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March 8, 1971

Richard V. MILLER and Jeffrey Greenstein, Plaintiffs,
Nelson ROCKEFELLER, Governor of the State of New York, Commander in Chief of the New York Army National Guard, Martin Forey, General, New York Army National Guard, Lt. Colonel Alfred Rothwell, Commanding Officer, First Battalion, 105 Artillery, and Lt. Colonel Joel Brettschneider, Staff Judge Advocate, New York Army National Guard, Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Plaintiffs are enlisted members of the New York Army National Guard who were tried and convicted by a summary court-martial and sentenced to 25 days in jail and a $25 fine for allegedly displaying peace signs during last year's Memorial Day parade.

 Plaintiffs now move, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction to enjoin defendants from executing an arrest warrant to incarcerate plaintiffs. Plaintiffs have also requested the convocation of a three-judge court to determine the constitutionality of the New York Code of Military Justice as applied to plaintiffs and, more particularly, of the several summary court-martial provisions thereof pursuant to which plaintiffs were tried, convicted and sentenced. Defendants have moved for an order dismissing the complaint or alternatively for summary judgment in their favor.

 This action allegedly arises under the First, Fifth, Sixth and Fourteenth Amendments to the Constitution and Title 42 U.S.C. § 1983. Jurisdiction is predicated on 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 and 2202.

 Plaintiffs Richard Miller and Jeffrey Greenstein, both residents of New York City, are members of the organized militia of the State of New York, having enlisted in the New York Army National Guard in April 1967 and October 1965, respectively. Both men completed their four months active duty training (basic training) in 1967 and have since returned to civilian life except for attendance at bi-weekly required drills at the Armory and annual two-week summer camps. They are presently assigned to B Battery, 1st Battalion, 105th Artillery, New York Army National Guard.

 On May 30, 1970, plaintiffs were participating with their unit in a Memorial Day parade along the Grand Concourse in the Bronx, New York. During the parade, while riding in the back of their trucks, plaintiffs displayed printed signs bearing the legend "National Guardsmen Against the War," which signs also contained the well known "peace symbol." At about 10:30 a.m., plaintiffs' signs were confiscated by Captain John F. Boyle, who had apparently noticed their signs when he observed several civilian bystanders become excited and start towards plaintiffs' trucks. When the parade concluded at about 11:30 a.m., plaintiffs returned to the Armory and were reprimanded by Captain Boyle for their actions. Then, apparently without advising them of the possibility of any punishment, see § 130.31, New York Military Law, McKinney's Consol. Laws, c. 36, the captain proceeded to ask plaintiffs whether they were aware that an order had been given earlier that morning not to carry any signs in the parade or to make any "gestures," to which both plaintiffs replied in the negative. The facts beyond these are in substantial dispute.

 While it is clear that plaintiffs were thereafter directed to report to Captain John J. Hourigan, Jr., the commanding officer of their Battery, the parties disagree as to whether, prior to questioning, Captain Hourigan ever informed plaintiffs of their rights to silence, counsel, and against self-incrimination, and as to whether at this point plaintiffs actually acknowledged having heard their commanding officer's order not to display signs during the parade. Thereafter, charges and specifications, of which plaintiffs apparently never received written copies, *fn1" were drawn up by Captain Hourigan accusing plaintiffs of having violated §§ 130.88 and 130.115 of the Uniform Code of Military Justice. *fn2"

 At about 1:00 p.m. of the same day, plaintiffs were arraigned before summary court-martial officer Major John A. Buonaiuto, Jr. Here, too, the parties differ in several significant respects in their recollection of the events which transpired at the court-martial proceeding itself. The general areas of their disagreement, the details of which are not critical to the disposition of the instant motions, concern: whether plaintiffs were ever advised of their right to civilian counsel at their own expense and of their right to an adjournment in order to obtain such; whether the charges and specifications against plaintiffs were ever read or presented to the accused, and, if so, whether these and all other statements made by the summary courtmartial officer were read at a normal conversational speed so as to be easily understandable; whether plaintiffs were advised of the maximum punishments allowable under the State Code in a summary court-martial; whether, in fact, any witnesses (namely, Captains Hourigan and Boyle) were ever called to testify against plaintiffs and, if so, whether plaintiffs were given an opportunity to confront and cross-examine such witnesses; and finally, and perhaps most importantly, whether plaintiffs were advised of their right to plead guilty or not guilty and whether plaintiffs in fact did, as defendants maintain and plaintiffs vehemently deny, plead guilty to all of the charges and specifications against them.

