BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 939 (Melendez)
          As Amended June 18, 2013
          Hearing Date: July 2, 2013
          Fiscal: No
          Urgency: No
          RD


                                        SUBJECT
                                           
                Pupil and School Personnel Health: Automatic External  
                                   Defibrillators

                                      DESCRIPTION  

          This bill would provide qualified immunity for a school district  
          and its employees who use, attempt to use, or do not use an  
          automatic external defibrillator (AED) to render emergency care  
          or treatment.  This bill would also state that it is the intent  
          of the Legislature to encourage all public schools to acquire  
          and maintain at least one AED and allow schools to solicit and  
          receive nonstate funds for that purpose.  This bill would  
          encourage schools that decide to acquire and maintain an AED, or  
          to continue to use and maintain an existing AED, to comply with  
          certain requirements relating to the placement of the AED and  
          ensuring its availability for use at all school-sponsored  
          athletic events, as defined. 

                                      BACKGROUND 

          According the American College of Emergency Physicians (ACEP)  
          website, if a person suffers a sudden cardiac arrest, chances of  
          survival decrease by 7 to 10 percent for each minute that passes  
          without defibrillation.  A victim's best chance for survival is  
          when there is revival within four minutes.  Small portable  
          medical devices called automatic external defibrillators (AEDs)  
          can be used to administer an electric shock through the chest  
          wall to the heart after someone suffers cardiac arrest.   
          Built-in computers assess the patient's heart rhythm, determine  
          whether the person is in cardiac arrest, and signal whether to  
          administer the shock.  Moreover, audible cues guide the user  
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          through the process.  However, AEDs are less successful when the  
          victim has been in cardiac arrest for more than a few minutes,  
          especially if cardiopulmonary resuscitation (CPR) is not also  
          provided.

          In 1999, the Legislature passed and the Governor signed SB 911  
          (Figueroa, Ch. 163, Stats. 1999) which created a qualified  
          immunity from civil liability for trained persons who use AEDs  
          in good faith and without compensation when rendering emergency  
          care or treatment at the scene of an emergency.  The bill also  
          provided for immunity from liability for persons or entities  
          that acquire an AED, provided that the person or entity has  
          complied with specified maintenance, training, and notice  
          requirements.  The immunity does not apply in cases of personal  
          injury or wrongful death resulting from gross negligence or  
          willful or wanton misconduct.  AB 2041 (Vargas, Ch. 718, Stats.  
          2002) expanded this immunity by relaxing the requirement that  
          building owners must ensure that expected AED users complete  
          training as a condition of immunity.  AB 2041 was enacted with a  
          five-year sunset which was extended another five years to  
          January 1, 2013 by AB 2083 (Vargas, Ch. 85, Stats. 2006).  Most  
          recently, in the last legislative session, SB 1436 (Lowenthal,  
          Ch. 71, Stats. 2012) was enacted to delete the sunset, thereby  
          extending the operation of those provisions indefinitely.

          Additionally, in 2005, AB 254 (Nakanishi, Ch. 111, Stats. 2005)  
          amended the above provisions to specify that, if an AED is  
          placed in a public or private K-12 school, the school principal  
          must annually provide school administrators and staff with a  
          brochure describing the proper use of an AED, post similar  
          information next to the AED, and designate trained employees to  
          be available to respond to an emergency that may involve the use  
          of an AED during normal operating hours.

          Also of particular relevance to this bill, in 2011, another  
          bill, SB 63 (Price, 2011) would have enacted into law provisions  
          that were similar to this bill, except that SB 63 explicitly  
          required certain actions on the part of any school that decided  
          to acquire and maintain an AED.  That bill was held on suspense  
          in the Senate Appropriations Committee.  

          This bill would state the intent of the Legislature to encourage  
          all public schools acquire and maintain at least one AED,  
          encourage schools that decide to acquire and maintain an AED to  
          comply with certain requirements, and also provide a qualified  
          immunity from liability for a school district and its employees,  
                                                                      



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          as specified.  

