author: Per Curiam. Mr. Justice Douglas,

text:
    COLOMBO v. NEW YORK
    No. 71-352.
    Decided February 22, 1972
   Per Curiam.

Despite a grant of immunity in response to the assertion of his Fifth Amendment privilege not to be a witness against himself, petitioner refused to answer questions put to him before a Kings County, New York, grand jury. On December 7, 1965, a trial judge found that the questions put had been proper and directed petitioner to answer them. Petitioner refused; the trial court, after allowing petitioner a week’s time to change his mind, signed a commitment order stating that by “his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories and for his wilful disobedience to the lawful mandate of this Court” petitioner had “committed a criminal contempt of court in the immediate view and presence of the Court and that said contempt was wilful and unlawful and in violation of Section 750 of the Judiciary Law of the State of New York . . . Petitioner was sentenced to 30 days and fined $250.

Appellate proceedings proved fruitless. Petitioner then offered to testify, the offer was refused, and petitioner paid his fine and served his sentence. On October 10, 1966, petitioner was indicted under § 600, subd. 6, of the New York Penal Law of 1909 “for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories.” The trial court dismissed the indictment on double jeopardy grounds but the appellate court reversed. The reversal was sustained by the Court of Appeals, which concluded that the Fourteenth Amendment and the double jeopardy provision of the Fifth Amendment did not bar the indictment. The court reasoned that petitioner had committed two acts of contempt — one on October 14, 1965, before the grand jury, and the other on December 7 when he refused to obey the order of the judge — and that the trial judge had committed petitioner for civil, not criminal, contempt.

The judgment of the Court of Appeals must be vacated. The judgment of the New York trial court entered on December 15, 1965, was for “criminal contempt,” petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court considered his offer to testify as sufficient to foreclose execution of the sentence. For purposes of the Double Jeopardy Clause, petitioner was confined and penalized for criminal contempt. Yates v. United States, 355 U. S. 66 (1957); see also Cheff v. Schnackenberg, 384 U. S. 373 (1966); Shillitani v. United States, 384 U. S. 364 (1966); Oriel v. Russell, 278 U. S. 358 (1929). To the extent that the judgment of the Court of Appeals rested on a contrary view, it must be set aside. It also appears from its supplemental response that the State considers the two acts of contempt on October 14 and on December 7 as being partially intertwined. As we understand it from the State’s response, petitioner’s refusal to answer on October 14 did not mature into a complete contempt until December 7 when the trial court passed on the propriety of the grand jury’s inquiry and petitioner thereafter refused to obey the court’s direction to return to the grand jury and answer the questions properly put to him.

In view of the New York Court of Appeals’ misconception of the nature of the contempt judgment entered against petitioner for purposes of the Double Jeopardy Clause and in view of the substantial question of New York law that has emerged, we are disinclined at this juncture to entertain and determine the double jeopardy question presented by petitioner. The better course is to grant the petition for writ of certiorari, vacate the judgment of the New York Court of Appeals, and remand the case to that court for further proceedings not inconsistent with this opinion, thus affording that court the opportunity to reconsider the validity of the indictment under the Double Jeopardy Clause of the Constitution.

So ordered.

Mr. Justice Douglas,

dissenting.

On October 14, 1965, petitioner refused to testify when called before a Kings County, New York, grand jury. When, on December 15, after a grant of immunity and a judicial inquiry into the validity of the grand jury investigation under state law, the petitioner persisted in his refusal to testify, the presiding judge cited him for contempt and imposed a sentence of 30 days and a fine of I250. Despite petitioner’s later willingness to testify, the sentence was executed.

The grand jury then returned an indictment against petitioner charging him with criminal contempt for his refusal to testify. Petitioner successfully moved to quash the indictment, but on appeal it was reinstated and upheld against petitioner’s contention that it put him twice in jeopardy for the same offense in violation of the Fifth Amendment. People v. Colombo, 25 N. Y. 2d 641, 254 N. E. 2d 340. We granted the petition for certi-orari, vacated the judgment of the New York Court of Appeals, and remanded for consideration in light of Waller v. Florida, 397 U. S. 387. 400 U. S. 16. On remand, however, the Court of Appeals adhered to its earlier decision, reasoning that the first citation was for civil contempt while the indictment charged a criminal offense and that “two distinct acts [were] being punished — refusal to testify before the Grand Jury and a separate refusal to obey the lawful mandate of a Supreme Court Justice.” 29 N. Y. 2d 1, 3, 271 N. E. 2d 694, 695.

