purposes of obtaining unemployment benefits. The U.S. Supreme Court denied their claim, saying that the religiously motivated conduct did not excuse them from complying with an otherwise-valid, generally applicable law. The two Native Americans argued that the same compelling interest test set out in HB 387 should be applied to their claim, as well, and they refused to apply what is called the [Sherbert balancing test.] TAPE 00-57, SIDE B Number 0001 MR. ROYCE said religious exercise does not have to be justified by a compelling state interest, but the rule has several exceptions. The first exception is for unemployment cases that are unrelated to a violation of a criminal law. In unemployment cases, a person's eligibility benefits have to be determined; the agency in every case looks to whether a person left his/her employment for good cause. A system has been created to consider those individual claims, and in those cases a person cannot refuse to extend an exemption for someone based on religious hardship without a compelling interest. The Smith decision doesn't change that rule, at all, for unemployment compensation cases or any cases that don't involve a violation of a criminal law where the government is making available a monetary benefit. Mr. Royce specified that his point is that there are some exceptions to the Smith holding. Number 0052 MR. ROYCE reported that the second exception is the so-called hybrid rights theory in which a free exercise claim is combined with some other protected constitutional right such as free speech or the rights of parents to direct the upbringing of their children; that is the Yoder [Wisconsin v. Yoder, 406 U.S. 205 (1972)] case, in which the court granted an exemption to the Amish from Wisconsin's compulsory attendance laws. If one reads the Yoder case, however, the court did not apply a rigid statutory formula, a "compelling state interest, least restrictive means" test. The court simply recognized that depending on the nature of the right of a whole, in its totality, in some situations a higher level of scrutiny is required, more than a legitimate, rational relationship test. It might not rise to the level of compelling state interest, but it might be an intermediate level of scrutiny that the court would [use to] test the free exercise claim. In that regard, in Yoder, the court allowed the Amish a religious exemption because there really wasn't any harm to the state's asserted interest. "They applied a flexible balancing test, though, in ruling on that claim," Mr. Royce added. Number 0110 MR. ROYCE told members that the third situation in which heightened scrutiny may be applied is in situations where laws have been passed to directly affect a religious practice. In those situations, the compelling state interest test clearly applies; that is the Lukumi [Church of Lukumi Babalu Aye v. Hialeah] case. Mr. Royce pointed out that HB 387 would change that analysis because it says, for example, that a school board or school district may not place a substantial burden on a person's free exercise of religion unless the burden is in the form of a rule of general applicability and does not intentionally discriminate against religion. That means, conversely, that a law passed to affect a religious practice is, per se, unconstitutional. "That's really not the state of the law," Mr. Royce commented, adding that there may be a situation, because of the sheer number of religions, where a state would have a sufficient interest to restrict a religious practice. "I'm not saying there is one, but there might be one, and so a state may very well want to leave that possibility open," he explained. "And that would be foreclosed by HB 387." Number 0167 MR. ROYCE turned attention to the changes HB 387 would bring about in state law. As Representative Croft has already indicated, the state constitution already affords greater protection in relation to freedom of religion than is provided under the federal constitution. The analysis adopted by the Alaska Supreme Court under state law, however, includes three elements: whether religion is involved; whether the conduct in question is religiously based; and whether the claimant is sincere in his/her beliefs. It does not contain a substantial burden element, which HB 387 would impose. Therefore, if the claimant satisfies the three elements, the state can "burden religion" only when it poses some substantial threat to the public safety, peace or order, or where there are competing governmental interests that are of the highest order. MR. ROYCE pointed out that under HB 387, in contrast, the analysis is whether a person's religious right to free exercise is substantially burdened; if so, the state, municipality, school board or school district would have to show a compelling state interest that is the least restrict means of furthering that interest. There is no room, he said, for balancing whether a state's interest outweighs the burden on the person's religion. It takes the balancing out of the Sherbert balancing test, from which this standard is supposedly adopted. MR. ROYCE pointed out that "substantial burden" is not defined in the bill, nor does it exist in prior Alaska Supreme Court case law. It is also difficult to contest; courts don't like to be in a position of challenging someone's religious belief, questioning someone's sincerity or determining whether the belief is a central one. Therefore, if someone makes a claim that is religiously based, the courts pretty much accept it and don't let parties argue over that. Mr. Royce referred to the Boerne case and said there was no least restrictive means requirement pre-Smith or in the Alaska Supreme Court. Number 0279 MR. ROYCE explained the least restrictive means test. There could be a total ban on the carrying of weapons by children at school, for example. There was a case in California where the children of members of the Sikh religion wanted to carry knives, he noted. Allegedly, they had to carry knives at all times as part of their religion. They brought suit under the federal [RFRA]; the court decided there might be a legitimate interest in the safety of schools, but it is not the least restrictive means because the children could dull the knives or rivet them to their sheaths. Mr. Royce indicated that even if there is a compelling interest, it might not necessarily be the least restrictive means because, in many situations, accommodation can be made or laws can be redrafted. MR. ROYCE said he believes HB 387 would change the way courts handle or look to free exercise cases by trying to reduce them to a rigid statutory formula that really doesn't exist according to state and federal supreme court cases, which have more of a balancing test. Furthermore, he believes HB 387 would make it harder for governmental employers to manage employees because it requires public employers to accommodate religious beliefs of its employees in virtually every case. An employer probably would not be able to satisfy the compelling state interest test or the least restrictive means test; mere administrative convenience or additional cost to an agency is not sufficient to satisfy the test. Number 0380 MR. ROYCE told members that he thinks the bill's intent is to apply to Alaskans who do business with state agencies or municipalities. However, in one regard, it elevates the religious rights of governmental employees over private employees because the bill would provide statutory protection to governmental employees for their free exercise of religion, but it would not apply to private employees. Therefore, if a private employee indicated he couldn't work on a Saturday because of his religion, for example, the private employer would not have to accommodate the employee. Only if the employee quit his job and sought unemployment benefits would the protections of HB 387 be triggered. The government, on the other hand, would have to make an accommodation - by redoing other employees' schedules - in that situation, and the government employee could continue in his or her job. In