Schlesinger, v. Councilman – Oral Argument – December 10, 1974

Media for Schlesinger, v. Councilman

Audio Transcription for Opinion Announcement – March 25, 1975 in Schlesinger, v. Councilman

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Warren E. Burger:

We’ll hear arguments first this morning in number 73-662, Schlesinger against Councilman.

Mr. Solicitor General, you may proceed whenever you’re ready.

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the Tenth Circuit.

The respondent, Captain Councilman is under Court-Martial charges for violating Article 134 of the Uniform Code of Military Justice, the General Article, by wrongfully selling, transferring, and possessing marijuana.

At the time of the offense, Captain Councilman was off post, off duty, and out of uniform.

Although stationed at Fort Sill, Oklahoma, he was then in his apartment in Langley, Oklahoma.

The sale and transfer of marijuana were to a man who Councilman believed to be an enlisted man also not in uniform and off duty.

He believed him to be a clerk typist at Fort Sill.

He was, in fact, an enlisted undercover agent for the Army’s Criminal Investigation Detachment which was investigating a report that the Captain used marijuana at his apartment.

Councilman moved to dismiss the charges against him on the ground that the Court-Martial lacked jurisdiction because the crimes were not service-connected under O’Callahan against Parker.

The presiding military judge denied that motion and Councilman then brought this action to the District Court which, on the grounds of absence of service-connection, permanently enjoined the military authorities from proceeding with the Court-Martial and the Court of Appeals affirmed.

This case put in play two important issues.

The first is the propriety of the District Court’s intervention in a pending Court-Martial proceeding.

The second is the rationale and application of the service-connection test for Court-Martial jurisdiction.

These are both issues of serious concern to the government for they bear directly upon the effectiveness of the Armed Forces.

We submit, in the first place, that the District Court should not have interfered with this Court-Martial and the reasons for that conclusion are interrelated.

They are the doctrines we discussed yesterday of comedy and exhaustion of remedies.

We’ve also contended that the finality provision of the Uniform Code of Military Justice Article 76 precludes review by any mode other than a petition for habeas corpus.

Our arguments yesterday in McLucas against De’Champlain dealt with the principles of exhaustion and comedy– exhaustion of remedies and comedy and here, as there, we rely upon Younger against Harris and Gusik against Schilder.

The military justice system is a coordinate judicial system with a series of appellate stages through which any conviction must be tested and strained.

The ordinary considerations of avoiding duplication, waste of judicial resources, and so forth apply here as they did in Younger and in Gusik.

Potter Stewart:

Is your argument on this branch of the case identical to the arguments you made?

Robert H. Bork:

Virtually so, Mr. Justice Stewart, except for one point and that is that I wish to distinguish the line of cases Billings against Truesdale and Toth against Quarles and so forth because of the nature of the trial that is required on a service-connection issue and I will just– I will not repeat the argument about Younger against Harris or Gusik against Schilder in the ordinary consideration.

Potter Stewart:

But you’re incorporating that by reference.

Robert H. Bork:

I am, yes.

Potter Stewart:

And then you have one additional argument, is that it?

Robert H. Bork:

That is the nature of a trial required on the service-connection issue.

Potter Stewart:

Or at least something additional you need to say in view of those cases, is that it?

Robert H. Bork:

Yes.

Thurgood Marshall:

But isn’t there a difference that, here, the claim is that they can’t try him at all?

Robert H. Bork:

That is correct.

That is why I wish to say that it is semantically possible, Mr. Justice Marshall, to make this case sound as if it were similar to Toth against Quarles or Reid against Covert or that line of cases, because it can be put in terms that the question is the military’s power to try the man.

But, I think it’s quite different from those cases because in those cases the military’s lack of power to try the man comes from his status and not from his conduct, and it’s a quite simple trial.

In fact, it’s solely a legal issue whether the man is a civilian or a military man, whether, if he is a civilian, the military has a constitutional power to try him.

Here, however, the question of the power to try him and it’s quite different, I think, when a man is not a civilian but is a military man who is ordinarily subject to military discipline and military jurisdiction and, in addition, when the claim that he may not be tried rests upon the factual details of what he did and where he did it and so forth, because that means that when a service-connection issue is raised, if he can go into a Federal District Court, in many cases, there should be a small trial of the crime to get out the details.

In fact, I think in this case it may be that this stipulation is seriously inadequate.

I don’t know.

If District Courts are going to come into these cases, I will advice you as attorneys and military lawyers to make much fuller records than this so we can find out about service-connection much more effectively.

Warren E. Burger:

Do you consider it a particular importance that this was a transaction between a captain and an enlisted man who is under his command?

Robert H. Bork:

I consider that of crucial importance on the service-connection issue, Mr. Chief Justice.

On the jurisdictional issue, however, I don’t think that it’s– it bears this directly.

Warren E. Burger:

Even though they were off base and out of uniform?

Robert H. Bork:

Well, I– by the jurisdictional issue, I meant initially whether a District Court ought ever to entertain a claim like this before the military process has run its course and I think, on a service-connection issue, it ought not.

On– I think it’s clear that it is a service-connected and I will argue to that effect in a moment, but I wish to complete the answer to Mr. Justice Marshall’s question.

If you may go into a Civilian Court in advance of a Court-Martial, the Civilian Court in many cases will have to hear the facts of the crime to determine the service-connection issue.

If the Civilian Court determines it is service-connected, you will then go back for a full military trial.

So, you’ll have two trials: one civilian and one military.

If the Civilian Court determines it is not service-connected, you will then have two civilian trials: one on the injunctive action and one presumably when the local prosecutor brings a charge under the criminal law, the civilian criminal law.

So, I think there’s quite a waste of resources in this kind of a service-connection case which is necessarily a factual case.

If you have it proceed to the military, then you need have only one trial of the fact and a Court looking at habeas corpus later on the service-connection issue.

They rely on the military record.

In addition to that, there is in the service-connection issue necessarily an expert judgment about the effect of the behavior upon the discipline, the morale, the effectiveness of the Armed Forces.

