Legislature(2015 - 2016)CAPITOL 120
01/22/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB126 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 126 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 22, 2016
1:04 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Neal Foster
Representative Bob Lynn
Representative Charisse Millett
Representative Matt Claman
Representative Max Gruenberg
MEMBERS ABSENT
Representative Kurt Olson (alternate)
COMMITTEE CALENDAR
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."
- MOVED CSHB 126(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
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, and HUGHES
04/14/15 (H) JUD AT 1:00 PM CAPITOL 120
04/14/15 (H) Heard & Held
04/14/15 (H) MINUTE (JUD)
09/22/15 (H) JUD AT 1:30 PM Anch LIO AUDITORIUM
09/22/15 (H) Heard & Held
09/22/15 (H) MINUTE (JUD)
11/17/15 (H) JUD AT 1:30 PM ANCH LIO AUDITORIUM
11/17/15 (H) Heard & Held - Assigned to Subcommittee
11/17/15 (H) MINUTE (JUD)
01/22/16 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
FORREST DUNBAR, Captain
Alaska National Guard
Office of the Commissioner/Adjutant General
Department of Military & Veterans' Affairs
Joint Base Elmendorf-Richardson, Alaska
POSITION STATEMENT: Discussed CSHB 126, Version S.
CHRISTOPHER WEAVER, Lieutenant Colonel
Alaska National Guard
Office of the Commissioner/Adjutant General
Department of Military and Veterans' Affairs
Joint Base Elmendorf-Richardson, Alaska
POSITION STATEMENT: Discussed HB 126, Version S.
MEGAN WALLACE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Services
Juneau, Alaska
POSITION STATEMENT: Discussed certain amendments to HB 126,
Version S.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Discussed certain amendments to HB 126,
Version S.
ACTION NARRATIVE
1:04:38 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:04 p.m. Representatives Keller,
Foster, Lynn, Millett, Claman, Gruenberg, and LeDoux were
present at the call to order.
HB 126-CODE OF MILITARY JUSTICE; APPEALS
1:05:55 PM
CHAIR LEDOUX announced that the only order of business would be
HOUSE BILL NO. 126, "An Act relating to the administration of
military justice; relating to the adoption of a code of military
justice by the adjutant general; relating to the authority of
the adjutant general; relating to appeals of convictions and
sentences of courts-martial; establishing the Military Appeals
Commission; relating to the detention and incarceration of
members of the militia; relating to the jurisdiction of the
court of appeals; relating to involuntary commitment for
evaluation or treatment of a mental disease or defect before
court-martial proceedings; and providing for an effective date."
1:06:24 PM
The committee took a brief at ease.
1:07:13 PM
REPRESENTATIVE KELLER moved to adopt HB 126, 29-LS0473/S,
Wallace, 1/14/16 as the working document. There being no
objection, Version S was before the committee.
1:07:31 PM
CHAIR LEDOUX advised that the committee packets contain Version
S, which represents changes discussed on Version G during the
previous committee meeting; a copy of the bill highlighting the
changes between the versions; an explanation of changes;
sectional summary; [1/14/2016] memo regarding Version S from
Megan Wallace; and zero fiscal notes. She further advised that
the packets contain separate amendments from Representatives
Gruenberg, Keller, and LeDoux.
1:08:29 PM
FORREST DUNBAR, Captain, Alaska National Guard, Office of the
Commissioner/Adjutant General, Department of Military &
Veterans' Affairs, advised that he believes Version S would set
up a functioning system of military justice. He then thanked
the committee for its steadfast work on bringing the bill to
this level and offered to respond to questions.
CHAIR LEDOUX noted there were no questions from the committee
and moved to amendments.
1:11:08 PM
CHAIR LEDOUX moved to adopt Amendment 1, 29-LS0473\S.8, Wallace,
1/20/16, which read: [Due to the length of proposed Amendment
1, it is provided at the end of the minutes for HB 126.]
REPRESENTATIVE MILLETT objected.
