Legislature(2015 - 2016)CAPITOL 120
03/26/2015 01:00 PM House MILITARY & VETERANS' AFFAIRS
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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 | |
| + | TELECONFERENCED |
HB 126-CODE OF MILITARY JUSTICE; APPEALS
[Contains discussion of HB 121]
1:02:21 PM
CHAIR HERRON 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."
CHAIR HERRON acknowledged Representative Tuck and his staff for
the work they have done on the proposed legislation.
1:02:55 PM
REPRESENTATIVE LEDOUX moved to adopt the proposed committee
substitute (CS) for HB 126, labeled 29-LS0473\H, Strasbaugh,
3/24/15, as the work draft.
1:03:06 PM
CHAIR HERRON objected for discussion purposes.
[The committee treated Chair Herron's objection as removed.]
1:03:37 PM
REPRESENTATIVE GRUENBERG objected for discussion purposes.
1:03:50 PM
REPRESENTATIVE LEDOUX, speaking as the chair of the House
Judiciary Standing Committee, sponsor, informed the committee HB
126 is timely and necessary legislation. Alaska's National
Guard command has asked for a greater ability to pursue and
prosecute those members who violate military rules and
protocols. House Bill 126 honors that request and lays out a
blueprint for administrative procedures for use by National
Guard leadership in the state. Representative LeDoux thanked
Representative Tuck and his staff for their work on this issue
and their assistance to the House Judiciary Standing Committee
staff.
REPRESENTATIVE TUCK said it has been difficult for the
Department of Military & Veterans' Affairs (DMVA) to not have a
code of military justice when guidance is needed. The bill
establishes a set of procedures and substantive criminal laws
modeled from a code provided by the U.S. Department of Defense
(DoD). He observed that Alaska Statutes are unique, thus it was
difficult to draft a document that protects members of the
Alaska National Guard and ensures its integrity.
1:06:27 PM
THOMAS BROWN, Staff, Representative Gabrielle LeDoux, Alaska
State Legislature, informed the committee HB 126 would grant the
Alaska National Guard (AKNG) a basic legal framework to
establish a functioning system of military justice. He recalled
that Representative Tuck introduced HB 121, which was similar
legislation; in fact, a significant portion of HB 121 has been
rolled into HB 126. However, HB 126 grants a greater amount of
administrative authority to AKNG in order to achieve its goal,
and is the method preferred by DMVA and AKNG leadership. The
sponsor does not anticipate that HB 126 would pass the
legislature this session, but that technical problems can be
discovered and corrected in order to prepare the bill for
passage early in 2016. Mr. Brown paraphrased from the sectional
analysis of HB 126 as follows [original punctuation provided]:
Section 1, page 1 - amends 22.07.020. Designates the
Alaska Court of Appeals as the appellate court for
service-members who have exhausted their
administrative appeals. Section 2, page 2 - amends
26.05.140(a). Limits criminal liability for Guard
members for any act done in their official capacity in
the line of duty, but does not apply to charges
already brought before a military court; Section 3,
page 2 - amends 26.05.228(b). Conforming amendment;
Section 4, pages 2-36 - amends 26.05. Creates a new
Article, the Code of Military Justice. Of the new
sections in this Article, it instructs the adjutant
general to adopt regulations for a Code of Military
Justice under the terms of the chapter which will,
p.3: - Organize courts-martial; - Provide for
nonjudicial punishment (NJP); - Identify which
offenses are subject to court-martial or NJP; -
Identify allowable punishments for such offenses; -
Identify rules of trial, pretrial, post-trial and
related procedures; - Organize courts of inquiry; -
Provide adequate protection of classified information;
Other sections in the new Code of Military Justice
include: - A statement that all non-military offenses
shall be tried in a civilian court, p.4; - Grant of
exclusive jurisdiction of courts-martial over the code
of military justice and that the code applies to all
military offenses, p. 4; - Sets jurisdiction of the
military code over deserters and fraudulently
discharged personnel and those members who commit
their offense outside of the state or live outside of
the state when charged with the offense, p.4; -
Details the duties and qualifications of those who
serve as judge advocates, p.5; - Defines who may
apprehend members accused of a military offense and
how that apprehension is to take place, p. 5-6; -
Defines how a member may be arrested, under what
conditions they may be arrested, who may do so, and
how they may be confined, p. 6-7; - Defines how a
member accused of a military offense may be delivered
to a civilian authority, p.7; - Describes the
composition, duties, terms of service, and
jurisdictions of courts-martial, p.8- 11; - Describes
the duties and qualifications of trial counsel,
defense counsel, assistant counsel, court reporters,
and interpreters of courts-martial, p. 11-12; -
Specifies the procedures for bringing charges against
a member. p.13; - Prevents the self-incrimination of
the accused, p.13; - Defines the investigatory
process,p.14; - Lays out how charges may be processed
and the procedures for continuances, oaths of office
for court officers,p.15-17; - Defines the statutes of
