Legislature(2015 - 2016)Anch LIO AUDITORIUM
09/22/2015 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB126 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 126 | TELECONFERENCED | |
HB 126-CODE OF MILITARY JUSTICE; APPEALS
1:32:25 PM
CHAIR LEDOUX announced that the only order of business would be
HOUSE BILL NO. 126, "An Act relating to the administration of
military justice; relating to the adoption of a code of military
justice by the adjutant general; relating to the authority of
the adjutant general; relating to appeals of convictions and
sentences of courts-martial; establishing the Military Appeals
Commission; relating to the detention and incarceration of
members of the militia; relating to the jurisdiction of the
court of appeals; relating to involuntary commitment for
evaluation or treatment of a mental disease or defect before
court-martial proceedings; and providing for an effective date."
[Before the committee was CSHB 126 (MLV).]
1:32:38 PM
REPRESENTATIVE KELLER moved to adopt CSHB 126, labeled 29-
LS0473\I, Wallace, 9/18/15, as the working document. There
being no objection, Version I was before the committee.
CHAIR LEDOUX noted that Captain Forrest Dunbar will present
Version I, and explained that Version I includes documents
related to Version P, and included the [indisc.] version of the
bill. She further explained that the sectional analysis refers
to Version P, and also applies to Version I, as the changes made
were minor.
1:33:48 PM
FORREST DUNBAR, Captain/Assistant Judge Advocate, Alaska Army
National Guard, noted that a Code of Military Justice, similar
to a criminal code, offers commanders the ability to conduct
courts-martial, and nonjudicial punishment for minor offenses
resulting in reductions, fines, and withholding pay. He pointed
to a graphic [contained within the committee packets] and stated
the goal is to always maintain good order and discipline within
the Alaska National Guard, approximately 4,000 soldiers and
airmen across the state. He advised the guardsmen are subject
to Alaska criminal law while in this state, and can also be
disciplined using administrative action, which include letters
of reprimand, reduction boards, and separation boards. He
explained that separation boards are intensive and conducted
according to federal regulations, and on both sides of the board
the service members and command are represented by Judge
Advocates. He referred to page 1 of the slide show depicting
the third leg of a stool as a tool other states have, and Alaska
has not had, as an Alaska Code of Military Justice (ACMJ) based
in part upon the Uniform Code of Military Justice (UCMJ) which
is the federal comprehensive criminal code for the military.
1:37:05 PM
CHAIR LEDOUX asked whether prior to this bill, if someone is a
bad actor in either civil, criminal courts, or this
administrative action, the guard had no authority to court-
martial.
CAPTAIN DUNBAR responded correct, as the guard is limited with
those administrative actions in exactly what it can do. For
example, he pointed out, the guard cannot give bad conduct
discharges or dishonorable discharges; therefore, it gives an
"other than honorable discharge."
CHAIR LEDOUX posed a scenario of someone that commits an offense
while in the National Guard, and the bill passes, and the person
is no longer in the National Guard, asked whether the National
Guard will have jurisdiction over that person.
CAPTAIN DUNBAR acknowledged that the question has not been
researched and he will get back to the committee, but his
initial reaction is "No, we're not going to pull people back and
court-martial them," in that it would be an ex post facto law
and the National Guard would not be able to criminally punish
them for a law not yet on the books.
CHAIR LEDOUX disagreed that it would be an ex post facto law, in
that it would be a different type of punishment and was not
certain the prohibition against ex post facto law necessarily
applies.
CAPTAIN DUNBAR said he will speak with the Department of Law
(DOL), but at this time he does not anticipate pulling people
back due to past conduct.
1:39:49 PM
CAPTAIN DUNBAR referred to slide 2, and offered that the bill
coming out of the Military and Veterans Affairs Standing
Committee was essentially a merged version of Representative
LeDoux and Representative Tuck's two bills introduced last
session.
CHAIR LEDOUX interjected that the version passed out of the
Military and Veterans Affairs Standing Committee was not a
merged version in that Version I is the merged version.
CAPTAIN DUNBAR described it as the "more merged version," as
provisions were taken from Representative Tuck's bill in the
spring, and now more have been taken due to conversations during
the summer. He explained that the version adopted in the spring
instructed the National Guard to create two sets of regulations,
one being the punitive articles, and the other being the
nonjudicial punishment regulation. During the summer it was
determined that the punitive articles would no longer be in
regulation, but instead in statute, he explained.
1:41:36 PM
REPRESENTATIVE KELLER referred to his statement that most other
states [adopted a Code of Military Justice] and asked for
clarification, including whether the bill is before the
committee due to past struggles wherein possibly justice was not
fulfilled.
CAPTAIN DUNBAR responded that the bill is before the committee
in large part due to events over the last several years and
specifically the federal Office of Criminal Investigations (OCI)
report. He offered that a recommendation of the OCI report is
that the Alaska National Guard adopt a Code of Military Justice,
which motivated the National Guard to work with Representative
LeDoux and others to create this system. Major Brian Fuchs,
Alaska Provost Marshall was appointed due to a recommendation of
the OCI report. In 2007, the National Guard Bureau (not a
command and control organization) published a recommended state
model code and a number of states adopted that code which
reflected the federal Uniform Code of Military Justice (UCMJ).
He referred to slide 3, and advised the Commanders Action Group
(that included a number of leaders, enlisted leaders, warrant
officers, commanders, and Alaska self-defense force
representative) reviewed the UCMJ with the state model code, and
reviewed each provision line-by-line as to what to bring into
Alaska. The group worked on the assumption it would be
regulation, but when the punitive articles assembled
Representative LeDoux advised it should be in statute. An
important facet is the nonjudicial punishment regulation
allowing commanders to, more quickly than a court-martial,
discipline soldiers and airmen with minor offenses and
punishments. He said the bill allows the National Guard to keep
the nonjudicial punishment regulation as a regulation, which is
more common in other states, and plans to present a good version
to the committee before January 2016. He advised the Commanders
Action Group is reviewing best practices from other states.
1:47:03 PM
REPRESENTATIVE KELLER questioned whether there is resistance to
this in other states, and the source of the resistance. He
asked whether the National Guard Bureau recommends that the
states do adopt, or did it just recommend a standard for
adoption. He further asked why the National Guard did not do
this a long time ago.
CAPTAIN DUNBAR advised that the National Guard Bureau did
recommend that other states adopt their model code, and some
did. The biggest resistance is cost and resources. He
explained that in the 90's the Judge Advocate's Office
recommended that the model code not be adopted due to lack of
funds as courts martial are costly, and nonjudicial punishment
requires training and resources. He expressed that command
decided it is worth the cost due to the events over the last
several years.
1:49:23 PM
CHAIR LEDOUX asked whether he could honestly say that with the
real problems with the former leadership of the National Guard,
this bill would have made a difference, and opined this bill
will not make a difference without good leadership.
CAPTAIN DUNBAR agreed, and said [the bill] is a larger set of
solutions, including the creation of a provost marshal. He
pointed out that good leadership is at the heart of things,
similar to the [state] criminal code wherein it doesn't work
without good prosecutors and police officers. He opined there
is currently a good command structure and the bill is a tool it
can use.
1:51:35 PM
REPRESENTATIVE KELLER remarked that the committee does not have
a fiscal note, which will be a large factor for the upcoming
legislature.
CHAIR LEDOUX said she has not seen a fiscal note.
REPRESENTATIVE KELLER advised they are there, but are dated
March from the old version.
1:52:03 PM
REPRESENTATIVE GRUENBERG asked whether there is a "Plan B"
should the legislature not appropriate enough money.
CAPTAIN DUNBAR deferred to the deputy commissioner, but said
that Version I should have a lower fiscal note than the previous
version due to steps taken with the Alaska Court System in
reducing their exposure to appeals.
