Legislature(2015 - 2016)ANCH LIO AUDITORIUM
11/17/2015 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
1:56:01 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 committee substitute (CS) for HB 126,
Version 29-LS0473\I, Wallace, 9/18/15.]
1:56:15 PM
REPRESENTATIVE CLAMAN moved to adopt the committee substitute
(CS) for HB 126, Version 29-LS0473\G, Wallace, 11/41/5, as the
working document. There being no objection, Version G was
before the committee.
CHAIR LEDOUX advised that contained within the committee packets
are: CSHB 126, Version G, that includes changes discussed during
the previous meeting regarding Version I; Version G Memorandum,
[dated 11/4/15, from Megan A. Wallace]; Captain Dunbar's
presentation; and a Maximum Punishments Matrix of this bill.
1:57:41 PM
FORREST DUNBAR, Captain/Assistant Judge Advocate, Alaska
National Guard, noted that subsequent to amendments made to CSHB
12, the Alaska National Guard (AKNG) is "pretty happy with it."
He turned to slide 1 of his power point presentation and advised
that after the previous meeting he briefed the bill to Governor
Bill Walker who was pleased with the work, and noted that the
bill continues to be a high priority for the adjutant general.
He advised a "Red Team" was then formed comprised of soldiers,
airmen, officers and enlisted guard members, and explained that
they review the nonjudicial punishment regulations with "war
game" scenarios to ascertain how the regulations work in
practice. He said the Red Team meets weekly and their scenarios
have included: drug use, inappropriate relationships, AWOL, and
sexual assault.
CAPTAIN DUNBAR turned to slide 2, referring to the Maximum
Punishments Matrix, and said the most significant change in
Version G is the maximum offense attached to every punitive
article. He explained that the matrix indicates the potential
maximum punishment of the Alaska Code of Military Justice (ACMJ)
versus the potential maximum punishment of the Federal Uniform
Code of Military Justice (UCMJ). He noted that in almost every
case, the potential penalty under the Federal UCMJ is
significantly more severe than the ACMJ. A policy choice was
made to not pursue the more severe cases or penalties;
therefore, many offenses are essentially misdemeanors with a
maximum of one year imprisonment, and they do not impanel a
grand jury, he explained. The reality is, he noted, that the
most severe misbehaviors lead to civilian charges, or in the
cases of a death penalty on the federal side is usually in a
time of war and a soldier is in Title 10 status.
CHAIR LEDOUX pointed out that throughout CSHB 126, many of the
misdemeanor charges result in the maximum penalty of a
dishonorable discharge.
CAPTAIN DUNBAR explained that there are only one or two
provisions where the Federal UCJM calls for a bad conduct
discharge and the ACMJ calls for a dishonorable discharge. He
reiterated that there are five levels of discharge with a
dishonorable being the most severe. He pointed out that the
bill reads that a service member does not have to be given a
dishonorable as it reads "up to a dishonorable," in that the
real piece of the charge is the ability to determine a
dishonorable discharge. He stressed that "never in the history
of this guard has a dishonorable discharge been given out," and
the portion of the maximum punishment more likely to be used is
the discharge provision.
CHAIR LEDOUX questioned whether under current law, during a
National Guard proceeding a person can be dishonorably
discharged.
CAPTAIN DUNBAR responded no, currently it is impossible for the
National Guard to give a dishonorable discharge or a "bad
conduct discharge," and the most severe form of discharge is an
"other than honorable discharge." That is most severe type of
discharge available under an administrative hearing which, he
described, is not a slap on the wrist as the person can be
discharged from the military, lose retirement, and busted down
to E-1.
2:05:37 PM
REPRESENTATIVE GRUENBERG referred to the interplay between
proceeding under this new code of conduct and the civilian
sphere, and asked whether Captain Dunbar had contemplated the
two sovereigns working together. Obviously, he explained, the
defense has many discovery rights of the prosecution, and not so
much vice versa. However, he commented, if this proceeding
could be done and then terminated there would be great discovery
to go forward in the civilian sphere
CAPTAIN DUNBAR replied that there have been discussions about
how prosecutors in the adjutant general's office and civilian
side would share information. The Office of the Provost Marshal
has been established to coordinate between civilian law
enforcement and the guard. There is only one sovereign in this
case because it is all under state law and, he reiterated from
prior meetings that there is a "double jeopardy" issue if
jeopardy attaches on either side under these laws, the other
side is precluded and that is not the case if there is a federal
charge. He opined that for charges cognizable in civilian
courts, the guard expects the vast majority of investigation
will be performed by civilians as civilian prosecutors have the
ability to investigate better than the National Guard. He
pointed to Sec. 26.05.400 "Statement of policy on military
justice," [page 3, lines 16-23], which read:
Courts-martial have primary jurisdiction over offenses
under this chapter, except when an act of 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.
CAPTAIN DUNBAR said it clearly states that civilian prosecutors
have the right of first refusal in the prosecution of a case.
2:08:40 PM
CHAIR LEDOUX offered a scenario of a sexual assault that would
go before a grand jury, and that all exculpatory evidence would
have to be produced. The civilian court refused to prosecute
presumably because there is evidence in the file showing they do
not have much of a chance of winning and, she asked how that
would work in front of the grand jury.
CAPTAIN DUNBAR advised that the National Guard's standard of
proof in courts-martial is "beyond a reasonable doubt" and if it
was sexual assault and the civilian prosecutors felt they didn't
have the evidence to proceed, it is very unlikely the AKNG would
proceed, although, it may proceed with a different charge.
Primarily, he explained, cases where the AKNG envisions going
forward are primarily cases where the civilians primarily
decided not to pursue for reasons of resource constraints. He
admitted that may not be a realistic scenario given how
aggressively Alaska pursues sexual assaults, and the National
Guard does not have the same expertise in prosecuting these
cases.
2:10:59 PM
CHAIR LEDOUX surmised that this allows the AKNG to proceed where
it concluded independently that the civilian prosecutor is just
wrong.
CAPTAIN DUNBAR replied not necessarily wrong, but the civilian
prosecution decided, for whatever reason, it will not proceed.
He explained that having the provision in the punitive article
means the military can go forward with a nonjudicial punishment
even as the civilians move forward with their prosecution
without concern of double jeopardy. He conveyed that "some
things that we don't envision actually court martialing people
on, we might still want in the code so we can use the
nonjudicial punishment provisions."
2:11:55 PM
REPRESENTATIVE GRUENBERG asked whether the AKNG had discussed
any other reasons that it may decide to pursue a case under the
Alaska Code of Military Justice (ACMJ) rather than through the
state in that the military may have easier access to certain
witnesses, federal agencies, or laboratories.
CAPTAIN DUNBAR offered that the discussions concluded that the
civilian authorities have better access to resources in that
inactive and active witnesses can be compelled to attend. The
federal military has access to these resources and the ability
to fly around the globe, and it is not clear that the Alaska
National Guard (AKNG) has that access. He said in most cases
where the military contemplates pursuing a charge, it is either
because it is a military charge, or the civilian authorities
have affirmatively stated they are not pursuing. In most cases,
he said, if there is something cognizable in both realms, the
military wants civilians to prosecute the cases.
