Motion to Dismiss or Affirm — Reid v. Covert

Supreme Court brief1956

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INDEX

0 , 7 | ‘-P age:

x The a a ‘al should be dismigse d because not within

28 U.: $1252, inasmuch as appellant is ngt an

gs or Saulawes of the United States or arty of

eee reer errr cates a

IT. Alternatively, if jurisdiction is held to exist, then

the judgment’ should be affirmed, inasmuch as Toth

v. Quarles, 350 U.S. 11, plainly establishes the un.

constitutionality of any. statute secking to subject

civilians to court- martial jurisdiction in time of

oe ee Pe ee eee er ee eaten taka eee yas th

A. The Toth case demonstrates the uncoust vu

tionality of Article 2(11) of the ‘Uniform Code

of ' Military RN oo hee ee ere 6

B.,Even if it be.assumed for purposes ae argu:

- nent that there was jurisdiction to try appel--

lee by court-martial originally, such jur isdiction

was lost after she was returned to the United

States and ceased to be a person ‘faccompariy-

ing the armed forees without -the cogtinental .

limits of ‘the United States’? within Article

2(11) Sue rs Seacun ae a rh OR 05 ere eA 12

C. The power of Conutons to maintain relations

with foreign countries i is utterly irrelevant here = 15

Pere rrr rrr eee a

AUTHORITIES |

(ASEs: |

American Security Co. v. District of Columbia, 224 .

i eS ks BLS Hes es eae Tecra i)

2 Rarnes vy. District of C slumbia, PY A. BO & cnn ete es

. Barrett 'v. Hopkens, V Fed. 312 ............. baa 1

In re Berue, 54 F: Supp. 252 ..........2.... Sans _.9, 10

In ve Bird, 2 Sawy. 33, Fed. Case No. 1498 Pa aR 13

. ‘Bundy v. United State b, 9L.C. Cie: GD. ca cecigsce. ‘4

Yi . . Ss

ii ' Thdex Continued

| ° $ : - x Page

. Carter v. McClaughry,.183 U. S. 365 ............. fr

Crosse v. Harrison, 16 How, 164 ........... ieee - 10

District of Columbia v. W oodbury, 1 136 U.S. 450 - 3

Donovan v. United States, 21 C. Cls. 120........0..5 4

Douffas v. Johnson, 83 F, Supp. 644 .......0...... 4

Fleming v. Rhgdes, 331 U.'S. 100 ee in bl bana ies \2

| Ex parte Gerlach, ft See ee | 10

“2 Gonzales v. Cunningham, ee Ws A EE nnkccas we e

- Grewe v. Erance, 75 F. Supp. 482 ............. ne

Griffith v. udolph, Ree

Guy v. Donald, 203: U.S. 399 ......... PRP Eee Sete

Kahn v. Anderson, 3s | aa Uink kebhs 1

Leiténsdorfer v. Webb, 20 How. 176 .......... ree

Madsen v. Kinsella, 343 i eee ae

Metropolitan R. Co. ve District’ of Columbia, 132 ..

i Oe Gains eXkDS Ke WoC TRARE ERR EEE CRAKE SUS TRAD 3

O’Toole v. United States 206 TF. $0 918... .. 65.045; 4

' People of State of Colorado v. Maxwell, 125 F. Supp.

18, motion for leave to-file petition for prohibition

or "mandainns denied, sub nom, State of Colorado

v. Knoua 348 U.S. 941... Wehehd deed ne nen eke 5: a

Perlstein. v. United States, 151 F. 2d 167, ‘certiorari. oe

“

granted, 327 U. S. 777; and dismissed, 328 U. S.

. 6a. cnc a ven Cab caa hae en cade kkk baebéeun 9, 10, 14

Rubenstein v. Wilson, 912 F. 2d 631 Pius bi ekucs ‘10

Toth v. Quarles, 350 U. cb dasibwades sce ce es eee

United States v. Rice, 4 ‘Wheat. ae 10

United States ex rel. Krueger v. Kinsella, Habeas,

Corpus No1726, S. D. W. Wa. ... 2.5.0... 0 eee 11,12.

