Legislature(2015 - 2016)CAPITOL 120
03/31/2015 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
1:46:51 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."
[Committee substitute for HB 126 labeled 29-LS0473\H,
Strasbaugh, 3/24/15 was adopted 3/26/15; Amendment 1 labeled 29-
LS0473\H.1, Strasbaugh, 3/25/15, was moved and objected to on
3/26/15. Version H and Amendment 1 were before the committee.
Amendment 1 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"]
1:47:56 PM
FIRST LIEUTENANT FORREST DUNBAR, Alaska Army National Guard,
Office of the Commissioner/Adjutant General, Department of
Military & Veterans' Affairs (DMVA), explained Amendment 1
expands the pool of those who can serve in specific capacities,
such as judge advocates. He reminded the committee the Alaska
National Guard (AKNG) has few judge advocate resources, and they
are sometimes "conflicted" or otherwise unavailable, therefore,
in order for courts-martial proceedings to advance, AKNG seeks
to draw upon resources from other national guards or from active
duty components. Lieutenant Dunbar directed attention to a memo
from Kathleen Strasbaugh, Legislative Counsel, Division of Legal
and Research Services, Legislative Affairs Agency, dated
3/25/15, included in the committee packet. In the memo, Ms.
Strasbaugh questioned whether the intent of Amendment 1 was to
include National Oceanic and Atmospheric Administration (NOAA)
and Public Health Service (PHS) commissioned corps in the pool
of military officers. Lieutenant Dunbar said yes, that was the
intent as AKNG wishes to broaden its resources when necessary.
The officers would be overseen by the senior force judge
advocate, and will have had experience that qualifies them to
act as counsel. He said AKNG wants to avoid a situation where a
qualified person is not allowed to serve as a judge advocate
because of provisions in the Alaska Code of Military Justice
(ACMJ) proposed in HB 126. Ms. Strasbaugh's memo also points
out an error that has been resolved, and questions the intent of
Amendment 1 to expand existing law "in a different section in a
very particular way, and we didn't intend it to." Finally, Ms.
Strasbaugh asked whether the amendment allows that all judges
and attorneys connected with a court-martial, except for the
appeals commission, may be from out-of-state, and he said the
answer is yes. Lieutenant Dunbar stressed the important point
is that the commander bringing the charges and the appeals
commission would be Alaskans, which would ensure a strong Alaska
component to the proceeding. He concluded that the concerns
raised in the memo have been addressed.
1:52:03 PM
REPRESENTATIVE GRUENBERG read from the memo as follows:
... you did not request that [AS 26.05.410(d),
26.05.453(b)(3), or 26.05.590(21)] be amended to allow
a military judge or judge advocate from another force
to be detailed to preside or be appointed as counsel.
REPRESENTATIVE GRUENBERG asked whether the intent was to allow a
military judge or judge advocate from another force to be
detailed to preside, or to be a judge advocate.
LIEUTENANT DUNBAR said no. The key words are "another force"
and the definition has to do with the Army National Guard and
the Air National Guard. He remarked:
A simple reading of this, we've already done that, but
not with respect to 26.05.590(21) which refers to the
senior force judge advocate, so it had issues with the
senior force judge advocate: there's one for the Air
National Guard, there's one for the Army National
Guard and she was worried that we wanted to expand it
further and, but we don't need to, that's basically
what the, what the upshot is.
REPRESENTATIVE GRUENBERG returned attention to the memo on page
1, the second sentence of the third paragraph, which read in
part:
The UCMJ applies to National Oceanic and Atmospheric
Administration and Public Health Service staff when
they are in service to the armed forces ....
REPRESENTATIVE GRUENBERG said the aforementioned is a "big
qualifier" because normally NOAA and PHS are not in proximity to
armed services. He urged that the text make this extremely
clear.
1:55:29 PM
LIEUTENANT DUNBAR explained the memo questions whether the
Uniform Code of Military Justice (UCMJ) applies to NOAA or PHS
staff; however, AKNG's purpose is to use uniformed officers - in
those two services - to serve in its behalf as judge advocates.
REPRESENTATIVE GRUENBERG questioned whether it is appropriate to
assign PHS doctors or NOAA officials, who may have no knowledge
of the UCMJ, to serve on courts-martial; in addition, whether
PHS or NOAA has lawyers in the vicinity of the state.