And, I think that judgment initially should be made and illuminated by military tribunals with the expertise.

It may then be reviewed on habeas corpus by a Civilian Court with the issues so-illuminated, and I think that is why this case is a very different kind of a case, both in terms of expertise and in terms of trial of factual matters than the Toth v. Quarles or Billings against Truesdale line of cases, and why the Doctrine of Exhaustion of Remedies and Comedy is particularly appropriate here.

Now, Mr. Chief Justice, you mentioned the issue raised in this case by the fact that the marijuana sale and transfer charges involve the sale and transfer of marijuana by an officer, Captain Councilman, to a man whom he knew to be an enlisted man and the enlisted man he knew understood him to be an officer.

And, I think that makes the first two charges in this case quite clearly service-connected.

O’Callahan and Parker and Relford against Commandant were cases which explicate a number of the criteria that are relevant in judging service-connection, but the Relford opinion explicitly recognizes that those factors are not a closed set.

That’s not a codification that, further, is a common law development in this c– in this field, and I think the O’Callahan case indicates the rationale which guides that common law development of these cases and it grows out of Congress’ constitutional power which exists because the exigencies of military discipline require the existence of special Courts with special expertise and special jurisdiction.

So, I think, the offense is service-connected when it bears upon discipline, morale, and the effectiveness of the Armed Forces.

Robert H. Bork:

And, when the Armed Forces have a reason of their own, which is distinct from that held in common with civilian society, to be seriously concerned about the offense, and that’s certainly true here.

The rationale of service-connection indeed, I think, is very similar to the rationale of Article 134 under which Captain Councilman is charged.

Article 134 prohibits all disorders and neglect to the prejudice of good order and discipline in the Armed Forces.

So, both issues, the jurisdictional and the substantive, the service-connection and disorders and neglects are given meaning by the unique nature of the special needs and the vital mission of the military.

Potter Stewart:

In speaking of the differences between this kind of an offense in military society contrasted to what it would be in civilian society, are you concentrating on the military’s attitude toward the possession and use of marijuana or are you concentrating on the– emphasizing on the traditions in the military that officers and enlisted men do not fraternize?

Robert H. Bork:

Well, Mr. Justice Stewart, those two rationales correspond to the different charges.

I was addressing, initially, the relationship of officer to enlisted man and the destructive impacts of shared criminal behavior upon that relationship.

Potter Stewart:

Well, shared behavior of any kind, unless times have changed since I was in the military.

Robert H. Bork:

Well, I wouldn’t say shared behavior of any kind, Mr. Justice Stewart.

Potter Stewart:

Off duty, except in the military mission.

Robert H. Bork:

Socializing or, yes–

Potter Stewart:

Except in the military mission.

Robert H. Bork:

That’s true.

I think the service-connection become particularly apparent when the shared behavior is criminal behavior and known to be such by both participants because I think that is particularly destructive to morale and, as word of it spreads around as it will, when an officer engages in this kind of behavior, destructive to the authority of all officers in that commander, indeed, if another commanders hear about it.

But, I intend to address as well the fact that possession of marijuana, irrespective of the relationship to the enlisted man, is also service-connected.

Potter Stewart:

So, there are two distinct differences.

Robert H. Bork:

Two distinct rationales, both of which I think apply to this case and both which I think uphold service-connection.

We have just discussed that it’s hardly relevant to the destructive impact of shared criminal behavior between an officer and an enlisted man whether it takes place on post or off post, or in or out of uniform, or on or off duty.

The relationship between those men is effectively destroyed.

As word gets back in this closed society, which the military is quite a close in its society, a society in which has a great deal of gossip and rumor, it will undercut the authority of all officers in that command.

And, I think one need not strain one’s imagination to think of a variety of criminal offenses that are wholly destructive of the relationship the Armed Forces must require.

In fact, there may be such offenses which are criminal under the Uniform Code which are not criminal under a State Code.

So that if it occurs in certain jurisdictions, civilian authorities will be without power to prosecute but the military, nevertheless, has a vital interest in seeing that that kind of behavior does not take place between officers and enlisted men.

And, I think that much can hardly be denied.

Potter Stewart:

Though, if this had been alcohol as to the matter, I mean alcoholic beverage instead of marijuana?

Robert H. Bork:

If it had been– I think fraternizing with an enlisted man might have called for disciplinary activity by the military.

I don’t think it would have been a General Court.

I think drinking with an enlisted man is severely discouraged.

It might have called for a reprimand.

If repeated, it might have called for a more serious punishment.

Robert H. Bork:

But, since the underlying activity is not in itself criminal, the initial response of the military, I suspect, would have been milder than this.

Harry A. Blackmun:

Well, you were drawing the difference between the drunkenness and grass.

Robert H. Bork:

A distinction– no, I think the distinction between alcohol and drugs is simply that if we’re talking about the use rather than the relationship between the two men is simply that the military, as civilian society, chooses to regard only over use of alcohol as an offense where they tend to regard any use of drugs as an offense, and that’s a judgment which I think is essentially a legislative judgment and I think an allowable one.

Harry A. Blackmun:

Well, you mentioned just a moment ago that we might be in a jurisdiction where the use of marijuana was not a crime.

Robert H. Bork:

That is correct.

In fact, we have jurisdictions now I think– well, one thing is certainly true, Mr. Justice Blackmun, and that is that the treatment of marijuana possession or use by various localities and states varies enormously.

There are– we’ve heard of cases where 15 years for a possession of minor amounts of marijuana.

There are other jurisdictions where the offense is almost not prosecuted.

So that the military’s distinctive interest in this may be not vindicated at all by the civilian authorities or it may be over-vindicated in some sense, maybe much harsher than the military would chose to treat the matter.

Harry A. Blackmun:

But do I understand you, however, to say that if the captain here had gone off base, off duty, and spent the evening in an apartment with an enlisted man and they both hang one on, that this would not be service-connected?

Robert H. Bork:

No, I didn’t suggest that, Mr. Justice Blackmun.

