01/19/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB41 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 41 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 19, 2005
1:06 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 41
"An Act relating to minimum periods of imprisonment for the
crime of assault in the fourth degree committed against an
employee of an elementary, junior high, or secondary school who
was engaged in the performance of school duties at the time of
the assault."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 41
SHORT TITLE: ASSAULT ON SCHOOL EMPLOYEES
SPONSOR(S): REPRESENTATIVE(S) LYNN, MCGUIRE
01/10/05 (H) PREFILE RELEASED 12/30/04
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) JUD, FIN
01/19/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CAROL COMEAU, Superintendent of Schools
Anchorage School District (ASD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 41, provided
comments and responded to a question.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 41.
PEGGY COWAN, Superintendent of Schools
Juneau Borough Schools
City & Borough of Juneau (CBJ)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 41, provided
comments and responded to questions.
BILL BJORK, President
NEA-Alaska (National Education Association, Alaska branch)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 41, provided
comments and responded to questions.
DAVID W. MARQUEZ, Chief Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 41, relayed the
governor's support and responded to questions.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 41, provided
comments and responded to a question.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:06:22 PM. Representatives
McGuire, Coghill, Dahlstrom, Gruenberg, and Anderson were
present at the call to order. Representatives Kott and Gara
arrived as the meeting was in progress.
HB 41 - ASSAULT ON SCHOOL EMPLOYEES
[Contains mention of support for HB 88.]
1:06:31 PM
CHAIR McGUIRE announced that the only order of business would be
HOUSE BILL NO. 41, "An Act relating to minimum periods of
imprisonment for the crime of assault in the fourth degree
committed against an employee of an elementary, junior high, or
secondary school who was engaged in the performance of school
duties at the time of the assault."
CAROL COMEAU, Superintendent of Schools, Anchorage School
District (ASD), Municipality of Anchorage (MOA), said that with
the exception of one concern - that being that the ASD feels
that the bill should apply to all school district employees, for
example, bus drivers, during the performance of their duties -
the ASD is very supportive of HB 41, and she characterized it as
very important legislation. She thanked the sponsors for
submitting the legislation, saying the concept embodied therein
has been a large priority for the ASD. In response to a
question, she indicated that the ASD has always been supportive
of the bill applying to teachers as a start, but has also wanted
it to eventually include all employees.
1:10:46 PM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, one of the
prime sponsors of HB 41, said that by instituting a mandatory
minimum sentence of imprisonment for assaulting a school
employee while he/she is performing school duties, the bill
provides the same protection to teachers who are assaulted as
current law provides to peace officers, fire fighters,
correctional employees, emergency medical technicians,
paramedics, ambulance attendants, and other emergency responders
who are assaulted while engaged in the performance their
official duties. He noted that last year's version of the bill
passed out of the House Judiciary Standing Committee, but
characterized HB 41 as being a better bill because of the input
from Chair McGuire, the other prime sponsor of the bill. After
mentioning that he has served in the military and as a teacher,
he offered his belief that [the legislature] is obligated to add
the proposed protections because schools should be made safe for
teachers and other school employees, and characterized HB 41 as
a giant step in that direction. He asked the committee for
favorable action on the bill.
REPRESENTATIVE ANDERSON, after saying he supports the bill,
asked how the minimum sentence of 60 days was arrived at.
1:13:35 PM
REPRESENTATIVE LYNN, after noting that the current version of
the bill doesn't address verbal assault of school employees
because the enforcement aspect was deemed problematic, said that
the 60-day minimum sentence was chosen for HB 41 because it was
used in last year's legislation.
1:14:28 PM
REPRESENTATIVE DAHLSTROM, referring to the word, "knowingly" on
page 1, line 7, asked the sponsor to comment with regard to the
burden of proof, and with regard to elevating teachers to the
same level as peace officers, fire fighters, correctional
employees, and other emergency responders. She also asked how
the bill would apply in a situation where two children are
brawling and a teacher gets hit.
