04/14/2015 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB5 | |
| HB126 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 5 | TELECONFERENCED | |
| + | HB 126 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 2015
1:06 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Bob Lynn
Representative Matt Claman
Representative Max Gruenberg
MEMBERS ABSENT
Representative Neal Foster
Representative Charisse Millett
Representative Kurt Olson (alternate)
COMMITTEE CALENDAR
SENATE BILL NO. 5
"An Act relating to loss of income and valuing property for
orders of restitution."
- MOVED SB 5 OUT OF COMMITTEE
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."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 5
SHORT TITLE: RESTITUTION: PROPERTY AND INCOME LOSS
SPONSOR(s): SENATOR(s) MICCICHE
01/21/15 (S) PREFILE RELEASED 1/9/15
01/21/15 (S) READ THE FIRST TIME - REFERRALS
01/21/15 (S) L&C, JUD
02/19/15 (S) L&C AT 1:30 PM BELTZ 105 (TSBldg)
02/19/15 (S) Moved SB 5 Out of Committee
02/19/15 (S) MINUTE(L&C)
02/20/15 (S) L&C RPT 5DP
02/20/15 (S) DP: COSTELLO, STEVENS, GIESSEL, MEYER,
ELLIS
02/20/15 (S) FIN REFERRAL ADDED AFTER JUD
03/02/15 (S) JUD AT 1:00 PM BUTROVICH 205
03/02/15 (S) Heard & Held
03/02/15 (S) MINUTE(JUD)
03/09/15 (S) JUD AT 1:30 PM BUTROVICH 205
03/09/15 (S) Moved SB 5 Out of Committee
03/09/15 (S) MINUTE(JUD)
03/11/15 (S) JUD RPT 4DP 1NR
03/11/15 (S) DP: MCGUIRE, COSTELLO, MICCICHE,
COGHILL
03/11/15 (S) NR: WIELECHOWSKI
03/17/15 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/17/15 (S) Moved SB 5 Out of Committee
03/17/15 (S) MINUTE(FIN)
03/18/15 (S) FIN RPT 4DP 2NR
03/18/15 (S) DP: MACKINNON, MICCICHE, BISHOP,
DUNLEAVY
03/18/15 (S) NR: HOFFMAN, OLSON
03/25/15 (S) TRANSMITTED TO (H)
03/25/15 (S) VERSION: SB 5
03/27/15 (H) READ THE FIRST TIME - REFERRALS
03/27/15 (H) JUD
04/14/15 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 126
SHORT TITLE: CODE OF MILITARY JUSTICE; APPEALS
SPONSOR(s): JUDICIARY
02/25/15 (H) READ THE FIRST TIME - REFERRALS
02/25/15 (H) MLV, JUD
03/24/15 (H) MLV AT 1:00 PM CAPITOL 120
03/24/15 (H) -- MEETING CANCELED --
03/26/15 (H) MLV AT 1:00 PM CAPITOL 120
03/26/15 (H) Heard & Held
03/26/15 (H) MINUTE(MLV)
03/31/15 (H) MLV AT 1:00 PM CAPITOL 120
03/31/15 (H) Moved CSHB 126(MLV) Out of Committee
03/31/15 (H) MINUTE(MLV)
04/01/15 (H) MLV RPT CS(MLV) NT 3DP 4AM
04/01/15 (H) DP: LYNN, LEDOUX, HERRON
04/01/15 (H) AM: TUCK, GRUENBERG, COLVER, HUGHES
04/14/15 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR PETER MICCICHE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 5 as prime sponsor, and
answered questions.
CHUCK KOPP, Staff
Senator Peter Micciche
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing on SB 5, offered a
sectional analysis and answered questions.
CHRIS NETTLES, President
GeoTek Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: During the hearing on SB 5, offered the
support of the National Federation of Independent Business and
GeoTek Alaska in strengthening restitution laws.
NANCY MEADE, General Counsel
Administrative Staff
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: During the hearing on SB 5, answered
questions.
STACI SHROEDER
Assistant Attorney General
Criminal Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing on SB 5, answered
questions.
THOMAS BROWN, Staff
Representative Gabrielle LeDoux
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented and answered questions during the
hearing on HB 126, on behalf of the House Judiciary Standing
Committee, prime sponsor.
LIEUTENANT FOREST DUNBAR, First Lieutenant
Judge Advocate Officer
Alaska Army National Guard
Joint Base Elmendorf-Richardson, Alaska
POSITION STATEMENT: During the hearing on HB 126, offered
testimony and answered questions.
BOB DOEHL, Deputy Commissioner
Commissioner's Office
Department of Military and Veterans Affairs (DMVA)
Joint Base Elmendorf-Richardson, Alaska
POSITION STATEMENT: During the hearing on HB 126, answered
ACTION NARRATIVE
1:06:21 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:06 p.m. Representatives
Keller, Lynn, Claman, Gruenberg, and LeDoux were present at the
call to order.
