Petitioners Brief — Parisi v. Davidson

Supreme Court brief1972

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Text

Iu the Supreme Court.

United States _

. Octrosrr Term, 1971

| .

aeeers - |

> ‘ .

JosePH Parisi, ) k

Petitioner, ~ &§

Vs. ; t

Mason GeneraL Puiu Pe Davipsoy. :

Commanding General, United ° States | |

Army Training Center, Fort Ord, Calli- \. i

fornia; Captain CovcHurn, Command- :

ing Officer, Hospital Company, United i

« States Army. Training Center, Fort

- . Ord, California; STANLEY Regor, Secre- vi

‘tary of the: Army, a ra ;

® _ Respondents. .

— | : ». x s

, se 6 =.

, BRIEF OF PETITIONER

‘

Nei GLS ot

_ Grorce A. BLACKSTONE,

7 Ricuarp LL. Gorr,

- STEPHEN V. Bomse,

Dové.Las M. Scuwas,

44 Montgomery Street, - sg,

San Francisco, California 94104,

Attorneys for Petitioner, |

OTN RI Te ae em ne re

PERNAU- WALSH PRINTING CO. > SAN’ FRANCISCO, CALIFORNIA

oe”

* TABLE.OF. CONTENTS _

INTRODUCTION

CITATIONS TO OPINIONS BELOW |

JURISDICTION. |

QUESTION PRESENTED

STATUTES AND REGULATIONS

STATEMENT OF FACTS RELEVANT

TO THE ISSUE PRESENTED

FOR REVIEW

SUMMARY “oF ‘ARGUMENT ©

ARGUMENT

CONCLUSION

‘TABLE OF AUTHORITIES

Paae

‘Bratcher v: McNamara, . . 1

415 F.2d 760, (9 Sth Cir.

| 1969). 25 hy

Brown v. “McNamara, 387 F.2d | ©

150 (3rd Cir. 1967) . 5

Cooper v. Barker, 291 F. Supp. i.

952 (D. Md. 1968) 5,25, 4

Crane v. Hedrick, 284 F. Supp: y ,

250 (N.D. Cal. 1968) 2 Sy 25, 45

_Craycroft Vv. Ferrall, 408 | 23; 24,25,

~ F.2a° 587 (9th Cir. 1969),26, 31, 47,

vacated, 25 L. Ed. 2d, 61 ;

351 (4970) : , i”

‘ Damico v. California, .

389 U.S. 416 (1967) 47.

Dombrowski v. Pfister, =

| 380 U.S. 479 (1965) = 47

Font v. Seaman, 20 U.S. C.M.A.

387, 43 CMR 227 972)

Gann v. Wilson, 289 F.. ‘Supp.

de ‘(N.D. Cal. 1968) —- 25, 45 >

- Gusik vs Schileer, 340 aoa

; | 128° (1950) - ; 47

Hammond y. Venfest, 398 F.2a 5, 25,

“705 (2nd Cir. 1968). 44, 46, 51

Houghton Ve Sharfer, 392 U.S. | .

639 (1968) - AT ,

‘In Re kelly, 401 F.2d 211 _ |

— (Sth cir. 1968) | — 25,

‘Jeffers v. whittley, 309

Feed 621 (4th. Cir. 1962) 58

Kriege rv. Terry, 413 F.2d

13 (9th Cir. -1969)_ 25

Lee vs Pearson, 18 U.S.C.M.A. o-

545, 40 CMR 257 (1969) . 33

Levy v. Resor, 17 U.S.C.M.A.:

135, 37 CMR 399 (1967) 37

McKart v. United States, _ 19,-

(399 U. S. 185, 193 (1969) 30,

McNeese v. Board of-.Education, .

373 U.S. 668 (1963) 47,

Woyd ‘v. Bond, 395 U.S. 683 23,.

1969) 7,

| 52,

". Noyd v. McNamara, 378 F.2d — 24,

538 (10th Cir. 1967), - 44.

aff'g. 267 F. Supp. 701

(D. Colo. 1967)

Orloff v. Willoughby, 345

CS. 83 (1 | 27

‘Polsky Ve Wetherill, 438 F.2d.

Taz CHORE T1971) 24

Talford: Vv." ‘Seaman, 306 R. ~, 25, 45

Supp. ‘941 (D. Md. 1969)

United. states ex rel Brooks 25, 29, 42

v. Clifford, 412 F.2d 46, .49,°57°

1I37 (4th Cir.. 1969) So

iii

United States v. Davidson,

30 CMR (92k 1961)

-United States v. ‘Noya, 18

| U.S.C.M.A. 486, 40 CMR

A1969) ,

United: States ¥: Seeger,

i 380 U.S. 163, 170-172

(1965) a /

United States v. Snyder,

18 U.S.C.M.A.: 480,

40, CMR 192 (1969)

United States v. Stewart,

20 U.S.C. M.A. 272, 43.

CMR 1}2 (1971):

ny <e / .

United States v. Wilson,

2 S.S5.LR. 3548

(U-S.C.M.A, 1969)

zwickler v. _Koota,

389 U.S. 241 (1967)

_ . a

REGULATIONS, =

Army Regulation (A.R.) 635- -20°

Department of Defense

. Directive (D. O. D. -0

1300. 6

STATUTES

10 U.S.C. §867(e)

-.. 28 U.S.C. §2241(a)

17, 34

17, 18

sie

STATUTES . (continue)

28 U.S.C. §1254(1) 3.

28 U.S. C.§1292(b) eS

-ALpSurits Act, 28U.S.C.

$1651 (a) (2) 36

- MISCELLANEOUS

Judicial Acceleration of the

Administrative Process: oy

The Right to Relief from .

Unduly Protracted Pro-

ceedings, 72 YALE. L.J. *

-574 she?) . | ; ‘58

Davis, ADMINISTRATIVE LAW.

TREATISE, 1970. Supp. on.

°642-644. a 57

all

~ XN

' \,

\ gonscientious objectors either to -

7 *

INTRODUCTION. °

Petitioner, Joseph Parisi, challenges

the decision below. ‘that he must exnaust

military judicial remedies; including

. appeals, ‘before seeking review in the

fedéral Stetesce court of administrative

Genial of his application. for discharge,

Strom the hi litary “asa conscientious,

objector. \Petitioner respectfully

submits thal such: decision represents’

an unprecede ited’ extension of the -

doctrine of. ekhaustion. of remedies

Sad is not supported by the policies,

underlying the exhaustion doctrine |

“nor by the traditional. reluctance:

of civilian courts to become involvew,,

in military: affairs. Equally significant,

“the effect of this ‘decision is to. require

‘Parisi and numerous’ other - in- “Service:

* comply with orders: which violate their’:

1-2

religious scruples or be deprived

_ Of access to: federal courts to | ‘

secure relief from’infringement of

‘ Constitutional rights. “Such a result.

" Gonflicts: both with settled princi~_

ples of ‘exhaustion. and with the

overriding Congressional and Adminis-

. trative pO@licy that “has. deened it

“more essential: to respect a man's

| reliaious’ beliefs than to force him

' to serve in ‘the Armed Forces . e 06”.

Department of Defense Directive

1300.6, Par. IV A. For these |

‘reasons, petitioner ‘urges this

Court: to-reverse the decision below-. :

anda order the case to Proceed on —

the merits in. the district eet

CLTATIONS~TO- OPINIONS BELOW.

. The opinion of the Ninth Circuit

% °

\ Court of Appeals is reported. at

”

435. F.2d 299 (9th Cir. 1970). The

<i é

: 3 ; : on!

7 ar ’ ar aoe

“earlier order of the district court.

‘Staying ‘proceedings has not been a

reported but is included as. a. portion

of ‘the Appendix herein: at pages 52-55. °

De oo JURISDICTION

| “rs The “opinion” and order sought to -

“be reviewed was entered on. December 3.

1970 in Action. No. (25773. in. the United

“States Court of Appeals for. the 9th ©

_ Circuit. A Petition for Writ, of

certiorari, was ‘filed in ‘this. Court -

Tes “Son "February 27," 1971. ane ‘the Petition.

was granted by Order, ehtered May 35,

(ig71. Jurisdiction in the United

States Supreme, AAAS Meerbed

pursuant to the provisions of: .

O) + 28 U.S.C. 8 1254(1). 2 veo

tA a QUEST ZQH PRESENTED |

“Where a : member of ‘the ‘Armed.

“Forces applies to the federal a

district court: for a writ of habeas

“corpus on the ground that his application

for discharge. as a conscientious Sbjector

has been wrongfully denied without basis

in. fact, and is thereafter charged: by

“military authorities with refusing to

obey an order, is it proper for the

federal district court to. stay. ‘the,

‘habeas eotpus’ action ‘pending exhaustion

e ve

of military judicial remedies, including |

. appeals? _ nS _ : Sete es aS

\ ;

_ STATUTES AND REGULATIONS INVOLVED —

"The applicable | statute is 28 U. ; "sa

‘s 2241 (a). 1 provides in “pertinent

ae as follows: . 7 | . —

- “Writs: of itebeas corpus may Be-

granted by the Supreme Court,

-*" any justice thereof, the

district courts and any circuit

judge within their: ee

jurisdictions ... vo. :

The applicable regulations are -

Department of Defense, Directive 1300. 6

- and Army Regulation 635- -20 ated provide

for discharge of a member of the Army on the

ground’ of conscientious objection unless the

5 ;

- Ny

4 a elle CE HPO tH8 -

~~.

