Legislature(2003 - 2004)

03/30/2004 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 353 - JURY DUTY EXEMPTION FOR CERTAIN TEACHERS                                                                             
                                                                                                                                
Number 0850                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL NO.  353, "An Act relating to jury  duty; and amending                                                               
Rule  15(k),  Alaska  Rules  of  Administration."    [Before  the                                                               
committee was CSHB 353(HES).]                                                                                                   
                                                                                                                                
Number 0829                                                                                                                     
                                                                                                                                
REPRESENTATIVE MARY  KAPSNER, Alaska State  Legislature, sponsor,                                                               
said that  HB 353 will exempt  from jury duty teachers  who teach                                                               
in schools  that are not  meeting adequate yearly  progress (AYP)                                                               
under state  and federal law.   In the  last six to  eight years,                                                               
the state has  implemented benchmark testing and  the high school                                                               
qualifying exit exam,  and, at the federal level,  there has been                                                               
implementation  of the  No Child  Left Behind  Act of  2001 (NCLB                                                               
Act),  which requires  that every  school  have highly  qualified                                                               
teachers  in each  subject area.   For  many small  schools these                                                               
changes have posed  a challenge when teachers are  asked to leave                                                               
the classroom for  the purpose of serving jury  duty, because, in                                                               
a lot  of locations  around the  state, it  is very  difficult to                                                               
find  substitute  teachers that  are  certified  in the  area  of                                                               
expertise that the regular teacher is certified in.                                                                             
                                                                                                                                
REPRESENTATIVE  KAPSNER noted  that in  Bethel, for  example, the                                                               
court system seeks jurors from  a pool of 11 surrounding villages                                                               
and Bethel.   If a  teacher in  Kasigluk, for example,  is called                                                               
out  of the  classroom for  jury duty,  or if  there is  even the                                                               
possibility that this  will occur, it creates a lot  of stress on                                                               
the whole  school, on both  students and other  teachers, because                                                               
in most villages it's hard to  find a substitute teacher that has                                                               
a  high school  diploma.   The Lower  Kuskokwim School  District,                                                               
between September  and December, lost  107 teaching days  to jury                                                               
duty.   Now that districts  are facing AYP, benchmark  tests, and                                                               
high  school  exit  exams,  loss   of  teaching  days  is  really                                                               
ratcheting up the pressure on schools, students, and parents.                                                                   
                                                                                                                                
REPRESENTATIVE  KAPSNER said  that HB  353 provides  an exemption                                                               
for  teachers from  jury  duty  so that  while  a  school is  not                                                               
meeting AYP, they can stay in  the classroom as much as possible.                                                               
She  relayed her  hope that  this exemption  won't last  forever,                                                               
that when all  schools meet AYP, the exemption will  no longer be                                                               
needed and  all teachers can be  part of a jury  pool; hopefully,                                                               
HB 353 will just be a temporary fix to a temporary problem.                                                                     
                                                                                                                                
Number 0604                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KAPSNER   pointed  out   two  areas   of  concern                                                               
regarding CSHB 353(HES):  page  1, line 5, contains "may" instead                                                               
of "shall";  and page 1,  line 6, contains "school  year" instead                                                               
of "school term".  She indicated  that the bill should be changed                                                               
to say  "school term" because  that refers to whatever  period of                                                               
time in  a given year  the school district decides  students will                                                               
be required to attend.  In  response to a question, she indicated                                                               
that the  "may" that  she is  suggesting should  be changed  to a                                                               
"shall" is  the second "may" on  line 5.  She  said that although                                                               
there  was discussion  in  a prior  committee  that judges  could                                                               
simply  decide whether  a  person should  be  exempted from  jury                                                               
duty, it  is not customary  for judges  to make such  a decision,                                                               
and so  to require it of  them would create an  additional burden                                                               
on the court system.                                                                                                            
                                                                                                                                
CHAIR  McGUIRE  noted  that  some  students  from  Representative                                                               
Joule's district were present to observe the hearing on HB 353.                                                                 
                                                                                                                                
[The students  introduced themselves  and stated the  school they                                                               
were from.]                                                                                                                     
                                                                                                                                
Number 0432                                                                                                                     
                                                                                                                                
LINDA SAITO  relayed that  she is the  music teacher  at Kotzebue                                                               
Middle/High School and was called  for jury duty starting January                                                               
4  [2004] through  the  end of  April [2004].    Noting that  her                                                               
school has  not yet met  AYP, she  said that [getting  picked for                                                               
jury duty]  was a concern  because she  had to be  prepared every                                                               
day, for  four months, to  call in a  substitute so she  could go                                                               
serve.   She  added that  it is  very difficult,  particularly in                                                               
villages, to  get substitute teachers  that can come in  and give                                                               
quality lessons.                                                                                                                
                                                                                                                                