CHAIR LEDOUX explained that Amendment 1 allows the court martial
more discretion in sentencing than originally stated. For
example, she pointed out, page 35, lines 24-26, which read:
... punishment shall be punished by up to one year of
confinement, by separation with characterization up to
dishonorable discharge, and by such other punishment
as a court-martial may direct.
CHAIR LEDOUX explained, currently the bill mandates that there
is some confinement, and Amendment 1 makes it discretionary by
changing the "shall" to "may," which has been done with all of
the offenses.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 1, it necessitated by a change made earlier with
regard to how the sentences are spelled out in the code. He
further advised that the courts-martial have discretion, but he
agreed that it should be explicit in the code.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 1 is
adopted.
1:13:27 PM
CHAIR LEDOUX moved to adopt Amendment 2, 29-LS0473\S.9, Wallace,
1/20/16, which read:
Page 19, line 11:
Delete "before the imposition of nonjudicial
punishment"
Insert "not later than two years after commission
of the offense if the imposition of nonjudicial
punishment is sought"
REPRESENTATIVE MILLETT objected.
CAPTAIN DUNBAR advised the amendment clarifies the statute of
limitations with regard to nonjudicial punishment.
CHRISTOPHER WEAVER, Lieutenant Colonel, Alaska National Guard,
Office of the Commissioner/Adjutant General, Department of
Military and Veterans' Affairs, explained that Amendment 2
clearly states the statute of limitations for both courts-
martial being three years, and nonjudicial punishment being two
years.
CAPTAIN DUNBAR advised the National Guard agrees with Amendment
2.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no further objection, Amendment
2 is adopted.
1:13:42 PM
CHAIR LEDOUX moved to adopt Amendment 3, 29-LS0473\S.10,
Wallace, 1/20/16, which read:
Page 7, line 4:
Delete "charged against the prisoner"
Insert "for which the prisoner was convicted"
Page 7, line 8:
Delete "charged against the prisoner"
Insert "for which the prisoner was convicted"
REPRESENTATIVE MILLETT objected.
MEGAN WALLACE, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Services,
advised that Amendment 3 is a reconciliation of AS 33.30.051
with AS 26.05.428(b)and(c). Alaska Statutes 26.05.428(b) and
(c) was amended to reference the convictions of the prisoners
"because in AS 33.30.051, which is ... you can see an amendment
to that provision on page 59 of the bill. That provision gives
the power to Corrections to take custody of a prisoner based on
their ... and references a conviction ... and ... before this
amendment the existing 26.05.428(b) and (c) referenced the
charges that had been filed against the prisoner. So we just
reconciled those and we won't reference a conviction in all
those sections."
REPRESENTATIVE MILLETT removed her objection.
CAPTAN DUNBAR advised the National Guard agrees with this
amendment.
[The committee treated Amendment 3 as adopted.]
1:15:07 PM
CHAIR LEDOUX moved to adopt Amendment 4, 29-LS0473\S.41,
Wallace, 1/20/16, which read:
Page 1, line 8, following "proceedings;":
Insert "amending Rule 6, Alaska Rules of Criminal
Procedure;"
Page 59, following line 28:
Insert a new bill section to read:
"* Sec. 10. The uncodified law of the State of
Alaska is amended by adding a new section to read:
INDIRECT COURT RULE AMENDMENT. The provisions of
AS 26.05.444 and 26.05.445, enacted by sec. 4 of this
Act, have the effect of changing Rule 6, Alaska Rules
of Criminal Procedure, by changing the procedure for
grand jury proceedings conducted before courts-
martial."
Renumber the following bill sections accordingly.
REPRESENTATIVE MILLETT objected.
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), said the
court system has no objection to this amendment as there is a
provision in the bill allowing courts-martial to use the state's
grand juries. She noted there is a rule regarding grand juries
and the court will decide whether to do direct rule changes to
that, or simply note in the rule book that for courts-martial
there are some implications from this bill.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 4 is
adopted.