The Court of Appeals’ characterization of the December 15 citation as “civil” rather than criminal is not dis-positive of the question before us. To be sure, federal courts normally are bound by state court interpretations of state law, but involved here is a question of federal right under the Double Jeopardy Clause. In such cases, federal rather than state law governs. Suffice it to say that a 30-day sentence and a $250 fine imposed for refusal to testify before a grand jury constitutes criminal punishment within the meaning of the double jeopardy provision of the Bill of Rights, at least where the witness’ willingness to purge himself of contempt by testifying does not result in the vacation of the sentence. Shillitani v. United States, 384 U. S. 364, relied upon by respondent, is not to the contrary. There, we held “that the conditional nature of [the] sentences [allowing the contemnors to purge themselves by agreeing to testify] render[ed] each of the actions a civil contempt proceeding . . . .” Id., at 365. In the present case, by contrast, the jail sentence and fine was imposed despite petitioner’s willingness to testify.

Nor does the characterization of the two contempts as involving different acts avoid the prohibition against twice being put in jeopardy for the same offense. The 30-day sentence and $250 fine were imposed, inter alia, for the petitioner’s “refusal after being sworn as a witness to answer any legal and proper interrogatories.” This is precisely the offense charged in the present indictment. Respondent lists five elements for the offense of criminal contempt. All of these elements were necessarily included in the trial court’s earlier citation for “civil” contempt. Petitioner need not “run the gantlet” on this offense a second time. Green v. United States, 355 U. S. 184, 190.

       This contempt citation rested upon § 750 of the New York Judiciary Law.

       The present indictment is founded upon the former § 600 of the New York Penal Law.

       Respondent says that “[i]n order to prove the crime of criminal contempt, the following elements must be shown:
      “1. That the defendant did unlawfully and contumaciously refuse to answer a legal and proper question before the Grand Jury.
      “2. That the quorum of the Grand Jury was present at all times, on any such day when the defendant testified and when the indictment was voted.
      “3. That the question which is claimed that the defendant refused to answer was a legal and proper one.
      “4. That any such question asked of the defendant, and which, it is charged he refused to answer, was relevant and germane to the investigation being conducted by the Grand Jury.
      “5. That the defendant was duly sworn as a witness and contumaciously and unlawfully refused to answer any such legal and proper question.” Supplemental Brief 6.
      All of these elements — with the exception of the proviso “when the indictment was voted” which relates to the sufficiency of the indictment rather than being a separate element of the offense — were plainly included in the “civil” contempt. The “witness’s contumacious and unlawful refusal to answer questions,” ibid., stems from the refusal to obey the trial court’s order which also formed the basis for the December 15 citation.

       I agree with Mr. Justice BrenNAN’s concurring opinion in Ashe v. Swenson, 397 U. S. 436, 453-454, where he said:
      “In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction’ test of ‘same offence’ not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.” (Footnotes omitted.)
      It would be repugnant to these views to allow a separate criminal prosecution and punishment for each day, hour, or minute that a witness refused to testify before a grand jury.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Douglas,

license: Public Domain

text:
    ROUDEBUSH v. HARTKE et al.
    No. 70-66.
    Argued December 13, 1971
    Decided February 23, 1972

      StewaRT, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and Blackmuh, JJ., joined. Douglas, J., filed an opinion dissenting in part, in which BreN-NAN, J., joined, post, p. 26. Powell and Rehnquist, JJ., took no part in the consideration or decision of the cases.

      Donald A. Schabel argued the cause for appellant in No. 70-66. With him on the briefs was L. Keith Bulen. Richard C. Johnson, Chief Deputy Attorney General of Indiana, argued the cause for appellant in No. 70-67. On the briefs were Theodore L. Sendak, Attorney General, pro se, William F. Thompson, Assistant Attorney General, and Mark Peden, Deputy Attorney General.

