Duncan v. Kahanamoku, Sheriff
Decided on Feb. 25, 1946; 327 US 304


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Martial law, due process, military

B. Legal Question Presented:

Did the Organic Act during the period of martial law give the armed forces power to supplant all civilian laws and to substitute military for judicial trials under the conditions that existed in Hawaii at the time these petitioners were tried?

II. CASE SUMMARY:

A. Background:

Following the Japanese attack on Pearl Harbor the Governor of Hawaii, pursuant to the Hawaiian Organic Act, suspended the "privilege of the writ of habeas corpus" and placed "the Territory under martial law."

"On December 8th, both civil and criminal courts were forbidden to summon jurors and witnesses and to try cases. The Commanding General established military tribunals to take the place of the courts... The military tribunals interpreted the very orders promulgated by the military authorities and proceeded to punish violators. The sentences imposed were not subject to direct appellate court review, since it had long been established that military tribunals are not part of our judicial system..."

Petitioner White was arrested for embezzling stocks, 8 months after the Pearl Harbor attack and Petitioner Duncan was arrested for engaging "in a brawl with two armed Marine sentries," two years and two months after the Pearl Harbor attack. They were both tried by a military tribunal and convicted.

"Both White and Duncan challenged the power of the military tribunals to try them by petitions for writs of habeas corpus filed in the District Court for Hawaii..." The returns to the court order to show cause, contended that the habeas corpus had been suspended because of the threat of invasion and that "martial law had validly been established in accordance with the provisions of the Organic Act; that consequently the District Court did not have jurisdiction to issue the writ; and that the trials of petitioners by military tribunals pursuant to orders by the Military Governor issued because of military necessity were valid...

The District Court, after separate trials found in each case, among other things, that the courts had always been able to function but for the military orders closing them, and that consequently there was no military necessity for the trial of petitioners by military tribunals rather than regular courts. It accordingly held the trials void and ordered the release of the petitioners. The Circuit Court of Appeals, assuming without deciding that the District Court had jurisdiction to entertain the petitions, held the military trials valid and reversed the ruling of the District Court." On certiorari the US Supreme Court reversed.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Mr. Osmond K. Fraenkel, of New York City, for Petitioner White and Mr. J. Garner Anthony, of Honolulu, Hawaii, for Petitioner Duncan wrote briefs of amici curiae urging urging reversal.

Brief of amici curiae urging reversal was filed by Mr. C. Nils Tavares, of Honolulu, Hawaii, for Territory of Hawaii.
Mr. Edward J. Ennis, of Washington, DC, wrote an amicus brief for respondents.
IV. THE SUPREME COURT'S DECISION:

"[B]oth the language of the Organic Act and its legislative history fail to indicate that the scope of 'martial law' in Hawaii includes the supplanting of courts by military tribunals... Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued... The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Yet the government seeks to justify the punishment of both White and Duncan on the ground of such supposed Congressional authorization. We hold that both petitioners are now entitled to be released from custody."

The US Supreme Court reversed the judgment of the Circuit Court of Appeals.

Justice Vote: 6 Pro vs. 2 Con

  • Black, H. Pro (Wrote majority opinion)
  • Stone, H. Pro (Wrote concurring opinion)
  • Murphy, F. Pro (Wrote concurring opinion)
  • Reed, S. Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Rutledge, W. Pro (Joined majority opinion)
  • Burton, H Con (Wrote dissenting opinion)
  • Frankfurter, F. Con (Joined dissenting opinion)
  • Jackson, R. Took no part in the decision
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as amicus curiae, urged reversal of the judgment Circuit Court of Appeals; the Supreme Court reversed in a 6-2 vote, giving the ACLU an apparent win.