Daigle v. Warner, Civ. No. 72-3603.

• Decision Date: 31 August 1972
• Docket Number: Civ. No. 72-3603.
• Citation: 348 F. Supp. 1074
• Parties: Robert M. DAIGLE, and Terry Lee Crosby, Individually and on behalf of all persons similarly situated, Petitioners, and Jack Nazimek et al., Petitioners-Intervenors, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents.
• Court: U.S. District Court — District of Hawaii

348 F. Supp. 1074

Robert M. DAIGLE, and Terry Lee Crosby, Individually and on behalf of all persons similarly situated, Petitioners, and Jack Nazimek et al., Petitioners-Intervenors, v. Honorable John E. WARNER, Individually and in his capacity as Secretary of the Navy, et al., Respondents.

Civ. No. 72-3603.

United States District Court, D. Hawaii.

August 31, 1972.

Stanley E. Levin, Robert J. LeClair, Wesley Lau, Legal Aid Society, Waianae, Hawaii, for petitioners and petitioners-intervenors.

John S. Edmunds, Mattoch, Edmunds, Kemper & Brown, Honolulu, Hawaii, for American Civil Liberties Union.

Robert K. Fukuda, U. S. Atty., William J. Eggers, III, Asst. U. S. Atty., Honolulu, Hawaii, LCDR Robert T. Gustafson, Ad Referendum, Naval Law Center, Fourteenth Naval District, Pearl Harbor, Hawaii, for respondents.

MEMORANDUM DECISION

PENCE, Chief Judge.

The central issue in this case is whether the recent Supreme Court decision of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 applies to summary courts-martial proceedings conducted under 10 U.S.C. § 820.

It does.

Statement of Facts

Both first plaintiffs, Daigle and Crosby, were members of the U. S. Marine Corps stationed in Hawaii at the Kaneohe Marine Base. On June 28, 1972, Daigle appeared before a summary court-martial for alleged failure to obey a lawful order and possessing two I.D. cards. At that time, Daigle pled guilty to both charges and was sentenced to 20 days "at hard labor", i. e., imprisonment. On July 6, 1972, Crosby appeared at a summary court-martial to answer charges involving failure to obey a lawful order, failure to be at an appointed duty station and breaking a restriction. He pled guilty only to the first charge, but was acquitted of the remaining allegations. He was sentenced to 30 days Marine imprisonment.

On July 14, 1972, plaintiffs petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. They further requested that a class action be established (Rule 23, F.R.Civ.P.) and also sought a temporary restraining order and preliminary injunction (Rule 65(b) and (c), F.R.Civ.P.), prohibiting the defendants from conducting any summary courts-martial without affording Marine servicemen the Argersinger protections. Intermingled with the above prayers for relief was plaintiffs' request that this court declare 10 U.S.C. § 820 unconstitutional unless the Argersinger protections were applied to it (pursuant to 28 U.S.C. §§ 2201, 2202).¹ This court issued an Order to Show Cause, with hearing set for July 20, 1972.

At that hearing, after testimony by both plaintiffs,² various officers of the Marine Corps testified concerning both the particular summary courts-martial here in issue as well as the general policy of the Navy and Marine Corps, vis-à-vis this type of proceedings. This court then held: (1) The protections of Argersinger apply to summary courts-martial proceedings. (2) Plaintiff Daigle had been offered counsel at his court-martial and had knowingly and voluntarily waived it. (3) Plaintiff Crosby had not been offered counsel and had not validly waived his rights. Crosby's petition for a writ of habeas corpus was granted. (4) A class action determination was then inapproriate. A temporary restraining order, preliminary injunction and declaratory judgment were also denied. The court suggested that the military authorities "read the . . writing on the wall" and begin to provide attorneys or some legally reasonable substitute in implementing summary courts-martial.

On July 24, plaintiffs moved this court to reopen and reconsider their motion for a class action. This motion was based on an affidavit of Captain Willcox, Judge Advocate, U. S. M. C., which indicated that the military authorities at both Kaneohe and Pearl Harbor were not only refusing to provide counsel in post-July 20 summary courts-martial, but also denied the Captain access to those prisoners who had already been convicted post Argersinger but without its protections, who might be unaware of this court's July 20 ruling.