United States ex rel. Mobley v Handy, 176 F.2d

491, certiorari denied, 338 U. s. Py ....10,14

Walker v. Morris, 3.Am. Jurist 281 Gok 6 aes waaceae

Coxsriretiox oF THE UNITED Beares: >. ae |

~ Article T, See.®, CL 1... . 2.0... cee i ue ean

+ Men Gite BO Oe oo. oc iscccwveccanens €7%10.17...°

Fifth Amendment DUS eee bees Le ak a. woo

Ustren States Srarorss:

Act of August:24, 1987, ¢. 754, 50 Stat. 751, See. 2... of

Article of Wa ad) of 1916 ..... Aude éaacn en od a 8

Article of War ale) of 1916 ..... Wiese neers enced 12

Index Continued oe iil

Page

Arficle of War 2(d) 0f.1920 . 2.2.0.0. ... 00000 e ee 16—

- . Article of War 12 of 1948 ......... akan eek eee 11

Pe Mens GAD BOM sco uecceas ccedcacwsnaee * ¢*

Uniform. Code of Military Justice :

a lene PRES Ree: 12,14

Article 2(10) ..... sChASSeORs nie ke an hice ka Bae 9

Article. 2(11) ..... eerere Wks WeKC St wy 8.12.13, 16

28.0. 8. C. $1958 :..:. EAR, er are ene 1,2,5,6 -

28 U.S. C. § 1442(a) (1) PORTE YT Laveen, Peer Tee

26.U..8. C: $9008 ....-.. ine ene esa ea ae a

: 28 U.S. ©. §§ 2671 et seq. oo... ieakes atin

* . $00.8. C. $552(11) ah ee eos sec gstiseewncewnies 2

District oF CotuMBIa gore (1951 ed.) ie : .

ee ees RR Gee eRe eS

RRR TERRA ig uli 2 th Cee ais me ty 3

SE ys 5h lun otha eA SOURS be hOASO RARER o 8

if ) eee ee aaa one arts a ete 6 3

BriTIsH Sratures :

United States of America (Visiting Forece)

Act, 1942, St. 5 & 6 Geo. VI, 6.31 ............... 15

See. 2(1) rate uikek an & hw & ee errors

MISCELLANEOUS: | :

; Aycock and Wurfel, Military hie Under the Uniform

Code of Military Justice (1955) 60 ........000... 10

§ Be FR rere rorey rere 7

13 Comp. Dec. 533 . ~;......,.5.0085 TEP fccece me

81. Cong. Ree. 8609 ...........- 2.65 Lenkbes teers 5

OS errs Ceo rere eee Kstais. 8

-« H.R. Rep. 212, 75th Cong., 1st Sess? POE ae: sae ae

| Military Rulings: ok : .

4 Ball: JAG BBb-SS0 ... 1. ice end ad dhanune 10

5 Bull. JAG 35, 7 359(6) ............. dcknuws .' 13.

_ § Bull. JAG 278, 1407(3) ...... mRdke CURES Gs ie” ae

Dig. Op. JAG, 1912: | Pe he |

Se i * 3 OS ee penis acu Gaes ee

. vaceisa sia la sasiuhncae Nae peeaks ae ois

ene Indgx Continued

p. 513, {| VIII @ 2a, VIII G 2 a. a) ceekareis 8

ee” th. GS eR NY Bits . 1

Dig. Op. JAG, 1912-1940: | |

p. 162-163, 19 359(1), 350(2) ..... epeeres Se

p. 164, 1 359(6) Fecies ackaaied etinkss Wow ces

me Ade. Bite. Bem. GD nw ccc ci kencn SNE eae a.

2 eS OR, SAR earn rrs aee - 4.

Reorganization Order No. 24 in Appendix to Title 1

of Supp. II toD. C. Code (1951 ed) ........... . 3

SS. Rep. 963, 75th Cong., Ist Sess. .:.....6....00... 5

1 Winthrop, ay Law and Precedents (2d ed.

1896) :

* *116-118 [1920 reprint, p. 90] 2 ere a ee

*118-120 [1920 reprint,. pp, 90-91} ........00..... 18

-*131-138 [1920 reprint, pp.. 97-192] .. eee 9

*144-146 [1920 reprint, pp. 105-107] ............ 7 -

—*146 [1920 reprint, p. 107] .......... Peyrr eas 8

IN THE

| Supreme Court of the United States

Ocrtoner TEKM, 1955

No. 701

CURTIS REID. SUpERTN TENDE NT OF THE District OF

COLUMBIA JAIL, Appellant,

: We. °S

" CLARICE B. COVERT |

‘Appeal from. the United States District Court for the

District of Columbia

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16(1), appellee moves that the

“appeal be dismissed for the want of jurisdiction, or,

in the alternative, that the judgment below be affirmed.

I. THE APPEAL SHOULD BE DISMISSED BECAUSE NOT WITHIN __

28 U. S. C. §1252,, INASMUCH AS APPELLANT IS NOT AN

- OFFICER OR EMPLOYEE OF THE ‘UNITED STATES OR ANY |.

OF ITS AGENCIES.

