Ex parte Duncan

• Decision Date: 12 February 1945
• Docket Number: 10774.,No. 10763,10763
• Citation: 146 F.2d 576
• Parties: Ex parte DUNCAN. KAHANAMOKU, Sheriff, v. DUNCAN. Ex parte WHITE. STEER, Provost Marshal, Central Pacific Area, v. WHITE.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F.2d 576 (1944)

Ex parte DUNCAN.

KAHANAMOKU, Sheriff, v. DUNCAN. Ex parte WHITE.

STEER, Provost Marshal, Central Pacific Area, v. WHITE.

Nos. 10763, 10774.

Circuit Court of Appeals, Ninth Circuit.

November 1, 1944.

Writ of Certiorari Granted February 12, 1945.

Edward J. Ennis, Sp. Asst. to the Atty. Gen., and G. D. Crozier, U. S. Atty., of Honolulu, Hawaii (Myron C. Cramer, Major

General, The Judge Advocate General, U. S. Army, and William J. Hughes, Jr., Lt. Colonel, Judge Advocate General's Dept., both of Washington, D. C. and Eugene V. Slattery, Lt. Colonel, Judge Advocate General's Dept. U. S. Army, and Edward A. Towse, Asst. U. S. Atty., both of Honolulu, Hawaii, John L. Burling, Nanette Dembitz, and Elmer Million, Attys., War Division, Dept. of Justice, all of Washington, D. C., of counsel), for appellants.

Garner Anthony of Honolulu, Hawaii (Robertson, Castle & Anthony, of Honolulu, Hawaii, of counsel), for appellee Duncan.

Fred Patterson and E. J. Botts, both of Honolulu, Hawaii, and Herbert Chamberlin of San Francisco, Cal., for appellee White.

Marguerite K. Ashford, J. Russell Cades, Phil Cass, William H. Heen, Marshall B. Henshaw, Harry R. Hewitt, Livingston Jenks, Ernest K. Kai, Herbert K. H. Lee, Charles F. Parsons, D. Hebden Porteus, E. White Sutton, and Heaton L. Wrenn, all of Honolulu, Hawaii, for Bar Association of Hawaii, amicus curiae.

Wayne M. Collins, of San Francisco, Cal. (Osmond K. Fraenkel and Arthur Garfield Hays, both of New York City, and A. L. Wirin, of Los Angeles, Cal., of counsel), for American Civil Liberties Union, amicus curiae.

Before WILBUR, GARRECHT, DENMAN, MATHEWS, STEPHENS, and HEALY, Circuit Judges.

Writ of Certiorari Granted February 12, 1945. See 65 S.Ct. 677.

HEALY, Circuit Judge.

The appeal in each of these cases is from a judgment of the United States District Court for the Territory of Hawaii sustaining a petition for a writ of habeas corpus and ordering the discharge of the petitioner.

In case No. 10,774 the essential facts are as follows: Appellee Harry E. White is a citizen of the United States and of the Territory of Hawaii. On August 20, 1942, while engaged in Honolulu as a civilian in a brokerage and investment business, he was arrested and brought before Major Murrell, judge of the provost court, who informed him that he was to be tried before that court on a charge of embezzlement growing out of the conduct of his business, in violation of Chapter 1831, Revised Laws of Hawaii, 1935. He was on August 25, 1942, tried by the provost court upon that charge, without a jury, was convicted and sentenced to imprisonment for a term of five years. The sentence imposed was within the limits prescribed by the territorial statute.

On April 14, 1944, White filed his petition in the court below for release on habeas corpus, asserting lack of jurisdiction in the provost court and claiming that he had been deprived of the rights guaranteed by the 5th and 6th Amendments. The court issued a show cause order directed to the warden of Oahu Prison. It was later ordered, on stipulation, that Colonel Steer, Provost Marshal of the Central Pacific Area, and then custodian of the petitioner, be substituted as respondent in lieu of the warden. The Provost Marshal filed an answer in which he admitted the facts as stated above but denied that the trial and imprisonment were unlawful. The answer contained affirmative matter, alleging among other things, the suspension of the privilege of the writ, the declaration of martial law, and the existence as of August 1942, of an emergency necessitating the trial of civilians by a provost court as provided in the then subsisting orders of the commanding general; and it was asserted that the offense of which the petitioner had been convicted was not cognizable in the civilian courts because of the terms of the Governor's proclamation of December 7, 1941.

