Prosecution in Civil Couris of Minor Offenses Committed on Military Installations

• Author: By Captain Mitchell D. Franks
• Pages: 03

.%lanu Sorts of minor offenses, such as traffic aiolations, which nrr committed on o m;litary rescrzathn may be handled by n Cnited States .lfagistrate. Thzs article sum-mari%es ond analyzes the problems which a magistrate may face in dealing vitk these offenses, including the different tiipes of federol 1egislotzz.e liirisdietion orel militnru pasts, the Assimilative Crimes Act, the author-itv of the post commander to issue ha7 orders, restil'ctians on personnel 7, hich en,, be wed for lnic enforcement and prosrestion, the changes imnght by the Federal ).lagistrates Act of 1.968, and the effects of other fed. era1 legislatzon on trial by mngistiates of senice mem-bers. The author Suggests reforms, including a traffic code for federal enclases. Included as appendtees are, inter alia, an exnmple of the complicated jurisdiction created by compler land interests at one post, and a useful list of federal offenses triable before a federal magzstrate.

1. INTRODUCTIOX

The procedures used in implementing civil-court prosecutions for minor offenses committed on military installations are found in a patchwork of statutes, regulations, and opinions. The over-whelming number of offenses committed an the reaerration are traffic violations. However, other case8 may involve hunting and

'This article was adapted from a thesis presented 50 The Jvdge Advoeate General'a School, U.S. Army, Charlo:resulle, Virginia, while the author was a member of che Sevenieenrh Advanced Course The opinioni and eonelusioni presented herein are those of the author and do not necesianly represent the ~ieiv8of The Judge Advoeate General's School or any other sovernmental arenev.

_ .

**JAGC, U.S Amy: Azrisbsnt Chief, Personnel, Plane and Training Office, Office of The Judge .Advocate General: A.B., 1963. Flor.da State Univerrity, LO., 19-6, Stetson Un.uerr ly Colleee of Law, member of the Bars of Flar.da. D.S. Sunreme Court. U.S. Court of Claims. L-.S,

Tax Court.

and U.S. Court of 1Iilira;y .4ppeals.

fishing violations, tiespass to property, or, as in one reported case, tampeiing with a government vehicle.'

This article will provide answers to the following questions: n'hat 1s an exclusive federal jurisdiction? What 1s a petty offense? What is a minor offense? What is the authority of the United States Magistrate to try cases arising on an Army installation? What is the authoritr foi miiita1)- police to cite persons to appear before the magistrate? What is this agreement alloi%-ing a member of the Judge Adrocate General's Corps to prosecute cases before the magistrate? What is the force and effect of post traffic regulations an nan-military personnel? Is a trial by jury available? Must counsel be made available to the military accused in the civil court?

11. JURISDICTIOY OVER 1IILITAKY RESERY'ATIOKS

A TYPES

Knder the commissioner system individuals who committed petty offenses' on military reservations over which the United States exeicised exclusive or concurrent legislation could be tiied, with their consent, before a commissioner appointed by the United States District Court far the district in which the reserratmn was located I

The teim "ewiiuive iegis!atire jurirdichon" has been defined as "the power to exercise exclusix-e jurisdiction granted to Con-cle I, section 6, clause 17, of the Constitution,' and to the like power which may be acquired by the United States through cession by a state, or by a ieservation made by the United

MISOR OFFENSES

States in connection with the admission of a state into the Union." In the exercise of sach poser as to an area in a state the federal government theoretically displaces the state in which the area is contained of all its sovereign authority, executive and judicial as well as leginlatire.'

Concurrent legislatire jurisdiction is applied in "those instances wherein the granting ta the United States authority which would otherwise amount to exclusive legislative jurisdiction oyer an area the State concerned has ixserved to itself the right to exercise, by itself or concurrently with the United States, other authority constituting more than merely the right to aerre civil or criminal process in the area."'

In addition to exclusive and concurrent legislatire jurisdiction there are tiro other types of jurisdiction which may be applicable to the reservation. These are "partiai legislative jurisdiction" and "proprietarial interest only."

"Partial legislative jurisdiction" is applied in those instances where the federal government has been granted, for exercise by it over an area in a state, certain of the state's authority, but where the atate concerned has reserved to itself the right to exercise, by itself 01 concurrently with the United States, other authority constituting more than the right to serve civil or criminal process in the area (e.q., the right to tax private property).'