that regard, Mr. Royce believes that the bill raises claims of equal protection. Number 0453 REPRESENTATIVE KERTTULA requested confirmation that in terms of Alaska's constitution, the state has already upheld the same kinds of rights that the bill is generally seeking. MR. ROYCE answered that the court has adopted the Sherbert balancing test. It did so in Frank [Frank v. State, [604 P.2d 1068 (Alaska 1979)], a case in which a person was convicted for taking moose out of season but the Alaska Supreme Court had allowed [that person] to be exempt from the fish and game laws. The court applied the compelling state interest test in that case. However, that case doesn't say that the court first looked to whether the person's religion was substantially burdened; instead, it looked at whether it was sincere, religiously motivated conduct and didn't pose any substantial threat to the public. It is just worded differently than what is presented in HB 387. Number 0512 REPRESENTATIVE KERTTULA suggested that Alaska already has the protection, then, under the Alaska Supreme Court and the state constitution. MR. ROYCE affirmed that. He said the Alaska Supreme Court has repeatedly recognized that the state constitution provides greater protection than the federal constitution. Number 0527 REPRESENTATIVE MURKOWSKI asked Mr. Royce whether it is correct that "we" are getting the same end with the compelling state interest standard but, the way it is currently structured, there is greater flexibility than HB 387 would allow. MR. ROYCE replied, "Yes." REPRESENTATIVE MURKOWSKI asked whether this needs to be put into statute in case the court should change its mind later down the road. MR. ROYCE specified that it wasn't his own comment but is Representative Croft's [belief]. Mr. Royce referred to Representative Croft's suggestion that the makeup of the supreme court may change. He said there is the principle of stare decisis in which a court has to follow previous case law. In reading the supreme court decision, he said, it summarizes a century of free exercise clause cases; it really doesn't overrule any prior decisions. The Yoder decision is still good law, for example. He can't speak for Representative Croft's concern, but he doesn't know of any cases "out there" that would cause the court to go in a different direction. Number 0627 REPRESENTATIVE CROFT asked Mr. Royce whether he specializes in this area of law. MR. ROYCE replied that he specializes in employment discrimination law. REPRESENTATIVE CROFT asked Mr. Royce whether that brings in a lot of the religious areas in relation to free exercise. MR. ROYCE replied, "Yes." REPRESENTATIVE CROFT asked Mr. Royce whether he is familiar with any of these three cases; he specifically mentioned Bowen v. Roy [476 U.S. 693 (1986)]. MR. ROYCE replied yes, it is a Social Security case under the U.S. Supreme Court. REPRESENTATIVE CROFT noted that the language was taken from the federal RFRA, which incorporates the least restrictive means. MR. ROYCE replied, "Right, that's identical out of federal RFRA." REPRESENTATIVE CROFT asked, "But you don't think the least restrictive means language was in pre-Smith jurisprudence?" MR. ROYCE replied, "No. ... It's in other constitutional law tests, but it was never used in free exercise cases." REPRESENTATIVE CROFT asked Mr. Royce to expound on Bowen v. Roy. MR. ROYCE explained that it was a case where a Native American did not want to get a Social Security number for his daughter because of the belief that it would rob her of her spirit. It was a religious case. The court said there was a valid interest in maintaining the Social Security system; therefore, no exemption was granted in that case. Number 0736 REPRESENTATIVE CROFT read the following opinion relating to Bowen v. Roy, in which Associate Justice O'Connor was writing for the plurality: This court has consistently asked the government to demonstrate that unbending application of its regulation to the religious objector is essential to accomplish an overriding governmental interest. MR. ROYCE stopped Representative Croft and emphasized the word "overriding." He said that is a balancing process. REPRESENTATIVE CROFT continued: The interests asserted by petitioners cannot be accommodated with that ... compelling governmental interest, and no less restrictive means are available to achieve the governmental interest. Noting that there are two other cases as well, he asked Mr. Royce whether Associate Justice O'Connor wasn't talking about least restrictive means. He said Associate Justice O'Connor had dissented in Smith but was in the plurality in that decision. MR. ROYCE agreed, but added that "the Boerne case says we have never used a least restrictive means test in pre-Smith; that's [Associate Justice] Kennedy summarizing." REPRESENTATIVE CROFT stated that Associate Justice O'Connor had dissented in Smith, but she was [among] the plurality in that decision. MR. ROYCE responded: Right, and the Boerne case says we have never used a least restrictive means test in pre-Smith. That's [Associate Justice] Kennedy summarizing. ... There have been differences that the supreme court has used, and they have applied that test. But in Smith the court says we have never really applied that test outside of the unemployment compensation cases, or even when we purported to apply it, we haven't found the test met, which is the Bowen v. Roy situation where they did not grant an exemption, even though they purported to apply the test. They found the test not met. ... I guess I would agree that cases are all over, and what Smith did was try to reconcile all those cases and say "we'd never allowed an exemption from a generally applicable law that involved a violation of a criminal law." It tried to take all these prior decisions and give some general rule: ... if it's a generally inapplicable law, generally not entitled to a religious exemption, regardless ... of the burden, because the courts ... have never applied any really heightened scrutiny or found that test met in all of its prior decisions. ... There has been substantial dispute over the interpretation of Smith under federal law, but it's clear that our state supreme court has adopted a test. And if you read any Alaska Supreme Court on [the] free exercise clause, you won't see that language as in the federal cases that you've cited. Number 0854 REPRESENTATIVE CROFT said he thinks it was difficult for [U.S. Supreme Court Associate Justice] Scalia to encompass all of the different case law out there protecting religious freedom to reach a conclusion that didn't [protect religious freedom]. To say, however, that in Boerne or Smith there was never any least restrictive means seems, to him, stretching it to the point of being inaccurate. He commented, "It was there. It wasn't in other cases. It is easier to say there was a misunderstanding there than it is to overrule that line of cases, particularly when, in Smith, you only had 5 to 4." Number 0890 MR. ROYCE stated that RFRA had adopted the Sherbert balancing test. He pointed out that the least restrictive means test is in neither Sherbert [Sherbert v. Verner, 374 U.S. 398 (1963)] nor Yoder, the two cases that RFRA relied on. However, it has been applied in other areas - sometime inconsistently - to free exercise cases, but only when the court has not allowed a religious exemption. Mr. Royce said he is trying to explain why there is inconsistency. Number 0940 REPRESENTATIVE CROFT said it [the least restrictive means test] was in Bowen [v. Roy], a U.S. Supreme Court decision from 1986 relating to a religious claim; Bob Jones [University v. United States, 461 U.S. 574 (1983)]; and Thomas [v. Review Board, 450 U.S. 717 (1981)]. Therefore, it has been part of the jurisprudence pre-Smith. It is just that Associate Justice Scalia "can't explain it away." MR. ROYCE clarified that it was [Associate Justice] Kennedy, in the Boerne case. Number 0960 REPRESENTATIVE CROFT referred to Boerne and called it a fascinating decision. He said, "I had taken it ... that it was compelling state interest