Ponder v. Stone

54 M.J. 613, 2000 CCA LEXIS 243, 2000 WL 1775286
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedNovember 29, 2000
DocketNMCM 200001320
StatusPublished
Cited by12 cases

This text of 54 M.J. 613 (Ponder v. Stone) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ponder v. Stone, 54 M.J. 613, 2000 CCA LEXIS 243, 2000 WL 1775286 (N.M. 2000).

Opinion

LEO, Senior Judge:

On 17 August 2000, the petitioner submitted a petition for extraordinary relief in the nature of a writ of mandamus and a stay of the proceedings below. The petitioner alleges that the military judge erred (1) by declaring, as a matter of law, that an order to receive the anthrax vaccination was lawful, (2) by granting the Government’s motion to bar the petitioner from presenting any evidence before the court-martial members on the safety, efficacy, and necessity of the anthrax vaccine, and (3) by denying the petitioner’s several motions relating to the lawfulness of the order. He requested that we reverse the military judge’s rulings on these matters. On 18 August 2000, we granted the petitioner’s preliminary requests for a stay of the proceedings and for the production of a transcript of the lower court proceedings pending our review of the petition. Having completed our review, we find that the petitioner has failed to establish that he has been denied a clear and indisputable right to challenge the lawfulness of the order as a result of the military judge’s rulings on the motions. Accordingly, the petition is denied.

I. Background

The petitioner is charged with a violation of Article 90, Uniform Code of Military Justice, 10 U.S.C. § 890, by willfully disobeying a lawful order from his superior commissioned officer on or about 12 January 2000, to receive the anthrax vaccine. The thrust of his complaint is that the military judge’s rulings effectively deny him the right to present an affirmative defense to the charge against him. If the charge cannot be dismissed, his contention is that he should at the very least be allowed to introduce evidence on the merits showing that the order in question violates existing federal laws and regulations.1

The petitioner asserts that the current anthrax vaccine is both an investigational new drug [IND] and an experimental drug and that it is being used in a manner inconsistent with its original license of 1970 from the Food and Drug Administration [FDA]. Therefore, he argues, the order that he received was unlawful because, by law, he cannot be compelled to take the vaccine without his prior consent. In ruling in favor of the Government, the military judge held that the legal authority relied upon by the petitioner confers no individual legal rights enforceable at a court-martial. Record at 135-37; Appellate Exhibit XVI.

[615]*615II. Jurisdiction to Review Petition

In its answer to the petition, the Government claims that this court does not have subject matter jurisdiction over this petition. Citing Clinton v. Goldsmith, 526 U.S. 529, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999), the Government argues that this court may only grant extraordinary relief on matters affecting the findings and sentence of a court-martial. We disagree.

The All Writs Act [28 U.S.C. § 1651(a)] merely makes “explicit the right to exercise powers implied from the creation of such courts.” Reviser’s Note, Historical and Revision Notes, 28 U.S.C. § 1651. [citation omitted]. The fact that a court is empowered by Congress to act only in a specially defined area of law does not make it any the less a court established by Congress. [citation omitted].

United States v. Frischholz, 36 C.M.R. 306, 308, 1966 WL 4467 (C.M.A.1966).

We believe that the Government’s interpretation of Goldsmith is overbroad. The facts in Goldsmith involved an attempt by our superior Court to extend its writ powers to an executive action of the President, as opposed to a judicial action of an inferior military court. It would defy common sense, as well as a longstanding precedent of its own, if the Supreme Court truly intended to hold that our superior Court — and, by extension, this court — has no inherent authority to oversee the interlocutory actions of its inferi- or courts, but is instead limited for purposes of writ petitions to granting relief solely on matters affecting the findings or the sentence. See Noyd v. Bond, 395 U.S. 683, 686, 695, 89 S.Ct. 1876, 23 L.Ed.2d 631 (1969) (In recognizing that our superior Court has authority to issue an emergency writ of habeas corpus, the Supreme Court elsewhere in its opinion characterized the Air Force Board of Review as “the appellate military tribunal Congress has established to oversee the administration of criminal justice in petitioner’s branch of the Armed Forces” and the Court of Military Appeals as “the court to which Congress has confided primary responsibility for the supervision of military justice in this country and abroad.”).

In establishing the military justice system, the intent of Congress was to create “an integrated system” of military courts that had sufficient “familiarity with military problems” to handle these specialized issues in a uniform fashion, thereby lessening the need for military accused to bring Federal civilian courts into the matter through collateral legal action. McPhail v. United States, 1 M.J. 457, 461-62 (C.M.A.1976) (quoting Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)); see also United States v. Bevilacqua, 39 C.M.R. 10, 12, 1968 WL 5042 (C.M.A.1968) (military accused need not go outside military justice system to Federal civilian judiciary for protection of legal rights). In McPhail, our superior Court noted:

Considering a predecessor statute to the All Writs Act, the Supreme Court held that a superior judicial tribunal has authority to require “inferior courts and magistrates to do that justice which they are in duty and by virtue of them office bound to do.”

McPhail, 1 M.J. at 462 (quoting Virginia v. Rives, 100 U.S. 313, 323, 25 L.Ed. 667 (1879)). In considering petitions for extraordinary relief, our superior Court has “never wavered” in its adherence to this declaration by the Supreme Court. Dettinger v. U.S., 7 M.J. 216, 218 (C.M.A.1979).

Under the All Writs Act, “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of them respective jurisdictions and agreeable to the usages and principles of law.” We are a court that Congress, acting through the Judge Advocate General, has created. Id. at 219; see also Frischholz, 36 C.M.R. at 307 (All Writs Act applicable not only to Article III courts, but to all courts established by Congress). Accordingly, this court is empowered under the All Writs Act to grant extraordinary relief where appropriate. Id.; Aviz v. Carver, 36 M.J. 1026, 1028 (N.M.C.M.R.1993). As the highest judicial tribunal within the Department of the Navy, we have “judicial authority over the actions of trial judges within the Department that may potentially reach [us],” enabling us to “confine an inferior court ... to a lawful [616]*616exercise of its prescribed jurisdiction.” Dettinger, 7 M.J.

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Bluebook (online)
54 M.J. 613, 2000 CCA LEXIS 243, 2000 WL 1775286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ponder-v-stone-nmcca-2000.