I think it would be.

I was suggesting that the service is a response to an officer having a drink with an enlisted man might be not as– at the same level of concern and it might justify a milder level of punishment than its response to an activity which is itself criminal and the use of a drug, although it might have a response, a disciplinary response, to fraternization between an officer and enlisted man.

But, fraternization in a criminal activity is a far more serious fraternization and far more destructive of morale and discipline than other forms of fraternization.

Thurgood Marshall:

Because, in this case, if the captain had a bottle of whisky, nothing would have happened to him but if he had marijuana he would have been prosecuted.

Robert H. Bork:

You–

Thurgood Marshall:

But now that he associates with anybody.

Robert H. Bork:

If we’re talking about the possession issue alone, that is correct, Mr. Justice Marshall.

The possession of marijuana is certainly treated as a crime by the military, whereas the possession of alcohol is not.

Thurgood Marshall:

Whether not with anybody else or not.

William H. Rehnquist:

Well, is fraternization itself a crime under the UCMJ?

Robert H. Bork:

No, I think the– only if it reaches a level where it does become destructive of discipline.

I suspect that fraternization which was regarded as unseemly would be handled by a word to the officer.

Fraternization which becomes destructive of the relationship which the military must foster will ultimately reach a criminal level in that sense.

Fraternization which involves participation in a criminal activity is obviously a crime, but I wanted to reach the issue of possession because– and I may say on the other issue, the– when it is behavior between an officer and an enlisted man that is criminal, the Civilian Courts will never fully vindicate the military’s interest because there is no element of any civilian crime which consists of the discipline that– the discipline-destroying aspect of this relationship.

Now, the charge of possession I think is equally serious and I think equally service-connected.

The military regard the use of drugs as highly detrimental to effective military performance.

They may not be in any individual case.

That is hard to say.

On the average, the military has good reason to know that the use of drugs is highly destructive to the efficacy of the Armed Forces.

Robert H. Bork:

Now, it may be that a variety of civilian jurisdictions will ultimately decriminalize marijuana.

It may be that many of them won’t.

The military cannot afford to decriminalize marijuana because they think, on a basis of experience, on a basis of evidence that the drug tends to decrease efficacy, and that cannot be tolerated by an army.

Potter Stewart:

So, wouldn’t alcohol also?

Robert H. Bork:

It will if overused, yes.

Potter Stewart:

And this is off based, wasn’t it?

Robert H. Bork:

That is true, Mr. Justice Stewart, but I suspect that the– I’m sure that the impact of the drug on personal wellbeing is the same whether you’re in uniform, out of uniform, or on base, or off base.

Potter Stewart:

Well, same is true with alcohol, isn’t it?

Robert H. Bork:

That’s true.

An abuse of alcohol is a military offense off base or on base.

The military regards that as an offense.

Warren E. Burger:

Then do you not have the related factor that comes into this picture somewhere, if enlisted men generally get the impression that the officers tolerate the use of marijuana or other drugs which would go to your broad-based argument about maintenance of discipline, would it not?

Robert H. Bork:

That’s right.

It certainly would, Mr. Chief Justice.

I think one must look at this as a widespread problem in the Army.

This is not a problem of Captain Councilman and a few of his off duty peccadilloes.

This is a serious widespread concern to the military.

Now, I think at page 17 of our brief, to illustrate the problem, we have some figures which show how serious the problem is.

And, on page 17 and running around 18, the brief states that, in 2 years, over 86,000 servicemen underwent rehabilitation for drug use and that 48% of those were unable to return to active duty.

Now, that means something like a little over 40,000 men in 2 years were lost of the Army– of the Armed Forces through drug use, and that is the equivalent of 2 Army divisions being lost without being fired and that’ the kind of problem we’re talking about and the kind of problem the military faces.

A civilian society, in balancing its values, may decide it doesn’t care about efficiency, about effectiveness, and what an individual does to himself is his own concern and there may be a good deal to be said for that individual.

Harry A. Blackmun:

Mr. Bork, I noticed you have consistently referred to drug use.

Isn’t this a marijuana case?

Robert H. Bork:

I’m– yes, it’s a marijuana case.

I perhaps should confine it to that, but marijuana, the military thinks as many people think, has some relationship, and not a perfect one but then again not a insignificant one, to other drug use.

And, in itself, is increasingly thought to be harmful and particularly thought to be harmful to motivation.

Heavy uses of–

Harry A. Blackmun:

Well, there’s some thinking that alcohol also does the same thing.

Robert H. Bork:

Mr. Justice Blackmun, I think that’s correct but I think it’s fundamentally a mistake for us to think that if a society has learned to tolerate alcohol over a period of years and punish only its severe abuse in the military, that it then becomes somehow unconstitutional or illegal for that society to make a different judgment about marijuana, whose effects in some respects may be similar and in some respects may be different, but I think it’s an allowable legislative judgment that, on a basis of present knowledge and on a basis of the experience we have, marijuana may be regarded by any jurisdiction, civilian or military, as a more serious threat.

The military so regards it, and I think allowably.

Robert H. Bork:

In fact, I think much of the contrary feeling to my own about this case rests upon an unarticulated notion that, perhaps, marijuana ought to be decriminalized.

I don’t know whether marijuana ought to be decriminalized or not.

I do think that’s a judgment for each jurisdiction involved, and the military has made its judgment.

I certainly think it’s a very reasonable judgment for the military to make and, therefore, one that not– ought not to be upset.

This is a massive problem for the military.

They have lost a great deal of efficiency and loss of personnel through the drug problem, of which the marijuana problem is a part.

So, I think both–

Potter Stewart:

The alcohol problem must be a part also.

It’s a drug, isn’t it?

Robert H. Bork:

Yes, it is a drug, Mr. Justice Stewart.

Potter Stewart:

And, in your brief on pages 17 and 18 the two are linked, I noticed, at least by the title of the hearing.

Robert H. Bork:

Well, the mili– I’m not quite–

Potter Stewart:

On the– on review of military drug and alcohol programs.