REPRESENTATIVE GRUENBERG offered a situation with command
pressure and for a valid reason militarily, a desire to pursue
the case. He suggested reviewing this from all corners and
consider things that have not been considered because they are
two different worlds.
CAPTAIN DUNBAR answered that it is possible, but not likely, the
AKNG will want to take cases and would have to ask the civilian
prosecutors not to pursue. He offered that the guard envisions
that crimes that can be prosecuted in civilian court will be
prosecuted in civilian court. Due to the provision, it would be
on the AKNG to work closely with civilian prosecutors to
ascertain affirmatively that they are not pursuing the case and
the civilian prosecutors would like the military to do so.
2:16:04 PM
REPRESENTATIVE GRUENBERG said "You're in a situation where,
because of personalities involved, it could work either way that
you've got somebody on the civilian side who is a 'runner-
gunner' and wants the case or vice versa." He described the
Alaska National Guard (AKNG) as fortunate in that these are two
departments in the same state system and the governor would be
the ultimate determiner.
CAPTAIN DUNBAR responded yes, ultimately all authority for both
the Department of Law and the AKNG goes back up to the governor
as the commander-in-chief. He stressed that within the military
context, command pressure is forbidden by its laws and
regulations in that a lower level commander cannot be pressured
to prosecute someone. He explained the procedure would be to
"reserve the case to yourself, you can draw that case up to
yourself and then you can prosecute it yourself. So, the
adjutant general could pursue a case that a lower level
commander didn't want to, but you cannot order a lower level
commander to prosecute someone."
REPRESENTATIVE GRUENBERG suggested that in pursing CSHB 126
through the legislature there may be people requesting
clarification on that issue as legislators want to be certain
that everyone knows how potential disputes will be resolved.
2:17:49 PM
CAPTAIN DUNBAR continued his presentation and referred to the
9/22/15 discussion regarding the scenario of a service member
being in another state, not on orders, and misbehaves. He
advised it was never the intention of the AKNG to pursue people,
not on orders, misbehaving in another state. Currently, he
explained, the statute reads that if a member is in the State of
Alaska regardless of being on active duty orders or not, the
member is subject to the Alaska National Guard's jurisdiction.
Also, the Alaska National Guard (AKNG) has jurisdiction over a
member on active duty orders traveling outside the state.
Presumably, he said, the misbehaving member not on active duty
orders would be under the criminal laws of that state.
REPRESENTATIVE GRUENBERG offered a scenario of a member being on
temporary duty to the South Dakota National Guard and beats up
another person, would there technically be jurisdiction under
Version G, in Alaska or South Dakota.
CAPTAIN DUNBAR responded that assuming it was something the
Alaska National Guard (AKNG) could pursue it would have
jurisdiction under this law using the long arm provision and try
to punish them militarily. He said, "Now, if South Dakota was
pursuing criminal charges, I think we would want to coordinate
with the South Dakota authorities ..."
2:20:14 PM
REPRESENTATIVE GRUENBERG interjected, and said, suppose the
civilian authorities were not involved, and it was the Alaska
and South Dakota National Guard, and the member went AWOL. He
asked how the code resolves that issue.
CAPTAIN DUNBAR opined that it would be Alaska's jurisdiction
because the person would be absent without leave from the Alaska
National Guard. He offered that he did not yet have an answer
regarding a member disrespecting a superior officer in the South
Dakota National Guard.
REPRESENTATIVE GRUENBERG said he was not requesting an answer,
but that these theoretical questions should be resolved in the
initial draft so there are not two conflicting state codes.
CHAIR LEDOUX interjected that she is not sure about going down
this trail and described it as a conflict of law. She offered
that it may very well be that both National Guards have
jurisdiction and wherever the person is tried first will have to
decide whose code to apply. She explained in civil law there
may be cases in which both California and Alaska have
jurisdiction and the answer is not in the statute as to which
court has jurisdiction, the court decides.
REPRESENTATIVE GRUENBERG remarked that the legislature should
try to resolve issues during the drafting of the law.
2:22:41 PM
CAPTAIN DUNBAR referred to slide 3, and advised Version G amends
title relating to jurisdiction of the Supreme Court over
petitions from the Military Appeals Commission, and a three
strike system was created for the DUI provision to more closely
mirror civilian law, but an amendment is required regarding
whether a person is on orders or not on orders. He said it is
the hope of the AKNG to remove most of those distinctions of
whether a person is, or is not, on orders is largely immaterial.
The three strike system is a person having a misdemeanor,
misdemeanor, felony, where a person is opened up to one-year of
potential jail time, one-year of confinement, and then five-
years for a third offense. He opined that someone getting to
their third DUI without being discharged from the military is
unlikely with the current guard. He explained, "We also create
a system of alternates ..."
REPRESENTATIVE GRUENBERG questioned whether he envisions a
circumstance where someone with a DUI is prosecuted under the
military code.
CAPTAIN DUNBAR advised that it was included with the possibility
that the civilians would not pursue the case, yet the military
did. He offered his awareness that the State of Alaska
aggressively pursues DUIs, and opined it is relatively unlikely.
REPRESENTATIVE GRUENBERG offered that if the military prosecutes
for whatever crime, under this provision, then presumably it
would be remanded to a federal agency.
2:25:18 PM
CAPTAIN DUNBAR answered, that is not the case in that the bill
is written the Alaska Department of Corrections will take
custody of the individual if they receive confinement.
REPRESENTATIVE GRUENBERG asked whether the person would have any
greater right to treatment. He offered that if under federal
law they would have a better right to mental health treatment or
whatever, people might aggressively want them to go through the
system.
CAPTAIN DUNBAR advised they have not performed a comparison for
the different treatments available, but the military has an
extensive substance abuse program and it attempts to treat their
soldiers and airmen. He said whether soldiers or airmen would
lose rights to that under ... if they were charged, he couldn't
answer, but opined they would be charged, go through the
American Substance Abuse Professionals (ASAP) program, go
through a court martial, and be sentenced.
CHAIR LEDOUX interjected that should this type of questioning
continue the committee will not get through the bill.
2:26:50 PM
CAPTAIN DUNBAR referred to slide 4, and reiterated that the
ultimate goal is to promote good order and discipline in the
force, be combat ready and, he noted, that the National Guard
has lacked this vital tool in promoting good order and
discipline. He explained that people currently in the Alaska
National Guard (AKNG) expect to be deployed at some point in
their service as it is a reserve component of the United State
military. He turned to slide 5 and said the bill will receive
work during the interim, although, it is at a path now that
would create a functioning system of military justice in Alaska.
He reiterated that the Red Team's preliminary results indicate
CSHB 126 is a functioning bill, the punitive articles cover most
of the misbehavior expected, and nonjudicial punishment
regulations appear to work. Interestingly, he said, when the
commanders run through the scenarios they often don't use this
tool and continue to use the administrative tools they have
always used. The indication is that the administrative tools
will continue to be the primary mode of discipline in many
cases, such as letters of reprimand, reduction boards, and
separation boards. It also indicated that the AKNG has a long
way to go to educate its own force and commanders on how to use
these tools, together with demonstrating that these tools in
some cases are more effective and can be used in a more timely
fashion than the existing administrative tools. He advised that
over the next few months, the AKNG will put together plans to
help roll this out to the force.