limitations for military offenses,p.19; - Prohibits
double jeopardy charges and describes how pleas of the
accused are to be processed,p.19; - Defines how
subpoenas and contempt of court charges are to be
processed,p.19-20; - Provides for an insanity defense
for the accused and the determination for mental
competency of the accused, p. 20-23; - Describes the
procedures for voting and ruling in courts-
martial,p.23-24; - Requires the recording of courts-
martial,p.24-25; - Describes the allowable punishments
and sentences and prohibits cruel and unusual
punishments, p. 25-27; - Describes the appeals process
in the military code, including appeals by the
state,p.27-28; - Allows for a vacation of suspension
under certain circumstances,p.28; - Allows for the
accused to petition for a new trial and the
restoration of privileges,p.28-29; - Describes the
composition and duties of the Military Appeals
Commission,p.29-32; - Defines who may administer oaths
for the purposes of military administration
proceedings,p.32; - Allows for the governor to
delegate authority for the code of military
justice,p.32; - Creates a military justice account in
the general fund,p.33; - Describes the system of
paying and collection of fines associated with the
military code,p.33; - Describes the pay scale of
officers and witnesses of the courts-martial,p.33-34;
- Provides immunity for persons who acted pursuant to
their duties under the military code,p.34; - Defines
terms associated with the new Article,p.34-36; Section
5, page 36 - amends 33.30.011. Further defines 'held
under authority of state law' to include persons held
under the military code; Section 6, page 36 - amends
33.30.051. Describes how persons convicted under the
military code are to be restrained or confined;
Section 7, page 36 - amends 44.23.020. requires the
Attorney General to assist courts-martial in cases of
mental incompetency; Section 8, page 36-37 - amends
44.35.020(a). Conforming amendment dealing with the
duties of the Dept. of Military and Veterans' Affairs;
Section 9, page 37 - Repeal section; Section 10, page
37 - Applicability clause; Section 11, page 37 -
Establishes and describes the terms of office of the
Military Appeals Commission; Section 12, page 37-38 -
Authorizes the adjutant general to enact and enforce
the regulations under the Code of Military Justice,
upon approval of the governor; Section 13, page 38 -
Effective date for section 12 Section 14, page 38 -
Effective date for the rest of the bill.
1:15:41 PM
CHAIR HERRON turned the gavel over to Vice-Chair LeDoux.
1:16:35 PM
ROBERT DOEHL, Deputy Commissioner, Office of the
Commissioner/Adjutant General, DMVA, provided a PowerPoint
presentation entitled "Alaska Code of Military Justice HB 126
and the Alaska National Guard." Mr. Doehl said AKNG traces its
heritage to the militias of the colonies that predate the
formation of the United States. The Alaska National Guard
remains under the command and control of the governor and is a
state militia, although the federal government recognizes the
federal interest in a militia and provides financial support to
organize, train, and equip AKNG (slide 1 entitled "AK National
Guard Funding"). Mr. Doehl said DMVA supports HB 126 on the
following key points: HB 126 provides an enabling statute to
assure that AKNG adjusts to changes in the federal Uniform Code
of Military Justice (UCMJ); HB 126 addresses constitutional
issues of due process unique to Alaska; HB 126 is the right
mechanism to address recent AKNG issues and to maintain good
order and discipline; HB 126 is not redundant to state civilian
criminal law but will supplement state law; HB 126 serves as a
deterrent (slide 2 entitled "Key Points on HB 126 & ACMJ"). Mr.
Doehl said the missing leg for the "three-legged stool of good
order and discipline" is a mechanism for an Alaska Code of
Military Justice (ACMJ); AKNG has the use of administrative law
and Alaska criminal law, but lacks a means to reform an
individual (slide 3 entitled "Good order and Discipline").
1:20:26 PM
FIRST LIEUTENANT FORREST DUNBAR, Alaska Army National Guard,
Office of the Commissioner/Adjutant General, DMVA, informed the
committee that AKNG does have a territorial-era military code:
Alaska Statute Title 26; however, the code does not provide for
a code of military justice. Although the existing code does
provide that AKNG may create a military code, it does not define
the necessary procedures, or require AKNG to do so, which are
provisions in HB 126. The federal UCMJ includes criminal
offenses, in addition to military offenses, thus the proposed
ACMJ would not mirror UCMJ, but would be limited to military
offenses. The Alaska state criminal code also applies to
soldiers/airmen (slide 4 entitled "Existing Relevant Law"). He
explained the following different statuses that apply to
guardsmen (slide 5 entitled "Examples of Service-member Statuses
and slide 6 entitled "Applicable Law"):
· Title 32 occurs during a duty weekend when guardsmen are
commanded by the governor and resourced by the federal
government. Also in Title 32 are active guard reserve
(AGR) in full-time guard status.
· Title 10 occurs when guardsmen are fully federalized and
deployed, thus are subject to UCMJ.
· State Active Duty occurs when guardsmen are commanded and
resourced by the state, for example, during disaster
response.