 In any event, it is undisputed that at the conclusion of the proceeding Major Buonaiuto sentenced both of the accused to confinement in the Civil Jail of the City of New York for 25 days and a fine of $25. Following the court-martial, the findings and sentence of that court were automatically reviewed by both the convening authority (the Battalion Commander), defendant Lieutenant-Colonel Alfred Rothwell, and by the supervisory authority, defendant Major General Martin Forey, Commanding General, 42nd Infantry Division, New York Army National Guard, and the sentences ordered into execution. This appellate review was carried out, as is the custom under the New York Military Law, on the basis of the court record below and without the knowledge or participation of the accused. *fn3" Similarly, it is not disputed that prior to bringing on this action plaintiffs were offered one further military review of their conviction, this time by the Staff Judge Advocate, defendant Lieutenant-Colonel Joel H. Brettschneider, pursuant to the discretionary review provisions of Regulation 8, Division of Military and Naval Affairs of the State of New York, para. 74(c). Plaintiffs chose to decline this additional offer of review as being in their opinion meaningless, unrequired (by the New York Code of Military Justice), and unsatisfactory to the achievement of full relief.

 Thereafter, a warrant was executed for plaintiffs' arrest, at which point plaintiffs instituted the instant action and obtained, by order to show cause, the temporary restraining order against their arrest.

 Plaintiffs attack the constitutionality of their summary court-martial conviction on numerous grounds. First, they argue that the summary court-martial proceeding itself, whereby a single military officer acts as judge, jury, prosecutor and defense counsel, and which allegedly denies an accused other basic requirements of due process of law, violates the Fifth, Sixth and Fourteenth Amendments. *fn4" Second, plaintiffs urge that, even assuming in general the constitutionality of the summary court-martial proceeding, the military can exercise no court-martial jurisdiction whatsoever over National Guardsmen (like plaintiffs) not on active duty. *fn5" Third, plaintiffs challenge, on equal protection and federal supremacy grounds, the constitutionality of § 130.20(b) of the New York Code of Military Justice, which affords to persons on active state duty, but not to those on inactive duty, the right to object to trial by summary court-martial and to be tried instead (unless they have previously been offered and have refused non-judicial punishment under the provisions of § 130.15) by special or general court-martial, thereby becoming eligible for the appointment of defense counsel pursuant to § 130.27(a) of the Code. Plaintiffs also suggest that their summary court-martial was jurisdictionally defective in that the charges and specifications to which they allegedly pleaded guilty and for which they were convicted, namely, violations of §§ 130.88 and 130.115 of the Uniform Code of Military Justice, do not exist as such in that Code. *fn6" Finally, plaintiffs contend that the summary court-martial officer exceeded the bounds of his authority by sentencing plaintiffs to both 25 days in jail and $25 fine, thereby violating paramount federal law which apparently permits such punishments only in the alternative.

 Despite the obvious weightiness of at least some of these constitutional claims, see infra, the court is required to decline jurisdiction in the instant case. It is settled law that the Civil Rights statute cannot be used by a state prisoner to circumvent established rules of comity and the requirement of the federal statute that habeas corpus shall not be granted unless it appears that the applicant has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254; Smartt v. Avery, 411 F.2d 408 (6th Cir. 1969); Greene v. State of New York, 281 F. Supp. 579 (S.D.N.Y. 1967); Lombardi v. Peace, 259 F. Supp. 222 (S.D.N.Y. 1966). Yet, if this court were to assume jurisdiction here, such circumvention, with its consequent abrasive effect on statefederal relations, would be the inevitable result. Negron v. Wallace, 436 F.2d 1139 (2d Cir., decided Jan. 4, 1971, Friendly, J.). Thus, it has been regularly held, as it must be here, that the redress of alleged civil rights violations incurred in state criminal proceedings or the release from allegedly unlawful custody of persons imprisoned by state courts may not be secured under the Civil Rights Act, but only by resort to habeas corpus. See, e.g., Martin v. Roach, 280 F. Supp. 480 (S.D.N.Y. 1968); Peinado v. Adult Authority of Department of Corrections, 405 F.2d 1185 (9th Cir. 1969); Johnson v. Walker, 317 F.2d 418 (5th Cir. 1963).