The Court has no juriediction of this apecel for the

reason that appellant is only. an officer or employee

of the District of Columbia, and thus does not come

within 28 U. S. C..§1252 as an officer or employee of

"- the United States or of any of its agencies. The appeal —

must therefore be dismissed.

_ 1. There are three requirements for a direct appeal aa

under 28,U. 8S. C. § 1252: |

First, the proceeding inst be a civil action; that °

requirement is met, as of course habeas corpus is a

civil. proceeding. E.g., Gonzales v. Cunningham, "164

U.S. 612, 618.

‘Second, an Act of Congress must have been held. ~

unconstitutional by a United States District Court;

and it is clear from the opinion of Judge Tamm (Jur. .

St. App. la-3a) that he meant to, and did, hold that

Article 2(11) of the Uniform Code of Military Justice, |

50 U.S. C. § 552(11), was unconstitutional, eePtainly-

as applied to the appellee.’

Third, “the United States or any of its agencies, or

any officer or employ ee thereof’? must be a party to

the causé. At this juncture, appellant fails to estab-

lish jur isdiction for this Court to entertain his appeal,

because he is not within the statute.’

2. Appellant is, as thé caption of the’ case shows,

‘Superintendent of the ‘District of Columbia Jail. As

. Tit is sufficient for jurisdiction under 28 U. S, C. § 1252 that

the application of .the Act be held unconstitutional in the cir-

cumstances of the particular case. Fleming v. Rhodes, 331 U.S.

100.

2 It is not, nor ent it be, contended that the United States is

a party because, in this habeas corpus proceeding, the petition

was captioned ‘* United States of America on the relation of

Clarice B. Covert’’ (Jur. St. App. Ia). Indeed, appellant in

his Jurisdictional Statement entitles the present case simply

Curtis Reid, ete. v. Clarice B. Covert, dtopping out entirely the

U. 8. ex rel.

such, he was formerly appointed and removed by the

Commissioners -of the District upon ree ommendation

(of the Board of Public @elfare (D. C.. Code (1951.

ed.) §§ 24-409, 24-411), but, since.the reorganization

of the District of Columbia Government, he is now

subject to the supervision of the Director of the De- |

partment of Corrections, who in turn is appointed by.

the Commissioners. See Reorganization Order No. 34,

in the Appendix to Title 1 of Supp. en to the 1951

‘Edition of the D. C. “de.

At arfy rate, appellant is an officer of the District

of Columbia, avd as such is neither an officer of the

. United States nor of any agency thereof.

The District of Columbia, both before and-after the

inauguration of its present system of government by

three Commissioners, has uniformly been held to be

a municipal corporation separate and distinct from

the .United States, and enjoying none of the general

government’s immunities. Barnes v. District of

Columbia, 91 U.S. 540: Metropolitan R. Co. v. District

of Columbia, 132 U. 8. 1; District of Columbia v.

Woodbury, 136 U. S. 450. See the Metropolitan R. Co.

case, 132 U. S. at 7-8, where it was contended

“‘that the government of the District of Columbia

is a department of the United States government,

and that the corporation is a mere name,-and not

a person in the sense of the law, distinct from the

government itself. We cannot assent to this view.

It is contrary to the express language of the

- statutes. That language is that the District shall

‘remain. and continue a municipal- corporation,”

with all rights of action and-suits for and against:

it. If it were a department of the government,

” Omaneee the present provisions, D. ©. ( ‘ode (1951 ed.) §$ 1-.

102, 1-105. .

how could it be sued? Can the Treasury Depart-

ment be sued; or any other department? We are

of opinion that the corporate capacity and cer-

porate liabilities of the District of Columbia

remain as before, and that its character as a mere

‘municipal corporation has not been changed. =

The foregoing principle has been applied in a fariety

of situations. Specifically, it has been held that

officers of the District of Columbia are not officers of

the United States, whether they sue for pay in the

Court of Claims (Bundy v. United States, 21 C. Cls.

429) or whether it is sought to impose on them

liabilities attaching to federal employment (Donovan

v. United States, 21 C. Cls. 120): Employees of the Dis-

trict of C(-lumbia, not being employ ees of the United

States, are not within the civil service laws that apply to

the latter (Griffith v. Rudolph, 298 Fed. 672 (App.

D. C.) ; 22 Op. Att’y Gen. 59; 29 Op. Att’y Gen. 410).

‘The same distinction between the District and its em-:

ployees, on the one hand, and the United States-and the

latter’s employees, on the other, has been recognized by

the accounting officers of the Government (13 Comp.

Dee. 262; 13 7d..533). And the District of Columbia has

been held not to be a ‘‘federal agency’’. within the

meaning of the Federal Tort Claims Act, 28 U.S. C.

