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2017 Regular Session
SENATE BILL NO. 147
BY SENATOR RISER
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
MILITARY AFFAIRS. Provides relative to the Louisiana National Guard. (gov sig)
1 AN ACT
2 To amend and reenact R.S. 29:40, 102, 116, 120, 132, 136, relative to the Military
3 Department; to provide for the jurisdiction of courts-martial; to provide for the
4 regulation of the Military Department; to provide for the composition and conduct
5 of disciplinary proceedings of service members; to provide for administration of
6 disciplinary hearings and actions; to provide for exceptional circumstances; and to
7 provide for related matters.
8 Be it enacted by the Legislature of Louisiana:
9 Section 1. R.S. 29:40, 102, 116, 120, 132, 136 are hereby amended and reenacted
10 to read as follows:
11 §40. Leasing of airport space for military purposes
12 The public advertising and bidding procedures governing the leasing of
13 airport space, military facilities, or reservations shall not apply to the Military
14 Department of Military Affairs of the state of Louisiana when leasing of such airport
15 space, at a publicly-owned airport military facilities, or reservations is for military
16 purposes.
17 * * *
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1 §102. Article 2. Persons subject to this code
2 A. This code applies to all members of the state military forces when not
3 subject to the Uniform Code of Military Justice and while in a duty status or during
4 a period of time in which the member is under lawful order to be in a duty status at
5 all times and in all places. A court-martial or court of inquiry may be convened
6 and held in a unit of the state military forces serving outside the state, and the
7 court has the same jurisdiction and powers as if the court-martial or court of
8 inquiry were held within the state. An offense committed outside the state may
9 be tried and punished outside the state or within the state. For members of the
10 state military forces on active duty service in the Army National Guard of the
11 United States under Title 10, United States Code, this code applies in the event
12 that the federal convening authority declines to convene a court-martial under
13 the Uniform Code of Military Justice.
14 B. For purposes of Article 112a of this code, members of the state military
15 forces shall be considered to be in a duty status at all times during said membership.
16 C. However, the The processing of charges and all proceedings, including
17 trial, may be conducted without regard to the duty status of the accused.
18 C. Subject matter jurisdiction for judicial or nonjudicial punishment
19 exists if there is a clear and convincing nexus between an offense under this code
20 and the state military force. When a member is in a duty status under either
21 Title 32 of the United States Code or State Active Duty under R.S. 29:7, then
22 there shall be a rebuttal presumption that subject matter jurisdiction exists.
23 * * *
24 §116. Article 16. Courts-martial classified
25 A. The three kinds of courts-martial in the state military forces are:
26 (1) general courts-martial, consisting of:
27 (a) a military judge and not less than six members; or
28 (b) only a military judge, if before the court is assembled the accused,
29 knowing the identity of the military judge, and after consultation with defense
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1 counsel, requests in writing a court composed only of a military judge and the
2 military judge approves;
3 (2)(a) special courts-martial, consisting of a military judge and not less than
4 six members; or
5 (b) only a military judge, if before the court is assembled the accused,
6 knowing the identity of the military judge, and after consultation with defense
7 counsel, requests in writing a court composed only of a military judge and the
8 military judge approves;
9 (3) summary courts-martial, consisting of one commissioned officer.
10 B. A waiver of the right to a trial by members may be waived by the
11 accused, but such waiver shall be exercised no later than forty-five days prior
12 to commencement of trial on the merits in the court-martial. A waiver, once
13 exercised, may not be revoked by the accused.
14 * * *
15 §120. Article 20. Summary courts-martial
16 A. In the national guard not in federal service, the commanding officer of a
17 garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are
18 on duty, or of a brigade, regiment, wing, group, detached battalion, detached
19 squadron, detached company or other detachment, may convene a summary
20 court-martial consisting of one commissioned officer. The proceedings shall be
21 informal.
22 B. Summary courts-martial shall not have jurisdiction over officers.
23 C. A summary court-martial may sentence to:
24 (1) Confinement of not more than one week thirty days;
25 (2) Reduction of enlisted personnel to the lowest grade;
26 (3) A fine of not more than one hundred dollars;
27 (4) Forfeiture of up to one month pay and allowances;
28 (5) A reprimand; or
29 (6) Any combination of these punishments.
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1 * * *
2 §132. Article 32. Investigation Preliminary hearing
3 A. Preliminary Hearing Required.
4 (1) No charge or specification may be referred to a general court-martial for
5 trial until a thorough and impartial investigation of all the matters set forth therein
6 has been made. This investigation shall include inquiry as to the truth of the matter
7 set forth in the charges, consideration of the form of charges, and a recommendation
8 as to the disposition which should be made of the case in the interest of justice and
9 discipline completion of a preliminary hearing, unless such hearing is waived by
10 the accused.
