Legislature(2005 - 2006)BUTROVICH 205

01/31/2006 09:30 AM JUDICIARY

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09:38:07 AM Start
09:40:20 AM Confirmation: Regina Chennault – Violent Crimes Compensation Board
09:46:55 AM HB41
10:37:15 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Time Change --
Regina C. Chennault, Violent Crimes
Compensation Board
<Bill Hearing Postponed>
Heard & Held
         HB 41-ASSAULT ON SCHOOL EMPLOYEES/BUS DRIVERS                                                                      
9:46:55 AM                                                                                                                    
CHAIR RALPH SEEKINS announced HB 41 to be up for consideration.                                                                 
REPRESENTATIVE BOB  LYNN, bill sponsor,  introduced the  bill. HB                                                               
41 passed  unanimously in the  House at  the end of  the previous                                                               
session. HB  41 establishes a  mandatory minimum term of  60 days                                                               
for  anyone  convicted  of  a misdemeanor  assault  of  a  school                                                               
employee during official performance  of duties. It would provide                                                               
the  same  level  of  protection to  teachers  and  other  school                                                               
employees  as   currently  held   to  protect   police  officers,                                                               
firefighters,  and  other  emergency   responders.  The  bill  is                                                               
complimentary  to Governor  Frank  Murkowski's HB  88, which  was                                                               
recently signed into law.                                                                                                       
Misdemeanor assaults  on teachers or  employees are not  the same                                                               
as  with individual  private citizens.  It  is an  assault of  an                                                               
official representative  of the government.  The job of  a school                                                               
employee  can be  dangerous as  a  result of  unruly parents  and                                                               
9:51:12 AM                                                                                                                    
SENATOR GRETCHEN  GUESS asked the  reason the class  of employees                                                               
was not simply included under AS 12.55.135(d)(1).                                                                               
REPRESENTATIVE LYNN  said the drafters  felt it should  be listed                                                               
under its own subparagraph.                                                                                                     
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department  of  Law  (DOL),  explained   HB  41  was  drafted  by                                                               
legislative affairs  and school  employees were  noted separately                                                               
for clarification  purposes. Also the  bill has been  amended and                                                               
so the caveat  at the end would only apply  to mandatory minimums                                                               
for school employees.                                                                                                           
SENATOR  HOLLIS FRENCH  noted the  reason punishment  is stronger                                                               
for  people   who  assault  police  officers,   firefighters  and                                                               
emergency responders is because  they occupy a uniquely dangerous                                                               
job. Dozens of  police officers have lost  their lives performing                                                               
their  duty.  He  asked Representative  Lynn  the  rationale  for                                                               
making an  assault on a  school employee  exactly the same  as an                                                               
assault on a police officer.                                                                                                    
9:54:21 AM                                                                                                                    
REPRESENTATIVE LYNN  advised he  is a  former police  officer and                                                               
recognizes  it  is  a dangerous  job.  School  employees  protect                                                               
children  and  society  must protect  them.  He  maintained  that                                                               
testimony would prove  HB 41 was necessary. The  Alaska Chiefs of                                                               
Police endorse the bill.                                                                                                        
9:56:20 AM                                                                                                                    
SENATOR  FRENCH asked  Representative  Lynn  whether he  believed                                                               
that school  teaching was as  dangerous an occupation as  being a                                                               
police officer.                                                                                                                 
REPRESENTATIVE LYNN said perhaps not.  But, he said, children are                                                               
a precious asset.  He asserted the need to provide  safety in the                                                               
SENATOR FRENCH  agreed safety  in the schools  was a  problem but                                                               
admitted he  was struggling  with some  of the  implications. One                                                               
thing  to realize  is that  the  same assault  would get  handled                                                               
differently when it  happens on school grounds.  He worried about                                                               
the  "bandwagon effect".  Prosecutors  also  perform a  dangerous                                                               
job,  putting  bad   people  in  jail  for  a  long   time  in  a                                                               
confrontational  way. He  recognized  there are  many people  who                                                               
perform a  variety of dangerous  jobs but do not  receive special                                                               
protection from  the law.  He said  judges are  able to  sort out                                                               
cases and provide the appropriate punishment to the offender.                                                                   
9:59:09 AM                                                                                                                    
SENATOR FRENCH  continued HB 41  would allow a defendant  who has                                                               
been found  guilty of  assault to propose  a mitigator,  which is                                                               
rarely  used in  misdemeanor sentencing.  Mitigator 6  says in  a                                                               
conviction  for assault,  under AS  11.41.200-220, the  defendant                                                               
acted  with serious  provocation from  the victim.  He noted  the                                                               
assault  statute (AS  11.41.230)  was not  listed.  He asked  Ms.                                                               
Carpeneti whether a  change should be made in  mitigator number 6                                                               
to  make it  clear  to  the court  that  the  mitigator would  be                                                               
10:00:41 AM                                                                                                                   
MS. CARPENETI  said it would be  a big change in  sentencing law.                                                               
At  this point  prosecutors  can argue  aggravating factors  just                                                               
because they  make sense.  It is  not mandatory  like it  is with                                                               