LIEUTENANT DUNBAR further explained that Title 10 also applies
to active duty U.S. military and to fully federalized national
guardsmen, and the Alaska criminal code applies at all times
when guardsmen are in Alaska, regardless of status; however,
there is no military code of justice that applies to Title 32 or
State Active Duty guardsmen, and these are the circumstances HB
126 seeks to address. He returned attention to the goal of good
order and discipline and further described that the missing part
- ACMJ - has not been available either through courts-martial or
for non-judicial punishment. Non-judicial punishment is a
frequently-used tool by commanders and does not require a trial
or severe punishment, but is swift and certain discipline (slide
7 entitled "Good order and Discipline"). Among the tools
required by commanders and administrators to maintain order and
discipline are administrative actions, such as letters of
reprimand and administrative separation with a characterization
of service (slide 8 entitled "Tools Required to Maintain Good
Order & Discipline"). At this time, AKNG cannot give bad
conduct or dishonorable discharges, however, dishonorable
discharges would be available by the proposed code under a
general court-martial. He restated AKNG's support of the bill
and its intent to develop a set of regulations that stipulate
offenses and penalties, as well as procedures and a regulation
for non-judicial punishment. Lieutenant Dunbar stated AKNG's
intent to work with the legislature during interim to determine
detailed statutory language, and hear testimony from commanders
(slide 9 entitled "The Guard's Current Plan of Action"). Prior
to January 2016, regulations will be presented to legislators.
1:29:15 PM
REPRESENTATIVE GRUENBERG directed attention to Version H on page
2, lines 14-16 which read in part:
Nothing in this subsection applies to a proceeding or
action brought under this chapter or the code of
military justice.
REPRESENTATIVE GRUENBERG suggested the aforementioned language
should be included in the applicability clause found in section
10 on page 37. He then directed attention to Version H on page
34, lines 3-5 which read in part:
The code of military justice shall be construed to
carry out their general purpose and, so far as
practicable, in a manner uniform with 10 U.S.C. 801-
946.
REPRESENTATIVE GRUENBERG surmised that crimes adopted in the
proposed bill would be interpreted as the equivalent provision
in UCMJ.
LIEUTENANT DUNBAR said correct; this provision is persuasive,
but not controlling, precedent.
REPRESENTATIVE GRUENBERG expressed his understanding that
following the adoption of a law from another state, the
interpretation of the law from the other state's highest court
is simply persuasive. Further, this is true if a uniform act is
adopted and is a major advantage to adopting a uniform act.
Referring back to HB 126, he said "this here, sounds like it's
different, like it's simply persuasive" and he urged the sponsor
to review this aspect, and opined it's very important to really
understand how the bill is going to work.
VICE-CHAIR LEDOUX confirmed the section in question was proposed
section 26.05.560.
1:34:53 PM
MR. DOEHL said the intent of this language was to define a
consistent body of law at the state level in Alaska. He
recalled:
Looking at these military code provisions, because
there is still variance and ... on how the uniform
code has been adopted to look to article 1 and article
3 courts as they have interpreted the federal code of
military justice, and as they have developed that body
of law and that body of law frankly continues to
evolve. ... At any time it remains persuasive to this
jurisdiction, was my best recollection of that case
law.
REPRESENTATIVE GRUENBERG said the issue is that crimes would not
be adopted by the legislature, but would be adopted
administratively; in the past, precedent was set by judges and
not by an administrative agency. If a statute is enacted
through a regulation, the ruling of the statute is important.
VICE-CHAIR LEDOUX understood that if Alaska adopts a law of
another state, the interpretation of that law by the highest
court of the other state would be persuasive on Alaska's court,
but would not be binding on Alaska's court.
1:37:33 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, opined that
adopting codes from other jurisdictions, which was done largely
at the onset of statehood, meant that the other jurisdiction's
courts' interpretation of those provisions are highly persuasive
on the Alaska courts, but are not binding. In a similar manner,
when Alaska adopts uniform laws, the interpretations are
persuasive on Alaska's courts, but not binding.
REPRESENTATIVE HUGHES returned attention to slide 8 and asked
for examples of crimes addressed by non-judicial punishment and
courts-martial, under the proposed ACMJ. Also, she asked for an
example of procedures that precede issuing a non-judicial
punishment.
LIEUTENANT DUNBAR answered that some procedures would be in
regulation as tasked by the bill. In general, a non-judicial
punishment charge is less serious than one addressed by court-
martial. Certain officers at certain levels bring non-judicial
punishments.
MR. DOEHL added that the accused can request a non-judicial
punishment or a special court-martial. Non-judicial punishment
is for crimes such as sleeping on duty, or failure to report for
duty; courts-martial are for more serious offenses such as
urging others to disobey a direct order.
REPRESENTATIVE HUGHES surmised that non-judicial punishment
would be issued by an officer.
MR. DOEHL stated although the decision is made by one officer,
there is a process to give the individual a right to be heard,
to be represented, and to present evidence, and the decision can
be challenged.