 In the instant action plaintiffs not only charge unconstitutional detention resulting from illegalities in their court-martial trial and conviction, but also challenge the very jurisdiction of the court -- the two classic concerns of a writ of habeas corpus. See Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), reh. denied, 346 U.S. 844, 74 S. Ct. 3, 98 L. Ed. 363 (separate opinion by Frankfurter, J.); United States ex rel. Innes v. Hiatt, 141 F.2d 664, 665-666 (3rd Cir. 1944) (Maris, J.). Although plaintiffs have been temporarily spared incarceration pending the adjudication of this motion, it is clearly the legality of such confinement which they seek to contest and the imposition of such confinement which they seek to avoid. That plaintiffs are indeed challenging the lawfulness of their detention is made obvious by the prayer for relief in their complaint "that defendants be permanently enjoined from enforcing said warrant of arrest and from otherwise constraining or confining plaintiffs to a prison term for acts hereinbefore set forth." In the posture of this case such relief may be obtained only through the vehicle of habeas corpus.

 Nor can plaintiffs find support for this § 1983 action in the Supreme Court's ruling in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). Dombrowski authorized only a limited expansion of federal injunctive relief against some types of abusive imminent state criminal prosecutions threatening constitutionally protected expression. It did so by carving out an exception to the abstention doctrine authorizing federal court intervention in threatened state criminal proceedings where a state penal statute regulating speech is justifiably attacked, on its face, as being unconstitutionally vague, or, as applied, as discouraging protected civil rights activities. Id., at 489-490, 85 S. Ct. 1116. *fn7" In the case at bar, however, the court is not confronted with an imminent prosecution designed to discourage the exercise of civil rights, but rather with a fait accompli. Plaintiffs have been tried, convicted, and sentenced. Indeed, most, if not all, avenues of military appellate review have already been exhausted. No further prosecutions are threatened, or even contemplated. Nor do plaintiffs seek to enjoin a pending criminal proceeding. On the contrary, the single prosecution of which plaintiffs complain and which itself arose out of a single isolated incident in last year's Memorial Day parade has been definitively concluded. *fn8" In addition, this is clearly not the case of a bad faith prosecution designed to inhibit fundamental First Amendment rights or of a state statute being facially invalid as abridging free expression. Rather, plaintiffs are charged with violating two military statutes, the legitimate military objectives of which are to discourage disobedience to lawful orders and to prevent actions which might disrupt order and discipline or bring discredit upon the militia. The mere fact that in this particular case plaintiffs' alleged actions may have constituted not only disobedient and disruptive behavior under military standards, but also, coincidentally, "symbolic speech" under civilian constitutional standards, cannot convert these statutes serving justifiable military ends into overly broad regulations violative of the First Amendment, nor can it be allowed to pervert the objectives of prosecution apparently brought in good faith. Indeed, even if these statutes were to circumscribe directly the exercise of free speech in certain military contexts, it is not likely that plaintiffs would be in any better position under Dombrowski to maintain the instant action. For, as the Court of Appeals for this Circuit recently made clear in Raderman v. Kaine, 411 F.2d 1102, 1104 (2d Cir. 1969):


"If [plaintiff] asks: Does being in the Army curtail or suspend certain Constitutional rights?, the answer is unqualifiedly 'yes'. Of necessity, he is forced to surrender many important rights. He arises unwillingly at an unreasonable hour at the sound of a bugle unreasonably loud. From that moment on, his freedom of choice and will ceases to exist. He acts at the command of some person -- not a representative of his own choice -- who gives commands to him which he does not like to obey. He is assigned to a squad and forced to associate with companions not of his selection and frequently the chores which he may be ordered to perform are of a most menial nature. Yet the armed services, their officers and their manner of discipline do serve an essential function in safeguarding the country. The need for discipline, with the attendant impairment of certain rights, is an important factor in fully discharging that duty."

 Thus, plaintiffs' reliance on Dombrowski as a justification for federal injunctive relief under the Civil Rights Act is clearly misplaced.