felonies  and it  is not  something the  courts make  findings on                                                               
like  they do  with felonies.  It's  also a  different burden  of                                                               
proof.  The DOL  was not  a  part of  the addendum  and are  also                                                               
concerned  about  it. She  said  Senator  French was  correct  in                                                               
cautioning  the committee  to consider  the implications.  If the                                                               
Legislature would  want the mitigator  to apply, they  would have                                                               
to change  it. Ms. Carpeneti said  she would not advocate  for it                                                               
10:02:34 AM                                                                                                                   
SENATOR  FRENCH referred  to an  assault at  Clark Middle  School                                                               
where the assault was basically  a belly bumping between an angry                                                               
parent  and  a  school  administrator   during  an  evening  get-                                                               
together.  It was  minor  but was  technically  an assault.  This                                                               
would be  the kind of issue  that the courts would  have to face.                                                               
He expressed unease that HB 41  would require the person to go to                                                               
jail for 60 days.                                                                                                               
REPRESENTATIVE  LYNN  pointed  out that  the  prosecutor  retains                                                               
discretion on how to proceed with the case.                                                                                     
SENATOR FRENCH  asserted by  leaving it  up to  a judge  it would                                                               
allow for  that judge  to look  at the big  picture and  make the                                                               
ruling fit the crime.                                                                                                           
10:04:49 AM                                                                                                                   
SENATOR CHARLIE HUGGINS expressed support for the bill.                                                                         
SENATOR  GENE THERRIAULT  referred to  page 2,  line 4  and asked                                                               
whether a middle school would be covered.                                                                                       
MS. CARPENETI said she would check to make sure.                                                                                
SENATOR THERRIAULT asked  whether a parent who  volunteers at the                                                               
school would be covered.                                                                                                        
MS. CARPENETI  believed that subject  was discussed on  the House                                                               
side and  they would not be  covered because they are  not school                                                               
SENATOR  THERRIAULT  asked whether  a  sports  official would  be                                                               
MS.  CARPENETI  did  not  know   whether  sports  officials  were                                                               
technically hired as employees.                                                                                                 
10:09:25 AM                                                                                                                   
REPRESENTATIVE LYNN  speculated that student teachers  were under                                                               
a contract even if they are not paid.                                                                                           
SENATOR THERRIAULT  said they would  not be covered  because they                                                               
were not employees  by definition. Last year with  the passage of                                                               
HB 88, the Senate Judiciary  Standing Committee inserted language                                                               
that dealt with administrative offices.  He asked how HB 41 would                                                               
apply to administrative offices.                                                                                                
10:11:16 AM                                                                                                                   
MS. CARPENETI  stated the DOL  supports the bill and  believes it                                                               
works complimentary to HB 88.  The concern is with the mitigating                                                               
factors. There  are mandatory  minimums for  many things  such as                                                               
drunk  driving, driving  without a  license, and  other types  of                                                               
assaults. Currently  aggravating and  mitigating factors  allow a                                                               
court  to go  above  and beyond  in  certain circumstances.  They                                                               
don't have  the kind of  effect in  misdemeanors that they  do in                                                               
felonies. A  big concern would  be how  HB 41 would  affect drunk                                                               
driving laws.  In terms  of "at  the administrative  office", the                                                               
language is not in  the bill and so it would have  to be added if                                                               
the provision is desired.                                                                                                       
SENATOR GUESS asked whether a  teacher walking out to the parking                                                               
lot would be covered.                                                                                                           
MS. CARPENETI said it would depend on the circumstances.                                                                        
10:14:23 AM                                                                                                                   
CHAIR SEEKINS  asked whether somebody assaulting  a student would                                                               
fall under HB 41.                                                                                                               
MS. CARPENETI  responded the  bill did  not currently  cover that                                                               
CHAIR  SEEKINS said  he  believes the  primary  person who  needs                                                               
protection is  the student. He  asked Senator Therriault  to look                                                               
up the language on HB 88.                                                                                                       
REPRESENTATIVE LYNN said he did  not have a problem strengthening                                                               
the bill.                                                                                                                       
CHAIR  SEEKINS  said  the  Senate  Judiciary  Standing  Committee                                                               
modified HB 88  last year by adding that a  fourth degree assault                                                               
on  another  person  while  on  school  property  would  get  the                                                               
10:16:32 AM                                                                                                                   
SENATOR  THERRIAULT  affirmed  that  is how  the  bill  left  the                                                               
CHAIR SEEKINS  asked Representative Lynn whether  he would object                                                               
to  amending the  bill  to  include all  persons  if the  offense                                                               
happened on school property.                                                                                                    
REPRESENTATIVE LYNN  reported he  would not  object and  would be                                                               