                                CHANGES TO EXISTING LAW
           
           Existing law  provides for immunity from liability for any person  
          who, in good faith and not for compensation, renders emergency  
          care using an AED at the scene of an emergency.  (Civ. Code Sec.  
          1714.21(b).)

           Existing law  provides that any person who, in good faith and not  
          for compensation, renders emergency care or treatment by the use  
          of an AED at the scene of an emergency is not liable for any  
          civil damages resulting from any acts or omissions in rendering  
          the emergency care.  (Civ. Code Sec. 1714.21(b).) 

           Existing law  provides that a person or entity that acquires an  
          AED for emergency use is not liable for any civil damages  
          resulting from any acts or omissions when the AED is used to  
          render emergency care provided that the person or entity  
          complied with the maintenance, training, and notice requirements  
          specified in the Health and Safety Code and described in more  
          detail below.  (Civ. Code Sec. 1714.21(d).)

           Existing law  provides that the qualified immunity described  
          above does not apply in the case of personal injury or wrongful  
          death that results from the gross negligence or willful or  
          wanton misconduct of the person who uses the AED to render  
          emergency care.  (Civ. Code Sec. 1714.21(f).)

           Existing law  provides that any person or entity that acquires an  
          AED is not liable for any civil damages resulting from any acts  
          or omissions in the rendering of the emergency care if that  
          person or entity does all of the following:
           Complies with all regulations governing the placement of an  
            AED. 
           Ensures all of the following:
             o    the AED is maintained and regularly tested, as  
               specified; 
             o    the AED is checked for readiness after each use and at  
               least once every 30 days if it has not been used in the  
               preceding 30 days.  Records of these checks must be  
               maintained;
             o    that any person who renders emergency care using the AED  
               activates the emergency medical services system as soon as  
               possible, and reports any use of the AED to the local EMS  
               agency;
                                                                      



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             o    for every AED unit acquired up to five units, at least  
               one employee per unit must complete a training course in  
               cardiopulmonary resuscitation and AED use.  After the first  
               five AED units are acquired, for each additional five units  
               acquired, one employee shall be trained beginning with the  
               first unit acquired.  Acquirers of AEDs shall have trained  
               employees who should be available to respond to an  
               emergency that may involve the use of an AED during normal  
               operating hours;
             o    there is a written plan describing the procedures to be  
               followed in the event of an emergency that may involve  
               using an AED; and
             o    if an AED is placed in a public or private K-12 school,  
               the principal must annually provide school administrators  
               and staff with a brochure describing the proper use of an  
               AED, post similar information next to the AED, and  
               designate trained employees to be available to respond to  
               an emergency that may involve the use of an AED during  
               normal operating hours.  
           Any person or entity that supplies an AED shall: 
             o    notify an agent of the local EMS agency of the  
               existence, location, and type of AED acquired; and
             o    provide the AED acquirer with information regarding the  
               AED's use, installation, operation, training, and  
               maintenance.  (Health & Saf. Code Sec. 1797.196(b).) 

           This bill  would provide that if an employee of a school district  
          who uses, attempts to use, or does not use an AED consistent  
          with the requirements of this bill, as specified, to render  
          emergency care or treatment, the school district is not liable  
          for civil damages resulting from the act or omission in  
          rendering the emergency care or treatment, including the use or  
          nonuse of an AED, except as specified.  This bill would provide  
          that an employee of a school district who complies with the  
          existing law provisions described above in rendering emergency  
          care or treatment through the use, attempted use, or nonuse of  
          an AED at the scene of an emergency shall not be liable for any  
          civil damages resulting from any act or omission in rendering  
          the emergency care or treatment.   

           This bill  would provide that the above immunity does not apply  
          in the case of personal injury or wrongful death that results  
          from gross negligence or willful or wanton misconduct on the  
          part of the person who uses, or maliciously fails to use an AED  
          to render emergency care or treatment. 

                                                                      



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           This bill  would delete an existing provision of the Health and  
          Safety Code relating to the duties of a principal if an AED is  
          placed in a public or private K-12 school, and instead require  
          that the principal: 
           notify, at least annually, all school employees of the  
            location of all AED units on the campus; and 
           designate only school employees who volunteer to be designated  
            as AED volunteers to respond to an emergency that may involve  
            the use of an AED.  