CHAIR McGUIRE, speaking as one of the prime sponsors of HB 41,
relayed that committee staff would provide members with copies
of the statute outlining the various mental states. She then
noted that the 60-day sentence is already part of existing
statute and the bill merely proposes to add school employees to
the list for whom a mandatory minimum sentence shall be imposed.
REPRESENTATIVE LYNN, in partial response to Representative
Dahlstrom, offered his belief that an assault on a school
employee is an assault on a government employee and so should
engender the same sentence as an assault on a peace officer,
fire fighter, correctional employee, or other emergency
responder.
REPRESENTATIVE COGHILL mentioned that in the past he'd
introduced a bill making it an aggravator to assault [a school
employee]. He referred to the examples mentioned by Ms. Comeau
and said he wanted to know what penalties were actually imposed
in those instances, and also whether there are any examples
wherein the penalty imposed [seemed] insufficient.
REPRESENTATIVE LYNN suggested that perhaps someone else would be
able to provide the committee with that information.
REPRESENTATIVE COGHILL said he wants to make sure that a 60-day
sentence is appropriate for the crime; pointed out that peace
officers, fire fighters, correctional employees, and other
emergency responders are often in situations where they have to
handle people who are in an excitable state; and suggested that
teachers wouldn't generally find themselves in such situations.
1:19:25 PM
REPRESENTATIVE LYNN offered his belief that school employees
constitute a special class of people who are deserving of the
same protections as those listed under current statute. He
pointed out that school employees do face situations wherein
parents are in an excitable state, sometimes highly enraged. He
reiterated his belief that there should be a mandatory minimum
sentence for assaulting school employees because they are
government employees.
REPRESENTATIVE GARA noted that there is already a strict penalty
for assaults that result in serious physical [injury], and that
the bill only addresses [assault in the fourth degree].
Referring to newspaper articles in members' packets, he
mentioned that in a couple of the aforementioned actual
examples, the judges imposed sentences greater than 60 days;
therefore, he is not sure that the bill is needed, since it
proposes a shorter sentence that what judges have actually
imposed.
REPRESENTATIVE LYNN said that although judges to date have
imposed longer sentences, in the future there might be judges
who would be inclined to impose a shorter sentence, and so he
feels that the state should step in and mandate a minimum
sentence of 60 days.
REPRESENTATIVE GARA asked whether there are any similar cases
wherein the sentence has not been substantial, wherein it hasn't
already been more than 60 days. In other words, he asked, why
is this bill needed?
REPRESENTATIVE LYNN suggested that other testifiers could
perhaps address that issue, but offered his belief that
establishing a mandatory minimum sentence of 60 days is a way of
saying that the legislature supports school employees and
students.
CHAIR McGUIRE concurred that the articles in members' packets
point out that the actual sentences imposed have been longer
than what the bill proposes, and remarked that Representative
Gara is making a fair point.
REPRESENTATIVE KOTT asked whether there is a statutory
definition of "school duties", and whether the bill, as
currently written, would apply to an assault on a school
janitor.
1:26:31 PM
REPRESENTATIVE LYNN said he couldn't answer whether there is
already a statutory definition of "school duties", but added
that he didn't see school janitors as being different than any
other school employee and suggested that children don't see them
as different.
REPRESENTATIVE KOTT questioned whether the bill would be
elevating janitors to the same level as peace officers, fire
fighters, correctional employees, and other emergency
responders. He also asked whether the bill would cover
employees of charter schools.
REPRESENTATIVE LYNN offered his belief that charter schools are
part of the school system.
REPRESENTATIVE KOTT asked whether the bill would cover an
assault that occurs in the school parking lot after school
hours.
REPRESENTATIVE LYNN offered his belief that it would, since cars
in school parking lots are subject to search.
1:29:29 PM
REPRESENTATIVE KOTT said he would have a difficult time
considering walking to one's car as engaging in school duties.