MS. CARPENETI  said she could not  think of any reason  to object                                                               
at  the  time. She  pointed  out  the  bill  would not  apply  to                                                               
children  assaulting  other  children.  Ms.  Carpeneti  read  the                                                               
description  of   fourth  degree   assault  as  "if   the  person                                                               
recklessly  causes  physical injury  to  another  person or  with                                                               
criminal negligence, causes physical  injury to another person by                                                               
means of a dangerous instrument."                                                                                               
10:18:44 AM                                                                                                                   
CHAIR SEEKINS  noted the definition of  "dangerous instrument" is                                                               
broad.  He  said he  would  consider  a conceptual  amendment  to                                                               
include covering anyone on school property.                                                                                     
10:20:14 AM                                                                                                                   
CHAIR SEEKINS asked  Representative Lynn to take  that concept to                                                               
the  drafters and  get back  to the  committee. He  asked Senator                                                               
French to comment on the mitigating factors.                                                                                    
SENATOR  FRENCH said  he does  not  want mitigators  to apply  to                                                               
misdemeanors because  of the bandwagon effect.  He also expressed                                                               
concern that a minor dispute, out  of view of any children, would                                                               
automatically get a term of 60  days in prison, which is the same                                                               
for anyone who assaults a police officer.                                                                                       
10:21:49 AM                                                                                                                   
SENATOR FRENCH  noted the committee  should clarify the  types of                                                               
schools the bill would apply to.                                                                                                
10:24:14 AM                                                                                                                   
REPRESENTATIVE LYNN offered to circulate a memo of explanation.                                                                 
MS. CARPENETI  said the bill  would apply to private  schools but                                                               
not to preschools.                                                                                                              
SENATOR GUESS asked for clarification on home schools.                                                                          
SENATOR THERRIUALT asked Representative  Lynn whether there was a                                                               
pattern  of weak  sentences  being handed  down  for assaults  on                                                               
school employees.                                                                                                               
REPRESENTATIVE LYNN  asserted the bill addressed  future assaults                                                               
on  school grounds  and would  serve  to ensure  the incident  is                                                               
dealt with appropriately. He said not  only is it a local problem                                                               
but it is a national problem.                                                                                                   
SENATOR THERRIAULT asked  Ms. Carpeneti to comment  in regards to                                                               
additional prison costs to the state.                                                                                           
10:27:12 AM                                                                                                                   
MS. CARPENETI  said the few  cases she  knows of the  judges have                                                               
dealt out punishment that was satisfactory to the prosecution.                                                                  
SENATOR GUESS requested Representative Lynn  to add a fiscal note                                                               
from the court system to the bill packet.                                                                                       
10:28:58 AM                                                                                                                   
MS. TONI  HARTLEY, Secretary, Pioneer Peak  Elementary, expressed                                                               
full support  for HB 41. She  testified she was assaulted  on May                                                               
6,  2005  by  an  angry  parent  while  on  school  grounds.  She                                                               
sustained  several punches  to the  head  and was  thrown to  the                                                               
ground.  She asserted  that safety  at  her school  is now  being                                                               
widely questioned. The  parent who assaulted her  was served with                                                               
a restraining  order, which she  then violated -  demonstrating a                                                               
lack  of respect  for the  law.  Ms. Hartley  has had  continuing                                                               
doctor visits  and physical  therapy as a  result of  the attack.                                                               
The medical bills  have amounted to over  $11,000. She questioned                                                               
whether anger  management classes  would serve the  assailant any                                                               
10:33:38 AM                                                                                                                   
MS.  HARTLEY  continued  her  assailant  was  not  handcuffed  or                                                               
escorted off the school grounds  on the day the assault occurred.                                                               
At Pioneer Peak  Elementary the principal has  also been verbally                                                               
attacked and  threatened by parents  and a nurse was  chased down                                                               
the hallway  by a parent  who learned  they were reported  to the                                                               
Office  of  Children's  Services.  A  convicted  sexual  offender                                                               
violated  a  restraining order  and  refused  to leave  a  school                                                               
classroom.  Recently a  middle-school student  was attacked  on a                                                               
school  bus. School  district employees  need legal  recourse and                                                               
protection. She urged the committee to pass HB 41.                                                                              
10:35:39 AM                                                                                                                   
REPRESENTATIVE LYNN asked Ms. Hartley  the sentence her assailant                                                               
MS.  HARTLEY responded  a conviction  for assault  in the  fourth                                                               
degree, anger management classes, and  a letter of apology to Ms.                                                               
Hartley. All fines and jail sentences were suspended.                                                                           
10:36:38 AM                                                                                                                   
CHAIR SEEKINS held HB 41 in committee.                                                                                          

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