11 (2) The purpose of the preliminary hearing shall be limited to the
12 following:
13 (a) determining whether there is probable cause to believe an offense has
14 been committed and the accused committed the offense;
15 (b) determining whether the convening authority has court-martial
16 jurisdiction over the offense and the accused;
17 (c) considering the form of the charges; and
18 (d) recommending the disposition that should be made of the case.
19 B. The accused shall be advised of the charges against him and of his right
20 to be represented at that investigation by counsel. Upon his own request he shall be
21 represented by civilian counsel if provided by him at his own expense or military
22 counsel of his own selection if such counsel is reasonably available, or by counsel
23 detailed by the officer exercising general court martial jurisdiction over the
24 command. At that investigation full opportunity shall be given to the accused to cross
25 examine witnesses against him if they are available and to present anything he may
26 desire in his own behalf, either in defense or mitigation, and the investigating officer
27 shall examine available witnesses requested by the accused. If the charges are
28 forwarded after the investigation , they shall be accompanied by a statement of the
29 substance of the testimony taken on both sides and a copy thereof shall be given to
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1 the accused. Hearing officer. (1) A preliminary hearing under Subsection A of
2 this Section shall be conducted by an impartial judge advocate certified under
3 Article 27(B) of this code whenever practicable or, in exceptional circumstances
4 in which the interests of justice warrant, by an impartial hearing officer who is
5 not a judge advocate. If the hearing officer is not a judge advocate, a judge
6 advocate certified under Article 27(B) shall be available to provide legal advice
7 to the hearing officer.
8 (2) Whenever practicable, when the judge advocate or other hearing
9 officer is detailed to conduct the preliminary hearing, the officer shall be equal
10 to or senior in grade to military counsel detailed to represent the accused or the
11 government at the preliminary hearing.
12 C. If an investigation of the subject matter of an offense has been conducted
13 before the accused is charged with the offense, and if the accused was present at the
14 investigation and afforded the opportunities for representation, cross examination,
15 and presentation prescribed in Subsection (B), no further investigation of that charge
16 is necessary under this Section unless it is demanded by the accused after he is
17 informed of the charge. A demand for further investigation entitles the accused to
18 recall witnesses for further cross examination and to offer any new evidence in his
19 own behalf. Report of results. After conducting a preliminary hearing under
20 Subsection A of this Section, the judge advocate or other officer conducting the
21 preliminary hearing shall prepare a report that addresses the matters specified
22 in Paragraph (2) of Subsection A and Subsection F of this Section.
23 D. The requirements of this Section are binding on all persons administering
24 this code but failure to follow them does not divest a military court of jurisdiction.
25 Rights of accused and victim. (1)The accused shall be advised of the charges
26 against the accused and of the accused's right to be represented by counsel at
27 the preliminary hearing under Subsection A of this Section. The accused has the
28 right to be represented at the preliminary hearing as provided in Article 38 of
29 this Code and in regulations prescribed under that Article.
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1 (2) The accused may cross-examine witnesses who testify at the
2 preliminary hearing and present additional evidence in defense and mitigation,
3 relevant to the limited purposes of the hearing, as provided for in Paragraph (4)
4 of this Subsection and Paragraph (2) of Subsection A.
5 (3) A victim may not be required to testify at the preliminary hearing.
6 A victim who declines to testify shall be deemed to be not available for purposes
7 of the preliminary hearing.
8 (4) The presentation of evidence and examination, including
9 cross-examination, of witnesses at a preliminary hearing shall be limited to the
10 matters relevant to the limited purpose of the hearing, as provided in Paragraph
11 (2) of Subsection A.
12 E. Recording of preliminary hearing. A preliminary hearing under
13 Subsection A of this Section shall be recorded by a suitable recording device.
14 The victim may request the recording and shall have access to the recording as
15 prescribed by the Manual for Courts-Martial.
16 F. Effect of evidence of uncharged offense. If evidence adduced in a
17 preliminary hearing under Subsection A of this Section indicates that the
18 accused committed an uncharged offense, the hearing officer may consider the
19 subject matter of that offense without the accused having first been charged
20 with the offense if the accused:
21 (1) is present at the preliminary hearing;
22 (2) is informed of the nature of each uncharged offense considered; and
23 (3) is afforded the opportunities for representation, cross-examination,
24 and presentation consistent with Subsection D of this Section.
25 G. Effect of violation. The requirements of this Section are binding on
26 all persons administering this Chapter, but failure to follow the requirement
27 does not constitute jurisdictional error.
28 H. Victim defined. In this Section, the term "victim" means a person
29 who:
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1 (1) is alleged to have suffered a direct physical, emotional, or pecuniary
2 harm as a result of the matters set forth in a charge or specification being
3 considered; and
4 (2) is named in one of the specifications.
