Legislature(2015 - 2016)BUTROVICH 205
04/14/2016 08:30 AM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB126 | |
| HJR30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 126 | TELECONFERENCED | |
| + | HJR 30 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 126-CODE OF MILITARY JUSTICE; APPEALS
9:08:45 AM
CHAIR STOLTZE announced the consideration of HB 126.
CHAIR STOLTZE offered Amendment 1, labeled: 29-LS0473\F.A.1:
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR STOLTZE
TO: CSHB 126(JUD)am
Page 26, line 30:
Delete "imposed"
Insert "authorized"
Page 27, line 2:
Delete "imposed"
Insert "authorized"
SENATOR COGHILL objected for discussion purposes.
9:09:46 AM
DANIEL GEORGE, Staff, Senator Bill Stoltze, Alaska State
Legislature, Juneau, Alaska, explained that Amendment 1 labeled
29-LS0473\F.A.1, addresses a policy call in the bill that
changes "imposed" sentences to "authorized" sentences. He
detailed that offenses in the bill are classified as either
misdemeanor or felony and based on the sentences that are
"imposed;" that differs from existing state law where offenses
are classified as either misdemeanor or felony and based on the
sentences that are "authorized." He noted that "misdemeanor" and
"felony" were terms not traditionally used in the military.
9:11:23 AM
CHRISTOPHER WEAVER, Lieutenant Colonel (LTC), Staff Judge
Advocate, Office of the Commissioner/Adjutant General, Alaska
National Guard, Department of Military and Veterans' Affairs,
Joint Base Elmendorf-Richardson, Alaska, concurred that the
amendment was a policy call for the Legislature. He stated that
the Alaska National Guard had no position on misdemeanor or
felony classifications.
He disclosed that the Uniform Code of Military Justice (UCMJ)
and the Alaska Code of Military Justice (ACMJ) do not have
degrees of felonies or misdemeanors. He specified that the ACMJ
charges were based on the offense itself and whether that met
the specifications. He added that a court-martial decided on a
sentence. He said he believed that the change was imposed
because if somebody was charged with a particular crime that may
warrant ten years, but the court-martial decides to give a 45-
day sentence, the same offense based on prosecutorial discretion
in the civilian world may have been charged as either a felony
or misdemeanor, also known as a "wobbler" offense.
CHAIR STOLTZE pointed out that an ACMJ sentence could "cut both
ways."
LTC. WEAVER answered yes.
SENATOR COGHILL asserted that dovetailing a couple of civilian
and military codes together was tough.
CHAIR STOLTZE stated that the discussion regarding the change
from the amendment would continue in the next committee of
assignment if the amendment was left in.
SENATOR COGHILL removed his objection.
9:13:53 AM
CHAIR STOLTZE announced that Amendment 1 passed without
objection.
9:14:03 AM
SENATOR HUGGINS moved Amendment 2, labeled 29-LS0473\F.A.2:
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR STOLTZE
TO: CSHB 126(JUD)am
Page 3, line 8, following "service":
Insert "or prohibit a member of the militia from
declining the imposition of non-judicial punishment in
favor of a court-martial."
CHAIR STOLTZE objected for discussion purposes.
MR. GEORGE detailed that Amendment 2 addressed concerns
regarding no turndown for non-judicial punishment. He specified
that no turndown meant a non-judicial punishment could not be
turned down for a court-martial. He specified that the amendment
would prohibit the department and governor from putting into
place regulations which would prohibit a militia member from
declining the imposition of non-judicial punishment in favor of
court-martial.
9:15:12 AM
LTC. WEAVER testified that the Alaska National Guard opposes
Amendment 2. He set forth that not having a no turndown
provision would affect good order and discipline. He added that
not having a no turndown provision would result in a "game of
chicken."
He revealed that Title 10 for the National Guard was different
from active duty. He detailed that active duty had a court-
martial budget and the courts had dedicated resources, but the
National Guard did not. He divulged that the Alaska National
Guard has to use training money for a court-martial.