SB 5-RESTITUTION: PROPERTY AND INCOME LOSS
1:07:07 PM
SENATOR PETER MICCICHE, Alaska State Legislature, said SB 5
strengthens Alaska restitution laws, assists in restoring crime
victims to a pre-offense condition, and protects the property
interests of all Alaskans. According to the 2013 Department of
Public Safety Annual Report, Alaskans suffered over $23 million
in loss due to property crimes, which is up more than 12 percent
since 2011. A fundamental component of Alaska court ordered
restorative justice is making crime victims whole. He explained
that SB 5 addresses a language inconsistency in statutes
speaking to restitution as a provision of sentencing, and the
statutes have a provision of probation resulting in persons and
businesses affected by crime receiving compensation [only] for
loss and victim restitution orders. He noted that SB 5
reconciles this inconsistency under a provision of sentencing
adding a public policy consideration calling for offenders to
compensate victims for damages and injury, including loss of
income. The bill defines loss of income as a total loss of
income a business or person may lose due to not having stolen
property available for the period of time it takes to replace
that property, he stated. The new language directs courts,
while making determinations of loss for restitution, to value
property as the market value of the property at the time and
place of the crime, or a reasonable time after the crime. The
bill amends, as a condition of probation, establishing the same
standard as in AS 12.55.045, and restitution as a condition of
sentencing.
1:09:12 PM
SENATOR MICCICHE pointed out that current inconsistency in
Alaska's restitution laws contributed to a recent Alaska
Appellate Court decision that is problematic to Alaskan and
their property interests. The 9th Circuit Court of Appeals
found in Lori S. Welsh v. State of Alaska, No. A-11197 (2013),
that restitution orders, as a condition of sentencing or
probation, would be restricted to actual damages or loss
suffered by the victim. In that regard, there is no
consideration of the market value of the property or loss of
income to the crime victim. He offered that within his district
there have been a rash of drug related crimes where folks are
looking for money for additional drugs. Within his district, he
described, there is a small water well drilling company and some
folks broke in one night and literally trashed that vehicle for
all of the copper on board, the welding leads, and all the
wiring harnesses. He commented that the company was out of
business for weeks and it was within the portion of the season
with the highest amount of activity. The way the law stands, he
explained, the court is [not] instructed to consider loss of
income in restitution. The bill reconciles that inconsistency
in the restitution orders so that the law clearly considers loss
of income as a real loss to persons and businesses, and the
court should make that consideration when determining
restitution orders. He observes the rights of perpetrators but,
he expressed, prefers to protect the rights of victims higher
with just and fair restitution orders from the courts. He
described SB 5 as a substantial step in that direction.
1:11:17 PM
CHUCK KOPP, Staff, Senator Peter Micciche, Alaska State
Legislature, advised that Section 1 of the bill clearly states
public policy preference that the court consider loss of income
in issuing restitution orders. He reiterated Senator Micciche
in that Sec. 2 adds a new definition for loss of income
specifying the inclusion of the total loss of income that a
business or person suffers as a result of not having this
property available for the period of time it takes to replace
the property. He pointed to Sec. 3 and remarked that it directs
the court when making determinations of loss for restitution to
[include the] value of property as the market value at the time
and place of the crime, or if that cannot be easily ascertained
the cost of replacement. He extends this is taken directly from
AS 11, criminal statutes where the courts determine value under
the criminal law for property so it is the same language
commonality in statute there. He explained that Sec. 4 speaks
to conditions of restitution as a provision of probation and it
makes amended language so that it is consistent with conditions
of restitution for sentencing stating, "the court will determine
the amount of actual damages or loss under the paragraph by
valuing property as the market value of the property at the time
and place of the crime, or if it cannot reasonably be
ascertained the cost of replacement of the property within a
reasonable time after the crime." The language brings in line
the provisions of restitution under sentencing and the
provisions of restitution under probation so that the standard
is the same and the court, in both circumstances, he explained,
can consider the loss of income to businesses and persons in
determining restitution orders. He related that it is not
mandatory as the law declares that the court will consider this.
He reiterated Senator Micciche's comments in that the retail
value in many cases is properly recognized as the replacement
cost, and additionally, it is not just the items stolen but the
cost of project delays and project cancelation. Off road system
[theft or damage] can cost the season and liquidated damages
begin depending upon what is stolen or damaged from the job site
and, he related, how long it takes to replace that property.
There is broad based support for SB 5 from businesses and
persons across Alaska, he opined.
1:14:08 PM
REPRESENTATIVE GRUENBERG asked whether the bill deals with loss
of income and valuation of property.
MR. KOPP answered in the affirmative.
REPRESENTATIVE GRUENBERG offered his concern regarding valuation
of property in that the bill requires the court to value the
property "at that amount, using that standard," which is
different from just requiring the court to take into account the
loss of income. He questioned whether the intent is to require
the court to use that measure of value, and pointed out there
different methods of valuing property, such as, the cost of
replacement or, in the area of income producing property to
value it as stolen income producing property that was stolen,
which would be similar to dealing with loss of income. Another
method in reviewing the value of similar properties could be
that someone shoots an unreplaceable prized animal, but would be
[evaluated] as similar animals. He suggested that the sponsor
may consider giving the court discretion in making
determinations. Representative Gruenberg referred to [page 2],
lines 16, 28-19, and suggested the following language: "value
property at the market value," thereby substituting "as" for
"at." Connected with that, the term normally used at the law is
the "fair market value" and he recommended using the term as it
is in the law. One of the really harsh rules is when a person
is insured and their car is totaled, it is valued on a basis
that is not the replacement cost but much less, he remarked.