1:18:38 PM
REPRESENTATIVE KELLER moved to adopt Amendment 5, 29-
LS0473\S.50, Wallace, 1/20/16, which read:
Page 6, line 8:
Delete the first occurrence of "or"
Insert ","
Following "person":
Insert ","
Page 6, line 9:
Delete "commissioned officer"
Insert "member of the militia"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE KELLER referred to page 6, lines 8-9, and stated
the way the bill is written it appears the commissioned officer
has to physically perform the arrest. Amendment 5 allows that
they are a member of the militia, he said.
CAPTAIN DUNBAR advised that the National Guard agrees with the
conceptual amendment, and inquired whether there is a draft of
the amendment he could review.
[Captain Dunbar was handed Amendment 5.]
CAPTAIN DUNBAR advised he had agreed to this conceptual
amendment this morning, and the National Guard supports
Amendment 5.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 5 is
adopted.
1:20:50 PM
REPRESENTATIVE KELLER moved to adopt Amendment 6, 29-
LS0473\S.51, Wallace, 1/20/16, which read:
Page 19, line 19, following "war":
Insert "declared by the United States Congress"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE KELLER pointed to page 19, line 19, and suggested
that following the word "war" to insert "declared by the United
States Congress," in order to be consistent with the United
States Constitution.
CAPTAIN DUNBAR advised the National Guard agrees with Amendment
6.
REPRESENTATIVE GRUENBERG noted that the intent is to make it
easier to proceed with these proceedings in the event something
such as war would make it difficult. He asked whether there is
any other term of art that should be inserted to make it as
realistic as possible.
CAPTAIN DUNBAR stated that the term of art "we have agreed upon"
is contingency operations, which is later in the same section.
Seldom is war declared by Congress, he explained, and the
National Guard wants to be realistic so it included "contingency
operations ordered by the President of the United States." He
noted, all post-911 conflicts have been conducted in this manner
and the combination of war and contingency operations will make
this practically effective.
REPRESENTATIVE KELLER requested that he be allowed to go back
later and request clarifications from Captain Dunbar.
CHAIR LEDOUX agreed.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 6 is
adopted.
1:23:22 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 7, 29-
LS0473\S.2, Wallace, 1/20/16, which read:
Page 2, lines 10 - 12:
Delete "require the person instituting the suit
to give security for the payment of costs. If judgment
is for the defendant, treble costs shall be assessed
against the plaintiff. The defendant in the action
shall"
Insert "[REQUIRE THE PERSON INSTITUTING THE SUIT
TO GIVE SECURITY FOR THE PAYMENT OF COSTS. IF JUDGMENT
IS FOR THE DEFENDANT, TREBLE COSTS SHALL BE ASSESSED
AGAINST THE PLAINTIFF. THE DEFENDANT IN THE ACTION
SHALL]"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised this statute has been on the
books since Territorial days and the amendment removes two
sentences dealing with suits against the National Guard.
Currently, he explained, the law requires a person suing the
National Guard to provide a bond and no one else has to do that.
Under Patrick v. Lynden Transport, 765 P.2d 1375 (1988), the
Supreme Court struck down AS 09.60.060 which required out-of-
state plaintiffs suing in-state defendants to post bonds, and
held it was a denial of equal protection. He opined a court
would strike this language down if ever challenged. For
example, he said, it could be difficult for someone injured, or
an estate, to maintain any kind of suit.
REPRESENTATIVE GRUENBERG stated that secondly, within the
current language the plaintiff must pay treble costs if they
lose and noted this could bankrupt most service people.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 7.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 7 is
adopted.
1:25:54 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 8, 29-
LS0473\S.5, Wallace, 1/20/16, which read:
Page 4, lines 6 - 7:
Delete "be relieved from amenability"
Insert "raise a defense that the person is not
subject"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG explained that Amendment 8 is a
grammatical amendment and also clarifies language.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 8.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 8 is
adopted.
