# Motion — Secretary of Navy v. Avrech > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1604%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1974 - **Citation:** 418 U.S. 676 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1604%3A03. Public record. Not legal advice.