United States v. Redding

8 M.J. 719, 1979 CMR LEXIS 542

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: December 21, 1979
• Docket: Misc. Docket No. 79-9
• Status: Published

Opinions

OPINION OF THE COURT ON PETITION FOR WRIT OF MANDAMUS

CEDARBURG, Chief Judge:

The United States has petitioned this Court to issue a writ of mandamus which would compel the respondent military judge to proceed in the general court-martial case of United States v. Pickens. We determine that we are precluded from granting extraordinary relief in this case and, accordingly, deny the petition of the United States.

The facts leading to our present consideration of this petition follow: Seaman Pick-ens, while undergoing confinement imposed at a prior general court-martial, was charged with escape from confinement and desertion. The charges were referred to a general court-martial in San Diego, California by the Commandant, Eleventh Naval District on 6 March 1979. Captain Redding was detailed as military judge. Seaman Pickens, on advice of his appointed defense counsel, additionally requested Captain E. D. Clark, USMCR, as individual military counsel (IMC). The request was communicated by message to the officer exercising general court-martial authority over Captain Clark, the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. No existing or past attorney-client relationship had ever been established between Captain Clark and Seaman Pickens. The request was denied by return message, citing Captain Clark’s duties as Officer-in-Charge of the Tri-Command Legal Assistance Office,¹ the lack of a replacement officer, and statistics regarding the population eligible for legal assistance, the average client workload of the office, and Captain Clark’s personal client average.

An Article 39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C.A. § 839(9), session was convened on 9 April 1979. The detailed defense counsel moved for an abatement of proceedings until the individual military counsel was made available, asserting that the Commanding General had abused his discretion in denying the request for Captain Clark to serve as IMC. The Commanding General, Brigadier General D. B. Barker, USMC, was called by the defense as a witness on the motion and was determined to be a material witness by Judge Redding. Judge Redding directed, however, that written interrogatories, as a substitute for personal testimony, be propounded to General Barker.² The interrogatories were answered on information and belief by General Barker, who stated that he had no personal knowledge of very specific workload and personnel utilization information sought by the interrogatories. General Barker did state that his decision as to Captain Clark’s availability was personal, based upon information supplied by reliable sources, either Captain Clark or his immediate superiors. An objection by the Government to the continued materiality of General Barker as a witness was resolved by a stipulation of certain facts regarding the motion. (Appellate Exhibit I-A). The defense then acknowledged its willingness to have the motion decided upon the stipulation of fact and upon messages relating to availability of Captain Clark, which had been received in evidence by the court. (Appellate Exhibits II-A, II-B, II-C, II-D).

The military judge, in ruling on the motion, expressed his opinion that the Commanding General had abused his discretion when he determined that Captain Clark was not reasonably available to represent Seaman Pickens. Judge Redding found that “Captain Clark was, and is, reasonably available to represent the accused. . .” A continuance until 26 April 1979 was ordered by the military judge, at which time the presence of the IMC would be expected. That ruling was affirmed on reconsideration by Judge Redding on 20 April. On 26 April, the litigants appeared with detailed counsel present but without IMC. Despite receipt of further documentation concerning the unavailability of the requested counsel, the military judge denied the convening authority’s request for further reconsideration. The military judge continued the case until 4 May, at which time the Government was to be given the opportunity to show cause why the charges should not be dismissed.

A petition by the United States for a Temporary Restraining Order and a Writ of Mandamus was filed with this Court on 1 May 1979. The petition was denied, this Court reasoning that the ruling of Judge Redding did not amount to a termination of the proceedings, dismissal of the Government’s case or a forestallment of the jurisdiction of this Court. The Government was granted leave to resubmit, if appropriate, its petition upon a future ruling. United States v. Redding, NCM Order Misc. Docket No. 79-8 (3 May 1979). Proceedings were abated by Judge Redding on 4 May 1979, at which time he ordered removal of the case from the trial docket.

Any doubt that a Court of Military Review has authority by extraordinary proceedings to confine an inferior court within its system to a lawful exercise of its prescribed jurisdiction has been dispelled by the clear holding of Dettinger v. United States, 7 M.J. 216 (C.M.A.1979). Moreover, extraordinary relief is not limited to an accused. The Government’s entitlement is likewise beyond dispute; however, while extraordinary relief is available to the Government, it can be granted only in an appropriate case. Id.