CHAIR LEDOUX asked that Representative Gruenberg stay with
issues related to SB 5.
1:18:39 PM
SENATOR MICCICHE responded that this bill language is permissive
and does not dictate the method of valuation as each case will
differ depending upon the circumstances. He advised that the
intent of the bill is that not every Alaskan can go to Costco
and purchase a new generator [that day] as it may have to be
shipped on a $2,000 flight across the Inlet. He offered a
scenario of someone in a boat, stealing a generator, is then
caught, and the thief does not owe the victim for a $1,000
generator - they owe the victim for a $3,000 generator. The
intent of the bill is that the court consider the actual cost of
that object at the site at the time [of theft] and, pointed out
that the bill is permissive enough to not steer the court on how
it will value each item, rather that the actual value of the
item is considered.
REPRESENTATIVE GRUENBERG suggested that rather than requiring
[the court] to value it, add the language crafted at the
beginning of the bill.
1:19:59 PM
MR. KOPP replied that this issue came up in the other body and
the language on page 1, lines 14-15, is clearly permissive as it
reads, "In determining the amount and method of payment of
restitution or compensation, the court shall take into account
..." He offered the language does not tell the court ...
REPRESENTATIVE GRUENBERG argued that it deals with loss of
income, the suggestion he previously made deals with damage or
loss of restitution.
MR. KOPP explained that the entire section deals with
restitution orders and sentencing, a predecessor to Sec. 2,
which is permissive. It reads that a public policy favors
requiring criminals to compensate for damages and injury,
including loss of income. He offered that loss of income is
internally consistent in that section as it is stated later in
the same section with respect to someone who might steal
commercial fishing gear, set net gear, drift gill net gear, or
trolling gear that the court will consider loss of income in
that consideration, "again, consider loss of income." He
pointed out that the reference to "considering" is consistent
"taking into account" is consistent throughout the statute and
is something that is not a new concept, and highlighted it as a
public policy priority.
1:21:49 PM
CHAIR LEDOUX related that the time for amendments has passed and
she will not slow down the bill at the end of the session for an
amendment which could have been made and been introduced to the
House Judiciary Standing Committee in compliance with the 24-
hour rule.
REPRESENTATIVE GRUENBERG pointed out that he does not believe
that subsection (o) is limited to loss of income.
MR. KOPP submitted that market value is a well-defined term in
criminal law under AS 11.46.980, which is the same standard used
by the courts to determine property valuation with respect to
thefts and burglary in property crimes.
1:23:06 PM
REPRESENTATIVE CLAMAN opined that as a statistical matter the
public defender would say that 80-85 percent of criminal
defendants are public defender eligible and usually do not have
a lot of money. He questioned whether this changes the court's
fundamental obligation to make a determination about the ability
to pay or set restitution schedules consistent with how much
money the defendant can actually earn. He advised he supports
restitution and also does not like the idea of creating debtor's
prisons or sending people back to prison because they can't pay.
He asked how the bill impacts the obligation of the ability to
pay.
SENATOR MICCICHE explained that current Alaska law does not
allow a person in prison solely due to the inability to pay
under AS 12.55.051(a) and (c). He offered that perpetrators of
a crime usually have no idea of the ultimate value of the damage
and his goal is to get the perpetrator out of prison as quickly
as possible, turn their lives around, and be put on a reasonable
restitution payment plan. He further offered that AS
12.55.051[(c)] reads:
... If, at a hearing under this subsection, the
defendant proves by a preponderance of the evidence
that the defendant will be unable through good faith
efforts to satisfy the order requiring payment of the
fine or restitution, the court shall modify the order
so that the defendant can pay the fine or restitution
through good faith efforts ...
SENATOR MICCICHE pointed out there is no potential for a
debtor's prison in Alaska law, and no value to the victim even
when retrieving cents on the dollar. He opined that it largely
represents the expectation of the perpetrator to do their best
to provide restitution to the victim.
1:26:01 PM
REPRESENTATIVE CLAMAN submitted that a generator could be
running for 10-years before being stolen and the old generator
is worth less than $500, but the practical reality of locating a
10-year old replacement is hard to imagine. He surmised this
bill allows the court make the determination of [replacement]
value.
SENATOR MICCICHE responded he has faith that common sense will
prevail.
CHAIR LEDOUX opened public testimony.