      John J. Dillon argued the cause for appellees in both cases. With him on the brief for appellee Hartke were David W. Mernitz and James L. Tuohy.

      Together with No. 70-67, Sendak, Attorney General of Indiana v. Hartke et al., also on appeal from the same court.

   Mr. Justice Stewart

delivered the opinion of the Court.

The 1970 election for the office of United States Senator was the closest in Indiana history. The incumbent, Senator R. Vance Hartke (Hartke), was declared the winner by a plurality of 4,383 votes — a margin of approximately one vote per state precinct. On November 16, 1970, 13 days after the election, the Indiana Secretary of State certified to the Governor that Hartke had been re-elected. On the following day, candidate Richard L. Roudebush (Roudebush) filed in the Superior Court of Marion County a timely petition for a recount. Hartke moved in that court to dismiss the petition, arguing that the state recount procedure conflicted with the Indiana and Federal Constitutions. On December 1, the state court denied the motion to dismiss and granted the petition for a recount. It appointed a three-man recount commission and directed it to begin its task on December 8.

Hartke then filed a complaint in the United States District Court for the Southern District of Indiana asking for an injunction against the recount. He invoked federal jurisdiction under 28 U. S. C. § 1343 (3) and claimed that the recount was prohibited by Art. I, § 5, of the Constitution of the United States, which delegates to the Senate the power to judge the elections, returns, and qualifications of its members. A single district judge issued an order temporarily restraining the recount pending decision by a three-judge district court. The Attorney General of Indiana then moved successfully to intervene as a defendant, and a three-judge court was convened pursuant to 28 U. S. C. § 2284. After taking testimony and hearing argument, the court ruled in Hartke’s favor and issued an interlocutory injunction, 321 F. Supp. 1370, one judge dissenting. Roudebush and the Attorney General both brought direct appeals to this Court.

On January 21, 1971, shortly after the jurisdictional statements were filed, the Senate administered the oath of office to Hartke, who had been issued a certificate of election by the Governor. Hartke was seated, however, “without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order . ...” Following the Senate’s decision to seat him, Hartke moved to dismiss the appeals as moot. We consolidated both appeals and postponed further consideration of questions of jurisdiction to the hearing of the cause on the merits. 401 U. S. 972.

I

We consider first the claim that these appeals are moot. This claim is based upon the proposition, as stated in appellee Hartke’s brief, that the “basic issue” before the Court is “whether appellee Hartke or appellant Roude-bush is entitled to the office of United States Senator from Indiana.” Since the Senate has now seated Hartke, and since this Court is without power to alter the Senate’s judgment, it follows, the argument goes, that the cause is moot.

The difficulty with this argument is that it is based on an erroneous statement of the “basic issue.” Which candidate is entitled to be seated in the Senate is, to be sure, a non justiciable political question — a question that would not have been the business of this Court even before the Senate acted. The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State’s power, under Art. I, § 4, to prescribe the times, places, and manner of holding elections, or is a forbidden infringement upon the Senate’s power under Art. I, § 5.

That question is not moot, because the Senate has postponed making a final determination of who is entitled to the office of Senator, pending the outcome of this lawsuit. Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under Art. I, § 5. Until that judgment is made, this controversy remains alive, and we are obliged to consider it.

II

It is the position of the appellants that, quite apart from the merits of the controversy, the three-judge District Court was barred from issuing an injunction by reason of 28 U. S. C. § 2283, which prohibits a federal court from enjoining state court proceedings except in a few specific instances. This argument has weight, of course, only if the Indiana statutory recount procedure is a “proceeding in a State court” within the meaning of § 2283. This Court has said of a predecessor to § 2283, “The provision expresses on its face the duty of ‘hands off’ by the federal courts in the use of the injunction to stay litigation in a state court.” More recently, we characterized the statute as designed to assure “the maintenance of state judicial systems for the decision of legal controversies.”