for a general application, pre-Smith, but you target a religion that's just, per se, out. You're telling me they can apply the compelling state interest to both." MR. ROYCE replied yes, in the Lukumi case, the Santeria religion claimed a right to engage in animal sacrifice, and the City of Hialeah passed an ordinance forbidding animal sacrifice for religious reasons; the court said that because it was directly targeted to religious activity, the court would apply the compelling state interest test. Number 0996 REPRESENTATIVE CROFT said he would be glad to change [the bill] to do that. He asked Mr. Royce whether it is his impression that Boerne eliminated federal RFRA "as it applies to state and local [governments] but kept it for federal." In other words, is the federal government still bound by federal RFRA? MR. ROYCE replied, "Yes." He said Boerne dealt with a municipal ordinance; no federal agency was involved. He added, "What they said is that it exceeded ... Congress's power under ... Section 5 of the Fourteenth Amendment, which makes their law applicable to the states." He added, "It is still left standing to federal agencies." REPRESENTATIVE CROFT asked whether the federal prison system operates under federal RFRA. MR. ROYCE replied that it is still on the books on the federal level. As to whether there will be any challenges to it, he doesn't know. Number 1125 ALLISON MENDEL, Attorney at Law, testified via teleconference from Anchorage, noting that she has been in private practice there for almost 20 years; the emphasis of her practice is in relation to civil rights litigation. She told members that she agrees with most of the statements made by Mr. Royce with regard to the weaknesses of the bill. Her particular concern, however, is that the bill exalts religious freedom as the constitutional value over other important constitutional values. While she supports the free exercise of religion as a very important constitutional right, she doesn't find it more important than all others. She further said: Our important state interest, both in freedom from religion and freedom to ... exercise religions that conflict with the exercise of other religions, and to exercise a person's civil rights - that has nothing to do with religion. And although the statement of the sponsor ... claims that it's not the intent of the bill to infringe [upon] the rights of others, there's nothing attached to the bill to support that assertion. The bill, by its terms, in fact, would exempt from civil rights laws, probably, and from other laws protecting other rights and other actions of citizens, which conflict with alleged free exercise of religion of people who are seeking the protection of this law -- I think that's bad policy. I think that is very likely unconstitutional policy. And I'm very concerned about the effect of this bill on civil rights law and on the free exercise of religion. Number 1259 LONNIE WIBBERDING testified via teleconference from Glennallen. He said Representative Croft had pretty much stated his own position when introducing the bill. He specified that he supports the bill without amendment. Number 1285 ALTHEA BUCKINGHAM testified via teleconference from Sitka. She has been trying to understand the legalese so far, she told members. She feels that the bill is adequate, and she would support it 100 percent. Number 1311 HARRY ROSENFELD, Rabbi, testified via teleconference from Anchorage. He advised members that he is opposed to the bill on a few different levels. First, the Alaska Supreme Court has upheld, since the Smith decision, the higher standards in the state. In that regard, he thinks that the supreme court will continue to provide those protections. He also thinks that the supreme court and the court system as a whole are in a better position to provide the balancing required to interpret legislation and to put it into perspective. In that regard, the court has shown that there isn't a problem in Alaska. RABBI ROSENFELD told members that second, on a national level, the interfaith RFRA coalition has fallen apart for a number of reasons; the vast majority of religious denominations, both Christian and Jewish, that originally supported RFRA no longer do so. The reasons primarily have to do with a realization that what has been happening in the courts has been fair and adequate, and allows for a balance; furthermore, the groups couldn't agree on where the balance should be within the legislative Act. Finally, he believes that many issues facing Alaska which the courts have decided have left the state in a bind, starting with subsistence. RABBI ROSENFELD said that while he appreciates the desire to be proactive, a lot of reacting still needs to be done. He doesn't believe it is good public policy to be dealing with this kind of material now, when so many other issues are facing "us" and when the protection is there, within the state supreme court, in some of the cases mentioned and also in the Swanner cases; the Alaska Supreme Court did use the test and found, on a balancing level, "the way it did." RABBI ROSENFELD said that finally, especially with "the amendment" [unspecified], one cannot violate civil rights law - local, state or federal - and use this bill as a defense. If, for example, he tries to rent an apartment near his synagogue - because, according to Jewish law, he needs to walk to synagogue - and then a coalition of landlords gets together and decides that their religious belief prohibits renting to Jews, the court has to balance that, whether this legislation exists or not. He concluded, "Neither of us could use this to establish or eliminate a defense to civil action or criminal prosecution under federal, state or local civil rights law, based on the amendment that has been proffered." Number 1580 NICHOLAS P. MILLER, Executive Director, Council on Religious Freedom, testified via teleconference from an off-net site in Rockville, Maryland. He is also an attorney, he noted. He works with the national religious liberty organization that is supporting the state RFRAs around the country. He informed members that he was there primarily to talk about prisoner issues. However, he would begin by responding to comments made in the last few minutes. One was the rabbi's claim that the national coalition has fallen apart and that a vast number of Christian and Jewish groups now oppose these bills; Mr. Miller said that is just not the case. He attends meetings of this group every couple of weeks, he said, and believes that the vast number of Christian and Jewish groups support the concept of state religious freedom Acts at the local level. He specified that he is talking about the small groups that represent millions of religious Americans. Number 1665 MR. MILLER acknowledged that some division has come from the "far left wing." The ACLU [American Civil Liberties Union] has dropped out of the coalition and opposes it, basically in relation to gay rights issues. However, the heart of the coalition is still very active. As far as the claim that HB 387 would exalt religious freedom over other values, he doesn't view that as being the case at all. Instead, it is an attempt to restore religious freedom as a fundamental right on equal footing with other fundamental rights. After the Smith case, religious freedom has become a secondary right, Mr. Miller suggested, behind the freedom of speech, freedom of association and other civil rights. This bill wouldn't make religious freedom win every time in competition with other rights; rather, it would return it to the courts to be balanced and weighed against the various other rights. MR. MILLER continued. In relation to the issue of the least restrictive means test, the supreme court can make the law for the future, but it cannot change history. In at least one case, Thomas v. Review Board, the very words "least restrictive means" were used to protect and uphold a claim of religious freedom; that case involved unemployment claims by a Seventh Day Adventist who had been terminated because of his convictions about the Seventh Day