# Petitioners Brief — Parisi v. Davidson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 34 ## Text f K _ 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 oe i ‘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 , hd ‘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 ~ XN \ ' \, \ gonscientious objectors either to - 7 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: G \ * comply with orders: which violate their’: "6 1-2 religious scruples or be deprived _ Of access to: federal courts to | ‘ secure relief from’infringement of ‘ Constitutional rights. “Such a result. A " 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. af . The opinion of the Ninth Circuit % ° \ Court of Appeals is reported. at ” 435. F.2d 299 (9th Cir. 1970). The 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 ° . 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 e - 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 *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. a) 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 4/ 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 10 application was processed in . . accordance with the requirements of A. R. 635-20 and was submitted to. the uss. i s reviewing officials s-- 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 s 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. ~ 12 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 © i " 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 - ~ ze e 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. we 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 7 , . “ . ° pbb fbhe Chiat coris 2g ag ‘ 2 Sem wh Guat vt a : . Sasa RH Peto iides EE te cistedhin alien cot : t ™ . . ° ad . sinh eae th isis ALAR OAR abl ES (aa NOE ale Sait Ditin po WO OO Ly tee i ls | 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. ae 4 AY — af rey “stated in Parisi’ S affidavit CY 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. 2 . (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. a. ©On March 2, “p70 -- before the - military court-had Been. convened to. hear the. criminal charges: against Parisi © ee _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. os =, 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: I, , , . au Hi : re ed istic . - tn Rhine ——_ MR SEED EES NEEL AS LAO TAELL 0icrE A “\ 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 4 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: a denied him access to. federal _courtes ‘and has infringed. the basic Kelicies . °o- . “ & *. : 2 : - : . es . Ww. ; . . e : 4 e ‘ \ . - e . / > “4 s ry \ 2 - \ - ‘ e Dare 3 - . Yeats . ey wea ‘ a3. 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 = 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 ‘ an s : ‘ > ' 24 ; @ BS eis A i cone ; ss : : 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 af . “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 ~ A) -* 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 4 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 , ° 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 e 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 eo 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 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” =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. on : 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. 2. * 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 4 "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 38 “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. 8 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 4 . “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, oe 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 od 41 ____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 © OCEAN I NE HO PANERA AA RB neat A e _ 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 s* remedies ‘would serve none of the basic purposes of administrative exhaustion ; noted above. Army courts martial and J ELIT GAA CLOTS . i) A2 eppellate . review bodies neither. . ° possess. particular expertise. respecting ‘conscientious objector ‘claims nor are co 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 a 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 a 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 oe 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 | . % . a The. “aécision below thus & cS 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 - 44 B. The Court Below Should Not . Have Deferred Review of Final Military Administrative Action to the Military Courts. ys 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 ne Ferrall. supra, and see the opinion © 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, ‘%. ¢° j a % : z 4 $ Pe 5 f — -«-3392 U.S, 639. (196 ee also. et - Dombrowski v. Pfister, 380 U.S. 479 - ies | 7 1 ° : . ‘s ‘ en . . 9 / “While petitioner again “does not & dispute the general principle of Limivea -defefence to military procedures or forums ,.— he would strenuous ly dispute i 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 e 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 5 % ad £ 4 e 4 RY ‘ in some cases. and that a ‘modest. saving A in judicial time wagne be then effected. Rather, where such ‘personal liberties. are at stake, a court must: “consider. \ ° . ¢ e 2. 50 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 -* = g 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 51 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’ 52 had been provided the opportunity ) ta exercise it and there ‘had been. a 4 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 ~ » $ 4 ¢ ~ — ‘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. . a % 66 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 67 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 4 e Fo AAT RIO OEE LTE 68 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 &, : _ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0323%3A4. Public record. Not legal advice.