CAPTAIN DUNBAR remarked that the people working on this bill are
hearing from people in the force that they want these tools now.
He said they are hopeful the bill will pass in the spring, and
shortly thereafter put the regulation forward to Governor
Walker. He expects that the earliest the tools can be used
after a period of education, and putting out materials to the
force on their use, is late summer.
2:31:29 PM
REPRESENTATIVE CLAMAN referred to a memorandum drafted by
Captain Dunbar regarding "attempts" and how attempts were
treated. He offered that under Alaska law, attempt is generally
scaled back one degree but was not the case in the military
code, and asked to be directed to the correct section.
CAPTAIN DUNBAR responded, Sec. 26.05.580(b), "Attempts," page
36, lines 4-7, which read:
(b) A member of the militia who attempts to
commit an offense under this chapter shall be punished
as a court-martial may direct, unless otherwise
specifically prescribed. However, a court-martial may
not direct a punishment for an attempt to commit an
offense that is greater than the maximum punishment
for the offense.
CAPTAIN DUNBAR explained that it is not formulated in the same
manner as Alaska law in that "a class A, is now a class B," and
said he was uncertain as to whether class A is worse than class
B.
REPRESENTATIVE CLAMAN offered that the way of Alaska law, a
class A felony with attempt would be a class B felony, and a
class C felony would be a class A misdemeanor.
CAPTAIN DUNBAR advised the provision is not formulated in that
manner, and that the language is taken from the state model
code. He referred to [Sec. 26.05.580(b), "Attempts," page 36],
subsection (b), [lines 6-7], which read:
(b) ... However, a court-martial may not direct a
punishment for an attempt to commit an offense that is
greater than the maximum punishment for the offense.
CAPTAIN DUNBAR explained that it does not automatically drop
back in the same manner, but it clearly cannot be more severe.
2:33:22 PM
REPRESENTATIVE GRUENBERG referred to [Sec. 26.05.580(c),
"Attempts," page 36, lines 8-10, which read:
(c) A member of the militia may be convicted of
an attempt to commit an offense under this chapter
even if it appears, at the trial, that the offense was
consummated.
REPRESENTATIVE GRUENBERG asked whether subsection (c) is
currently in Title 11.
CAPTAIN DUNBAR advised he is not familiar enough with Title 11
to offer an answer, but that the language was provided by the
National Guard Bureau and was not taken directly from Alaska
state law.
REPRESENTATIVE GRUENBERG asked Captain Dunbar to determine
whether the language is identical in Title 11, because if under
subsection (c) a person may be convicted of an attempt, even
though the crime was consummated, he questioned whether that is
a lesser included offense, and whether a person is entitled to a
jury instruction to that effect.
CAPTAIN DUNBAR said he would research the question.
2:34:39 PM
REPRESENTATIVE GRUENBERG referred to Sec. 26.05.400, "Statement
of policy on military justice," [page 3, lines 16-23], which
read:
Courts-martial have primary jurisdiction over
offenses under this chapter, except when an act of
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.
REPRESENTATIVE GRUENBERG advised that the law is a sophisticated
form of "gamesmanship," and here is a possibility of going
forward in one of two forums. He opined that the prosecution is
bound here, generally, to take the civilian route, where the
defense may not be similarly bound because it is a prosecution
question and the defense doesn't have a choice. He commented
that Captain Dunbar may want to speak with the military and
civilian defense bars to determine how the interplay could be
gained by either side.
CAPTAIN DUNBAR responded that Representative Gruenberg is
correct in assuming there will be gamesmanship on both sides.
He opined that it is difficult to predict how that will proceed
because some states have only military offenses in their codes
so this would never come into effect. He explained at the
federal level, because it is a comprehensive criminal code, the
federal military can always proceed without the civilian
authorities agreeing to it. He added that they have been
working with their own defense counsel on these provisions and
noted that in his office, attorneys rotate back and forth
between being prosecutors and defense attorneys, but recently
defense and prosecution attorneys have become more calcified.
REPRESENTATIVE GRUENBERG said any law will be used in ways that
couldn't possibly have been imagined.
2:38:24 PM
REPRESENTATIVE CLAMAN referred back to Sec. 26.05.580(c),
"Attempts," page 36, lines 8-10, having to do with "if the
evidence shows that a crime has occurred ..." and said his
general sense is that often times a crime is charged under
attempt because the information at the time of charging only
rises to the level of attempt. He continued that as the
evidence comes forward and without having to re-charge the
individual, they proceed under attempt for probable reasons of
judicial efficiency.
2:39:30 PM
CHAIR LEDOUX referred to Sec. 2, page 2, line 7, which read:
(a) ... while in this such service.
CHAIR LEDOUX offered that it doesn't make sense to her and asked
whether it was a typo.
CAPTAIN DUNBAR agreed that it is a typo.
CHAIR LEDOUX pointed out that it was included in previous
versions.
2:40:18 PM
CHAIR LEDOUX referred to Sec. 26.05.435, "Jurisdiction of
courts-martial in general," page 8, lines 6-9, which read:
Each force of the militia of the state in active
military service has court-martial jurisdiction over
all members of the militia. The exercise of
jurisdiction by one force over personnel of another
force must be in accordance with the code of military
justice.
CHAIR LEDOUX advised she was uncertain of the language.
CAPTAIN DUNBAR advised that there are two forces in the militia,
army guard and air guard, and offered that this provision reads
that the army guard could charge the air guard, and the air
guard could charge the army guard. Although, he indicated, he
doubted it would happen, but there could be a situation with a
mixed force doing something in the field and something happens.
2:41:09 PM
CHAIR LEDOUX surmised that the following sentence is referring
to the Alaska Code of Military Justice:
The exercise of jurisdiction by one force over
personnel of another force must be in accordance with
the code of military justice.
CAPTAIN DUNBAR responded yes, and offered the scenario that if
an air guard commander charged an army guard soldier, it would
have to be under these provisions and not under other
regulations unique to one force or the other.
2:41:54 PM
CHAIR LEDOUX referred to Sec. 26.05.444(b), "Grand jury
requirement," page 9, lines 7-11, which read:
(b) The general court-martial convening authority
shall designate one or more judge advocates to
represent the authority at the grand jury, except that
at the request of the adjutant general, and with the
consent of the attorney general, a district attorney
or an attorney from the Department of Law may
represent the convening authority at the grand jury.
CHAIR LEDOUX asked the difference between a district attorney
and an attorney from the Department of Law.
CAPTAIN DUNBAR opined that the language was written by
Legislative Legal Services and Research and he is not familiar
with the [Department of Law's] structure.
2:43:04 PM
MEGAN WALLCE, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, [Available for questions.]
CHAIR LEDOUX restated the question regarding Sec. 26.05.400(b)
and asked whether attorneys are called district attorney or
assistant attorney general at the Department of Law.
MS. WALLACE advised she would have to look into it further and
will clarify it for the committee.
CHAIR LEDOUX agreed.
2:44:03 PM
CAPTAIN DUNBAR indicated that removing district attorney and
simply adding attorney from the Department of Law would be
sufficient.
