In re Yokoyama

• Decision Date: 28 January 1959
• Docket Number: No. 81-59.,81-59.
• Citation: 170 F. Supp. 467
• Court: U.S. District Court — Southern District of California
• Parties: In the Matter of William K. YOKOYAMA, for Writ of Habeas Corpus.

170 F. Supp. 467

In the Matter of William K. YOKOYAMA, for Writ of Habeas Corpus.

No. 81-59.

United States District Court S. D. California, Central Division.

January 28, 1959.

Norbert Baumgarten, Lompoc, Cal., for petitioner.

Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Jordan A. Dreifus, Asst. U. S. Attys., Los Angeles, Cal., for respondent.

YANKWICH, Chief Judge.

The facts in the case are simple. The petitioner is held at the Lompoc Barracks, Santa Barbara County, California, within the jurisdiction of this court, under the judgment of conviction and sentence imposed on July 26, 1958 by a court-martial, convened at Camp Zana, Honshu, Japan. At the time, he was a civilian employee of the Armed Forces of the United States. He was charged with appropriating eight military payment certificates of the value of $50 each, was found guilty and ordered committed for four years and to pay a fine of $3,000. The sentence was later reduced by the reviewing authorities to two years and $3,000.

The proceedings in the military court have not become final. But I am of the view that, when a prisoner convicted by court-martial attacks the military tribunal's jurisdiction, not only over the crime, but over him, no question can be raised as to whether he has exhausted his remedies through military channels. This, for the reason that he challenges the very basis of the court's jurisdiction. And jurisdiction is the power to hear and determine. It is formed from two Latin words — juris and dictio — meaning to pronounce the law.

There is a phrase in an old California case which very effectively states that a judgment rendered by a court without jurisdiction is

"a dead limb upon the judicial tree, which should be lopped off if the power so to do exists."¹

And so the problem here is whether the court which convicted the petitioner had jurisdiction over him.

I Jurisdiction

The petitioner's contention that no such jurisdiction exists is grounded chiefly upon an opinion of the United States Court of Appeals for the District of Columbia.² Much as I respect the members of that court, I am forced to disagree with the conclusion reached by the majority, a conclusion which the Court of Appeals for the Third Circuit³ and some District Judges⁴ have since declined to follow:

Before stating my grounds, I advert to the fact that the recent trend of the decisions of the Supreme Court of the United States is to limit strictly the power of the military in time of peace.⁵ A decision rendered on January 12, 1959,⁶ is illustrative. In this, the Court follows an approach traceable to English tradition which was distrustful of the military except within their strict domain. While the case just referred to does not help solve the problem before us, it exemplifies the strictness with which the power of the military will be interpreted. The case involved a soldier who, while in France, was convicted by a court-martial, discharged dishonorably and sentenced to prison for twenty years. He was serving a sentence in the Army Disciplinary Barracks at Camp Cook, California, when he was convicted by court-martial of the crime of conspiracy to commit murder. The offense occurred on June 10, 1949. He was prosecuted under the provisions of Article of War 92, which provided that no person should be tried by court-martial for murder or rape

"committed within the geographical limits of the States of the Union and the District of Columbia in time of peace."⁷

And the Court held that the soldier, while in prison in military barracks, could not, in peace time, be prosecuted by court-martial for conspiracy to murder. Mr. Justice Douglas 79 S.Ct. 281, in writing the opinion for the majority of the Court, stated that "we were at peace" at the time of the commission of the offense, although no treaty of peace had been entered into. Giving a broad interpretation of the term "peace-time", he disregards the fact that the President's proclamation declaring a state of peace was not issued until a later date. He concludes that to all intents and purposes, we were at peace since "the shooting war" had terminated:

"Whatever may have been the plan of a later Congress in continuing some controls long after hostilities ceased, we cannot readily assume that the earlier Congress used `in time of peace' in Article 92 to deny soldiers or civilians the benefit of jury trials in capital offenses four years after all hostilities had ceased. To hold otherwise would be to make substantial rights turn on a fiction. We will not presume that Congress used the words `in time of peace' in that sense. The meaning attributed to them is at war with common sense, destructive of civil rights, and unnecessary for realization of the balanced scheme promulgated by Articles of War. We hold that June 10, 1949, was `in time of peace' as those words were used in Article 92."⁸

Mr. Justice Harlan and Mr. Justice Clark dissented. Mr. Justice Harlan's dissent is very interesting for it shows the interpretation that he places upon Reid v. Covert,⁹ to be discussed further on in the opinion:

"The Court does not reach petitioner's contention that he could not constitutionally be tried by court-martial because he was not a member of the armed forces at the time this offense was committed. It is sufficient to say that this contention is also squarely foreclosed by Kahn v. Anderson, supra 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469, and that in my opinion nothing in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, or in Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L.Ed.2d 1148, impairs the authority of Kahn on this score."¹⁰

II The Problem before Us

We come now to the main problem confronting us, which is whether the provision of the law contained in the Uniform Code of Military Justice subjecting civilians to the authority of courts-martial for non-military offenses is valid. It reads:

"§ 552. Persons subject to this chapter (article 2)

"The following persons are subject to this chapter: * * *

"(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States and without the following territories: That part of Alaska east of longitude one hundred and seventy-two degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands."¹¹

The trial of civilians serving with the Armed Forces for non-military offenses is a practice which antedates the American Revolution. The British Articles of War adopted in 1765 placed civilians connected with the army under military discipline.¹²

The American Revolutionary Army had a similar provision in the Articles of War adopted by the Continental Congress on June 30, 1775, which read:

"All officers, conductors, gunners, matrosses, drivers or any other persons whatsoever, receiving pay or hire, in the service of the continental artillery, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers of the Continental troops."¹³

The Articles of War enacted by the Congress after the Constitution was adopted, beginning with the enactment of April 10, 1806,¹⁴ and ending with the adoption of the present Uniform Code of Military Justice¹⁵ contained similar provisions.

In Reid v. Covert,¹⁶ the Supreme Court was confronted with the problem whether a wife charged with the murder of her husband, and who was not an employee of the United States, but merely accompanied her husband, could be prosecuted for a capital offense by court-martial. Four of the justices held that she could not. Two other justices concurred in the decision on special grounds, to which reference will be made further on in the discussion.

To my mind, the case decides only one matter, i. e., if we apply the words "accompanying the armed forces" to a wife so as to make her subject to military law, when she is charged with a capital offense, we are doing violence to her constitutional rights. The argument that the section insofar as it applies to civilian employees must also fall as lacking substance.¹⁷

If a statute covers several categories, and the application to one category is found to be unconstitutional, the validity of the other categories, which are distinct and have a valid basis for separate classification, is not affected.¹⁸

Mr. Justice Black's opinion makes it plain that in matters other than capital or in the case of a civilian employee, the same ruling would not necessarily apply. The following quotations from the opinion indicate this clearly:

"The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them.

"The Milligan Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, Duncan Duncan v. Kahanamoku, 327 U. S. 304, 66 S.Ct. 606, 90 L.Ed. 688 and Toth cases recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians. In each instance an effort to expand the jurisdiction of military courts to civilians was repulsed.

"There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces `in the field' during time of war. To the extent that these cases can be justified, insofar as they involved trial of persons who were not `members' of the armed forces, they must rest on the Government's `war powers.' (Emphasis added.) In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of

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