1:28:00 PM
CHRIS NETTLES, President, GeoTek Alaska, Inc., said he is
testifying on behalf of the National Federation of Independent
Business, and as primary owner of GeoTek Alaska. He pointed out
how important it is to a business to strengthen restitution
laws, and offered that within his business a snow machine was
stolen from an off-road site, and fortunately it was stolen
after the project had been completed. However, he said, had the
machine been stolen before the project, his business would not
only have undergone the cost of replacing the snow machine, but
the cost of getting another one to the site. On top of that
issue, a company may be under contracts and standby costs, and
suffer liability or loss due to not meeting the contract time.
When reviewing the cost of an item or damage performed by a
perpetrator, it is not just the cost for that item as there are
many other costs possibly included for one item that is
essential to a project. It is important that victims receive
restitution from perpetrators, if possible, he expressed.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
1:31:44 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, [Advised she is available to answer questions.]
REPRESENTATIVE GRUENBERG offered his concern regarding Sec. 3-4
of the bill and opined that subsection (o) which will be added
in Sec. 3, would not be limited to a determination of loss of
income language at page 1, "requiring the court to take that
into account." He further opined the new subsection (o) would
not be permissive but would require the court to value the
property at the fair market value.
MS. MEADE responded that the legal interpretation of the bill is
something the court system does not normally provide as it would
be a better question for Legislative Legal and Research
Services. She offered that from the court system's point of
view, this does clarify how to apply some currently inconsistent
statutes, which the court can easily apply. At restitution
hearings there are currently arguments and discussion brought
forth regarding valuation of property, she explained. This bill
offers more guidance for the court which, she noted, is
something the judges appreciate and reiterated it clarifies some
inconsistencies. She did not see a problem with courts applying
it as written, she remarked.
1:34:16 PM
STACI SHROEDER, Assistant Attorney General, Legal Services
Section, Department of Law, asked Representative Gruenberg to
briefly restate the question.
REPRESENTATIVE GRUENBERG turned to Sec. 3, and asked whether
that subsection would only apply to property involved in loss of
income. He opined it is a standalone section under restitution
and compensation, AS 12.55.045, not all of which involves income
producing property or property involved in the loss of income.
He surmised that subsection (o) applies to income producing
situations and non-income producing situations.
1:35:42 PM
MS. SCHRODER answered that she reads subsection (o) as applying
to the entire statute and not being limited in clarifying how
the court should value property.
REPRESENTATIVE GRUENBERG agreed that it is just not a factor to
be taken into consideration, but "in a non-income situation the
court would have to value it at that method." He opined it is
not all bad, but there may be other ways the court would want to
have some leeway.
REPRESENTATIVE KELLER pointed out that is not necessarily bad as
it applies to all restitution compensation.
1:36:38 PM
The committee took an at-ease from 1:36 to 1:38 p.m.
1:38:50 PM
CHAIR LEDOUX referred to the discussion of whether or not there
is a grammatical error on [page 2], lines 16, 28-29, which read:
... shall value property as the market value of
the property ...
CHAIR LEDOUX submitted that the sponsor does not believe it is a
grammatical error.
SENATOR MICCICHE pointed out that when reading the whole
sentence "the court shall value property ..." which is taking
the value and valuing it "as" the market value of the property.
He said that "at" the market value of the property would be
looking at one singular item. The bill says, "it is valued as
the market value of the property," and he does not see it as a
grammatical error as it fits, it went through the Department of
Law, and Legislative Legal and Research Services, who all agreed
that is the correct language, and for all intents and purposes
it is fully functioning as written.
1:40:02 PM
REPRESENTATIVE KELLER moved to report SB 5, labeled 29-LS0109\H,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, SB 5 moved
from the House Judiciary Standing Committee.
1:40:28 PM
The committee took an at-ease from 1:40 to 1:44 p.m.
HB 126-CODE OF MILITARY JUSTICE; APPEALS
1:44:46 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE BILL NO. 126, "An Act relating to the administration of
military justice; relating to the adoption of a code of military
justice by the adjutant general; relating to the authority of
the adjutant general; relating to appeals of convictions and
sentences of courts-martial; establishing the Military Appeals
Commission; relating to the detention and incarceration of
members of the militia; relating to the jurisdiction of the
court of appeals; relating to involuntary commitment for
evaluation or treatment of a mental disease or defect before
court-martial proceedings; and providing for an effective date."
[Before the committee was CSHB 126, labeled 29-LS0473\E.]
1:45:00 PM
THOMAS BROWN, Staff, Representative Gabrielle LeDoux, Alaska
State Legislature, said he will give a brief overview of HB 126,
offer a sectional analysis, and Lieutenant Forrest Dunbar will
then provide an overview. Mr. Brown explained that HB 126 is
legislation crafted at the request of Alaska's military command
requesting greater authority and latitude in pursuing and
prosecuting service members who violated military rules and
protocols. This version of the bill is a synthesis of a
separate bill presented by Representative Chris Tuck, HB 121,
which sought the same ends as HB 126, but came at the result
from a different means. This bill seeks to grant authority to
the Department of Military and Veterans Affairs (DMVA) and allow
the creation of regulations to govern themselves.
Representative Tuck's bill, HB 121, sought the same but chose
statute as opposed to regulation.
MR. BROWN advised the sectional analysis lays out the result of
that synthesis.