 Likewise, even viewing plaintiffs' civil rights complaint as an application for habeas corpus, the court must decline jurisdiction, for plaintiffs have patently failed to exhaust their state remdies. Plaintiffs clearly have an available state remedy by way of writ of habeas corpus in the state courts. *fn9" For, although § 130.72 of the New York Military Law provides that the proceedings, findings, and sentences of military courts-martial convened pursuant to the State Code of Military Justice are final, conclusive and binding upon the courts of the state, the New York courts have nevertheless held that "the legality of the restraint under the authority of a court-martial may be reviewed by a civil court to the extent of determining the existence of jurisdiction, or whether a punishment 'forbidden by the law' has been inflicted." People ex rel. Pantano v. Sheriff of City of New York (Sup. Ct., New York County, 1963), 38 Misc. 2d 879, 238 N.Y.S. 2d 886, 887-888. *fn10" In addition, if the circumstances *fn11" of the court-martial and the manner in which it was conducted were lacking in the basic standard of fairness required by the due process clause (thereby depriving the military court of its "jurisdiction" to proceed), the New York civil courts will also intervene upon a petition for habeas corpus. Id., at 888, 238 N.Y.S.2d 886; United States ex rel. Innes v. Hiatt, supra, 141 F.2d at 666. See also Burns v. Wilson, supra, 346 U.S. at 142-143, 148-149, 152-154, 846-848, 73 S. Ct. 1045, 74 S. Ct. 3; Shapiro v. United States, 107 Ct. Cl. 650, 69 F. Supp. 205, 207 (Ct. Claims 1947). *fn12" Thus, whether plaintiffs' claims be concerned with traditional questions going to the formal jurisdiction of the military court or with broader questions going to the constitutional propriety of the summary court's judgment of conviction, they may properly be the subject of inquiry in a habeas corpus application in New York state court.

 It follows, then, that the scope of habeas corpus open to the state courts on review of judgments of conviction pronounced by military courts-martial is fully broad enough to encompass the particular constitutional claims asserted by plaintiffs herein. Three prongs of plaintiffs' attack on their conviction -- namely, their status as inactive duty guardsmen, the allegedly defective recitation of the charges (§§ 130.88 and 130.115 of the Uniform Code of Military Justice) for which they were convicted, and the allegedly unlawful imposition of dual punishments (fine and imprisonment) -- present classical examples of technical questions going to the jurisdiction of the sentencing court. Similarly, plaintiffs' remaining challenges to their convictions alleging particular constitutional deprivations within the summary proceeding itself -- specifically, their charges of denial of due process and of other more specific constitutional guarantees (right to counsel, confrontation of witnesses, etc.) as well as their attack on the constitutionality of § 130.20(b) of the New York Code (which provides active duty, but not inactive duty, guardsmen the right to object to trial by summary court-martial) -- raise questions for the state court falling well within the confines of the judicially broadened concept of "jurisdiction." Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and the separate opinion of Justice Frankfurter in Burns v. Wilson, supra, 346 U.S. at 846-848, 74 S. Ct. 3, 98 L. Ed. 363. Hence, it is clear that plaintiffs may obtain complete review of their military court convictions by way of habeas corpus in the state civil court system. Nor may defendants contend that plaintiffs are foreclosed from such review by reason of their having allegedly pleaded guilty. In the first place, plaintiffs may ultimately succeed in withdrawing (if, in fact, it is proven that they ever entered) their guilty pleas, *fn13" and thus be in a position to maintain not only their numerous constitutional defenses, but also the lawfulness of their conduct even under the broad terms of §§ 130.88 and 130.115. In addition, even assuming arguendo that pleas of guilty have been validly entered, they cannot serve to waive or ratify either basic jurisdictional defects or the deprivation of certain fundamental constitutional rights, such as the right to effective assistance of counsel. Duncombe v. State of New York, 267 F. Supp. 103, 108 (S.D.N. Y. 1967); Application of Stapley, 246 F. Supp. 316, 321 (D. Utah 1965). See also Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S. Ct. 223, 100 L. Ed. 126 (1956); Brady v. United States, 397 U.S. 742, 748, n. 6, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir. 1965). *fn14"

 Aside from the fact that state remedies are entirely adequate to vindicate plaintiffs' rights and have as yet not been exhausted, plaintiffs have also failed to show "any threatened irreparable injury to federal rights to warrant invoking the equitable powers of the federal court." Duncombe v. State of New York, supra, 267 F. Supp. at 107. The only irreparable harm of any consequence of which plaintiffs complain -- namely, that they will be forced to serve their entire sentence of confinement before any meaningful relief may be had in state court -- would not appear to be a very real possibility. Section 7009(e), New York CPLR, expressly provides that:


"Pending final disposition [of a writ of habeas corpus], the court may place the person detained in custody or parole him or admit him to bail as justice requires."

 Indeed, as defendants themselves have conceded, "[had] plaintiffs arranged to surrender to the Sheriff of the City of New York and simultaneously sue out a writ of habeas corpus in Supreme Court, New York County, in all likelihood, they would have been immediately paroled pending hearing and determination of the proceeding." (Defendants' Memorandum of Law, p. 4) (emphasis added). At argument on the motion, counsel for the defendants clarified this reference by representing to the court that the state would look favorably upon such an arrangement. This representation is regarded seriously, and were it not for the suggestion of plaintiffs' immediate release on parole pending adjudication of their habeas corpus application, this court would have great reluctance to relinquish jurisdiction of the matter.

