Stolte v. Laird

• Decision Date: 22 December 1972
• Docket Number: Civ. A. No. 1764-70.
• Citation: 353 F. Supp. 1392
• Parties: Kenneth W. STOLTE, Jr., Donald F. Amick, Plaintiffs, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Defendants.
• Court: U.S. District Court — District of Columbia

353 F. Supp. 1392

Kenneth W. STOLTE, Jr., Donald F. Amick, Plaintiffs, v. Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Defendants.

Civ. A. No. 1764-70.

United States District Court, District of Columbia.

December 22, 1972.

Edward F. Sherman, Bloomington, Ind., Melvin L. Wulf and Eugene Z. DuBose, Jr., American Civil Liberties Union Foundation, New York City, Hope Eastman, Washington, D. C., Francis Heisler, Carmel, Cal., for plaintiffs.

Harold H. Titus, Jr., U. S. Atty. for the District of Columbia, E. J. Silbert, Oscar Altshuler, John H. Bayly, Jr., Peter R. Reilly and John T. Kotelly, Asst. U. S. Attys., for defendants.

MEMORANDUM OPINION

AUBREY E. ROBINSON, Jr., District Judge.

This action, initiated as a habeas corpus petition, seeks review of the constitutionality of plaintiffs' convictions of certain offenses by general military court-martial. The case is now before the Court on cross motions for summary judgment.

Plaintiffs are two former members of the United States Army, draftees, who were stationed in February, 1968, at Fort Ord, California.¹ That installation served, inter alia, as a basic training center for new troops. On or about the evening of February 21, 1968, plaintiffs distributed at Fort Ord about one hundred and fifty copies of a leaflet they had previously prepared expressing their disapproval of the war in Vietnam.² Plaintiffs were subsequently charged and convicted of violating Articles 134³ and 81⁴ of the Uniform Code of Military Justice⁵ in that they publicly uttered a statement disloyal to the United States with design to promote disloyalty and disaffection among the troops and the civilian populace, and further that they had conspired to utter that statement. The disloyal statement in question is the leaflet described above.

Plaintiffs were sentenced to dishonorable discharges, forfeiture of all pay and allowances, and confinement at hard labor for three years.⁶ The convictions were affirmed by the Army Board of Review.⁷ Petition for grant of review by the Court of Military Appeals was denied,⁸ as was application to the Board for Correction of Military Records.⁹

Plaintiffs here challenge the constitutional validity of their convictions on two interrelated but distinct grounds: alleged vagueness in violation of the due process clause of the Fifth Amendment, and alleged overbreadth infringing on plaintiffs' rights of free speech and expression protected by the First Amendment. These contentions will be considered separately. They were raised and rejected before the military tribunals. Specifically, plaintiffs seek (1) a declaratory judgment that their court martial convictions are invalid as violative of the First and Fifth Amendments; (2) restoration of all back-pay and benefits of which they were deprived by virtue of the convictions; and (3) appropriate correction of their military records. The constitutional issues will be considered here only in regard to the Article 134 convictions for uttering disloyal statements. The Article 81 convictions for conspiracy to violate Article 134 were general counts obviously dependent here on the validity of the Article 134 convictions.

Jurisdiction

It is well settled that federal civilian courts have jurisdiction to review by writ of habeas corpus the validity of a court-martial conviction. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).¹⁰ There is no contention here that this Court lacks jurisdiction in the present case. Although plaintiffs were not actually in custody at the time this action was instituted, they were then subject to conditions of parole. Further, their dishonorable discharges resulted from the convictions here in issue. It is settled in this circuit that even absent a habeas corpus petition court-martial proceedings are subject to review by way of declaratory judgment or other form of civil action provided that the scope of review is confined to that comparable to habeas corpus scrutiny. Kauffman v. Secretary of Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969).¹¹ Kauffman further held that the standard of review to be applied was that "military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule."¹² It is in this light that plaintiffs' military convictions must be examined for their conformity to prevailing constitutional standards.