REPRESENTATIVE   KAPSNER,   in   response   to   questions   from                                                               
Representative Anderson, said that there  are between 400 and 500                                                               
residents in the  village of Kwigillingok, that  the Alaska Court                                                               
System picks  jurors from  the list of  people that  have applied                                                               
for  a permanent  fund  dividend,  and that  a  jury  made up  of                                                               
teachers [from  rural schools] is  not necessarily going to  be a                                                               
jury  of one's  peers because  many of  those teachers  are newly                                                               
arrived  from the  Lower 48  and won't  know the  culture or  the                                                               
language.                                                                                                                       
                                                                                                                                
REPRESENTATIVE ANDERSON mentioned that he supports HB 353.                                                                      
                                                                                                                                
TAPE 04-52, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA remarked  that a jury is supposed  to be made                                                               
up  of  people who  live  in  one's  community, and  this  notion                                                               
militates  in favor  of  the bill.   He  also  remarked that  the                                                               
turnover  rate  in small  schools  is  phenomenal, that  this  is                                                               
terrible for the  students, and asked whether there  is a similar                                                               
problem in larger communities such as Kotzebue.                                                                                 
                                                                                                                                
MS. SAITO said that  this year her school is losing  10 out of 28                                                               
teachers, and  that two years ago  about half of the  staff left.                                                               
In response to  a question she relayed that this  turnover is not                                                               
related to teachers retiring.                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA said he agrees  with the bill, adding that it                                                               
makes sense.   He  mentioned that  he would  like to  also exempt                                                               
teachers  from schools  that are  not on  the road  system, since                                                               
those  teachers can't  easily  be replaced  by  a substitute  and                                                               
their presence is  very important to the  students; he predicted,                                                               
however,  that such  a change  might hurt  the bill's  chances of                                                               
passing.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  SAMUELS indicated  that he  would support  such a                                                               
change if an  amendment were offered to that effect  on the House                                                               
floor.                                                                                                                          
                                                                                                                                
CHAIR McGUIRE  suggested making the  bill apply to  those schools                                                               
that have only one to five teachers.                                                                                            
                                                                                                                                
REPRESENTATIVE OGG offered  his belief that teachers  are part of                                                               
the  community, and  opined that  the legislature  should not  be                                                               
saying that teachers who've been  encouraged to come to the state                                                               
to teach in small communities  are not part of those communities.                                                               
He said  he thinks  that HB  353 is a  good bill  that recognizes                                                               
some paucity in the ability to draw jurors in small areas.                                                                      
                                                                                                                                
Number 0363                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   said  he  would  like   to  offer  an                                                               
amendment to "tighten the title", and  that he would like to know                                                               
from the Alaska Court System what  the impact will be of changing                                                               
the second "may"  on page 1, line  5, to "shall".   He noted that                                                               
as currently written, the bill  applies to a school in Anchorage,                                                               
and predicted that it could  apply to more Anchorage schools next                                                               
year.   He said it  sounds to him  as though the  problem doesn't                                                               
have anything  to do with the  NCLB Act, rather that  the problem                                                               
stems from a  lack of substitute teachers in rural  areas, but HB                                                               
353 doesn't  appear to  get at  that specific  issue.   Under the                                                               
bill,  a school  in Anchorage  is covered  even though  getting a                                                               
substitute teacher is not a  problem, whereas a rural school that                                                               
is  meeting AYP  would not  be covered  even though  it could  be                                                               
quite difficult to get a substitute teacher.                                                                                    
                                                                                                                                
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
                                                                                                                                
REPRESENTATIVE KAPSNER responded:                                                                                               
                                                                                                                                
     I  had the  pleasure and  distinction of  serving as  a                                                                    
     substitute teacher  for one year,  in Bethel.   And one                                                                    
     of the things that I was  very surprised to find out is                                                                    
     how many  students' lives are extremely  disrupted when                                                                    
     the teacher is  out of the classroom.   Typically these                                                                    
     are the students  [for whom] their teacher  is the only                                                                    
     thing  that stays  constant in  their life  on a  daily                                                                    
     basis  ... in  one year  - maybe  that teacher  changes                                                                    
     every year.   But  what I noticed  is, in  almost every                                                                    
     class that  I taught,  there was  one student  that was                                                                    
     extremely, emotionally  disturbed, and that  was really                                                                    
     brought out when  their teacher was gone.   And I think                                                                    
     that this  is especially true  in schools that  are not                                                                    
     meeting  adequate  yearly progress;  there's  something                                                                    
     else going on that's not  just the fault of the school,                                                                    
     but I  think that  something else  is missing  in their                                                                    
     home life and in their community.   So I think that any                                                                    
     school  that is  not meeting  adequate yearly  progress                                                                    
     probably  has  some  element   of  the  teacher  really                                                                    
     needing to be there everyday.                                                                                              
                                                                                                                                