& : . ae Ee) . ee

|. application is based solely on

"corpus in accordance with the

conscientious objection which. exiated

but was not claimed prior to'- ‘induction.

STATEMENT OF FACTS RELEVANT TO THE

ISSUE PRESENTED FOR REVIEW .

Petitioner is a candidate for dis-

charge from the military as a

conscientious objector. He filed this

action in the United States District

Court for ‘the Northern District of

California ‘eeeking a writ of habeas

numerous decisions holding ‘that

“denial of, such a discharge “without

basis. ‘in fact" constitutes depri-

~kf |

vation of due process. The |

‘instant appeal, hawever,. does: not

1/ See, e.g., Hammond v. Lenfest, |

- 398 F.2d 705 (2nd-Cir. 1968);

Brown v. McNamara, hg Pine

a 7 Cooper v. Barker,.

291 F. Supp. 952 (D. Td. 1968);

/Crane v. Hedrick, 284 F. Supp. 250.

AN. D. Cal. 1968). a :

)

reach the merits of petitioner's .

claim "> which are ‘indisputably

strong." Rather, petitioner here

»contests an order entered in the

district court and affirmed by the

e °

2. «It is-one-of the particular

_ gronies of this proceeding that,

with, the exception of the Army

reviewing officials in Washington, —

D.°C., no one familiar with

petitioner or his claim for ~'

Gischarge. has disputed'the ~

Sincerity of Parisi's discharge

request, or the depth of his

beliefs. (See infra at 10-11).

Indeed, the strength ‘of

petitioner's claim on the merits

was commented upon in dicta

by.the court ‘bélow (App.el )_

-- although the effect of. _-

that coyrt' s holdrng was to ©

deprive him.of the right to ~

prosecute that claim for a

Substantial period: of time.

. 7 |

Court of Appeals, staying the.

civil action on the ground | that

petitioner was first required. to

exhaust military judicial

remedies, including appeals.

Petitioner contends: that such

| requirement was unwarranted and |

constituted érror. )

As respects the question

- of exhaustion now before the

—— =

Court, as well as on the merits,.

these proceedings present an

| , unusually compel Ling case for.

i ae relief. Petitioner was drafted

on xuqust 22, 1968. ‘thereafter,

- on May 22, 1969, he filed an :

application for discharge asa

conscientious, objector pursuant.

‘ = rn < ‘the: provisions of Army

Regulation (A. R. ) 635-20 iva

8 a

Department of pefense Directive

> *3/ -

(De O.D. ) 1300. 6. At the time

of this filing, petitioner was

stationed at Fort ora, California ©

and had received no orders for

overseas duty. In brief,

petitioner's, application

Gescribed his strong religious —

backqround and. training in, the

Roman Catholic faith as weil as

the practical application of his.

Beliefs and training as a social

‘worker in urban ghettos. At the

time. he was drafted, petitioner

—_ ay ora a

3/ . 635-20 and D.O.D. 1300.6

= ovide: for the discharge of

- se-called “in service" conscientious |

objectors cn standards > essentially

- equivalent to those applied. to -

Selective Service .registrants ,

renerally with the exception that an_

‘adplicant for discharge ‘from, the | |

military -may not base his claim solely

upon consc#entious objection which

existed but was not claimed prior

to induction.

admittedly had doubts about. but

was” not conscientiously opposed

to, active military servicé.

However, as a result of experiences

in’ basic training (and from.

extensive bible study and religious

discussion with other soldiers)

he: becdme firmly convinced that

his continued participation in

the military in any form was

inconsistent: with his religious

beliefs.

7 Parisr s Spptiéation® stated

in part: "As a Christian, I

cannot conscientiously kill or

trarm—anrother—person ner-suppert—————

‘killing in any way or form. It “

was intended that Christians

practice living as Jesus, lived.

It is clear that as'a Christian.

and a human being, I‘ believe’

strongly enough in these ideals -

of love and peace that a Christian

community will ultimately be a

reality and the word of God prevail.

If this is to become reality, I

cannot continue to éngage myself.

‘in actions wascn t desire to —

_ Petitioner's discharge

application was processed in .

. accordance with the requirements

of A. R. 635-20 and was submitted

to. the uss. i s reviewing officials

s--

in Washington, DeCoy with the.

.emphatic and unanimous endorsements

_ of the Base chaplain and psychiatrist

as. well &s Parisi' s commanding |

officer and the Army's independent 7 core

a ®

4/ (continued) an end to. I must

serve mankind in a manner by which.

no man shall suffer or be harmed |

through my actions. Man was not

created with the intention that a

he would. eventually destroy himself. | ts mee

Because man must. prevail, it is my ' ses

duty to object to the violence of

war. It is only by acting in this

way that war shall.end. It is the

duty of the Christian to be first

* to engage himself in opposition eee!

to war. Ultimately, this~shall mo

stimulate a universal movement.

. for peace in the name of humanity

eae | and the coin dateul ; ;

J - 1) —

‘Hearing Officer who extensively

interviewed petitioner. fiowever,

despite this Strong showing, |

‘Parisi's application was disapproved |

| by the Army in November, 1969, on the

asserted grounds (a) that his beliefs

nee become "fixed prior to entering.

>the service" and (b) that he was not

"truly" opposed to all war by |

reason of his religious beliefs.

5/ In passing upon Parisi' s ‘request

for discharge, the Base Chaplain

concluded: “There is no question

whatever as. to the sincerity of

the ‘applicant as regards: his

conscientious objection,” and

that "his convictions are firm dnd |

resolute, nutured in much genuine

soul searching." Similarly, ,the ‘

Base psychiatrist ‘reported that.

"there is no doubt as to his

sincerity in.this matter," --

a general conclusion shared by the

Army's own Hearing Officer who, after.

an extended interview, recommended

approval of petitioner’ s discharge

request. .

cv},

, ‘

itr.

Promptly following this denial,

Parisi. filed a request for review |

by the Army Board for the Correction

of Military Records and, while this” . Le

request was pending,. also filed a. a a

petition in the united States oe

ond

District Court seeking “a writ of . ae

habeas’ corpus. As noted above; —

‘Parisi,'s habeas petition ‘alleged - a

that he had been denied discharge

“as conscientious objector -

without bande in fact and had thus 7

been capenree of due process under

> the” Fifth. Amendment.

. On the date of filing -

_ (and. following hearing) the COUrt ©

" ordered the habeas ‘corpus proceedings

stayed ‘pending review lana’ action by

the ABCMR. ‘However ,. the court’

retained jurisdiction of ‘the action

and entered 4: limited protective,

order rdteatains : the Army fron -

assiqning Parisi to duties

involving “materially greater"

cz participation in combat related /

bake

activities pending further court

6/ ca eae

@ action. | a : . \

€6/ Although entering the limited

restraining order described in —

text above, the district court

declined to enter a requested ©

from transferring. petitioner,

out of the Northern Digtrict ‘of

California pending disposition

of his habeas petition. On

December 4, 1969, therefore, -'

’ Parisi filed an initial appeal

° in the Court of Appeals for the

Ninth Circuit seeking review of

‘the Order’ denying the injupetion

as aananecess transfer. ;

9 At’ pe this same time,

' Parisi received -from the Arny :

_ the transfer of duty, order

discussed hereafter ‘in text.

_ He then ‘sought, first from the

Court of Appeals, then from |

‘Circuit Justice Dotglas, an

order staying his deployment |

pending disposition of the ~

pending appeal. These stay

applications were dénied,

respectively, on December 10,

_ 1969 and December 29, 1969.

The earlier appeal in. the

injunction restraining > respondents . -

| ry eee ere

: Subsequent to the.entry of this. ee ea

stay order in the district court, but. a

‘petore any action had been " taken by

ee: ABCMR, Parisi received orders which, -

: On

in essence, “provided for his: transfer

to viet Nam. Pursuant ‘to these

orders ; he reported to‘ Fort Lewis,

Washington. on. December ‘3l, 1969, :

and was there booked’ for immediate |

overseas. deployment. Parisi, however,

‘firmly believed that such transfer as

would seriously violate his religious

° '

. . F . . ‘

* ° - . e , eo

1 98255 Rann ate Dae ere Nea aR HS . :

ead Te S . * ba sine re ra "

. . . 7 -

. . é 2

6/. (continued) Ninth Circuit .

-was subsequently dismissed

{March 17, 1970): as moot upon

‘the suggestion of petitioner, ..

following ruling by the ABCMR Sp

_and.entry of an Order to Show ii tae 07,

‘Cause-by the district court in [| |

‘the habeas corpus action. . iianee

Pig —- FP .*

° + y,

Se ABE viens

, .