He specified that the no turndown rule had the following
safeguards:
· No confinement,
· No adverse discharge,
· Right to appeal to the next higher command,
· No stigmatization from a court-martial conviction.
LTC. WEAVER disclosed that non-judicial punishment was for minor
offenses and a court-martial was for serious offenses with great
punishment attached. He remarked that an unsavvy guard member
may actually select a court-martial over non-judicial punishment
where the individual risks confinement and stigmatization.
He revealed that Kansas recently put the no turndown provision
into its state code and has recognized the following benefits:
· Allows minor offenses to be immediately addressed.
· Allows for service member rehabilitation.
· Places command authority back into the command.
· Does not expose service member to greater punishment.
· Maintains good order and discipline.
He added that Kansas has a legally efficient framework with an
appeal provision where guard members are provided counsel and
commanders are required to consult with the judge advocate to
make sure punishments are in-line with other punishments.
9:18:23 AM
SENATOR HUGGINS asserted that not allowing a soldier to demand a
court-martial was not fair. He asked how many Article 15 non-
judicial punishments have been given in the Alaska National
Guard within the last 24 month.
9:21:29 AM
MR. WEAVER answered zero.
SENATOR HUGGINS continued that instituting a no turndown
provision was not based on experience of everybody turning down
an Article 15 because there have been zero experienced. He
reiterated that no turndown was a bad deal and he supported
Amendment 2.
SENATOR WIELECHOWSKI asked that Mr. Weaver explain if he was
worried that so many people would opt for a court-martial that
would ultimately make the system dysfunctional.
9:23:43 AM
LTC. WEAVER answered yes. He stated that experience shows that
opting for a court-martial happens fairly frequently where
soldiers who are about to receive non-judicial punishment do in
fact ask for a court-martial. He reiterated that money would
have to come from the training budget in order to pay for a
court-martial. He pointed out that the tide has turned to a no
turndown provision in other states.
CHAIR STOLTZE noted that he has sat on budget committees and
pointed out that the Legislature does not have the option of
saying, "We don't have the money to do a fair due process." He
remarked that the Legislature has to prioritize over a lot of
other popular programs or offices of public advocacy when
addressing justice and due process.
LTC. WEAVER answered that he agreed with Chair Stoltze. He
asserted that the no turndown provision was the right answer for
swift justice. He said swift justice was also important for the
unit to see that no games were being played. He reiterated that
non-judicial punishment was for minor offenses, offenses that
would not warrant a trial in the civil world.
9:25:57 AM
SENATOR MCGUIRE pointed out that there have been no Article 15
non-judicial punishments along with a "new world" of trying to
figure out how to put enough "carrots and sticks" into the
system to keep morale moving along. She remarked that those that
need to be corrected are corrected in time and put back on the
"straight and narrow." She asked how often someone was demanding
a court-martial in light of the new system.
LTC. WEAVER answered none because the Alaska National Guard does
not have the authority to do a court-martial. He remarked that
in his experience, asking for a court-martial happens
frequently.
SENATOR MCGUIRE opined that the Alaska National Guard has been
"frozen in time" when using an Alaska statute that has not been
updated and did not reflect on anything the guard was doing. She
asked if Mr. Weaver agreed that the Alaska National Guard was
trying to find a system with "teeth" where word will get around
to demand a court-martial due to the guard being under-
resourced.
LTC. WEAVER answered yes.
SENATOR MCGUIRE remarked that she likened the no turndown to
workers' compensation where an injured worker has to take a
settlement in lieu of going to trial. She remarked that she was
nervous when it came to a potential criminal matter regarding
someone's vocation and lifetime reputation. She pointed out that
Senator Huggins, the highest ranking officer in the Senate, did
not feel the no turndown provision was right; however, Mr.
Weaver was saying that the Alaska National Guard needs a system
that works in order to bring around a new set of standards that
are enforceable. She asked if there was a middle ground for no
turndown.
