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