“ . °

pbb fbhe Chiat coris 2g

‘ 2 Sem

wh Guat vt a

: .

Sasa RH Peto iides

EE te cistedhin alien cot

™ . . °

ad .

sinh eae th isis ALAR OAR abl ES (aa NOE

ale Sait Ditin po

WO OO Ly tee i

| beliefs. ~ He” therefore refused

to obey the order. “to board the plane

ra; ;

for VietNam, and was immediately. :

placed in the stockaie and ‘charged

° B wae

wk th violation of Article 90 of the *

, "uniform Code of Military. Justice .

(refusal bo sie 3 a ~lawf. ie order).

Shits ere ie

e ’ = .

: a :

a . Ay

: . py.

— af rey “stated in Parisi’ S affidavit

in the district court, for him, the

duties in -Viet. Nam involved far

more. serious. violation of his. ;

religious beliefs. This was because:

the psychological counseling there

would involve direct participation |

-in-and supporting of.combat activities.

and helping to prepare soldiers ‘for.

battle. .He could also be. required

at any, time to participate directly~

-in combat -and the carrying of

weapons. ‘The. credibility of

ese” ‘beliefs is. borne’ out,’ we.

. (suggest by the following excerpt.

from an. article in Newsweek

magazine . discussing the My ‘Lal.

affairs: fee Be

“when You" re,in Viet dam,

: there is a shift-in your

‘thinking away from umanitarian

.. values’ to simply dc

-. says Dr. Albert KaSt, a 30-year.

old clinical psychologist in

San Francisco who spent a tinal

}

mocenconyrall

SAehaiatIn.

©On March 2, “p70 -- before the

- military court-had Been. convened to. hear

the. criminal charges: against Parisi ©

_the “ABCMR: notified petitioner that re

it drag, rejected his application for

relief. Promptly. thereafter, the |

district court issued an order, to o

show. cause in the pending. Habeas. -

corpus proceedings. In its

return, however, the government

“moved to stay the civil action

‘-

77 (continued) ©

pending exhaustion of petitioner's

military judicial remedies arising)

out of the then-pending court.

martial. a8 ‘ Yao

in Viet: Naif. # "Our.job was

‘getting disturbed people back

into combat so.they could: kila-

“more people. And we did our job::

very well." (Newsweek, December

8, . 1969, P. 35).

Sc ag Mca etalt

Linda:

, . au Hi : re ed istic . -

tn Rhine ——_ MR SEED EES NEEL AS LAO TAELL 0icrE A

< .

‘ 2

’

° .

| Reta ree er ne a eo

{

eat tit a SAORI ite Bao

eee s

‘stay-motion. b

17 O°

On March 31, 1970, the district”

court granted r pondent' s- ‘renewed .

rtified its

order for “interlocutory appeal

“pursuant. ‘to 28 U. Ss. C. “§ 1292(b).

In’ the interim between’ “that stay

i order and ‘the order ‘of the’ ‘Ninth

Circuit fourt of Appeals accepting

: " petitioner’ Ss r 1292 (b) appeal zy

(April 24, 1970), Parisi was ‘court

nartialed and suet oon of’ the |

8/. | .

charge against him... He’ was.sentenced

8/ As.a hd Cenk to his court,martial, .

petitioner asserted,-inter alia,

“that the Army had denied his. application

-for—discharge from. the Army without. .

basis in fact. This defense was |

asserted pursuant to the-apparent _

holding by the Court of Military-

Appeals in United States v. Noyd,.

18 USCMA 483 40 CMR 195 (1969)

that where conscientious objector

discharge is "illega ly" refused

an order "generated" by such |

"decisjon" is "also illegal.§

_ But see United States v. Stewart,

20 USMA 2, G ———

and compare ‘U. S. v. Wilson,

at:

. ..*

to two years hard babor with a-

dishonorable discharge. ‘His appeal

2 Py as

. from that conviction he fore the - : A

Court of Military Review is now

: P - . i

pending. |

on pecenber 3, 1970, the ~~ | \

% .

Court. of Appeals af ffirmed the district

court.’s stay order and on May * 36. 1972,

this Court. gtanted Parisi’ s petition :

for a Writ of Certiorari to. the

Ninth Circuit Court of, Appeals. ae

a et gs 2S. Ss. Lb: R. 3548

Paneina upon gach defense. at,

‘triad the .Military. Judge did not ,

Strigtly- purport to pass upon whether

—_theré’*had. been a "basis in fact" for

‘the Secretary' s administrative denial,

but did review Parisi's. file to

determine whether such action was _

: “arbitrary", “or capricious,"

constituting an abuse of discretion.

See Appendix at 89-91 The judge

concluded that no such. abuse had been

shown. What legal conclusiop | would

_ have followed had his conclusion been

contrary does not appear - from the—

“military trial record -- nor is it clear

_ from the decided cases. See the

. decisions cited dbove as well and at

pages 24-30, infra. ~ ~

- .

x aah) dalh ocala aac bie

= . ¥ er : . . , s

. i - ——— v

ea eatttin, BN BEB arth Saar cote ARNE

. 5 7 . . 5 ‘a '

—

7 e

395 U.S. fas, (1969), together with

SUMMARY OF ARGUMENT ae see

Petitioner contends “eat the

. .

court below improperly’ extended the ay

“doctrine of exhaustion of remedies .

- tn. its requirement. that he pursye

military judicial remedies

. (including, appeals) ‘from his

‘court martial conviction prior to.

seeking habeas corpus relief in the .

Federal District Court. Petitioner

Submits ‘that an analysis of the-

a .

exhaus tion doctrine focusing in

é . “7 y a

pasticulés. upon ‘the. considerstfons-

a og 4

deemed “important by. this Court ~

7 .

: ae a ’

‘in McKart;v. United States,

an analysis of the particular

administrative procedures designed

by the military for processing

servicerien' s. applications for

discharge - conscientious objectors,

demonstrates that those administrative .

procedures, and: no other ‘procedures,

; éshould | be exhausted as a propeadétion

to seeking habeas corpus relief in dhe

Federal. District Court. Petitioner

further ‘contends ‘that principles a oo

| Of oolhity between Federal and. Military ate

- Courts. cannot justify invoking the

Cr ‘sige

x” 3 e ;

pendency of court ‘Martial proceedings i a i

to. thwart the wholly independent right ee

of a ‘conscientious. objector to obtain |

.. beaerel Court relief if his “discharge

application was denied without basis oe

in fact and thus in violation of ° due

process.

2 . ay 8 . _ Pike

: oom ‘ me ia

Gereover, . the-decision below 1s.

p anes %

“premised on .an assumptionaet— Tees

~ borne. out bg reported decisions of the

- military courts, that the: relief. which >

“\ a

'. petitioner seeks in the Federal. District |

Court -- discharge. as a conscientious

__—pjector -- is. equally avaiable to

him through the judicial remedies ,which

he is s being forced to pursue in. the military.

“kg

a | y

ie: Petitioner. will demonstr te, however, —

that the availability of. uc gelief

is ene nonexistent fo} ‘extremely

remote. and in ®any event _ subject: to’

inordinate ‘delay, and surely cannot

constitute an. acéquate remedy within

exhaustion principles. *-

Petitioner. also contends: that .

‘the decision below has improperly

eer:

denied him access to. federal _courtes

‘and has infringed. the basic Kelicies

<_—

undert: ing exemption for ‘conscientious

objection. — Petitioner will demonstrate

7 that, the effect of the decision below:

is to ‘make. access to the. federal

: ‘courts | on habeas. corpus | ‘conditioned

_upon the willingness of a ‘conscientious ~~

objector discharge applicant to viakate

his professed beliefs. — where, “as here,

the ren seeking relief in. the :

‘Feder is District. ‘Court has exhaused the

“nicwiy administrative procedures specifically

“designed to’ deal with applications such as

ae = % ne : - 9 a ee a3 &

»-

a his, the government Oe no legitimate:

interest, petitioner submits, int.

“requiring that additional "remedies

be pursued. “nt i ee : het

SAT ae

: 24

- 5 .

« é * 6 ; bed

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ARGUMENT ee eos

Jaa THE ‘DOCTRINE OF EXHAUSTION OF REMEDIES

DOES NOT PROPERLY REQUIRE AN APRLI-

Teak CANT FOR CONSCIENTIOUS OBJECTOR ;

Wit _ DISCHARGE~ FROM THE ARMY TO: EXHAUST.

-. MILITARY JUDICIAL -REMEDIES PRIOR

Bsc tue oe | TO SEEKING, HABEAS CORPUS RELIEF IN.