We have in the past recognized that not every state court function involves “litigation” or “legal controversies.” In the case of Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210, the Court reviewed a federal injunction preventing a state commission from fixing passenger rail rates. The Court assumed that the commission had the powers of a state court and that the predecessor of § 2283 governed any attempt by a federal court to enjoin the exercise of the commission’s judicial powers. Nevertheless, the Court concluded that rate-making could be enjoined because it was legislative in nature. Hence, the Court held that § 2283 does not restrict a federal court from enjoining a state court when it is involved in a nonjudicial function.

To determine whether an Indiana court engages in a judicial function in connection with an election recount, we turn to the law of that State. In Indiana every candidate has a right to a recount and can obtain one by merely filing a timely petition in the circuit or superior court of the appropriate county. If the petition is correct as to form, the state court “shall . . . grant such petition . . . and order the recount . . . .” When it grants a petition, the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana court has no other responsibilities or powers.

The exercise of these limited responsibilities does not constitute a court proceeding under § 2283 within the test of Prentis: “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.” 211 U. S., at 226. The state courts’ duties in connection with a recount may be characterized as ministerial, or perhaps administrative, but they clearly do not fall within this definition of a “judicial inquiry.” The process of determining that the recount petition is correct as to form — that it contains the proper information, such as the names and addresses of all candidates, and is timely filed — is clearly not a judicial proceeding. Nonjudicial functionaries continually make similar determinations in the processing of all kinds of applications.

And finally, Hartke’s complaint in this cause did not ask the three-judge federal court to restrain the action of the Indiana court as such. It did not seek to enjoin the state court from ruling on the formal correctness of the petition; it did not even seek to enjoin the state court’s appointive function. It sought, rather, to enjoin the recount commission from proceeding after the court had appointed the members of the commission.

We conclude that the three-judge District Court was not prohibited by § 2283 from issuing and had power under 28 U. S. C. § 2281 to issue, an injunction in this cause.

Ill

We turn, therefore, to the merits of the District Court’s decision. The Indiana Election Code calls for the vote to be initially counted, in each precinct, by an election board. After recording the voting machine totals, the board seals the machines. Paper ballots, including absentee ballots, are then counted and tallied. Counted ballots are placed in a bag and sealed. Ballots that bear distinguishing marks or are mutilated or do not clearly reveal the voter’s choice are not counted. These rejected ballots are sealed in a separate bag. Both bags are preserved for six months and may not be opened except in the case of a recount.

If a recount is conducted in any county, the voting machine tallies are checked and the sealed bags containing the paper ballots are opened. The recount commission may make new and independent determinations as to which ballots shall be counted. In other words, it may reject ballots initially counted and count ballots initially rejected. Disputes within the commission are settled by a majority vote. When the commission finishes its task it seals the ballots it counted in one bag, and the ballots it rejected in another. Once the recount is completed, all previous returns are superseded.

The District Court held these procedures to be contrary to the Constitution in two ways. First, the court found that in making judgments as to which ballots to count, the recount commission would be judging the qualifications of a member of the Senate. It held this would be a usurpation of a power that only the Senate could exercise. Second, it found that the Indiana ballots and other election paraphernalia would be essential evidence that the Senate might need to consider in judging Hartke’s qualifications. The court feared that the recount might endanger the integrity of those materials and increase the hazard of their accidental destruction. Thus, the court held that, even if the commission would not be usurping the Senate’s exclusive power, it would be hindering the Senate’s exercise of that power.

We cannot agree with the District Court on either ground. Unless Congress acts, Art. I, § 4, empowers the States to regulate the conduct of senatorial elections. This Court has recognized the breadth of those powers: “It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.” Smiley v. Holm, 285 U. S. 355, 366.

Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate’s option to compel a recount is exercised. A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4.

It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.

It would be no more than speculation to assume that the Indiana recount procedure would impair such an independent evaluation by the Senate. The District Court’s holding was based on a finding that a recount would increase the probability of election fraud and accidental destruction of ballots. But there is no reason to suppose that a court-appointed recount commission would be less honest or conscientious in the performance of its duties than the precinct election boards that initially counted the ballots.

For the reasons expressed, we conclude that Art. I, § 5, of the Constitution, does not prohibit Indiana from conducting a recount of the 1970 election ballots for United States Senator. Accordingly, the judgment of the District Court is reversed.