Sabbath. In the case of Sherbert v. Verner - which the Alaska Supreme Court has explicitly adopted as part of its jurisprudence - while the words "least restrictive means" are not found in that case, language that means the same thing is in the case; it says basically that the government would need to show that there were no alternative forms of regulation that would combat the abuses without infringing upon the First Amendment right. The point is that the least restrictive means became a "term of art" when RFRA was created, but the idea behind the test is in at least six or eight cases, including Sherbert and Yoder. Mr. Miller offered to provide that language, which he said he had provided to Pastor Joseph Storey. Number 1871 MR. MILLER continued. Prior to taking this position [executive director], he was an attorney for the District of Columbia government dealing primarily with lawsuits brought by prisoners. He understands that there is concern about prisoners in Alaska and their abuse of this bill. In that regard, he assured committee members that under the "Limited Freedom Restoration Act" between 1993 and 1997, there was no significant increase of litigation relating to the religious freedom of prisoners. Information provided by attorneys general's offices in other states showed that prisoner religious freedom claims increased by only about three and a half cases in each state for each year that RFRA was in force. "We" carried out an independent study of the Lexis legal database, Mr. Miller said, which showed an increase of only about one and a half reported decisions per year during that same period. MR. MILLER noted that he was a coauthor of a paper titled "Prisoner Claims for Religious Freedoms of state RFRAs," published in the U.C. Davis Law Review. In researching about Alaska, there were no reported decisions brought by prisoners during the time that RFRA was in effect. He thinks, therefore, that there is no supporting evidence for any claim that prisoners are going to abuse or bring frivolous lawsuits. And, frankly, that concern is taken care of by the federal Prison Litigation Reform Act passed in 1996, which "essentially requires prisoners to take filing fees." Mr. Miller further explained, "It has a three-strikes-and-you're-out provision regarding frivolous suits. The courts screen pro se prisoner filings. And that's the right way to cut down on frivolous lawsuits, rather than targeting religion for a special disability." Number 2011 MR. MILLER related his concern that although HB 387 allows for damages and injunctive relief, there is no provision for attorney fees. As a practical matter, he noted, most religious freedom claims do not result in damage awards; they are usually about injunctions to allow a person his/her religious freedom, and often a monetary damage cannot be shown. Therefore, if there isn't an attorney fees provision for prevailing claims, as a practical matter, it is often impossible to bring a lawsuit because it is very difficult for a pro se plaintiff to navigate the federal or state system; involving an attorney requires him/her to be paid. It also penalizes the individual because larger institutions protect their religious interests, but individuals and small groups cannot. That hardly seems fair. Under the First Amendment and the federal RFRA, attorney fees were allowed for prevailing parties, he noted. In the end, the religious liberty given to prisoners is a measure of religious liberty that "we" possess. If "we" can exempt certain groups from the coverage of religious freedom, "in a sense we're saying that religious liberty isn't a God-given right; rather, it's a state policy that we extend, or remove, from groups that fall into the state's disfavor at some point in time." Number 2150 REPRESENTATIVE CROFT requested that Mr. Miller stay online in case there were questions later. Number 2176 ED KRAFT testified via teleconference from an off-net site in Anchorage. He specified that he agrees with what Mr. Miller had just said. As to the objection that the bill would infringe upon the civil rights of others, he doesn't believe that is valid. The bill clearly states, "as long as the legislative action does not interfere with the right of other persons." Mr. Kraft said he feels that should the bill be enacted into law, it would strengthen the cause of religious freedom in Alaska. He urged the committee members to support the bill, without amendments. Number 2273 JIMMIE STORY testified via teleconference from Sitka. She told members that she supports HB 387 and wishes to see a "sane bill" pass. Number 2330 KEN NELSON testified via teleconference from Sitka. He specified that he supports HB 387 as written, and he indicated that Mr. Miller had very eloquently expressed his own feelings. Number 2357 GAYLE A. KILDAL testified via teleconference from Glennallen, stating that she supports HB 387 without any amendments. Number 2397 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union [AkCLU], testified via teleconference from Anchorage. TAPE 00-58, SIDE A Number 0001 MS. RUDINGER first listed the materials that she had provided to the committee members with her memorandum dated April 12, 2000. [The following list is taken verbatim from the memorandum]: 1) 1-page summary of amendments suggested by AkCLU; 2) 11-page AkCLU position paper on CSHB 387; 3) Two 2-page letters by NAACP in opposition to federal RLPA unless civil rights are protected; 4) 2-page testimony by Texas Representative Scott Hochberg regarding the civil rights amendment to the Texas RFRA, signed into law by Gov. George W. Bush; 5) 2-page letter from National Fair Housing Alliance urging civil rights amendment in federal RLPA; 6) 2-page letter from Coalition for the Free Exercise of Religion opposing federal RLPA because it could jeopardize civil rights laws; 7) 1-page letter from the Episcopal Church withdrawing support for federal RLPA because of civil rights concerns; 8) 3-page letter from a consortium of church organizations (United Church of Christ, Friends Committee on National Legislation, United Synagogues of Conservative Judaism, Evangelical Lutheran Church in America, and Union of American Hebrew Congregations) opposing federal RLPA without civil rights protections; and 9) 4-page Jewish Telegraphic Agency on-line article citing withdrawal of support for federal RLPA by Baptist and Jewish religious groups. MS. RUDINGER pointed out that when she had drafted her position paper, she had suggested amending subsection (d). That, however, is now subsection (c). She asked members to keep that in mind when reading the material that she had provided. MS. RUDINGER informed members that [Texas] Representative Scott Hochberg had offered an amendment that the AkCLU supports and which is similar to what they are offering in the form of an amendment. Texas, she explained, is the only state that has passed a RFRA since the Boerne case; that bill was signed into law by [Texas] Governor George W. Bush just last year. Representative Hochberg points out in his letter to the chairman and members of the U.S. Senate Judiciary Committee that RFRA was intended to be a shield to protect a person's free exercise from government infringement; it was never intended to be a sword with which one individual could injure the rights of others. The AkCLU, she said, agrees with that wholly. MS. RUDINGER pointed out that the information-containing letters are from a variety of religious organizations, not left-wing organizations as previous testimony has indicated. She mentioned the following organizations: Episcopalians; a Coalition for the Free Exercise of Religion; the United Church of Christ; Friends Committee on National Legislation, a Quaker organization; the United Synagogues of Conservative Judaism; Evangelical Lutheran Church in America; the Union of American Hebrew Congregations; and several other Jewish and Baptist organizations. MS. RUDINGER said these organizations have pulled out of supporting the federal RLPA [Religious Liberty Protection Act] unless civil rights are protected. Rabbi [Harry] Rosenfeld