The question for answer by this Court is • whether a grant of extraordinary relief in this case is proper. We disagree emphatically with Judge Redding in his determination that Captain Clark was reasonably available to act as individual military counsel for Seaman Pickens. From the record we cannot with certitude conclude that Judge Redding actually employed the proper standard of abuse of discretion in reviewing the determination of General Barker. Judge Redding certainly stated that the standard he utilized was whether General Barker had abused his discretion; the result he reached, however, strongly indicates that he made his own, de novo, determination of availability in which he disagreed with the conclusion of the General and substituted his own judgment!

Article 38(b), UCMJ, 10 U.S.C.A. § 838(b), gives an accused the right to be represented by “military counsel of his own selection if reasonably available.” (Emphasis supplied). Neither the UCMJ nor the Manual for Courts-Martial, 1969 (Rev.) prescribes criteria for determination of the availability of requested counsel. United States v. Quinones, 1 M.J. 64 (C.M.A.1975). The Manual, at paragraph 48b, does, however, establish a procedure whereby a determination of the availability of counsel is made by the commanding officer of the organization with which the requested counsel is on duty. The exercise of administrative discretion by the commander is not absolute; the military judge may, at the trial level, scrutinize the commander’s determination for an abuse of discretion. United States v. Quinones, supra; United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R. 127 (1964). The Court of Military Appeals and Courts of Military Review have identified various circumstances which can be taken into account in determining the reasonableness of availability. See United States v. Quinones, supra at 66 n. 4 (note cases cited therein). The guidelines formulated by these cases provide standards by which to review a commander’s exercise of discretion for an abuse. See generally United States v. Brownd, 6 M.J. 338, 340 (C.M.A.1975) (Perry, J., concurring) (discussion of standards by which abuse of administrative discretion in the matter of deferral of post-trial confinement can be measured).

Review of the factual basis for a denial by General Barker is limited to the matters which the record shows he considered or failed to consider in his determination. The record discloses that matters'considered by General Barker were set out in messages sent by General Barker in response to the original request to make Captain Clark available (Appellate Exhibit II — B) and the message replies to interrogatories (Appellate Exhibit II-D) in addition to the stipulation of fact entered into with the consent of Seaman Pickens (Appellate Exhibit I-A). The abatement motion was decided by Judge Redding on matters detailed above in conjunction with the initiating messages (Appellate Exhibits II-A and II-C).³

It should be noted that the truth of the statements of the Commanding General was not contested at trial. We accept those matters which are represented as fact in General Barker’s messages and the stipulation as true. We also believe that any review of General Barker’s exercise of discretion was perforce limited to “consideration [of] the matters that the evidence shows were before the convening authority.” Quinones, supra at 67. The military judge found that General Barker “was aware of all the matters contained in Appellate Exhibit la, as well as all the matters contained in Appellate Exhibit lib at the time he made his decision which was reflected in Appellate lib.” The only additional evidence offered by the defense in support of his contention of discretionary abuse, which was judicially noted by the military judge, was section 1904(a), Manual of the Judge Advocate General, which provides direction for the establishment and disestablishment of legal assistance offices at, among others, each Marine Corps command exercising general court-martial authority. Judge Redding nonetheless was of the “opinion that when the Commanding General determined that Captain Clark was not reasonably available to represent the accused at this court-martial on the 9th of April 1979, that he abused his discretion.”