REPRESENTATIVE HUGHES observed that it is unusual to have
proposed regulations drawn prior to the passage of a bill; she
asked whether this process has been used elsewhere. She also
inquired as to whether participation in discussions about the
bill by military members would only include officers (slide 9).
LIEUTENANT DUNBAR offered that Oregon adopted existing
regulations on substantive offenses in a similar manner as
proposed; in general, Alaska will draw on the experiences of the
federal UCMJ, that of other states, and the model code
distributed by National Guard Bureau. The National Guard Bureau
model was used extensively in HB 121, although some offenses in
the model code are archaic. Military participation will be
encouraged from a broad cross-section of guardsmen.
1:44:41 PM
MR. DOEHL directed attention to slide 9 and explained the
commander's action group will include members at the airmen
level from each branch. The importance of the issue affected
the timing and he said, "in order to move the process along, and
also to simplify the oversight, to say 'this is how we envision
carrying out the legislation you're giving us' we felt it best
to proceed now rather than wait."
REPRESENTATIVE HUGHES asked whether the bill was based on UCMJ
with the criminal part removed.
LIEUTENANT DUNBAR acknowledged that ACMJ will essentially be
UCMJ stripped of nonmilitary offenses; however, that is not
specified in the proposed statute. There may be certain
offenses not carried forward from UCMJ, or others added. The
statute and regulations will be Alaska documents, and he gave an
example of protections in the Alaska State Constitution that
would cause ACMJ to differ from UCMJ.
REPRESENTATIVE HUGHES inquired as to whether other states have
adopted a similar code.
LIEUTENANT DUNBAR deferred to Captain Jennifer King.
1:48:03 PM
CAPTAIN JENNIFER KING, Judge Advocate General, Alaska Army
National Guard, was unsure of the number of states that are
operating without their own state UCMJ; however, Alaska is not
the last as Alabama put its code in place in 2015, and Kentucky
is in the process of revision.
VICE-CHAIR LEDOUX asked whether the military codes adopted in
other states include criminal laws.
LIEUTENANT DUNBAR was unsure.
MR. DOEHL said, "I believe some have criminal codes on the book,
I believe they are rarely, if ever, exercised." In Alaska, the
small size of the military creates a challenge when a panel is
needed for procedural and due process. For example, gathering a
jury of members of a rank above the rank of the accused, from a
small pool, is daunting in a felony case.
REPRESENTATIVE TUCK returned attention to slide 8, and recalled
a problem with the old code of military justice in Alaska was
that it did not have a system of checks and balances, thus there
was favoritism. He noted HB 126 provides the opportunity to be
consistent in regulations and statute. He urged the sponsor to
consider that courts-martial may need to be in statute in order
to prevent unilateral changes following a change in command.
Representative Tuck supported the process underway.
LIEUTENANT DUNBAR agreed that commanders must enforce the law
appropriately whether in regulation or statute; however, HB 126
defines court-martial procedures and requires AKNG to create
regulations with the intent to bind future commanders and
adjutants general to identify substantive offenses. He
acknowledged that "by putting this in regulation rather than
statute, we are putting some trust in this command, that we will
develop appropriate regulations and that we will enforce them."
REPRESENTATIVE TUCK restated that one of the best ways to bind
future commanders is through statute.
1:53:50 PM
MR. DOEHL pointed out that the challenge with binding statute is
to keep current as the law evolves. In the age of digital
offenses, he cautioned about having to come back to the
legislature for changes in statute after court rulings.
VICE-CHAIR LEDOUX asked whether [UCMJ] is in statute or
regulations.
MR. DOEHL responded that UCMJ is in U.S. Code Title 10. In
further response to Vice-Chair LeDoux, he said the military is
challenged to keep the code relevant, timely, and effective.
REPRESENTATIVE TUCK agreed, but urged the sponsor to remain open
to his suggestion.
REPRESENTATIVE GRUENBERG advised that crimes found in Alaska law
may not be found in federal military law. He posed the
situation in which a guardsman serving under Title 32 violated
Alaska law, and asked whether the accused would be prosecuted by
Alaska civil authorities.
LIEUTENANT DUNBAR said yes; currently accepted procedure is that
the civilian authorities act first.
REPRESENTATIVE GRUENBERG assumed the Alaska State Constitution
would be applicable to the proposed ACMJ.
LIEUTENANT DUNBAR said absolutely; this is a state law governed
by the protection of double jeopardy and by the Alaska State
Constitution.
1:59:27 PM
REPRESENTATIVE GRUENBERG asked whether ACMJ would include
[Alaska Statutes] Title 12, which describes provisions of
sentencing such as aggravators and mitigators, and the right to
a jury.
MR. DOEHL said if a crime is actionable in the context of Title
11 of the Alaska criminal code, Title 12 would apply. Part of
the reason for the time needed to write the regulations is to
carefully look at the applicability of aggravating and
mitigating factors of Title 12 in an administrative context.
REPRESENTATIVE GRUENBERG turned to "nonequivalent kinds of
crimes" and asked whether the Alaska State Constitution would
also apply.