CHAIR LEDOUX agreed.
2:44:23 PM
CHAIR LEDOUX referred to Sec. 26.05.468(c)(2), "Investigation;
preliminary hearing," page 15, lines 19-22, which read:
(2) give the accused the opportunity to
cross-examine witnesses against the accused, if the
witnesses are available; a victim may not be required
to testify at a preliminary hearing; a victim who
declines to testify is considered unavailable for the
purposes of the preliminary hearing;
CHAIR LEDOUX asked how that mirrors Alaska criminal law.
CAPTAIN DUNBAR noted the language was taken from the most recent
version of Federal UCMJ with regard to sexual assault, the rape
shield law. The purpose of the provision, he explained, is to
prevent sexual assault victims from being re-victimized in the
preliminary hearing, but he does not know how it mirrors Alaska
law. He added that victims of a non-sexual assault could also
avail themselves of this provision.
MS. WALLACE responded that she does not normally draft criminal
law and will review Alaska's rape shield law and compare.
2:46:53 PM
REPRESENTATIVE CLAMAN opined that this provision is coming from
the national statute as opposed to a state statute. He reported
that in many states, felony prosecution has an option of
presenting a case to the grand jury and holding a person over
for a felony trial, or they can proceed through a preliminary
hearing. He offered that if the person goes through the
preliminary hearing process and the court find probable cause,
there is no need to go before the grand jury. In contrast, he
remarked, in Alaska there can be a preliminary hearing which
gives the state the opportunity to hold a person in custody
until going before the grand jury because there is no way to
avoid the grand jury requirement. For purposes of going to
trial, the case must be presented to the grand jury and, he
opined, this particular provision was designed to protect
victims from going through cross-examination twice. Typically
in Alaska, the victim would testify in a grand jury proceeding
but would not be cross-examined by the defense counsel. He
opined that the provision reads that victims would be considered
unavailable and could not be forced to appear by subpoena.
2:48:52 PM
CAPTAIN DUNBAR responded that within the military there is a
fairly well-established and aggressive system of investigation,
and referred to the work of Senator Kirsten Gillibrand of New
York. He explained that Senator Gillibrand and other leaders
from the United States Senate and elsewhere realized that the
manner in which the military investigated sexual assaults was
not sympathetic to the victims, in that the investigation
process was very aggressive and lead to very aggressive cross-
examinations. For that purpose they put in these amendments,
and he mentioned that he was unsure how that interplays with the
grand jury. Practically speaking, he said, the goal is to
prevent people from being re-victimized during the investigation
process.
REPRESENTATIVE CLAMAN advised that it is very clear at the
federal and state levels with the grand jury proceedings in that
the defense attorney is outside the door. Occasionally
defendants choose to testify before the grand jury but their
lawyers are not allowed inside and, he pointed out, the issue of
cross-examination in grand jury rooms is a non-issue.
2:50:19 PM
CHAIR LEDOUX asked how the preliminary hearing gels with the
grand jury proceeding in this bill.
CAPTAIN DUNBAR noted that Alaska is the only state with a grand
jury requirement, and it was included due to Alaska's uniquely
strong constitutional protections for a right to a grand jury.
He noted that the preliminary hearing or the grand jury
proceeding should satisfy due process and they do not envision a
case with both. He offered that they have not exactly "war
gamed" the issue of when a person goes to either one, but he
believes it will probably lean toward the preliminary hearing
process as it is similar to established ways of investigation in
the military.
CHAIR LEDOUX questioned whether a felony would require a grand
jury.
CAPTAIN DUNBAR responded, probably.
2:51:47 PM
CHAIR LEDOUX pointed out that all sexual assault cases are
felonies.
CAPTAIN DUNBAR answered that with sexual assaults the vast
majority of investigations will be performed by trained
civilians, and in that regard the investigation process may not
be necessary on the military side. He reiterated that the
investigation will be performed by trained civilians who know
how to investigate sexual assaults and then "we'll" present the
evidence to the grand jury.
CHAIR LEDOUX then pointed out that Captain Dunbar had previously
advised the committee that the reason for subsection (b) is to
not [re-] victimize the rape victim, and said that now he is
saying he does not expect to use this section for sexual
assaults, which is confusing.
CAPTAIN DUNBAR agreed that it is a confusing question and noted
that Alaska is the first state to do both at once. Even though
the process is not expected to be used, in the unlikely cases
that they do AKNG wants protections in place for victims, he
stated.
2:53:27 PM
CHAIR LEDOUX commented that it should be somewhat narrowed. She
offered a scenario of someone being beaten up, not sexually
assaulted; therefore, the rape shield law is not needed, and
asked why that witness would be shielded.
CAPTAIN DUNBAR explained that they have taken most of the
regular assault out of the bill, although, contained within the
bill is a misdemeanor "abusive sexual contact." He further
explained that the case would not go to a grand jury, but there
would be an investigation of the person victimized in a sexual
manner, and the military may want victims to have these
protections available to them.
CHAIR LEDOUX said they would speak again about this provision.
2:54:42 PM
REPRESENTATIVE MILLETT requested the definition of a misdemeanor
sexual crime.
CAPTAIN DUNBAR referred Representative Millett to Sec.
26.05.620(b), "Sexual assault," [page 49, lines 5-9], which
read:
(b) A member of the militia who commits or causes
sexual contact on or by another person, and in doing
so violates (a) of this section, is guilty of abusive
sexual contact and shall be punished by up to five
years of confinement, by separation with
characterization up to dishonorable discharge, and by
such other punishment as a court-martial may direct.
CAPTAIN DUNBAR acknowledged that he misspoke in that the minimum
punishment for "abusive sexual contact" is five years, a felony.
He related that the only misdemeanor crimes related to sex are
Sec. 26.05.622, "Other sexual misconduct: indecent viewing,
visual recording, or broadcasting." He said if there is
physical contact with a victim, the military has the ability to
determine up to five years of confinement, a felony.
2:56:13 PM
CHAIR LEDOUX referred to page 16, [Sec. 26.05.468(h),
"Investigation; preliminary hearing," page 16, lines 18-21],
which read:
(h) In this section, "victim" means a person who
is alleged to have suffered a direct physical,
emotional, or pecuniary harm as a result of the
matters set out in a charge or specification being
considered and who is named in a specification being
considered.
CHAIR LEDOUX pointed to "direct physical, emotional, or
pecuniary harm," and said it sounds like it goes "way, way
beyond" a victim of sexual assault.
CAPTAIN DUNBAR agreed, and offered that the motivation for
including these protections has to do with the rape shield law,
and these provisions go significantly beyond sexual assault
victims.
CHAIR LEDOUX advised they would speak again about this issue.