"Proprietarial interest only" is apiilied in those instances where the federal government has acquired some right or title to an area in a state but has not obtained any measure of the State's authority over the area. In applying this definition, recognition should be given ta the fact that the United States, by virtue of its functions and poiveri under various provisions of the Constitution, has many powers and immunities with respect to areas in which it acsuires an interest which are not possessed

2b (22 Jun. 1868) [hareinafrer e.ted 8% iR 405-201:

I REPORT, Pt I, at 16, AR 405.23. para 2c

' Id.. I? If dl 11

by ordinary landholders.' In this regard it has been held that the power to make and enforce necessary rules and regulations for the management of federal property need not depend, eonstitutionallg, on the acquisition by the federal government of legislative jurisdiction under article I, section 8, cl~use li * This decision vas based upon the constitutimal provision that "[tlhe Congress shall have power to dispose of and make all needful Rules and Regulations respecting the territory or other property belonging to the United States.""

B. ASPECTS OF JCRISDICTIOS

Notice should be taken of the fact that amnership and use of public lands by the federal government, vithout more, does not withdraw the lands fiom the jurisdiction of the state." Land acquired b)- the United States. but which is cot subject to the exclusive legislative authori:r of the United States, remains subject to the jurisdiction of the state in matters not inconsistent with the free and exclusire use af the land for the purpose for which it vas acquired ' The "without more" refeired to above usually entails the acquisition of land in one of the three methods already mentioned, i.e., bl- the method provided for in the Constitution, e state to the fedeial government, or bl- reserration. on of property by the Vnited States by a means other than by these three methods wili result in less than exelusire or concuirent legislatire jurisdict;on, but whele the Cnited States acquires land from a state for purposes specified in the Constitution with the state's Consent, federal jurisdiction 1s exclusive in such areas for all gu~poses

'

Furthermore, whether the United

States has acquired exclusive jurisdiction is a federal question."

' Id.' United States Y. Drew 156 F.

Svpp 200 (D.3Id 19671.

c

30 Cal.2d 116, 1?6 P.3d 8-3 1191?)

(1537).

Pad Y. United Stater, 371 P.S. 245 11963)

ea

S. co\sr d?. II'. p 3 C I 2' Surp:u% Trading Co. r Cook, 281 U.S 64: 119301, Emhenf Doma:n of S:ates. 7 OP .IWs GEZ 573 1135X

Johnson Y. Mmv.11, 20 Ca2d 116. 126 P.Sd si3 (1942).' See Paul 3.. United Stater, 371 V S. ? i s 11363), Johrson r. Ilonill,

I'

Ryan V. State, 168 Wash. 116, 61 P.2d 1276 11936). aifd 302 E S. la6

DeKaiS Count) I Henr) C Buck Ca 382 F.2d 992 14th Clr. 1567);

MIXOR OFFEXSES

It is apparent that the authority of the United States to exercise jurisdiction over its property has a strong constitutional foundation. In a landmark decision discussing this power the United States Supreme Court held long ago that the legislative power of Congress is exclusive over lands nithin B state purchased with its consent by the United States for a lawful pur-pose. While occasmnally a problem may arise concerning the proper acquisition af territory it is fairly well settled that the land secured for military installations was done SO in a constitutionally proper manner.'' Furthermore, where the United States acquires lands vithin a state any may orher than by purchase with its consent, forts, arsenals, and ather public buildings erected thereon for the use of the federal government, as instrumentalities for the execution of Its paruers, will be free from any such interferences and jurisdiction of the state ai would destroy or impair their effective use for the purpose designed. But, when not used as such Instrumentalities, the legislative powers of the state aver the places acquired will be full and complete

ad over any other places within it limits.'' It is now well established that a state in ceding jurisdiction to the United States may reserve to itself any powers within the ceded area which are not inconsistent with the performance of governmental functions. ' It fallows, therefore, that a state may retain jurisdiction over crimes committed within such areas which are not punishable under specific federal statute". This bifurcated jurisdiction, so inherent in our federal system, gives rise to many of the problem arising on military mstallatmns.

Fort Learenvarth R.R. V. Loae. I14 C.S. 525 (1886). See also United States?. Cornell.25 F.

Caa. 616 (So. 14,867) (C.C.D.

R.I. 1819).

REPORT. Pf. 11. at Si, n 62 In Half v, United States, 281 T.S 245 (1910). the Supreme Court queried whc:her B de facto federal eiemse of

of faetr which iesr

L-mted Sraier, 240

F. 2d 122 16;h Cir. 1967). ''''

Fort Leavenworth R.R. 7. Louw 114 U.S. 525 (1886).Jamel V. Dravo Contracting Co.. 302 C.S. 134 (1937).Bower v. Johnston, 306 U.S.

19 (1939).

111. APPLICATIOS OF THE LAR TO A FEDERAL ENCLAVE

A...