Due Process and Eviction From Privatized Military Housing--Is The Commander King?

• Author: Major Gregory S. Musselman
• Pages: 05

DUE PROCESS AND EVICTION FROM PRIVATIZED MILITARY HOUSING―IS THE COMMANDER KING?

MAJOR GREGORY S. MUSSELMAN*

[P]laintiffs have asserted that Mr. Adamski's interest in access to the Presidio of Monterey premises is that of a lessee's leasehold interest in real property. Such an interest is somewhat stronger than the interests at issue in Albertini I & II (interest as an invitee to open house at military reservation) and Cafeteria and Restaurant Workers Union (restaurant worker's interest in access to her place of employment). However, plaintiffs cite no cases that provide that a property interest outweighs the "substantial" interest of a base commander in maintaining control over who may enter a military reservation.1

1. Introduction

   Does a commander have plenary authority to bar civilians from military installations? The Supreme Court has addressed this question in a variety of cases involving issues such as the right to free speech and

   employment rights.2 In most of these cases, the Court has upheld the commander's authority to bar civilians from a military installation. There have been exceptions, however, where courts have found that the Government has limited or no authority to exercise its exclusionary authority.3 Against this backdrop, recent litigation in the Northern District of California has brought to the forefront a contemporary issue that has yet to be addressed by the courts. During the past decade, the Department of Defense (DoD) has implemented the Military Housing Privatization Initiative (MHPI). The MHPI authorizes the government to lease land located on military installations to private contractors. The private contractors then construct housing units and lease those units to military personnel, DoD personnel, and private citizens. Due to the implementation of the MHPI, commanders must now craft appropriate procedures to exclude from the installation civilians who are leasing a home from a private contractor within the confines of the installation.

   In May of 2007, Mr. Joseph Adamski, a civilian, was barred from the Presidio of Monterey installation by the Garrison Commander.4 The Commander barred Mr. Adamski because he was a registered sex offender and his presence was affecting the "good order and discipline of the military community" and "the well being of other residents in the military housing community."5 Although bar actions are an everyday occurrence throughout the military, this particular case is unique because Mr. Adamski resided in housing located within the confines of the military installation.6 When the garrison commander barred him from the installation, she was in effect evicting Mr. Adamski from his residence.7 Mr. Adamski's suit against the garrison commander alleged that the "eviction" violated the Constitution.8 In support of his petition to the court, Mr. Adamski raised a variety of issues involving various aspects of the Fifth Amendment.9

   The first portion of this article analyzes the court's denial of Mr. Adamski's Petition for a Temporary Restraining Order directing the commander to halt the "eviction proceedings."10 This article focuses on the court's treatment of Mr. Adamski's assertion that his unilateral eviction from the installation violated his procedural due process rights. The second portion of this article places the constitutional issues raised in Adamski within the context of the MHPI. Problems with the MHPI have been identified in the past, most notably in a 2002 Air Force Law Review article.11 With developments such as Mr. Adamski's suit arising, however, a closer look at the particular issue of barment, or exclusion from the installation, is needed.12 It is probable, given the ongoing expansion of the MHPI, that Mr. Adamski's suit is not the last of its type and that future courts may disagree with the Northern District of California. Indeed, this article concludes that the procedures currently in place lack the prerequisite guarantees of due process for the potentially excluded civilian tenant. Finally, this article considers the constitutional principles that arose in Adamski and develops courses of action for commanders to remove unwanted tenants from privatized housing that will satisfy both constitutional and military operational concerns.

2. The Commander's Power to Bar Civilians from Military Installations

   1. Authority of a Commander to Exclude

      A commander's authority to exclude civilians from military installations is grounded in both statutory and case law.13 The primary statutory authority is found in 18 U.S.C. § 1382.

      Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

      Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof-

      Shall be fined under this title or imprisoned not more than six months, or both.14

      This statutory authority has also been implemented in a variety of DoD and military service regulations.15 A civilian who violates or ignores a commander's order not to enter the installation can be charged with trespassing.

      Although the power of the commander to exclude is extremely powerful, it is not absolute. The presumption is that the commander has the authority to exclude persons from areas under his control. There are, however, three baseline requirements that must be met in order for the commander to exercise this authority. First, the area from which the person is to be excluded must be under sufficient military control.16

      Generally, courts make a factual determination as to whether the commander has the requisite control over an area in order to bar.17

      Second, a commander must also balance the military's interest in preventing entry against the interests of the civilian in entering the installation.18 Finally, there must not be any infringement on the constitutional rights of the person seeking entrance to the military installation.

      Most of the outstanding case law deals with the issue of control over the military installation. The general principle described in this line of cases is that the more the commander relinquishes his exclusive control of an installation, the less authority the commander has to exclude civilians from the installation. The seminal case in this area is the Supreme Court's holding in Flower v. United States.19 In Flower, the petitioner had been barred from the installation for prior attempts to distribute leaflets in contravention of orders by the deputy commander.20

      He was later arrested by military police for distributing leaflets on a street within the Fort Sam Houston military installation.21 Fort Sam Houston was an open post, without sentries or guards at the entrances.22

      The street on which he was distributing leaflets was an important traffic artery used by private vehicles, military vehicles, and public transportation.23 The road also had sidewalks which were used extensively at all hours of the day by civilians as well as by military

      personnel.24 Based on these facts, the Flower Court held that the commander had given up the requisite control of the area of the installation from which he sought to bar Flower.25 By giving up that requisite control, the commander had converted the area into a First Amendment public forum, and he could not exclude speakers under his authority as commander of the installation.26 This is very similar to the case of United States v. Watson, where the conviction of a civilian under

      18 U.S.C. § 1382 was overturned.27 In Watson, even though the civilian had been barred from traveling on a road owned by the military, the exclusion was found to be invalid because the road had been traditionally used as a public thoroughfare and the Government did not have exclusive control of the road.28

      Despite the Court's holding in Flower, it is rare that the commander's authority to exclude from the installation is abridged or abrogated. The majority of cases have found that the asserted rights of the citizens seeking entrance to military installations were subordinate to the commander's authority to bar access to those installations. In this line of cases, individuals were attempting to enter the installation in order to exercise rights such as the right to employment,29 the right to exercise political speech and activities,30 and the right to enter the installation for attendance at an open house hosted by the Government.31 In these cases, the individuals' asserted "rights" were trumped by the commander's authority to maintain control of his installation. A further review of these cases and the historical power of the commander to exclude are required to place the current issue into context. Does Mr. Adamski's situation line up with Flower and with Cafeteria & Restaurant Workers Union v. McElroy and its successors, or does it open up a novel area of jurisprudence?

   2. First Amendment Challenges to Commander's Authority

      Most litigation involving access to military installations involves persons desiring to access installations in order to protest social and political issues or to distribute political materials.32 The courts in these cases use traditional First Amendment analyses to reach their holdings.33

      In such analyses, the courts first look to see if the speech being restricted qualifies as "protected speech" and is therefore deserving of First Amendment protections.34 If the speech is protected, then the court looks to the type of forum in which the speech is being conducted. If the forum is public, the court conducts a "time, place, and manner" analysis.35 Under this analysis, if the speaker is in a traditional public forum, the restriction on speech must serve a compelling state interest and be narrowly drawn to achieve that end...