2:57:34 PM
CHAIR LEDOUX referred to Sec. 26.05.485(d), "Statute of
limitations," page 19, lines 19-22, which read:
(d) When the United States is at war or engaged
in contingency operations, the running of a period of
limitation for an offense under this chapter is
suspended until two years after the termination of
hostilities as proclaimed by the President of the
United States or by a joint resolution of the United
States Congress if the offense
CHAIR LEDOUX pointed to, "When the United States is at war or
engaged in contingency operations, the running of the statute of
limitations is extended ..." and said they discussed that this
actually means it is extended probably forever. She then
referred to a memorandum from Colonel Dan Collins, Staff Judge
Advocate, Alaska National Guard, who attempted to explain the
rationale behind the provision. She offered a scenario, "there
is an operation in Iraq and it is not a declared war but just an
operation, and somehow or other the National Guard is not
federalized at this point. And so, the operation in Iraq comes
to an end. And so that would seem that that would be
justification for extending the Statute of Limitations. But
then, we're in another contingency operation, let's say in
Afghanistan. Well, why should it be continued for the operation
in Afghanistan when it's come to light after the end of
hostilities in Iraq?"
CAPTAIN DUNBAR offered that the AKNG service members are not
serving in Iraq or Afghanistan because otherwise they'd be fully
federalized under Title 10, which subject to the UCMJ. In this
scenario they are being charged in Alaska ... or they're not
being charged, and the Statute of Limitations is being suspended
due to some operation outside the state. He offered that the
argument would have to be that something about that contingency
operation is taking resources out of the AKNG and preventing it
from proceeding with this in a timely fashion. He opined it is
an interesting policy question and something to be discussed
further whether to retain the provision, revise it in a manner
that it is clear the AKNG command is not trying to take
advantage of this in some manner, or trying to keep someone
basically in a state of "suspended animation." He offered that
the National Guard has been in contingency operations in
Afghanistan for 14-years in that the United States Congress has
not declared war, but the National Guard is engaged in something
that looks very much like a war, such as in Iraq and
Afghanistan. He opined that Colonel Collins's point, and the
reason to insert contingency operation, is because they didn't
want to get caught up in the legalese of the definition of war
as America has not technically been in a war since World War II.
CHAIR LEDOUX agreed with Representative Gruenberg that the
ongoing above-discussion will include the full committee.
3:02:22 PM
CHAIR LEDOUX referred to Sec. 26.05.488(a), "Former jeopardy,"
page 20, lines 13-14, which read:
(a) A person may not, without the person's
consent, be tried a second time for the same offense
under this chapter.
CHAIR LEDOUX asked when a person would consent to [being tried a
second time].
CAPTAIN DUNBAR advised that this language was taken directly
from the state model code and he could not imagine a situation
where it would be used. He said he will speak with the lawyers
at the National Guard Bureau and get back to the committee.
REPRESENTATIVE GRUENBERG offered the concept of "manifest
necessity" and the rule that a person cannot be re-tried for the
same crime unless the dismissal was for a manifest necessity.
CHAIR LEDOUX said that possibly Colonel Collins could explain.
3:04:24 PM
CHAIR LEDOUX referred to Sec. 26.05.488(b), "Former jeopardy,"
page 20, lines 15-17, which read:
(b) A proceeding in which an accused has been
found guilty by a court-martial on any charge or
specification is not a trial under the code of
military justice until a finding of guilty has become
final after review of the case has been completed.
CHAIR LEDOUX said that the provision is not clear.
CAPTAIN DUNBAR offered to speak with the National Guard Bureau
as to its intent.
REPRESENTATIVE GRUENBERG said that apparently the phrase "a
trial under the code of military justice" is a term of art in
that it is looking to be defined by the UCMJ, and it is not the
civilian term "trial."
3:06:27 PM
CHAIR LEDOUX referred to Sec. 26.05.500(d), "Lack of mental
capacity or mental responsibility; commitment of accused for
examination and treatment," page 23, lines 24-31, 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 pointed to "if the accused remains incompetent for
five years the charges will be dismissed under this subsection,"
and asked Ms. Wallace whether Alaska's criminal law is the same
in that if a person remains incompetent for five years the
charges are dismissed.
MS. WALLACE responded that she will research the question and
determine how Title 12 proceedings handle this issue.
CHAIR LEDOUX asked Captain Dunbar, assuming Alaska law is not
the same, why dismiss the charges that could be quite serious
charges if five years have elapsed.
CAPTAIN DUNBAR answered that this language is from the state
model code and he was unsure of its intent. He opined that the
Alaska National Guard's maximum penalty is 10-years, and if a
person is committed for the purpose of trying to rehabilitate
them for five years, and the person could not become competent
to stand trial, there may be a case where the AKNG did not feel
it was "just" to proceed with the charges. He stated the AKNG
does not criminally prosecute the mentally incapacitated.
3:08:40 PM
REPRESENTATIVE GRUENBERG said that when language is taken from a
model code, it would be helpful for the experts to
telephonically testify at the next hearing.
CHAIR LEDOUX agreed.
MR. DANBAR agreed, but offered that many of the people involved
in drafting the 2007 model statutes are gone, but he will
contact the new judge advocates to answer these questions. He
warned that some responses to the committee's questions may be
unsatisfying as people may not recall why it was drafted in this
manner.
REPRESENTATIVE GRUENBERG related that when a statute is taken
from another state, with it comes the highest recorded court
interpretation that was handed down before the effective date of
CSHB 126.
CHAIR LEDOUX pointed out that while there may have been language
taken from the uniform code, this bill is far from a uniform
code.
REPRESENTATIVE GRUENBERG responded that if a particular section
was taken from this model code, whether other jurisdictions
reported ...
CHAIR LEDOUX interjected that the current issue is the five-year
requirement and are attempting to determine why the military
might want this.
REPRESENTATIVE GRUENBERG referred to the uniform code annotated
as it contains ...
CHAIR LEDOUX asked Captain Dunbar whether there is such a thing
as the uniform code annotated for this.
3:12:35 PM
CAPTAIN DUNBAR responded, not exactly. He explained the state
model code does have some annotation, and the Federal UCMJ has a
lot of annotation and precedent. He added that other states
have adopted the model code "and some of them presumably have
done some of these things," and he could ask other states why
they used this provision in this manner. He said he suspects
this particular provision has been rarely to never used, and he
will perform research on that issue.
CHAIR LEDOUX responded to Representative Gruenberg's statement
that he is not limiting himself to "this," by advising him that
"this" is what is being discussed. She agreed to come back at
some point.
3:13:57 PM
CHAIR LEDOUX referred to Sec. 26.05.598, "Noncompliance with
procedural rules," page 41, lines 9-17, which read:
A member of the militia who (1) is responsible
for unnecessary delay in the disposition of the case
of another person accused of an offense under this
chapter shall be punished by up to six months of
confinement, by separation with characterization up to
a bad conduct discharge, and by such other punishment
as a court-martial may direct, or (2) knowingly and
intentionally fails to enforce or comply with a
provision of this chapter regulating the proceedings
before, during, or after trial of an accused shall be
punished by up to one year of confinement, by
separation with characterization up to dishonorable
discharge, and by such other punishment as a court-
martial may direct.
CHAIR LEDOUX commented that the provision appears to be similar
to a "frivolous" cause of action filed in the civil court for
delay, and are fined by the Alaska Court System.
REPRESENTATIVE GRUENBERG replied that he is not aware of it in
the state criminal sphere, although Civil Rule 82 allows
enhanced attorney fees.
CHAIR LEDOUX described this as a fairly harsh punishment.
