Application of Brux

• Decision Date: 01 May 1963
• Docket Number: No. 375.,375.
• Citation: 216 F. Supp. 956
• Parties: Application of Mary E. BRUX, For a Writ of Habeas Corpus.
• Court: U.S. District Court — District of Hawaii

216 F. Supp. 956

Application of Mary E. BRUX, For a Writ of Habeas Corpus.

No. 375.

United States District Court D. Hawaii.

May 1, 1963.

Louis B. Blissard, Honolulu, Hawaii, for petitioner.

Herman T. F. Lum, U. S. Atty., for Dist. of Hawaii, by T. S. Goo, Asst. U. S. Atty., for Brigadier General Carl A. Youngdale.

TAVARES, District Judge.

Kurt W. Brux, a Corporal in the United States Marine Corps, has been held in confinement at Kaneohe Marine Corps Air Station, in this District, since September 6, 1962, on a charge of first degree murder. Such custody is in Brigadier General Carl A. Youngdale, United States Marine Corps, Commanding General, First Marine Brigade, Kaneohe Marine Corps Air Station.

On April 4, 1963, Mary E. Brux, the mother of said Kurt W. Brux, and the petitioner herein, filed in the Circuit Court of the First Circuit, State of Hawaii, in the Matter of the Guardianship of Kurt W. Brux, an Incompetent Person, P. No. 24133, with the approval of Louis B. Blissard, Brux's attorney in the criminal matter, a Petition for Appointment of Guardian and for Special Allowances, pursuant to Revised Laws of Hawaii, 1955, § 331-1 et seq., as amended, alleging that said Brux has $322.00 accumulated wages at said Marine Corps Air Station and monthly wages accruing at $70.07 per month and that he is incompetent to manage his financial affairs. It is prayed that the Court make an order for the giving of notice of the hearing of said petition, that the Court find that said Brux is incompetent to handle his own financial affairs, that the Court appoint a Guardian to handle his affairs and that said Guardian be authorized to pay for psychiatric and legal fees when incurred by him.

Revised Laws of Hawaii, 1955, as amended, § 338-10, requires that the judge cause notice of the hearing to be given to the alleged incompetent person not less than fourteen days before the date set for such hearing. The hearing on said petition was set for April 25, 1963. The judge of said Court directed that notice of the date set for said hearing be served on said Brux.

On April 9, 1963, an officer of said Court endeavored to serve such notice on said Brux but he was prevented from doing so by said General Youngdale through Colonel Jules M. Rouse of his command.

On April 22, 1963, said Mary E. Brux filed in this Court an application for a writ of habeas corpus, alleging such restraint of access to the civil Courts of said Brux was in violation of Section 1310, Manual of the Judge Advocate General, 32 CFR 720.8 and that such application of Section 1310 and the section itself are violations of the constitutional right of said Brux to access to the civil Courts.

General Youngdale appeared in response to an Order to Show Cause issued by this Court and a hearing was had thereon. At the hearing, General Youngdale filed a Motion to dismiss the application herein on the grounds that it fails to state a claim upon which relief can be granted and that this Court lacks jurisdiction over the subject matter thereof.

28 United States Code, § 2241(c), provides as follows:

"The writ of habeas corpus shall not extend to a prisoner unless—

"(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof * * *."

Brux is a prisoner in custody under the authority of the United States and is committed for trial before a Court thereof.

There is no doubt that it is a deprivation of a person's constitutional rights to prevent his access to the civil Courts.¹ Access of Brux to the Court of the State of Hawaii for his benefit is sought by his mother, with the approval of Louis B. Blissard, who is his attorney in the criminal matter and who is his mother's attorney in the within matter.

Respondent contends that the writ of habeas corpus does not lie if the detention is lawful and that, inasmuch as it is not contended herein that the detention of Brux for trial on the criminal charge is unlawful, the writ cannot issue. As applied to the peculiar facts of this case, this Court believes that the reasoning of Coffin v. Reichard (1944), 6th Cir., 143 F.2d 443, 155 A.L.R. 143, is more appropriate and sound than that of other cases cited contra. In that case, at page 445, the Court said:

"Any unlawful restraint of personal liberty may be inquired into on habeas corpus. In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. This rule applies although a person is in lawful custody. His conviction and incarceration deprive him only of such liberties as the law has ordained he shall suffer for his transgressions.

"The Government has the absolute right to hold prisoners for offenses against it but it also has the correlative duty to protect them against assault or injury from any quarter while so held. A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429.

"A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion.

"When a man possesses a substantial right, the courts will be diligent in finding a way to protect it. The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights."²

Respondent further contends that the writ of habeas corpus can issue only when it will result in the complete release of the prisoner. There are two answers to this contention. First, in Coffin v. Reichard, supra, 143 F.2d at page 445, the Court said:

"28 U.S.C.A. § 461 authorizes the court in habeas corpus proceedings to dispose of the party `as law and justice require.' The judge is not limited to a simple remand or discharge of the prisoner, but he may remand with directions that the prisoner's retained civil rights be respected, or the court may order the prisoner placed in the custody of the Attorney General of the United States for transfer to some other institution."³

Second, the Court may treat the application for a writ of habeas corpus as an application or motion for any type of relief warranted by the evidence.⁴

Colonel Rouse testified that he is the Staff Legal Officer under the command of the respondent, that he refused to...