9:29:51 AM
LTC. WEAVER replied that the Office of Complex Investigation for
the National Guard Bureau characterized the Alaska National
Guard's current system as "lacking teeth." He asserted that the
Alaska National Guard wants a workable system and noted that the
guard has experience from other states. He said he did not know
if there was a middle ground for no turndown and reported that
other states have not shown a middle ground.
He referenced stigmatization and asserted that the point of a
non-judicial punishment was not to stigmatize. He explained that
nothing goes on record or into the public domain for a person
receiving a non-judicial punishment as opposed to a court-
martial conviction that would. He said people in the guard unit
that need to know would know about the non-judicial punishment
and hopefully justice was done. He summarized that from a
stigmatization point, non-judicial punishment was the way to go.
SENATOR MCGUIRE expressed that she was concerned about
individuals that were innocent as well as the subjectivity
between a superior and subordinate. She remarked that even
though a non-judicial punishment was not going on a person's
permanent record, everyone would know. She remarked that unit
moral would be positively affected if a person was truly guilty
and corrective action was taken. She stated that Mr. Warren said
there was a second layer, but added that she was concerned about
objectivity. She set forth that getting into the area of
people's conduct or reputation defines an individual in a way
that could have very serious consequences.
9:33:14 AM
CHAIR STOLTZE noted that no turndown reminded him of the debates
on the inequities in the criminal justice system and some
classes of citizens confessing quicker because they want to
acquiesce. He remarked that the military was a different outfit
with different parameters, but he did not think certain rights
were forfeited. He stated that he was worried when money was
mentioned, but understood the concern about how to efficiently
use your resources.
LTC. WEAVER reviewed what a non-judicial punishment was as
follows:
· Same standard, proof without a reasonable doubt;
· The accused person has the right to consult with counsel;
· The National Guard provides counsel if desired;
· The accused person has the right to call witnesses into the
hearing;
· The hearing is in front of the commander.
He noted that the adjutant general put out a list of how she
administratively deals with misconduct. He noted that the Alaska
Nation Guard does not have the right to carry out non-judicial
punishment. He detailed that misconduct was listed by rank and
names were left off, but members at a particular company
probably know the individual and understands how the guard deals
with misconduct; conversely, the rest of the Alaska National
Guard would not notice, the stigmatization would stay within the
unit itself and the misconduct would not be on a permanent
record.
He specified that what he meant by stigmatization was a
conviction would not be on an individual's record when that
person was looking for a job. He reiterated that a non-judicial
punishment would not be on an individual's record.
SENATOR WIELECHOWSKI stated that he was glad the committee was
flagging the non-judicial punishment issue. He asked that
additional information about the impact in other states be
provided in the Senate Judiciary Committee.
9:36:34 AM
CHAIR STOLTZE commented that the committee was doing more than
flagging the issue. He said the committee was passing an
amendment and setting the policy for other committees to
deliberate.
SENATOR MCGUIRE concurred that members serving on both the State
Affairs and Judiciary committees would keep talking about the
issue. She detailed that when she addresses particulars in
criminal matters, she walks through the entire system if the
person was guilty and if the person was innocent.
9:38:14 AM
SENATOR COGHILL asked Mr. Weaver if National Guard members
deployed overseas would fall under the UCMJ.
LTC. WEAVER answered yes.
SENATOR COGHILL asked if the "ability to decline" provision was
in the UCMJ.
LTC. WEAVER answered no, the UCMJ was different. He noted that
deployments to Afghanistan and Iraq have functioning court
systems within those countries.
SENATOR COGHILL asked if Alaska National Guard members have ever
dealt with an Article 15 or court-martial under the UCMJ.
LTC. WEAVER answered that he did not know.
9:40:12 AM
SENATOR HUGGINS addressed page 8, line 25 in HB 126 regarding a
summary court-martial. He noted that a summary court-martial was
the lowest level in the three-level court-martial system. He
pointed out that a soldier can decline the summary court-
martial. He reiterated that no turndown for non-judicial
punishment was unfair. He asserted that good units do not go
through non-judicial punishments or court-martials. He remarked
that the no turndown provision was doing something that would
not be exercised very much. He cautioned about over reacting to
the negativity from the Alaska National Guard's scandal.