3:15:29 PM
CAPTAIN DUNBAR referred to the Maximum Punishments Matrix and
said the punishment of six months; and a bad conduct discharge
is the same punishment as the Federal UCMJ. He said the
"knowingly and intentionally fails to enforce or comply"
punishment is up to one-year confinement and a dishonorable
discharge, with the Federal UCMJ being five-years and a
dishonorable discharge. He agreed that up to one-year is a
serious penalty, although it is significantly less than what
they would be subject to if they were on active duty.
CHAIR LEDOUX asked whether this would apply to defense attorneys
trying to delay proceedings.
CAPTAIN DUNBAR offered that he does not believe that is the
case, and will provide a more concrete answer. Defense judge
advocates, as with civilian defense attorneys, attempt to extend
the proceeding to the benefit of their client. He reiterated
that judge advocates rotate back and forth at different times in
their career between being a defense attorney and a prosecutor
so things are more collegial, and the kind of gamesmanship seen
on the civilian side happens less. He remarked that the AKNG
does not prosecute defense attorneys for being defense
attorneys.
3:17:29 PM
CHAIR LEDOUX requested an example of where this provision would
be used and on whom.
CAPTAIN DUNBAR responded that he would like to review the Manual
for Courts-Martial and get back to her.
REPRESENTATIVE GRUENBERG commented that this can be used in
federal racketeering cases and it forces the defense attorney to
disgorge their fees. Under Civil Rule 11, pleadings must be
certified in good faith, and he opined that if an attorney
disobeys a court order the remedy is contempt of court. He
described this as having a significant chilling effect
particularly if the lawyer is a member of the military.
CAPTAIN DUNBAR said he could not speak to federal racketeering
charges, but believes this deals with cases of favoritism
wherein a prosecuting judge advocate is sympathetic to the
defendant in some manner, and is intentionally and knowingly
delaying proceedings.
3:19:38 PM
CHAIR LEDOUX referred to Sec. 26.05.600, "Subordinate compelling
surrender," page 42, lines 10-17, which read:
A member of the militia who compels or attempts
to compel the commander of the militia of this state
or of any other state, of a place, a vessel, an
aircraft, or another military property, or of a body
of members of the armed forces to five it up to an
enemy or to abandon it in the face of a threat
described in AS 26.05.070, or who strikes the colors
or flag to an enemy without proper authority, shall be
punished by up to 10 years of confinement, by
separation with characterization up to dishonorable
discharge, and by such other punishment as a court-
martial may direct.
CHAIR LEDOUX referred to "any other state, of a place, a vessel,
an aircraft ..." and said she does not understand.
CAPTAIN DUNBAR explained that it compels a commander of this
state or another state to surrender a place, vessel, aircraft,
or other property. He commented it is not clearly written, but
it is a separate provision. He offered it is where a
subordinate member of the militia is forcing a commander to give
up a place, to give ground.
CHAIR LEDOUX asked that he work with Legislative Legal Service
and Research to draft this provision in a clear manner.
3:21:17 PM
REPRESENTATIVE GRUENBERG opined there is a military term of art
when surrendering under conditions they are not supposed to
surrender.
CAPTAIN DUNBAR agreed to include clarifying language as the
substance of the provision is good.
REPRESENTATIVE GRUENBERG asked whether there is something in the
bill that makes it a military crime, not civilian crime. He
suggested that if the executive officer requires the commanding
officer to do something it is a type of mutiny.
CAPTAIN DUNBAR advised that mutiny has a very particular name in
the military and there is a mutiny provision. He said the AKNG
would look to the precedent of the UCMJ for the determination of
whether it was mutiny or a subordinate compelling surrender.
REPRESENTATIVE GRUENBERG asked why this is drafted to only
criminalize the subordinate, what if the commanding officer
gives up his command and doesn't have to, there should be
punishment for the commanding officer.
CAPTAIN DUNBAR opined that there is always a higher commanding
officer until reaching the [governor of the state] and
surrendering ...
REPRESENTATIVE GRUENBERG interjected that he is discussing the
unit.
CAPTAIN DUNBAR continued that the commander is disobeying an
order, such as wrongfully surrendering, engaging in mutiny,
misbehavior in front of the enemy, or deserting, but it wouldn't
be this provision.
REPRESENTATIVE GRUENBERG asked him to determine why this is
drafted solely for the subordinate, and asked whether this
should be amended to include the commanding officer. He
clarified that he is discussing the unit commander.
3:24:19 PM
CHAIR LEDOX referred to Sec. 26.05.610, "Improper Hazarding of
vehicle, aircraft, or vessel," page 44, lines 18-28, and asked
the definition of hazarding.
CAPTAIN DUNBAR explained it is a term of art specifically
defined within the Manual for Courts-Martial, and generally a
person takes unnecessary risks with a vehicle or ship and puts
it at risk of damage. He remarked that the maximum penalty
under the federal law is death because the idea that a commander
when commanding a battle ship is unnecessarily running it up
against a reef and losing this vessel, thereby losing a conflict
or battle. This provision has been amended because the AKNG
does not have vessels except several small zodiacs, or aircraft
carriers, but it does apply to aircraft and vehicles. An
example is people joy riding in a tank, he said, and the
penalties have been drastically reduced.
CHAIR LEDOUX asked about a person running a red light with a
car.
CAPTAIN DUNBAR explained that if the car was the property of the
United States the person could be prosecuted under this.
Practically speaking, he noted, they probably wouldn't be
prosecuted as they would have to be driving willfully and
wrongfully, more than negligently running a red light.
CHAIR LEDOUX expressed a problem with his answer in that if the
military is "probably not going to do this," there probably
shouldn't be a law letting the military do it. She pointed out
there is always the question of, why are you doing it to this
person and not to that person.
3:27:57 PM
REPRESENTATIVE GRUENBERG pointed out that this is a very serious
portion of this code and should not be tossed out. He offered
that in the event someone is negligently driving a car they are
not going to be prosecuted under this and will be prosecuted for
the traffic offense. There is a problem, he suggested, in that
there is not a provision for recklessness and there should be.
He noted that possibly the genesis of this was from a
jurisdiction that didn't have that intermediate phase, but
Alaska does.
CAPTAIN DUNBAR offered that Representative Gruenberg's comment
might resolve some of Chair LeDoux's concerns to reduce the
penalties in the negligence provision - reduce [negligence] to
six-months, with reckless being one-year may address ...
CHAIR LEDOUX agreed it would address some of her concerns.
REPRESENTATIVE GRUENBERG offered an antidote of a fighter pilot
turning his aircraft left instead of right in order to be caught
and the aircraft was lost. He described that as negligent not
reckless, and warned to be careful when eliminating things.
CHAIR LEDOUX pointed out that the discussion is not eliminating
anything, but discussing the idea that there be willful,
reckless, and negligent.
3:29:55 PM
CHAIR LEDOUX referred to Sec. 26.05.609, "Property other than
military property; waste, spoilage, or destruction," page 44,
lines 12-17, which read:
A member of the militia who wilfuly 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 by up to one year of confinement, by
separation with characterization up to dishonorable
discharge, and by such other punishment as a court-
martial may direct.