Vagueness

It should be noted at the outset that plaintiffs are not here challenging Article 134 as unconstitutionally vague on its face.¹³ They attack the facial vagueness of the "specifications"¹⁴ enunciated in the charges against them.¹⁵

The constitutional standard for vagueness is clear and well established. A criminal law must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). The due process clause of the Fifth Amendment is offended by anything less than such fair notice. The Supreme Court has repeatedly indicated that the purposes of its constitutional holdings on this point are two-fold: to assure adequate notice to the potential violator that the contemplated conduct is proscribed and to minimize the possibility of arbitrary and discriminatory enforcement of the law.¹⁶ While the need for "ascertainable standards of guilt"¹⁷ is even greater in a context involving First Amendment rights, that aspect of the case will be deferred until the later discussion of overbreadth and the First Amendment.

Having recognized the standard generally applicable in evaluating alleged statutory vagueness it is necessary to examine whether that same statutory standard is applicable to military law or whether conditions peculiar to military life require a different rule. The Court of Military Appeals has aided in this task by its acceptance of general Supreme Court standards on vagueness without indicating any need for a departure from those standards in the name of military necessity. United States v. Howe, 17 U.S.C.M.A. 165, 168-69 (1967).¹⁸ The Government here concedes that the proper standard is one which would not "leave them bereft of fair notice as to how to conform themselves or their behavior to the demands of post life."¹⁹ The Court likewise has been unable to discern a rationale which would properly dispense with the necessity of fair notice of proscribed conduct, although a determination as to what constitutes fair notice in a given context should be subject to consideration of all the circumstances, including military necessity.

The Court of Military Appeals has held that Article 134 of the UCMJ is not void for vagueness on its face. United States v. Frantz; 2 U.S.C.M.A. 161 (1953). There the Court held that Article 134

must be judged, . . . not in vacuo, but in the context in which the years have placed it. . . . That the clauses under scrutiny have acquired the core of a settled and understandable content of meaning is clear from the no less than forty-seven different offenses cognizable thereunder explicitly included in the Table of Maximum Punishments of the Manual for Courts-Martial, 1951. . . . Accordingly, we conclude that the Article establishes a standard `well enough known to enable those within . . . its reach to correctly apply them.'²⁰

The specification here under attack is one of the cited offenses cognizable under Article 134. This is apparently one of very few cases which have launched frontal attacks on a specification, as distinguished from an attack on the general article under which the charges are lodged.²¹ The Court believes this approach to be well-founded, however, for each of the now more than seventy separate specifications under Article 134 is in effect a separate offense and each specification, as well as the general article, must on its own terms pass constitutional muster. Frantz involved a specification (possession of a false pass) with none of the inherent ambiguity of the "disloyal statement" specification. While military usage, regulations and case law may be sufficient to provide fair notice of proscribed conduct with regard to certain specifications, those sources must be examined with regard to each specification to be certain that "the clauses under scrutiny have acquired the core of a settled and understandable content of meaning" and therefore do in fact provide fair notice of the proscribed conduct.

With fair notice as the threshold requirement, the Supreme Court has repeatedly struck down statutes where no definition or standards were enunciated to clarify the scope of inherently ambiguous language.²² This Court is of the opinion that the word "disloyal" is inherently ambiguous and ill-suited to proscriptive use, especially where First Amendment rights are involved. It is not a word of easily defined meaning and common understanding such that no further standard is necessary. "Measures which purport to define disloyalty must allow knowledge of what is and is not disloyal." Baggett v. Bullitt, 377 U.S. 360, 380, 84 S.Ct. 1316, 1327, 12 L. Ed.2d 377 (1964). Just as "(c)onduct that annoys some people does not annoy others,"²³ so also that which is disloyalty to some may seem to others the highest form of patriotism. The proscription is "not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided."²⁴ This Court is unable to perceive any "ascertainable standard or guideline superimposed on the regulation in the context of the military environment"²⁵ and has been offered no authorities, indeed nothing at all, from which even the outlines of such an "ascertainable standard" might be drawn. The "military environment" alone certainly cannot be invoked as a catch phrase to bypass the standards of fair notice so often set forth by the Supreme Court as constitutionally required.

Assuming a...