           This bill  would specify that it does not alter existing  
          requirements with respect to the use of AEDs by persons  
          rendering emergency care. 

           This bill  would provide that it is the intent of the Legislature  
          to encourage all public schools to acquire and maintain at least  
          one AED.  

           This bill  would permit public schools to solicit and receive  
          nonstate funds to acquire and maintain an AED.  Those funds  
          shall only be used to acquire and maintain an AED and to provide  
          training to school employees regarding AED use.

           This bill  would provide that if a public school decides to  
          acquire and maintain an AED, or continue to use and maintain an  
          existing AED, it may, and is encouraged to:
           place an AED in a centralized location on campus for the  
            purpose of preventing deaths resulting from sudden cardiac  
            arrests among pupils, faculty, and visitors; and
           have the AED available for use at a school-sponsored athletic  
            event.  The AED placed in a centralized location on campus may  
            serve as the AED for the purpose of this provision. 

           This bill  would define a "school sponsored athletic event" for  
          these purposes. 

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            The majority of California's children spend around 14,000  
            hours away from their parents and under the supervision of the  
            state while they receive an education at California's K-12  
            public schools. While under this supervision, parents should  
                                                                      



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            be confident that their children are protected. According to  
            the American Heart Association, sudden cardiac arrest kills  
            over 300,000 people a year and is the leading cause of death  
            in the United States.  [M]any of these 300,000 deaths could  
            have been saved with the use of an AED.  (American Heart  
            Association - Circulation http://circ.ahajournals.org.)

            This bill would state the intent of the Legislature to  
            encourage all public schools to acquire and maintain at least  
            one AED.  The bill would authorize a public school to solicit  
            and receive non-state funds to acquire and maintain an AED. If  
            a public school decides to acquire and maintain an AED, or  
            continue to use and maintain an existing AED, the bill would  
            authorize and encourage the school to comply with specified  
            requirements.  The bill would provide that the school district  
            and employees of the school district are not liable for civil  
            damages resulting from certain uses, attempted uses, or  
            non-uses of an AED, except as provided.  The bill would delete  
            the requirement on a public or private K-12 school principal  
            to ensure that certain school employees annually receive  
            approved brochures describing the proper use of an AED and  
            that similar information be posted next to every AED.  The  
            bill would recast the remaining requirements, identified  
            above, on a public or private K-12 school principal relating  
            to AEDs in the Education Code but instead require that a  
            principle principal designate only school employees who  
            volunteer to be designated as AED volunteers to respond to an  
            emergency that may involve the use of an AED.

          2.    Existing law ambiguities in relation to public school   

          As noted in the Background, there have been numerous bills over  
          the last decade encouraging and regulating the use and  
          maintenance of AEDs by person and entities. Those provisions  
          also provide for qualified immunities for persons rendering  
          emergency care by way of an AED unit and entities that make  
          those units available.  Also, in 2005, AB 254 (Nakanishi, Ch.  
          111, Stats. 2005) was enacted to specify the notification and  
          staffing requirements that must be met when a public or private  
          K-12 school voluntarily installs an AED on school grounds and  
          seeks to allow immunity from civil liability resulting from any  
          acts or omissions in using the AED's use to render emergency  
          care.  
           
          Nonetheless, the author contends that "[e]xisting law does not  
          clearly protect school districts from any civil damages if an  
                                                                      



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          AED is used in good faith, on campuses, making schools reluctant  
          to obtain an AED because of the threat of unaffordable lawsuits.  
           The law is ambiguous when it comes to who is protected from  
          civil liabilities if an AED is used. Current law states, 'In  
          order to ensure public safety, any person or entity that  
          acquires an AED is not liable for any civil damages resulting  
          from any acts or omissions in the rendering of the emergency  
          care under subdivision (b) of Section 1714.21 of the Civil  
          Code.'  The ambiguity of 'entity' leaves schools reluctant to  
          obtain an AED in fear of not being protected.  Existing law also  
          does not authorize and encourage schools to solicit and receive  
          non-state funds to acquire and maintain an AED."