CHAIR LEDOUX asked why this provision is in the bill.
CAPTAIN DUNBAR offered that the language was taken from the
state model code and he will provide a more detailed answer. He
remarked there are provisions for looting and presumably it is
not speaking to other civilian properties, and it could be the
property the military is in control of that is not military
property and some other civilian agency ...
CHAIR LEDOUX interjected that Captain Dunbar could get back to
the committee to explain.
3:31:22 PM
CHAIR LEDOUX referred to Sec. 26.05.611, "Drunken or reckless
operation of a vehicle, aircraft, or vessel," beginning page 44,
line 29. Chair LeDoux asked Ms. Wallace, under the criminal
code, whether first time offenders are subject to one-year in
imprisonment for a DUI.
MS. WALLACE responded that she would research the question and
get back to the committee in a moment.
CAPTAIN DUNBAR offered the explanation contained in Article 109,
Federal UCMJ, regarding Sec. 26.05.609, and acknowledged that he
misspoke as it is a situation where soldiers or airmen are not
stealing or looting property, but are destroying or damaging the
property of another person. He read the definition contained
within the Manual for Courts-Martial, as follows:
Wastes or spoils as used in this article refer to such
wrongful acts of voluntary destruction of, or
permanent damage to, real property as burning down
buildings, burning piers, tearing down fences, or
cutting down trees. The destruction is punishable
whether it done wilfully, that is intentionally or
recklessly, added to a culpable disregard of the
perceivable consequences of some voluntary act.
CHAIR LEDOUX expressed that she understands the reason for
including sexual assault in the bill even though it is not a
military crime, but not other things included in the bill, such
as that provision. She asked why that one provision is picked
out as something the military wants to prosecute, as opposed to
Alaska's entire penal code, and noted the entire penal code is
not incorporated into the bill.
3:35:16 PM
CAPTAIN DUNBAR related that this was a military offense in the
state model code and was not one of the offenses they went
through and wanted to add such as, DUI and sexual assault. He
used the example of burning down someone's house and noted the
person would be charged under state criminal law. He offered,
for example, a junior enlisted soldier shoveling snow and
recklessly, not intentionally, broke a window. It would not be
a criminal charge, but the military would use this offense to
conduct a nonjudicial punishment or potential court-martial, he
explained. He expressed that he does not believe these types of
offenses are completely subsumed by existing Alaska criminal
law.
CHAIR LEDOUX pointed out that under this example it would be a
criminal offense whether the prosecutors choose to prosecute or
not, that's a totally different question.
CAPTAIN DUNBAR said that examples do exist where a person would
not be criminally prosecuted.
3:37:36 PM
MS. WALLACE explained that the current DUI provisions are
governed by AS 28.35.030, and generally a DUI is a class A
misdemeanor with a sentence dependent upon various factors and
exceptions. She asked Chair LeDoux to repeat her question as a
lot of the sentencing comes into a case-by-case basis and the
factors apparent with every incident prosecuted.
CHAIR LEDOUX restated her question and asked whether a first-
time DUI was subject to one-year in jail.
MS. WALLACE responded that, as it is a class A misdemeanor it is
up to one-year in jail, but not less than 72 consecutive hours,
if there are certain protections available. She suggested the
Department of Law comment on prosecuting specific instances and
crimes as they prosecute these cases on a regular basis and have
more specialized knowledge relating to hypothetical situations.
CHAIR LEDOUX agreed.
3:39:39 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, said that the Department of Law
would know better and she just happens to know that first-time
DUI standard is 3-days, 72-hours, although it could go above
that for a class B misdemeanor with a maximum of 90-days. She
offered that the second DUI is 20-days in jail, and the third
DUI approaches felony and is 120-days in jail.
CHAIR LEDOUX asked the maximum allowed for a first-time
offender.
MS. MEADE opined that a first-time DUI is a class B misdemeanor,
according to Ms. Wallace, of which have a 90-day maximum in
jail. She advised that DUIs have a specific jail term contained
within the statute and those only theoretically could be
exceeded, and are three-days in jail. In her experience, she
said, first-time DUI always receives 3-days in jail unless there
is something extraordinary, such as an extremely high blood
alcohol content in which case it could go to 5-days in jail.
She remarked that it would be quite unheard of to have 90-days
or one-year in jail for a first-time DUI.
3:41:14 PM
CHAIR LEDOUX referred to Sec. 26.05.611, "Drunken or reckless
operation of a vehicle, aircraft, or vessel," beginning page 44,
line 29, and advised this section needs work as there is a large
difference between a careless or reckless manner while under the
influence. She advised that generally careless is negligence
which is just a violation. She stated she has no problem with
the military exerting a harsher sentence for someone driving a
military vehicle, but this includes a totally off duty person in
the AKNG because the [AKNG decided its soldiers and airmen were
under AKNG] 24/7. She stressed problems with subjecting someone
who may have just run a stop sign, normally a violation, to one-
year in jail.
CAPTAIN DUNBAR asked whether Chair LeDoux meant running a stop
sign while intoxicated.
CHAIR LEDOUX explained there are two sections: (1) is just a
careless or reckless manner; and (2) is operate under the
influence of alcohol.
UNIDENTIFIED SPEAKER (indisc.)
CHAIR LEDOUX read "(a) a member of the military who operates or
physically controls a nonmilitary ... in a careless or reckless
manner or while impaired by a substance."
UNIDENTIFED SPEAKER said "therefore..."
CAPTAIN DUNBAR said, you are correct. He advised this provision
was brought in from the Federal UCMJ and it probably does
subject the National Guard's soldiers and airmen to a higher
standard than a typical civilian standard.
CHAIR LEDOUX offered that she does not have a problem with that
while they are on duty, but has real problems with it while they
are not on duty.
3:44:09 PM
REPRESENTATIVE GRUENBERG said the term "careless" must have been
taken from another jurisdiction because it is not used in Alaska
and suggested substituting "negligence."
CAPTAIN DUNBAR agreed, and said it was taken from the Federal
UCMJ as it clearly is a term it uses, and he will continue to
work on that. In re-reading this, he related, he is curious
that maybe the "or" was supposed to be an "and," which it is
materially important.
REPRESENTATIVE GRUENBERG pointed out that "or" is used in line
29 also, so it is disjunctive throughout.
CHAIR LEDOUX said this is being marked as the committee is aware
there is perhaps a problem.
3:45:12 PM
CHAIR LEDOUX referred to Sec. 26.05.617, "Provoking speeches or
gestures," page 48, lines 11-14, which read:
A member of the militia who uses provoking or
reproachful words or gestures toward another member of
the militia shall be punished by up to six months of
confinement and by such other punishment as a court-
martial may direct.
CHAIR LEDOUX asked whether it means that if one militia person
says to another "you're an idiot" or worse, they can be jailed
for up to six months, and can this happen will they are off-
duty.
CAPTAIN DUNBAR read the definition [located in the Manual for
Courts-Marshal]:
As used in this article provoking and reproachful
describe those words or gestures which are used in the
presence of the person to whom they are directed, and
which a reasonable person would expect to induce a
breach of the peace under the circumstances.
CAPTAIN DUNBAR described that as essentially "fighting words.