-g. > "> \a. A-UNITED’STATES DISTRICT COURT,

,; oe : -:. SENCE SUCH JUDICIAL REMEDIES ARE

ae - "NEITHER DESIGNED NOR INTENDED | )

Pete: TO PROVIDE THE TYPE OF RELIEF - ts

ee ' SOUGHT THROUGH ‘THE ADMINISTRATIVE ___

.. BROCESS AND REQUIRING SUCH EXHAUSTION

. + WOULD. .DEPRIVE DISCHARGE APPLICANTS -

peer > QF ACCESS_ TO THE FEDERAL: COURTS. © cs

a = EP

o. A : e BRIT

- this: appeal raises important,. ana oA

.-unresolved, questions bearing’ upon the:

doctrine’ of exhaustion of remedies’

and the ‘relation between religious.

. freedom and aroree to ‘the ‘federal courts,

She: which. are. unresolved by “we

decisions of. lower federal. courts. here

; | ce ‘ >

Of . MAthouach. ‘the issue ‘presented herd:.

has not previously been’ determined: by

this Court, it Has been seemingly —

presented but not.reached in Noyd v.

Bond, 395 U.S.-683, 685: (n.1)- and

Craycroft v. Ferrall,: 397 U.S. 335...

1570 vacating and rémanding 25

-/ Ed 2d 351 °.(1970)...’ Similarly,

a yor question ot exhaustion of remedies

in the context here. presented has been

an issue‘of recurring significance in

sci . Po i

=< é

. before- ‘being permitted to seek ees ss

civil habeas ee: - Noyd v. eee ae

'*. McNamara,’ 378 F.2d 538 Thoth Cir... |.

T967)- aff'g 267 F. Supp.’ 701 | es 3

- + 4{D. Colo. - - ae: -pesition was. :

. ‘Brief in opposition. to the-Petition

; iz eS > i ; : ; ee

In its opinion below, the court of appeals

of (continued) “the Tieiuathd: OR et

“commented ‘uponby this Court in both’ -

i Craycroft and urged by

pees

“Petition for Writ of’ Certiorari aa here:

“sae i5- 1&. ° 3 ere a

military judicial remedies: prior. tos>

_. Maintaining..a civil action for.

- habeas. corpus: was required in an -

. @arly Tenth Circuit decision, which’

' remains unique in its requirement

_ United States Department ' “of Justice

‘urged ‘by United States. Attcrnéys.

‘within the Tenth Circuit. Seg, e.g.,

Polsky: v. Wetherill, 438 F.24a 13

(10th: Cir. 197T).. : jae Ea

‘

s : ‘

' 24 ;

@ BS eis A i cone ; ss : : < s i ~ " A

- * if

cases. Not Surprisingly, the issue

has received conflicting: treatment .

district court and courts of -appeal ‘s Toes ws

$ i

in suct cases —4e. fact which was .

loner’ as one. reason for -

anting certiorari here. See

"For éxses:| the exhaustion. of

that a discharge applicant must ” eS :

disobey orders and sibject himself”. . |

to military crimpnal jurisdiction ~~... °\/'

subsequently disavowed by the

on October 23, 1969 -Dep't. of oa

Justice.Memo No. 652 [attached . rere

as 5 ‘Appendix. to the. government* s*.. ew

for. ‘Certiorari herein], however,- (5

the Noyd rule is apparently still §;.

~ ee

pina

te Fg

S R a : . E ° a a |

| | 25

q a ; :

: . q S . ieee “

“held that where ‘an applicant for, discharg

, Of (continued) Subsequent to Noyd, |

: . the Second Circyit in Hammond v. Lenfeést,

"5 ).- +... Supra, refused to require exhaustion, <«

ca oe through court martial procéedings, as‘

the Northern District of California

-. ..° ain Crane v. Hedrick, supra, and Gann’

v. Wilson, 289 F. Supp. 191 (N.D. Cal.

2. °. ‘ -1968).: See also‘Cooper v. Barker, - ie

3. supra; Talford v. Seaman, 306 -F,.. Supp. -

= aa1 (D. Mad. 1969); Both Crane and

_ Gann were. ot course disapproved on this.

a point in the decision of the Court of:

i es: ‘did various district courts,. including) -

aa Appeals herein. ‘The’ Fifth. Circuit in_

_ In re’ Kell 401 F.2a°211 (5th Cir. .

| .1968) refused to .impose a. bjanket rule

a ' but held that in the case then before

non ie the court exhaustion of pending. court |

_ * martial proceedings woudd.be required.

On the closely relategg@question af —

exhaustion before militar orréction

boards -(such as tiie. ABCMR) the courts

a have similarly divided. The Ninth

, . Circuit has held that. such exhaustion

is required. Craycroft v. Ferrall,

supra; ~ compare also Bratcher v.

‘ -. McNamara, 415 F.2d 760 (Sth Cir. 1969p

ang Krigger v. Terry, 413 F.2d 73-.

~, (9th Gt 1969). However, the. .

‘Fourth Circuit has explicitly rejected

the Nimth Circuit rule and application

to such Boards Ys not therein required.

'U. S. ex -rel Brooks v.. clifford,

412 F.2d 1137 (ah Cir. T9368) .

‘. . ‘ e °

Ld .

7 Ou. " . sian eee at re Da FA OTe Pe rear

tli aA in a Ni A OBA: seit a i SRL AG ii alte a ;

o p - , , @.e

° P 4 :

‘ 3

og The Department of Justice, has

now disavowed Craycroft and adopted.

the Fourth Circuit view. a ae

aa as a in 2 Rate . Wie e

2 -from.the-military as a conscientious

oo ae ge 2

9/ (continued) «the appellate ddcibicn |

in Craycroft was vacated by this Court

-in’March, 1970 since the. Solicitor’

: yGenéral had conceded that’ the petitioner

-had.either. exhausted the remedy in

question or .it was “nonexistent. "

(397.U.S. at 335). Revartiaiess,.

the foPher Ninth Circuit rule |

. apparently’ retains at least. some, life

ein that Circuit. | (See-the Court. : - .

".of Appeals’ opinion’ herein, 435 F.2d<at 304).

In this connection, it should be

parenthetically noted that the Solicitor

General's position in its Brief opposing —

certiorari.in the ‘instant proceeding |

(at page 6) -- that’ petitioner

, “voluntarily"~ elected to profreed before

the ABCMR -- is directly’ contrary to

- the position which was taken by the

. local U. S. Attorney in preceedings

before. the District Court, ~ and also

contrary to the Court ‘of Appeais'

-own statement that Parisi in petitioning .

to the ABCMR was "satisfying the adminis-

trative exhaustion requirement. " of

'Craycroft. Parisi v. Davidson, °.

. F.2d at 304 - In fact, as far

as petitioner is aware, at least in

the Northern District of California,

the government still urges. the courts

to follow the Ninth Circuit decision .

in Craycroft in cases involving . <

Army discharge. claimants.

Ji 3.-

nas

~*~

“objector i is: (or becomes) ‘subject

to. military court martial proceedings,

me a district court should stay the. ‘civil.

‘action pending not only military ‘trial,

> oo : but appellate: aiid post-conviction

3; 7 " proceedings. Appendix at 63-64. The =

| ‘éourt! s ‘holding ‘was purportedly basea :

upon accepted ‘notions requiring

z ae ‘exhaustion of remedies prior to

seeking judicial relief and the

traditional. reluctance of civilian’

.. epurts to become unduly ot precipitiously

. involved in military affairs.” “Orloft

ts Willoughb 9 345 U.S.-83 (1953);

Noyd v. Bond, 395 U. S. 683 (1969).

As pointed out by the Court? of

. “Appeals, however, 435 F.2d at 303,

+ “petitioner does not dispute “ene

y ~wisdom for ‘the ] correctness " of ©

“either of these” principles. Rather,

“petitioner there maintained and now _

“urges that, properly understood,

such principles were not correctly’

"applied in the lower court and that ~

the decision below. extends 7

doctrine of exhaustion in an extra- -

~~.

ordinary and unprecedented manner. = 4»

"what. is more, the unavoidable

| effect of such. decision is: substantially .

to close tne Wors ¢ of the federal courts

to in- service conscientious objectors

who have been wrongfully denied

aistharge by the military.

A. THe Court Below. Improperly

Applied the Doctrine of .

.. Exhaustion of Remedies

‘~S- In This Sees

‘As nce ‘petitioner. does not

dispute the. infortant principlé

“requiring exhaustion of rémedies. wy

Hie. respectfully submits, however, “

that the court below fundamentally

~ erred in ‘failing to”Gistinguish

between exhaustion of procedures

designed to provide the remedy

sought ‘(or which would be sought) =

, ° a °

pst 29 © . 7 @:

‘

' in habeas corpus proceedings -- here

discharge as a tonscientious objector --

; . : t) : a ies _ ; : s

-and exhaustion of procedures (here

court martial) not so designed, and

in which such remedy is either

unavailable or merely ancillary.

. ~*~ .