LIEUTENANT DUNBAR reminded the committee that the provision does
not relate to who may serve on courts-martial; for example, a
NOAA officer living in Alaska and who has been a judge advocate
would be eligible to serve as a judge advocate. He pointed out
that the provision does not conscript anyone or require service,
but would enable the senior judge advocate to ask.
REPRESENTATIVE GRUENBERG inquired as to whether judge advocates
are lawyers.
LIEUTENANT DUNBAR said yes. In further response to
Representative Gruenberg, he agreed the chances of AKNG using
that specific part of the provision are relatively low; however,
AKNG seeks the ability to use the provision if possible.
CHAIR HERRON opined the likelihood of using the provision is
extremely low, and asked if Representative Gruenberg sought to
offer an amendment.
1:59:22 PM
REPRESENTATIVE LEDOUX removed her objection to Amendment 1.
REPRESENTATIVE GRUENBERG stated his intent to revisit this issue
in the next committee of referral.
1:59:43 PM
There being no further objection, Amendment 1 was adopted.
1:59:56 PM
REPRESENTATIVE TUCK moved to adopt Amendment 2, labeled 29-
LS0473\H.3, Strasbaugh, 3/28/15, which read:
Page 10, following line 30:
Insert a new section to read:
"Sec. 26.05.452. Who may serve on courts-martial.
(a) A commissioned officer of the militia of a state
or of an active duty component of the armed forces of
the United States is eligible to serve on a general,
special, or summary court-martial for the trial of a
member of the militia in active state service.
(b) A warrant officer of the militia of a state
or of an active duty component of the armed forces of
the United States is eligible to serve on a general or
special court-martial for the trial of any person,
other than a commissioned officer.
(c) An enlisted member of the militia of the
state who is not a member of the same unit as the
accused is eligible to serve on a general or special
court-martial for the trial of an enlisted member, but
only if the accused has, before the conclusion of a
session of the court-martial called by the military
judge under AS 26.05.528, personally requested, orally
on the record or in writing, that enlisted members
serve on the court-martial.
(d) After a request is made under (c) of this
section, the accused may not be tried by a general or
special court-martial unless enlisted members make up
at least one-third of the total membership of the
court. If eligible enlisted members are not available
because of physical conditions or military exigencies,
the court may proceed to try the accused without
enlisted members, but the convening authority shall
place on the record a detailed written explanation of
why eligible enlisted members were not available.
(e) The accused may not be tried by a court-
martial that includes a member who is junior in rank
or grade to the accused, unless the inclusion cannot
be avoided.
(f) When convening a court-martial, the
convening authority shall detail the members of the
militia of a state or of an active duty component of
the armed forces of the United States who are, in the
convening authority's opinion, the best qualified for
the duty by reason of age, education, training,
experience, length of service, and judicial
temperament. A person is not eligible to serve as a
member of a general or special court-martial if the
person is the accuser, is a witness, or has acted as
investigating officer or as counsel in the same case.
(g) Before a court-martial is assembled for the
trial of a case, the convening authority may excuse a
member of the court from participating in the case.
The convening authority may delegate the authority
under this subsection to a judge advocate or to a
principal assistant."
2:00:06 PM
CHAIR HERRON objected for discussion purposes.
REPRESENTATIVE TUCK explained Amendment 2 would establish a
procedure for who may serve on a courts-martial, including a
commissioned officer of the state militia or of an active duty
component of the armed forces of the U.S., a warrant officer of
the state militia or of an active duty component of the armed
forces of the U.S., an enlisted member of the state militia who
is not a member of the same unit as the accused. He advised
that the amendment was discussed with First Lieutenant Dunbar
and was approved by DMVA.
LIEUTENANT DUNBAR confirmed that the provision in Amendment 2
was a provision of HB 121 and which was not included in HB 126
in error. The amendment provides who may serve on the courts-
martial panel and, in addition to the original provision,
expands those eligible to a member of a guard or an active duty
component. He restated that AKNG is lacking a sufficient number
of those who are qualified to serve, particularly on a panel
considering a case involving a member of high rank. In response
to Representative Gruenberg's previous point, unlike the pool
for adjutants general, the pool for the courts-martial panel is
not expanded to include members of NOAA or PHS. He provided an
example related to administrative separation hearings, and urged
the committee to adopt Amendment 2.
REPRESENTATIVE HUGHES asked for additional information related
to a courts-martial panel.