He continued reading:
These words and gestures do not include reprimands,
sensors, reproofs and the like which may be properly
administered in the interest of training, efficiency,
or the discipline in the armed forces.
CAPTAIN DUNBAR explained that a reasonable person would have to
expect that the provoking speeches or gestures would provoke a
breach of the peace.
3:47:00 PM
REPRESENTATIVE GRUENBERG expressed that he has significant
problems with this provision having lived with guys on the deck
division for a few years. Although, he offered, if discussing
inciting a riot, it should be re-drafted.
CAPTAIN DUNBAR explained that this is one of the few provisions,
"and may be an error on my part," where the Alaska National
Guard's punishments are potentially harsher than the UCMJ, in
that the UCMJ has no discharge. Perhaps, he said, the potential
punishments available could be reduced. Although, he stressed,
his command would be very upset if this was taken out entirely
because it is a tool quite often used in the active duty
context.
REPRESENTATIVE GRUENBERG asked Captain Dunbar to review
Anniskette v. State of Alaska, 489 P.2d 1012 (1971) in that it
dealt with a policeman upset that someone on the telephone was
swearing at him, and the person was convicted of disturbing the
peace, or something like that. He commented that the case went
up to the Supreme Court who reversed and said that this is
something that should have been dealt with without ...
3:48:41 PM
CHAIR LEDOUX stated she understands where command may be coming
from, but she has real problems when discussing off duty people
in that she knows how conversations amongst regular people can
go and sometimes they get pretty mad.
CAPTAIN DUNBAR responded that another important limiting factor
is that this is only toward another member of the militia.
CHAIR LEDOUX surmised that would be like a rule that legislators
can only say nasty things against another member of the
legislature. She expressed that if the person is off duty ...
CAPTAIN DUNBAR said that in this case they would have to be off
duty and speaking to each other face-to-face and not over the
telephone, as that is how it is defined in the definition he
read previously. He said, "You have to be physically face-to-
face and a reasonable person has to be able to conclude that it
would provoke them to a breach of the peace."
REPRESENTATIVE LYNN noted there are many colorful words many
people have used from time-to-time. He offered that it is one
thing to use this language as a matter of expression and another
to get into someone's face, which goes to "fighting words."
3:50:58 PM
REPRESENTATIVE MILLETT pointed out that it leaves a lot to
interpretation.
CAPTAIN DUNBAR replied that it is intended to be a reasonable
person standard that is objective, but would take into account
such things as the age and rank, and whether these words are
likely to provoke that particular person. He suggested that the
defense attorney and prosecutor would draw upon federal case law
that this is based upon to determine cases that fit into their
arguments. He said he agrees with comments that the AKNG is
prosecuting service people off duty, and that it is larger than
other states have contemplated. Command strongly wants this
provision, he stressed, thereby giving AKNG the ability to
nonjudicially punish people in the event of an array or a verbal
altercation between two off duty soldiers or airmen. He
described the provision as an "important tool to have us do so."
REPRESENTATIVE MILLETT stressed that she is uncomfortable with
the provision because a person may not know the other person's
history and; therefore, does not know what will provoke them.
She offered that what provokes Captain Dunbar and what provokes
her may not be covered in case law, and that case law cannot
take into account every conversation or every provocative
conversation she may have.
3:54:18 PM
CAPTAIN DUNBAR referred to information provided within the
Manual of Courts-Martial, and read:
It is not necessary that the accused have knowledge of
the person toward whom the words or gestures are
directed to the person subject to the code.
CAPTAIN DUNBAR explained that the person does not have to know
the other person is service member for this to apply. He
expressed that the AKNG will prosecute a service member
regardless of whether that service member had a specific issue
that would set them off. He agreed there is no question this is
a broad power, but the AKNG holds its soldiers and airmen to a
higher standard than the standard civilians expect. He said
while it may be okay for civilians to get up in each other's
face and scream and cuss, a soldier or airman swears to uphold
the Alaska State Constitution and follow every order and
regulation, and they are expected to give up certain things of
which perhaps the ability to swear in someone's face is one. He
offered that he is sympathetic to the thought that six-months in
prison is a long time.
3:55:32 PM
CHAIR LEDOUX reminded Captain Dunbar that the Alaska National
Guard (AKNG) is the military as a governmental entity, but that
AKNG is also an employer. As an employer, she may be able to
fire her employees for swearing, but she can't make them go to
jail because she doesn't like what they are doing. The jail
element of this is a problem, she stressed.
CAPTAIN DUNBAR offered the thought of removing the ability to
put service men in prison and to discharge them, the AKNG would
still be able to use nonjudicial punishment to fine and reduce
them in rank, thereby, receiving punishment. He argued that the
AKNG is much more than just an employer in that a person commits
themselves to an organization that has the power of life and
death over them. He related that it goes beyond the typical
employer/employee relationship, but he is sympathetic that
putting someone in jail for six-months might be severe.
CHAIR LEDOUX reminded Captain Dunbar that the committee has
amended other broadly drafted sections.
3:57:21 PM
REPRESENTATIVE LYNN pointed out that the Alaska National Guard
(AKNG) is on duty 24/7, and he wanted to be certain the
committee separates this from insubordination. He asked whether
there can be insubordination for an off duty member in the
civilian realm if the member knows the person they are directing
these words to is a superior officer. He said there should be a
clear distinction regarding insubordination when on duty, and
off duty.
CAPTAIN DUNBAR agreed that there is a different kind of offense
when addressing a superior officer, and the ability to impose a
sentence of confinement in disrespect toward a superior officer
has been deleted. Although, he said, the ability to
dishonorably discharge remains in the provision, Sec. 26.05.589
and noted that at the request of Chair LeDoux, subsection (b)
was added, page 39, lines 7-8, which read:
(b) A court-martial may not impose a sentence of
confinement under this section.
CAPTAIN DUNBAR remarked there was a contradiction in that where
it stands now, as a service member could disrespect a superior
officer and not be confined, but if a service member
disrespected another enlisted service member they could be
confined. Representative Lynn is correct in that there are
different insubordination provoking gestures and disrespecting
superior officer are distinct provisions and there are
provisions for each.
4:00:11 PM
REPRESENTATIVE GRUENBERG conveyed that this provision needs to
be discussed at length with each member individually by Captain
Dunbar, particularly because there are these others on page 39.
He asked whether this is really needed when most of the conduct
concerned about probably is, or should be, in that part of the
bill. He suggested that Captain Dunbar advise command that if
this provision remains, it should start from the narrowest
possible language, and then justify going beyond that. He
advised that this is a state legislature by a constitution that
protects individual rights and this is way beyond anything that
would even provide a threat. He conveyed that unless he is
convince this provision is necessary he will not support the
provision.
CHAIR LEDOUX offered that the committee is aware there are
problems.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 126-CS Version G.pdf |
HJUD 11/17/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version G-Memo.pdf |
HJUD 11/17/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version G-Presentation.pdf |
HJUD 11/17/2015 1:30:00 PM |
HB 126 |
| HB 126-CS Version G-Maximum Punishments Matrix.pdf |
HJUD 11/17/2015 1:30:00 PM |
HB 126 |