Legislature(2015 - 2016)CAPITOL 120

04/14/2015 01:00 PM House JUDICIARY

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            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                                                               
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                                                                    
     Section  3, page  2 -  amends 26.05.228(b).  Conforming                                                                    
     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,                                                                    
          - 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                                                                             
          - Identify rules of trial, pretrial, post-trial                                                                       
     and related procedures;                                                                                                    
          - Organize courts of inquiry;                                                                                         
          - Provide adequate protection of classified                                                                           
     Other  sections in  the new  Code  of Military  Justice                                                                    
          - 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,                                                                     
          - Defines the investigatory process,p.14;                                                                             
          - Lays out how charges may be processed and the                                                                       
     procedures for continuances, oaths  of office for court                                                                    
          - 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-                                                                      
          - 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                                                                               
     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                                                                    
     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                                                               
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                                                               
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-                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                                                                                    

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