1:47:23 PM
REPRESENTATIVE GRUENBERG advised he received pages 44-54, HB
121, Representative Tuck's bill, and asked where the language
originated.
1:47:51 PM
LIEUTENANT FOREST DUNBAR, First Lieutenant, Judge Advocate
Officer, Alaska Army National Guard, advised Representative
Gruenberg that he sent pages 44-45 to him after their meeting,
and that the language came from the Model State Code [of
Military Justice] created by the National Guard Bureau.
REPRESENTATIVE GRUENBERG asked Lieutenant Dunbar whether he will
identify what portion of the bill is from the Model State Code
of Military Justice, and what is not.
CHAIR LEDOUX interjected that the bill is not moving out of
committee today, therefore, the committee can meet and craft the
perfect bill before attending the second session of the
legislature in January.
1:48:50 PM
LIEUTENANT DUNBAR advised that the vast majority of the language
in HB 126, whether originally HB 126 or brought across from HB
121, is taken from the Model State Code of Military Justice
created by the National Guard Bureau.
1:49:40 PM
MR. BROWN offered the following sectional analysis which read
[original punctuation provided]:
CODE OF MILITARY JUSTICE; APPEALS
Section 1, page 1 - amends 22.07.020. Designates the
jurisdiction of the court of appeals over actions and
proceedings in a military court;
Section 2, page 2 - amends 26.05.140(a). Eliminates
protection from criminal liability for Guard members
charged with crimes resultant from their duties and
clarifies that any exemption from liability will not
apply to offenses under the Alaska Code of Military
Justice.
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 to include,
p.3:
- Organization and conduct of courts-martial;
Provide for non-judicial 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;
- Designation the 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, jurisdictions, and convening authorities of
courts-martial, p.8-11;
- Lays out requirements for who may serve on
courts-martial, and specifies that a Guardsman cannot
be tried by a service member lower ranking than
themselves, p. 11.
- Provides the requirements for military judges,
p. 12
- 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.
1:50:24 PM
MR. BROWN referred to Sec. 4, pages 2-36, and advised it is the
meat of the bill of which a large portion comes from
Representative Tuck's HB 121, and explained it instructs the
adjutant general to adopt regulations for a Code of Military
Justice.
1:56:05 PM
LIEUTENANT DUNBAR offered a slide show depicting efforts to
create a system whereby soldiers and airmen can effectively be
disciplined using the Alaska Code of Military Justice. The vast
majority of funding for the Alaska National Guard comes from the
federal government and, he expressed, "in a sense, we get very
good bang for our buck as a state."
He explained that he is currently paid by the federal government
because it wants the state to have a common effective force, and
this process of creating a new Code of Military Justice will
assist in that endeavor.
He referred to slide 3, and stated that the Code of Military
Justice will allow the Alaska National Guard Commanders to
administer courts-martial and potentially convict guardsmen of
offenses. He pointed out it also offers tools to perform "Non-
Judicial Punishment," which is usually offenses more minor than
those warranting court martial, and allows commanders to quickly
discipline guardsmen using suspensions, fines, and sometimes a
bust in rank. He remarked this is an important part of HB 126
in that Alaska is one of few states that does not have this type
of Code, as most states have these regulations and use them to
good effect. The bill is not attempting to replace a judicial
system, he emphasized, in attempting to convict every offense
that guardsmen potentially commit. The policy of the prior
Territorial National Guard, carried forward in HB 126, is that
if an offense is cognizable under civilian law such as, a theft,
homicide, sexual assault, the default is that it would be
prosecuted by civilian authorities. He related that manner is
the strong preference of the National Guard as it does not have
its own police force, jail, or specialized prosecutors to deal
with issues like sexual assault.
1:59:44 PM
LIEUTENANT DUNBAR said there may be cases where civilian
authorities decline to prosecute something that the general
public believes is an offense. For example, he offered, the
most recent scandal involving the National Guard was behavior by
guardsmen involving sexual relations with recruits. The
civilian authorities, for a variety of reasons, decided not to
prosecute as perhaps there was not enough evidence or it didn't
tightly fit the definition of sexual assault but, he related,
there are military offenses broad enough wherein the offenders
could potentially be pursued for things like dereliction of
duty, conduct unbecoming an officer, drunk on duty. Those
offenses will be put into regulation should HB 126 pass,
although it is anticipated there will be a relatively small
number of courts-martials due to settlement. He referred to
slide 4, and advised there are three legs to Good Order and
Discipline, being: Administrative actions such as separation,
letters of reprimand; Alaska Criminal Law which applies to
soldiers and airmen living in the state; and, Alaska Code of
Military Justice allowing the power of courts-martial and non-
judicial punishment. Had this leg to Good Order and Discipline
been present prior to the activities leading to the scandal, he
said there is no way to know, but it would have increased the
likelihood of bringing Good Order and Discipline to those units
more quickly.
2:02:21 PM
REPRESENTATIVE GRUENBERG offered that in order to determine how
well the current system works, or how well this could have
worked, this committee may consider going into executive session
as to what actually occurred in the investigation previously.