          In support of this bill, the Los Angeles County Office of  
          Education writes that "[w]hile children are at school they  
          should be protected from this [sudden cardiac arrest] epidemic,  
          but schools are reluctant to acquire an AED due to existing law.  
           Existing law does not clearly protect school districts from any  
          civil damages if an AED is used in good faith on campuses,  
          making schools reluctant to obtain an AED because of the threat  
          of unaffordable lawsuits."  Similarly, the Association of  
          California School Administrators (ASCA) writes that "[m]ost  
          school districts are self-insured.  As a result, the  
          self-insurance companies have advised school districts not to  
          purchase or accept AEDs for fear of ability.  A number of school  
          sites in the state have been offered AEDs free of charge, only  
          be advised not to accept the device.  Currently, individuals  
          receive Good Samaritan protection from the use of an AED;  
          however, it has been unclear whether school districts are  
          covered within this same protection." 

          This bill seeks to remedy any ambiguity and reduce the  
          hesitation of schools to obtain AEDs by enacting specific  
          language encouraging all public schools to acquire and maintain  
          at least one AED and providing both the schools and the  
          employees who render the emergency care qualified immunity from  
          liability, as specified.  

          In a joint letter of support, the Emergency Medical Services  
          Administrators Association and the Emergency Medical Directors  
          Association of California detail how children can and have  
          become victims of sudden cardiac arrest, listing at least 10  
          instances in the state between 2001 and April of this year,  
          wherein children between the ages of 14 and 17 died or suffered  
          severe brain damage as a result of severe cardiac arrest where  
          there was no AED unit available.  They also note six instances  
                                                                      



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          in which the lives of five students (ages 13 through 18) and one  
          faculty member (aged 34 years old) were saved through the use of  
          an AED unit while suffering from cardiac arrest.  

          3.    This bill appears consistent with prior efforts to  
            encourage emergency, life-saving, assistance by way of  
            qualified immunities for trained Good Samaritans  
          
          This bill would attempt to provide the clarity that proponents  
          of this bill feel is missing under existing law by specifically  
          providing that an employee of a school district who complies  
          with certain existing law provisions in rendering emergency care  
          or treatment through the use, attempted use, or nonuse of an AED  
          at the scene of an emergency shall not be liable for any civil  
          damages resulting from any act or omission in rendering the  
          emergency care or treatment.  The bill would also provide that  
          if an employee of a school district who uses, attempts to use,  
          or does not use an AED consistent with the requirements of this  
          bill, as specified, to render emergency care or treatment, the  
          school district is not liable for civil damages resulting from  
          the act or omission in rendering the emergency care or  
          treatment, including the use or nonuse of an AED, except in the  
          case of personal injury or wrongful death that results from  
          gross negligence or willful or wanton misconduct on the part of  
          the person who uses, or maliciously fails to use an AED to  
          render emergency care or treatment. 

          As a general rule, California law provides that everyone is  
          responsible, not only for the result of his or her willful acts,  
          but also for an injury occasioned to another by his or her want  
          of ordinary care or skill in the management of his or her  
          property or person, except so far as the latter has, willfully  
          or by want of ordinary care, brought the injury upon himself or  
          herself.  (Civ. Code Sec. 1714(a).)  Although immunity  
          provisions are rarely preferable because they, by their nature,  
          prevent an injured party from seeking a particular type of  
          recovery, the Legislature has in limited scenarios approved  
          measured immunity from liability (as opposed to blanket  
          immunities) to promote other policy goals that could benefit the  
          public.  