1:26:55 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 9, 29-
LS0473\S.47, Nauman/Wallace, 1/20/16, which read:
Page 5, line 1, following "is":
Insert "currently"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG pointed out that Amendment 9 makes it
clear that the person serving as a judge advocate must currently
be certified, as opposed to being certified years ago.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 9.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 9 is
adopted.
1:27:48 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 10, 29-
LS0473\S.48, Nauman/Wallace, 1/20/16, which read:
Page 10, line 25, following "cases.":
Insert "If the officer who is authorized to
convene a summary court-martial is the accuser in the
matter, the court hearing the matter shall be convened
by a superior competent authority, if practicable."
Page 10, line 26:
Delete "competent"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised that Amendment 10 makes the
provision on summary courts-martial track the provision on
special courts-martial. He explained that if a person who is
the convening authority is also the accuser, it is a conflict of
interest. He said it would then go to the next higher authority
to conduct the court-martial; however, it may not be practical
in all cases which is why "if practicable" was added.
CAPTAIN DUNBAR advised the National Guard agrees with Amendment
10.
REPRESENTATIVE GRUENBERG interjected that page 10, line 26,
deletes "competent," as he believes it was a typo.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 10 is
adopted.
1:30:33 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 11, 29-
LS0473\S.17, Wallace, 1/20/16, which read:
Page 16, line 29, following "delay":
Insert "as soon as possible"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised Amendment 11 requires that the
documents explaining the delay be delivered to the accused as
soon as possible.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 11.
REPRESENTATIVE MILLETT removed her objection and asked for a
brief at ease.
[The committee treated Amendment 11 as adopted.]
1:31:23 PM
The committee took a brief at ease.
1:33:26 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 12, 29-
LS0473\S.20, Martin/Wallace, 1/20/16, which read:
Page 21, lines 26 - 27:
Delete "by confinement not to exceed 30 days or a
fine of $100, or both"
Insert "as provided in AS 09.50.020 for civil
contempt"
Page 21, lines 29 - 30:
Delete "in an amount not to exceed $100"
Insert "as provided in AS 09.50.020 for civil
contempt"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG remarked that originally, if someone
did not produce documents or testify under a court order the
only penalty would be a violation of $100.00. He described it
as a contempt of court, and several years ago the legislature
amended the contempt of court statute, AS 09.50.020, to increase
the penalty. He pointed out that this amendment makes it
similar to any other contempt of court, and it can be up to a
misdemeanor. Under civil contempt, the person can be ordered
detained, if they are subject to military law, until the order
is obeyed, he explained.
REPRESENTATIVE KELLER offered his appreciation for the amendment
because previously, the military fining of a civilian was a
possibility and [the amendment] ties it to statute.
CAPTAIN DUNBAR advised the National Guard agrees with Amendment
12.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 12 is
adopted.
1:35:13 PM
The committee took a brief at ease.
1:35:50 PM
CHAIR LEDOUX verified on the record that Amendment 11 was
formally adopted.
1:36:04 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 13, 29-
LS0473\S.22, Martin/Wallace, 1/20/16, which read:
Page 24, line 16:
Delete "what further action may be appropriate"
Insert "further action that is legally
permissible"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG pointed to page 24, line 16, and
advised that Amendment 13 deals with, "if during the period of
commitment, the accused exits the military then the convening
authority must notify the person who is his custodian, the
Department of Corrections, and the AG." He said that the
custodian, Attorney General, must take whatever further action
may be appropriate. He pointed out that the word "appropriate"
is not a legal term and is a vague and standard-less delegation
of authority. Normally, he said, it should say "take any action
that is legally permissible."
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 13.
1:37:23 PM
[Due to technical difficulties, the committee took an at ease at
1:37 p.m. to 1:40 p.m.]
1:40:13 PM
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 13 is
adopted.
1:40:42 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 14, 29-
LS0473\S.44, Nauman/Wallace, 1/20/16, which read:
Page 24, line 21, following "court":
Insert "on the record, in an open court, and in
the presence of all parties to the trial"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised that the amendment deals with
the announcement of the verdict. Currently, he said, it reads
that the president must make the announcement to the members of
the court, and the amendment makes it clear that the
announcement should be to members of the court on the record, in
open court, and in the presence of all parties to the trial.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 14.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 14 is
adopted.