- Such .a distinction, we submit, is not

only fundamentes to the doctrine of

exndstion but 3 is: ‘readily. applied |

on the facts now at bars *,

3 As recently noted by this.

court in McKart v. United States,

395 U.S. 185, 193 (1969), the.—

doctrine of exhaustion cannot be.

assessed ina given case without

"an understanding of ‘its purposes

and of the particular administrative :

scheme involved." ~ See also, @.gey ©

U. S- ex rel Brooks Vu clifford,

412 F.2a°1137, 1138 (4th Cir. 1969).

“Moreover, as spelled out by McKart-

and cases folléwing, the exhaustion

“requirement. reflects. concern for

preservation of | “the integrity arid

autonomy" of the. reviewing. agency

or procedure, |\ this principle in turn .

encompasses the interésts in allowing

creation of a full’ administrative

record and the exercise of expertise -

BAP the administrative reviewing.

authority, particularly’in mattérs.

calling for exercise of administrative |

discretion, in permitting administrative

bodies, where possible, to correct ‘their

own, errors and - in avoiding unnecessary |

judicial decisions where successful

prosecution of Administrative remedies

will supply the relief sought and

thereby moot the controversy. - sees

| E.Ger McKart Ve United States, suora,

(345 U.S. at 194-95, 0 |

viewed against this legal backdrop,

the distinction urged by petitioner

here is, we suggest, clear. In

_ asserting his right to discharge

te s a . as :

- ee? ° dee ; ‘ 31

E ; eee ; re » ¢ 7

| : a : ore *

. from the military as. a conscientious ~-

\ ‘ ; , objector, petitioner was requited to,

‘a and did, follow. the sexplici, requirements

of Army, Regulation 635- =20;: This included,

-as more fully described above, the

< iting of ® detailed application form,

~ the securing “ Vartous endorsements

thereon (including an opinion from a |

military Hearing Officer knowledgeable

in conscientious objector matters)

€ .

: >

to° ‘the milit&ry: authorities for revi

; a 10/ © F

and determination. Although petitioner

and the "submission of such ee

“now contests the correctness ofthe

Ary" s decision on the merits of. such

° —_————

application (indeed, the assertion

that its decision was without. basis | S

ai Y —

: oes

10/~ “Indeed petitioner even ‘took’ the |

‘further step of seeking review by the

ABCMR -= an administrative process still

required in the Ninth Circuit.under

Craycroft:v. Ferrall, 408 F.2d 587.

- (eh Cir. 1969) -- despife the

-Solicitor General's disavowal of the

necessity of such further exhaustion.

32 ° war ae _ Ne

coin fact forms. the” predicate for the

sae habeas corpus action out of _

which this petition arises), Parisi

“in ne) way disputes the prepriety Br.- ..

6 =

the administrative application 1

procedure. | |

Far. ai@ergnt, however, is a

‘claimed requirement. of exhausting 3

’

military, judicial retiedies through

‘ | iter

court. martial and mili appellate.

proce so ‘The function of a court - *

martial is is to consider charges Of

criminal violations of military |

law, and: either to convict. and

* Sentence the defendant or to

| conscientious objector applications,

or. to grant discharge to ‘those. whose ©

acquit him. Cotrt martials. are not -

convened to pass upon denial of~

applications have been wrongfully ~ *

denied.

33 a

Nevertheless, the government has” =<

“asserted and the courts below. assumed -

7 that. the court martial procéss provides

an "available" remedy to the éongcientious

objector applicant solely because a

serviceman may. perhaps ‘claim in de fense

to a, ‘charge’ of refusal to ‘obey orders |

(as Parisi did. here) that. the order

given ‘was unlawful because of wrongful -

denial of the discharge application.

But to suggest that this. consti tutes

an "adequate" military remedy is ‘untenable.

‘In the first place, although the

theoretical availability of such a

defense was Epoognized: in U. S. Ve Noyd,

. 18 U. S. C; M. + 483, 40 CMR 195 (1969),

no reported military decision, (includiag .

Noyd itself) has yet accepted such a a:

- defense, and subsequent decisions have -

questioned whether it could exist

under any. circumstances. See Lee v.

Pearson, 18 U.S.C.M.A: 545, 40 CMR 257

: ® ' : ¥ : : e . .

(1969); U.S.-y. Stewart, 20 U.S.C.M.A. |

: >a as.

272, 43 CMR 112 (1971). Moreover.

even. if. the defense ‘is: available; it is

entirely possible that the petitioner, _

eitHer at the trial or at the appellate

‘level: could be acquitted not on that -

.. basis but on some other ground c or .

defense., The effectiveness of

‘such a défense, is further diluted by ‘the:

fact that successful appeals“night_ not . a

‘resuit in an | acquittal but simply in a

12/

remand for a new trial. Finally, and

ll/ As noted Supra, in Parisi's court

Martial, the government urged and the

military judge held, “that the adminis-

trative denial. should not be reviewed

‘even on a limited "basis in fact" test.

applied by federal ‘district courts; he

went no further than to make a deter-

| mination that ‘the denial was not "arbitrary,

capricious, or an abuse of discretion."

o12/ In Parisi's military appeal for example,

there are a number of assignments of error

- that are unrelated to the conscientious

objection claim; thus the. conviction

‘might well be reversed and the case*

- retried without obtaining a ruling

on the conscientious objection claim. —

of mast significance, . even successful

assertion: of the conscientious objection -

o. 7 =

defense normally would entitle, the

defendant only. ‘to _acquittal = not.

“eth discharge being, sought ain ‘the habeas ,

. corpus proceedings. a = ae woes

ae | Notwitlistanding Fhege: obstacles, .

‘the government has further asserted

asd the Court below implied that ©

| military relief might be: available.

| if petitioner, would pursue yet a

oa further post conviction remedy : a ,

| | petition to the court of Military

spend for writ ‘of: habeas’ corpus.

"discharging Kiet from the Army.

: Such. a " remedy” pm which woutd

‘expand the required éxhaus tion even

beyond ‘the original scoge of the

> aes ae Bie bw?

™N

“ e

. ° J ats

‘ -e . *¢. o

eee. Beale

‘ : 2 . ?

aistricl™ court’ s “order -- Aas:

; _assertedly, hased on ‘ene power 7: ‘the os

Mé&litary Court under’ the All rite:

Act,: 20 U. §. ce 5 “1651(a) (2), ”

“@*

issie * ‘all writs necessary or es

appropriate | in aid of its jurisdiction.” :

Byt- the. * jurisdiction" of the Court

‘of ilitary Appeals Andis not extend

to considering: or. ‘granting servicemen 's

4 J

clains for discharge from the military

as con¥cientious objectors. R cher, et

that “jurisdiction” is limited by

_ the @fiform Court of Military Justice

to appeals from court: martial decisions

‘and ofdering that those decisions be.

* affirmed | or. that the court martial charges. e

“”

be retried or. dismissed. /10 U.S. Code ae

§ 867(e) 5” Page Pe _snyder, eel U. S.C. M.A.

480, . 40 eMR’ 12 (1969). “Togbe. sure, it

has been aes that in, connection

- with “court martial cases which are

"pr could come before the Court of Military

- a

‘4

e j

“| Appeals, the. All Writs Act. permits

i cat

that court to grant writs. of habeas

a corpus pertaining 5"to the nature of.

: re ‘defendant’ s confinement within the To

‘2

military pending appeal from court

amartial | conviction. See, Ce +

(1969), Levy" v. Resor, 17 UsS.CsM.A., |

1355 +37 CMR 399 (1967) . But ‘not even

oa 7 the Court of Military Appeals itself.

‘has ever suggested that such juris-

"diction includes the power to issue .

yo, . .

'.a writ .of habeas .corpus’ granting

non-punitive separation from the ~

1 a #ilitary asa conscientious objector. |

‘ , ¢ °

oO . : °

a a 13/ The’ instant case is sharply dis-

ig eo tinguishable from Noyd v. Bond, supra, .

aS ‘which held it proper to require resort

-_ . to the Court of Military Appeals to

“.. seék an emergency writ releasing

‘ petitioner .from incarceration (but not .

from. the military itself) pending appeal.

from court martial conviction -- but’

ps le, only after finding that the Court of.

4 Military Appeals in Levy v. Resor, supra,

.- had directly “held that it would, in

‘appropriate cases,.grant the relief

“Moreover, apart from the

gestion of available relief, the

. °

Court of Military Appeals has.

expressly held that it- will not review

the question of the lawfulness. of. the’

order which a serviceman has been

charged with disobeying. -+ including

"constitutional" objections thereto --

in any kind of “emergency writ" proceeding,

~ 13/ (continued#. petitioner now ~ yf

demands ‘from us." 395 U:S. at 695.

