Petition for Writ of Certiorari — Phillips v. United States

ee Supreme Court, u.g.

\} FILED

te OFFICE. oF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

ALLEN L. PHILLIPS, SPECIALIST, UNITED STATES

ARMY, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

Stephen D. Smith John T. Rucker

Colonel, Judge Advocate Lieutenant Colonel, JA

General’s Corps (JA) United States Army

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, Virginia 22041

(703) 681-3583 Matthew A. Myers, Sr.

Counsel of Record Captain, JA

United States Army

Michael L. Walters

Lieutenant Colonel, JA

United States Army

and

Eric S. Krauss

‘Captain, JA

United States Army

QUESTION PRESENTED

Whether Specialist Phillips’ First Amendment right to txe

free exercise of his religion was violated by the action oi

his jailers who denied him acess to his religious reading

material while Specialist Philiijss was confined at the behest

of military authorities awaiting trial by court-martial.

Le nme

TABLE OF CONTENTS

Page

he as eet trek epess sees ses

i SIR a ae (in 2

Constitutional Provisions, Statutes, and Regulations

Re Pec w ea ss oy be ce ye West eens vs 2

Ge re 5

Reasons for Granting the Writ.................. 7

ee Le bya a's ewe eeee esas 12

Appendix A (Opinion of the U.S. Court of Appeals

for the Armed Forces—Phillips) ............. la

Appendix B (Opinion of the U.S. Army Court of

Military Review—Phillips) ...............0005. 19a

TABLE OF AUTHORITIES

Cases: Page

Bell v. Wolfish, 441 U.S. 520 (1978)....... 8, 10

Cruz v. Beto, 405 U.S. 319 (1971)......... 8, 10, 11

Dettmer v. Landon, 799 F.2d 929 (4th Cir.

1986), cert. denied, 483 U.S. 1007 (1987) . 5, 8, 9

Gillette v. United States, 401 U.S. 437 (1970). 11

Johnson-Bey v. Lane, 863 F.2d 1308 (7th Cir.

SN i oso vekicet ede ties cenceeess 8, 11

Ryder v. United States, No. 94-431, U.S. Sup.

Ct., June 12, 1995, WL 347378 (US.).... 7

Turner v. Safley, 482 U.S. 78 (1986)....... 8, 9-10

United States v. Phillips, 42 M.J. 346 (1995) . 5, 7, 8, 9

United States v. Phillips, 38 MJ. 641

i EE «6c ob's weap bi Weka ee eae.) 6, 7

Wolff v. McDonnell, 418 U.S. 539 (1974)... 8

Constitution and Statutes:

United States Constitution, Amendment I.... 2, 8

United States Constitution, Amendment VI... 2

United States Constitution, Amendment XIV _ 2, 8

Uniform Code of Military Justice, 10 U.S.C.

§ 801 et seq.:

Pi SR BT ode Fk em ee 3

Article 27(a)(1), 10 U.S.C. § 827(a)(1).. 3, 5

Article 38(b)(1), 10 U.S.C. § 838(b)(1).. 3

Arcee G7. 80 UR. BG oi cee ee om 7

Ames Gl. 80 UBL. OG 6c. eke 6

Article 86, 10 U.S.C. § 886........... 6

Astcte Liza, 16 USA. § Size. .....6.. 6

28 United States Code § 1259(3) (Supp.

| PEPE Pee errr? ere rrp are 2

eee

Public Law No. 103-337, § 924, 108 Stat.

Other Authorities:

Manual for Courts-Martial, United States,

1984, Rules for Courts-Martial

SS ae CE i dp ou Soe Oho bo

ER Pero te. Sas ce oe ce Leen ene ees

I os a oo GAL eb We keen

ST I ns ns 6b a bwin ee a ake wae kas

Department of the Army Pamphlet 165-13-1,

Religious Requirements and Practices of

Certain Selected Groups: A Handbook for

Chaplains (April 1980)..................

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No.

ALLEN L. PHILLIPS, SPECIALIST,

UNITED STATES ARMY,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To THe Unitep STATES COURT OF APPEALS

For THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Allen L. Phillips, respectfully prays

that a writ of certiorari issue to review the decision of

the United States Court of Appeals for the Armed

Forces entered in this proceeding.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces is reported at 42 MJ. 346 (1995)

l

2

(Appendix A). The opinion of the United States Army

Court of Military Review [now the United States Army

Court of Criminal Appeals] is reported at 38 M.J. 641

(A.C.M.R. 1993) (Appendix B).