LIEUTENANT DUNBAR said yes. In further response to
Representative Gruenberg, he confirmed that the sponsor will be
looking at aggravating and mitigating factors.
VICE-CHAIR LEDOUX said the reference to aggravating and
mitigating factors is confusing. She observed ACMJ would apply
to civil law, and aggravating and mitigating factors apply to
criminal cases where one has committed a crime under state law,
which would be referred to state authorities.
LIEUTENANT DUNBAR confirmed that if a civilian criminal law
applies, the case would be prosecuted in civilian court;
however, the substantive provisions of ACMJ would be similar to
criminal law. For example, a general court-martial conviction
can result in a prison sentence of up to ten years. He
acknowledged that military offenses are unique, and thus do not
apply to other citizens of the state, such as dereliction of
duty and conduct unbecoming an officer. In that the penalties
can be ten years in prison, ACMJ must conform to the protections
that a criminal defendant would receive.
REPRESENTATIVE GRUENBERG advised that military crimes can be
major crimes resulting in severe penalties.
2:04:52 PM
MR. DOEHL remarked:
We're taking a military context of what constitutes
criminal law and applying it under the regiment of the
Alaska [State] Constitution ... that's why we're going
to be diligently working hard on it this summer to try
to de-conflict and sort out those things. Ultimately
what we do has to comport with the Alaska [State]
Constitution as well as the [U.S. Constitution], a
requirement the feds don't have because we're an
Alaska governmental entity.
REPRESENTATIVE TUCK questioned how the state differentiates what
should be in statute and what should be in regulations.
MS. MEADE advised that criminal penalties and criminal rights
and duties are found in Alaska Statutes, Title 11, and
procedures to implement criminal laws are found in Title 12.
Currently, there are no criminal provisions in regulations; for
example, neither the Department of Public Safety nor the
Department of Law can put criminal provisions in their
regulations. Regulations can provide for civil penalties such
as parking tickets.
VICE-CHAIR LEDOUX asked whether the Alcoholic Beverage Control
Board, Department of Commerce, Community & Economic Development,
could promulgate regulations which would be criminal.
MS. MEADE said she was unsure.
REPRESENTATIVE TUCK asked whether other departments can create
offenses and punishments.
2:09:05 PM
MS. MEADE said she will inquire. She stated that the Alaska
Court System is interested in HB 126 because of the provision
that a person who has exhausted appeals within the military
court-martial process can then go to the Alaska Court of
Appeals. Ms. Meade said her understanding is that crimes will
absolutely not be in ACMJ. She remarked:
So that if somebody does something untoward that seems
somewhat criminal, and the state district attorney's
office ... declines to prosecute ... under their
typical criminal law, then this would fill in that gap
and they, under the code, they could be court-
martialed for conduct unbecoming, although it doesn't
rise to the level of a criminal offense.
LIEUTENANT DUNBAR agreed with Ms. Meade and provided an example.
He pointed out that the proposed code would grant the department
unique powers to create and enforce a criminal code; however,
the code would only be enforced against guard members who have
volunteered to join AKNG, and who have sworn an oath to uphold
the Constitution and follow orders in the chain of command.
When new service members join, they will receive a briefing on
the code to explain the new laws to which they must adhere.
VICE-CHAIR LEDOUX asked whether the aforementioned briefing
would be given to an enlistee prior to, or after, enlistment.
She related that a person can waive their right to a jury trial,
which is waiving a right to a Constitutional provision, but
suggested a person is best apprised that they are waiving their
rights before "employment."
MR. DOEHL said this is an important separation of powers
question that may be an issue of first impression in the state.
He remarked:
If we look at federal law though, for instance, the
regulation-writing authority for criminal misconduct
that is delegated to like, Department of Interior and
National Parks, there is, in a very similar
Constitution, the federal Constitution, to ours, there
is a basis for this delegation to the executive
branch.
MR. DOEHL noted that every enlistee takes an oath to support and
defend the U.S. Constitution, the Alaska State Constitution and
the laws therein, but is not provided an explanation of what the
laws are. He agreed that recruiters should "provide notice of
what you are signing up for ...."
2:14:31 PM
REPRESENTATIVE TUCK questioned the effect of ACMJ on civilians
who work for AKNG.
MR. DOEHL responded that as currently written, HB 126 envisions
actions only against guardsmen. On the federal side, civilians
working for AKNG would not fall under the jurisdiction of ACMJ.
VICE-CHAIR LEDOUX observed that there are many civilians working
for the military; she asked how civilians are affected by UCMJ.
MR. DOEHL advised that civilians who commit a crime go to a
federal district court for criminal offenses, or to the Office
of Personnel Management for labor issues. However, for
government civilian workers and contractors deployed in Iraq or
Afghanistan, offenses can be addressed by a military panel or in
federal district court.
REPRESENTATIVE HUGHES questioned how an appeals process through
the Alaska Court System would follow military court action.