1:53:10 PM
REPRESENTATIVE MILLETT offered that even though costs will be
increased, the cost of human lives will be decreased by
prosecuting people for wrongdoing and protecting victims.
1:53:49 PM
REPRESENTATIVE CLAMAN said assuming the bill passes, the
question of whether it made a difference in the Alaska National
Guard as a tool, will only be known 5-10 years from now.
CAPTAIN DUNBAR agreed, and said the National Guard anticipates
few actual courts martial in that most other states have one or
less than one a year. He extended that the more immediate
effect will be the nonjudicial punishment regulation which is a
different manner in which to enforce the code. He assumed the
deputy commissioner would point out that for every dollar the
Alaska National Guard spends, the federal government spends much
more on the Alaska National Guard. For example, while
testifying, his salary is paid by the federal government even
while under the command and control of the state, as will other
individuals involved in various activities, he pointed out. The
National Guard Bureau indicated it will make resources available
for these things by putting out the state model code, and having
investigators review certain kinds of crimes in that it is
important for the combat readiness of the force that there is
good order and discipline.
1:55:56 PM
CAPTAIN DUNBAR reiterated a difference between Versions I and
the version reviewed in March, being that the punitive articles
were put into statute, Sec. 26.05.577 - 26.05.634. He described
it as substantive articles that cover items such as: missing a
movement, disrespect toward a superior officer, which are
offenses the guard will be able to enforce. He offered that
much of the other portions of the bill tells the National Guard
how to procedurally set up things, such as a court-martial and
who can be on a court-martial. He pointed out another major
change to the bill is that the earlier version was unclear as to
when these laws would apply to the service members. He offered
that through discussions the leadership determined it applies at
all times to the service members - a model entitled "24/7,"
which a number of other states adopted. The bill was originally
written to not apply to the volunteer "self-defense force," as
it did not make sense to hold them to the same standard as the
National Guard, he said. He pointed out that the "Alaska Self-
Defense Force" took great offense and asked to be held to the
same standard, and now they are.
1:58:02 PM
CHAIR LEDOUX asked whether the state defense force is the same
as the self-defense force.
CAPTAIN DUNBAR answered that he misspoke in that it is the state
defense force, not self-defense force. In response to Chair
LeDoux's comment, answered that it is a relatively small
organization of approximately 90 members, mostly comprised of
officers. He explained that in the time of calamity they would
be gathered by the governor and provide leadership to the
unorganized militia which is almost every able-bodied male,
which is how the law is written. He offered they also have
technical expertise and are active participants in disaster
relief especially in Alaska Shield, for example.
1:59:03 PM
CHAIR LEDOUX posed a scenario that should a volunteer receive a
DUI, having nothing to do with their military volunteer work,
asked whether they are subject to court-martial.
CAPTAIN DUNBAR replied in the affirmative as they wear a uniform
and a rank, and think of themselves as soldiers - their
leadership would decide to call the court-martial. He said DUI
is another main change in that in the spring he assured the
committee the National Guard only wants to prosecute strictly
military offenses. After communicating with service members it
was found they want a couple of offenses, not purely military,
included within the Alaska Code of Military Justice, he related.
He explained that the federal UCMJ is comprehensive and covers
things such as: murder, arson, and assault, and the National
Guard believes that civilian law enforcement is better equipped
to handle most of those cases. However, there are relatively
common offenses where the National Guard wants the ability to
court-martial people if, for some reason, the civilian
prosecutors did not move forward and prosecute DUI, and sexual
assault offenses. Within the vast majority of cases it will
remain with the civilian law enforcement and, he noted, the
language was altered to clearly read that civilians have first
crack at a case and only when they decide not to pursue charges,
the National Guard has the ability to potentially court-martial.
2:02:19 PM
CHAIR LEDOUX asked whether he was discussing Sec. 26.05.400,
[page 3, lines 15-23], which read:
Courts martial have primary jurisdiction over
offenses under this chapter. A proper civilian court
has primary jurisdiction of an offense not defined by
this chapter when an act or omission violates both
this chapter and local criminal law, foreign or
domestic. In that case, a court-martial may be
initiated only after a civilian authority has declined
to prosecute or dismissed the charge, provided
jeopardy has not attached. Jurisdiction over
attempted crimes, conspiracy crimes, solicitation, and
accessory crimes must be determined by the underlying
offense. These jurisdictional requirements do not
apply to nonjudicial punishment or administrative
action taken by military authorities.
CHAIR LEDOUX stressed that she does not find it all that clear
and offered alternative language that Ms. Wallace, Legislative
Legal and Research Services, will review. She suggested,
"Court-martials have primary jurisdiction over offenses under
this chapter except that a proper civilian court has primary
jurisdiction of an offense when an act or omission violates both
this chapter and local criminal law, foreign or domestic." She
presumed the language is acceptable to the National Guard.
CAPTAIN DUNBAR said it is acceptable, and it also addresses the
memo dated 9/21/15, from Legislative Legal and Research
Services, wherein this concern is highlighted.
2:03:48 PM
MEGAN WALLACE, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, responded that it does
help remedy the ambiguity with the phrase "not defined by this
chapter" currently in Version I. She noted that removing that
phrase makes the intent clear, that the civilian court has first
opportunity to prosecute those overlapping crimes.
CAPTAIN DUNBAR offered that the National Guard agrees with that
assessment which is a good amendment to the bill. He reiterated
that DUI and sexual assault are the two main offenses ...
2:05:06 PM
REPRESENTATIVE GRUENBERG interjected that DUI is in Sec. 26.05.
.611, beginning on page 42, [beginning on line 26]. He posed a
scenario of someone driving from work to home, having nothing to
do with the National Guard and gets a DUI. He asked whether the
intention is that the National Guard could court-martial that
person, and questioned whether there should be a nexus to the
service.
CAPTAIN DUNBAR answered yes, the National Guard intends
jurisdiction, with the nexus being the person's military
service, which is how other states have done it.
2:06:10 PM
REPRESENTATIVE GRUENBERG questioned, currently, when reservists
do something with no relation to the National Guard or their
service under the reserve component, that they can be court-
martialed for something in Europe or someplace nowhere near the
National Guard and having nothing to do with the National Guard.
CAPTAIN DUNBAR offered that they can't be court-martialed
because currently the National Guard does not court-martial, but
there may be an administrative separation wherein a person may
not be on duty ...
REPRESENTATIVE GRUENBERG interjected that he is not speaking
about the administrative separation from the service, and asked
whether Captain Dunbar said they could be court-martialed.
CAPTAIN DUNBAR answered yes.
REPRESENTATIVE GRUENBERG asked whether there are cases affirming
that jurisdiction.
CAPTAIN DUNBAR offered that the National Guard has never had a
Code of Military Justice to attempt this, yet other states the
nexus is the military service and not whether or not a person
was headed to or from drill.
2:07:33 PM
REPRESENTATIVE GRUENBERG posed a scenario of someone on a trip
across country and receives a DUI, he asked whether the intent
is that it could form the basis of a court-martial and put that
person in prison a year. He opined that it is not permissible
under the due process clause criminally, as a person cannot be
prosecuted in Alaska for a crime with no connection to the State
of Alaska. He advised that a few years ago he, and DOL, looked
into this issue and believes there must be some nexus with the
jurisdiction assuming the case.