was correct in his assertion that many religious groups have pulled out, she said, and explained why. The ACLU nationally was part of the coalition that supported the original RFRA; they had helped form the coalition and worked hard to pass the Act. Historically, the ACLU and the Alaska affiliate [AkCLU] support protecting the free exercise of religion from the government. In that regard, the ACLU has repeatedly had to step in and defend the rights of students to have a Bible club; the rights of students to say grace before they eat lunch in the school cafeteria; and the rights of a myriad of people, including students, to wear a cross at school. MS. RUDINGER also noted that the ACLU is currently involved with a free exercise case in Florida where a city wants to remove all vertical religious symbols from the cemetery. In a nutshell, she said, the ACLU/AkCLU believes that a person has the right to exercise a religion freely as long as someone else isn't hurt in the process. In that regard, the AkCLU is proposing an amendment that would clarify subsection (c) to make it clear that the bill would not create or eliminate any current defenses to any discrimination laws or civil rights laws. This, she said, is very important because civil rights protect religious exercise. State and federal anti-discrimination laws not only protect people from being discriminated against on the basis of race, sex, national origin, disability or age, but they also protect people from being discriminated against on the basis of their religion. The ACLU would expect to see claims of exemption, in relation to religion-to-religion discrimination, if a federal RLPA were passed. MS. RUDINGER cited cases relating to religion-to-religion discrimination. In Chap (ph) v. Bowman (ph) (Wisconsin), Mr. Bowman (ph) had refused to sell his house to Mr. Chap (ph) - who was ready to provide cash on the spot - because Mr. Chap (ph) would not say that he had chosen Jesus as his savior. Eventually Mr. Bowman (ph) was enjoined from selling the house to anyone other than Mr. Chap (ph). There is also case law out of Ohio in which a secular country club had made available summer bungalows only to Catholics; they claimed religious exemption but were unsuccessful. The court found that they couldn't discriminate on the basis of religion. MS. RUDINGER said there are landlord-tenant situations in which the [National Fair] Housing Alliance has had to step in. The AkCLU feels that if their amendment or one similar to that passed in Texas is incorporated, it would protect religious people who want to get a job or buy a house from having to answer these kinds of intrusive questions. Alluding to a document in committee packets from the NAACP Legal Defense and Educational Fund, Inc., Ms. Rudinger informed members that the AkCLU also concurs with the analysis of the NAACP [National Association for the Advancement of Colored People] that this throws into question whether race discrimination would be allowed by those claiming religious exemption. Indeed, she said, there are faiths that claim races should be kept apart, and which cite biblical justification for that claim. There also are people who believe that diseases, everything from cancer to mental disabilities, are God's punishment for sin. MS. RUDINGER noted that the Consortium for Citizens with Disabilities has pulled out of supporting the federal RLPA unless civil rights laws that protect people from discrimination based on disability are exempted from its scope. This, she said, is not a left-wing/gay-rights-oriented type of opposition. Current civil rights laws in Alaska protect a myriad of different classes, and the legislature, municipal assemblies and boroughs have enacted those laws because people with disabilities needed protection. The legislature, she said, wouldn't draft a law that they felt to be unnecessary. These laws protect the weakest members of society. Number 0803 MS. RUDINGER reported that the AkCLU was asked to consult on a case where two Muslim parents in Anchorage had lost their child to SIDS [Sudden Infant Death Syndrome]. Current law requires an autopsy for all SIDS cases. Muslims, however - as well as people of other faiths - deeply believe that a baby would not go to heaven if its body was not presented whole unto God. Ms. Rudinger asked members to imagine the burden on those parents if an autopsy were performed. In that way, HB 387 would help to protect parents in that situation and other situations that the AkCLU has had to get involved in, in protecting individuals from government intrusion. But in none of those cases where the AkCLU has defended the rights of religious people to be free of government intrusion has the exercise of their religion threatened or harmed others. That is where the line is drawn. Ms. Rudinger closed by saying there is nothing simple about HB 387. She wished members luck and offered to answer questions. Number 0975 MICHAEL J. STARK, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, informed members that he was asked to testify on behalf of the Department of Corrections as chief counsel. The bill's sponsor, in prior committees, had indicated it would maintain the status quo, Mr. Stark noted; in other words, it would not change the standard by which burdens on religious rights cases are interpreted by the courts. Testimony has already indicated that that is not the case, however, and that there is significant disagreement with regard to the least restrictive means standard. MR. STARK explained that the bill says if a person's religious rights are substantially burdened, the only way the state can justify doing that is by demonstrating a compelling interest. The state would then have to go on and show that burdening this religious right can only be done by the least restrictive means available; it is that additional step that creates the hardship from the state's perspective, particularly from the Department of Corrections' perspective. In that way, the standard of compelling state interest - the standard in Alaska - is not the standard that applies in cases regarding prisoners because they are not law-abiding citizens. MR. STARK noted that in 1987 the U.S. Supreme Court, in a couple of different cases [O'Lone v. Shabazz and Turner v. Safley], had discussed the standards when a governmental agency holding prisoners is going to affect a fundamental right of a prisoner including religion; it concluded that a simple showing of a valid penal reason for burdening the right is enough for the court to balance the interests of the state and inmates. For example, if inmates in segregation - "the worst of the worst" - were to ask for a religious ceremony that includes group participation, the state would have to show a compelling interest such as the issue of security in relation to an outbreak of violence. MR. STARK said under the bill, the state can only burden the religious right of the inmate by the least restrictive means possible, which means that the Department of Corrections would have to provide additional staff to protect against an outbreak of violence. In that regard, the resources do not exist to satisfy the least restrictive means. Under the present standard, the court would look at the compelling state interest in relation to an outbreak of violence and balance the prisoner's right versus the state's interest. It would look at other means to restrict the right, but it would not say "you can only do this if you find the least restrictive means possible, and if there is a least restrictive means other than simply prohibiting it, then this bill requires it." Mr. Stark added, "The present analysis the courts follow don't require us to go that far and shouldn't. We're dealing with people that are a threat to us all." Number 1250 MR. STARK distributed a list of requests for "religion" in the prisons, one dealing with witchcraft. He explained that there have been a number of cases where persons who followed witchcraft as their religion were sex offenders; many of their requests for books depicted naked women, instructions