LIEUTENANT DUNBAR stressed that relatively few cases would
attain this level of ruling - perhaps less than one court-
martial per year. The initial appeal would be to the Military
Appeals Commission, although cases of first impression may reach
the Alaska Court System. Jurisprudence will be based on that of
other states, although this is a new area of law for Alaska
civilian courts.
REPRESENTATIVE HUGHES returned attention to slide 8 and asked
what type of punishment is used currently for minor offenses
such as sleeping on duty.
MR. DOEHL stated that letters of reprimand with counseling are
used for first and second offenses, but in some cases these
actions lack the strength to deter behavior.
2:20:11 PM
REPRESENTATIVE HUGHES referred to the "military justice account"
established by HB 126 and asked for its cost to the state.
Also, she suggested that federal funds may be available for that
account.
LIEUTENANT DUNBAR answered that the costs are reflected in
Fiscal Note Identifier: HB126-MVA-NGMHQ-3-20-15 in the amount
of $107,000 in fiscal year 2016 (FY 16). Costs are expected to
come down after the first year during which regulations are
developed and military judges are trained.
MR. DOEHL added that the fiscal note accounts for a "worst case
scenario" due to the infrequent number of cases. He
acknowledged that a court-martial is very expensive and DMVA
would seek applicable federal funds.
VICE-CHAIR LEDOUX asked for the unique elements of the Alaska
State Constitution that affect the proposed ACMJ and which
differ from the U.S. Constitution and its effects on UCMJ.
LIEUTENANT DUNBAR provided the examples of the Alaska State
Constitution's right to a unanimous jury verdict and the right
to a grand jury. Other provisions may arise. In further
response to Vice-Chair LeDoux, he said federal law does not
require a unanimous jury verdict. He clarified that the
proposed ACMJ, in order to comport with the Alaska State
Constitution, would require a unanimous decision by the panel,
which is equivalent to a jury.
2:24:38 PM
REPRESENTATIVE GRUENBERG expressed his interest in the proposed
Military Appeals Commission. There are "article 1 courts" that
are created by the legislature, and which differ from courts
created constitutionally and quasi-judicial bodies. He asked
whether court rules would apply, and cautioned that this is a
big issue.
MR. DOEHL said DMVA intends to search the administrative law
provisions in Alaska regarding boards and commissions in order
to capture what is required; in fact, the research in this
context is incomplete at this time.
LIEUTENANT DUNBAR stated his intent to work with Legislative
Legal Services, the Alaska Court System, and the Alaska Bar
Association on all of the issues that arise.
REPRESENTATIVE GRUENBERG directed attention to Version H on page
31, lines 6-10 which read:
(h) The adjutant general shall adopt regulations to
govern appellate procedure before the court. The
regulations shall be substantially similar to the
provisions for post-trial procedure and review of
courts-martial under 10 U.S.C 801 - 946. The
regulations must be approved by the governor.
Regulations adopted under this section are exempt from
AS 44.62 (Administrative Procedure Act).
REPRESENTATIVE GRUENBERG said the foregoing relates to the
Military Appeals Commission exemption from the Administrative
Procedures Act.
LIEUTENANT DUNBAR confirmed that many procedural regulations
mandated by HB 126 are exempt; however, the legislature retains
some oversight of the Military Appeals Commission.
REPRESENTATIVE TUCK asked for clarification.
2:29:57 PM
LIEUTENANT DUNBAR directed attention to Version H on page 4,
lines 1-2 which read:
(c) The regulations adopted under this section are
exempt from AS 44.62 (Administrative Procedure Act).
LIEUTENANT DUNBAR explained that the exemption is applicable to
the majority of the proposed regulations, such as the offenses
and non-judicial punishments.
REPRESENTATIVE TUCK directed attention to Version H on page 3,
lines 1-3 which read in part:
(a) The adjutant general shall by regulation adopt a
code of military justice consistent with this chapter
for members of the militia of the state not in federal
service;
REPRESENTATIVE TUCK said use of the word "shall" is inconsistent
with the bill on page 37, line 31 which read:
TRANSITION: REGULATIONS. The adjutant general may
adopt regulations to
2:31:42 PM
LIEUTENANT DUNBAR said this was a drafting error.
REPRESENTATIVE HUGHES understood that conduct unbecoming reaches
into the personal life of a military member. She asked whether
ACMJ would apply to guardsmen when they are not in uniform.
LIEUTENANT DUNBAR said yes. Certain rules apply only when one
is on duty but in general, guardsmen are held to standards when
in uniform or not.
2:34:34 PM
REPRESENTATIVE TUCK restated that only one court-martial is
expected per year.
LIEUTENANT DUNBAR said that is the best estimate based on
statistics from Washington and Oregon. The department has
estimated two per year in its fiscal note.