REPRESENTATIVE GARA, remarking that although teachers provide a
service to the community, noted that other groups of people also
provide a service to the community - for example, physical
therapists and nurses - and asked about having the bill also
apply to them.
REPRESENTATIVE LYNN offered his belief that a nurse, for
example, is not a government employee and so shouldn't have the
same protection as a teacher.
1:32:11 PM
REPRESENTATIVE GARA asked whether the bill would apply if a
school groundskeeper, for example, gets assaulted by his/her
angry girlfriend/boyfriend on school grounds. Would it be the
sponsors' intent to impose a 60-day sentence in that
circumstance?
REPRESENTATIVE LYNN replied, "I don't know that we can try to
examine the motivation, the mental intent, of the people who are
doing the [assaulting]; ... it doesn't mitigate the assault."
1:33:44 PM
REPRESENTATIVE GRUENBERG, referring to AS 12.55.135(g), noted
that it only provides for a minimum sentence of 30 days for a
second conviction of assault in a domestic violence context, and
said he has difficulty with the concept of elevating the
sentence for an assault on a school employee past that. He
asked whether, under the bill, there would have to be a second
trial per Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004)
and, if so, "who would make that decision." With regard to the
issue of including school bus drivers, he pointed out that some
bus drivers are school employees but some work for independent
contractors. He suggested that because of this, and because the
bill only applies to assaults on adults and not on students,
there might be equal protection issues.
CHAIR McGUIRE suggested that the same issues could be raised
with regard to other contract employees.
REPRESENTATIVE GRUENBERG mentioned that perhaps HB 41 could
become a good vehicle for dealing with any sentencing issues
that arise as a result of the Blakely decision.
1:37:38 PM
CHAIR McGUIRE offered her understanding that in Blakely, the
U.S. Supreme Court has said that when there are aggravators,
there must be a separate jury trial [for sentencing]. She noted
that the governor has a similar idea with regard to sentencing
those convicted of assaulting school employees, but it takes the
form of a thirty-first aggravator. She remarked that in
addition to the policy question of whether to treat a school
district employee differently than other citizens, there is also
the practical aspect of how to do it - for example, whether to
do it via an aggravator or via a mandatory minimum sentence.
She also mentioned the need, when considering proposed changes
to the current sentencing scheme, to look at how the sentences
for other crimes against persons compare.
1:41:43 PM
PEGGY COWAN, Superintendent of Schools, Juneau Borough Schools,
City & Borough of Juneau (CBJ), offered her belief that HB 41
recognizes the service of school employees and encourages safety
in schools, which she characterized as key to students' academic
success. She said, however, that she would discourage the
committee from trying to create different classes of school
employees. She opined that the bill is key in making schools
safe and violence free. In response to a question, she offered
her belief that schools should rank at a different level with
regard to safety - thus, anything that encroaches on school
safety is of concern - and noted that there are violence-
prevention standards in place at the federal level.
REPRESENTATIVE GRUENBERG suggested that it shouldn't make a
difference who the victim is, the punishment should be the same
for anyone assaulting anyone, employee or student, while at
school or at a school function.
MS. COWAN said she is supportive of anything that reduces
violence in schools.
REPRESENTATIVE GRUENBERG asked whether the bill should include
preschools or colleges.
MS. COWAN acknowledged that inclusion of such would be a
legislative decision, but pointed out that some elementary
schools do have preschool students because of special education
requirements.
1:48:59 PM
BILL BJORK, President, NEA-Alaska (National Education
Association, Alaska branch), said that he wanted to testify in
favor of positive action on HB 41. Referring to past
legislation, he said that NEA-Alaska believes that HB 41 ought
to be the vehicle that is ultimately passed into law. He
suggested that parents send their children to school believing
that outside of the home, schools are the safest place for their
children to be; however, because of acts of violence that have
received publicity, the idea that children are safe in schools
has been placed in doubt. He, too, remarked that safety in
schools is essential for students' success, and commended the
sponsors' efforts to increase safety. At a recent NEA-Alaska
meeting, he relayed, it was decided that NEA-Alaska should
pursue legislation elevating the penalty for assaulting a school
employee to the same level as the penalty for assaulting a
police officer. He remarked that NEA-Alaska's hope is that if
passed, HB 41 will serve as a deterrent and won't have to
actually be utilized, that the change could be explained in the
communities such that it becomes absolutely clear that violence
has no place in schools.
