Military Judicial System

• Author: By Major Thomas M. Rankin
• Pages: 04

Though long recognized in civilian practice, the exercise of All Writs Act jurisdiction in the rnzlitarp dates onlv from 1966. Desptte its infancg, a ssibstantial body of military la% has al-isen governing oovrts' powers to sup-plv "estmordiaarv relief" to petitioners. After a histori-cal SUrweY, the author analyzes the often-oafficting mili-tary attitudes towards the 411 Writs Act. He note8 that the cowept of rdiaf i~ aid of potential jarisdietion pro-aides much of the Act's vitalttu in the military.

1. ISTRODUCTIOS

   The present codification of the All Writs Act, 28 U.S.C. B 1651a provides:

   The Supreme Court and all courts eatablirhed by Act of Coneress may issue sli writs neeeirary or appropriate in aid of their rebpee. tlvr jurirdxtmne and agreeable to the "sages and principles of law.

   In 1966, by its decision in United States v. Frischliolt,L the Court af Military Appeals first categorically declared itself to possess the authority conferred by the All Writs Act. Recently, the Army Court af Military Review has likewise assumed powers derived from the Act.? Before 1966, the Court of Military Appeals tended to regard its jurisdiction as being strictly circumscribed by

   * This article WBQ adapted from B thesir presented to The Judge Advocate General's Seiool, U. S. Army, Chariattewile, Virginia, while the author w a ~ P member a i the Eighteenth Advanced Course. The opinions and eonelusmr presented herein are those of the author snd do not necessarily represent the

   VL~UI of The Judge Advocate General's Schaal or any other governmental aeencs

   ** JAGC. U S. Army, Deputy Director, Academic Department, The Judge Adraeate General's School: A.B., 1854: LL.B , 1958, University of Kor.th Carolins; member of the bars of North Carahna, u S. Supreme Court, and the

   u S. court Of Military Appeals.

   ~16U.S.C.Dl.A.150,36ChlR.306 119661*United Stater V. Draughon, Chl 419184 (ACMIR, 20 Mar. 19701 ; QCB CLISO dicta in United States Y. Dolby, CY 418804 (AChlR, 19 Sep. 19601.

   Article 61 of the Uniform Code of Military Justice.8 In cases invoking its jurisdiction under the All Writs Act, however, the Court has said "we possess powers incidental to, and protective of, those defined in Article 67,"' and "Article 67 does not deacribe the full panoply of power possessed by this Court."6 In these cases the court has been petitioned for relief by means of the common law extraordinary writs of coram nobis: habeas corpus,7 mandamus,s prohibition,' and certiorari.1o In recent years petitions for extraordinary relief have been filed in military courts with increasing frequency.

   Plainly, a radically innovative military judicial development has been launched. This article will examine the scape and nature of the a11 writs jurisdiction of military courts, B S S ~ S S

   the significance of this enlarged jurisdiction, and indicate possible future areas of adjudication. To provide context and perspective, this examination will be prefaced by B preliminary consideration af extraordinary relief and the All Writs Act. Included are a cursory review of the salient characteristics of several common lair extraordinary wits, and of the historical development and judicial construction of the All Writs Act.

   For the PUIPOS~S of this article, ordinary relief will be regarded as appellate review, under applicable statutes, of proceedings fin-ally terminated at an inferior level within the hierarchy of courts involved. Within the military judicial system, ordinary relief gen-erally consists of the following: a. Appellate relief by the Court of Military Appeals, under

   Article 67 of the Code, of proceedings finally decided by B court of military review. b. Appellate relief by a court of military review, under Arti-cle 66 of the Code, over concluded court-martial proceedings in which the sentence, 8.9 finaily approved by the coniening author.

   8 UllFORM CODE OF MILITARY IUITICE art 67 [heremafter elted a3 UC1lJl The UCMJ is codified ai 10 C.S.C. $5 801-940 (1970 Supp.1. See. w., -I reprerenting this strict /EW,

   United States v Best, 1 u.S C MA 581. 1s

   4 United Slates V. Frisehhalz, 16 U.S C.M A. 150, 151, 35 C.Y.R. 306. 30i5 United States j. Bevilaequa. 18 U.S C.11 A. 10, 11, 39 C,X R 10, 11OEr, United States Y. Frisehholz, 16 U S C.Y.A 160, 36 C.>l R 306

   CX.R 165 (1955).

   (19561. (1968).(1966,

   6 Id.

   OE.8, Galev. United States, 17 U.S.C.Iv1.A 40, 37 C.III.R 304 (19671. IO id.

   T E . ~ . ,

   L ~ ~ ,

   ,.. R ~ ~ ~ ~ ,

   17 C.S.C.MA. i35,m c x R . 390 ( i g ~ i i

   EXTRAORDINARY RELIEF

   ity, includes either confinement at hard labor for at least a year or a punitive discharge. e. Appellate relief by a court of military review under Article 69 of the Code, upon request of the Judge Advocate General eancerned, of the proceedings in any general court-martial, regardless of the sentence imposed.