Robert H. Bork:

Yes.

I’m not quite certain why the subject of alcohol rises here because the military does concern itself with the abuse of alcohol.

Potter Stewart:

Well, the– unless, again, times have changed in the one branch of the military, i.e. the United States Navy, has concerned itself not only with the abuse of alcohol, with any possession of any kind of alcohol–

Robert H. Bork:

Aboard ship.

Potter Stewart:

On any ship of the United States Navy, yes?

Robert H. Bork:

Aboard ship, that’s certainly true, Mr. Justice Stewart, but I think the Navy would take the position that drug possession off base, out of uniform is service-connected, whereas alcohol possession off base, out of uniform they would not regard as service-connected.

And, I think that’s an allowable legislative distinction, an allowable judgment.

It’s one that our society generally makes and I don’t see why it should be denied to the military and I think, indeed, is justified.

For these reasons, I think both because of the relationship between the officer and the enlisted man in a known criminal transaction which the Civilian Courts cannot fully vindicate and the possession issue, which I think the military is entitled to view as service-connected because of its disastrous effect upon efficiency and upon availability of manpower as shown by the statistics.

I think both of these offenses, if the merits of this case are reached contrary to our submission that the District Court had no jurisdiction, require that the judgment be reversed.

Potter Stewart:

Is Toth against Quarles an injunction?

That was a habeas corpus, wasn’t it?

Robert H. Bork:

I believe so.

Potter Stewart:

It’s difficult to tell from the opinion, isn’t it?

Robert H. Bork:

I read that.

I was reading that yesterday trying to tell and, as I recall, Mr. Justice Stewart–

Potter Stewart:

Footnote number 2 or 3 or somewhere indicates it was habeas corpus.

Robert H. Bork:

It was.

Harry A. Blackmun:

Mr. Bork, can I ask you one other question.

Apart from this case, do you know of any Civilian Court precedent ruling that marijuana possession is service-connected?

Robert H. Bork:

A civilian– I don’t know of a– one of hand, Mr. Justice Blackmun.

That is the– unfortunately, that is not to say that there might not be one.

Harry A. Blackmun:

And do you know of any–

Robert H. Bork:

The Civilian Courts–

Harry A. Blackmun:

Any military case holding that marijuana possession is not service-connected?

Robert H. Bork:

No, I don’t.

There– I– In generally– in general, the Military Courts think it is and Civilian Courts have thought not.

Harry A. Blackmun:

No?

Warren E. Burger:

Mr. Garrett.

Nicholas D. Garrett:

Mr. Chief Justice and may it please the members of the Court.

I think that myself and the Court has granted split argument in this case, myself and Mr. Meyers.

He will address himself to the issue of jurisdiction.

I will attempt to address myself to the issue of service-connection as applied to O’Callahan and Relford, the related cases.

I think that the Solicitor General has maybe overstated this case to one extent, in that we will soon have, through the use of military agents, the servicemen of factoring jurisdiction.

And, as Justice Blackmun has pointed out, we now have a situation where the Courts of Military Appeals chains have uniformly held that possession is per se service-connected, and I would suggest that I don’t believe that that was the holding of either Relford or O’Callahan wherein the individual rights seem to be at stake at O’Callahan where we had the flagrant use of the military’s deciding jurisdiction was available, where the only thing was that he was a member of the service.

There was no other service-connection in an attempted raid off post, out duty, out of uniform.

The Relford case, I think, tried to limit or at least explain some of the factors that the military should look at in determining whether or not service-connection lied, and I think that we find that the military has, just by some means, has determined that marijuana is per se service-connected with– if you apply any of the factors set out either in O’Callahan or in Relford, you reach a different conclusion.

The only factor that the Relford decision would point to service-connection would be, in this case, the Councilman case, would be that of a victim.

And, I might suggest that, in this case, I’m not sure that victim was the kind of victim that O’Callahan spoke of and that Relford may have expressed itself to.

That is to say, this victim is not engaged in any military activity or duty.

This victim is an undercover agent who was holding himself out by the use of an alias and, in the facts in this thing, Councilman was provided to a party for the very purpose of having met this undercover agent and was held out to be not an undercover agent, but as a clerk typist.

Now, we would then have a– I think, the Army, stretching this thing, if they stretch it much further to the point that they have reached the fact that if a government instrumentality used, then they may decide this is jurisdiction and I know that the Military Courts of Appeals have uniformly held that it is service-connection, and I could only suggest that after the Army has all the facts before it, as It did in this case by virtue of a 32 hearing which is a hearing prior to the 39 (a) hearing where the evidence is a induced.

Then, at the 39 (a) hearing, the government called witnesses and more evidence was induced and, although the facts in this case are very limited because they were reached by stipulation, they’re the entire facts and there will never be any change in the structural circumstance.

The government called witnesses of 39 (a) and if they were present at the hearing before the District Judge and if there were to be additional facts that would be presented, I would suggest they certainly would have called witness before the district judge or would have cause be entered into another stipulation as they did in this instance and as attached to the brief in this matter.

Warren E. Burger:

Mr. Garrett, I’m not sure that I understand.

Perhaps I misunderstood your emphasis on the fact that this was a clerk typist but known to the captain as a member of the military force.

Is that correct?

Nicholas D. Garrett:

Yes, that is–

Warren E. Burger:

Now, would it make any difference to your case if he’d been a lieutenant, first-lieutenant, second-lieutenant instead of a clerk typist?

Nicholas D. Garrett:

No, I don’t–

Warren E. Burger:

Or just a man?

Nicholas D. Garrett:

Excuse me, Mr. Chief Justice.

I don’t draw that distinction.

What I’m saying is whether the undercover agent is a lieutenant, a captain, or a general even, he is not a “victim” as I think is contemplated by O’Callahan in terms of the test set out in Relford.

I don’t know if that answers your question, but I– perhaps you’re getting at the issue that it is a dealing between an officer and an enlisted man, and I can only suggest that the whole offense, if the service-connection test we had mean anything, we are dealing in a society that is– I mean, the factual situation are everything.