1:42:00 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 15, 29-
LS0473\S.24, Nauman/Wallace, 1/20/16, which read:
Page 24, line 26, following "trial":
Insert "before a vote is taken on the findings"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG explained that the amendment makes it
clear that the military judge may change its ruling at any time
during the trial before a vote is taken on the findings.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 15.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 15 is
adopted.
1:42:57 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 16, 29-
LS0473\S.29, Bruce/Wallace, 1/20/16, which read:
Page 29, line 7:
Delete "totally"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised that the amendment deals with
the language on page 29, lines 4-7, stating that the period of
delay resulting from an appeal is excluded in deciding an issue
involving the denial of a speedy trial, unless it is determined
that the appeal was filed solely for the purpose of delay with
the knowledge that it was totally frivolous and without merit.
The amendment deletes "totally" as there is no such thing as
totally frivolous in the law.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 16.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 16 is
adopted.
1:44:03 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 17, 29-
LS0473\S.45, Martin/Wallace, 1/20/16, which read:
Page 31, lines 1 - 2:
Delete all material and insert:
"(b) The commission has
(1) jurisdiction to hear appeals from
courts-martial by the
(A) state in accordance with AS
26.05.525; and
(B) accused regarding sentences,
punishments, clearly erroneous findings, and matters
of law; and
(2) the discretion to remand those cases to
a competent court martial."
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG explained the amendment clarifies the
commission's jurisdiction.
CAPTAIN DUNBAR further explained that this amendment clarifies
the jurisdiction of the Military Appeals Commission, and pointed
to page 31. This is to make clear the Military Appeals
Commission can hear certain appeals from the state, AS
26.05.525, and also a broader category of appeals from the
accused. Also, he noted, the amendment adds the ability to
remand those cases after a decision. Captain Dunbar advised the
National Guard helped draft this amendment, and he asked the
committee to adopt it.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 17 is
adopted.
1:45:55 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 18, 29-
LS0473\S.31, Nauman/Wallace, 1/20/16, which read:
Page 33, line 30:
Delete "statute"
Insert "federal or state statute or regulation"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised the provision deals with
notaries and authentication, and lists categories (1) through
(5), as follows:
(5) A person authorized by statute or
regulation of the armed forces of the United States or
the state to administer oaths or act as a notary
public.
REPRESENTATIVE GRUENBERG pointed to page 33, line 23, and said
the amendment makes clear who may notarize and authentic
[documents]. It lists categories down to number 5, "A person
authorized by state or by regulation of the armed forces of the
U.S," and his intent it to make clear that the state and
regulations, if it is authorized by any state statute or
regulation, or any federal statute or regulation it is allowed.
For example, he advised, AS 09.63 allows post masters to
administer oaths which is helpful in small communities, and also
the Clerk of the House of Representatives.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 18.
REPRESENTATIVE MILLETT removed her objection.
REPRESENTATIVE KELLER objected, and then said that after reading
the amendment out loud he would remove his objection.
CHAIR LEDOUX stated there being no objection, Amendment 18 is
adopted.
1:48:19 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 19, 29-
LS0473\S.32, Wallace, 1/20/16, which read:
Page 35, line 18, following "commands,":
Insert "solicits,"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG advised the amendment adds a general
type of a crime, on page 35, line 17-20, which is a catchall
provision. He said there is a state law crime called
"solicitation" and this is not just soliciting a prostitute, it
is a major crime, and has been prosecuted, when someone
convinces someone to commit a crime. Under this bill, the
military narrowly defines the term "solicitation." He turned to
page 36, AS 26.05.582, and explained that only applies to a few
types of solicitation, such as soliciting someone to desert or
mutiny. He said a person subject to the code could be
soliciting someone to rob or assault someone, and the amendment
attempts to close a loophole by simply adding the word
soliciting to the general statute.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 19.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 19 is
adopted.