It is so ordered.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of these cases.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs, dissenting in part.

While I agree with the Court that the cases are not moot and that the three-judge court was not barred by 28 U. S. C. § 2283 from issuing an injunction, I disagree on the merits.

By virtue of Art. I, § 5, Senate custom, and this Court’s prior holdings, the Senate has exclusive authority to settle a recount contest once the contestee has been certified and seated, albeit conditionally.

Article T, § 5, provides: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” To implement this authority, the Senate has established a custom of resolving disagreements over which of two or more candidates in a senatorial race attracted more ballots. The apparent loser may initiate the process by filing with the Senate a petition stating (a) what voting irregularities he suspects, and (b) how many votes were affected. Upon receipt of such a petition, a special committee may be authorized to investigate the charges alleged. If the allegations are not frivolous and would be sufficient, if true, to alter the apparent outcome of the election, actual ballots may be and have been subpoenaed to Washington for recounting by the committee. Also, witnesses may be required to testify. The committee performs the function of deciding both the factual issues and what allegations would be sufficient to warrant favorable action on a petition.

Thus, in the Iowa senatorial campaign of 1924, Smith Brookhart was the apparent winner over Daniel Steck, who filed with the Senate the complaint that illegal votes had been cast for his opponent. The petition was referred to the Subcommittee on Privileges and Elections which was authorized to make a full investigation. It heard testimony and recounted the ballots in Washington. The committee and eventually the Senate agreed that, contrary to earlier assumptions, Steck had won. Accordingly, Brookhart was replaced by Steck as a Senator from Iowa. See Steck v. Brookhart, Senate Election, Expulsion and Censure Cases from 1789 to 1960, S. Doc. No. 71, 87th Cong., 2d Sess., 116-117 (1962). See also Hurley v. Chavez, id., at 151 (upon recounting, the subcommittee and the Senate found that neither candidate had won and the seat was declared vacant); Sweeney v. Kilgore, id., at 145 (adjustments for fraudulent campaign tactics were insufficient to reverse official outcome); O’Conor v. Markey, id., at 144 (recount of all votes cast in 1946 Maryland race revealed too few mistakes to cause reversal in outcome); Willis v. Van Nuys, id., at 138-139 (petition rejected as insufficient grounds for recount); Bursum v. Bratton, id., at 114 (recount will not be conducted absent a showing of grounds to doubt the accuracy of official count).

The Senate’s procedure is flexible:

“The Senate has never perfected specific rules for challenging the right of a claimant to serve, inasmuch as each case presents different facts. The practice has been to consider and act upon each case on its own merits, although some general principles have been evolved from the precedents established.
“This practice of viewing each case affecting claims to membership on its individual merits has resulted in a variety of means by which the cases are originated. The Senator-elect to a seat in the Senate generally appears with his credentials. On some occasions, when these credentials are presented, some Senators will submit a motion that the credentials be referred to the Committee on Rules and Administration, and that, pending report, he be denied the privilege of taking the oath of office. Upon adoption of such a motion, the Senator-elect steps aside and the Senate seat is vacant for the time being. Any question or motion arising or made upon the presentation of such credentials is privileged and would be governed by a majority vote.
“On other occasions, the Senator-elect is permitted to take the oath of office, and this is now regarded and followed as the proper procedure, but thereafter inquiry as to his election is undertaken by the Senate. Resolutions calling for such investigations may be offered by any Senator. In an instance where a newspaper charged a Senator had obtained his office by illegal means, the Senator himself offered a resolution calling for an investigation of the charges.
“The usual origin of such cases, however, is by petition. The contestant may file such a petition, protesting the seating of the contestee, and asserting his own right to the seat in question. It is not required to be filed prior to the swearing-in of the contestee, and no rights are lost if filed afterwards. In some cases, petitions have been signed and filed by others than the contestant, simply protesting against the seating of the contestee, without asserting any claim in behalf of the defeated candidate. Any number of citizens may submit such a petition; and it might make charges of illegal practices in the election, or of the improper use of money, or even of the unfitness of the claimant to serve in the United States Senate.
“A petition of contest is addressed to the U. S. Senate, and may be laid before the Senate by the presiding officer or formally presented by some Senator. There is no prescribed form for such a petition. It is somewhat analogous to a complaint filed in a lawsuit. It customarily sets forth the grounds or charges upon which the contest is based, and in support of which proof is expected to be adduced. The petition is usually referred to the Committee on Rules and Administration, which has jurisdiction over '. . . matters relating to the election of the President, Vice President, or Members of Congress; corrupt practices; contested elections; credentials arid qualifications; [and] Federal elections generally . . . .’
“The Legislative Reorganization Act of 1946 empowers each standing committee of the Senate, including any subcommittee of any such committee, to hold such hearings, to sit and act at such times and places during the sessions, recesses, and adjourned periods of the Senate, to require by subpena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures (not in excess of $10,000 for each committee during any Congress) as it deems advisable. Each such committee may make investigations into any matter within its jurisdiction and may report such hearings as may be had by it.” S. Doc. No. 71, 87th Cong., 2d Sess., vii-viii (1962).