Both people involved, the “victim” and the– Captain Councilman, everything took place in an area outside of the reservation and he was not– this agent was not under the command of Captain Councilman, as far as active duty on base.

Captain Councilman was going to the school out there and, of course, the undercover agent was a– sent for the purpose of this.

Potter Stewart:

Mr. Garrett, are you or is your colleague going to address the jurisdictional question?

Nicholas D. Garrett:

Yes, sir.

The– I think, perhaps, the Court has fairly well-covered those items that– by questioning.

Those items seem to me to be important in this case and that is to say that public drunkenness is a crime conjurable in the military and in the Civilian Courts.

And, yet, we do not see soldiers that become drunk in the civilian communities dragged into the military system and Court-Martial.

Yet, we see this happening on several instances or in the numerous instances in the case of marijuana.

Now, it seems to me they’re applying a different standard and I think that that is a proper standard where they can then ignore by a selective prosecution and ignore the criteria laid out by Relford and O’Callahan.

Warren E. Burger:

Do you think it might make a difference if a captain gave a party and then invited a dozen enlisted men and they all made very excessive use of alcohol and, ultimately, the party went public and you had a public count in this criminal act you’re talking about.

Do you think that might conceivably be different from the private party?

Nicholas D. Garrett:

I think if the party reached such proportions as according to this where they spew out into the street and there are off post, then I think that then we would apply the Relford test to see if perhaps, there, there was service-connection in your fact situation and there may be, in that instance, and again depending on the facts, there may be service-connection enough where they bring them up on Court-Martial.

Warren E. Burger:

Possession of marijuana does not need to be in public in order to be a criminal act, does it?

Nicholas D. Garrett:

No, it does not.

It is against the law both in Oklahoma and in the military to possess marijuana, but I think, here, again either in that instance or your first case involving public drunkenness, I think we need to apply the test in Relford.

And, it may be that, in applying the test in a public drunkenness case, we might have a basis but, as far as detrimental effect in the broad argument that the Solicitor General is using in terms of the use of marijuana having a detrimental effect, I’m sure that alcohol has more than a detrimental effect in this instance.

That is to say that I think probably alcohol is a more severe problem in the Army than is marijuana.

Thurgood Marshall:

Is that in this case?

Harry A. Blackmun:

How many times in your experience have the Civilian Courts in your state taken over a case of drunkenness of a military person, public drunkenness, many times?

Nicholas D. Garrett:

Yes, it’s–

Harry A. Blackmun:

Why don’t they always turn it over to the military authorities?

Nicholas D. Garrett:

No, they do not.

Nicholas D. Garrett:

We live in a military community and public drunk charges are brought against soldiers in our town, I would suggest, at least 100 over the payday periods and they are treated as any other civilian that’d be in the city Courts.

And then, the record is released back to the military that the fact that he was confined in our Civilian Courts but, of course, then there’s no jeopardy attached.

It’s the only thing they didn’t do is make a note of administratively in his serviceman’s file.

Harry A. Blackmun:

He’d be sentenced for 10 days to the county jail?

Nicholas D. Garrett:

Actually, it’s a practical matter and in accordance of $25-50 fine in the civilian community for public drunkenness.

Harry A. Blackmun:

Where was the order?

Nicholas D. Garrett:

Fort Sill community is a lot in Oklahoma.

It’s a–

Thurgood Marshall:

Does that prevent the Army from moving in afterwards?

Nicholas D. Garrett:

Yes, it does, if there is a conviction in the Civilian Court.

Thurgood Marshall:

It does?

Nicholas D. Garrett:

Other than administratively, they make a note in a man’s file.

Thurgood Marshall:

You’ve got an agreement or something with the law?

Nicholas D. Garrett:

No, sir.

That’s just– there’s no way that they can try him again in the military for what took place, I mean if he’s tried in the Civilian Courts.

Thurgood Marshall:

After he’s tried?

Nicholas D. Garrett:

After he’s tried or after he pleads guilty.

Thurgood Marshall:

But the military could take him, couldn’t they, before trial?

Nicholas D. Garrett:

Yes, they could, but they never have.

Thurgood Marshall:

They just waive that they still have the right.

Harry A. Blackmun:

You better not concede that they could.

Nicholas D. Garrett:

I don’t think that they–

Harry A. Blackmun:

They’ll take away your case.

Nicholas D. Garrett:

Yes, but I’m not sure that they could just come in and take him and try him.

I mean, that’s certainly an off post offense without any service-connection unless we completely change what we are.

Thurgood Marshall:

Is the possession of the marijuana at all closed, is that an offense?

Do you agree that that is a military offense?

Nicholas D. Garrett:

What?

Thurgood Marshall:

The possession of marijuana, while a member of the military took in any place?

Nicholas D. Garrett:

No, only if it takes place within the confines of the base.

Thurgood Marshall:

And where do you get that from?

Nicholas D. Garrett:

Well, it seems to me that– I mean, I’m limiting– I can say, definitely, if he possesses marijuana on base that is a military offense.

Then, it seems to me, we have then the next.

If a serviceman possession– possesses marijuana off base, out of uniform, off duty, then it seems to me we will have the other side of the coin.

The military does not have jurisdiction.

And then, I think, as we apply the Relford factors to that, I think it may be we may reach whether they do or don’t have jurisdiction.

Thurgood Marshall:

If we weren’t dealing with a drug in any of the other cases.

Nicholas D. Garrett:

I’m sorry.

I don’t understand, sir.

Thurgood Marshall:

We weren’t dealing with drugs in any of the other cases, were we?

Nicholas D. Garrett:

In the other cases, Relford and O’Callahan?

No, sir, and I don’t think–

Thurgood Marshall:

We weren’t dealing with drugs, but now we’re dealing with drugs which the military decided as just that, unlawful and should be stopped.

Nicholas D. Garrett:

I’m not sure that the military– I’m not sure that the use of drugs or that the military can say that this crime, marijuana, is a different type of crime than any other crime.