JURISDICTION

The judgment of the Court of Appeals for the Armed

Forces was entered on September 13, 1995. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1259(3)

(Supp. 1992).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The Constitution of the United States provides in

relevant part:

Amendment I. ‘‘Congress shall make no law

respecting an establishment of religion, or prohibit-

ing the free exercise thereof....’’

Amendment VI. ‘‘In all criminal prosecutions, the

accused shall ... have the Assistance of Counsel for

his defence.’’

Amendment XIV, Section 1, Clause 2. **‘No State

shall ... deny any person within its jurisdiction the

equal protection of the laws.’’

The following provisions of the Uniform Code of

Military Justice involved in this case provide in pertinent

part:

Article 13, 10 U.S.C. § 813.

3

No person, while being held for trial, may be

subjected to punishment or penalty other than

arrest or confinement upon the charges pending

against him, nor shall the arrest or confinement

imposed upon him be any more rigorous than

the circumstances required to insure his pres-

ence, but he may be subjected to minor

punishment during that period for infractions of

discipline.

Article 27(a)(1), 10 U.S.C. § 827(a)(1).

Trial counsel and defense counsel shall be

detailed for each general and special court-

martial.

Article 38(b)(1), 10 U.S.C. § 838(b)(1).

The accused has the right to be represented in

his defense before a general or special court-

martial....

The following provisions of the Manual for Courts-

Martial, United States, 1984 [hereinafter Manual for

Courts-Martial], are involved in this case:

Rule for Courts-Martial 304.

(a) Types of pretrial restraint. Pretrial restraint

is moral or physical restraint on a person’s

liberty which is imposed before and during

disposition of offenses. Pretrial restraint may

consist of conditions on liberty, restriction in

lieu of arrest, arrest, or confinement.

(f) Punishment prohibited. Pretrial restraint is

not punishment and shall not be used as such.

4

No person who is restrained pending trial may

be subjected to punishment or penalty for the

offense which is the basis for that restraint.

Prisoners being held for trial shall not be

required to undergo punitive duty hours or

training, perform punitive labor, or wear

special uniforms prescribed only for post-trial

prisoners. This rule does not prohibit minor

punishment during pretrial confinement for

infractions of the rules of the place of

confinement....

Rule for Courts-Martial 305.

(j) Review by military judge. Once the charges

for which the accused has been confined are

referred to trial, the military judge shall review

the propriety of pretrial confinement upon

motion for appropriate relief.

(k) Remedy. The remedy for noncompliance

with subsection (f), (h), (i), or (j) of this rule

shall be an administrative credit against the

sentence adjudged for any confinement served

as a result of such noncompliance. Such credit

shall be computed at the rate of 1 day credit

for each day of confinement served as a result

of such noncompliance.... For purposes of this

subsection, | day of confinement shall be equal

to 1 day of total forfeiture or a like amount of

fine.

Rule for Courts-Martial 502(d)(6).

Duties of defense and associate or assistant

defense counsel. Defense counsel shall repre-

sent the accused in matters under the code and

5

these rules arising from the offenses of which

the accused is then suspected or charged....

Rule for Courts-Martial 506(a).

The accused has the right to be represented

before a general or special court-martial by

civilian counsel if provided at no expense to

the Government, and either by the military

counsel detailed under Article 27 or military

counsel of the accused’s own selection, if

reasonably available....

STATEMENT OF THE CASE

On August 27, 1991, Specialist Phillips was arrested by

military authorities and ordered to be held in pretrial

confinement. Specialist Phillips was placed into pretrial

confinement at the Cumberland County Jail in North

Carolina at the request of military authorities and pursuant

to a contract between the United States and the confine-

ment facility.

Prior to his incarceration, Specialist Phillips was an

active member of the Wicca faith.! Specialist Phillips was

not allowed to practice his religion or possess its literature

while he was in pretrial confinement. Specialist Phillips

complained to the civilian deputy sheriffs and the military

liaison at the Cumberland County Jail about not being

allowed access to his religious materials. Specialist Phillips

referred to the religious materials as his Wiccan Bible. The

Wicca is a recognized religion. United States v. Phillips, 42 M.J. 346, 349

(1995) (Wiss, J., concurring); Dettmer v. Landon, 799 F.2d 929 (4th Cir.