1:50:29 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 20, 29-
LS0473\S.38, Wallace, 1/20/16, which read:
Page 48, line 16, following "who":
Insert "intentionally"
Page 48, line 17, following the first occurrence of
"or":
Insert "wilfully"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG pointed to page 48, AS 26.05.616, and
he read, "A member of the militia who causes or participates in
in a riot." Someone could set off a firecracker and
inadvertently cause a riot, albeit not intentionally and not
willfully, and this says "intentionally starts that." For
example, he said, someone could get caught up in a crowd "going
back and forth in a riot" and not willfully participate. The
amendment adds the "mens rea" element so that it is not someone
who happens to be caught up in the crowd.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 20.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 20 is
adopted.
1:52:00 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 21, 29-
LS0473\S.46, Bruce/Wallace, 1/20/16, which read:
Page 48, lines 22 - 23:
Delete "by up to six months of confinement and by
such other punishment"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG said the amendment cures a typo, and
turned to page 48, lines 22-25, the first part of the provision
reads "shall be punished by up to six months confinement," and
the second part, he paraphrased, "you may not impose a sentence
of confinement for provoking speech and justice ... gestures."
The amendment eliminates the six month confinement and makes it
clear that an individual may not be confined, he said.
CAPTAIN DUNBAR advised that the National Guard agrees with
Amendment 21.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 21 is
adopted.
1:53:11 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 22, 29-
LS0473\S.49, Nauman/Wallace, 1/20/16, which read:
Page 56, line 16, following "officer,":
Insert "warrant officer,"
REPRESENTATIVE MILLETT objected.
REPRESENTATIVE GRUENBERG turned to page 56, "conduct unbecoming
an officer." It discusses commissioned officers, and warrant
officers, for some purposes, are considered commissioned
officers. He suggested that for this statute, whether a person
is a W-1 through W-5, an individual should be subject to conduct
unbecoming an officer regardless of the rank. The amendment
adds warrant officers, W-1 through W-5 to the ranks covered by
AS 26.05.633, he said.
CAPTAIN DUNBAR noted there is precedent for warrant officers
being prosecuted under this provision at the federal level and
the National Guard agrees with Amendment 22.
REPRESENTATIVE MILLETT referred to line 16, "conduct unbecoming
a warrant officer" and questioned whether line 18 should add
"warrant."
CAPTAIN DUNBAR explained that the title of the provision is not
being altered, it is further defining who is an officer for the
purposes of the provision. For example, he advised, a
commissioned officer, warrant officer, cadet, candidate, or
midshipman are all officers for the purposes of this provision
and inserting "warrant officer" is not necessary.
REPRESENTATIVE MILLETT removed her objection.
CHAIR LEDOUX stated there being no objection, Amendment 22 is
adopted.
1:56:01 PM
REPRESENTATIVE KELLER advised there are areas that did not rise
to the level of amendments and requested clarifications. He
referred to page 1, line 10, and noted that typically criminal
appeal cases go to the court of appeals and not to the Supreme
Court, but are going to the Supreme Court because the court of
appeals is backlogged. He asked whether that was an accurate
statement.
1:56:56 PM
MS. MEADE responded that his statement was not exactly correct
in that in civilian criminal law, a person starts at the
superior court level with a right to appeal to the court of
appeals, and then they can petition for review to the Supreme
Court which has the discretion whether to accept the case for
further review. She explained that this bill more or less
mimics that as a party starts with the military court-martial,
like the [civilian] trial level, and within this bill the person
has the absolute right to appeal to the military appeals
commission, which would be parallel to the civilian court of
appeals. Under Section 1 of the bill they now have the right to
petition the Supreme Court. She opined that it brings it in
line with the procedures available in state court criminal
proceedings.
REPRESENTATIVE GRUENBERG asked whether the members of the
commission are subject to the Code of Judicial Conduct for
disciplinary issues.