on how to tie up women in witchcraft ceremonies, and instructions on making sacred witchcraft knives to draw blood. Another request demanded religious clothing such as robes and turbans. MR. STARK explained that the prison tries to find a balance to accommodate a religious belief. In the case of the turban, the prison had asked that the inmate wear it only during his practice. The prisoner had said "no," however, because his religion required a turban to be worn all the time. Fortunately, the prisoner was in minimum custody at the Palmer minimum [security] facility. If he had been at the maximum-security Spring Creek Correctional Center, in contrast, the department would not have been able to allow him to keep his turban because it is too easy to hide a weapon under it. The same is true for robes and handmade weapons, which are found all the time. He has personally seen two Bibles hollowed out, where weapons and other forms of contraband were kept. There have been requests for candles for religious ceremonies, which obviously require matches and present a fire hazard. Furthermore, there have been requests for wine for religious ceremonies when certainly there is a compelling state interest to prevent inmates from becoming intoxicated. However, is there a least restrictive means to prevent its being used inappropriately? If there is enough staff, it is arguable, Mr. Stark said. MR. STARK told members that under the standard in HB 387, the correctional system would have a very serious problem in that regard. There also is a constant problem with monitoring "pruno," a homemade alcoholic beverage from fruit and sugar; in that regard, allowing an inmate to use wine for a ceremony would only create more concerns. There have been requests to conduct religious ceremonies during different time frames, such as "count." In prisons, he explained, everything shuts down during "count" to make sure that nobody has escaped, and there might be a compelling state interest to say "no" and allow for another time. MR. STARK advised members that a more serious request had dealt with prisoners who subscribed to the Church of Jesus Christ Christian, a religion founded in 1946; central to their belief is that white, Anglo-Saxon Aryans are the superior race. They refused to participate in any programs, live in housing units, or eat with members of any other race; however, there is a diversity of races in the prisons. Mr. Stark noted that there isn't a serious problem with gangs, but prisons have to be constantly aware of the possibility. Furthermore, these kinds of requests are more likely to create gangs; he mentioned riots in prison systems around the country because of gangs. MR. STARK noted that there is an excellent chaplain program in the prison system; they are not trying to stifle religious beliefs. In fact, there is a strong belief within the Department of Corrections that religion offers a valuable form of rehabilitation. In that way, prisons try to accommodate inmates' religious requests, and there are religious volunteers in all of the institutions around the state. But there has to be a balancing between the state's genuine interest and the requests of inmates, some of which are outlandish. Who would support giving a knife to a prisoner who is a convicted murderer or sex offender? That is a case in which the state might prevail in court, but the problem is not simply winning a case when challenged in court; it is an issue related to the time and resources needed to litigate a case. Number 1657 MR. STARK responded to Representative Croft's suggestion that the federal prisons are not having a problem complying with RFRA; Mr. Stark said it is true that RFRA was found to be unconstitutional as it applies to states and municipalities, but not to federal agencies. However, after discussing the issue with general counsel for the Federal Bureau of Prisons, there are problems. It is much more burdensome, time consuming and resource consuming compared to the pre-Smith standard, which the Alaska Supreme Court follows today. It seems that Representative Croft is trying to fix something that isn't broken, Mr. Stark said, particularly in a prison context. He encouraged the committee members to not support the bill, especially in a prison context. Number 1687 CHAIRMAN KOTT announced an at-ease at 3:55 p.m., then called the meeting back to order at 4:10 p.m. Number 1712 ANGELA SALERNO, Division of Public Assistance, Department of Health & Social Services, advised members that the division is concerned with the language on page 3, line 26, of CSHB 387(HES). The language read as follows: ... (b) A person may bring a civil action against a state agency for a violation of this section, and the court may grant appropriate relief ... Ms. Salerno said the language allows for a court to grant appropriate relief, which could make public assistance vulnerable and result in costly litigation. If, for example, an applicant claimed that working outside the home was against her religious beliefs, the eligibility technician would routinely deny the application because an applicant for public assistance is required to work outside the home, complete a family self-sufficiency plan, and outline the steps to be taken to reach self-sufficiency through work. The division, therefore, is concerned that damages could be attached at this point of interaction. Number 1825 REPRESENTATIVE CROFT asked Ms. Salerno whether the division is worried about the damage to the individual employee, the state or both. MS. SALERNO said she is assuming that both could be named in a civil action. REPRESENTATIVE CROFT offered to check on it further. The intent is to not attach individual liability to individual employees, he explained. The question is: Is the state doing this improperly? Number 1883 JOSEPH STORY, Government Relations Representative, Northwest Religious Liberty Association, came before the committee to testify. The association strongly supports HB 387, he told members. The first reason relates to the U.S. Supreme Court's decision in Sherbert v. Verner, which involved a Seventh Day Adventist member who had been discriminated against, at her place of employment, on the basis of her firmly held beliefs. The association takes special interest because the high court ruled that the state's interest in denying unemployment benefits merely because Ms. Sherbert would not make herself available for work on Saturday - her Sabbath day - was insufficiently compelling to warrant an infringement upon the free exercise of religion. MR. STORY said the second reason relates to the sponsor's efforts to restore the compelling state interest test as established in Sherbert and Yoder. The association appreciates the inclusion of the twin principle of the least restrictive means established in Bowen v. Roy, Bob Jones University v. United States, in 1983, and Thomas v. Review Board, in 1981. It was also a principle stated in synonymous language in at least six other U.S. Supreme Court cases. If enacted, HB 387 would effectively protect an individual's right to free exercise of his/her religious convictions at the state level and prevent the unnecessary discrimination that occurs in the public sector, particularly in the workplace. As Associate Justice Sandra Day O'Connor had stated in the U.S. Supreme Court's decision in regard to employment division in Oregon v. Smith: The court made a critical mistake when they failed to offer convincing evidence to depart from the settled First Amendment jurisprudence. The fundamental departure allows states to make criminals' and individuals' religiously motivated conduct in a way that burdens an individuals' free exercise of religion. It 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. MR. STORY continued: Justice O'Connor also said the following 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. Number 2043 MR. STORY continued. Third, placing the burden on the government to show 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. Thomas Jefferson and James Madison, two of America's founders, believed