CAPTAIN DUNBAR answered that within the first scenario the
discussion was regarding the person not being on orders, and the
second scenario was the person is not in the state at all. He
said the second scenario is a question he does not have a
detailed answer, but the bill contains a long arm provision, as
to whether or not it could reach out to someone committing a
non-military offense in a non-military status in another state,
the reach to them would be tenuous. He offered it is likely
they would be prosecuted by that state, and administratively
punished by the National Guard. In a scenario of the person
being within the State of Alaska and a member of the Alaska
National Guard, it doesn't matter what status they are in, such
as Title 32, state active duty, or in civilian status, the
National Guard has jurisdiction over them. He related the point
being that a person is a soldier or airman 24/7, and are held to
standards. He opined that standards are not particularly hard
to meet because the vast majority of offenses are military
offenses, "of which is almost impossible to commit when you are
not in uniform, that is, it is hard to be a deserter if you are
not on orders."
2:10:09 PM
REPRESENTATIVE GRUENBERG stated this may be the poster child
that does not fall into the category of a DUI, and asked the
jurisdictional statute cite.
CAPTAIN DUNBAR asked whether he was referring to the long arm
statute within the bill, and advised he does not have it off the
top of his head.
REPRESENTATIVE GRUENBERG said he finds this troubling and
requested the authority in the previous scenarios have nothing
to do with the military and are within the jurisdiction of the
State of Alaska.
CAPTAIN DUNBAR agreed to explore the issue, and stressed that
the intent is that their soldiers and airmen will be held to
this standard, regardless of whether they are currently in
uniform, or not.
REPRESENTATIVE GRUENBERG offered that it could be handled under
the Alaska civil jurisdiction statute, and under Jonz v.
Garrett/Airesearch Corp., 490 P.2d 1197 (1971), which has been
interpreted identically to California, "and to the maximum
extent constitutionally permissible."
CHAIR LEDOUX suggested that at the time of the initial signing
of a soldier or airman's contract, let them consent to
jurisdiction.
CAPTAIN DUNBAR responded that it could be written more explicit
in the contract, but the feeling of command is that when someone
swears to uphold the laws of the state and Alaska State
Constitution holds them up to a higher standard, and holding
themselves up to this standard. He agrees that the National
Guard must be very explicit with their soldiers and airmen as
they join the guard that they are subject to this code.
2:13:31 PM
REPRESENTATIVE CHRIS TUCK, Alaska State Legislature, offered
that the Department of Military and Veterans Affairs' authority
serves many purposes, and with regard to CSHB 126 the department
is an employer and within human resources laws may need to be
put in place through regulations. He noted that when it comes
to criminal misconduct a procedure must be determined. He noted
the issues are both an employer and overseer of criminal law
and, for example, the DWI scenario that civilian courts have the
authority and obligation to prosecute, but the National Guard
should have the reserved right to administratively discipline.
He offered an example of a trucking company owner expecting
drivers with clean driving records and the fact a person has a
DWI, the owner has no jurisdiction to criminally charge them but
being an employer, disciplinary action can be taken on that
employee. He said he is not convinced the National Guard should
have jurisdiction or criminally charged unless it is on their
property and a person is pulled over by military police;
however, the guard should reserve for the integrity of
employment and the soldier's contract on agreeing to uphold the
laws, the National Guard should be allowed that authority. He
stated the point of demarcation is the employer responsibility
versus the overseer of criminal activity.
2:15:51 PM
CAPTAIN DUNBAR surmised that what Representative Tuck was
speaking to is covered by nonjudicial punishment regulations.
He explained that nonjudicial punishment is not the traditional
federal regulatory administrative action, as it is faster and
different but looks like administrative action rather than
criminal action. Within the regulation being written there will
be no threat of prison time or separation using a nonjudicial
punishment, and these offenses must be within the Code of
Military Justice in order to use nonjudicial punishment. For
example, he said, if DUI is removed from this code, nonjudicial
punishment will not be available unless the guard attempts to
use other parts of the code such as, conduct unbecoming an
officer.
2:16:56 PM
CHAIR LEDOUX offered that it may be difficult and could create a
more complicated bill, but she is uncomfortable with the idea
"Well, we'll just put this in so that we can use it for a
nonjudicial punishment, but we're really not going to use it for
a criminal punishment when it's standing right there, and it's
looking for all the world to see like a criminal punishment."
She offered that where the intent is to not use something as a
criminal punishment, it must read similar to Sec. 26.05.634(c),
page 52, lines 21-22, which read:
(c) A court-martial may not impose a sentence of
confinement under (a) or (b) of this section.
2:18:28 PM
CAPTAIN DUNBAR offered that the National Guard will be unable to
bring a criminal charge, or court marital, if the civilian
authorities criminally prosecute. He advised that the civilians
collect the evidence, and in this scenario the civilians would
have collected enough evidence that the National Guard would be
comfortable meeting the "beyond a reasonable doubt" standard and
convicting them with a DUI, and the civilians decide not to
prosecute. Nonjudicial punishment has remained in regulation
and it does not create jeopardy such that if the civilians move
forward with the criminal prosecution, the National Guard will
be able to use nonjudicial punishment which does not result in
jail time and possibly the civilian charge will, he said. The
National Guard will then use nonjudicial punishment to reduce
the service member in rank or withhold pay to enforce the law.
He pointed out that a goal is to strengthen Sec. 26.05.400, to
clearly read that civilians always have the first shot, and it
will only be used in cases where civilians have decided not to
prosecute.
2:20:10 PM
REPRESENTATIVE GRUENBERG said that some people play a game in
choosing a general court-martial because it is too expensive to
prosecute, and the charges are dismissed. He said someone could
have a DUI in civilian court and go to jail for a substantial
period of time. He asked whether this bill takes steps in a
plea bargain situation, who says "I will agree to plead guilty
to this but only under this where I may not be in jeopardy of
losing my license, going to jail, having a felony." He
explained there could be a situation with an over-burdened
district attorney, and a smart defendant and defense attorney
who are in the National Guard, and the defendant agrees to plead
guilty but the punishment must be under "this" because they
would be immunized from "these" other problems.
CAPTAIN DUNBAR advised that is why Sec. 26.05.400 should be
strong, in that the prosecutor would have had to take the
affirmative step to not prosecute the person before the National
Guard would do that, and both of those sets of laws are under
the sovereign of the State of Alaska.
REPRESENTATIVE GRUENBERG interjected that the National Guard and
the JAG could be set up by a smart prosecutor and district
attorney who could say "Look, I'm willing to ... it's a hot
potato, I'm willing to wash my hands of it and they would have a
choice of walking scot free - you'd be the only people who could
do it.
CAPTAIN DUNBAR responded, at that point the National Guard might
court-martial and imprison the person for a period of time, as
well as dishonorably discharge them.
REPRESENTATIVE GRUENBERG said he was pointing out the issue and
doesn't know what can be done about it, but these people will
play games.
CAPTAIN DUNBAR referred to the strength of Sec. 26.05.400, and
the National Guard's reliance on the civilian prosecutors to do
their job. He referred to Chair LeDoux's previous comment that
none of these laws will function if there is no good leadership,
and this bill is predicated on the idea that people are willing
to enforce the law.
2:23:53 PM
REPRESENTATIVE CLAMAN stated that three different scenarios
occur with a DUI: a DWI occurs on base and the civilian
authorities prosecute and there is a conviction - under this
bill the National Guard has the option of imposing nonjudicial
punishment; a DUI occurs on base and there is an unsuccessful
civilian prosecution so the National Guard has the option to
court-martial that person because double jeopardy would not bar
the military prosecution; and a presumably on orders person
receives a DUI in South Dakota, with a successful South Dakota
civilian prosecution, the Alaska National Guard is limited to
nonjudicial options.
CAPTAIN DUNBAR offered a fourth scenario wherein a soldier is
not on orders, and within their general life a DUI occurs in
South Dakota ... in a case where they are on orders and in
uniform, the National Guard has the ability to prosecute and
punish. He referred to the first scenario wherein civilians
convict and the National Guard has the option to enforce
nonjudicial punishment is correct, which is likely if the person
goes to civilian jail. He said with the second scenario where
civilians prosecute and do not get a conviction, if jeopardy
attached the National Guard is barred from a court marital with
the option of nonjudicial punishment or administrative
separation.
