Middendorf, Ii v. Henry Henry v. Middendorf, Ii

Decision Date24 March 1976
Docket Number74-5176,Nos. 74-175,s. 74-175
Citation96 S.Ct. 1281,425 U.S. 25,47 L.Ed.2d 556
PartiesJ. William MIDDENDORF, II, et al., Petitioners, v. Daniel Edward HENRY et al. Daniel Edward HENRY et al., Petitioners, v. J. William MIDDENDORF, II, Individually and in his Capacity as Secretary of the Navy, et al
CourtU.S. Supreme Court
Syllabus

The Uniform Code of Military Justice (UCMJ) provides four methods of disposing of cases involving servicemen's offenses: general, special, and summary courts-martial, and disciplinary punishment pursuant to Art. 15 of the UCMJ. General courts-martial and special courts-martial, which may impose substantial penalties, resemble judicial proceedings, nearly always presided over by lawyer judges, with lawyer counsel for both sides. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with most minor offenses. A summary court-martial, lying in between the informal Art. 15 procedure and the judicial procedures of general and special courts-martial, is designed "to exercise justice promptly for relatively minor offenses" in an informal proceeding conducted by a single commissioned officer, acting as judge, factfinder, prosecutor, and defense counsel (with jurisdiction only over noncommissioned officers and other enlisted personnel), who can impose as maximum sentences: 30 days' confinement at hard labor or 45 days' hard labor without confinement; two months' restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. If the accused does not consent to trial by summary court-martial, the case will either be referred to a special or general court-martial, or be dismissed. Various enlisted members of the Marine Corps (hereinafter plaintiffs) charged for the most part with "unauthorized absences" brought this class action in District Court challenging the authority of the military to try them at summary courts-martial without providing them with counsel. All the plaintiffs had con- sented in writing to be tried by summary court-martial, without counsel, after having been advised that they could be tried by special court-martial with counsel provided and having been apprised of the maximum sentences imposable under the two procedures. The District Court entered a judgment for the plaintiffs. The Court of Appeals vacated the judgment and remanded the case for reconsideration in the light of its opinion in Daigle v. Warner, 490 F.2d 358, wherein it had held that there is no right to counsel under the Sixth Amendment in summary courts-martial and no absolute Fifth Amendment due process right in every case in which a military defendant might be imprisoned, but that, in line with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, counsel is required where the accused makes a request based on a timely and colorable claim (1) that he has a defense and (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present his defense. Held:

1. There is no Sixth Amendment right to counsel in a summary court-martial, since that proceeding is not a "criminal prosecution" as that term is used in the Amendment. Pp. 33-42.

(a) Even in a civilian context the fact that a proceeding will result in the loss of liberty does not Ipso facto mean that the proceeding is a "criminal prosecution" for Sixth Amendment purposes, Gagnon v. Scarpelli, supra, at 788-789, 93 S.Ct. at 1762-1763, 36 L.Ed.2d at 665; In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 547; and when it is taken into account that a summary court-martial occurs in the military rather than a civilian community the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as the factors that were held dispositive in those cases. The charges against most of the plaintiffs here have no common-law counterpart and carry little popular opprobrium; nor are the penalties comparable to civilian sanctions. Pp. 34-40.

(b) A summary court-martial, unlike a criminal trial, is not an adversary proceeding. Pp. 40-42.

2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Pp. 42-48.

(a) Though the loss of liberty which may result from a summary court-martial implicates due process, the question whether that embodies a right to counsel depends upon an analysis of the interests of the accused and those of the regime to which he is subject, and in making that analysis deference must be given to Congress' determination under Art. I, § 8, of the Constitution, that counsel should not be provided in that type of proceeding. P. 43.

(b) Supporting Congress' decision is the fact that the presence of counsel would convert a brief, informal hearing, which may be readily convened and concluded, into an attenuated proceeding, pre-empting the time of military personnel and thus consuming military resources to an unwarranted degree. See U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 100 L.Ed. 8. Pp. 45-46.

(c) The accused who feels that counsel is essential in the situation envisaged by the Court of Appeals in reliance on Daigle v. Warner, supra, may elect trial, with counsel provided, in a special court-martial proceeding, and though he would thus expose himself to the possibility of greater penalties, a decision involving that kind of choice, which often occurs in civilian criminal cases, is not constitutionally decisive. Pp. 46-48.

493 F.2d 1231, reversed.

Nathan R. Zahm, Sherman Oaks, Cal., for Daniel Edward Henry and others.

Harvey M. Stone, Dept. of Justice, Washington, D.C., for J. William Middendorf, II, et al., pro hac vice, by special leave of Court.

Mr. Justice REHNQUIST delivered the opinion of the Court.

In February 1973 plaintiffs 1 then enlisted members of the United States Marine Corps brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs 2 had been charged with "unauthorized absences" 3 in violation of Art. 86 UCMJ, 10 U.S.C. § 886, convicted at summary courts-martial, and sentenced, Inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, Inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U.S.C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without counsel.4 Plaintiffs' court-martial records were reviewed and approved 5 by the Staff Judge Advocate pursuant to Art. 65(c), UCMJ, 10 U.S.C. § 865(c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U.S.C. § 869.6

In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an injunction against future confinement resulting from uncounseled summary court-martial convictions, and an order vacating the convictions of those previously convicted.

The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs' convictions, released all plaintiffs and all other members of their class 7 from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed.Rule Civ.Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, see Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.

The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals' opinion in Daigle v. Warner, 490 F.2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), it did hold that counsel was required where the "accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances." Daigle made an exception from this general rule for cases in which counsel "is not reasonably available," in which instance it would not be required. 490 F.2d at 365. We granted certiorari. 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974).

I

The UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art. 15 UCMJ, 10 U.S.C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both ...

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