He advised he is raising that issue now in light of certain
procedures to undertake should the committee decide to subpoena
people. He remarked he does not know whether those procedures
must be performed before the legislature adjourns.
CHAIR LEDOUX asked if he had a question for Lieutenant Dunbar.
REPRESENTATIVE GRUENBERG asked whether the attorneys involved in
this process are member of the Alaska Bar Association because if
they are Alaskan attorneys they would be familiar with Alaska
Statutes and Alaska procedures which will have relevance in his
following questions.
LIEUTENANT DUNBAR responded that the National Guard has members
of the Alaska Bar Association and those that are not, although
the majority are members of the Alaska Bar Association.
2:05:14 PM
REPRESENTATIVE GRUENBERG submitted that in going through [the
bill] will determine which proposed statutes are actually taken
from "Model Code," and questioned whether there is a body of law
for reference, for example, fraudulent enlistment. In that
regard, is there an annotated code somewhere so the committee
can determine how courts have previously interpreted the
statute.
LIEUTENANT DUNBAR advised he is holding a document published by
the National Guard Bureau, but it does not have quite the detail
he believes Representative Gruenberg was referring. It mostly
refers to the attendant regulations in the Uniform Code of
Military Justice (UCMJ), which contains vast case law associated
with it.
2:06:25 PM
REPRESENTATIVE GRUENBERG surmised that if this is taken from the
regulations under the Code, the lawyers involved will be able to
see how this language has been interpreted by other courts.
LIEUTENANT DUNBAR answered in the affirmative.
2:06:38 PM
REPRESENTATIVE GRUENBERG asked whether the committee will be
informed in individual cases whether the language selected under
the crimes are different than the "Model Code."
LIEUTENANT DUNBAR replied that this issue is later in his
presentation wherein he describes the process by which they hope
to determine the actual "Code" itself. He opined he will start
with a base line of the "Model Code," and through input with
this committee, through the chain of command, soldiers, and
people he is in contact with at the Judge Advocate Legal Center
and School, and there may be offenses taken out, added, or
changed. He pointed out that "absolutely" they will provide
guidance in a document to show where it differs from the strict
"Model Code."
2:07:46 PM
REPRESENTATIVE GRUENBERG remarked that Lieutenant Dunbar chose a
military model with the "Model Code," yet on the other hand some
of these in the offense area deal with issues that are defined
in the Alaska Criminal Code, Title 11, such as, attempts,
solicitation, and conspiracy. In the interim, he surmised,
Lieutenant Dunbar will be prepared not just to talk about the
geneses coming from the "Model Code," but the alternative
whether there is any difference between that and Title 11. He
advised his last statement refers to members of the Alaska Bar
Association because they will likely be more familiar with Title
11 than the "Model Code."
LIEUTENANT DUNBAR answered that the guard members most involved
in this process over the interim are members of the Alaska Bar
Association, primarily based at Joint Base Elmendorf-Richardson
(JBER) and hope to work closely with his office on exactly those
types of questions.
2:09:20 PM
LIEUTENANT DUNBAR noted that slide 5 goes to Representative
Gruenberg's point in that there is already existing relevant
law: the Territorial Era Military Code, Title 26 of Alaska
Statutes, but it does not establish a Code of Military Justice;
the Alaska Criminal Code which in most cases will provide for
prosecutions and punishments for the most serious offenses; and
the Federal Uniform Code of Military Justice (UCMJ) which is a
fairly comprehensive criminal code with offense such as homicide
and theft and the like. He noted that the Federal Code only
applies to guard members when in a Fully Federalize status. He
referred to slide 6, and indicated that status is an important
part of the puzzle of which there are three main statuses:
Titles 32, 10, and state active duty. He explained that Fully
Federalized is under Title 10, when guardsmen are sent to Iraq,
Afghanistan, or other missions under the full command of the
federal forces, they are subject to the Federal UCMJ. However,
he explained, when they are in Title 32 status, which is what
most guards people are on most of the time when on their drill
weekends, for example. He offered that they are not subject to
the Federal UCMJ despite the fact they are usually paid by the
federal government. These individuals are paid by the federal
government yet commanded by the governor, State of Alaska, and
Adjutant General, and are not subject to the Federal UCMJ.
State active duty would typically be for disaster response and
commanded by the state and paid by the state, he explained.
2:11:19 PM
LIEUTENANT DUNBAR referred to slide 7, and offered there is a
gap in the law at the moment in that military offenses cannot be
prosecuted at the moment as the appropriate law to prosecute are
not on the books for military offenses when on Title 32, or
state active duty. Which, he related, means certain things are
not available such as, dishonorable discharge as the Alaska
National Guard cannot and have never dishonorably discharged a
member using state law. The "worst thing" they can do is "other
than honorable characterization of service," and there are times
where other than honorable discharge is not sufficient as
dishonorable discharge would be more appropriate. He pointed
out that is a tool he would like available by passing HB 126.