MS. MEADE stated she does not know the answer, but her instinct
is that they are not, because the Code of Judicial Conduct
covers judicial officers in the state and, for example,
administrative law judges are not covered by the Code of
Judicial Conduct to her knowledge.
REPRESENTATIVE GRUENBERG noted he may pursue this at a later
time elsewhere.
MS. MEADE restated that she may wrong, but that is her belief.
1:59:00 PM
REPRESENTATIVE KELLER referred to page 7, lines 13-18, and asked
for clarification of a person who commits a crime and is tried
by civilian court, and it then goes to the military court and
the person goes through a trial on the same issues.
CAPTAIN DUNBAR explained that "we cannot conduct a court-martial
on someone who has been convicted by a civilian court," as there
are clear double jeopardy issues in that case. In this case,
"we might be going forward" with one kind of charge, and this
individual has committed an additional offense that the civilian
court is prosecuting in a "sort of" different case. For
example, the National Guard is prosecuting the individual for
"unbecoming," but the individual is also being prosecuted for a
totally different incident for a crime against Alaska state law.
In which case, he said, the National Guard may deliver this
individual to the civilians to conduct that charge with
potential imprisonment. The state would return the individual
to the National Guard one that has been resolved, and the
National Guard could still pursue a different charge, but there
would not be simultaneous courts-martial to civilian courts on
the same conduct or same charges.
2:00:54 PM
REPRESENTATIVE KELLER referred to page 20, lines 5-15, and asked
for clarification of the section having to do with the
expiration of the statute of limitations. He asked whether
there could be an extension that may go on and on, with no end
to the statute of limitations.
LIEUTENANT COLONEL WEAVER responded that [AS 26.05.485(e)](1)
must be read with [AS 26.05.485(e)](2), because if it is a
substantive crime and the specification or charge is based on
the acts, then there is a double jeopardy problem. He pointed
out that this particular provision applies to defective or
insufficient, and used the example that if the specification is
wrong by the date, or the place, but the act itself is the same,
then within the military court system the idea would be to toll
the statute of limitations or extend the statute of limitations
because the National Guard does not want the alleged wrongdoer
to get out on a technicality. However, he added, the individual
still does have notice on the specific acts because the notice
on the specific acts has to be within the statute of
limitations.
REPRESENTATIVE KELLER surmised that this follows the court of
military justice.
2:03:10 PM
REPRESENTATIVE KELLER referred to page 26, beginning line 23,
and requested clarification in that there is a 10-year limit on
sentencing in the state and; therefore, the ultimate result is
that the maximum penalty under this for a sexual abuse case is
exactly the same as a maximum penalty for collaboration with the
enemy. Whereas, he pointed out, within a federal case that
could be a death penalty, and he asked whether there are any
ramifications of having those two maximum penalties the same.
CAPTAIN DUNBAR replied that there have been many discussions
regarding this issue, and the National Guard believes it should
retain the 10-year upper limit on maximum confinement for a
National Guard service member. He noted that Representative
Keller is correct, that within the federal UCMJ the death
penalty is available for some of these offenses and more severe
crimes. He reiterated that the National Guard reviewed each
provision over the summer and took crimes out, such as murder,
the highest level rapes and sexual assault on a child because it
does not believe it is appropriate for the National Guard to
prosecute primarily civilian crimes. He pointed out that
civilians have higher potential limits on sentencing.
CAPTAIN DUNBAR said that with regard to the subject provisions,
they are entirely military offense, such as misbehavior before
the enemy and desertion. Those are a little more complicated to
answer, he said. The key is to remember that with well over 99
percent of cases of misbehavior before the enemy, such as Sgt.