2:26:38 PM
REPRESENTATIVE CLAMAN asked whether the National Guard is barred
if the civilians declined prosecution.
CAPTAIN DUNBAR answered the National Guard would not be barred,
which is the only time it would have the ability to go forward
and potentially court-martial a person for a DUI.
2:27:00 PM
REPRESENTATIVE KELLER surmised that the trigger on whether this
code applies is the affirmative action of the prosecutor not to
prosecute, and requested guidelines.
CAPTAIN DUNBAR explained that only in the cases where it could
be charged in both civilian court and court-martial, such as DUI
and sexual assault, would that affirmative step by the
prosecutor be necessary. In all of the other strictly military
offenses the National Guard has the ability to move forward
regardless of the civilians, because the civilians have no
jurisdiction. He explained that guidelines have not yet been
established. He opined that a statement from the civilian
prosecutor would be necessary advising they are unwilling to
prosecute, and clearly something taken up by the provost
marshal. Historically, a problem within the National Guard, he
pointed out, there have been situations where someone receives a
DUI or performs inappropriate relationships with a recruit, and
the civilian authorities assume the National Guard is handling
it and vice versa, and subsequently the offenders fall through
the cracks. He related that this code is intended to plug those
holes and works in consort with the provost marshal who
currently coordinates very closely with law enforcement
regarding potentially criminal offenses. He said this issue has
been flagged by Legislative Legal and Research Services.
2:29:55 PM
CHAIR LEDOUX assumed this issue will arise more frequently under
sexual assault cases where it boils down to a "he said, she
said" scenario. Whereas, the typical DUI involves a
breathalyzer or not, and with breathalyzer there is a good
chance civilian authorities will prosecute, she remarked.
CAPTAIN DUNBAR agreed.
2:30:51 PM
REPRESENTATIVE GRUENBERG commented that usually the question of
jeopardy is of double jeopardy under what circumstances a person
can be retried. He opined in criminal law it generally attaches
with regard to the timing of the trial. On the other hand, he
said, the question of whether someone should be prosecuted in
federal court and state court, or state and municipal court is a
matter of sovereignty. He presumed in this case, the two
concepts which are different, are being melded unless using the
term "jeopardy" differently than he was taught in law school.
CAPTAIN DUNBAR explained it is being used in the former sense in
that there is no question that the National Guard has
sovereignty and the state doesn't, "that is to say we are the
same sovereign." He stated Representative Gruenberg is correct
that someone could be prosecuted by the federal government ...
REPRESENTATIVE GRUENBERG interjected that was not his question
and restated "are you a state agency in the prosecution here or
a federal agency."
CHAIR LEDOUX stressed that Captain Dunbar clearly stated that
they will not prosecute for a court-martial where jeopardy has
not attached, so it is not necessary to determine whether the
guard is a federal agency or state agency. Theoretically, she
offered, when assuming the National Guard is a federal agency
there could be two prosecutions.
2:33:05 PM
REPRESENTATIVE TUCK noted the provost marshal's position was
created within the last year. He is aware that civilian
investigations were jeopardized by the passing of information
back and forth between the Anchorage Police Department and by
commanding officers. He stressed he is troubled by the
collusion taking place with the provost marshal and civilian
court investigations due to past practices and the results. He
pointed to the bill he introduced to attempt to separate that
because whether it is in the National Guard or any employer,
when a sexual assault investigation takes place the employer
should not be notified, unless they are part of the
investigation or the employee foregoes that right. He remarked
that in this case the National Guard is the employer of their
soldiers and airmen and for the employer to know about the
investigation of witnesses puts the National Guard in an awkward
situation, which is true in civilian life. When reviewing CSHB
126, the hope is that the provost marshal will answer the
previous problems, but he said he is concerned it doesn't
completely fix the problem due to collusion with the
investigations that take place with the National Guard being the
employer.
CHAIR LEDOUX noted that is really not a subject of this bill,
but perhaps another bill that deals with the structural problems
with the National Guard.
2:35:42 PM
CAPTAIN DUNBAR related it is no secret that sexual assault in
the whole military has struggled with including investigations.
He offered the National Guard has restricted reporting
structures in place to address this issue, including avenues
where potentially assaulted soldiers can access services with a
sexual assault response coordinator, without command being
informed. He conveyed that the language of the bill was taken
from the Louisiana Code [of Military Justice] as their National
Guard is unique in that the Judge Advocate has been prosecuting
cases, and imprisoning people for absent without leave (AWOL)
for not showing up at drill or annual training. He said
Louisiana's provision is based upon the federal sexual assault
provision, Article 121, who took it to their state level and
removed certain portions of the federal law. He advised that he
took the same approach and removed very serious offenses, such
as unclassified felonies in Alaska or Class A felonies - such
as, sexual assault of a child, or a violent rape. Those offense
were removed because the National Guard does not have the
competence or desire to prosecute as the specialized prosecutors
are within the civilian world. Which, he said, goes to
Representative Tuck's comments as to whether this should be kept
internal, and offered that with sexual assault of the child the
National Guard is not comfortable keeping that internally, as it
should be aggressively prosecuted by civilian authorities. He
pointed out that the National Guard is capped at a sentence of
ten years in this bill, which is standard around the country.
2:39:04 PM
REPRESENTATIVE GRUENBERG noted that approximately 20 years ago,
the legislature took major steps to recognize victim's rights
and it was put into the constitution. He asked whether victims
or their representatives were included in the drafting process,
what are the protections, and what participation does the victim
have in the process under CSHB 126.
CAPTAIN DUNBAR advised that victims or representatives of
victims are not on the Commanders Action Group; however, he
spoke during a sexual response coordinator meeting and presented
this code. He said victims were absolutely considered in this
drafting, and are represented within the investigations and
preliminary hearings portion. A most recent change to the
federal UCMJ was the introduction of a "rape shield law,"
wherein a victim cannot be forced to testify in the preliminary
hearing and be re-victimized, and that language is included in
the bill, he explained.
REPRESENTATIVE GRUENBERG described it as an important component
of Alaska criminal law.
2:41:18 PM
CAPTAIN DUNBAR referred to [slide 5] and advised he worked with
the court system to change the soldiers' right to appeal to the
criminal court of appeals has now been changed to the Alaska
Supreme Court by the request of the court system, and the right
to appeal has now been changed to appeal by petition. He said
another change includes the addition of a grand jury provision
for a potential felony charge, and adapted the state model code
to conform to Alaska constitutional law. He reiterated that
changes to the investigation section introduce protections for
victims of sexual assault and generally victims.
2:43:05 PM
REPRESENTATIVE GRUENBERG asked whether this code is bound by the
Alaska State Constitution.
CAPTAIN DUNBAR responded it is absolutely bound by the Alaska
State Constitution. An oath is sworn to uphold the constitution
he was deliberate in conforming this bill to the state
constitution. He acknowledged that in the future portions of
this will be challenged by defense attorneys, and rarely cases
will end up in the United States Supreme Court.
2:44:04 PM
REPRESENTATIVE GRUENBERG opined there is a constitutional right
within some cases such as, K & L Distributors, Inc. v.
Murkowski, 486 P.2d 351, 357 (Alaska 1971), that read "at least
for constitutional issues, you have a constitutional right to
appeal to the Supreme Court." He mentioned that language should
be in the bill in that regard because in Alaska there is a right
of appeal in criminal case to the court of appeals, and civil
cases to the Supreme Court. Otherwise, he remarked, he is
concerned and asked whether this has been vetted through legal
counsel to identify any potential state constitutional issues.