The parties before the Court are apparently in agreement that, as is true of several other arenas of public decisionmaking, there has been a “textually demonstrable constitutional commitment” (Baker v. Carr, 369 U. S. 186, 217; Powell v. McCormack, 395 U. S. 486, 518-549) to the Senate of the decision whether Hartke or Roudebush received more lawful votes. Our case law agrees. Both Barry v. Cunningham, 279 U. S. 597, and Reed v. County Comm’rs, 277 U. S. 376, were generated during the disputed 1926 senatorial election in Pennsylvania in which William Vare appeared to have defeated William Wilson. In 1926 a Senate committee was authorized to inquire into the means used to influence the nomination of candidates in that election. The committee asked some local county commissioners to produce certain ballots but were refused, whereupon members of the committee sought a federal court order compelling the ballots’ production. On appeal, this Court held that because the Senate had been fully competent to use its own subpoena power to secure the ballots, the District Court had lacked jurisdiction to act only at the behest of the committee. In the course of discussing the committee’s scope of authority the Court said:

“The resolutions are to be construed having regard to the power possessed and customarily exerted by the Senate. It is the judge of the elections, returns and qualifications of its members. Art. I, § 5. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department. That power carries with it authority to take such steps as may be appropriate and necessary to secure information upon which to decide concerning elections.” 277 U. S., at 388.

In Barry v. Cunningham, supra, the Court upheld the Senate’s power under Art. I, § 5, to call witnesses before it in order to determine the factual history of the same controverted 1926 election involved in Reed. In answer to the argument that Vare had not been a member of the Senate inasmuch as he was unseated (and therefore the witness was relieved of the duty to answer inquiries) the Court held:

“It is enough to say . . . that upon the face of the returns [Vare] had been elected and had received a certificate from the Governor of the state to that effect. Upon these returns and with this certificate, he presented himself to the Senate, claiming all the rights of membership. Thereby, the jurisdiction of the Senate to determine the rightfulness of the claim was invoked and its power to adjudicate such right immediately attached by virtue of § 5 of Article I of the Constitution.” Barry v. Cunningham, supra, at 614.

And Cunningham holds that, “The Senate, having sole authority under the Constitution to judge of the elections, returns and qualifications of its members, may exercise in its own right the incidental power of compelling the attendance of witnesses without the aid of a statute.” Id., at 619 (emphasis added). Judicial interference with this “indubitable power” was said to be possible only upon a clear showing of “such arbitrary and improvident use of the power as will constitute a denial of due process of law.” Id., at 620.

Once certification by the Governor has been presented to the Senate, a State may not by conducting a recount alter the outcome of the election — a principle that has been widely recognized by state courts. See Laxalt v. Cannon, 80 Nev. 588, 397 P. 2d 466, and cases cited therein.

Thus, although the Houses of Congress may not engraft qualifications for membership beyond those already contained in Art. I, Powell v. McCormack, 395 U. S. 486, where all that is at stake is a determination of which candidates attracted the greater number of lawful ballots, each has supreme authority to resolve such controversies.