that the free exercise of religion was the most liberal of all of the rights Americans could claim; it was 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, it was a right that was considered inalienable. As Associate 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." Number 2080 MR. STORY said Smith left the free exercise clause virtually toothless in all but the rarest of cases. Yet two different groups have suggested that amendments or carve-outs are necessary, which, in his opinion, would leave believers statutorily defenseless. Specifically, the AkCLU has indicated that they support HB 387 with a friendly amendment exempting civil rights. Call it by any other name, he said, but that would be a carve-out, a repudiation of the bedrock of inalienable rights and equal protection of the laws. The Northwest Religious Liberty Association, a member of the national Coalition for the Free Exercise of Religion, in that regard would have to vigorously oppose the Alaska [Religious] Freedom of Protection Act if it were amended to exclude a class of religious practices or claims from its protection. MR. STORY asked: As a matter of principle, should the first freedom always prevail over anti-discrimination law? No, he answered. Society's interest in eradicating racial discrimination will continue to "trump" claims that one's religion compels racist practices. There is a long history of jurisprudence on that issue. But neither should the opposite extremes be legislated so that certain civil rights always "trump" the believer's interest in religious exercise. That is precisely what the AkCLU's amendment would do. It would put religious freedom exactly where it is without this bill - a second-class freedom at best. The AkCLU states that they want a bill that would not hurt others, but if their amendment is attached, no one would be hurt except for sincere religious believers. MR. STORY said a principal religious freedom protection Act would apply the same test to all religious practices substantially burdened by government and leave the courts a case-by-case application of that uniform test. The explicit and prominent constitutional regard for free exercise of religion admits of no exceptions, qualifiers or disclaimers. The first freedom protected by the Framers in the Bill of Rights is religious freedom, including protection from government prohibition of the free exercise of religion. Religious freedom is a civil right, and, arguably, the foundational and preeminent one upon which all others depend. If a government will not accommodate a citizen's fulfillment of his or her obligation to God, then no other human right is safe from government. Number 2233 MR. STORY continued. Another carve-out that has been suggested in an exemption for corrections. As a former acting medical officer at the Anvil Mountain Correctional Center [Department of Corrections] in Nome, Mr. Story said he is sympathetic to the concerns. He is well aware that prisoners are not where they are because they are "nice." However, he has seen some prisoners completely change because of religion. With or without HB 387 passing, he asserted, [requests for religious-based practices] will continue; it is the nature of prisoners. In that regard, he is not concerned about an increased load of frivolous litigation; he doesn't think that would happen because the national RFRA has been governing the state from 1993 to 1997, as well as all 49 other states. MR. STORY said the statistics nationwide indicate one and a half RFRA decisions per year per state. In Alaska during the four-year period that the law applied, there were 2,307 civil cases in total, of which 387 were prisoner-related civil cases - 16.8 percent of the total. In addition, there was 155 total prisoner civil rights cases - 6.7 percent of the total civil cases or 40.1 percent of the total prisoner civil cases. Furthermore, there were two RFRA cases - less than 1/10 of 1 percent of the total. Given the statistics, he is concerned that unfounded, unsupported emotionalism would wreck a perfectly good bill because one amendment paves the way for others. He strongly recommends accepting the bill without amendments. A good example is the state of Texas where one carve-out led to another and another, he said, pointing out that Idaho just passed a state RFRA. MR. STORY continued. The association doesn't want anyone to get hurt, he said, but they aren't so naive as to believe that both parties in any litigation would always come out on top. The association simply wants religious believers to have an even playing field. A person should have the opportunity to practice his/her religion as with any other civil right. This is a law with a track record of at least 27 years of U.S. Supreme Court tests of compelling interest and least restrictive means between various civil rights, and even between religions. Under nearly four years of federal statutory regulations, it is possible to see the probable impact on corrections. Mr. Story again asked the committee to oppose any carve-out amendments to HB 387 and to support the bill without exemptions. Number 2427 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health & Social Services, came before the committee to testify. His concern is in relation to jousting at shadows, he said. On the one hand, attorneys have indicated this is the practice in place today. His attorneys, on the other hand, have indicated that HB 387 would raise the bar. He echoes the concerns of Ms. Angela Salerno in relation to civil liability, he said, citing the following example: A young person fresh out of college is working as a youth counselor, trying to rehabilitate juvenile delinquents. Some smart aleck gets out of bed at 10:30 at night and says, "I want to light my candle, and it is time for me to do my prayers." And the youth counselor says, "Nonsense, go back to bed." The kid says, "OK," gets up the next morning, and starts a series of actions that claim the youth counselor violated the right to exercise his religious freedoms. MR. BUTTCANE specified that he is concerned about the civil liability issues related to municipalities, school and state agencies. TAPE 00-58, SIDE B Number 0001 MR. BUTTCANE conveyed concern about having his youth counselors make the best decisions that they can at the moment, and yet bear civil responsibility on behalf of the whole state of Alaska in infringing upon some religious act or right that a young person in the youth corrections system has. He asked committee members to take a look at his concern. He noted that the bill sponsor had indicated earlier that that is not his intent, however. Number 0036 MR. MILLER [Executive Director, Council on Religious Freedom] testified again, saying he thinks the language is clear in that a claim is to be brought against a school board, school district or municipality, not an individual. The law that he is familiar with would not allow for individual liability, Mr. Miller said. He endorsed Pastor [Joseph] Story's testimony in relation to prisoners and civil rights. He also noted that the attorney for the Department of Corrections [Michael J. Stark] was technically correct in that the religious freedom standard for prisoners was lower prior to Smith. O'Lone v. Shabazz prefigured the loss of religious liberty that was experienced in Smith, which in a way that underscores his concern. At the federal level, he noted, prisoners first lost their civil rights, and most did not pay attention; and then, three to four years later, that same standard was extended to everybody else, which is what he is trying to avoid happening with HB 387. MR. MILLER told members, "If we exempt prisoners, we create a different standard. We essentially set out something that we are in fact willing to extend to others." He noted that Patrick Story had eloquently stated that between 1993 and 1997 there were no cases that caused security concerns or problems in relation to prisoners and religious claims, even though Mr. Stark had listed a series of claims by prisoners. Mr. Miller called the discussion of the