CAPTAIN DUNBAR responded that Legislative Legal and Research
Services has reviewed the bill and offered several memos which
he has attempted to meet and address, although, in some cases
they disagree, and is also working with DOL. With regard to the
right to appeal, he noted that soldiers do have the right to
appeal to a Military Appeals Commission established by this
bill. He remarked they will have at least one right in the same
manner a criminal defendant has a right to go to the court of
appeals, and soldiers have an additional right to petition (not
right to appeal) to the Alaska Supreme Court under this bill.
In moving forward, he commented, if Version I passes it will
establish a functioning system of military justice, although,
small amendments could strengthen the bill without changing the
intent as suggested by Chair LeDoux and Representative
Gruenberg. He offered that he will continue to work with the
committee in passing this bill out of the House of
Representatives, Senate, and to the governor's desk by next
session as the National Guard currently lacks tools to improve
good order and discipline.
2:48:26 PM
CHAIR LEDOUX referred to Sec. 2, page 2, lines 5-7, which read:
(a) Members of the militia ordered into active
service for the state by order of the governor are not
liable civilly [OR CRIMINALLY] for any act done by
them in their official capacity while in this such
service.
CHAIR LEDOUX posed a scenario of a person on National Guard
time, off the base hits someone with a car and a DUI, that they
can't be sued.
CAPTAIN DUNBAR deferred to Representative Gruenberg, and said
this language is from the Murkowski administration.
CHAIR LEDOUX pointed out that the language is before this
committee right now and wants to know what it actually means.
CAPTAIN DUNBAR opined that Legislative Legal and Research
Services included it to conform the old law with the new law by
removing "or criminally" due to the new criminal jurisdiction.
As for the tort law, he deferred to Representative Gruenberg.
2:50:17 PM
REPRESENTATIVE GRUENBERG opined that Governor Murkowski
introduced a "horrible" bill where this provision was included
relating to a terrible situation where a National Guard airplane
crashed and everyone was killed. He offered there is a doctrine
in federal law that the Supreme Court applied to remove the
immunization of the state and these people were allowed to
recover. He said Governor Murkowski's bill again immunized the
state, and there was nothing Representative Gruenberg could do
about it. He said he appreciates the language being in the
bill, and will brief the committee at the appropriate time, as
"this is frankly something that should be repealed - the whole
thing."
CHAIR LEDOUX surmised there may be a difference as to whether
National Guard people can sue other National Guard people, but
the person is a civilian and someone from the National Guard ran
them over, she can't see any reason why a lawsuit could not be
brought forward.
REPRESENTATIVE GRUENBERG opined that the National Guardsmen were
killed, but the language in the bill is confusing.
CHAIR LEDOUX said she would flag the issue.
REPRESENTATIVE GRUENBERG commented he likes the removal of "or
criminally," but that is a small step.
2:52:49 PM
REPRESENTATIVE GRUENBERG referred to page 55, line 5, and stated
he would like the word to remain "Alaskan," and described it as
a typographical error.
2:53:41 PM
CHAIR LEDOUX referred to Sec. 26.05.460(b)(c), page 13, lines
16-30, which read:
(b) If a general court-martial, other than a
general court-martial composed of only a military
judge, is reduced below five members, the trial may
not proceed unless the convening authority assigns new
members sufficient in number to restore the court to
five members. The trial may proceed with the new
members present after the recorded evidence previously
introduced before the members of the court has been
read to the court in the presence of the military
judge, the accused, and counsel for both sides.
(c) If a special court-martial, other than a
special court-martial composed of only a military
judge, is reduced below three members, the trial may
not proceed unless the convening authority details new
members in sufficient number to restore the court to
three members. The trial shall proceed with the new
members present as if no evidence had been introduced
previously at the trial, unless a verbatim record of
the evidence previously introduced before the members
of the court or a written stipulation of the evidence
is read to the court in the presence of the military
judge, the accused, and counsel for both sides.
CHAIR LEDOUX suggested following civilian court and offer
alternates. She pointed out that new members cannot actually
get the "gist" of the trial by reading something into evidence,
as there is no opportunity to watch a person and decide whether
they are being truthful.
CAPTAIN DUNBAR responded that this is one of the many provisions
taken "wholesale" from the state model code, and the guard is
open to alternates. He related that the preference is for a
larger pool of people to be available due to removing people for
cause, and, he agreed, the opportunity to sit in the room and
experience the trial from the beginning would be easier for them
to step in as an alternate.
2:56:11 PM
CHAIR LEDOUX expressed it would not only be easier for the
person but she can't imagine a fair trial without a person
sitting throughout the testimony and trial. Chair LeDoux then
referred to Sec. 26.05.460, page 13, beginning line 31, which
read:
(d) If the military judge of a court-martial
composed of only a military judge is unable to proceed
with a trial because of a challenge or for other good
cause, the senior force judge advocate shall detail a
new military judge. The trial shall proceed as if no
evidence had previously been introduced, unless a
verbatim record of the evidence previously introduced
or a written stipulation of the evidence is read in
court in the presence of the new military judge, the
accused, and counsel for both sides.
CHAIR LEDOUX stress that judges being changed in mid-stream and
then introduce a record as opposed to ... she said she just
cannot see how that can work.
2:56:48 PM
CAPTAIN DUNBAR replied he is not familiar with how it works
within civilian courts, and asked whether there are always two
judges at every trial.
CHAIR LEDOUX answered that she does not know the answer to that
question, but probably it is a mistrial.
REPRESENTATIVE GRUENBERG opined it may be largely discretionary.
CAPTAIN DUNBAR proffered that there will be a challenge to find
enough trained military judges as this is a small population
state. With regard to the Military Appeals Commission, he
reiterated, the idea of alternates there will be a challenge in
recruiting and training enough people to serve in those roles.
He offered doubt that there will be alternate military judges
observing trials.
CHAIR LEDOUX interjected that she was not suggesting alternate
judges, and not having ever practiced criminal law does not know
what happens should the judge have a heart attack during a
trial.
2:58:29 PM
REPRESENTATIVE CLAMAN responded he does not know the answer of a
heart attack, but he has had judges take ill, usually in the
midst of jury deliberations, and another judge handles the jury
deliberations. He opined the ability to bring in another judge
to finish the trial without starting over would depend upon the
timing and circumstances. Whereas, he opined, within a
complicated trial it is less likely it would use a substitute
judge, and the trial would start over. He does not believe
there is a standard rule.
CAPTAIN DUNBAR, in response to Chair LeDoux, responded that the
judges do not also act as jurors. In this case, the jury is
that panel so it is structured differently.
REPRESENTATIVE GRUENBERG opined there is a civil rule covering
substitution of judges.
2:59:36 PM
CHAIR LEDOUX referred to Sec. 26.05.485(e), page 20, lines 1-5,
which read:
(e) If charges or specifications are dismissed as
defective or insufficient for any cause, and the
period prescribed by the applicable statute of
limitations has expired or will expire within 180 days
after the date of dismissal of the charges and
specifications, trial and punishment under new charges
and specifications are not barred by the statute of
limitations if the new charges and specifications
CHAIR LEDOUX pointed to it being a huge loophole, in that if the
case is falling apart, it is dismissed in order to have a whole
new statute of limitations.
CAPTAIN DUNBAR replied that the question is who is doing the
dismissal and if it is command then it could be seen as a
loophole, if instead it is the legal advisor or military judge's
decision then perhaps it is not such a loophole.
3:01:27 PM
REPRESENTATIVE GRUENBERG opined that when within the midst of an
empaneled jury criminal trial, and the case is dismissed then
jeopardy is attached and prosecution is barred by double
jeopardy.
CHAIR LEDOUX reiterated that the committee is flagging issues
now.