The petitioner, by traverse, put in issue the allegations of the answer. Thereupon the writ was issued, the petitioner was produced and evidence taken. It was stipulated that the return to the order to show cause be considered the return to the writ of habeas corpus, and that the traverse to the return to the show cause order be considered the traverse to the return to the writ. Being of opinion that the provost court was without lawful authority to try the charge, the court ordered petitioner's release from custody.

The facts in case No. 10,763 are these: Appellee Lloyd C. Duncan is a citizen of the United States living temporarily in the Territory of Hawaii, where he was in the civilian employ of the Navy Department at Pearl Harbor. On February 24, 1944, while within the limits of the naval reservation where he was employed, he assaulted and struck with his fists two marine corps sentries on duty at the main gate. Later he was summoned to appear before the provost court on the charge of assault with intent to obstruct the sentries in the lawful performance of their official duties, contrary to paragraph 8.01 of General Orders No. 2 of the Military Governor, dated March 10, 1943. He was tried by the provost court without a jury, was found guilty of the charge and was sentenced to serve a jail term of six months. He was then delivered into the custody of appellant, the sheriff of the city and county of Honolulu, and was confined by the latter in the Honolulu jail. Petition for the writ was filed March 14, 1944, and an order to show cause served on appellant the same day.

The sheriff made a return admitting the fact of the charge and conviction. The return alleged, in substance, that the public safety has at all times since December 7, 1941, required the continued existence of martial law and the suspension of the writ as proclaimed by the Governor of the Territory; that the General Orders referred to, respecting the establishment and authority of provost courts, were necessary for the successful prosecution of the war; and that the military action of punishing persons assaulting sentries engaged in the performance of their duty, with intent to hinder such performance, was not unreasonable or arbitrary.

As in the White case, the allegations of the return were formally put in issue by traverse. After hearing argument the court issued the writ and the sheriff produced the petitioner. It was stipulated that the government's return to the order to show cause should stand as the return to the writ. There followed a trial at which testimony was taken bearing upon the truth of the situation as developed in the several pleadings. At its conclusion the court entered judgment discharging the petitioner from custody. The grounds given for the discharge were that martial law did not prevail in the Territory and that the provost court was without authority to try the petitioner.

As will later appear, there are substantial differences between these cases; but underlying each are the same fundamental questions namely, (1) whether the court was in error in holding that the petitioner was unlawfully imprisoned, and (2) whether, in any event, the court was foreclosed from inquiring into the legality of the detention because of the suspension of the privilege of the writ. The points are discussed in the briefs in the order named. However, before considering the first point it will be convenient at the outset briefly to notice the second.

1. Availability of the writ. In Ex parte Zimmerman, 132 F.2d 442, we held that the privilege of the writ of habeas corpus was lawfully suspended in the Territory by the Governor's proclamation of December 7, 1941, issued with approval of the President. It was thought by the trial court that the suspension was subsequently terminated by a proclamation of the Governor issued with Presidential approval on February 8, 1943.

We do not agree. Without going into the matter in detail it is for present purposes enough to say that the later proclamation was not intended to terminate the suspension and did not have that effect. However, in view of the conclusion we have reached in respect of the legality of the imprisonment in each case, it is unnecessary to consider whether the emergency existing in the Territory as of the time of the filing of the petitions was such as to warrant the then suspension of the writ. Nor, for the same reason, is it essential to inquire into the applicability of the suspension to these particular cases. Compare Ex parte Quirin, 317 U.S. 1, 24, 25, 63 S.Ct. 2, 87 L.Ed. 3. For the purpose of the decision we assume, without deciding, that the court was not disabled from entertaining the petitions.

2. Legality of the imprisonment. The Governor's proclamation of December 7, 1941, in addition to suspending the writ, placed the Territory under martial law. The latter step, no less than the first, was authorized by the express language of § 67 of the Hawaiian Organic Act as is developed more at length in Ex parte Zimmerman, supra.¹ The step, as there said, had the immediate approval of the President.

By the terms of the proclamation Governor Poindexter called upon the commanding general, "during the present emergency and until the danger of invasion is removed, to exercise all the powers normally exercised by me as Governor." He further authorized the commanding general, "and those subordinate military personnel to whom he may delegate such authority, during the present emergency and until the danger of invasion is removed, to exercise the powers normally exercised by judicial officers and employees of this Territory and of the counties and cities thereon, and such other and further powers as the emergency may require." The people of the Territory were admonished to obey the proclamation and such rules and orders as the commanding general might issue. Responding to the proclamation, General Short at once assumed the post and title of Military Governor, and his successor, General Emmons, did likewise.

Invocation of the military power...