1986), cert. denied, 483 U.S. 1007 (1987); Dept. of the Army (DA) Pamphlet

165-13-1, Religious Requirements and Practices of Certain Selected Groups: A

Handbook for Chaplains (April 1980).

6

religious materials are also commonly referred to as the

Book of Shadows.

When Specialist Phillips’ military supervisors, his First

Sergeant and Company Commander, visite? him at the

confinement facility, Specialist Phillips compiained about

not being allowed access to his religious text. Specialist

Phillips also informed his First Sergeant that the jailers

would not even allow a friend to give him the religious

text. The First Sergeant testified about a conversation with

the jailers:

I remember one time when we were visiting him

when he was in Cumberland County, he stated they

wouldn’t let him have his bible and some kind of

religion that I’m not to[o] aware of and Captain—I

think it was Captain Johnson, notified—talked to

the head jailer there and the woman stated that it

wasn’t a recognized religious practice in the State

of North Carolina and that he was more than

welcome to have a bible, but the one that he

wanted, they wouldn’t allow, no. .

United States v. Phillips, 38 M.J. 641, 643 (A.C.M.R.

1993).

On October 16, 1991, January 30 and April 6, 1992,

Specialist Phillips was tried before a military judge sitting

as a general court-martial at Fort Bragg, North Carolina.

Pursuant to his pleas, he was convicted of absence without

leave, conspiracy to wrongfully distribute cocaine, and

wrongful possession and distribution of cocaine, in

violation of Articles 86, 81, and 112a, Uniform Code of

Military Justice [hereinafter referred to as U.C.M.J.], 10

U.S.C. §§ 886, 881, and 912a (1988), respectively. The

court sentenced Specialist Phillips to a bad-conduct

discharge, confinement for twenty months, forfeiture of all

pay and allowances, and reduction to Private El. The

convening authority approved the sentence as adjudged.

7

On November 10, 1993, the Army Court of Military

Review [now the Army Court of Criminal Appeals]?

affirmed the findings and the sentence. United States v.

Phillips, 38 M.J. 641 (A.C.M.R. 1993)(Appendix B).

Specialist Phillips then sought review by the United

States Court of Military Appeals [now the United States

Court of Appeals for the Armed Forces] pursuant to

Article 67, U.C.M.J., 10 U.S.C. § 867. The Court of

Appeals rendered its opinion on September 13, 1995, and

affirmed the Army Court. United States v. Phillips, 42 M.J.

346 (1995) (Appendix A). Both the Army Court and the

Court of Appeals for the Armed Forces premised their

opinions on the conclusion that Specialist Phillips’

constitutional right to practice his religion was not

violated, i.e., the restrictions upon Specialist Phillips’ free

exercise were legitimate.

REASONS FOR GRANTING THE WRIT

‘Religious freedom is one of the cornerstones of our

American heritage. No one should be denied this right, not

2The National Defense Authorization Act for Fiscal Year 1995, Pub. i.

103-337, § 924, 108 Stat. 2831, changed the nomenclature for the military

appellate courts. The previous ‘‘Court[s] of Military Review"’ were

rechristened as the ‘‘Court{s] of Criminal Appeals’’ and the ‘‘United States

Court of Military Appeals’’ was renamed the ‘United States Court of Appeals

for the Armed Forces.’’ Ryder v. United States, No. 94-431, U.S. Sup. Ct.,

June 12, 1995, at n. 2, 1995 WL 347378 (U.S.).

The issue before both of the military courts was framed as an ineffective

assistance of counsel issue alleging that the trial defense counsel failed to

provide any evidence to the trial judge regarding whether Wicca was a

religion. The Court of Appeals for the Armed Forces erred in holding that the

trial defense attorneys were not ineffective when they failed to provide

information relating to the Wicca faith requested by the trial judge, even

though the attorneys’ inaction arguably resulted in the loss of Specialist

Phillips’ request for sentencing credit based on the violation of his

constitutional right. See United States v. Phillips, 42 MJ. 346, 353-354 (1995)

(Sullivan, C.J., dissenting).

8

even a non-Christian soldier sitting in a jail awaiting

trial.’” United States v. Phillips, 42 M.J. 346, 353-354

(1995) (Sullivan, C.J., dissenting).