On the other hand, the government's _

dssertion that Parisi, should have —. x

beén required to seek military habeas . |

corpus discharging ham from the Army

is- directly analo to anotner.. . _

claim which the suprehe Court in Noy@ °: Lt

rejectec ~7'21.€.,, a § gestion that :

petitioner there "should have requested | |

the Air Force board of Review to release. : :.

him pending exhaustion of his rights of

appeal." As to this claim, the court —

stated in language apposite here: . g

. -“The Government, however, cites

¢ no decision of a Board of Review

~which asserts the power to grant

emergency interlocutory | relief

prior to the Board's consideration

of tne case on the merits; nor

are we referred to any statute

which unequivocally grants

this authority. In the absence

of any attempt of the Board of

pileuebbied Hol Nicer le,

‘ pitched jie ole

‘after ‘both trial by court martial and

13/ (continued)

- 39

; but will only do so “ine the normal

‘course of appellate review" -- i.e.,.

intermediate appellate proceedings

have been exhausted. Font v. Seaman, °

20 U.S.C.M.A. 387, 43 CMR-227° (1971).

Thus, even were such a remedy."

theoretically available, its pursuit

would require such a lengthy process

‘as to be ‘incompatible with the settled .

rule that a person need not exhaust: -

remedies which would involve unreasonable

13(a)/-

delay.

Indeed, the Court of Appeals in

this case did not @irectly, find or

hold that the Court of Military

Appeals did have the power to. grant

_ Review to’ ‘assert such: a power °

we do not believe that petitioner

May be properly required to exhaust -

a remedy which may\not exist.

(395 U.S. at 698, mil, emphasis adde:

13(a)/ See authorities cited at n.17, infri

“stated “we are not now prepared to

demonstrating that. the remedy it. aa |

‘would require be exhausted is

such a aischadge.. ‘Rather, it merely

“assume that, if it is determined tnat

Parisi' Ss application for discharge

“was denied wifhout basis in fact,

an error of such constitutional

magnitude cannot be rectified

by a reviewing -court within the

‘military system." (app. at 73- rayne Submit .

‘that ‘the. court below seriously erred *

in adopting Such an 1 approach.

Surely the party who seeks to —

impose an exhaustion remedy to prevent or

suspend: access to the federal court to

test deprivation of constitutional

rights should have the burden’-of

promptly ang ¢ffectively evar tebte- Yet

the Court of Appeals has lifted this

burden and instead Nosed on

- petitioner a. burden of conclusively

—

- ose pboscus ey mmo remmmremen icy: PPR er

____disproving the availabilityof a

remedy which is purely speculative.

bie

Thus, the relief potentially

Dobie JUS 014i

available from the military judicial

_system is obviously inadequate to

tO al a | ot Pete Me

a 4 secure the rei fer sought by petitioner

7 be > ~ = 7 ‘

a . &3 :

in the civil proceedings: and to which

DO el a Moe Dad

he is unquestionably entitled if his

? discharge application was denied without .- +

-basis in fact. ~ Moreover, and in any

_ event, the military judicial remedies

“have no relation whatever to the _

administrative processing of -claims - .

APE a ten 31 Sa be te I"

for conscientious objector discharge,

“which petitioner fully pursued ands wy

a which - formed the basis of his habeas

‘corpus | action now stayed by the .court

‘below. Indeed ;: requiring the»

expaus tion” of such military judicial

remedies ‘would serve none of the basic

purposes of administrative exhaustion ;

noted above. Army courts martial and

ELIT GAA CLOTS .

eppellate . review bodies neither. . °

possess. particular expertise. respecting

‘conscientious objector ‘claims nor are

they Prepared to assist in the . ar

—: 3

preparation of ‘a more “ecmplete record . 7

for judicial review. Compare, i g. ;

Noyd v. ‘Bond, Supra, at 686, note. 8s | ee =

"and U.S. ex rel Brooks ve fliftord, 8 e.

Supra, at ‘4140.- Noreover, even assuming

courts martial will consider defenses:

based on claims of conscientious . a a

objection, such consideration is not a |

likely source for "correction" of prior | . a it.

administrative error, not. does it | |

‘involve’ the exercise of discretion. a Sr

At the very most, a ‘Military Court

would scrutinize such a Previous _ a x

administrative decision only with

reference to the limited “basis in’ “fact”

test. exercised by the civilian ‘courts.

This. does not involve plenary review,

nor administrative discretion or

ne eee

. °

. | F

AS a TES SE: sal iced ades rai an a

expertise, but solely a question’

of law.

as well as an improper application

or ofthe: ‘traditional prin. inciples _ ;

“4 .

om Pes voici ante Seger wincbetny Z>s 2p AE iA Ri nets

14/° The decided cases which have oo. -

considered the question of “court ae |

martial exhaustion" to date, . |

- "time". element of some significance —

to the. question of whether exhaustion

is, or should nes required. Three |

. %

The. “aécision below thus &

represents an. unwarranted ‘extension

Pindar he Li. i

a 7

“ee a

governing exhaustion of. remedies. |

By contrast, the test which ‘petitionér _

has here proposed would, we Submit, : i

uphold the integrity of the military

administrative process while

leaving open the doors of the civil

courts to persons who have diligently.

pursued their applications for

discharge through the requisite

phases of administrative: processing

14/

within the service.

oe) a a ‘

including the decision below,

have apparently considered the -

B. The Court Below Should Not

. Have Deferred Review of Final

Military Administrative Action

to the Military Courts.

For similar reasons, de ference to.

military jurisdiction is not. properly’

- 14/ (continued) apparent categories have

evolved. The first @#tuation is presented

where no military criminal proceedings

are pending at either the time when

the habeas petition is filed or when .

the stay 1s sought. Thus, the .

exhaustion claim is presented, as it

were, as an absolute -- i.e., that the

petitioner is required to commit a crime

and face court martial charges before

being permitted civilian review. ;

This is the gen@érally discredited view (—

of Noyd v..McNamara, supra. Compare

Hammond v. Lenfest, supra.

bd = 6

. In the second instance, no

charges are pending at the time the

petition for habeas corpus is filed,

but, during its pendency, a military

crime is allegedly committed and a

' court martial is convened. This is

éssentially the situation before the

courts: here -- although the Ninth

Circuit apparently construed the.

_facts somewhat differently. See

“APP, at 69-70.

Finally, there is the situation

presented where the alleged crime is

committed and charges are preferred prior

to habeas. - COXpus » relief being sought.

required in the instant proceedings since.

14/ - (continued) - This is seemingly ~- . \

the most: common situation confronted

by the courts, being presented*in.

In Re Kelly, Cooper v. Barker,

Talford v. Seaman, Gann v. Wilson and

Crane v. Hedrick, all supra. As noted

In footnote 9, these cases have resulted

in conflicting holdings. ar

aa : Petitioner submits that the

‘ ‘: relative time when military charges

- are levelled should not materially

affect the exhaustion issue preserted

_,» here. The considerations we. advance

/ in text would appear to apply with

virtually equal strength whether the

: court martial charges are brought |

A *before habeas corpus is sought or while

: - such action is pending. In both cases,

as we discuss more fully in text

-hereafter, the pendency of military °

.criminal proceedings is largely

unrélated or random in relatign

to 'the serviceman's administrative

right to discharge -- and to review

of its denial for constitutional.

defect. But. if any relevance is

attached to the time distinction, ~~

“Parisi's situation presents a stronger |

case.for foregoing exhaustion than,

~ e@.g., Cooper or’ Kelly. :

A ie i MSN iA LIP te

46 7 a 7 -

the considerations generally supporting |

such deference, are heavily outweighed

_ hy the burdens that it would place upon

‘discharge applicants: such as petitioner.

‘Seer e.g. Hammond Vv. Lenfest, supra, ee

—_

‘at 714; Us s. ex rel Brooks Vv. clifford,

supra, at 1141., Like the requirement

‘of exhaustion generally (as above discussed) ,

deferral by federal courts to the military.

does pot. betoken a lack of subject matter

jurisdiction in the civil courts but |

rather, their reluctance to become, a be

\sndy involved in ‘military affairs.

Indeed,” even those cases which have ~ : ; 8

required exhaustion in related _ a

. contexts have based their holdings :

“nét on any lack of jurisdiction to -

| proceed but. upon the. ‘ground that ‘the

proper interplay between civilian :

and. mili tary: laws. requires such de fererice

: a ' ob : oat

) 2 15/" A ee

or abstention. Compare, 22921 >

m- .

In Re Kelly, supra; Craycroft. Veo

2 soe 4

reg 4

below at footnote e and. accompanying

text (appendix 64- -65, 85-84).

15/7. To the extent that the

reluctance of the federal-courts in ..

psuch: proceedings is based upon or is

- / analogous to the doctrine of voluntary

''/ “abstention” consideration should be

j) given to decisions such as’ Zwickler |

/ wv. Koota, 389°U.S. 241 ¢ 1967) - holding’

Such principle ‘applicable “only in |

narrowly limited: “special. circumstances '"

and. unquestionably not in cases, as - |

here,. where the issue presented is.

one of compliance with constitutional —

ee due process standards by the military.

. «/ ) Of similar import are'.cases, generally

° - instituted under 28 U.S.C. § 1983, ee

-which have refused to require technical .

-exhaustion in light’ of the important. .--

constitutional rights or liberties .

in issue. -Compare, e.g., McNeese |

v. Board of Education, 373 U.S. 668

“/. (1563 3; -Damico v. California, 389 ;

U.Si" 416 T1967) ; Rouge v. Sharfer, ‘%.