2:35:58 PM
REPRESENTATIVE TUCK directed attention to Version H beginning on
page 29, line 31, through page 31, line 10 which read:
Sec. 26.05.538. Military Appeals Commission. (a) The
Military Appeals Commission is established in the
Department of Military and Veterans' Affairs. The
commission is a quasi-judicial agency. (b) The
commission has jurisdiction to hear appeals from
sentences and punishments imposed by courts-martial
under the code of military justice. (c) The commission
consists of three members appointed by the governor
and confirmed by a majority of the members of the
legislature in joint session. A member shall be a
resident of this state and (1) be licensed to practice
law (A) in this state and be a member in good standing
with the Alaska Bar Association;(B) in another state
and be a member in good standing of the bar of that
state; or (C) as a member of the bar of a federal
court; (2) have engaged in the active practice of law
for at least five years; (3) be a former commissioned
officer in the armed forces of the United States or
the reserve components, or in the militia of a state;
and (4) have at least five years' experience as an
officer in the judge advocate general's corps of the
armed forces of the United States or the militia of
the state. (d) Except as provided in AS 39.05.080(4),
an appointee selected to fill a vacancy shall hold
office for the unexpired term of the member whose
vacancy is filled. A vacancy in the commission does
not impair the authority of a quorum of members to
exercise the powers and perform the duties of the
commission. (e) A member may be reappointed if the
reappointment complies with this section. (f) The
members of the commission shall select a chair from
among the members of the commission. The selection
shall be subject to the approval of the adjutant
general. (g) The governor may remove a commissioner
from office for cause including but not limited to
incompetence, neglect of duty, or misconduct in
office. A commissioner, to be removed for cause, shall
be given a copy of the charges and offered an
opportunity to be publicly heard in person or by
counsel in the commissioner's own defense upon not
less than 10 days' notice. If a commissioner is
removed for cause, the governor shall file with the
lieutenant governor a complete statement of all
charges made against the commissioner and the
governor's finding based on the charges, together with
a complete record of the proceedings. (h) The adjutant
general shall adopt regulations to govern appellate
procedure before the court. The regulations shall be
substantially similar to the provisions for post-trial
procedure and review of courts-martial under 10 U.S.C.
801 - 946. The regulations must be approved by the
governor. Regulations adopted under this section are
exempt from AS 44.62 (Administrative Procedure Act).
REPRESENTATIVE TUCK asked whether the foregoing section of the
bill related to the Military Appeals Commission, "is
satisfactory."
LIEUTENANT DUNBAR anticipated some changes to the language. One
of the key points to remember is that AKNG is a small
organization with few legal resources; therefore, AKNG seeks to
expand the number of people who can serve as judge advocates and
on the commission. Currently, the proposed bill contains
stringent conditions for those who serve on the commission. In
further response to Representative Tuck, he said the Military
Appeals Commission is an appeals court. The court-martial is
the trial court, the Military Appeals Commission is the
appellate court, and the last right to appeal is to the Alaska
Court of Appeals. In further response to Representative Tuck,
he said the language related to who may serve on the court-
martial court was included in HB 121, but is not in HB 126,
because it has not been determined whether this provision would
be in statute or regulation.
REPRESENTATIVE TUCK recalled discussing possible conflicts of
interest and impartiality, and offered to advise the sponsor on
this matter.
LIEUTENANT DUNBAR noted that HB 126 holds some provisions to
prevent conflicts, which is another reason to expand the pool of
those who can serve as defense and trial counsel.
2:41:12 PM
VICE-CHAIR LEDOUX asked for examples of actionable conduct
against a guardsman who is not on duty.
MR. DOEHL said those regulations have not been drafted or
approved; however, he suggested an example would be posting
one's military affiliation in conjunction with inappropriate
comments on social media.
VICE-CHAIR LEDOUX posed the situation in the above example
without a reference to one's military affiliation.
MR. DOEHL advised that the regulatory process needs to define
the shared expectations of conduct on duty and off duty, and to
establish notice to enlistees.
REPRESENTATIVE HUGHES asked for the term of service for
commissioners on the Military Appeals Commission.
LIEUTENANT DUNBAR directed attention to Version H, page 37,
lines 23-28 which read:
MILITARY APPEALS COMMISSION; STAGGERED TERMS.
Notwithstanding AS 26.05.538, enacted by sec. 4 of
this Act, and AS 39.05.055, the governor shall appoint
the members of the commission to staggered initial
terms as follows:
(1) one member shall be appointed for two years;
(2) one member shall be appointed for four years;
and
(3) one member shall be appointed for six years.
LIEUTENANT DUNBAR acknowledged the default term of service would
be inserted during interim.
REPRESENTATIVE GRUENBERG inquired as to whether there would be a
requirement that the commissioners have been admitted to the
[United States Court of Appeals for the Armed Forces].
LIEUTENANT DUNBAR said no.
REPRESENTATIVE GRUENBERG asked whether commissioners would be
subject to the Alaska Code of Judicial Conduct.
MR. DOEHL responded that additional discussion with the Alaska
Bar Association and the Alaska Court System is needed to define
and delineate the professional responsibilities of the
commissioners.
REPRESENTATIVE GRUENBERG asked for any comment on why
commissioners are appointed by the governor and confirmed by the
legislature instead of appointed by the Alaska Judicial Council.