1:53:11 PM
MR. BJORK, in response to a question, said that NEA-Alaska
believes that all school employees should be protected, noting,
for example, that the school secretary is often the first one to
come in contact with an enraged parent.
REPRESENTATIVE GARA acknowledged that the bill's potential to
send a message to the community and act as a deterrent is a
compelling argument. He mentioned, however, that he still has a
concern regarding the bill's definition of assault, because it
might apply to an angry poke to someone's chest. He asked
whether NEA-Alaska would be amenable to changing the bill so
that it does not apply in such instances.
MR. BJORK posited that that type of incident - wherein a school
employee receives an angry poke to the chest - probably wouldn't
rise to the level of crime listed in the bill. He opined,
however, that any assault that does rise to that level - for
example, if someone takes a swing at a school employee - should
result in a 60-day sentence.
REPRESENTATIVE GARA offered his belief, though, that as
currently defined in AS 11.81.900, an angry poke to the chest
could qualify as assault in the fourth degree because it could
cause "physical pain", which is one of the criteria of "physical
injury" as the term is used in the bill.
1:57:01 PM
REPRESENTATIVE COGHILL asked whether NEA-Alaska has had to take
part, on behalf of a school employee that's been assaulted, in
any of the court cases.
MR. BJORK said that NEA-Alaska has merely encouraged its members
who've been assaulted to file charges, which has put those cases
in the public arena.
REPRESENTATIVE COGHILL asked Mr. Bjork whether he knows of any
instances of an assaulted teacher not finding adequate remedy
through the courts.
MR. BJORK offered his belief that many altercations don't rise
to the level that the aforementioned actual examples did and so
the court system has not come in to play; in such instances
there hasn't been adequate remedy. He suggested that the bill
has the potential to be a good deterrent, and will bring the
issue to the forefront.
1:59:25 PM
REPRESENTATIVE DAHLSTROM asked whether a teacher is held to a
higher standard if he/she assaults someone.
MR. BJORK said yes, pointing out that teachers are also bound by
well-defined standards of ethical behavior, for example, with
regard to corporal punishment or sexual conduct. In response to
a question, he said he would do research on the issue of whether
judges have consistently imposed a long sentence for assaults on
teachers.
2:02:19 PM
DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation
& Regulations Section, Office of the Attorney General,
Department of Law (DOL), offered the governor's support of [HB
41], relaying that the governor feels it's critical, for both
students and teachers, to have a safe school environment.
Referring to a 2003 ASD study, he noted it indicated that 13
percent of students responding to the survey reported feeling
unsafe in school, more than double the national average. He
went on to say, "We support the approach of this bill, rather
than other efforts that have been suggested that would make a
separate crime to protect a particular class of victims; this
bill provides an important public pronouncement that we want
additional protection for teachers." In conclusion he said that
the administration looks forward to working with the sponsors on
HB 41.
REPRESENTATIVE GRUENBERG offered his belief that if there is an
additional factual finding to impose a mandatory minimum
sentence, it would trigger "the same kind of ... Blakely
inquiry" and thereby present the issues of: "the standard of
proof," and "who decides."
MR. MARQUEZ said that the DOL has reviewed the bill and Blakely
has not been raised as an issue. He opined that the legislature
can establish a minimum sentence, such as is being proposed via
HB 41, and, since it would not be considered an aggravator,
there wouldn't need to be an extra trial.