          Proponents of this bill write in strong support of the fact that  
          AEDs can save lives-and in many cases, they can save the lives  
          of children, as noted in Comment 2 above.  In support of the  
          bill, the Contra Costa County of Board of Supervisors writes  
          that: 
                                                                      



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            According to the American Heart Association, sudden cardiac  
            arrest kills over 300,000 people a year and is the leading  
            cause of death in the United States.  Medical experts opine  
            that the key to survival is a timely initiation of a "chain of  
            survival," including cardio-pulmonary resuscitation (CPR) and  
            the use of an AED.  If CPR along with AED is administered  
            within 4 to 8 minutes from the time a victim collapses, the  
            chances of survival are greatly improved.  While it is not  
            always physical possible for EMS first-responders to be at the  
            side of a student, faculty or visitor on a school campus  
            within 4 to 8 minutes, having an AED on campus and available  
            to trained non-medical personnel prior to EMS arrival will  
            help save lives and prevent brain damages and disability.

          Thus, in light of the general disfavoring of immunity  
          provisions, the question necessarily becomes whether the  
          proposed immunity provisions would appropriately balance the  
          public policy of saving lives where there is a reasonable method  
          of providing assistance against the ability for an injured  
          person to seek recourse for injuries sustained as a result of  
          the administration of an AED.  Staff notes that this type of  
          qualified immunity is not without precedent under California  
          law.  Most obviously, and as acknowledged above, existing law  
          already provides for qualified immunity in the context of AEDs,  
          whereby this state encourages the provision of emergency care  
          with a reduced risk of civil liability, in order to avoid  
          preventable deaths.   (See Civ. Code Sec. 1714.21.)  
          Moreover, earlier this year, this Committee heard and approved  
          SB 669 (Huff), which sought to promote a wider use of  
          epinephrine auto injectors (commonly referred to as epi-pens) to  
          persons suffering anaphylactic shock due to an allergic  
          reaction, which can quickly lead to death without treatment. To  
          do so, that bill would have, among other things, provided  
          immunity to any trained lay person who administers, in good  
          faith, and without compensation, epinephrine auto injectors to  
          another person in emergency situations.  As amended in this  
          Committee, that bill now mirrors the AED statutes to make the  
          limited liability inapplicable where there was gross negligence  
          or willful or wanton misconduct by the person rendering the  
          emergency care.  Similarly, AB 635 (Ammiano) was recently passed  
          out of this Committee to expand the provision of naloxone, an  
          opioid antagonist, to persons believed to be experiencing a drug  
          overdose.  AB 635 would grant a qualified immunity to licensed  
          health care providers who issues such prescriptions or standing  
          orders, as well as to unlicensed, but trained, individuals who  
                                                                      



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          administer the naloxone, in good faith, and without  
          compensation, in emergencies to a person they believe are  
          experience a drug overdose.  
                                                     
          Staff notes that this bill, consistent with existing AED  
          statutes and the bill described above, prohibits the application  
          of any immunity to a school district in the case of personal  
          injury or wrongful death that results from gross negligence or  
          willful or wanton misconduct on the part of the person who uses,  
          or maliciously fails to use an AED to render emergency care or  
          treatment.  While this bill does not explicitly contain the  
          training provisions of the current AED statutes or the recent  
          bills approved by this Committee, it does so by cross  
          referencing existing statutes that require the person to be  
          trained.  Of note, those provisions likewise limit the immunity  
          where there is any gross negligence or willful or wanton  
          misconduct on the part of the person who renders emergency care  
          or treatment by the use of an AED.  (See Civ. Code Sec.  
          1714.21(b), (f).)  Furthermore, insofar as proper maintenance  
          has been a critical component to prior AED bills approved by  
          this Committee, this bill only would apply to schools that  
          decide to acquire and maintain an AED system. 

          As such, the qualified immunity provisions above appear to help  
          foster the use of AED units in public schools to help reduce the  
          number of unnecessary deaths and other severe effects of sudden  
          cardiac arrest in a reasonable and measured fashion, contingent  
          upon the volunteering employee receiving training, proper  
          maintenance of the AED unit by the school, and absence of gross  
          negligence or willful or wanton misconduct.  

          4.    Opposition's concerns  

          The California Federation of Teachers write in opposition that  
          they are "particularly concerned that educators are being asked  
          to provide health treatment that is far beyond their scope of  
          education, training and general job responsibilities."  They  
          also state a fear that employees will be pressured into  
          volunteering.