5 * * *
6 §136. Article 36. Governor may prescribe rules Rules of procedure for
7 court-martial
8 A. The procedure, including modes of proof, in cases before military courts
9 may be prescribed by the governor by regulations which shall, so far as he considers
10 practicable, apply the principles of law and the rules of evidence generally
11 recognized in the trial of criminal cases in this state, but which may not be shall be
12 the federal Rules for Courts-Martial, as published in the most recent version of
13 the Manual for Courts-Martial, United States, except when such rules are
14 contrary to or inconsistent with this code.
15 B. The modes of proof in cases before courts-martial under this code
16 shall be the federal Military Rules of Evidence, as prescribed in the most recent
17 version of the Manual for Courts-Martial, United States, except when such rules
18 are contrary or inconsistent with this code.
19 C. The governor or adjutant general may promulgate additional rules
20 and regulations regarding courts-martial procedure. All rules and regulations
21 made under this Section shall be uniform insofar as practicable.
22 * * *
23 Section 2. This Act shall become effective upon signature by the governor or, if not
24 signed by the governor, upon expiration of the time for bills to become law without signature
25 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
26 vetoed by the governor and subsequently approved by the legislature, this Act shall become
27 effective on the day following such approval.
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The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Ashley Mitchell Carter.
DIGEST
SB 147 Original 2017 Regular Session Riser
Present law provides that the public advertising and bidding procedures will not apply to the
military when leasing airport space for military purposes.
Proposed law retains present law and extends the exception to the leasing of military
facilities and reservations when the leasing of such is for military purpose.
Present law provides that the code applies to all members of the military forces when they
are not subject to the Uniform Code of Military Justice and while in a duty status or when
the member is under lawful order to be in a duty status.
Proposed law extends the jurisdiction of the commanders to include that a court-martial or
court of inquiry can be convened and held in a unit serving outside of the state, granting the
court the same jurisdiction and powers of the court-martial inside of the state.
Proposed law further adds that an offense committed outside of the state can be tried and
punished either inside or outside of the state. This applies to active National Guard members
when the federal convening authority declines to convene a court-martial under the Uniform
Code of Military Justice.
Proposed law provides that proposed law applies to all members regardless of duty status
of the accused whenever there is a clear and convincing nexus between an offense and the
state military force. However, when a member is in active duty status in accordance to
present law, there shall be a rebuttable presumption that subject matter jurisdiction exists.
Proposed law retains present law concerning courts-martial classified but proposed law adds
a waiver of the right to a trial can be waived by the accused party, but it must be exercised
prior to 45 days before the beginning of the trial on the merits in the court-martial. Once the
waiver has been exercised, it cannot be revoked.
Proposed law changes the amount of time that a commanding officer can sentence a National
Guard member to confinement from one week to 30 days. Proposed law otherwise retains
present law concerning summary courts-martial.
Present law provides that a thorough and impartial investigation must be conducted as to the
truth of the matter, consideration of the charges, and a recommendation of the disposition
prior to any charges or specification being referred to a general court-martial for hearing.
Proposed law changes present law to require a preliminary hearing prior to any charges or
specification being referred to a general court-martial for hearing unless the hearing is
waived by the accused.
Proposed law also provides that the scope of the preliminary hearing will be limited to:
(1)Determining whether there is probable cause to believe an offense has been
committed and the accused committed the offense;
(2)Determining whether the convening authority has court-martial jurisdiction over the
offense and the accused;
(3)Considering the form of the charges; and
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(4)Recommending the disposition that should be made of the case.
Proposed law further provides a preliminary hearing will be conducted by an impartial judge
advocate certified under present law whenever practicable or, in exceptional circumstances
by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a
judge advocate, a judge advocate certified under present law will be available to provide
legal advice to the hearing officer.
Proposed law provides that when the judge advocate or other hearing officer is detailed to
conduct the preliminary hearing, the officer will be equal to or senior in grade to military
counsel. After a hearing has been conducted, a report addressing the matters will be
prepared. The accused will be advised of the charges against them and of their rights and can
cross-examine witnesses who testify at the preliminary hearing and present evidence relevant
to the limited scope of the hearing.
Proposed law also adds that a victim may not be required to testify at the preliminary hearing
and when a victim declines to testify, they shall be deemed unavailable for purposes of the
preliminary hearing. The presentation of evidence and examination, will be limited to the
matters relevant to the scope of the hearing and the hearing will be recorded and the victim
may request the recording and shall have access to the recording as prescribed by the Manual
for Courts-Martial.
Proposed law adds that if evidence adduced in a preliminary hearing indicates that the
accused committed an uncharged offense, the hearing officer may consider the subject
matter of that offense without the accused having first been charged with the offense if the
accused:
(1)Is present at the preliminary hearing;
(2)Is informed of the nature of each uncharged offense considered; and
(3)Is afforded the opportunities for representation, cross-examination, and presentation.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 29:40, 102, 116, 120, 132, 136)
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