REPRESENTATIVE GRUENBERG said, however, that it seems to him
that in order to arrive at a mandatory minimum sentence, the
prosecution must also prove that the perpetrator "knowingly"
assaulted a school employee, and this would be an additional
element warranting an additional factual finding. He asked the
DOL to research that issue.
MR. MARQUEZ said he would have someone do so, but opined that
for the type of crime being discussed, the factual circumstances
would be brought out in the first trial.
CHAIR McGUIRE noted that the House Judiciary Standing Committee
would look at the Blakely decision in more detail at a later
date, and requested that the DOL be prepared to discuss another
U.S. Supreme Court case pertaining to federal mandatory minimum
sentencing; she offered her understanding that that case
provides for more judicial discretion.
2:08:32 PM
REPRESENTATIVE GRUENBERG, reiterating his belief that a
mandatory minimum sentence for a misdemeanor will require at
least one more factual finding, asked whether such a finding
would have to be to made before a jury and whether it must be
made beyond a reasonable doubt.
CHAIR McGUIRE offered her belief that HB 41 doesn't have any
Blakely "problems."
REPRESENTATIVE COGHILL asked whether there is a nexus between
safety personnel - such as peace officers, fire fighters,
correctional employees, and other emergency responders - and
school employees.
MR. MARQUEZ offered his belief that the goal of the bill is to
send a message that schools should be safe, adding that he feels
that that is nexus enough.
REPRESENTATIVE COGHILL said he is committed to safety in
schools, but struggles [with the bill] because it is creating a
huge penalty. He said that he wonders how many fourth degree
assaults are "pled out," and noted that there is a lot of
frustration on the part of constituents when offenders do that.
He asked whether a 60-day sentence will have the unintended
consequence of causing more such offenders to plead out.
MR. MARQUEZ indicated that he would research those points. In
response to a question, he offered his belief that it is already
a more serious crime to assault a child, adding that he will
research that issue as well.
2:15:21 PM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), cautioned that
creating a special category of victims could be problematic, and
noted that the types of individuals already covered in the
statute that the bill is proposing to change are either
uniformed or otherwise clearly identified, and that even though
teachers are important, they are not uniformed. She pointed
out, with regard to who should be included in the bill, that
there are other groups of people that are also sometimes
government employees, so there may be forthcoming legislation to
add other special groups. She, too, remarked that the sentences
handed down in the actual examples are longer than what is being
provided for in the bill, and suggested that this illustrates
that judges are already taking this issue seriously; thus, there
may not be a need for this legislation, since there have not
been any examples of lesser sentences being imposed.
REPRESENTATIVE COGHILL asked Ms. Wilson whether she knows of any
situations wherein an assault on a uniformed official was "plead
to something lower."
MS. WILSON said she doesn't know of any such cases that have
been reduced down something less than [assault in the fourth
degree].
2:19:48 PM
REPRESENTATIVE GRUENBERG, referring to the language on page 1,
line 11 - "other emergency responder" - asked whether community
patrol volunteers would fall under that category.
MS. WILSON said she didn't know.
MR. MARQUEZ indicated that he would research that issue.
2:22:23 PM
REPRESENTATIVE GARA said that it seems that the current law is
not broken, and asked about the possibility of sending the
message - that violence against school employees will not be
tolerated - by providing that anyone who commits such an assault
must also give his/her permanent fund dividend (PFD) to the
victim, remarking that violence towards school employees is
inappropriate and that since the jail time currently being
imposed is already sufficient, perhaps being faced with both
penalties will act as a deterrent.
REPRESENTATIVE LYNN, in conclusion, offered his belief that
everyone is trying to get to the same place, and said that he
supports HB 88. He thanked the governor and [the
administration's staff] for their support of HB 41.
2:24:08 PM
CHAIR McGUIRE relayed that she would keep public testimony open
on HB 41. [HB 41 was held over.]
ADJOURNMENT
2:24:28 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:24 p.m.
| Document Name | Date/Time | Subjects |
|---|