In other words, I don’t see how we can ascribe some different status to marijuana–

Thurgood Marshall:

The possession of money is no crime, but possession of marijuana is.

Nicholas D. Garrett:

Yes.

Thurgood Marshall:

Of course it’s true, if it’s your own money.

Nicholas D. Garrett:

Yes.[Laughter]

Thurgood Marshall:

So they couldn’t make possession of certain substances a crime and dope is one, narcotics is one, and marijuana is one.

And, you don’t say that they can make that a crime to possess it, do you?

You only say they can make it a crime to be caught in the possession of it off the base.

Nicholas D. Garrett:

No, it’s a crime to possess marijuana in the military.

It’s a crime to possess marijuana in the civilian community.

But, in the issue of jurisdiction, it seems to me, or service-connection, it seems to me that there has to be something more than mere possession off post for the military to now say “we have jurisdiction.”

Thurgood Marshall:

Like what something else could it be?

Nicholas D. Garrett:

Captain Councilman, in this case, had mere possession off post.

Thurgood Marshall:

He picks an enlisted man and makes a deal to sell him marijuana.

If he’d sold it to a civilian, you might have a different case.

You might, but here is an officer, knowing his rank and knowing the enlisted man’s rank, selling him marijuana.

Thurgood Marshall:

Knowing that they’re both military people and knowing their rank, and you don’t see any problem with the military?

Nicholas D. Garrett:

Not in terms of the factual situation in this case.

There is not a victim as a– as such.

This is an undercover agent.

That is, holding him south– out to be a military man.

If we carry that argument further, it seems to me, we then have, if we have a civilian agent that holds him out to– holds himself out to be an undercover agent then he, in that instance, would be– they will find service-connection.

And, I don’t think that that’s– that has– I don’t– I think that’s the foggiest interpretation of O’Callahan.

The example I gave is the foggiest interpretation of Relford and O’Callahan.

If the Court please, I see my time has expired and that I would like–

Potter Stewart:

Your colleague is going to deal with the jurisdictional question?

Nicholas D. Garrett:

Yes, Your Honor.

Warren E. Burger:

Mr. Meyers.

Orin Christopher Meyers:

Mr. Chief Justice and may it please the Court.

This portion of our argument is devoted to the question of the propriety of the Federal District Court, injunction of the pending Court-Martial.

Our argument here is predicated on this Court finding that there is no service-connection on these facts.

If the Court does find that there is sufficient service-connection to allowing Court-Martial prosecution in the off post, out of uniform, off duty, etcetera possession and transfer of marijuana, then it is true and I would agree that Captain Councilman should stand trial by Court-Martial.

But if, however, you agree that there was not sufficient service-connection here and that if Captain Councilman is to be tried, he should be tried by civilian authorities instead of military authorities then the Court-Martial has no jurisdiction and has no authority at all to try this man and we have, therefore, no duty to exhaust our remedies within the military system.

Now, this Court–

Potter Stewart:

Mr. Meyers, we’re not talking about the merits of the case.

I mean, the jurisdictional question, I think, doesn’t depend upon the element merits of your claim, does it?

It depends upon the– whether or not every single Court-Martial can be tested out and advanced in a Federal District Court by way of the punitive defendant, the proof defendant, the Court-Martial defendant bringing, as a plaintiff, an action for an injunction.

Orin Christopher Meyers:

I did intend to reach that, Mr. Justice Stewart.

The way that I intend to reach it is to develop, first of all, whether the military has the jurisdiction to try an individual for a particular offense.

As I was saying, this Court has set out in the O’Callahan opinion a two-step inquiry to determine whether the Military Court has jurisdiction in the first place to try a person.

This two-step inquiry requires asking the question, first of all, is this individual subject to the Uniform Code of Military Justice?

And if that question be answered in the affirmative, then the second question arises.

The second question being, is this particular offense which is alleged here sufficiently service-connected to allow the Military Court to have jurisdiction?

Now, unless both of these questions be answered in the affirmative, then the Military Court has no jurisdiction in the first place to try an individual.

The question then arises if an individual finds himself in this position, that is, about to be deprived of his rights and tried by the military when the military has no jurisdiction, then what does he do?

And, the collateral question, of course, is whether or not the individual must exhaust his remedies within the military system before he can even raise the matter of whether or not the Court-Martial has jurisdiction.

Potter Stewart:

Well, it’s– is that the only way to put it?

It really is whether or not a Federal District Court has any jurisdiction at all over this kind of a claim or whether the only function of the Civilian Courts is to deal with habeas corpus applications.

Orin Christopher Meyers:

I think that whether the Civilian Court has jurisdiction at all and when the jurisdiction of the Civilian Court arises depends upon whether or not the Military Court has jurisdiction.

It is my position that if the Military Court has jurisdiction, then the Civilian Court should stay out of it.

However–

Potter Stewart:

But it’s up to the Civilian Court in an injunctive– in an action for an injunction to determine the question, you say, up to the Federal–

Orin Christopher Meyers:

I say that–

Potter Stewart:

To a Federal District Court?

Orin Christopher Meyers:

Yes, sir.

The Civilian Court–

Potter Stewart:

This would mean that in every single case where there’s a threat in Court-Martial the defendant could come into a Federal District Court and try this question out in the Federal District Court in an action for an injunction to enjoin the Military Court-Martial, is that right?

Orin Christopher Meyers:

I think that’s not correct, although I would say that, certainly, an individual always maintains his constitutional rights and always the Civilian Courts stand ready to protect these constitutional rights that they’re infringed.

Potter Stewart:

What cases do you have where–

Orin Christopher Meyers:

I– in Toth versus Quarles which is–

Potter Stewart:

Is that an injunctive proceeding?

Orin Christopher Meyers:

That was a habeas corpus proceeding.

Potter Stewart:

That’s what I thought.

Orin Christopher Meyers:

And, in Toth versus Quarles, a man who, as you recall it, been discharged in the Army.