We conclude that Judge Redding’s ruling was erroneous. Proper application of the standard of abuse of discretion to various circumstances identified by ruling case law which can be taken into account in determining reasonable availability ⁴ should have led Judge Redding unerringly to the conclusion that General Barker had not abused his discretion. While case holdings of what constitutes abuse of discretion have centered on exercise of discretionary powers by trial judges, the standards are equally applicable to administrative discretionary decisions reviewable for abuse. “As a general rule, an appellate court will not review the action or rulings of the trial court with reference to matters resting in the latter’s judicial discretion, unless such discretion has been clearly and prejudicially abused . .” 5A C.J.S. Appeal and Error § 1583 (1958). Judge Redding acknowledged on the record in commenting on General Barker’s determination of reasonable availability that when “the term ‘reasonable’ comes in, we are faced with an area where the minds of reasonable men might well differ.” Thus, while Judge Redding explicitly recognized that the commander’s decision in this case was one which might reasonably be made, he implicitly substituted his judgment for that of General Barker on the primary question of whether Captain Clark was reasonably available. This was a misapplication of the standard of review for a discretionary act.

A reviewing court is never justified in substituting its discretion for that of the trial court; in determining whether the lower court has abused its discretion, the question is not whether the reviewing court agrees with the court below, but, rather, whether it believes that a judicial mind, in view of the relevant rules of law applicable to the particular case and on due consideration of all the circumstances, could reasonably have reached the conclusion of the court below, of which complaint is made. The mere fact that the appellate court would have decided otherwise does not establish that the discretion has been abused .

Id., § 1583b at 35 (footnotes omitted). The record supports a failure of Judge Redding to fully understand and apply the law.

Although we determine Judge Red-ding’s ruling that Captain Clark was reasonably available to be erroneous, our reading of Dettinger v. United States, supra, and the authorities cited therein, leads us to the conclusion that the extraordinary relief requested by the United States is not within our power to grant. In Dettinger, supra at 218, the holding of the United States Supreme Court in Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 278, 19 L.Ed.2d 305 (1967), was cited for the following proposition: “Mandamus . . . does not ‘run the gauntlet of reversible errors’ . . [i]ts office is not to ‘control the decision of the trial court,’ but ... to confine . [it] to the sphere of its discretionary power.” Judge Redding certainly had the authority to review the decision of General Barker for an abuse of discretion. United States v. Quinones, supra; United States v. Cutting, supra; United States v. Gatewood, supra. His action in abating proceedings to enforce his ruling as a trial judge constitutes “no violation of statute or decisional law or any provision of [regulations]”. Dettinger v. United States, supra at 224.

Judge Redding acted within his authority. We may not utilize mandamus to substitute our discretion for that of a trial judge despite our certitude that his ruling was in error. Consequently, no grounds exist for extraordinary relief. The present case is a glaring example of the “void” involving a lack of appeal by the Government from an adverse ruling of the trial judge, “unhealthy from a judicial administration standpoint”, observed by Chief Judge Fletcher in United States v. Rowel, 1 M.J. 289, 291 (C.M.A.1976).

The petition of the United States for a writ of mandamus is denied.

Judge FERRELL concurs.

1 . Marine Corps Base, Camp Lejeune, 2nd Marine Division and Second Force Service Support Group.

2 . Judge Redding directed that “the interrogatories be propounded to the witness and that the witness’ answers, reduced to writing and properly sworn to by an officer authorized to administer oaths, be returned to the Clerk of this Court by priority naval message not later than 24 hours after the receipt of the interrogatories.” To insure that these unusually stringent time requirements were met, General Barker was awakened 0230 (2:30AM) to prepare and send his answers to the interrogatories. Under the circumstances of this case,- when Seaman Pickens was serving a sentence to 21 months confinement at hard labor imposed at a prior general court-martial, we fail to see any justification for the extreme time constraints which were imposed upon General Barker. It bespeaks a judicial arrogance which detracts from respect for the judiciary.

3 . These exhibits are included as appendices to this opinion (communications routings and symbols not pertinent to the substance of the message-exhibits have been deleted).

4 . United States v. Quinones, supra at 66 n. 4, citing with approval United States v. Vander-pool, 4 U.S.C.M.A. 561, 566, 16 C.M.R. 135, 140 (1954); United States v. Gatewood, 15 U.S.C. M.A. 433, 35 C.M.R. 405 (1965); United States v. Davis, 46 C.M.R. 375 (N.C.M.R.1971), pet. denied 21 U.S.C.M.A. 627 (1973); United States v. Barton, 48 C.M.R. 358 (N.C.M.R.1973), pet. denied 22 U.S.C.M.A. 648 (1973).