3:02:00 PM
CHAIR LEDOUX referred to Sec. 26.05.498, Defense of insanity,
and asked whether there is something in Alaska law that reads
"guilty but insane."
REPRESENTATIVE CLAMAN said technically it is "guilty but
mentally ill." In the olden days, with English common law,
there are two different standards for guilty by reason of
insanity: the accused does not know the meaning and quality of
their conduct; and the accused understands the meaning of the
quality of their conduct but cannot control themselves, he
explained. He continued that "guilty but mentally ill" is when
the accused knows what they are doing but cannot stop
themselves; and guilty by reason of insanity is when the accused
does not know what they are doing. For example, if the accused
believes they are killing a turnip and the turnip is in fact a
person, it is "not guilty by reason of insanity."
CHAIR LEDOUX offered "the McNaughton rules."
REPRESENTATIVE CLAMAN said correct, and there are two phases of
McNaughton.
CHAIR LEDOUX said it is something the committee may want to
consider whether or not it wants to include the language of
"guilty but mentally ill."
3:03:25 PM
REPRESENTATIVE GRUENBERG suggested reading Chase v. State
wherein a secretary instead of having ... a person does not know
the nature and quality of their actions or does not know the
difference between right and wrong - "they made you have to
prove them both, it was a typographical error and the court
upheld it."
3:03:47 PM
CHAIR LEDOUX referred to Sec. 26.05.5009d0, page 23, lines 23-
30, which read:
(d) If, at the end of a period of commitment
under (b) and (c) of this section, it is determined
that the accused's mental condition has not improved
so as to permit the trial to proceed, the charges
shall be dismissed without prejudice, and continued
commitment proceedings shall be governed by the
provisions relating to civil commitment under AS
47.30.700 - 47.30.915. If the accused remains
incompetent for five years after the charges have been
dismissed under this subsection, the accused may not
be charged again for an offense under this chapter
arising out of the facts alleged in the original
charges.
CHAIR LEDOUX asked whether that is the same as in criminal law.
REPRESENTATIVE CLAMAN opined that the general theory is that
with someone lacking capacity "you keep sending them back to the
mental hospital" and check every six-twelve months to determine
whether they've gotten better."
CHAIR LEDOUX suggested the committee may want to consider this
issue.
3:04:50 PM
CHAIR LEDOUX referred to Sec. 26.05.053(b), page 24, lines 23-
30, which read:
(b) The military judge shall rule on all
questions of law and all interlocutory questions
arising during the proceedings. A ruling made by the
military judge on a question of law or an
interlocutory question, other than the factual issue
of mental responsibility of the accused, is final and
constitutes the ruling of the court. However, the
military judge may change the ruling at any time
during the trial. Unless the ruling is final, if a
member objects to a ruling, the court shall be cleared
and closed, and the question shall be decided by a
voice vote and provided in AS 26.05.505, beginning
with the junior in rank.
CHAIR LEDOUX requested clarification as to whether the military
judge can make a ruling, and then the panel can overrule the
ruling of the judge.
CAPTAIN DUNBAR responded this issue should be flagged and
discussed at a later date.
3:06:10 PM
CHAIR LEDOUX referred to Sec. 26.05.513, page 26, lines 23-26,
which read:
(a) ... A sentence of imprisonment imposed under
this chapter may not exceed 10 years. An offense
under this chapter for which a sentence of confinement
for a term of more than one year is authorized as a
felony offense. Except for convictions by a summary
court-martial and except as otherwise specifically
provided in the code of military justice, all other
offense under this chapter are misdemeanors. A
conviction by a summary court-martial is a violation.
CHAIR LEDOUX stated it is not clear in this bill, where they
have authorized confinement for more than one year, which would
require reviewing the Code of Military Conduct.
CHAIR LEDOUX restated her question and said she was trying to
determine the definition of misdemeanors because "an offense
under this chapter ... we're looking at 25.05.513, a sentence of
imprisonment imposed under this chapter may not exceed ten
years. An offense under this chapter for which a sentence of
confinement for a term of more than one year is authorized as a
felony," but there is nothing in this bill describing the length
of confinement. She expressed concern that nothing is stated
within this bill, and advised the committee that before
something is passed out, a felony and a misdemeanor must be
defined.
3:07:50 PM
CAPTAIN DUNBAR explained that the bill caps the number of years
at 10 years as the maximum authorized, and due to subsection
(b), which may be amended, there is a charge that will be capped
either at 10 years or at the federal cap. He stated that within
the bill's system and the federal and state systems there are no
minimum sentences, only maximum sentences. He offered that, in
some cases, whether it is a misdemeanor or felony depends upon
the nature of the offense. For example, he pointed out, with
assault of a superior officer, or disrespect to a superior
officer, the charges are not broken out in Alaska law such as,
Class C or Class B, and different charges. Instead, he
remarked, there is the overall charge, and if command charges up
to the federal maximum sentence the charge is equivalent to a
felony charge.
CHAIR LEDOUX interjected that it specifically read specifically:
"An offense under this chapter for which a sentence of
confinement for a term of more than one year is authorized is a
felony offense." She opined that it doesn't matter what
sentence someone is given, it's how much they are authorized.
3:09:43 PM
CAPTAIN DUNBAR noted that the confusion is with the word
"authorized," as the intent is not what is authorized by the
statute, it is what is authorized to the panel by the commander
making the charge. He reiterated it is not what a person is
sentenced to, the charge will determine whether it is a
misdemeanor or felony. For example, he said, "we're going to
present you with this charge, and we're saying we're going to
try to get a dishonorable discharge and two years in prison."
CHAIR LEDOUX surmised that when someone is charged, they are
told how much time that the National Guard is trying to put them
in prison, instead of charging them with the actual crime, and
after their conviction imposing a sentence.
CAPTAIN DUNBAR advised he believes that is the case, but will
get back to the committee.
CHAIR LEDOUX expressed that she is uncomfortable with the idea
of not setting forth sentences.
CAPTAIN DUNBAR responded that no other state lays out sentences
for every offense in their code, and he will return with a
detailed answer.
CHAIR LEDOUX replied that Alaskans don't care how they do it on
the outside, and wants to determine whether it makes sense to do
it that way, or to address each specific crime with a sentence.
3:11:30 PM
REPRESENTATIVE CLAMAN explained that within the context of
Alaska criminal law, the maximum sentence is what defines
something as a felony or misdemeanor, and it is not a function.
In fact, in dealing with the Sentencing Commission many people
are charged with felonies that might have a five-ten year
maximum sentence or an unlimited sentence. He stated that the
question of what a person may be sentenced to may often be,
especially in the lower grade felonies, much less than a year
and are still charged with a felony based on the maximum. He
said this provision is basically saying anything in which ...
that the maximum sentence is 10 years. Those are all felonies
except if it specifically said the maximum sentence is a year.
CHAIR LEDOUX corrected Representative Claman in that it is less
than a year.
REPRESENTATIVE CLAMAN agreed and said "or a year, or less than a
year."
3:12:41 PM
CHAIR LEDOUX referred to Sec. 26.05.588, page 38, lines 5-10,
which read:
A commissioned officer of the militia who uses
contemptuous words against the President or Vice-
President of the United States, the United States
Congress, the United States Secretary of Defense, the
United States Secretary of Homeland Security, the
secretary of a military department of the United
States, or the governor or legislature of this state
shall be punished as a court-martial may direct.
CHAIR LEDOUX pointed out that the list of people includes the
governor of the state and the legislature, and noted that the
bill defines a person as being a soldier 24/7, as well as
volunteers making up the state defense force. She posed a
scenario of someone writing on their Facebook page that the
legislature is a bunch of yahoos for spending $91,000 in
attending a conference, and asked whether that will subject the
person to a court-martial.