Potter Stewart:

Right.

Orin Christopher Meyers:

He has retired his carrier and was charged for murder.

This Court, applying the two-step test, found service-connection murder in the Army, but the individual is not subject to the Uniform Code of Military Justice.

Therefore, both steps were not met.

Therefore, the military does not have jurisdiction.

Therefore, we do not require the exhaustion of remedies and habeas corpus a proper relief.

William H. Rehnquist:

But that was after he had been tried.

The military proceedings were all over in Toth, weren’t they?

Potter Stewart:

It had taken him up to–

Orin Christopher Meyers:

No, Mr. Justice Rehnquist, the man was taken from Pennsylvania, I believe, back to Korea.

Potter Stewart:

Back to Korea.

Orin Christopher Meyers:

To stand trial for murder and, before the military could proceed with the murder trial, the matter was raised by habeas corpus.

Potter Stewart:

I think that’s correct.

It was a pre-trial habeas corpus.

Orin Christopher Meyers:

I believe you’re referring to the facts in Gusik.

William H. Rehnquist:

Well, I was thinking of Reid against Covert and Schilder.

Potter Stewart:

Right, those were post convictions.

Orin Christopher Meyers:

Reid against Covert was a situation where a military dependent was– stood accused of murdering her serviceman husband.

Again, this Court, applying the two-step test, found that, okay, service-connection for killing the fellow but the first step fails because the wife is not subject to the Uniform Code of Military Justice.

Therefore, this Court did not require exhaustion of remedies and habeas corpus as a relief.

William H. Rehnquist:

But, there in Reid the trial had taken place, hadn’t it, in the military–

Orin Christopher Meyers:

I believe not.

Habeas corpus was the remedy and this Court did not require the exhaustion of remedies in Reid.

William H. Rehnquist:

But, well– at any rate, in both– in Reid, the person was a civilian, were they not?

Orin Christopher Meyers:

In Reid, the person was a civilian, the wife of the serviceman whom she murdered.

Potter Stewart:

And the action was one for habeas corpus.

Orin Christopher Meyers:

That’s correct.

The third case along these lines is McElroy versus Guagliardo where civilian employees in the military were accused of stealing middle-type property.

Again, the second part of the test, that is service-connection, is probably present.

However, the people were found not to be subject to Uniform Code of Military Justice.

Therefore, exhaustion was not required and the military could not proceed.

Habeas corpus.

Potter Stewart:

Was that an injunction?

Orin Christopher Meyers:

Habeas–

Potter Stewart:

Was that an action?

Orin Christopher Meyers:

No, sir.

Habeas corpus was the remedy as well.

Potter Stewart:

Except for the case that we heard yesterday in Avrech.

Are there any other cases where–

Orin Christopher Meyers:

I do have a file, a case.

Dooley versus Ploger is a Fourth Circuit case.

Potter Stewart:

This isn’t in your brief, is it?

Orin Christopher Meyers:

Sir?

Potter Stewart:

It’s not in your brief.

Orin Christopher Meyers:

Dooley versus Ploger, I believe, is cited in the government’s brief and also in the amici brief.

Potter Stewart:

Dooley?

Orin Christopher Meyers:

Dooley versus Ploger.

Excuse me.

That should be Sedivy versus Richardson, and that case was a case involving the off post, off duty possession of marijuana.

The Circuit Court said that injunctive relief in that case was not proper, and the reason was that the facts were not clearly presented to the Military Court.

So that the Military Court never had the opportunity to determine whether or not there was service-connection and that, I submit, is a significant distinction between the Sedivy case and the facts which are now before this Court.

The government–

Potter Stewart:

The way you explain it, it was sort of a decision on the merits.

The General Civilian Court did not refrain from entertaining jurisdiction, the way you explained it.

Orin Christopher Meyers:

The–

Potter Stewart:

But just denied the injunction, is that it?

Orin Christopher Meyers:

The Cir– the District Court allowed an inju– enjoined the Court-Martial proceedings.

The Circuit Court said the injunction was not proper because–

Potter Stewart:

On the merits.

Orin Christopher Meyers:

On the merits, because the military did not have a chance to develop the facts in that particular case.

Potter Stewart:

But didn’t– but the Court of Appeals did not say, as you explained it to us, that the District Court was without jurisdiction to consider the matter, did it?

Orin Christopher Meyers:

That is my understanding of the case.

Potter Stewart:

Well, I just simply think so.

Orin Christopher Meyers:

I’d like to continue the line that I had started– continue on the two-step inquiry.

Gusik, I believe, is a case that you’re referring to, Mr. Justice Rehnquist, in which the person charged was in the military.

He had already gone through several trials for murder, and he brought the action to this Court asking for habeas corpus and, at that time, a new type of relief was passed by statute I believe.

This Court required him to then go back and exhaust all of those remedies.

I think, properly so because, applying the two-step inquiry, one, the person was subject to the Uniform Code of Military Justice and, two, the offenses he committed, murder of another serviceman in the service, certainly would satisfy the service-connection.

So, on both points of the two-step inquiry, it points toward military jurisdiction and I think, in that situation, a man should be required to exhaust all of his military remedies.

This was basically the same situation in Noyd versus Bond in which an officer refused orders to teach pilots or train pilots for duty in Vietnam.

If you’re applying the two-step inquiry, we find a captain in the Army on active duty subject to the Uniform Code refusing an order, certainly a service-connected offense.

The Court properly held then that the man should be required to exhaust his in-military remedies.

Orin Christopher Meyers:

The Court also pointed out that in Noyd versus Bond there was a particular question as to a technical interpretation of a language in the Uniform Code of Military Justice.

In a footnote in Noyd versus Bond, this Court cited Toth, Reid, and McElroy, the cases I’ve just discussed, pointing out that this Court had vindicated the claim of individuals without requiring the exhaustion of military remedies for the reason that this Court did not believe that the expertise of the military extended to the consideration of the types of constitutional claims there presented.