MR. WEAVER confirmed that Senator Huggins was correct about the
summary court-martial. He pointed out that non-judicial
punishment was for minor offenses and court-martials were for
serious offenses. He asserted that care would be taken to assure
non-judicial punishments and court-martials were used for the
right reasons.
9:44:30 AM
SENATOR MCGUIRE addressed issue extremes and the need to find
the middle ground. She asserted that it was important to think
of all the different people that will have to test the system
that is not reacting too far in either direction.
LTC. WEAVER asked Senator McGuire to confirm that the next
committee of assignment for HB 126 was the Senate Judiciary
Committee.
SENATOR MCGUIRE answered yes.
LTC. WEAVER concurred that there are always alternatives. He
said he definitely understood Senator Huggins' position. He
suggested that he work with Senator McGuire's staff to find a
middle ground and work on an amendment.
9:47:29 AM
CHAIR STOLTZE removed his objection. He announced that hearing
no objection, Amendment 2 was adopted. He asked that Mr. George
summarize the remaining issues pertaining to HB 126.
MR. GEORGE disclosed that the Legal Services Division presented
a memo that pointed that HB 126 did not have a definitions
section. He noted that state statutes were referenced in the
bill and an amendment was requested from the Legal Services
Division to list the terms based upon state statute definitions
in order to compare to federal references. He revealed that the
Legal Services Division did not have the resources to complete
the request.
9:51:22 AM
CHAIR STOLTZE stated that the issue was flagged for the Senate
Judiciary Committee.
LTC. WEAVER replied that care should be given in not mixing
state with military, but noted that he was not concerned. He
said the Alaska National Guard would find the law in the manuals
for court-martials, military court precedence, state law and
other states as well.
MR. GEORGE noted that the legal drafters were asked if simply
saying the definitions in the federal code were adopted. He
explained that the legal drafters brought up the issue that some
of the offenses and descriptors were modified. He specified that
the issue was the state has a trier-of-fact where a jury might
receive instruction to see if someone met the burden of meeting
the mental state required to commit the offense. He suggested
that to remove any ambiguity that definitions taken directly
from the federal definition may have to be spelled out. He
reported that the legal drafter said their request would have
been quite the undertaking and there was not enough time.
9:54:27 AM
CHAIR STOLTZE announced that without objection, Amendment 2
passed.
SENATOR HUGGINS commented that he was hopeful the elements in HB
126 do not have to be exercised. He said the Alaska National
Guard was a good organization and court-martials do not happen
very often nationwide. He addressed the cost concern with court-
martials and noted that multiple states were able to use Title
32, which is federal money for court-martials. He set forth that
the thought of every Title 15 being turned down would cost the
state $25,000 on a frequent basis was not going to happen.
LTC. WEAVER confirmed with Senator Huggins that federal funds
were used for training. He reiterated that the money to pay for
court-martials would come from the Alaska National Guard's
training money.
9:56:48 AM
CHAIR STOLTZE asked what the application of the AMCJ was for the
Alaska State Defense Force.
LTC. WEAVER replied that the AMCJ applied to the Alaska State
Defense Forces.
CHAIR STOLTZE asked if federal funds were available for
providing for the administration of justice for a member of the
Alaska State Defense Force.
LTC. WEAVER answered no.
CHAIR STOLTZE asked if a member of the Alaska State Defense
Force would be on their own.
LTC. WEAVER answer no. He specified that the Alaska National
Guard would find the money within the state budget.
SENATOR COGHILL moved to report the CS for HB 126(JUD), as
amended, from committee with individual recommendations and
attached fiscal notes.
9:58:55 AM
CHAIR STOLTZE announced that hearing no objection, SCS CSHB
126(STA) moved out of committee.