claims modest, saying he has seen claims relating to nightly steak dinners, access to drugs and ritual sex. But what was not stated was that all of those claims are routinely denied. In other words, Mr. Stark had cited claims but not cases or decisions in which the security or operation of the prison had been compromised. The reason is that there aren't any cases to cite. In that regard, the phrase "jousting at shadows" is a good one for describing many of the complaints, including the civil rights complaints. MR. MILLER said race discrimination has never been an issue, but it certainly has been raised as a defense. The courts have always said that race discrimination is a compelling interest. He cited Bob Jones University [v. United States] as an example. He said the essential question for the committee relates to whether religion is an equal among fundamental rights or a "second cousin" to those rights. He explained: Because any exemption for other kinds of laws, for civil rights laws, essentially says we're not going to weigh; we're not to have a balancing test. We're going to allow some other interest to always "trump" the religious interest. And I think that's the extreme that Pastor [Joseph] Story and I are trying ... to avoid here. Number 0173 MR. MILLER continued. He noted that Texas [Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)] has been miscited as being the only case in which a state RFRA has been passed since the Boerne case came down. That is not true, he said. State RFRAs have been passed in Illinois, Florida, South Carolina, Alabama and Idaho; one is pending in New Mexico. Texas, however, is the only state to pass a RFRA with a civil rights exemption. As Pastor Joseph [Story] has accurately pointed out, when the exemption was added it came with a slew of other exemptions, such as prisoner exemptions. In that way, it got the bill off to a very bad start, and, in fact, ended up being opposed by many groups, including the Council on Religious Freedom. He thanked members for their time and wished them the best in dealing with HB 387. Number 0219 CHAIRMAN KOTT asked whether anyone else wished to testify, then closed the meeting to public testimony. REPRESENTATIVE CROFT offered closing remarks. He said there was a lot of concern, when the U.S. Supreme Court established the precedent, that it was going to be horrible and unworkable. It is difficult to worry about these types of conjectural "things," he said, but it has been a standard that works. It works currently in federal prisons. It also has worked, under varying degrees of interpretation, for the 30-odd years since the decisions in Yoder and Sherbert. REPRESENTATIVE CROFT said he had found a March 31, 2000, federal district court case that applied the federal RFRA in the prison context, applying the compelling state interest and the least restrictive means; in this case, prisoners had claimed they didn't have to shave and cut their hair because it was against their religion, even though there was a prison policy requiring them to do so. The court had upheld the restriction. In that regard, the idea that courts and prison systems cannot accommodate it is simply not true, he said, then he read the following: The court is mindful of the supreme court's pronouncements regarding the deference due to the judgment of prison administrators. The Senate Committee report on RFRA pointedly refers to this deference and states, "The committee expects that the courts will continue the tradition of giving due deference to the experience and expertise of prison and jail administrators." REPRESENTATIVE CROFT stated: I expect, and put on the record here today, the same thing. I do not think the "parade of horribles" is going to come true in the prison context. And I found the point that was made just here recently very telling. I mean, what happened first in the federal court is they essentially eliminated or greatly reduced the ... religious rights of prisoners. And that's an easy step to take, and nobody noticed, in effect. And then came on the heels of that, from the late '80s, development that did that. 1990, they took it away for everybody. And I ... do worry that's the kind of thing to watch for, and another reason that I oppose carve-outs on either side. I think most often, like this case shows, even under a compelling state interest, even under a least restrictive means, that you're gonna be able to show that prison officials have a wide discretion because of the prison system and the dangers inherent there. And, similarly, most of the time in civil rights you'll find a compelling state interest because there is a compelling interest in eliminating racial discrimination and others. And so I think that the bill imposes the right standard. I think there are a lot of people who have general worries about it, but they haven't shaken my belief that it's the proper course and even the proper course without amending. Number 0394 CHAIRMAN KOTT asked Representative Croft what his "take" is on the issue surrounding the concerns relating to individual civil liability. REPRESENTATIVE CROFT responded that the bill refers to a school board, school district, municipality or state agency, which can only act through individuals as agents. In that regard, he believes that an individual may be named in court papers, but he doesn't think that a person acting as an agent would be individually liable. Number 0464 REPRESENTATIVE MURKOWSKI remarked that she had been prepared to introduce an amendment to provide a carve-out for civil rights, but now she is concerned that it would put civil rights ahead of any religious rights. Number 0531 REPRESENTATIVE KERTTULA said her fear of the bill comes from the exact opposite end of the spectrum. She asked Mr. Royce whether a carve-out really solves the problems. MR. ROYCE replied that the committee has to be mindful of Article 1, Section 1, of the state constitution, which provides that all Alaskans are entitled to equal rights. There is no question that there is a constitutional right to the free exercise of religion as found in Section 4 [of Article I]. There are also protections for race, age, disability, pregnancy and gender. He therefore can't answer the question in relation to shifting the balance, but it could be a potential area for litigation. Number 0592 REPRESENTATIVE CROFT made a motion to move HB 387 [CSHB 387(HES)] out of committee with individual recommendations and the attached indeterminate fiscal notes. Number 0608 REPRESENTATIVE KERTTULA objected. She explained that she had sat through hearings on HB 387 in two committees and has heard the heartfelt testimony of concern on both sides. She has also worked with one of the supreme court justices and knows all of them well. In that regard, the rights already exists, and the state supreme court has shown no sign of changing them. She also noted that HB 387 would cause confusion and litigation, and it could easily be amended. It may also mean that religious rights might always "trump" other rights. She therefore feels strongly that this is a poor move. Number 0661 REPRESENTATIVE CROFT responded that he would have bet "big" money in 1989 if he had been asked to guess whether the U.S. Supreme Court was going to go back on at least 30 years of tradition in protection of religious freedom. In that regard, he doesn't know what the Alaska Supreme Court is going to do. He believes, therefore, that it is appropriate to codify in statute a protection for religious freedom. He hopes that there isn't a significant departure from the Alaska Supreme Court practice for a long time, he concluded, but if that ever changes, this level of protection would be in statute. CHAIRMAN KOTT requested a roll call vote. Voting to move HB 387 [CSHB 387(HES)] from committee were Representatives James, Murkowski, Croft, Green and Kott. Voting against it was Representative Kerttula. Therefore, by a vote of 5-1, CSHB 387(HES) was moved from the House Judiciary Standing Committee. ADJOURNMENT Number 0730 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 4:46 p.m.