The Court of Appeals for the Armed Forces failed to

protect Specialist Phillips’ freedom to exercise his religion

guaranteed by the First and Fourteenth Amendments. This

failure raises a substantial federal question, and the

military court opinions conflict with decisions of this Court

and the decisions of at least two federal Circuit Courts of

Appeal. See Bell v. Wolfish, 441 U.S. 520 (1978); Cruz v.

Beto, 405 U.S. 319 (1971); Johnson-Bey v. Lane, 863 F.2d

1308 (7th Cir. 1988); Dettmer v. Landon, 799 F.2d 929

(4th Cir. 1986), cert. denied, 483 U.S. 1007 (1987).

Without review by this Court, members of the armed

forces held in pretrial confinement shall remain subject to

unconstitutional restrictions upon their right to freely

exercise their religious beliefs.

The government may not subject pretrial detainees to

conditions that violate the constitution. Bell v. Wolfish, 441

U.S. at 536-537. Conditions that abridge a pretrial

detainee’s right to exercise his or her religion violate the

first and fourteenth amendments to the Constitution. /d. at

545; Cruz, 405 U.S. 319 (1972). The right of a pretrial

detainee to exercise his religion is subject only to

legitimate restrictions. Bell, 441 U.S. at 545. Restrictions

are legitimate if they amount to a ‘‘mutual accommodation

between institutional needs and objectives and the provi-

sions of the Constitution that are of general application.’’

Id. at 546 (citing Wolff v. McDonnell, 418 U.S. 539, 556

(1974)). Limits on the exercise of such a right may be

required in the interests. of institutional security and

preservation of internal order and discipline. Bell, 441 U.S.

at 546. Refusal to provide access to religious material

merely because it is not Christian is an_ illegitimate

restriction. See Cruz, 405 U.S. 319 (1972); see also Turner

v. Safley, 482 U.S. 78, 90 (1986) (a government restriction

must be legitimate and neutral).

9

When Specialist Phillips asked for his religious docu-

ments relating to his chosen religion, the Wicca faith,

while he was in pretrial confinement, the jailer, functioning

in furtherance of an agreement with the military, told him

he could not have his religious papers, but he could have

the Christian Bible instead. There is no dispute in this case

that all Specialist Phillips requested to practice his religion

was what he referred to as his ‘‘Wiccan Bible.’’ Phillips,

42 MJ. at 347. The trial judge found that Specialist -

Phillips was denied access to materials concerning the

Wiccan religion. Jd. at 348. The Court of Appeals for the

Armed Forces erroneously indicated its concern about

other implements and devices allegedly necessary to

practice the Wiccan religion. Specialist Phillips request

was reasonable, however, because there was no request in

this case for anything other than religious reading material.

See Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986)

(holding that the Wiccan religion is entitled to First

Amendment protections and allowing a prisoner to have

some, but not all, physical items to practice his religion).

The Court of Appeals for the Armed Forces’ decision

that Specialist Phillips did not suffer any actionable

prejudice by being denied his religious reading material

conflicts with decisions of this Court and must be reversed.

In addressing prison regulations, this Court held:

[S]everal factors are relevant in determining the

reasonableness of the regulation at issue. First,

there must be a ‘‘valid, rational connection”

between the prison regulation and the legitimate

governmental interest put forward to justify it.

Thus, a regulation cannot be sustained where the

logical connection between the regulation and the

asserted goal is so remote as to render the policy

arbitrary or irrational. Moreover, the governmen-

tal objective must be a legitimate and neutral one.

10

We have found it important to inquire whether

prison regulations restricting inmate’s First

Amendment rights operated in a neutral fashion,

without regard to the content of the expression.

Turner v. Safley, 482 U.S. 78, 89-90 (1986) (citations

omitted). In this case, where inmates or detainees could

have the Christian Bible but not the Wiccan Bible, there

can be no legitimate or neutral government objective.

Religious content served as the sole determining criteria.

This Court has held ‘‘that sentenced prisoners enjoy

freedom of speech and religion under the First and

Fourteenth Amendments.... A fortori, pretrial detainees,

who have not been convicted of any crimes, retain at least

those constitutional rights that we have held are enjoyed by

convicted prisoners.’’ Bell v. Wolfish, 441 U.S. 520, 545

(1978) (citation omitted). Although pretrial confinees may

be subjected to some restrictions and conditions of the

confinement facility, the government may not subject a

pretrial confinee to conditions and restrictions which

amount to punishment or ‘‘otherwise violate the Constitu-

tion.”’ Id. at 536-537. The conduct which occurred in the

instant case was a Clear violation of Specialist Phillips’

right to enjoy freedom of religion.