REPRESENTATIVE  GARA  mentioned that  it  might  be difficult  to                                                               
define which schools should have  their teachers be exempted from                                                               
jury  duty.   He said  he agrees  that teachers  are part  of the                                                               
community and did not mean to suggest that they aren't.                                                                         
                                                                                                                                
Number 0763                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS said  he would like to  offer an amendment                                                               
"to change  the second 'may' on  line 5 to 'shall',  and the word                                                               
'year'  to   'term'  on  line   6,  page  1,"  as   suggested  by                                                               
Representative Kapsner.                                                                                                         
                                                                                                                                
Number 0769                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG  made a  motion  to  adopt the  foregoing  as                                                               
Amendment 1.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked that the representative  from the                                                               
Alaska Court System be allowed to comment on Amendment 1.                                                                       
                                                                                                                                
Number 0770                                                                                                                     
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS),  said he  did not  see a  particular problem  for the  ACS                                                               
regarding changing  the second  "may" to "shall",.   In  fact, he                                                               
added,  it  is easier  administratively  if  there is  a  blanket                                                               
exemption  rather  than  a judicial  determination.    In  larger                                                               
communities, he relayed,  jury clerks handle this  type of issue,                                                               
but in smaller communities, judges do it.                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG said he removes his objection.                                                                         
                                                                                                                                
Number 0836                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  asked  whether there  were  any  further                                                               
objections to  Amendment 1.   There being  none, Amendment  1 was                                                               
adopted.                                                                                                                        
                                                                                                                                
Number 0853                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG made a motion  to adopt CSHB 353(HES) as                                                               
the work draft.  There being no objection, it was so ordered.                                                                   
                                                                                                                                
Number 0862                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
[Amendment 2],  to tighten the  title so  that it is  confined to                                                               
the specific subject of the bill.                                                                                               
                                                                                                                                
REPRESENTATIVE SAMUELS  asked whether  there were  any objections                                                               
to Conceptual Amendment 2.                                                                                                      
                                                                                                                                
REPRESENTATIVE  KAPSNER  indicated  that adoption  of  Conceptual                                                               
Amendment 2 would be fine with her.                                                                                             
                                                                                                                                
REPRESENTATIVE  SAMUELS, after  ascertaining that  there were  no                                                               
objections, announced that Conceptual Amendment 2 was adopted.                                                                  
                                                                                                                                
[Representative Samuels returned the gavel to Chair McGuire.]                                                                   
                                                                                                                                
REPRESENTATIVE HOLM asked whether HB  353 would be limiting one's                                                               
right to  serve on a  jury, and  whether a blanket  exemption for                                                               
any group of people would be constitutional.                                                                                    
                                                                                                                                
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
                                                                                                                                
REPRESENTATIVE  HOLM,   characterizing  HB   353  as  a   law  of                                                               
exclusion, said he questions whether  they, as American citizens,                                                               
should be promoting such.  "Are  we saying that we have polarized                                                               
groups within  ... the  United States that  cannot be  peers?" he                                                               
asked, and,  "Is it good  state policy  for us to  have different                                                               
rules  for people  that  live in  Aniak or  people  that live  in                                                               
Fairbanks or in Juneau when it comes to justice?"                                                                               
                                                                                                                                
REPRESENTATIVE  KAPSNER explained  that  she did  not intend  for                                                               
this to  become a  regional issue, and  reminded members  that HB                                                               
353 was created in response to the NCLB Act and AYP.                                                                            
                                                                                                                                
[Representative Samuels returned the gavel to Chair McGuire.]                                                                   
                                                                                                                                
Number 1101                                                                                                                     
                                                                                                                                
REPRESENTATIVE KAPSNER went on to say:                                                                                          
                                                                                                                                
     What  we're saying  is that  under the  conditions that                                                                    
     teachers  are teaching  in  now,  under the  conditions                                                                    
     that  students   are  learning  in,  in   schools  with                                                                    
     exorbitant overhead,  with few classroom tools,  with a                                                                    
     lot of  testing going on,  [with] a lot of  people ill-                                                                    
     prepared  for  tests,  [and with]  a  myriad  of  other                                                                    
     challenges that schools ... [face],  I think this would                                                                    
     be a good ... policy ...  that we can give the schools,                                                                    
     saying, "This  didn't cost us  anything, this  is going                                                                    
     to  provide more  classroom hours  for you,  less of  a                                                                    
     burden for  you to be  paying teachers for doing  a lot                                                                    
     of work in  preparation time and serving  on ... juries                                                                    
     and  away  from  the classroom,  the  travel  expenses,                                                                    
     [and] the expense  of getting other people  lined up in                                                                    
     their communities  to serve  as substitute  teachers if                                                                    
     that need should arise."                                                                                                   
                                                                                                                                