LIEUTENANT DUNBAR answered that the panel is similar to a jury;
in a general court-martial there are five members, and for a
special court-martial there are three members. In further
response to Representative Hughes, he said a general court-
martial can decree penalties up to ten years or a dishonorable
discharge for more serious offenses, and a special court-martial
is limited to less serious offenses.
2:04:29 PM
REPRESENTATIVE GRUENBERG understood that in a general court-
martial, at least two of the five members would have to be
enlisted members.
LIEUTENANT DUNBAR nodded yes.
REPRESENTATIVE GRUENBERG directed attention to Amendment 1 on
page 1, line 20 which read in part:
to try the accused without enlisted members, ...
REPRESENTATIVE GRUENBERG asked whether the intent was to proceed
without any enlisted members, or without one-third of enlisted
members, and if so, the written explanation would be required.
LIEUTENANT DUNBAR said correct. It is AKNG's intention to have
enlisted members on the panel if requested, and a written
explanation would be required in the case of exigent
circumstances.
REPRESENTATIVE GRUENBERG clarified his concern was "when this
comes into play." He opined the ambiguous language requires a
modifier, and he would offer "without the required minimum
number of enlisted members," as a conceptual amendment at the
appropriate time.
LIEUTENANT DUNBAR said the sponsor has no objection.
CHAIR HERRON recommended that Representative Gruenberg hold the
foregoing conceptual amendment for the next committee.
REPRESENTATIVE GRUENBERG directed attention to Amendment 2, page
2, line 4 which read in part:
... best qualified ...
REPRESENTATIVE GRUENBERG inquired as to who makes the
determination of "best qualified."
LIEUTENANT DUNBAR stated that is based on the discretion of the
convening authority.
2:08:23 PM
CAPTAIN JENNIFER KING, Judge Advocate General, Alaska Army
National Guard, explained that from her experience, convening
authorities are provided a list - created through the personnel
section - of all of individuals who could sit on a panel,
determined by the rank of the accused, and whether the accused
elected to have all officers or a mix of officers and enlisted
members. Following that, the convening authority would review
the list, and review the enlisted record briefs and the officer
record briefs of the potential panel members, and make
selections.
REPRESENTATIVE GRUENBERG asked whether there are standards
related to religion.
CAPTAIN KING advised that if a panel member were chosen based on
faith, his/her appointment would be open to legal challenge
during the vior dire of the panel.
REPRESENTATIVE GRUENBERG expressed his interest in knowing what
the standards are. Finally, in Amendment 2 on page 2, line 12
which read:
advocate or to a principal assistant."
REPRESENTATIVE GRUENBERG asked whether a principal assistant is
a paralegal.
LIEUTENANT DUNBAR was unsure.
CAPTAIN KING advised she did not have access to Amendment 2.
CHAIR HERRON said this issue would be addressed during interim.
2:13:29 PM
CHAIR HERRON removed his objection. There being no further
objection, Amendment 2 was adopted.
2:13:58 PM
REPRESENTATIVE TUCK moved to adopt Amendment 3 which read:
Page 37, line 31:
Delete "may"
Insert "shall"
2:14:08 PM
CHAIR HERRON objected for discussion purposes.
REPRESENTATIVE TUCK explained that Amendment 3 is another
correction to an oversight.
2:14:31 PM
CHAIR HERRON removed his objection.
REPRESENTATIVE HUGHES asked what regulations are affected by
Amendment 3.
2:15:04 PM
LIEUTENANT DUNBAR said most of the regulations in the bill are
affected because AKNG intends that future commands are required
to create and enforce the regulations.
2:15:30 PM
There being no further objection, Amendment 3 was adopted.
2:15:40 PM
REPRESENTATIVE TUCK then observed that the regulations to be
drafted by DMVA - that are authorized in proposed new section
26.050.380 - would give DMVA "a lot of power." He 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).
REPRESENTATIVE TUCK discussed a conceptual amendment to delete
proposed subsection (c) because criminal code is usually written
in statute and is not drafted by an agency. He pointed out that
AS 44.62 establishes procedures to ensure consistencies between
regulations and existing statute; that regulations receive prior
approval by the lieutenant governor; that the Department of Law
(DOL) is involved and would advise the agency on legal matters,
policy, and to ensure compliance with the Alaska State
Constitution; and compliance to ensure public notice.
Representative Tuck cautioned that there have been problems in
the past with a lack of transparency, and giving a department
authority with no oversight is not really fixing a problem.