 That justice would require plaintiffs' immediate release on parole would seem to be demonstrated by the obvious substantiality of many of the issues which would undoubtedly be raised in any habeas petition ultimately filed by plaintiffs in the state court. For example, even assuming that the military can exercise court-martial jurisdiction over inactive duty National Guardsmen (an assumption by no means free of doubt), very serious questions remain as to the power of the summary court to impose the punishments it did in the instant case. On its face, § 130.20(c) of the New York Code of Military Justice, under which plaintiffs herein were sentenced and which provides for the imposition by state summary courts-martial of dual punishments of fine and imprisonment, would appear to contravene specific provisions of federal law, 32 U.S.C. §§ 329, 330, which apparently authorize only alternative punishments (that is, fine or imprisonment) in the case of summary courts-martial of National Guardsmen not in federal service. In this regard, it should be noted that Article 1, § 8, cl. 15, of the Constitution gives Congress the express power to provide for the "disciplining" of the militia. Indeed, it was recognized in the Note of Commission, Art. 7, Code of Military Justice, New York Military Law, p. 74, that "Congress has paramount power to provide for organizing, arming and disciplining the militia of the several states" and that "the word 'disciplining' includes the power to punish members of the forces comprising the militia of the several states through the medium of military courts." The Commission's Note further observes that Congress, by enactment of the National Defense Act of 1916 (the source of the present federal provisions, 32 U.S.C. §§ 329, 330) did "prescribe specifically * * * the maximum punishments which state courts-martial may impose." Id. Indeed, as the Commission itself conceded with respect to similar federal limitations placed upon state courts-martial in the punishment of heinous civil crimes, such limits "raise serious constitutional questions as to the power of the State to prescribe punishments in excess of those specified in the National Defense Act of 1916 * * *" Id. at 80. But see "A Brief in behalf of a State Code of Military Justice," 3 (1952) N.Y. Leg. Doc. No. 28, and 9 (1953) N.Y. Leg. Doc. No. 79, at 17, prepared by the Joint Legislative Committee to Study the Military Law, Hon. Joseph C. Zavatt, Counsel.

 Similar doubts exist as to the constitutionality of § 130.20(b) of the New York Code of Military Justice, which provides that persons on "active state duty" (see § 130.1(5), New York Military Law), as opposed to those in a "duty status other than active state duty" (see § 130.1(6), New York Military Law), may refuse trial by summary court-martial (unless they have been offered and have refused non-judicial punishment under § 130.15, New York Military Law) and elect instead trial by special or general court martial, whichever may be appropriate. Not only does this distinction between active and inactive duty guardsmen, on its face, raise the spectre of invidious discrimination under the equal protection clause, but it would also appear to conflict, as in the case of § 130.20(c) just discussed, with paramount provisions of federal law. In 32 U.S.C. § 326, Congress has provided that in the National Guard not in federal service courtsmartial shall "have the jurisdiction and powers, * * * and shall follow the forms and procedures, provided for" similar courts of the Army and the Air Force. Such forms and procedures are now set forth in the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., which provides, in Article 20 thereof, 10 U.S.C. § 820 (Supp. 1970):


" No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate." (Emphasis added.) *fn15"

 It would appear that all soldiers, whether they be in an active or reserve status, were intended to be eligible for the benefits of this provision and to have the absolute right to refuse trial by summary court-martial. *fn16" Thus, as a California state court said recently in discussing the validity of a provision of California military law (not unlike § 130.20(b) of the New York Military Law here in dispute) in light of the broad command of § 820 of the Uniform Code, to construe the state statute so as to exclude any "members of the state militia from the enjoyment of a valuable right and important procedure conferred and provided for by another statute (the Uniform Code)" would "create grave doubts concerning the constitutionality of that [state] statute." Application of Palacio, 238 Cal. App. 2d 545, 48 Cal. Rptr. 50, 54 (1965). *fn17"

 In view of the substantiality of the issues raised by plaintiffs, the appropriateness of releasing them on parole pending the outcome of their state habeas petition would seem clear. As Judge Friendly recently noted, in speaking for a three-judge court in Respress v. Ferrara, 321 F. Supp. 675 (S.D.N.Y. 1971),


"We refuse to believe that New York judges would be unresponsive under such circumstances. If they should be, the doors of the federal courthouse will still be open * * *."

 Accordingly, the temporary restraining order is vacated and plaintiffs' complaint dismissed.

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