Number 1261                                                                                                                     
                                                                                                                                
     And this  could happen in  Fairbanks.  I'm not  sure if                                                                    
     you know  how many  schools in  your community  are not                                                                    
     meeting  adequate yearly  progress, but  I'm sure  that                                                                    
     when and  if this bill is  passed, Representative Holm,                                                                    
     many teachers  in your community  will say,  "Thank you                                                                    
     for  helping  me do  my  job  under these  very  trying                                                                    
     times."   And  as  I  said at  the  outset,  this is  a                                                                    
     temporary solution  to a temporary  problem, hopefully.                                                                    
     Hopefully we get to the  point where 100 percent of our                                                                    
     schools  are meeting  adequate  yearly  progress.   The                                                                    
     conversation of  jury of peers  was merely as  an aside                                                                    
     and  that is  not  the  heart of  the  bill,  and I  am                                                                    
     nervous about going down that path.                                                                                        
                                                                                                                                
REPRESENTATIVE KAPSNER concluded:                                                                                               
                                                                                                                                
     And we  could spend many  hours talking about  [a] jury                                                                    
     of peers, and  I could tell you  [about] specific cases                                                                    
     where  trials  have been  won  because  all the  jurors                                                                    
     understood  that  every  person  in  a  village  has  a                                                                    
     different  smell depending  on  what  family they  come                                                                    
     from  - depending  on  the  kind of  meat  they eat  or                                                                    
     greens that they pick -  that perhaps somebody not from                                                                    
     that  area ...  wouldn't  understand. ...  But I  don't                                                                    
     want  to go  down  that path.   I  want  to talk  about                                                                    
      adequate yearly progress, highly qualified teachers,                                                                      
     and helping schools meet those needs.                                                                                      
                                                                                                                                
Number 1206                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM reiterated  his  concern  about taking  away                                                               
someone's right to serve on a jury.                                                                                             
                                                                                                                                
REPRESENTATIVE KAPSNER  pointed out that a  teacher covered under                                                               
this bill is not required to claim exemption.                                                                                   
                                                                                                                                
CHAIR McGUIRE concurred,  adding that a teacher  is not compelled                                                               
to claim  exemption because  the bill says,  "A person  may claim                                                               
exemption".                                                                                                                     
                                                                                                                                
MR. WOOLIVER  agreed that  the first  "may" on  line 5  gives the                                                               
teacher  the discretion  of whether  to claim  exemption; if  the                                                               
teacher  does choose  to claim  exemption, then  he/she shall  be                                                               
excused.   In  response to  a question,  he noted  that currently                                                               
there are no other exemptions from jury duty.                                                                                   
                                                                                                                                
REPRESENTATIVE  KAPSNER  mentioned  that  there  was  [one]  more                                                               
housekeeping measure she'd like the committee to address.                                                                       
                                                                                                                                
CHAIR  McGUIRE  suggested  that   members  focus  on  the  policy                                                               
question  of whether  it is  appropriate to  create an  exemption                                                               
from jury  duty for a  teacher from a  school that has  failed to                                                               
meet AYP.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA offered his  belief that it is constitutional                                                               
to provide exemption from jury  duty to certain people, and noted                                                               
that such is done in the federal  courts.  He said it makes sense                                                               
to him to  provide the exemption proposed by HB  353, and that he                                                               
is supportive of the bill.                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered his  belief that there  is case                                                               
law that says  the legislature does have the  authority to create                                                               
exemptions from  jury duty and establish  qualifying criteria for                                                               
serving on a jury.                                                                                                              
                                                                                                                                
REPRESENTATIVE KAPSNER  turned attention to  page 1, line  7, and                                                               
indicated that  the language, "has  failed" should be  changed to                                                               
read, "is designated as failing".                                                                                               
                                                                                                                                
Number 1631                                                                                                                     
                                                                                                                                
CHAIR McGUIRE made a motion to  adopt Amendment 3, to replace, on                                                               
page 1,  line 7,  "has failed" with  "is designated  as failing".                                                               
There being no objection, Amendment 3 was adopted.                                                                              
                                                                                                                                
CHAIR  McGUIRE, in  response to  comments regarding  Amendment 1,                                                               
clarified that Amendment 1 changed the  second "may" on line 5 to                                                               
"shall", and changed "school year" on line 6 to "school term".                                                                  
                                                                                                                                
Number 1687                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  moved  to  report  CSHB  353(HES),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying [zero] fiscal notes.   There being no objection,                                                               
CSHB  353(JUD) was  reported from  the  House Judiciary  Standing                                                               
Committee.                                                                                                                      

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