-§$§ 2671 et seq. Douffas v. —, 8&3 F. _ Supp. 644

acs D. C.).*

4O’Toole v. United States, 206 F. 2d 912 (C. A. 3), is not to

- the contrary. There alleged acts of negligence on the part of Dis-

trict of Columbia National Guardsmen engaged in summer train-

ing were held to be within the Federal Tort Claims Act. But the |

holding rested, not on the proposition that employees of the Dis-

trict of Columbia aré employees of the United States, but spe-

cifically on the ground that, in view of the command arrangements

governing the District of Columbia National Guard, its metnbers

were not in any sense employees of the District of Columbia.

3. The. same distinction :between the General

Government and the District of Columbia has up to

-now also been. recognized in legislation dealing with _

the jurisdiction of this Court. Thus in American —

Security Co. v. District of Columbia, 224 U.S. 491, it-

was held that local laws governing the District, evén

though enacted by the Congress, were not included in

‘any law of the C nited States’” within the statute then

fi authorizing appeals to this Court,

If, therefore, in the face of this unbroken line of

decisions and rulings showing the District of Columbia

to be separate and distinct from the United States,

Cengress had desired in 28 U.S. C. § 1252 to accord to

of an ‘‘agencv”’ of the United States, or had intended

to assimilate employees of the District to those of the

United States for purposes of the direct appeal author-

ized by that section, it w ould—and could—have used

apt language to that effect: Neither’ the legislative

history of 28 U.S. C, § 1252, nor that ef Sec 2 of the

_ Act of August. 24, 1937,° from which it was drawn,

reflect any such purpose. And, significantly enough,

when Congress intended to include any ‘‘ person. agting

under”’ any officer of the United States or any agency

thereof in a portion of 28 U. S.\C. conferring ‘federal

juris liction, it used’ apt words to that end. See -28

U.S. C. § 1442(a) (1); People of State of Colorado v.

Mazwell, 125 F. Supp. 18 (D. Colo.), motion for leave .-

to file petition for prohibition or mandamus —

sub nom. State of Colorado v. Knous, 348 U. . 941.

Undoubtedly, appellant in this case is a ih seaiae pores

under”’ the officers of the Air Foree who desired him

5(. 754, 50 Stat. 751, 752; see H. R. Rep. 212, S. Rep. 963.

both 75th Cong., Ist sess.; 81 Cong. Ree. 8609, 8705.

A ?

< F : 5 &

to confine appellee (Exh. I ta Appellant’s return),

_ But the question here concerns not § 1442(a)(1) but

§ 1252, and the Matter provision. dees not contain the

‘*person acting under” clause.

If the United States had intervened as a warty, under

28 U.S. C. § 2403, the situation would now be different.

But it did not choose to_intervene, although the

appellant was represented by the . United States

Attorney below.°® |

4, The. result is that this appeal must be iad

for want of i rearanes

Il. ALTERNATIVELY, IF JURISDICTION IS HELD TO EXIST.

; THEN THE JUDGMENT SHOULD BE AFFIRMED. INASMUCH

AS TOTH v. QUARLES, 350 U. S. 11, PLAINLY ESTABLISHES

THE UNCONSTITUTIONALITY OF ‘ANY STATUTE SEEKING

TO SUBJECT CIVILIANS TO ee MARTIAL JURISDICTION

IN TIME OF PEACE.

But, assuming that there is jurisdiction of this

appeal, then the judgment should-be affirmed, for the

reason that Toth v. Quarles, 350 U.S. 11, renders the

_ substantive questions herein so jimsubstantial- that

further argument is not Fequired.

A. The Toth case demonstrates the unconstitutionality of

Article 2(11) of the Uniform Code of Military Justice ©

1. In Toth v. Quarles, 350 U. S. 11, decided at the

present Term, this Court held that the clause ‘eases

arising in the land or ‘naval forces”’ in the Fifth

Amendment did not const itute a grant of court-martial

jurisdiction; tha the power granted Congress in

Clause 14 of Articke I, Section 8; ‘To make Ruies for

the Government and Regulation of the land and naval

* It: was doubtiess tet this reason that the datrik judge did

not specifically certify the cause to the Attorney General.

> Foreés’’ ** would seem to restrict court-martial jurisdic-

tion to persons who are actually members of part of

the armed forces’’; and that Clause 14 is to be narrowly

construed and is not broadened by anything in. the

Necessary and Proper Clause.

