BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 1410
Author: Assembly Veterans Affairs Committee
Amended: As introduced
Vote: 21
SENATE VETERANS AFFAIRS COMMITTEE : 7-0, 6/25/13
AYES: Hueso, Knight, Block, Correa, Lieu, Nielsen, Roth
NO VOTE RECORDED: Vacancy
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 70-0, 5/16/13 (Consent) - See last page for
vote
SUBJECT : Courts-Martial Appellate Panel
SOURCE : Author
DIGEST : This bill establishes the Courts-Martial Appellate
Panel (CMAP). CMAP consists of three justices to be appointed
by the Governor. This bill requires a justice to sit on CMAP
for a four-year term or until his/her resignation. The bill
authorizes CMAP to be convened by the President of the United
States, the Governor, or the Adjutant General. Under this bill,
CMAP has power over the issuance of extraordinary writs relative
to specified matters and adjudicating appeals of sentences of a
court-martial. This bill requires precedential decisions of
CMAP to be posted in a conspicuous place.
ANALYSIS : Existing law:
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1. Provides that the California Military Department (CMD) can
prosecute member Soldiers and Airmen under state authority.
2. Establishes three types of CMD courts-martial: summary,
special and general.
3. Authorizes CMAP - the CMD's appellate tribunal - by a
Governor's General Order (GO) rather than by statute.
4. Federal courts-martial appeal authority and procedures are
authorized by statute in the Uniform Code of Military Justice
(UCMJ).
This bill:
1. Provides that:
A. The CMAP consist of three justices to hear matters
described in Section 458.1 of the Military and Veterans
Code (MVC).
B. The Governor, by GO, appoint the three justices who
have experience and training in the field of military law.
C. The CMAP conduct itself as a three-justice court.
D. The CMAP may be convened by the President of the U.S.,
the Governor, or the Adjutant General.
2. Provides that justices serving on the CMAP:
A. Not be liable civilly or criminally for any act or
acts done by them in the performance of his/her duty, as
described in MVC Section 472.
B. Be subject to a code of judicial conduct in accordance
with applicable U.S. Army and the U.S. Air Force
regulations.
C. Sit for four years upon which his/her appointment will
be terminated or upon acceptance of his/her resignation by
the Adjutant General, whichever occurs first.
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D. Be paid at the rate of compensation for a federal
military O-6 (the pay grade for Army and Air Force full
colonels) only while in session.
3. Provides that the CMAP has jurisdiction over the following:
A. Issuance of extraordinary writs relative to all matters
arising under the following:
(1) The provisions of the MVC.
(2) UCMJ.
(3) Any regulation issued by the Governor pertaining
to members of the California active militia.
(4) Court-martial actions pending before any
military judge of the CMD.
B. Adjudicating appeals of sentences of a court-martial
that have been approved by the convening authority which
include:
(1) Dismissal, in the case of a commissioned or
warrant officer.
(2) Dishonorable discharge, in the case of an
enlisted man or woman.
(3) Bad-conduct discharge, in the case of an
enlisted man or woman.
(4) Forfeiture of all pay and allowances.
(5) Any confinement.
4. Mandates that the practices and procedures of the CMAP follow
specified sections of the federal Manual for Courts-Martial
and the California Manual for Courts-Martial.
5. Specifies that with regard to any matter adjudicated by the
CMAP, the reported decisions of the U.S. Court of Appeals for
the Armed Forces shall have direct precedential authority to
such matters unless otherwise directed by the CMAP.
6. Directs that the precedential decisions of the CMAP shall be
posted in a conspicuous place.
Background
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California State Militia . MVC provides for a California state
militia, which contains both an active militia and an
unorganized militia, as follows:
1. The militia of the state consists of the National Guard,
State Military Reserve and the Naval Militia--which
constitute the active militia--and the unorganized militia.
2. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National
Guard, the State Military Reserve, or the Naval Militia.
All able-bodied males between 18 and 45 years old who are not
members of the CMD constitute the unorganized militia of the
state.
3. The Governor may call the unorganized militia for active duty
in case of war, rebellion, insurrection, invasion, tumult,
riot, breach of the peace, public calamity or catastrophe, or
other emergency or imminent danger, or may be called forth
for service under the Constitution and laws of the U.S.