And, moreover, it appeared especially unfair to require exhaustion of military remedies where the complainants raised substantial arguments denying the right of the military to try them at all, and I believe that’s where we are here today as well.

Let us–

(Inaudible)

Orin Christopher Meyers:

Sir?

Thurgood Marshall:

He is in the military.

Orin Christopher Meyers:

He is in the military, I agree, Your Honor.

Let us apply the two-step inquiry to the facts before us here.

Potter Stewart:

And you say that is step one only.

Orin Christopher Meyers:

Step one.

Potter Stewart:

And step one is–

Orin Christopher Meyers:

Is this man subject to the Uniform Code of Military Justice?

Certainly, he’s a captain on active duty in the Army.

Is this offense sufficiently service-connected to allow Court-Martial jurisdiction?

We feel that, based on this Court’s opinion in O’Callahan and Relford applied to the facts in this situation, this offense is clearly not sufficiently service-connected to allow the military to try this man.

Now, we don’t say he shouldn’t be tried.

What we say is that he should be tried in a Civilian Court where he has his Article 3 and Fifth and Sixth Amendment rights.

Thurgood Marshall:

What if one of the other people that Councilman sold heroine to brought it back into the post, would that be military then?

Orin Christopher Meyers:

Let me point out first, Mr. Justice Marshall, we’re dealing with marijuana and not heroine.

Now, if Captain Councilman or an individual serviceman off post, off duty, out of uniform sells some controlled substance to another person and that, just by selling it to another person, certainly he’s committed a crime, but he should be tried in the Civilian Courts.

If the person to whom he sells it brings it–

Thurgood Marshall:

If he brings it back onto the post.

Orin Christopher Meyers:

Then the second man is committed– has committed the service-connected offense.

The service-connected of–

Thurgood Marshall:

Councilman has?

Orin Christopher Meyers:

Councilman has not committed the service-connected offense.

Councilman has–

Thurgood Marshall:

So, Councilman sells marijuana at the post on this side of the gate, it’s service-connected.

If he sells it on the other side of the gate, it’s not.

Thurgood Marshall:

Yes or no?

Orin Christopher Meyers:

Your Honor, I think the answer to that would have to be yes, all things– all other things being equal.

Harry A. Blackmun:

Why do you say that this is a proper matter for us as a Civil Court when the civilian authorities turned your man over to the military authorities?

And, this is a fact in your case, is it not?

Orin Christopher Meyers:

It is a fact, Mr. Justice Blackmun.

Harry A. Blackmun:

And this doesn’t jive with your co-council’s statement that your local Oklahoma Courts are taking care of these things, do you, day by day?

In my experience, at least my impression anyway, is that the average Civilian Court is eager to have the military take care of their own problems.

Orin Christopher Meyers:

Not in this situation.

Military Courts were fully open for the trial of this particular type of offense.

Harry A. Blackmun:

The civilian authorities turned him over to the military.

They didn’t want to have anything to do with him.

Orin Christopher Meyers:

They did.

The civilian authorities did turn him over to the military not, I think, because they didn’t want anything to do with him.

I don’t know why they did it, but I merely say that I know that on many, many occasions the military people are tried in the Civilian Courts for just this type of offense.

It is certainly not the practice of the civilian authorities to turn over people to the military simply because they’re in the military for offenses which the military persons commit in the civilian community.

The civilian authorities try them regularly.

Harry A. Blackmun:

How many times do you think that New Port knows do the Virginia Courts try public drunkenness of sailors on shore leave?

Orin Christopher Meyers:

I have no idea.

Harry A. Blackmun:

To which is it different from Fort Sill?

Orin Christopher Meyers:

Mr. Justice Blackmun, I assure you the situation is different at Fort Sill.

It is the rule that if a serviceman commits an offense–

Harry A. Blackmun:

If it’s the rule, they wouldn’t have turned him over to the Military Courts in this case.

Orin Christopher Meyers:

The military authorities in this particular case particularly requested that Captain Councilman be turned over to them, and I think that the reason is this is a captain.

This is an unusual situation.

There, at least it was to the military, that a captain would be, having something to do with marijuana, I think that perhaps–

Warren E. Burger:

In relation with an enlisted man.

Orin Christopher Meyers:

In– yes.

William H. Rehnquist:

Well, is there some basis for thinking that officers are less prone to use marijuana than enlisted men?

Orin Christopher Meyers:

I don’t know the answer to that question.

I don’t know why the military thinks the way they do, but I merely observed that this is what happens.

Thurgood Marshall:

Mr. Meyers, what about this stipulation that many of the military offenders apprehended for drug sales and transfers to scads if a civilian community have been tried by the civilian authorities but some have been tried by the military?

Orin Christopher Meyers:

I merely say that this is– there were three captains.

There were three captains involved in this particular case.

Thurgood Marshall:

We’ll they’re not talking about this particular case, are they?

Orin Christopher Meyers:

Well, I know that in this particular case–

Thurgood Marshall:

In this general statement on page 24, “many of the military offenders apprehended for drug sales and transfers,” that’s not talking about this case.

It’s talking about the general work of this undercover agent, isn’t it?

Orin Christopher Meyers:

That is correct, Your Honor.

The– sometimes–

Thurgood Marshall:

Well, who made the decision as to which ones he gave to the civilian and which one he gave to the military?

Orin Christopher Meyers:

The military.

I see that my time is up.

Warren E. Burger:

Your time is up.

Mr. Solicitor General, do you have anything further?

Robert H. Bork:

Mr. Chief Justice, I just wish to respond more fully to Mr. Justice Blackmun’s question about the cases.

At the time you asked me, Mr. Justice Blackmun, I was perfectly accurate in saying I did not know of any such cases.

The situation has changed.

On pages 714 and 15 of the government’s brief in footnote 4, running over from page 14 to 15, there is a citation of some Civilian Courts that have held drug offenses off post, including a marijuana offense, to be service-connected.

And, in the amicus brief filed by the American Civil Liberties Union on page 14, there is an instance where one military judge held a marijuana offense not to be service-connected.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.