REPRESENTATIVE HUGHES surmised without the [discussed conceptual
amendment], during interim AKNG would work on the regulations;
however, the [discussed conceptual amendment] proposes that
after regulations are proposed, there would be a public review
process through the Administrative Procedure Act.
REPRESENTATIVE TUCK observed that the bill directs that DMVA
"shall" adopt regulations related to courts-marital, but does
not instruct how regulations should be adopted. Although
comfortable with the process of designing regulations, he said
the regulations may not be ready to implement. In the interim,
as the ACMJ is developed, there will be transparency, and many
facets of government will be involved. He envisioned that the
best process would be to let DMVA develop regulations, and then
the legislature will overlook the product and determine what
belongs in statute and what in regulation. Representative Tuck
opined that the authority to issue a prison sentence or a
dishonorable charge should be in statute.
2:22:52 PM
REPRESENTATIVE HUGHES concluded that DMVA and AKNG would
continue through the public hearing process on military matters
that are not commonly understood by the public. She asked the
sponsor for the purpose of including aforementioned subsection
(c).
CHAIR HERRON requested that Representative Tuck provide a
written memo explaining the [discussed conceptual amendment] to
the committee and to DMVA.
REPRESENTATIVE LEDOUX said she was not adverse to Representative
Tuck's [discussed conceptual amendment]; on the other hand,
these proceedings are different than those for a civilian
arrested for a crime, because military members are aware that
certain laws are applicable to the military.
REPRESENTATIVE TUCK withdrew the [discussed conceptual
amendment]. He acknowledged that he may offer an amendment at a
later date, but did not want to impede DMVA's ability to begin
its work on this matter. He said the decision whether to follow
the administrative code will resurface in order to accommodate
the 4,000 employees of DMVA that will be affected by the
regulations.
CHAIR HERRON clarified that a conceptual amendment was not
offered.
2:27:49 PM
REPRESENTATIVE GRUENBERG stated he is also opposed to exempting
regulations from Administrative Procedure Act (APA) review. As
an alternative, he suggested that after "the initial crime list
[was] run through the legislature," regulations could be adopted
through the APA as a rulemaking function. In the bill, the
crimes could be listed in regulation, but regulations would not
take effect until the following legislative session, thus the
report of the regulations would be referred to a committee for
hearings and action. Under the Alaska State Constitution,
regulations can only be amended or appealed by statute, which
would give time for the legislature to disapprove the
regulations, or issue a resolution or a letter to DMVA.
REPRESENTATIVE LEDOUX questioned whether an agency could rescind
a regulation.
REPRESENTATIVE GRUENBERG said yes, but it may not. In that
case, an informal letter or resolution may be needed. He
provided an example of an Alaska Supreme Court decision that
said regulations must be amended through a bill; in fact, two
attempts at amending the Alaska State Constitution to allow the
legislature to repeal regulations by a resolution failed.
REPRESENTATIVE TUCK gave the definition of regulatory action
found in AS 44.62.213: adoption, amendment, or repeal of a
regulation.
REPRESENTATIVE GRUENBERG stressed that the exemption from APA in
the bill is permanent, unlike that of Amendment 3.
CHAIR HERRON thanked the committee and DMVA leadership for their
work.
REPRESENTATIVE LYNN congratulated DMVA on its work.
REPRESENTATIVE TUCK said he is happy to work with intelligent
and open-minded people in order to correct the image of AKNG,
and thanked the chair of the House Judiciary Standing Committee.
REPRESENTATIVE LEDOUX acknowledged the work of Lieutenant
Dunbar, her staff, and Representative Tuck, on working as a team
on a bipartisan project.
REPRESENTATIVE HUGHES said this issue is very important to
Alaskans.
2:35:49 PM
CO-CHAIR COLVER agreed with the need to restore justice to
members of the military. He moved to report CSHB 126, Version
29-LS0473\H, Strasbaugh, 3/24/15, as amended, out of committee
with individual recommendations and the accompanying three
fiscal notes. There being no objection, CSHB 126(MLV) was
reported from the House Special Committee on Military and
Veterans' Affairs.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 126 - Amendment #1.pdf |
HMLV 3/31/2015 1:00:00 PM |
HB 126 |
| HB 126 - Amendment #2.pdf |
HMLV 3/31/2015 1:00:00 PM |
HB 126 |
| HB 126 - Amendment #3.pdf |
HMLV 3/31/2015 1:00:00 PM |
HB 126 |