Siuce, as Was there held, an ex-soldier could in con-

sequence of the foregoing not be tried by court-martial,

it would seem to follow as_an a fortiori proposition

that one who had been a civilian all of her life eould

not be subjected to military jurisdiction in time of

peace either. That was the view of. the district judge

here (Jur. St. App. 2a). And _the. Solicitor General.

had earlier conceded as muc ‘+h in the Toth-case (U.S

- Br., No. 3.this Term, p. 31, n. 44): ‘Indeed, we think

the constitutional case is, if anything, clearer for the

court-martial of Toth, who was a soldier at the tite

ofthis offense, than’ it is-for a civilian accompanying

the armed forces.”’ , a

In thus denying, in Toth, the power to subject

former soldiers to military. jurisdiction, the Court was

simply affirming what Colonel Winthrop had always

maintained as to: the unconstitutionality of» similar

recapture provisions. ] “Winthrop, Military Law and

Precedents (2d ed. 1896) *144-146 [1920 reprint, pp.

105-107]. And the necessary implication of Toth, that’

there is no constitutional power to subject a civilian

to court-martial jurisdiction in time of peace, not only

follows what -W inthrop stoutly maintained, but is also

in accord with the published views of successive Judge

Advocates General of the Army over many ‘vears.

Neither the scope of the Toth case, therefore, nor the

ruling below inthis case, can be dismissed as recent -

revelations unsuspected by earlier generations of

military lawyers. |

= Gas

2. Winthrop laid it down in uncompromising italics

(op. cit. supra at *146 [1920 reprint, p. 107]). that

‘‘a statute cannot be framed by which a civilian can

lawfully be made amenable to the military juris-

_ dietion in time of peace.’

there were published:to the service and to the public

rulings of The J udge: Advocate’ General of the Army

to the same effect. The following paragraphs are.

— p. 513 of the 1912 Digest of Opinions:

- ‘“VITI G2a. By the sixth amendment of the’

. Constitution, civilians are guaranteed the right of

trial by jury ‘in all*triminal prosecutions.’ Thus

—in time of peace—a court-martial can not

assume jurisdiction of an offense committed by a... .

civilian without a violation of the Constitution.

It is only: under the exceptional circumstances of

a time of war that civilians may, in certain

situations, become amenable to trial by court- -

martial. [Citing rulings from 1866 to 1905.]’*

“VIII G2a. (1). Held that any statute which

attempts to give jurisdiction over civilians, im

time of peace, to military courts is unconstitu- -

tional. [Citing rulings from 1879 to 1906.]”’

3. But when General. Crowder appeared before

Congress in 1912 and‘1916.to urge the enactment of

Article of War 2(d) of 1916, the precursor of Article —

2(11) of the Uniform Code of Military Justice, see _

Jur. St. 11-14, he never advised Congress that Colonel .

Winthrop and a whole series of his own predecessors

had uniformly considered such provisions unconstitu-

tional! And it is fair to say that at no time thereafter, |

as Congress considered and enac ‘ted successive amend-

ments to and revisions of the military code, were the |

And for some forty years, from 1866 tbincuats 1906,

rei

_earlier views ever brought to its attention. Indeed,

@ongress was not even advised ‘of the existence of a

constitutional question. J

Therefore, when apneliant states (Jur. St. 9) that:

“The. coneept of subjecting te military jurisdiction .

civilians accompanying armies is not new’’, he utters

a half-truth that, certainly with respect to American

military’ -codes, is tantamount to misrepresentation.

For, as Winthrop shows, the jurisdiction traditionally

exercised over civilian eamp-followers ‘was a narrowly

construed power limited to time of war or actual.

hostilities, and to the actual area of such war or.

hostilities. Winthrop,#131-138 [1920 reprint, pp. 97-

102]. ‘That is the jurisdiction conferred by Article

2(10) of the Uniform Code, “In time of war, ‘all

persons serving. with or accompanying an armed force

in the field”’; ; that i is the outer limit of the jurisdiction’

‘over those persons who, though not. members of the

armed forces, may properly be tried by court-martial

constitutional boundary of court-martial jurisdiction

as a “‘part”’ thereof, see 350 U..S. at 15; that is the’

over civilians. - It was not until 1916 -gnd thereafter .

that, in ignorance of prior rulings, unaware even‘ of

the existencé of a constitutional question, Congress

first sought to subject civilians to trial by court-martial

> in time of peace.

Significantly enougii, the decisions in the lower

federal courts relied on by appellant (Jur. St. 14) all

involve either cases arising in time of war’ or else °

7 Ex naate Gé#lach, 247 Fed. 616 (S. D. N. Y.); Perlstein v.—

Umted Rtates, 151 F. 2d 167 \C. A. 3), certiorari ’ granted, 327.

