Legislature(2015 - 2016)BUTROVICH 205

04/14/2016 08:30 AM Senate STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Note Time --
Moved SCS CSHB 126(STA) Out of Committee
Moved CSHJR 30(STA) Out of Committee
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
            HB 126-CODE OF MILITARY JUSTICE; APPEALS                                                                        
9:08:45 AM                                                                                                                    
CHAIR STOLTZE announced the consideration of HB 126.                                                                            
CHAIR STOLTZE offered Amendment 1, labeled: 29-LS0473\F.A.1:                                                                    
                          AMENDMENT 1                                                                                         
OFFERED IN THE SENATE                   BY SENATOR STOLTZE                                                                      
     TO: CSHB 126(JUD)am                                                                                                        
     Page 26, line 30:                                                                                                          
          Delete "imposed"                                                                                                  
          Insert "authorized"                                                                                               
     Page 27, line 2:                                                                                                           
          Delete "imposed"                                                                                                      
          Insert "authorized"                                                                                                   
SENATOR COGHILL objected for discussion purposes.                                                                               
9:09:46 AM                                                                                                                    
DANIEL  GEORGE,   Staff,  Senator  Bill  Stoltze,   Alaska  State                                                               
Legislature, Juneau,  Alaska, explained that Amendment  1 labeled                                                               
29-LS0473\F.A.1,  addresses  a  policy  call  in  the  bill  that                                                               
changes  "imposed"   sentences  to  "authorized"   sentences.  He                                                               
detailed  that offenses  in  the bill  are  classified as  either                                                               
misdemeanor  or  felony  and  based on  the  sentences  that  are                                                               
"imposed;" that  differs from existing  state law  where offenses                                                               
are classified as  either misdemeanor or felony and  based on the                                                               
sentences that are "authorized."  He noted that "misdemeanor" and                                                               
"felony" were terms not traditionally used in the military.                                                                     
9:11:23 AM                                                                                                                    
CHRISTOPHER  WEAVER,   Lieutenant  Colonel  (LTC),   Staff  Judge                                                               
Advocate,  Office of  the  Commissioner/Adjutant General,  Alaska                                                               
National  Guard, Department  of Military  and Veterans'  Affairs,                                                               
Joint  Base  Elmendorf-Richardson,  Alaska,  concurred  that  the                                                               
amendment was a  policy call for the Legislature.  He stated that                                                               
the  Alaska National  Guard  had no  position  on misdemeanor  or                                                               
felony classifications.                                                                                                         
He disclosed  that the  Uniform Code  of Military  Justice (UCMJ)                                                               
and  the Alaska  Code  of  Military Justice  (ACMJ)  do not  have                                                               
degrees of felonies  or misdemeanors. He specified  that the ACMJ                                                               
charges were  based on  the offense itself  and whether  that met                                                               
the specifications.  He added that  a court-martial decided  on a                                                               
sentence.  He  said  he  believed that  the  change  was  imposed                                                               
because if somebody was charged  with a particular crime that may                                                               
warrant ten  years, but the  court-martial decides to give  a 45-                                                               
day sentence, the same offense  based on prosecutorial discretion                                                               
in the  civilian world may have  been charged as either  a felony                                                               
or misdemeanor, also known as a "wobbler" offense.                                                                              
CHAIR STOLTZE pointed  out that an ACMJ sentence  could "cut both                                                               
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                                                               
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                                                               
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                                                               
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                                                               
   · 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                                                               
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-                                                               
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                                                               
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                                                               
   · 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                                                                
   · 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                                                               
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                                                               
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                                                               
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                                                               
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.