¢°

— -«-3392 U.S, 639. (196 ee also. et

- Dombrowski v. Pfister, 380 U.S. 479 - ies

| 7 1 ° : . ‘s ‘ en . .

/ “While petitioner again “does not

dispute the general principle of Limivea

-defefence to military procedures or

forums ,.— he would strenuous ly dispute

the application: of that principle in.

the, case now at. bar: where, as here,

dendemaineal claims of religious |

liberty and personal’ freedom are in

assue, ‘the federal judiciary should not

16/ The- ‘concept, sometinies referred to

as ‘comity, under which one judicial

‘system defers to another, is’ recognized >

“by the, ‘Military Courts to require,.

‘under /appropriate circumstances, that

military courts defer. to civilian

courts. In U. S. v.. Davidson, 30° CMR

‘- 921 (1961) ,- Tavelving ‘a soldier who ..

had’ béen charged by military and is

‘civilian authorities with having”

committed a crime, the military. court

held that it must defer to the.

civilian court. where the’ civilian -

court’ s jurisdiction first attached.

= | é os |

; voluntarily stay its hand pending -

the remote possibility that a military

> ae | court might at some point grant

petitioner the relief Sought (i.e.,

3 | discharge from the Army as a

“ | : conscientious objector) as an incident

to reviewing his military Criminal

conviction. . Such a requirement .would

» |. unduly burden fhe basic right of

.\ os

Ro access to the federal courts to test

; denial of constitutionally | guaranteed

N 7 due process. In such circumstances

: — i as the. Fourt Circuit aptly pointed out

: ; SS in rejecting an analoguous exhaustion

{ a“ cPagn in U.S. ex_rel_ Brooks v. clifford, -

nee enough to find that

> = relief might bes theoretically ‘available

‘

in some cases. and that a ‘modest. saving

in judicial time wagne be then effected.

Rather, where such ‘personal liberties.

are at stake, a court must: “consider.

\ ° . ¢

e 2.

whether this interest [in reducing

‘the jygicial caseload] outweigh [s] the’

‘purdens. which may be imposed

upon the petitioner by the. constant

and continuous delays in the

final determination of his claim."

‘Compare McKart v. U. S., Supra, at

197.

Thus viewed, the court in, Brooks

held. that proceedings before the

ABCMR were not prerequisite to

consideration of a conscientious

-* =

objector's petition. for habeas: corpus :

“If. petitioner’ Ss Claim: of

conscientious objection is.

well-founded (and we have |

decided: that.it is), petitioner,

and others similarly situated,

will. be required to litigate

administratively during a period

in which each hour of each day

tney: are recuired to- engage in

-conduct inimical to their |

_ gonsciences.or be subject to

- court martial, with the added

risk that in the ordinary a

‘course ofthe operations of

the military, they may be

~ ordered to a duty. even more .

offensive to them."

(412 F.2d at 1141)

~~ Ps

_—

ASR IGM AON ESHEETS

hid eee |

‘

ti ata

eR HE AE A Gop AE Pk Bs icine peennaeae a .

SG Bb aco il oy LAE IS Le A GAMBIT CLIC ie ATER IBC NE ORE OW a:

nde

5 Roe

Compare also, e.g., Hammond v;Lenfest,

“supra, at 714.

_ As’ we have discussed above, to

the extent that deference: to military

procedures is properly required in 7

-order to give the military ample

opportunity to govern itself or to

correct its own errors, that

opportunity was provided when

petitioner complied with the

application and review procedures

of A.R. - 635-20 -- and certainly

' when, he thereafter made application

for review, by the ABCMR.. When

petitioner's spenseatione wee

reviewed, and denied, by the

military, the issue af his rights

- to discharge became ripe for review

on habeas corpus since the =

administrative recor was then -

‘complete, those persons within

the military having supposed expertise

“Nbr

| oppértunity for correction of’

had been provided the opportunity

)

ta exercise it and there ‘had been.

error in the: sernatant AC: that Seine

‘there was no baeie for. requiring

petitioner to pursue the essentially

mnretared remedies ro} d the military

judicial processes prior to

obtaining civilian review of pis

administrative discharge claim.

The decisions of this Court in

,Gusik v. Schilder, 340 U.S. 128 (1950)

and Noyd. v. Bond, supra, do not:

_affect the result urged here. In

each of those cases --"as well |

as ait the: so-called “state habeas"

cases from which these decisions

derive -- the petitioners requested

the civilian courts to intervene

directly in pending military criminal

proceédings and sought relief in the

, a : 7 , .%

nature of "collateral attack" of the

Or PRIMER Et

Shas SAE Pet Micha Wa SE i832

i -

53 —

Pw * eae

“precise type which the military forum

‘was intended and able’ to provide.

Thus, in both Gusik and Noyd, the

habeas petitions filed related

solely to the military prosecutions

then in progress and did not give

rise to, or involve, any independent

claim for relief.

By contrast, the habeas. corpus

petition filed by Parisi relates.

request for discharge.as a conscientious

é. , ’

objector. He has not and does not.

a. ;

ask the federal courts for appellate

review of or collateral attack upon

‘the military prosecution against him,

or for supervision of the administration

of criminal justice in the military.

instead, having fully pursued the

administrative process, he. invokes |

the settled juris@iction of ‘the

district court to. decide whether the

solely to the denial of his administrative |

military denial-of his application -

for discharge as 4 conscientious

_ objector was without basis in fact _

and hence a deprivation of his

constitutional right: of due process.

If it was,’ he is entitled to a deter-

7 mination by the district court of

his right to. be discharged as a

conscientious -objector, and to the

enforcement of that right through

appropriate remedy in light of the

facts of the case. This jurisdiction.

of the federal courts “and right of the

petitioner is entirely independent 7

of the military criminal proceedings’

against him. The exercise of that

jurisdiction to. protect petitioner's

constitutional rights surely of fends

no proper concept of the rel tionship

- between the judiciary and the

C. . The. Decision Below Improperly

Denied Petitioner Access to

7 The Federal Courts and Infringes|

“a re -The Basic: Policies Underlying

yO, Exemption for Conscientious

Objection

Requiring exhaustion of military

; _* | ; eee ahha Mie, 40% .

: , Judicial remedies on principles of.

Am . < oy $0 Sele ne ATi

‘comity or abstention is particul@fiy_

inappropriate in light of the. effect

OC et eLearn

which such deterrai woulda nave upon. tue

availability of the federal courts and.

the habeas corpus remedy. itself to.

test unlawful denial of conscientious

objector discharge. Petitioner .

respectfully submits that the exhaustion

| iA anni AL ace OIL A lt a RRO 4

requirement imposed below would have

_the undeniable effect not simply of

‘delaying such relief, but of totally

* depriving servicemen whose discharge

claims have been wrongfully denied

‘of access to the federal courts during

virtually ‘the’ full period of their

nititary confinement.

Even granting the possibility that

military courts may have the power -

to grant discharge incident to review

of criminal charges, the modest |

saving in judicial time thus

_ -effected cannot realistically be.

A AL SAIC AS CLARE AK

deemed sufficient to balance the -

. detriment created by such —

requirement. Indeed, as. this Court

pointed out in McKart, supra,

where a peril to liberty is in issue.

there must be "a governmental issue

compelling enough to autweigh the

‘severe burden placed upon petitioner"

before. exhaustion will be compelled

(395 U.S. at°197).. Although McKart -

approached the exhaustion question

in the context of “an asserted defense

to criminal Prosecution for failure |

to submit to induction, we think it

clear that the Court spoke more 7

broadly in its’ malysis ‘of, the

éxhaustion requirement. -- a.view which

is. shared by subgequent cases Me “Je

57 7

Us. S. ex rel Brooks v. Clifford, supra) _

and the leading commentators. . compare

Davis, ADMINISTRATIVE LAW ‘TREATISE, |

1970 Supplement at’ 642- “644.

‘The value, of ‘civilian review

of military action, such as -that

challenged here, is no greater than.

‘the availability of reasonably prompt

access to the courts. Thus, the. mere

fact that habeas corpus relief is

theoretically available to petitioner

at sortie future time after his military

criminal proceedings -have. run their

lengthy course is of little value

to. petitioner, ‘or to: persons similarly

situate, particularly when weighed

against the consequences to their.

personal liberty and. conscience.

| Compare U.S. ex rel Brooks Vv. Clifford,

17/

Supra, at 1141 (quoted Supt at 50 )

17/. In Brooks, ‘the Court regatana

the speed of habeas corpus actions (as

compared to the average four-month

? Py .