U. 8. 777, and dismissed, 328 YY. S. 822; In re Berue, 54 F. Supp.

252 (S. D. Onto). 5

forces.

cases arising in occupied territory." The latter group

concerns, not an exercise of: the Clause 14 power. to

govern the. land and naval forces, but rather an.

exertion of the Clause if war power, as this. Court

long ago recognized.°

Moreover the ‘cases relied on by the appellant all*

involved -the trial of civilians who had some.

appreciable functional connection “with the armed

'* A dependent wife has no sucli connection,

‘ and as late as June 1945,-no dependent wife had ever

~ irrelevant to the present problem.

been ‘tried by an American court-martial; see the

extensive compilation at 4 Bull. JAG 223-229 of. the

‘classes of civilians up to then subjected to military

law. In 1947, The J udge Advocate General of -the

Army ruled that, as a matter of policy, dependent

wives and children overseas would not be tried by

court-martial. Aycock and Wurfel, Military Law

under the Uniform Code of M ilitary Justice (1955) 60,

Not until 1950 was the. luster of American arms

8 United States ex rel. Mobley v. Handy, 176 F. 2d 491 (C. A.

5), certiorars denied, 338 U. S. 904; Rubenstein v. Wilson, : -

F22d 631 (D. C. Cir.) ;-Grewe v. - France, 7 a On Supp. 433 (E. D

Wis.).

® See the early cases dealing with the power of the President as

commander-in-chief to deal with occupied territory. ° Cross v.

Harrison, 16 How. 164; Leitensdorfer v. Webb, 20 How. 176.

Cf. United States v. Rice, 4 Wheat. 246 (British oceupation of

Maine in 1814). Similarly, Madsen V. ‘Kinseila,*343 U. 8. 341, is

a war power case involving oceupied -territery and is therefore

f5N

10 Gerlach {mate on Army transport); Berue (seaman ope! J

carrying supplies for Army); Grewe (mechanical engineer:

Army engineers); Mobley (post exchange employee); Ruben-

" stein (status unclear ; remanded for more precise determination ;'

‘missed only because the case became OY fs,

Perlstein (air-conditioning mechanic ashore in connection with

‘salvage operations in harbor), Significantly’ enough, in the Perl-

stein case, supra note 7, where the functional relationsltip was

most tenuous, this Court granted certiorari and the writ was dis-

tarnished by the court-martial of a dependent wife."

And, in the only case where the legality @& such a.per-

formance after thé. cessation of military occupation.

has been sustained (United States ex rel. Krueger Vv. —

Kinsella, Jur. St. App. 4a-16a), an appeal has been

“~-perfected; it is now No. 7165 in the Fourth Circuit,

Appellaiit’s assertion. (Jur. St. 7) that appellee

. ‘was so intimately a part of the army overseas as to |

be subject. to military jurisdictions in’ terms of

American military law’’, does not rise above the level

of rhetorical hyperbole.. In actual fact, appellee, a~*

_* dépendent wife and. the mother of two small children,

‘| Was no more a part of the United. States, Air Force

than if she had been quartered ‘on any Air Foree Base

in the United States, And appellant's effort to fudge -

the constitutional issue through use’ of a figure of *

speech calls out, for adherence to Mr. Justice Holmes’:

admonition: ‘‘As long as the matter to be considered:

is debated in artificial terms there-is a danger. of—

being led by a technical.definition to apply a certain

. x: » ee e

name, and then to dedtice consequences which have no

e as 4 . e

“Tn ease number 340593 Audrey L. Aguaya, a dependent

‘wife, was tried in Japan on 10 February 1950 on a charge of

larceny, committed in December 1949. She was convicted and

sentenced to six months confinement, which-was suspended. In

eag# number 351230, Fumie Okitsu Hilton, a dependent wife,

was tried at Osaka, Japan, on 18 January 1952. for unlawful °

possession of drugs, an offense committed 11 December’ 1951,.U pon

conviction she was fined $100, and sentenced to three months

confinement, which. was suspended.’’ Respondent's reply 4 in

W. Va., at p. 7.

’ Even casual reading between the lines strongly suggests that

both trials were on an in ferrorem basis. Anu since both took

place while. Japan was sti'l occupied territory, there was aun-

a ee military jurisdiction undercAW 12 of 1948. Cf. Madsen

» Kinsella, 343 U.S. 341.

| 12

relation to the grounds on which the . name was

. applied:”” Guy v. Donald, 203 U. BS 399, 406. °

In the Krueger case, Jur. St. ‘App. at 16a, tie

. district court expréssly rejected the Arniy’s contention.

that a dependent wife accompanying the armed forces

was a “‘part’’ thereof. ‘Phe circumstance: that the

court there then went on to hold that the wife’s trial

by court-martial was authorized none theless, in the-

teeth of this Court’s pronouncement that such juris-

diction is, restricted ‘‘to persons who are actually

-members or part.of the armed forees’’”’(350 U. S: at

15), may well be ground for per curiam reversal; but

~ , assuredly it does not establish: that, after Toth, there

is any substantiality to the: contention that civilians

can be tried by court-martial in time of peace.