On July 27, a motion to intervene under Rule 24(a)(2), F.R.Civ.P., was filed by two sailors, Michael E. Chadwick and Warren T. Robinson.³ Accompanying this motion was an affidavit of their attorney, Stanley Levin (who also represented Daigle and Crosby), stating that during the week of July 24-28, visiting Judge Peckham had suggested that he go to Pearl Harbor to interview various prisoners who he (Levin) believed were being incarcerated pursuant to summary courts-martial proceedings conducted in violation of Argersinger.⁴ Upon interview, Chadwick informed Levin that he had been charged on July 7, 1972, for assault on a fellow Marine; although he had previously expressed a desire to have an attorney at his court-martial, he could not afford one himself and was never offered one; at his court-martial he pled guilty and, among other punishments, was sentenced to 30 days imprisonment. Although varying in factual detail, Robinson's story as told to Levin was essentially the same, i. e., he wanted counsel at his court-martial, but could not afford it himself and one was never provided nor offered to him.

On July 28, defendants moved (1) for a new hearing under Rule 59(a)(2), F.R. Civ.P., and (2) to set aside the judgment and order of July 20 for want of personal service upon certain named defendants under Rule 60(b)(4), F.R.Civ.P.

On July 31, another motion to intervene and proceed in forma pauperis was filed by two other Marines, Jack Nazimek and Robert Johnson. Again an affidavit by Attorney Levin was included, stating in substance that both Nazimek and Johnson (1) were charged with offenses after June 12; (2) they had voiced their desires for counsel prior to their courts-martial; (3) they could not afford counsel themselves; (4) at the time of their summary courts-martial they were neither offered nor provided with counsel; and (5) they pled guilty and each was sentenced to some term of imprisonment. The affidavit further stated that both had told Attorney Levin that this court's earlier decision of July 20 was not being recognized by the military authorities.⁵

On August 3, a hearing was held to decide all these post-July 20 matters. After this court denied the government's motions and granted the two motions to intervene and proceed in forma pauperis, the defendants raised a question as to whether the proper military authorities had been served, such as would permit the court to consider the requested writs of habeas corpus. Although there was a profusion of military personnel of officer rank in the courtroom, none would admit he was authorized to represent the named parties defendant. Even the two judge advocates assisting the U. S. Attorney were unable to identify whom they represented. Because there was some genuine question concerning proper service, this court confined itself to the case of intervenor Robinson, the only one of the intervenors who was still incarcerated. The government stipulated that Robinson had not been provided with nor offered counsel at his summary court-martial and that his custodian was present in the courtroom. This court then granted the writ.

At an in-chambers session the court requested that the parties themselves try to work out the problems of service of process. The court also requested that the two judge advocates determine what policy position the Department of the Navy was going to take in these cases and whether the court's July 20 ruling would be followed voluntarily by the Navy and Marine Corps. A hearing was set for August 17 in order to assure that proper service might be accomplished and to allow the Navy further time to determine its position. In the meantime, plaintiffs' motion for reconsideration of the court's denial of a class action was denied without prejudice.

At the August 17 hearing, the government moved to dismiss for lack of jurisdiction and improper service of process. The government's motions were denied. After hearing evidence and evaluating all that had occurred since July 20, this court then granted plaintiffs' renewed motion for a class action pursuant to 23 (b)(3) and (c). The class was defined as all those persons who are members of the U. S. Navy and Marine Corps and who (1) were or are now or will be required after June 12, 1972 to stand trial by summary courts-martial held within this federal district; (2) were not or are not advised of their right to assistance of counsel during their summary courts-martial proceedings, and if indigent, advised that counsel must be provided without cost; and (3) had not made a knowing and intelligent waiver. Then pursuant to 28 U.S.C. § 1361, this court ordered defendants Warner, Zumwalt and Cushman (they having been served properly) and their agents to issue orders to insure that no summary courts-martial proceedings be commenced by the Navy or Marine Corps within this district unless the requirements of Argersinger are satisfied.⁶

By that order then, specifically, these three defendants must order that no commanding officer or officer-in-charge of a Navy or Marine Corps command or activity within this district shall refer any charge to a summary court-martial without an instruction that confinement at hard labor may not be ordered thereunder unless the accused is (1) advised of his right to counsel, (2) afforded an opportunity for assistance of counsel both prior to and during the summary court-martial proceeding, (3) advised that if indigent, counsel must be provided without cost, and (4) after the above three requirements are satisfied, the accused may make a knowing and intelligent waiver of his right to counsel. While retaining jurisdiction, this court, pursuant to Rule 23(d), F.R.Civ.P., ordered the three respondents to assure that the members of plaintiffs' class be informed of their rights. Finally, the findings of guilt and sentences for Nazimek, Johnson, Chadwick and Robinson were...