Bowe Bergdahl's charge, the individual will be in Title X status
- active duty military and subject to the federal UCMJ. He
noted that a soldier is in Title X when located in areas such as
Iraq or Afghanistan. However, under the unlikely chance the
enemy is in Alaska and for whatever reason the federal
government had not federalized the Alaska National Guard, within
that brief window a soldier or airman could commit one of these
specific offenses and the Alaska National Guard would be limited
to 10-years in prison. However, he stated the National Guard
still feels that 10-years is an appropriate punishment in the
vast majority of cases. In the cases that involve espionage, he
pointed out, there are a variety of federal non-military
statutes that still apply to Alaska's soldiers and airmen even
though they are not in Title X status. Furthermore, he advised
there are a number of civilian charges such as someone helping
the enemy to conduct an attack on the pipeline, they would be
guilty of attempted murder, assault, and a variety of other
Alaska state law offenses. He reiterated that the National
Guard believes it is fairly well covered and understands the
concerns but believes 10-years is an appropriate cap under this
code.
2:07:25 PM
REPRESENTATIVE KELLER referred to page 44, [beginning line 29]
and advised the provision discusses DUI civilian convictions,
and deals with penalties under the military code. He asked
whether there was the possibility of [double jeopardy].
CAPTAIN DUNBAR answered there are situations wherein a service
member could be convicted in civilian court and still be
subjected to administrative action or nonjudicial punishment;
however, they cannot be court-martialed if they are convicted in
civilian court due to double jeopardy. He explained that the
provision was inserted at the behest of his commanders for two
primary reasons, they want the ability to perform a nonjudicial
punishment cleanly and have a place in their code to reference
nonjudicial punishment which, he reiterated, cannot result in
confinement and, also, the commanders want the ability to pursue
a DUI should the civilian state court choose not to do so.
2:09:48 PM
CHAIR LEDOUX opened pubic testimony and after ascertaining no
one wished to testify, closed public testimony.
2:11:20 PM
REPRESENTATIVE MILLETT expressed her gratitude to Chair LeDoux,
the committee staff, members of the administration, Nancy Meade,
Governor Bill Walker's office, Captain Dunbar, Lt. Colonel
Weaver, and the committee for working hard together.
REPRESENTATIVE LYNN echoed Representative Millett's comments and
thoroughly agreed. The National Guard performs a vital service
and now everyone clearly knows the rules, he expressed.
REPRESENTATIVE CLAMAN echoed all committee comments and
appreciates everyone's cooperation.
REPRESENTATIVE GRUENBERG agreed with the committee members and
pointed out to Captain Dunbar and Lieutenant Colonel Weaver that
if the bill is not as they prefer, the bill is moving to the
other house.
CHAIR LEDOUX commented that the way this committee worked is the
manner in which government is supposed to work. For example,
the way it worked with the administration, Nancy Meade and Kaci
Schroeder, republicans worked with democrats and independents,
her prior staffer Thomas Brown put in a lot of work on this
bill, Kalyssa and Captain Dunbar, she said.
2:17:01 PM
REPRESENTATIVE KELLER moved to report CSHB 126(MLV), Version 29-
LS0473/S, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 126(JUD) moved from the House Judiciary
Standing Committee.
2:17:29 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:17 p.m.
AMENDMENT
Amendment 1 [29-LS0473\S.8, Wallace, 1/20/16]
Page 35, line 24:
Delete "shall"
Insert "may"
Page 36, line 4:
Delete "shall"
Insert "may"
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Delete "shall"
Insert "may"
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Delete "shall"
Insert "may"
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Delete "shall"
Insert "may"
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Delete "shall"
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Delete "shall"
Insert "may"
Page 37, line 6:
Delete "shall"
Insert "may"
Page 37, line 13:
Delete "shall"
Insert "may"
Page 38, line 4:
Delete "is punishable"
Insert "may be punished"
Page 38, line 17:
Delete "shall"
Insert "may"
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Delete "shall"
Insert "may"
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Delete "shall"
Insert "may"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "shall"
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Delete "and"
Insert "or"
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Delete "and"
Insert "or"
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| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 126-CS Version S.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Memo.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Sectional Summary.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Comparison from Version G.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Explanation of Changes from Version G.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Rep. Gruenberg Amendments.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |
| HB 126-CS Version S-Rep. LeDoux Amendments.pdf |
HJUD 1/22/2016 1:00:00 PM |
HB 126 |