LIEUTENANT DUNBAR suggested there would be further discussion on
this matter.
2:46:23 PM
REPRESENTATIVE TUCK inquired as to whether AKNG currently has
jail facilities or detention centers.
LIEUTENANT DUNBAR answered no. If a guardsman is imprisoned for
any length of time the bill specifies that he/she would go to
the Department of Corrections (DOC). In further response to
Representative Tuck, he explained that if a guardsman were
deployed overseas and committed an offense, AKNG would not be
involved, but the active duty military would investigate. The
military has all of the facilities of a free-standing judicial
system. During deployment, military members are in Title 10
status, and subject to the federal UCMJ.
REPRESENTATIVE TUCK directed attention to Version H on page 7,
lines 14-15 which read:
(a) A person confined as a prisoner under the code of
military justice shall be confined in a civilian or
military confinement facility.
REPRESENTATIVE TUCK observed that a guardsman convicted of a
crime in Alaska would be held by DOC, and asked whether AKNG
would need military confinement facilities.
MR. DOEHL said he did not envision building any confinement
facilities. The military bases have a memorandum of agreement
with DOC to provide confinement services.
REPRESENTATIVE GRUENBERG asked who would be admitted to practice
in the proposed tribunals.
LIEUTENANT DUNBAR said this question is under discussion with
the Alaska Bar Association; the sponsor prefers that an attorney
would not have to be admitted to the Alaska Bar to participate
in courts-martial because of the state's limited judge advocate
resources.
REPRESENTATIVE GRUENBERG gave an example of an attorney from
out-of-state who was hired to defend a client in a court-martial
or before the Military Appeals Commission.
LIEUTENANT DUNBAR stated the sponsor's intention is that an
attorney would be admitted to practice "somewhere," and duly
qualified as a judge advocate. He pointed out that outside
civilian counsel must be qualified to practice law in Alaska.
In further response to Representative Gruenberg, he said in a
proceeding in a federal court-martial, an attorney can practice
anywhere in the country.
REPRESENTATIVE HUGHES returned to the topic of possibly needing
a holding facility or a memorandum of agreement for confinement
services, and noted that this is not reflected in the bill's
fiscal note.
MR. DOEHL stated that the probability is very low, but the
possibility would be examined.
2:53:36 PM
REPRESENTATIVE TUCK inquired as to why the inappropriate use of
social media is not already in regulation.
LIEUTENANT DUNBAR returned attention to slide 8 and noted that
social media issues are addressed by letters of reprimand,
administrative action, and administrative separation, although
administrative separation takes a long time to process.
MR. DOEHL, in further response to Representative Tuck, added
that AKNG now has the means to initiate action against
inappropriate social media posting; however, in some instances
action is required beyond letters of reprimand, but short of
separation.
2:55:12 PM
REPRESENTATIVE GRUENBERG removed his objection.
[There being no further objection, Version H was before the
committee.]
2:55:20 PM
VICE-CHAIR LEDOUX opened public testimony on HB 126. After
ascertaining that no one wished to testify, public testimony was
closed.
REPRESENTATIVE COLVER said that quite a lot of work was yet to
be done on the bill and recommended delaying action until the
committee receives a new proposed CS.
2:57:29 PM
REPRESENTATIVE COLVER moved to adopt Amendment 1, labeled 29-
LS0473\H.1, Strasbaugh, 3/25/15 which read:
Page 5, line 16:
Delete "the state"
Insert "a state or of an active or reserve
component of the armed forces or another uniformed
service of the United States"
Page 11, line 6:
Delete "the state"
Insert "a state or of an active or reserve
component of the armed forces or another uniformed
service of the United States"
Page 30, line 16:
Delete the third occurrence of "the"
Insert "a"
2:57:49 PM
VICE-CHAIR LEDOUX objected for discussion purposes.
LIEUTENANT DUNBAR explained that Amendment 1 amends the bill to
expand who can be involved in the military justice process. As
the bill is currently written, one who serves as a judge
advocate must be a commissioned officer of AKNG. The intent of
the amendment is to expand the pool of those who can work as a
judge advocate before courts-martial to include those from other
states, from active or reserve forces, or from active duty
members at Joint Base Elmendorf-Richardson or Fort Wainwright.
REPRESENTATIVE GRUENBERG directed attention to a memo from
Kathleen Strasbaugh, Legislative Counsel, Legislative Legal
Services, dated 3/25/15, which was included in the committee
packet, and in which questions are raised. Noting that
Representative Herron, sponsor of the amendment, was not
present, he suggested that Amendment 1 be held for further
discussion.
3:00:02 PM
VICE-CHAIR LEDOUX agreed.
HB 126 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 126 - ACMJ Presentation V4.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 - CS version H.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 - Fiscal Note - COR.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 - Fiscal Note - MVA.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 - Fiscal Note -ACS-APP-03-20-15.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 Sponsor Statement.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |
| HB126 SECTIONAL ANALYSIS - ver H_Edited.pdf |
HMLV 3/26/2015 1:00:00 PM |
HB 126 |