CAPTAIN DUNBAR replied there is precedence, arising often on the
federal side such as, during President Bill Clinton, President
George Bush, and President Barack Obama's administrations.
There are standards, not just that they were yahoos in attending
a conference as, he opined, it would not hit the threshold for
contemptuous, which is more severe. He noted that the language
refers to commissioned officers, which does not apply to
enlisted people in the force.
CHAIR LEDOUX interjected that it would apply to the officer
volunteers.
3:14:35 PM
CAPTAIN DUNBAR agreed, and offered another precedence in that if
contemptuous language is used in a private conversation, there
would be evidentiary concerns, and the language typically would
not qualify. He said it refers to very strong comments in a
public forum.
CHAIR LEDOUX argued that is Facebook.
CAPTAIN DUNBAR offered that Facebook is probably where these
cases will arise, and where they been arising in other states on
the federal level. He related that a commissioned officer is
free to disagree passionately with the governor or legislature
on certain issues, but cannot use contemptuous words. He
stressed that the officer is held to the standard of being an
officer and a gentleman.
CHAIR LEDOUX asked the definition of contemptuous words.
CAPTAIN DUNBAR remarked that he does not have the standard of
contemptuous words, and doubts that "the legislature is a bunch
of yahoos" is included.
3:15:59 PM
CHAIR LEDOUX referred to Sec. 26.05.599, page 40, lines 8-10,
which read:
A member of the militia is guilty of misbehavior
before the enemy if the member is before or in the
presence of the enemy, or is facing a threat as
described in AS 26.05.070 and
CHAIR LEDOUX asked whether these people have already been
federalized.
CAPTAIN DUNBAR answered yes, in most cases. He described long
discussions within the Commanders Action Group about this, and
other similar provisions, dealing with situations wherein the
vast majority of cases a person is fully federalized. He
explained the person is under Title 10, and subject to a federal
UCMJ, not the ACMJ. He related that Sgt. Bowe Bergdahl is
charged with the rare charge of misbehavior before the enemy.
He said the Commanders Action Group intentionally changed these
provisions so they would be more applicable to the real world
whereby "we" would not necessarily be fully federalized. He
pointed to line 10, "or is facing a threat as described in AS
26.05.070," refers to already existing state law regarding
natural disasters, riots, and gang violence. In that regard,
the Commanders Action Group attempted to slightly expand this
provision and others, so it would be applicable in circumstances
where "we" are not fully federalized.
3:18:23 PM
CHAIR LEDOUX referred to Sec. 26.05.609, page 42, lines 17-21,
which read:
A member of the militia who, while on active
duty, wilfully or recklessly wastes, spoils, or
otherwise wilfully and wrongly destroys or damages any
property other than military property of the United
States or of any state, shall be punished as a court-
martial may direct.
CHAIR LEDOUX referred to "while on active duty" and asked
whether that means they are federalized.
CAPTAIN DUNBAR responded that was language taken from the state
model code which means it cannot refer to being federalized, it
is state active duty, and Title 32.
3:18:53 PM
REPRESENTATIVE GRUENBERG referred to Sec. 26.05.610, page 42,
lines 22-25, which read:
A member of the militia who wilfully, wrongfully,
or with gross negligence hazards or suffers to be
hazarded a vessel of the armed forces of the United
States or the militia of the state shall suffer the
punishment as a court-martial may direct.
REPRESENTATIVE GRUENBERG suggested amending the language to
include vehicle or airplane, as there is not a naval National
Guard.
CAPTAIN DUNBAR offered that there is a naval militia authorized
by statute, but it is not currently active.
REPRESENTATIVE GRUENBERG related that it is more likely a
service member would hazard a jeep as opposed to a vessel.
3:19:35 PM
CHAIR LEDOUX referred to Sec. 26.05.614, page 44, lines 15-17,
which read:
(b) In this section, "controlled substance" means
(1) opium, heroin, cocaine, amphetamine,
lysergic acid diethylamide, methamphetamine,
phencyclidine, barbituric acid, and marijuana;
CHAIR LEDOUX pointed to a provision within Alaska Statute and
said that, "Nothwithstanding any other section of the law that
possession of less than one ounce of marijuana is not a crime."
She assumed from the employer's viewpoint it can dictate whether
or not people partake of drugs, which would be the National
Guard's nonjudicial punishment or administrative separation.
She questioned how someone can be court-martialed and subject to
imprisonment for doing something which is now legal under state
law.
REPRESENTATIVE LYNN offered that state law is one thing, and
National Guard regulation is another.
CHAIR LEDOUX argued that the National Guard is a quasi-state,
quasi-federal entity, and the bill is under 24/7.
REPRESENTATIVE GRUENBERG posed a scenario of a person smoking
marijuana in Colorado, and asked whether the National Guard can
court-martial.
3:21:57 PM
CAPTAIN DUNBAR referenced Representative Gruenberg's earlier
point regarding whether the Alaska National Guard can reach out
to other states when not on orders. He explained that command
believes certain behaviors are incompatible with the National
Guard service, although it is a right given to other Alaskans.
A person cannot use marijuana and serve in the National Guard,
which is more an administrative issue, than a court-martial
issue.
3:22:33 PM
CHAIR LEDOUX referred to Sec. 26.05.617, page 45, lines 4-6,
which read:
A member of the militia who uses provoking or
reproachable words or gestures toward another member
of the militia shall be punished as a court-martial
may direct.
CHAIR LEDOUX asked the definition of "provoking or reproachable
words or gestures toward another member of the militia," and
noted this is not just the officer corps.
CAPTAIN DUNBAR said he will provide the committee with the
definition, and noted it is a standard military offense within
the state and federal model codes.
3:23:49 PM
CHAIR LEDOUX referred to Sec. 26.05.622(c), page 49, lines 5-7,
which read:
(c) A member of the militia who intentionally
exposes, in an indecent manner, the genitalia, anus,
buttocks, or female areola or nipple is guilty of
indecent exposure and shall be punished as a court-
marshal may direct.
CHAIR LEDOUX referred to the nude beaches in Hawaii, and asked
whether a member of the militia is subject to a court-martial
when attending a nude beach in Hawaii.
CAPTAIN DUNBAR advised he does not have a good answer, but
opined it would go to the term "indecent manner," although, when
attending a nude beach the person is, in theory, not being
indecent. He expressed his confidence that a good Judge
Advocate could prevent that soldier from being successfully
court-martialed.
REPRESENTATIVE LYNN asked whether it is indecent exposure when
in the shower.
3:25:25 PM
CHAIR LEDOUX referred to Sec. 26.05.633, page 52, lines 9-11,
which read:
A commissioned officer, cadet, candidate, or
midshipman of the militia who is convicted of conduct
unbecoming an officer shall be punished as a court-
martial may direct.
CHAIR LEDOUX expressed that conduct unbecoming an officer
language is too nebulous to allow a prison sentence. She asked,
while understanding certain things more unacceptable in the
military, whether it includes adultery or fooling around. She
expressed she does not have a problem with administrative
separation, or nonjudicial punishment, but when actually putting
someone in jail specifics must be set out as to what the person
cannot do.
3:26:38 PM
CHAIR LEDOUX then referred to Sec. 26.05.634(c), page 52, lines
21-22, which read:
(c) A court-martial may not impose a sentence of
confinement under (a) or (b) of this section.
CHAIR LEDOUX pointed out that Section 26.05.634(c) should be
applicable to Sec. 26.05.633, also.
CAPTAIN DUNBAR answered that he will discuss that issue with
command, and in the example "adultery - that kind of thing," it
is true it should not result in a period of confinement as those
cases would generally be prosecuted under the general article,
where the protection is include. He pointed to the recent
scandal and behavior with the high school students, and if
"they" had been officers is the type of behavior that may be
prosecuted. In that case, he said, under civilian law sexual
assault was not committed if "they" were have consensual sex
with a high school student, and they were of age. He explained
"they" violated prohibition on recruiters having sex with
recruits, and engaging in behavior command would consider beyond
the pale ...