B. Even if it be suaiieain ‘ie purpéses of argument that there

was jurisdiction to try appellee by court-martial orginally,

such jurisdiction was lost after she was returned to the

United States and ceased to be a person “accompanying

“the armed forces without the continental limits of the

United States” within. Article 2(11)

It is entirely possible to affirm the eeten below

without ever reaching the constitutional issue.

Assuming arguendo that there was jurisdiction |

originally to try appellee under Article 2(11) as a

person ‘‘accompanying the armed forces without the

continental limits of the United. States’, that juris-

diction was lost after her judgment-of conviction was

set aside by the United States Court of Military

Appeals on June 24, 1955, since at that point she was .

| in the United States, in a civilian penal institution,”

12 Whereas AW 2(e): of 1916 through 1948 purported to sub-

' ject to military law “All persons under sentence adjudged: by.

courts- martial’’, ‘see Kahn. v. rs 255 U. 8. 1, — 2X

”

mec

‘and was 10 longer atcompanying ‘the forces abroad.

Hence by the-summer of 1955, when it was determined

_to retry her by court-martial (Jur. St. 4-5), she was no

longer within the terms of Article 2(11).

The authorities relied on by appellant to establish

‘that the court-martial Jurisdiction, here assumed for

_ purposes of srgument: to. exist, still continued, will

not survive examination. For the most part, these

hold that, once charges are duly preferred, expiration

of the soldier’s enlistment pending trial does. not ~

defeat the right to proceed.’ No one would dispute

that proposition.’ But it is wholly otherwise where,

by affirmative act of the Government, the soldier or

officer against whom charges are pending is duly

‘ separated, discharged, or mustered out; in that-event

the military jurisdiction ceases, because after separa-

tion the individual.is once mofe a civilian.” And

the same cénsequence follows where such separation

‘takes place after he has been tried but pare the

proceedings have been approved."* -

—

Pe the Uniform Code restricts military jurisdiction o over prisoners

‘* All persons in custody of the armed forces serving a sentence

fepoan by a court-martial.”’ [Italics added. | Appellant admits

that, at all relevant times, after her original conviction,- appellee

has been: in civilian custody. Jur. St. 4-5:

13 Walker v. Morris, 3 Am. Jurist 281 (Mass.) ; lia re Bird, ‘2

Sawy. 33, Fed. Case No. 1428 (D. Ore.); Barrett v. Hopkins; 7

Fed. 312 (C, C. D. Kan.).

14 Accord: ao oe * 118-120 [1920 reprint, pp. 90- 91] ; Rig.

Op. JAG 1912, p. 511, {§ VIII D 4. D2; Dig. Op. JAG, 1912-

1940, p. 164, last three sainastaiudin of % 359(6). .

15 Winthrop, *116-118 [1920 reprint, p. 89]; Dig. Op. JAG,

1912, p. 514, § VITI I 1; ‘Dig. ‘Op. JAG,- 1912. 1940, pp. “62. 08,

14 359(1), 359(2). ee

165 Bull. JAG 35, §.359(6) ; 5 id 278, § € 407 (3).

. 14

Here it was the Government itself that, by its own

_ affirmative actachanged appellee's status from that of.

a persomaccompanying the armed forces overseas to

that of a person in civilian custody in’ the United

States. “She did not ese wpe.’ nor did she change from

‘one status subject to military law to another similarly

so. subject." Endeed, in consequence of .the explicit

terms of Article 2(7); supra fiote 12, she ceased tu be

subject to military jurisdictiori the moment she was

placed in civilian custody at Alderson (Jur. St. 4).

‘United States and there placing her in civilian custody,

. just as effectively terminated its jurisdiction over her,

once the original conviction was set aside, as if, she

being a WAF, it had discharged her before the pro-

ceedings against her had been terminated. For the

military rulings teach that an affirmative separation

from the service at any stage in the course of the

court-martial proceedings causes those provvedings to

abate.”

On this footing, any jurisdiction that existed was

lost; and, in view of Toth v. Quarles, 390 U. S. 11,

cannot now be reasserted.

cited at Jur. St. 15.

1 As in Carter v. McClaughry, 183 U. S. 305, and the Perlstein

ease, supra note 7, both cited at Jur. St. 15.

