Jones v. Crittenden, No. 2001-SC-0761-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtGraves
Citation96 S.W.3d 13
PartiesRobert A. JONES; Cynthia White; Larry White; and Reginald P. Youngblood (Real Parties in Interest), Appellants, v. Hon. Roger L. CRITTENDEN, Judge, Franklin Circuit Court; Kentucky Department of Military Affairs; and Kentucky National Guard, Appellees.
Docket NumberNo. 2001-SC-0761-MR.
Decision Date21 November 2002
96 S.W.3d 13
Robert A. JONES; Cynthia White; Larry White; and Reginald P. Youngblood (Real Parties in Interest), Appellants,
Hon. Roger L. CRITTENDEN, Judge, Franklin Circuit Court; Kentucky Department of Military Affairs; and Kentucky National Guard, Appellees.
No. 2001-SC-0761-MR.
Supreme Court of Kentucky.
November 21, 2002.
As Amended March 5, 2003.

Barbara D. Bonar, Covington, Squire N. Williams, Jr., Stoll, Keenon & Park, Frankfort, for Appellants.

William B. Pettus, Assistant Attorney General, Civil and Environmental Law, Frankfort, for Appellees.

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Opinion of the Court by Justice GRAVES.


Appellants/Real Parties in Interest, Robert A. Jones, Cynthia White, Larry White, and Reginald Youngblood, are current or former members of the Kentucky National Guard, who have brought claims for discrimination and retaliation pursuant to the Kentucky Civil Rights Act, Ky.Rev. Stat. (KRS) 344.010, et seq. The Kentucky National Guard and Kentucky Department of Military Affairs moved the Franklin Circuit Court for summary judgment, arguing that the actions raise a federal constitutional question which is preempted from state regulation and is not justiciable or reviewable in a civilian court by virtue of the Supremacy Clause and the Militia Clause of the United States Constitution. The circuit court denied the motion.

The Kentucky Department of Military Affairs and Kentucky National Guard filed a petition for writ of prohibition or mandamus pursuant to CR 76.36 requesting that the Court of Appeals direct the trial judge, Honorable Roger L. Crittenden, "to refrain from compelling petitioners to stand trial" and to direct him to dismiss the claims. The Court of Appeals granted the writ. We affirm the decision of the Court of Appeals.


The National Guard has a unique status in our federal system and a vital role in our national defense. The militia, which is the military forebear of the National Guard, is expressly provided for in the Constitution: "A well regulated Militia... [is] necessary to the security of a free State ...."1 Each state is thus empowered to maintain a militia and each state in fact maintains a militia, the modern equivalent of which is the National Guard.2 Control of the Guard is reserved to the states, except when the Guard is called into federal service, at which time the Guard becomes subject to exclusive federal control.3

Congress first provided for the integration of militia and federal military forces in the National Defense Act of 1916, which made the National Guard part of the Regular Army.4 Under the 1916 Act, all members of the National Guard were required to take oaths to obey both the President and the governors of their states.5

In 1933, Congress made the National Guard a permanent part of the federal

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military by creating a "dual-enlistment" system:

It did this by conferring a new status on the Guard, by constituting it a reserve component of the Army, to be known as the National Guard of the United States. In its militia capacity, the National Guard was organized and administered under the militia clause of the Constitution, and available only for limited duties .... [I]n its capacity as a reserve component of the Army, [the National Guard] was organized and was to be administered under the army clause.6

As a result of having constitutional moorings in both the Militia Clause and the Armies Clause, the Guard's role in our federal system is uniquely dualistic

This role does not fit neatly within the scope of either state or national concerns; historically the Guard has been, and today remains, something of a hybrid. Within each state the National Guard is a state agency, under state authority and control. At the same time, the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law.7

Accordingly, the National Guard has today a dual status, and every Guardsman is a reservist in the United States Uniformed Services as well as a militiaman.8

In 1970, the National Guard was incorporated into the Total Forces Concept, which determines the total number of military personnel needed for our national defense and military commitments.9 Thus, the Guard plays a vital role in the nation's military readiness program.

Due to the Guard's vital role in the Total Forces Concept, the Federal Government must ensure the Guard maintains a constant state of military readiness. To this end, the Constitution empowers Congress to provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.10 Pursuant to this authority, Congress has enacted legislation for equipping, training, and disciplining state Guard units so that Guardsmen are "an integral part of the first line defenses of the United States."11 Congress also has created the National Guard Bureau, an adjunct of the Departments of the Army and the Air Force, to oversee state Guard units and to ensure compliance with federal statutory and regulatory requirements regarding military training,

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discipline, and readiness.12 State Guard units that fail to comply are subject to forfeitures of federal funds and benefits.13 Thus, the National Guard stands ready to provide "trained units and qualified persons ... for active duty in the armed forces, in the time of war or national emergency and at such other times as the national security requires."14


As early as 1953, the Supreme Court determined that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian."15 Since that time, in reviewing issues which deal with the armed forces, the Supreme Court has regularly referred to the military as a "separate community" and reviewed claims against the military differently from claims against any other governmental agency. Restrictions on constitutional rights which might have no rational basis in civilian society will survive in the military context because the unique war-making purpose of the armed forces makes such restrictions compelling.16 This attitude regarding constitutional rights is based upon the need to maintain an effectively operational fighting force.17 The distinct purpose of the armed forces is to protect the United States, and its interests, against the actions of foreign nationstates, through the use of force.18 It is because of this unique purpose that the military demands a respect for duty and a commitment to discipline that is without counterpart in civilian society.19 Military effectiveness in wartime, however, requires peacetime preparation. In order for soldiers, airmen and seamen to utilize those qualities necessary for success on the battlefield, with all its stress and anxiety, those qualities must be instinctive. Success in war is therefore contingent upon the development of those qualities in peacetime. The Supreme Court has stated that, "to accomplish its mission the military must foster instinctive obedience, unity, commitment and esprit de corps."20

This creates a "necessity," which the Supreme Court has recognized, for training

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and organizational latitude when dealing with military personnel and the military infrastructure. "The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.... [C]onduct in combat inevitably reflects the training that precedes combat."21

The Supreme Court has long recognized that:

[T]he military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that `it is the primary business of the armies and navies to fight or be ready to fight wars should the occasion arise."22

A soldier in the Army is not free to quit his job, cannot be fired, and is subject to military discipline and military law.

The climate of "discipline and unquestioned obedience" necessary to sustain an effective fighting force is determined primarily by the professional judgments and experience of people familiar with military needs, and the Court has determined itself incapable of mastering the complexities which are considered when balancing constitutional rights against military functional necessity.23 In Chappell, the United States Supreme Court stated that "the special relationships that define military life have `supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.'"24

It would be imprudent to allow soldiers to sue superior officers because discipline and effectiveness would be seriously damaged. Permitting judicial intervention into such clearly administrative and personnel decisions would destroy the legitimacy and authority of command.25

Power to regulate the militia was conferred by the Constitution, not on the courts, but upon Congress and the President. Judges are not given the task of running the Army. The responsibility for creating channels through which such grievances can be considered and fairly resolved rests upon the Congress and upon the President of the United States and his subordinates. "Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous...

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