[Side 8 is a duplicate of slide 4.] He referred to slide 9,
depicting the five primary tools used to enforce Good Order and
Discipline: Administrative actions; Administrative separation;
and Alaska criminal law are all currently available, yet non-
judicial punishment and courts-martial under the ACMJ are not.
He referred to slide 10, which depicts the plan of action and
reiterated that HB 126 is a synthesis between HB 121 and HB 126,
which was joined within the Military & Veterans Affairs Standing
Committee. The bill includes several amendments the National
Guard asked for to expand the type of soldiers and airmen that
can be involved on courts-martial. He expanded that it gets to
the resource constraints they have in the guard in that it is a
small guard with relatively few Judge Advocate and other legal
resources. He stressed that the Alaska National Guard needs to
be able to draw upon other guards and the active duty components
that exist in this state. He expressed that HB 126 is a good
bill which would lead to a functioning system of military
justice; however, it can be refined in a number of ways. This
bill empowers the National Guard to create substantive offenses
and regulation and a Non-Judicial Punishment (NJP) regulation
instead of putting them in statute. He opined that was the
preference of his command. Over the course of the interim the
hope is to draw upon commanders and more junior soldiers to
gather their input on what that should look like. It is his
plan that in the late fall or early winter to bring it to the
House Judiciary Standing Committee and other members of the body
and say, "if you pass
2:15:08 PM
REPRESENTATIVE GRUENBERG referred to slide (Indisc.) wherein a
choice was made to indicate a middle ground, although as a
practical matter, most of the criminal offenses under Alaska law
will remain with the state. He asked why Lieutenant Dunbar
didn't say that the National Guard will take the Uniform Code of
Military Justice (UCMJ) except for the following, and carve out
a few things but basically there is a well-developed already
existing body of law with many reported decisions and it was
clear where it wouldn't fit in Alaska. As far as the interface
between that and Title 11, there is now a statute that says
normally if it is a civilian crime it goes to the civilian
authorities. In that regard, the wheel would not have to be re-
invented.
2:16:53 PM
LIEUTENANT DUNBAR replied that it is his intention not to re-
invent the wheel, and perhaps taking a slightly different wheel
than the UCMJ, as he will draw upon what other states have done
who have taken much of what they have done from the National
Guard Bureau. He reiterated the National Guard Bureau is
distinct from the active duty component. The National Guard
Bureau itself is a synthesis and only takes out parts of the
Federal UCMJ, and the Federal UCMJ itself is currently going
through a state of flux. He advised that the Federal UCMJ does
not directly apply in all cases for a variety of reasons.
Contained within this bill are provisions specific to Alaska,
such as, the Model State Code and UCMJ requires only two-thirds
of a panel for conviction in a courts-martial. He asserted that
the Alaska State Constitution provides a stronger right to a
unanimous jury verdict and so the law was changed to provide the
unanimous right through a panel decision to guard's members
which, he opined, is appropriate to the state law. He further
replied to Representative Gruenberg's question and posited that
the drafters of HB 121, in particular, and HB 126 drew much of
the language from the "State Mode Code" from the National Guard
Bureau rather than directly from the UCMJ, which is appropriate.
Differing areas, he offered, is that the "State Model Code" is
not perfect and has some things a bit archaic, such as, dueling.
He stated that they are in contact with a Major, considered a
legal academic at the JAG Legal Center and School, and said that
she and her students are working on this process and looking for
ways to update the Federal UCMJ, and also state codes in a
manner that makes them more relevant for the modern era.
2:19:30 PM
REPRESENTATIVE GRUENBERG pointed out that he sees potentially
four different things: the Federal UMCJ, the state general UCMJ
that other states are using, "our thing," and Title 11.
2:19:59 PM
CHAIR LEDOUX expressed concern in leaving so much to the
regulations as she may feel more comfortable working on this
over the interim, putting the basics into statute and then
issues more peripheral through regulations.
2:20:40 PM
LIEUTENANT DUNBAR responded that he does not want to leave the
committee with the impression that there is not a lot of
substantive law in the current statutes as it a 39-page bill.
There are many constraints in the bill and they are appreciative
of the notion that their ability to create substantive offenses
is a considerable power they are being entrusted with. He
offered that Oregon is the state they drew on closely and does
it through regulation. He advised that he and Representative
Gruenberg discussed the possibility of a legislative review
process.
2:21:42 PM
CHAIR LEDOUX pointed out that the language in the bill is not
even subject to the Administrative Procedure Act, and basically
the legislation is giving the National Guard carte blanche, and
there may be discomfort in that.
2:22:01 PM
LIEUTENANT DUNBAR opined that he would not characterize it as
carte blanche as there are a number of constraints in the bill,
but it is true that they are being given more regulatory
authority over their own guard people than other agencies
typically receive over the general public. The reason being
that they swear oaths to uphold the Constitution and also follow
every general command. The degree to which the commanders can
already regulate its soldiers and airmen through orders could
surprise people. For example, an order could read "Don't do
this broadly," as an order does not have to be directly to a
guardsman, he said. In the event the full Administrative
Procedures Act is applied to all of the regulations it would
likely delay the implementation of these regulations for a
considerable amount of time. He stressed that they would like
to have a functioning Code of Military Justice as quickly as
possible during the next session. Although, he pointed out, for
those regulations and changes to regulations thereafter, to
implement a more thorough regulatory review process.