CMD . CMD is a state department located within the executive
branch. According to MVC Section 51, the CMD is comprised of
the following:
The three components of the active militia: (1) The
National Guard, (2) State Military Reserve, and (3) Naval
Militia.
Two additional elements: (1) The Office of the Adjutant
General and (2) the California Cadet Corps.
CMD's eclectic personnel mix includes both paid employees and
volunteers, both uniformed military and civilian workers, both
full-time and part-time, and both federally funded and
state-funded. Uniformed employees are subject to military law.
Military law . Federal courts-martial are conducted under the
UCMJ and the Manual for Courts-Martial (MCM). Congress enacted
the UCMJ, the code of military criminal laws applicable to all
U.S. military members. The MCM contains the Rules for
Courts-Martial (RCM) and Military Rules of Evidence (MRE).
Under this legal framework, military members are subject to
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rules, orders, proceedings, and consequences different from the
rights and obligations of their civilian counterparts.
The UCMJ authorizes three types of courts-martial: (1) summary
court-martial; (2) special court-martial; and (3) general
court-martial. Depending on the severity of the alleged
offense, the accused's commanding officer enjoys great
discretion with respect to the type of court-martial to convene.
Generally, each of the courts-martial provides fundamental
constitutional and procedural rights to the accused, including,
but not limited to, the right to a personal representative or
counsel, the opportunity to confront evidence and witnesses, and
the right to have a decision reviewed by a lawyer or a court of
appeals.
Military members convicted by federal courts-martial may appeal
for review by the U.S. Court of Appeals for the Armed Services.
This independent tribunal was established within the UCMJ by act
of Congress -- not by a Presidential executive order. The same
constitutional principles are applicable to the CMAP.
California law expressly adopts federal military statutes, the
UCMJ, MCM, RCM, and MRE as far as they may be applicable to
state military matters. During the first decade of the
post-9/11 era, the increasing number of mobilizations and
deployments heightened the need to maintain congruity between
federal military law and state military law. This necessitated
updating California military law to more closely track with the
current federal military law concerning punishments. Many
changes had taken place in the federal UCMJ during the previous
50 years. The punishment provisions in state law governing
courts-martial in California have not been updated in 50 years,
and these punishment limitations (found in Sections 456, 457,
and 458 of the MVC) were directly traceable back to the
limitations previously contained in the United States Code,
Title 32, Section 327-329.
This led to AB 2579 (S.Runner, 2006), the Legislature's most
recent update of state military legal procedures. Sponsored by
the CMD, the bill allows California to use the same standards
and regulations as the federal government under the UCMJ in the
punishment for court-martial. It includes within the powers of
special court martial the power to try commissioned officers and
enlisted members of the organized militia. AB 2579 provided for
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the following:
1. The state's summary court-martial punishments meet the very
same federal law/UCMJ standards (i.e., up to 30 days in
confinement).
2. To have the state's special court-martial scheme meet the
same federal law/UCMJ standards for an active duty special
court-martial (but limit confinement to up to 180 days).
3. To have the state's general court-martial punishment scheme
meet the same federal law/UCMJ standards for an active duty
special court-martial (i.e., up to one year confinement, but
add the possibility of a dismissal (for officer cases) and a
dishonorable discharge (for enlisted cases).
Prior Legislation
AB 2579 (S.Runner, Chapter 358, Statutes of 2006) updated
California military law in the area of punishments available for
state courts-martial to make them more consistent with
comparable provisions in federal military law.
SB 1025 (Craven, Chapter 90, Statutes of 1989) adopted the
federal UCMJ and Manual for Courts-Martial for the State of
California's application to its active militia, including the
California National Guard.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
ASSEMBLY FLOOR : 70-0, 5/16/13
AYES: Achadjian, Alejo, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dahle, Daly, Dickinson, Donnelly, Fong, Fox, Frazier, Garcia,
Gatto, Gomez, Gordon, Gorell, Gray, Hagman, Hall, Harkey,
Roger Hernández, Jones, Jones-Sawyer, Levine, Linder, Logue,
Lowenthal, Maienschein, Mansoor, Medina, Mitchell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Allen, Buchanan, Eggman, Beth Gaines, Grove,
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Holden, Melendez, Morrell, Stone, Vacancy
AL:k 8/13/13 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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