          In response, the author argues that, "[a]ccording to the Centers  
          for Disease Control, there are approximately 1,000 deaths per  
          day that are caused by sudden cardiac arrest. Having twenty  
          percent of America's population spending at least part of their  
          day on a school property it is important to ensure they are safe  
          from this preventable death. AB 939 is that effort to help  
                                                                      



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          ensure the public's safety. AB 939 encourages all schools to  
          have and maintain an automatic external defibrillator. This  
          legislation imposes no requirements or pressures to any  
          individuals to using an AED.  Its intent is to allow just one  
          more lifesaving option to whoever may be trying to save a life."

          5.    Amendments taken in Senate Committee on Education  

          The author agreed in the Senate Committee on Education to take  
          the following amendment to add "employees" to a provision  
          authorizing and encouraging schools to place an AED in a  
          centralized location on campus for the purpose of preventing  
          deaths resulting from sudden cardiac arrests among pupils,  
          faculty, and visitors:  

             Author's amendment  :

            On page 2, line 15, after "faculty" add "employees"

          The author also agreed in that committee to take the following  
          amendments to delete the bill's weaker requirements for  
          principals and reinstate the existing requirements in the Health  
          and Safety Code that school principals take specific action when  
          an AED is placed in a school, while amending that provision to  
          reflect that the principal shall only designate trained only  
          employees who volunteer to be designated as an AED volunteer.   
          The amendments would also state the intent of the Legislature  
          that the employees not be required to pay for the cost of any  
          training that may be required on the proper use of an AED. 

             Author's amendments  :

             1.   On page 3, strike lines 25-31 inclusive

             2.   On page 5, between lines 6-7, insert: "(5) When an AED  
               is placed in a public or private K-12 school, the principal  
               shall ensure that the school administrators and staff  
               annually receive a brochure, approved as to content and  
               style by the American Heart Association or the American Red  
               Cross, that describes the proper use of an AED. The  
               principal shall also ensure that similar information is  
               posted next to every AED. The principal shall, at least  
               annually, notify school employees as to the location of all  
               AED units on the campus. The principal shall designate the  
               trained only employees who volunteer to be designated as  
               AED volunteers who shall be available to respond to an  
                                                                      



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               emergency that may involve the use of an AED during normal  
               operating hours. As used in this paragraph, "normal  
               operating hours" means during the hours of classroom  
               instruction and any school-sponsored activity occurring on  
               school grounds.  It is the intent of the Legislature that  
               school employees shall not be required to pay for the cost  
               of any training that may be required on the proper use of  
               an AED."
           Support  :  Association of California School Administrators;  
          California Association of Joint Powers Authorities; California  
          Medical Association; California State Council of Emergency  
          Nurses Association; California State Parent Teacher Association;  
          Contra Costa County Board of Supervisors; Emergency Medical  
          Services Administrators Association; Emergency Medical Directors  
          Association of California, Inc.; Los Angeles County Office of  
          Education; Paramedics Plus; one individual

           Opposition  :  California Federation of Teachers 

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :

          AB 635 (Ammiano), See Comment 3.  This bill is currently on the  
          Senate Floor. 

          SB 669 (Huff), See Comment 3.  This bill is set for hearing in  
          the Assembly Committee on Business, Professions & Community  
          Development on July 2, 2013. 

           Prior Legislation  :

          SB 1436 (Lowenthal, Ch. 71, Stats. 2012), See Background.

          SB 63 (Price, 2011), See Background. 

          AB 2083 (Vargas, Ch. 85, Stats. 2006), See Background.

          AB 254 (Nakanishi, Ch. 111, Stats. 2005), See Background. 

          AB 2041 (Vargas, Ch. 718, Stats. 2002), See Background.

          SB 911 (Figueroa, Ch. 163 Stats. 1999), See Background.

                                                                      



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           Prior Vote  :

          Senate Education Committee (Ayes 9, Noes 0)
          Assembly Floor (Ayes 76, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Education Committee (Ayes 5, Noes 0)

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