Parisi v. Davidson

LOCATION:Former Ada County Courthouse

DOCKET NO.: 70-91
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 405 US 34 (1972)
ARGUED: Oct 19, 1971 / Oct 20, 1971
DECIDED: Feb 23, 1972

Richard L. Goff – for petitioner
William Terry Bray – for respondents

Facts of the case


  • Oral Argument – October 20, 1971
  • Audio Transcription for Oral Argument – October 20, 1971 in Parisi v. Davidson

    Audio Transcription for Oral Argument – October 19, 1971 in Parisi v. Davidson

    Warren E. Burger:

    Mr. Goff, do you — as you preferred not to divide your argument between today and tomorrow, we have 13 minutes, but if you feel it would make it more difficult we will let you go over on the other hand we would like to use 13 minutes.

    Richard L. Goff:

    Then very well, Your Honor I will start right now.

    Mr. Chief Justice and if it please the Court.

    This case raises one issue and one issue only.

    That issue is whether the right of a serviceman to petition to Federal Court for habeas corpus based on the wrongful, and I claim, of wrongful administrative denial of his applications for discharge as a conscientious objector should be or maybe suspended until he has exhausted certain kinds of military criminal proceedings, which are pending against him at the time the habeas petition is filed.

    The issue arises out of the District Court’s order which was affirmed by the United States Court of Appeals for the Ninth Circuit in order that all proceedings on petitioner Parisi’s petition for habeas corpus based on his claim that the Army had denied his conscientious objector discharge application without any basis, in fact, should be staid until exhaustion of military criminal proceedings, which were pending based on the claim of refusal to obey an order to board a plane headed for Vietnam.

    Was exhaustion have met going all the way through the Court of Military Appeals?

    Richard L. Goff:

    Under the District Court’s order Your Honor.

    The exhaustion remedy must be pursued until there has been a final judgment in the military criminal proceedings.

    Does that include the Court of Military Appeals?

    Richard L. Goff:

    I would assume that if there were, if the conviction were affirmed in the Court of Military Review that that would certainly necessitate continuing the appeal process through the Court of Military Appeals.

    Can you just briefly tell me what are the steps in Military Appellate Process?

    Richard L. Goff:

    As I understand it Your Honor, after the judgment of conviction and the sentence, there is a certain process of review by the convening authority which can take a certain period of time several, weeks or few months —

    Is there any time limit in the steps within which the convening authority has to complete that review?

    Richard L. Goff:

    I am not certain Your Honor of the exact time with it.

    After the convening authority completes his review then the case maybe and was in this case appealed to the Court of Military Review.

    The record is lodged in the Court of Military Review, briefs are filed, the case is argued although in this case oral argument has been waived.

    There is a decision and if the decision is adverse to the defendant then I would certainly read the District Court’s order as requiring further exhaustion by an appeal to the Court of Military Appeals.

    Is that appeal of right?

    Richard L. Goff:

    As I understand it that is an appeal of right, although I am not thoroughly familiar with that particular aspect of it.

    It also seems that an additional exhaustion requirement is imposed by the decision of the Ninth Circuit below although perhaps not adhered to by the Solicitor General whose brief in the case of Barr namely a petition to the Court of Military Appeals for extraordinary post conviction Habeas Corpus supposedly discharging the man from the service.

    You mean that too would have to be exhausted before they could proceed with the —

    Richard L. Goff:

    Your Honor the — the Ninth Circuit justified the entire exhaustion process —

    Well, but would that step also have to be exhausted before it could come in civil —

    Richard L. Goff:

    Your Honor, under the District Court’s order I believe it could be argued, that the step could not — does not have to be exhausted.

    However, under the Ninth Circuit’s opinion referring that order it appears that it might well have to be exhausted because really that is the only way the Court of the Ninth Circuit that the man could ever obtain from the military process the right to discharge which he seeks on erroneous —

    Now with that is there any provision in the military process for staves and being sent to Vietnam or (Inaudible)?

    Richard L. Goff:

    Your Honor the man was and has been incarcerated until recently when —

    Well, is there any provision for staves pending the completion of all this military appellate review?

    Richard L. Goff:

    I am not certain Your Honor.

    Richard L. Goff:

    I assume —

    Well, no one has attempted to put him into combat?

    Richard L. Goff:

    No, that is correct Your Honor.

    Then they just transferred the location of his non-combative —

    Potter Stewart:

    Well they attempted to and he refused and that is all the basis of the Court-Martial, is that not right?

    Richard L. Goff:

    Well, the attempt Your Honor was an order transferring them to Vietnam.

    The contemplation was that he would have been engaged in psychological counseling in Vietnam.

    He refused the order and as his affidavit in the District Court states for him that order raised incompatible conflict of his beliefs because it would put him in a position where he was much more likely involved.

    Now where is that?

    Is he in prison?

    Richard L. Goff:


    The petitioner as we mentioned in our reply brief, we got the news just after we filed our original brief, has been — the remainder of his confinement has been remitted.

    He still arraigns in the Army on an excess leave status.

    What is that?

    Richard L. Goff:

    Well, as far as I can understand Your Honor it means that he is still subject to military jurisdiction according —

    He is at home or where is he?

    Richard L. Goff:

    I would think that he is at home in Connecticut, Your Honor.

    Byron R. White:

    Why would the military adversary is redoing his case then?

    Richard L. Goff:

    Well Your Honor for one —

    Byron R. White:

    It would be — because he would be discharged does not satisfy?

    Richard L. Goff:

    For one reason the dishonorable discharge was part of the sentence and therefore I assume that the military appellant proceeding would go on in that connection.

    How much of the sentence is served?

    Richard L. Goff:

    I think that he served about — well after the conviction he served I think about 14 months of his sentence.