   Extraordinary relief, on the other hand, is considered to consist of one or more of the following: a. Interlocutory intervention by an appellate court into proceedings pending trial in a lower court to prevent jurisdictional excess or usurpation by the IOU-er court. b. Appellate court compillsian to require action by a subordinate judicial agency which has a duty to act and refuses to do so. e. Direct appellate revision of cases finally terminated under a strict construction of applicable judicial finality statutes. d. Judicial review of the legality of detention.

   None of these four remedies is authorized by the Uniform Code of Military Justice. Yet, remedies of these types are now available before military judicial tribunals. As these remedies are afforded by means of common law extraordinary writs, the salient characteristics of these writs will be reviewed.

   11. COMMON LAW WRITS

   The common law writs are ancient and their distinctions and conditions of applicability exist as a result of their common law evolution. The common law distinctions and requirements govern, in any given case, the propriety of issue and the specific type of extraordinary remedy available. While Some common law writs have fallen into disuse, others continue to be employed in modern practice. Among the most often encountered in the military practice of law are the writs of mandamus, prohibition, certiorari, coram nobis and habeas corpus.

   A. MANDAMUS

   The writ of mandamus" is a command i8sued from a court of competent jurisdiction to an inferior court or officer, requiring the Performance of a specified act which the court or officer has a legal duty to do.'* Mandamus is an extraordinary writ,'3 issuable only where there is no other complete and adequate remedy.14 The writ

   -

   11 See, gmeroilu, 34 Ah%. SIR. MAh-DAILs 803 (1911).

   12 Denver-Greeli Valley Irr. Diat. \I. McRell. 106 F.2d 288 (9th Cir. 1939)

   18 United States Y Carter, 270 F 2d 521 (9th Cir. 1969). 14 Clark v Jlemalo, 174 F 2d 978 (D C. Cir 1949)

   is available to compel both the performance of ministerial dutyla and the exercise of judicial discretion." The ofiee of mandamus is not to establish a right, but ta enforce clear and complete right already established.'?

   The use of mandamus in aid of appellate jurisdiction has primarily been to confine an inferior court to B lawful exercise of its prescribed jurisdiction, or to compel it to act when it has a duty to aet.lB Mandamos is available to the government, in criminal cases, to require exercise of jurisdiction where there is a refusal to act.'* It also may be used in exceptional eases of peculiar emergency or public importance where the usual method of appeal is manifestly inadequa.te.20

   B. PROHIBITION

   The writ of prohibitions' issues from a court of competent jurisdiction and commands an inferior tribunal not to do something it is about to do.12 The writ is extraordinarpa and issues only where there is no other adequate remedy.z4

   Prohibition is used to prevent a tribunal having judicial or quasijudicial powers from exercising jurisdiction over matters outside its proper cognizance.zE This use of the writ is exclusive*' The want af jurisdiction which the writ is directed toward can relate either to person or subject matter.2' If a lower court acts within its jurisdiction, prohibition does not lie, no matter how erroneous the judgment of the lowr court.25 Prohibition cannot lie where there is no aweilate power.zQ Prohibition is primarily a restraining rather than a corrective remedy,Jo and is, in essence, the Converse of the writ of mandamus, which is compulsive.

   16 Umted States BI: IN.

   hIeEnnan 5'. R'llbur, 283 U S 414 (19301

   li Cmted Stares ez ?el. Stovall V. Demlng, 19 F.2d 691 (D.C.

   1 s ~ ~ portc N ~ ~ ~ ~ ~ ,

   81 U.S 152 (18123.

   Clr. 1927)

   I8 Evans Eke. Conntr Co. V. McMlanul, 338 F.2d 952 (8th Clr. 1964). IS United States V. Dooling, 406 F.2d 192 (2d Cir 1969)

   ZO Bartrch Y. Clark, 293 F Zd 283 (4th Clr. 1961).11 Sea, gane7aily, 42 AM, ICR.

   PROHIBIT~N

   131 (1942) **Petition of the Vnited States, 263 US. 389 (1823) 13 E* pmtr Fsarett, 142 US

   479 (1892)24 Pable Y Elchar, 143 F.2d 1001 (D C. Clr. 1944). 26 Ez PaTta Gordon. 66 US

   603 (1862). 28 Ez % w t c Famtt, 142 U.S.

   479 (1892).

   28 Leimar V. Reeves, 184 F.2d 441 (8th Cir. 1950).

   38 Ez ports Faaaett, 142 U.S.

   419 (1892).30Leirnsr V. Reeies, 184 F.2d 441 (8th Cir. 1960).

   27 Id

   EXTRAORDINARY RELIEF

   C. CERTIORARI

   Certiorari81 is appellate in the sense that it involves a limited review of the proceeding8 of an inferior tribunal, and lies only to inferior courts and officers exercising judicial power.32 It is directed to inferior courts to require the certification of the record in a terminated proceeding so the superior court may review the record.88

   Certiorari frequently exists in statutory form, but the common lam, form of the writ also survives.34 It is an extraordinary writ, and will issue only where there is no other plain and adequate remedy, by appeal or ~thernise.~~

   Generally, only the court of last resort within a judicial system has power to issue certiarari.8'

   Law courts have a general superintending control over inferior tribunals...