The Court of Appeals for the Armed Forces’ decision

conflicts with this Court’s holding in Cruz v. Beto, 405

U.S. 319, 322 (1971). In Cruz, a Buddhist inmate

complained that he was not allowed to use a chapel or

correspond with his religious advisor, and was punished for

sharing his religious materials with other inmates, even

though other inmates were allowed to pursue Christianity

without such prohibitions. /d. at 319-320. This Court noted

the following:

If Cruz was a Buddhist and if he was denied a

reasonable opportunity of pursuing his faith

SN EM Me ee I IE Reena T e

1]

comparable to the opportunity afforded fellow

prisoners who adhere to conventional religious

precepts, then there was palpable discrimination

by the State against the Buddhist religion,

established 600 B.C., long before the Christian

era. The First Amendment ... prohibits govern-

ment from making a law ‘‘prohibiting the free

exercise’’ of religion.

Id. at 322.

Similarly, in Johnson-Bey v. Lane, supra, the Seventh

Circuit Court of Appeals noted that ‘‘[t}he treatment of

prison inmates and the treatment of religious heterodoxy

are important indices of civilization....’’ 863 F.2d at 1312.

That court held that a ‘‘prison may not, because it is

contemptuous or unreasoningly fearful of a particular sect,

place arbitrary obstacles in the way of inmates seeking to

participate in the sect’s modes of observance.”’ /d. at 1311

(citing Cruz, 405 U.S. at 322).

In this light, the decision of the Court of Appeals for the

Armed Forces runs perilously close to an improper

sanction of Christianity to the exclusion of other religions

in violation of the establishment clause of the First

Amendment. Gillette v. United States, 401 U.S. 437,

448-450 (1970).

Accordingly, a grant of the petition for writ of certiorari

is warranted for the following reasons: (1) to address the

substantial federal question raised by the denial of

Specialist Phillips’ right to the free exercise of his religion,

the discrimination between Christian and non-Christian

pretrial detainees, and the government’s advancement of

Christianity over any other recognized religion; (2) to

resolve conflicts between the decision of the Court of

Appeals for the Armed Forces and the opinions of this

Court and subordinate federal appellate courts; and (3) to

tg

12

exercise this Court's supervisory powers over the military

courts. Failure to review the Court of Appeals’ decision

leaves countless pretrial detainees without any recourse for

a violation of their constitutional rights.

CONCLUSION

The decision of the Court of Appeals effectively

deprived Specialist Phillips of his Constitutional right to

the free exercise of his religion. The Court of Appeals’

holding has nationwide and even worldwide implications.

There are members of the Armed Forces in pretrial

confinement at facilities all around the world and their

right to the free exercise of their chosen religion has been

impaired. The Court of Appeals’ decision adversely affects

the first amendment rights of other federal pretrial

detainees and confinees as well.

An intentional deprivation by an agent of the military of

a citizen’s right to exercise his religion, whether in pretrial

confinement or not, must be actionable regardless of

whether the federal agent’s action was ‘‘intended’’ to be

punishment for indeed it does punish. The shocking offer

by the officer for Specialist Phillips to use the Christian

Bible instead of religious papers relating to Specialist

Phillips’ chosen religion implicates equal protection and

separation of church and state issues.

For the foregoing reasons, this Court should grant

review of the decision of the United States Court of

Appeals for the Armed Forces.

STEPHEN D. SMITH

Colonel, Judge Advocate

General’s Corps (JA)

eS MON NS Hee Mane NTN MarEDe Remar |

December 12,

1995

13

United States Army

Defense Appellate Division

5611 Columbia Pike

Falls Church, Virginia 22041

(703) 681-3583

Counsel of Record

and

JOHN T. RUCKER

Lieutenant Colonel, JA

United States Army

MICHAEL L. WALTERS

Lieutenant Colonel, JA

United States Army

MATTHEW A. MYERS, SR.

Captain, JA

United States Army

ERIC S. KRAUSS

Captain, JA

United States Army