    He was also incarcerated for 4 months after the charges were first lodged until the trail.

    So that is 18 months all through.

    Richard L. Goff:

    I think so Your Honor.

    What was the sentence?

    Richard L. Goff:

    The sentence I think was two years at hard labor and also dishonorable discharge.

    6 months or more has been remitted.

    Richard L. Goff:

    Approximately months have been remitted.

    Richard L. Goff:

    That is correct.

    Your Honor we believe that the importance of the rights which petitioner sought and still seeks to have indicated in Federal Court are undeniable.

    I think this Court has recognized in many occasion the importance of the writ of habeas corpus as the means of securing prompt and speedy and effective relief against unlawful restraints on personal freedom.

    It has become also the accepted means of seeking judicial review of asserted wrongful denial of applications for discharge of conscientious objectors.

    I think it is important to keep in mind that when the serviceman seeks the writ on that basis, he is seeking relief from action of the military which has violated his constitutional right of due process.

    He is also seeking relief which will protect his religious beliefs, the liberty of his conscience, interests which this Court has also recognized are been of very fundamental importance in a free society.

    An essential element of the remedy of Habeas Corpus also has been its recognition that it is a prompt and swift means for obtaining judicial review.

    And certainly in the case of military personnel whose duration of their enlistment is necessary limited.

    If a conscientious objector has had his application denied without basis in fact only through prompt intervention.

    Only through prompt access to the Federal Court to give him the review of the wrongfulness of the military denial of the claim.

    Only in that way can he secure the relief which will carry out the policy which is even recognize by military’s own regulation that it is more essential to respect the man’s religious beliefs than to force him to continue serving in the military in violation of those beliefs.

    Potter Stewart:

    If the Courts did — if you are right I do not have the chronologies to moll it exactly in mind.

    Now that you briefed some time ago, but if you are right and if the District Court should have proceeded on the habeas corpus application and he prevailed then he never could have been tried by Court-Martial, could he if he had been a civilian.

    Richard L. Goff:

    Your Honor the basic question now before the Court goes to the right, the basic right to get federal review of the claim in the Federal Court on the merits for the claim.

    Potter Stewart:

    In the Federal District Court?

    Richard L. Goff:

    In the Federal District Court.

    Potter Stewart:

    On the merits of your claim, on the basis of conscientious objector.

    Richard L. Goff:

    Of the claim of his administrate — and his administrative — that the administrative denial of his application was without basis in fact and denial due process.

    Potter Stewart:


    Richard L. Goff:

    Now the issue of exactly what kind of relief the District Court might or might not grant.

    I do not think it is presently before this Court.

    It is been recognized by many decisions including the recent Ninth Circuit decision in Racher v. McDamera (ph) that even if, for example the Court did not feel that it could direct the immediate release to the petitioner, at the very least he has a right to a hearing and a determination on the merits of his claim and under the Habeas Corpus statute the Court shall then dispose the cases as law and justice required.

    Potter Stewart:

    Well then if the merits of his claim were disposed of in his favor, then that would — would that be res judicata in any subsequent Court-Martial proceeding for disobedience of the order?

    Richard L. Goff:

    Well, Your Honor, I believe that that would be primarily a question of military law and for the Military Court to decide.

    Well, I am not —

    Potter Stewart:

    Well, why would it be?

    Richard L. Goff:

    Excuse me.

    Potter Stewart:

    This would be a proceeding in the habeas corpus proceeding, this would be between him, on the one hand it is custodian and on the other hand his custodian would be representative of the Army, I suppose.

    The parties being the same would that not be res judicata which would give him (Voice Overlap) to any subsequent Court-Martial proceeding?

    Richard L. Goff:

    Yeah, I certainly think that in a subsequent Court-Martial proceeding a strong argument could be made that such a determination was res judicata.

    Richard L. Goff:

    Certainly I think the effect of the District Court, that the District Court were to give him the hearing on the merits and were to make the decision that his application have been denied without any basis in fact and thus in violation of his rights of due process.

    That would be determination that he has a right to discharge as a conscientious objector and I think that a strong argument could be made either for the proposition that he has a right to discharge which deprives the military of jurisdiction.

    Indeed the Solicitor General’s own brief seems to concede as much by the reference in the analogy to Army Regulation 635-200, or at least for the more limited proposition which several of the District Courts have been adopting in their discharge orders.

    But at least he ought to be put in the same position as he would have been in if the Military had granted his application for discharge rather than denied it.

    And this again I think it is something which is recognized by the Government’s own brief, in their Footnote 34 where they point out the distinction between the type of order that the military might give a man even while they are processing him out such as in order to put on a uniform.

    And in those circumstances the Government, the man would not be excuse from disobeying the order and presumably would have to go through the Court-Martial process anyway.

    On the other hand the order which assigns him to some new duty station is an order which clearly the military would not have given him if the Secretary of the Army had granted his application for discharge as a conscientious objector and if the military would not and could not have given him that order then I think it would be quite proper for the District Court to say that the right of discharge shall be recognized now and shall supersede any Court-Martial, pending Court-Martial proceedings.

    Certainly that is not so surprising in view of the fact that the military itself seems to recognize that such an order would be unlawful.

    If it was an order which ordered the man to a new duty station and followed or was depended upon a wrongful denial of a conscientious objector application.

    I think that once the District Court has made the basic determination that the military denial of his claim was wrongful without basis in fact and he is entitled for discharge as a conscientious objector, it then certainly has the power to inquire into the legality of the man’s continued detention.

    Sort of like the basic purpose the writ requiring the jailer to justify the legality of the detention.

    And in no circumstances if the Government wish to claim that the continued detention was justified by subsequent events then I think the Court could certainly inquire in the validity of that particular claim.

    Warren E. Burger:

    We will continue in the morning.