. i ‘.

os wv’

ae)

5 ids SESAME ODN GPITS RIOT Fo Sto ,

RT POMS GE

wae

lt eeine

“Right to Reliet f

' Proceedings, 7;

58. :

In these circumstances, petitioner

‘would respect fully submit that the ”

unconscionable delavs which would:

- be. worked by requiring pursuit of

military judicial remedies would anduby ”

stifle pursuit of legal remedies without

compensating benefit and would thus

undermine the important purposes of

allowing-resort to the federal

17/ ABCMR proceedings) as an

. independent basis for refusing

. to require exhaustion in that

case, Indeed, undue, delay has

' traditionally ‘been a basis for

bypassing resdrt to (or terminating)

‘administrative proceedings. See,

,€.9., McNeese v. Board of Education, .

373 U.S. 668 (1963); Jetters _Ve

Whittley, 309 F.2d 621 (4th. Cir.

- Cf,. Note, Judicial Acceleration

of the Acministrative P. Process:- The _

rom Unduly Protracted...

Given not only. the history: of this

case but the indisputable length —

-of criminal trial and appel late

proceedings generally, it is hard

to dispute the , pertinence of

such principle here. a

’

59 cn

courts. to: redress: violations of

"fundamental constitutional rights.

Finally,” the lower court ' it

. decision is irreconcilable with the

_ nature and purposes a the exemption

from. military service which: is “accorded

". to conscientious objéctors. The: Yationale.

of that exemption is the congressional ,

=e administrative recognition that

_ "there is a higher loyalty then loyalty

to ‘this country, loyalty Iso God,”. that

" an intense * ‘moral dilemma" exists” for

" those who: believe that they owe an

oblig tion ‘superior to that, due ,the. state

of not participating in war in ee ae

and tha “liberty of conscience" is so

hee "that nothing short” of. self-..

preservation of the state should

warrant .its violation." U.S. Vv. Seeger,

tal

‘by D; O.D.° 1300.6 —_ congress - - :

has deemed it more essential to respect

< .

SS EE

' 380 U.S. 163, 170-172 (1965). As stated -

a man’s: religious beliefs than ‘to force -

“pie to serve in the armed forces. wee

“vet the- exhaustion requirement now’ +: _ o

“urged by the government would subvert

this -policy by imposing on conscientious

: ebjectors. the. very kind of moral dilemma

——. , ae. aK 4 Ped a Pw se

SA Refit NWR Do TS EA aa eee a a Tara

which the exemption for conscientious

objection was intended to prevent.

For. that. requirement would force

a Se it: baa eell

discharge applicants to’ face an

unconscionable choice between firmly:

ee WEN 83 SP eres

ee te

RARE Ee alia Ras

helg Seétcious beliefs ‘and the right

to have /such beliefs tested’ in. ‘civil.

courts of law on a petition Ape, see

corpus ° a

° This result is Sharply illustrated

by Parisi"s own case. While Parisi's -

ae,

application for discharge was pending’

and prior to its denial by the Secretary”

s of the Army, respect ‘for his. conscientious

—— was i cians protection by’ an Army

. 1" oJ

a ae sedi Deke snten compa eiacttel

ra ae

. ‘ ae

ee Start faci

Mid Me dl Bie with

with his, asserted beliefs pending:

\ ‘ .

. Riis ee

J Xs

7 / | \

requlation providing, in pertinent | a

part, an: individual who applies for

discharge based on coiscientious

objection will! be retained in his.

unit and assigned to duties providing

the minimum practicable conflict

. stat uf, , | . tere 8g

a final’ decision on his application."

N But as soon as Parisi's application .

had been denied by the piel

of, the Army. (notwithstanding its’

uniform endorsement by all who

_ interviewed Parisi). the Army . qa) ‘took:

“the position that under Craycroft Ve

Ferrall, Supra, petitioner must appeal.

to. the ABCMR before seeking relief on

Habeas corpus, @) withdrew the pro- -

- tective provisions of its regulations

: 18/° ALR. 635-20, ‘Par: éta) .

eure ic ioe

: and (3) issued orders transferring

‘/oetitioner to dutv . in Viet Nam

“and persisted in those entice: notwith-

| religious beliefs: oS _ ae

“standing pending petitions both to the

ABCMR and the federal district

court -= orders which, at least for

Parisi, would compel violation of his

| 49/ ..

—

—_—

19/ It is. true: that. a. court ‘as the

district court herein) may have disagreed

with a s@rviceman's claim that such an

order hag materially increased the

conflic¥ with his religious beliefs and

‘thus re sed to temporarily restrain

be questioned." _ U. Se at 184-85.

such orders. But that does not ‘detract

from the sincerity of the individual‘ Ss

has reminded’ us in’U. S. v. See

relat a Man's religious beliers in |

relation to military service involve

“an intensely personal » area" in which

one. individual's beliefs may be |

“incomprehensible to others," yet

the "validity of what he believes. cannot

Kite

- ° of . . ?

Keiink ee NSA Gawd OL at Bo PC RTT eo Mary DAR F

2 : ‘ \

jabba -_ ‘ Te ee

‘@ictates of his conscience or-his

Had Parisi been willing to accept

the Arny' s commands — in spite of their

violence to his conscientious scruples,

he would have ‘been permitted to pursue

his -petition for habeas ‘corpus. yet

because of the strength of his beliefs

he waS unwilling to compromise the

beliefs to conform with military

orders which surely had the effect

(if not the intent) of escalating the

"relationship between his military

. duties and combat activities. As

a. result, he is. now . indefinitely

denied civil relief which, would be

available ta those servicemen who are

willing to compromise rather than |

remain faithful to-their beliefs

as they see then.

Thus ironically the effect of the

+: =? ;

lower court's. decision in this case-

is to bar civilian habeas corpus

review to conscientious objectors whose

beliefs are riost stronaly and sincerelv

held. A military. denial of an .

anplication for discharae as a

conscientious ob yector micaht be ee

totally without basis in fact and thus

a clear violation of consti tuional

riaht. “yet under ‘the decision |

" below, “military commanders, simply

by issuina subseauent orders conf lictina

with. the claimant! Ss reliaious beliefs,’

can effectively or seriously impair’

his richt to apply to the federal

‘courts to test the validity of and

secure relief from the military

. Pa .

——— \V a)

refusal to recoanize his claim of

| : 20/0022

a - conscience. "oe

e >

~ — ‘Such a result strikes at the

heart of the exemotion from militarv

service based on religious belief.

It is, after all, axiomatic -that

for the .true and sincere conscientious

objector, orders. comellina performance of

x 7 - @

‘20/ ‘This is not to suqaest or presume,

bad faith on the vart of the military.

It is sirmlv. to affirm that the nower .

- Of militarv officials, whatever

their intentions, to. isSue orders and

_ initiate “court martial proceedinas

‘aaainst conscientious objector

anvlicants should not be allowed~™

to thwart such applicants’ rights of

ee to invoke the jurisdiction of the :

: federal court to test the wronafulness

of denial of ‘discharge applications. .

regular military duties -+ particularly

in a combat zone’ am create intense, indeed

incompatible ‘conflict with religious ee a

faith. It is ‘the. very essence of - 7 o.

“conscientious: objection to resolve

that conflict by remaining loyal to

“the | “obligation superior to that cue the

21/

State." U. S. ve Seeger, Supra.

21/ indeed the regulations providing

for discharge of in-service conscientious

objectors, D.O.D. 1300. 6, Par. VI, D. Zee

and A.R. 635-20, Par® 4. a(4) (b)e a

implicitly recognize that refusal to

obey military orders is an essential

part of the conscientious objection

‘which is a ground for discharge:

Both regulations. cite 38 U.S. Code

§ 3103's provision that "the discharge

of any’ {member of the armed forces}

on the ground that he was a.conscientious

_.objector“who refused. to perform milita . &

‘--duty or refused to wear the uniform or. 7

otherwise to comply with lawful orders

of competent milita authorities... oe

‘rights of such person

under laws, administered by the Veterans

Administfatioh ee ose (emphasis. supplied) -

and require that the’ conscientious

'<..jector applicant be’ advised of the

provisions of = naicnne aaa

. .

oben SE ANY a, |

eae P . ¥ os 0 ° . .

ASS Lait RROD Taian Kaa Reni BA 505 oS tain ALL

To hold that a conscientious obj tor

“who thus: refuses orders because of

his religious beliefs. thereby forfeits

prompt access to. the federal: courts to

test the constitutionality of

- the rejection of his discharge e

application is to deny the respect

€or religious beliefs and liberty

of conscience which underly the

conscientious objector exemption.

Such a result, we submit, is neither

required nor justified by the on

exhaustion principles so tenuously.

asserted in the case at bar.

CONCLUSION

For the reasons set forth

above, petitioner respectfully

requests this court to reverse ‘the

Fo AAT RIO OEE LTE

jecision of the Winth Circuit Court |

©.

of Appeals and to remand:this action

_ to the district court for proceedings

- On. the. merits.

‘Dated. at San Francisco, California;

this 14th day of July, 1971.

. Respectfully submitted,

GEORGE a; uncsei ” | ‘ae.

RICHARD L. GOFF {| “F ”

STEPHEN V. BOMSE ~ a

‘DOUGLAS M. SCHWAB~

, re Attorneys for petitioner

. | ,

ie é

&, :

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