2:23:48 PM
CHAIR LEDOUX opined that the first group of regulations should
be adopted into statute because by then the members have all
vetted the regulations. Put those into statute and perhaps the
next group doesn't have to be in statute but still requires a
vetting process.
2:24:22 PM
LIEUTENANT DUNBAR related a concern of the National Guard being
if a regulation is initially put into statute and realizes it is
not workable, it could be difficult to come back and get a
revision. He opined that not putting initial regulations into
statute allows the flexibility to change things ...
2:24:44 PM
CHAIR LEDOUX interjected that the legislature deals with that
sort of thing all the time, as the legislature passes a law, and
if not working out as expected that is what the next session is
for.
2:25:06 PM
MR. BROWN responded that while HB 126 would be granting greater
regulatory authority to the Department of Military and Veterans
Affairs than other agencies or department generally receive. He
explained that when those agencies craft regulations, they are
crafting them for everyone in the state, Alaska residents and
visitors, period. The DMVA is asking for the authority to
police the 4,000 people who volunteered and swore oaths. He
suggested these are not comparable situations in that the extra
element should be taken into account as part of the greater
conversation.
2:25:52 PM
REPRESENTATIVE GRUENBERG argued that Mr. Brown's statement is
not always true, such as, the Alaska Public Offices Commission
(APOC). He advised that Lieutenant Dunbar and he had a
discussion regarding the initial language being in statute but,
thereafter, the DMVA could prepare regulations under the Alaska
Procedures Act (APA). The rule making provisions in the APA
quasi-legislature requires notice to the general public and an
opportunity to comment, but it would still come into the
department, he explained. The department would evaluate
anything and come back to the legislature in order to determine
whether there is a problem, he noted.
2:26:56 PM
REPRESENTATIVE CLAMAN proposed a hybrid approach that the
department propose regulations for the legislature to adopt on
an up or down basis and not get too involved in the idea of
specific language in specific statutes or regulations. He
suggested the legislature look at the drafts as a whole, rather
than becoming experts in military justice, and it still receives
legislative review.
2:28:05 PM
REPRESENTATIVE KELLER offered that having served as Joint Chair
of the Administrative Regulation Review Committee, that does not
work well and is a waste of time, he opined. "It seems like
whether engaged or not but ... how many regulation notices have
we gotten during session and, frankly I confess, I don't get
through the details like I sure wish I could," he posited.
REPRESENTATIVE CLAMAN said he was suggesting something different
from just regulatory review in that the entire Code of Military
Justice come before the legislature for specific review in a
more systematic manner than the legislature gets from
regulations that show up from time to time.
2:28:59 PM
REPRESENTATIVE GRUENBERG remarked that he was thinking along the
same line in that they would submit it to the legislature, and
the Military and Veterans Affairs Committee that specializes in
this could review it, or the House Judiciary Standing Committee.
CHAIR LEDOUX reiterated that the House Judiciary Standing
Committee has the entire interim to review HB 126.
CHAIR LEDOUX opened public testimony
2:29:50 PM
REPRESENTATIVE GRUENBERG asked Bob Doehl, Deputy Commissioner,
whether he had any direct experience while in the service
dealing with the Code of Military Justice.
2:30:06 PM
BOB DOEHL, Deputy Commissioner, Commissioner's Office,
Department of Military and Veterans Affairs (DMVA), responded in
the affirmative to Representative Gruenberg, and stated that as
a commander utilizing the Code of Military Justice for action
necessary to maintain Good Order and Discipline in determining
whether formal court-martial was appropriate versus non-judicial
punishment.
2:30:29 PM
REPRESENTATIVE KELLER questioned when a guardsman is on active
duty for training, whether that is a separate category addressed
differently. He asked the status of a person who is active duty
for two-weeks of training stents.
MR. DOEHL answered that generally an individual on active duty
for training is under Title 32, meaning that they do not come
under the Federal Uniform Code of Military Justice, but rather
under state law.
2:31:45 PM
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify, and announced HB 126 is held over.
2:32:27 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:32 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 5 ALCAN Engineering Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 2011 - 2013 Alaska Property Loss Summary.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 AGC Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 AS 11.46.980 Determination of Value.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Crime Index Offense Summary 2009-2013.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Fiscal Notes.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 NFIB Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Orion Marine Group Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 State Chamber Support.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Welsh Appellate Opinion.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5 Welsh Case Brief and Commentary.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB 5.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB5 Section Analysis.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| SB5 Sponsor Statement.pdf |
HJUD 4/14/2015 1:00:00 PM |
SB 5 |
| HB0126A.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB0126E.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB126 SECTIONAL ANALYSIS - ver E.docx.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB126 Sponsor Statement.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| Memo 15-101.dla.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |
| HB 126 - ACMJ Presentation V4.pdf |
HJUD 4/14/2015 1:00:00 PM |
HB 126 |