1 Authorities cited in notes 15 and 16, supra p. 13. It is -

significant in this connection that the end’ of a war has been held

to destroy war-time jurisdiction to try camp-followers who com-

mitted offenses in time of war. Dig. Op. JAG 1912, p. 151,

ld As in United States. ex rel. Mobley v. Handy, supra nate 8,

C. The power of Congress to maintain relations with foreign

countries is utterly eee here

Apparently somewhat ‘ansure~ of his contentions

under the law military, appellant adds'a long argu-

~ ment (Jur. St.15-20) to the effect that the Air Force’s

right to try appellee by court-martial can be supported

as. an exercise of the power to treat with foreign.

countries. It would be interesting to jein issue with ~

the many questionable contentions there urged,: but’:

the temptation must be foregone: appellant’s foreign

relations argument is utterly irrelevant to the present

ease. : 7

| ‘Birst: - Appellant admits (Jur. St. 4) that it was.

proposed to retry appellee by a court- martial convened

at Bolling Air Foree Base, within the District of

Columbia. Thus appellant’s argument® comes to this,

that the trial of a civilian woran. by a court-martial

‘eonvened at the very.seat of Gov ernment, only a few

short miles away from the regularly constituted courts

of the United States and literally within the shadow

_ of the Capitol dome, can somehow be susti ained as an

exercise of the treaty pow ers

‘It would be interesting to know whether, in the 166

years. since this Court first sat, it has ever beén

tendered, from any source, a suggestion: more weird

than this one. .

Second, But examination of the authority princi-

pally relied. on, the Act of Parliament known as the

United States of America (Visiting Forces) Act, 1942,

St. 5 & 6 Geo. VI, ¢. 31 (Jur. St. App. 17a-27a), shows

that nothing therein .even purported to enlarge the

jurisdiction. of American courts- martial.

See. 2 ( 1) of that Act (J ur. St. App. 19a) — :

that, for purposes thereof, |

“all persons who ie by the‘law of the United

States of America for the time being subject to

the military or naval law. of that country shall -

_be.deemed to’ be members of the said forces:

ee 2% #99

In No words, the British law is that anyone who .

as a matter of American Jaw is subject to American

_ militafy jurisdiction is as a matter of British law

likewise subject to American military jurisdiction.”

This leaves entirely open the issue here, whether |

. appellee as a matter of American law (including,

obviously, American constitutional lay) is subject to

American military jurisdiction. Thus nothfhg ist the’

cited Act of Parliament, and nothing in the exchange

of notes preceding its passage—nor, for that matter,

nothing’else relied.on by the appellant—adds anything

o : a

20 With one exception, stated in the proviso to Section 2(1)

immediately following the quotation in the text, viz., ‘‘Previded

that no person employed in connection with the said forces, not

being a‘citizen or national of the United States of America,. shall

be deemed to be a member of those forces unless he entered into

that employment outside the United Kingdom.’’ Otherwise stated,

a British subject employed -in the United Kingdom to. work for

the United States forces there could. not be tried by: an American

court-martial even though literally within the then applicable

portion of Article of War 2(d) of 1920, viz.; “‘in time.of war

all * * * persons accompanying, or serving with the armies of -

the United States in the field * * *’’ (41 Stat. at 787). (Inasmuch

.as the Act of Parliament in question was enacted while the

“United States was at war, the other portions. of Artic ‘le of War

“2(d) were obviously irrelevant at that time.)

The opening clause of Artiele 2(11) of the U niform Code of:

‘Military Justice, ‘‘Subject to the provisions of any treaty or

agreement to which the United States is or may be a party or

to any accepted rule of international law’’, must therefore be

read in the context of the foregoing restriction. So read, the

clause is one of limitation, not, as appellant erroneously assumes

(Jur. St. 17-19), one spelling out a source of power.

whatsoever to the scope of military jurisdiction under

the American Constitution.

It is not necessary to speculate whether’ it is ever

possible, by agreement. with a foreign nation, to.

enlarge the categories’of American citizens who may

be tried by American courts-martial; it is sufficient

to say that appellant has failed to point to anv treaty

or executive agreement which in this case purported

to enlarge the grant of court-martial jurisdiction that

is now narrowly cireumscribed by Clause 14, Section

_ 8, Article I, .of the Constitution of the United States.

i - CONCLUSION

For the foregoing reasons, this appeal should be

dismissed for want of jurisdiction. .If, however, it is

to be entertained, then the judgmeft below should be

affirmed. |

Respectfullv submitted.

FREDERICK BERNAYS WIENER,

Suite 815-Stoneleigh Court, |

1025 Connecticut Avenue; N. W.,

aes Washington 6, D, C.,

a | Counsel for the Appellee.

FEBRUARY 1956.

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