Motion — Secretary of Navy v. Avrech

Supreme Court of the United States

October Term, 1972

No. 72-1713

SECRETARY OF THE NAVY,

Appellant,

v.

MARK AVRECH,

Appellee.

On Appeal from the United States Court of Appeals

for the District of Columbia Circuit

a

~~

MOTION TO AFFIRM

ee ———$———_————

en ———————

Dorian Bowman

Rabinowitz, Boudin & Standard

30 East 42nd Street

New York, New York 10017

David Rein

Forer and Rein

430 National Press Building

14th & F Streets, N.W.

Washington, D.C. 20004

Attorneys for Appellee

Supreme Court of the Bnited Staten

October Term, 1972

No. 72-1713

SECRETARY OF THE NAVY,

Appellant,

v.

MARK AVRECH,

Appellee.

On Appeal from the United States Court of Appeals

for the District of Columbia Circuit

MOTION TO AFFIRM

Appellee moves this Court, pursuant to Rule 16, to affirm

the judgment of the Court of Appeals on the ground that the

decision below is so manifestly correct as not to need further

argument before this Court.

Statement

The Court of Appeals, below, in a unanimous opinion

written by Mr. Justice Clark and concurred in by Judges Wright

and Wilkey, invalidated a court-martial conviction of the ap-

pellee on the ground that Article 134 of the Uniform Code of

Military Justice, 10 U.S.C, §934, is unconstitutionally vague.

After reviewing the history of Article 134 and its current usage

by the military, the court below concluded that:

“... Article 134 gives no fair warning of the conduct it

proscribes and fails to provide any ascertainable stand-

ard of guilt to circumscribe the discretion of the enforc-

2

ing authorities . . . Indeed, th only apparent purpose of

Article 134 is to act as a catchall for varied types of

improper misconduct not otherwise covered by the

Code.” (J.S. 20)'

Argument

1. Appellant argues (J.S. 6) that the constitutionality of

Article 134 presents a substantial question because of an alleged |

conflict with the prior decisions of this Court in Smith v.

Whitney, 116 U.S. 167, and Dynes v. Hoover, 20 How. 65, and

because Article 134 has established “an ascertainable standard

of proscribed conduct” by virtue of “its history, case law, and

the approximately seventy specific offenses cognizable under

the Article which have been explicitly included in the Manual

for Courts-Martial” (J.S. 7). Neither of these arguments is

substantial.

As Justice Clark pointed out below, “the old authorities

cited bear little weight” (J.S. 21). They were decided in 1858

(Dynes v. Hoover), and 1886 (Smith v. Whitney). They did not,

and obviously could not, have considered the issue of whether

Article 134 was void for vagueness in the light of the modern

doctrine of vagueness which was first enunciated by this Court

in Connally v. General Construction Co., 269 U.S. 385 (1926).

It is clear that under modern standards Article 134 cannot pass

constitutional muster. See Papachristou v. City of Jacksonville,

405 U.S. 156 (1972), Shuttlesworth v. Birmingham, 394 U.S.

147 (1969), Giaccio v. Pennsylvania, 382 U.S. 399 (1966),

Staub v. Baxley, 355 U.S. 313 (1958), Gelling v. Texas, 343

U.S. 960 (1952). In addition, Dynes v. Hoover and Smith v.

Whitney predated the growth of the doctrine that verdicts of

courts could be collaterally attacked by habeas corpus or

otherwise on constitutional grounds other than the bare ques-

tion of jurisdiction. Johnson v. Zerbst, 304 U.S. 458 (1938).

Burris and Jones, Civilian Courts and Courts-Martial—The Civil-

ian Attorney’s Perspective, 10 Amer. Crim. Law Review 139,

1. “J.S.” refers to the Jurisdictional Statement.

.

3

142 (1971). As Justice Clark noted below (J.S. 24), those cases

dated from an era when the Supreme Court “adopted a hands-

off policy towards courts-martial” holding that “the civil courts

exercise no supervisory or correcting power over the proceed-

ings of a court-martial... The simple inquiry, the_ test, is

jurisdiction.” —.

Justice Clark, in addition, fully reviewed the

made by appellant here based on the history of Article 134, its

usage, and its implementation in the Manual. He concluded:

“Interpretation of the General Article through the

Manual to proscribe some seventy explicit offenses,

rather than evidencing settled and understandable mean-

ing, indicates just the contrary. For example, not until

1951 did the disloyalty charge prosecuted here become

a badge of infamy within reach of the Manual. . . . [WJje

find the 1968 edition of the Manual continues te ex-

pand their number. Indeed, the only apparent purpose

of Article 134 is to act as a catchall for varied types of

unforeseen misconduct not otherwise covered by the

Code.” (J.S. 20).

‘And the opinions of the Military Court of Appeals add

more weight to this conclusion. It has held repeatedly

that the Manual does not limit or confine Article 134.

The Manual is not exhaustive of Article 134 miscon-

duct; its crazy quilt of offenses does not cover Article

134’s bed . . . Further, the inclusion of specific conduct

in the Manual specifications does not necessarily mean

the conduct is punishable under the Article... These

cases demonstrate it is neither necessary nor sufficient

that a serviceman’s conduct fit a Manual specification in

order for him to incur criminal liability under Article

134. Nothing could point more accusingly to the vague-

ness of Article 134 than for the Court of Military

Appeals to say that in the final analysis, the Manual is

but a mini-digest of the roving character of Article 134,

&

whose vague and indefinite language is absolutely cc

trolling. Clearly the broad net of Article 134 will cat

an accused although the Manual does not.” (J.S. 22-2:

In short, all of the considerations and arguments advanc

in appellant's jurisdictional statement were fully considere

analyzed and discussed in Justice Clark's opinion and the app

lant presents nothing new which merits consideration by tl

Court. Accordingly, the judgment below should be affirmed «

the basis of Justice Clark's opinion. Further, as noted in t

jurisdictional statement (p. 6, fn. 5), the only other appella

court to consider the question unanimously reached the sar

result as court below. Levy v. Parker, _ F.2d —~ (3

Cir. April 18, 1973).

2. It should further be noted that the specific char

levied against appellee under Article 134, an attempt to publi

a “disloyal” statement, was held to be unconstitutionally vag

in violation of the Fifth Amendment and unconstitutional

overbroad in violation of the First Amendment in Stolte, et .

v. Laird, 353 F.Supp. 1392 (D.D.C. 1972). Significantly,

government did not appeal this decision, thus implicitly rece

nizing its correctness. Accordingly, the judgment below wou

in any event have to be affirmed on the authority of the Stol

case, which, since it was not appealed by the governmer

remains the law in the District of Columbia.?

2. Appellee raised, in the courts below, the question of the vage

ness of the words “disloyalty” and “disaffection,” used in the cou

martial charge here. However, the Court of Appeals did not reach the iss

in view of its holding with respect to Article 134. In addition, appell

argued below that his statement was protected free speech under the Fi

Amendment, an issue which was also not reached by the court below (J.

15).

5

Conclusion

For the foregoing reasons, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,

Dorian Bowman

Rabinowitz, Boudin & Standard

30 East 42nd Street

New York, New York

David Rein

Forer & Rein

430 National Press Building

Washington, D.C.

July 30, 1973