CHAIR LEDOUX interjected that there are not things that should
be covered, rather that it must be set out before putting
someone in jail. In the event the National Guard wants to
include adultery, having sex with high school students, or
whatever, put it into the statute. Possibly farther down the
road the National Guard may realize an offense that should be
covered by a statute, and amend that statute, she related.
3:29:04 PM
REPRESENTATIVE GRUENBERG asked whether the National Guard has
ever had warrant officers.
CAPTAIN DUNBAR responded yes, on the Army National Guard side.
REPRESENTATIVE GRUENBERG suggested including warrant officers
within the definition in Sec. 26.05.633.
CAPTAIN DUNBAR opined that the issue was discussed within the
Commanders Action Group, but does not recall the exact thought
process other than it was not inserted.
CHAIR LEDOUX opened public testimony and advised there will be
another hearing prior to the beginning of the second session.
3:31:33 PM
PETER SAVAGE, Lieutenant Colonel, Alaska National Guard, (Army,
ret.), described the bill as a good boilerplate, and pointed to
the need for a soldier or officer code of conduct. He said his
suggestion relates across a broad gamut of issues of the past,
such as: how boards are run; nepotism problems continuing to
today; and the appeal process of issues within the structure of
the National Guard, which should be clarified. There have been
nepotism problems in the past and, he stated, nepotism continues
to occur with the senior leadership, and needs to be nipped.
Issues relating to the National Guard have been brought forward
by other people, but in specifically addressing the code of
conduct of senior officials is paramount in how they conduct
themselves in the future, he stressed
REPRESENTATIVE GRUENBERG asked whether the ombudsman has any
jurisdiction in this area.
MR. SAVAGE responded "Not to my knowledge."
REPRESENTATIVE GRUENBERG suggested reviewing that issue.
3:33:54 PM
CHAIR LEDOUX asked the issues Mr. Savage would address in a code
of conduct.
MR. SAVAGE answered there are a number of procedural issues and
actual events that require review in terms of the force
structure itself. He offered the following issues: nepotism, or
his term "dual spousal affiliation," when senior leaders have a
family member within the organization that can influence or
"cherry pick" senior officers to do their bidding; and issues
with promotion boards and how they are conducted in terms of
officer evaluations and the issue of evaluation not being
performed on a timely basis when they are required by federal
statute "just prior to boards, federal boards, and promotion
boards, and selection and retention boards." He related that
these issues are critical in not performing an officer's
evaluation as "... it allows that a federal board to come in and
see that there is no evaluation done and that automatically is a
flag for anybody getting promoted, or seeking a position of
higher authority, or it can even affect an officer's ability to
go to school." He stressed the importance of officer
evaluations being completed on time and correctly, as sometimes
they are not. He explained that sometimes the board officer
evaluation ... "the senior raters and the raters ... there used
to be a published ... published criteria required that these
rating chains were above board, sometimes they are not, but they
need to be."
3:36:01 PM
MR. SAVAGE continued that other issues relate to turnover
especially among senior leadership in that consideration should
be taken in limiting the amount of time senior leaders stay in
position, sometimes they come in as "06" and have 10 years left.
We cannot allow some of these people to have 10 years in an
organization that may not be competent, or may not allow
subordinates to come up through the chain of command because
they do not want to leave. He offered concern with regard to
senior leaders (06 and above) need to leave after three years of
service of being in the full force. Issues with E9s, which are
sergeant majors need to leave after three years at the senior
level and allow others to advance in the organization, he said.
Other issues must be addressed in a long term code of conduct
and policy issues on how the guard is run. He said, "I don't
know if people knew the total issue with the appointment of the
new tag, and the connection of the full time individual that was
also a member of the guard, at the time that was done it was
also a married individual ... you know ... to the current tag."
He described these as long term systemic problems to be
addressed in a code of conduct, basically it is a leadership
issue that needs to be addressed in writing.
3:38:23 PM
REPRESENTATIVE KELLER asked whether the National Guard has a
code of conduct in other states.
MR. SAVAGE answered that the National Guard Bureau generally
stays out of issues and hands out money, rather than dealing
with legal issues it leaves it to the Alaska legislature and
governor. He pointed out that the governor is commander-in-
chief within a peacetime environment until the state is
federalized, and it becomes the President of the United States.
3:39:05 PM
CHAIR LEDOUX reminded the committee she put this bill forth as
chair of the House Judiciary Standing Committee and believes it
is a good bill.
MR. SAVAGE stated it is a boilerplate and a good place to start.
CHAIR LEDOUX continued that she does not want this bill to pass
with everyone believing that all of the problems of the National
Guard are solved. She advised her intention is to speak further
with Mr. Savage, and anyone willing to speak with her about the
issues in an attempt to create a bill addressing the systemic
problem seen previously in the National Guard.
3:40:55 PM
REPRESENTATIVE GRUENBERG referred to Sec. 26.05.634(a), page 52,
lines 12-16, which read:
(a) Although not specifically mentioned in this
chapter, all disorders and acts that prejudice good
order and discipline in the militia of the state and
all conduct of a nature to bring discredit on the
militia of the state shall be considered by a court-
martial and punished at the discretion of a military
court.
REPRESENTATIVE GRUENBERG opined the phrases are "phrases of
art."
CAPTAIN DUNBAR agreed and said they are well defined legal terms
with a long history in the military.
REPRESENTATIVE GRUENBERG offered that it, and Sec. 26.05.633,
can lead to discretion with the charging authority. He pointed
out that many members of the committee are lawyers who do often
see "loose" language in the law, as it is unconstitutional,
vague and standard-less, and would be struck down as a violation
of substantive due process.
CAPTAIN DUNBAR pushed back on the notion that it is
constitutionally or unconstitutionally vague for the reasons of
Representative Gruenberg's comments. He added that if the
language was in another criminal statute it probably would be,
except it is in the military statute with a specific military
meaning. He referred to the provision added by Chair LeDoux
wherein there is no sentence of confinement, also helps to
alleviate those concerns. He explained the general article is
within the state model code, and every other state's version of
its state codes.
REPRESENTATIVE GRUENBERG argued that this deals with punishment
as a discretion of a military court and court-martial,
therefore, it is a court-martial unless there is language
stating a person cannot be confined.
CAPTAIN DUNBAR offered that (c) was added by Chair LeDoux.
REPRESENTATIVE GRUENBERG related that the legislature is dealing
with this bill which is different from dealing with the court,
and lawyers generally judge standards by courts. He said in
this case the legislature's standard is not necessarily similar
to the court's standard.
3:45:00 PM
CHAIR LEDOUX referred to Sec. 26.05.900, page 53, lines 20-21,
which read:
(9) "day" means calendar day and is not
synonymous with the term "unit training assembly";
CHAIR LEDOUX questioned whether this may be a typographical
error.
CAPTAIN DUNBAR explained it is not a typographical error, in
that a unit training assembly is how the National Guard measures
"days for pay" in the military. For example, he said, a typical
drill weekend is two calendar days, but is actually typically
four unit training assemblies.
CHAIR LEDOUX announced the bill will be held in committee, and
noted the committee is looking forward to putting together
"something else" dealing with the other problems within the
National Guard.
3:47:01 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 126-CS Version P.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version P-Sectional Analysis.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version P-Memo.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version P-Presentation.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version P-Savage Comments.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version I.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version N-Memo.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version N.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version I-Memo.pdf |
HJUD 9/22/2015 1:30:00 PM |
HB 126 |