Although all agree that in the end the Senate will be the final judge of this seating contest, the nub of the instant case comes down to opposing positions on how important it may be to preserve for the Senate the opportunity to ground its choice in unimpeachable evidence. It is with regard to this phase of the cases that I disagree with the majority.

The Senate may conclude that only a recomputation supervised by it under laboratory conditions could serve as an acceptable guide for decision. Such a recomputation, however, will not be possible once local investigators have exposed these presently sealed ballots to human judgment.

Obviously, state officials might desire to preview these presently sealed ballots in order to influence the Senate’s deliberations.

Charges or suspicions of inadvertent or intentional alteration, however baseless, will infect the case. No longer will the constitutionally designated tribunal be able to bottom its result on unassailed evidence. Since even a slight adjustment in the tally could dramatically reverse the outcome, the federal interest in preserving the integrity of the evidence is manifest.

What the Senate should do in the merits is not a justiciable controversy. The role of the courts is to protect the Senate’s exclusive jurisdiction over the subject matter, as did this Court in Barry v. Cunningham, supra. The Senate’s Subcommittee on Privileges and Elections, for example, might subpoena these ballots, thereby precluding, as a practical matter, any local recount. Or the Senate might ask for a local recount. Either course is within the control and discretion of the Senate and is unreviewable by the courts. The District Court had jurisdiction only to protect the Senate’s choice, not to make the choice for or on behalf of the Senate.

I would affirm the judgment of the District Court.

       Roudebush filed similar petitions in 10 other counties. Recounts in all 11 counties have been postponed, pending the outcome of this cause.

       Title 28 U. S. C. § 1343 provides:
      “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”
      The District Court apparently viewed the suit as substantively based upon 42 U. S. C. § 1983, which authorizes a civil action on the part of a person deprived, under color of state law, “of any rights, privileges, or immunities secured by the Constitution . . .

       U. S. Const., Art. I, § 5, provides in pertinent part:
      “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .”

       Direct appeals from such interlocutory orders are authorized by 28 U. S. C. § 1253.

       117 Cong. Rec. 6.

       See Reed v. County Comm’rs, 277 U. S. 376, 388: “[The Senate] is the judge of the elections, returns and qualifications of its members. Art. I, § 5. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department.”

        Powell v. McCormack, 395 U. S. 486.

       U. S. Const., Art. I, §4, provides in pertinent part:
      “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

       See Powell v. McCormack, supra, at 496.

       Title 28 U. S. C. §2283 provides:
      “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

       The statute dates from 1793. Act of Mar. 2, 1793, § 5, 1 Stat. 334.

        Toucey v. New York Life Ins. Co., 314 U. S. 118, 132. (Emphasis supplied.)

        Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281, 285. (Emphasis supplied.)

       See Hill v. Martin, 296 U. S. 393, 398.

       Ind. Ann. Stat. §§ 29-5401 through 29-5417. The election recount provisions of some other States appear to give the state courts a broader function. See, e. g., Conn. Gen. Stat. Rev. § 9-323 ; Va. Code Ann. §24-277.1 (1969).

       The role of the Indiana courts in this connection is not unlike that of the state court in the case of Public Service Co. of Northern Illinois v. Corboy, 250 U. S. 153. A state statute there authorized property owners to petition a state court to establish a drainage district and to construct a drainage ditch. To assist in the planning of a ditch, the state court was empowered to appoint a drainage commissioner. The commissioner served on a commission that submitted plans for construction. The state court could either accept or reject these submissions. If it approved plans, the court allocated funds and supervised construction. Applying Prentis, this Court held that these activities were not judicial, and that enjoining the construction of a drainage ditch was not enjoining a state court “proceeding.” See also Central Electric & Gas Co. v. City of Stromsburg, 192 F. Supp. 280, aff’d, 289 F. 2d 217 (federal court could enjoin a state court’s appointment of an appraiser pursuant to a state statute); Central R. Co. of New Jersey v. Martin, 19 F. Supp. 82, aff’d sub nom. Lehigh Valley R. Co. v. Martin, 100 F. 2d 139 (federal court could enjoin ministerial act of state judge, pursuant to state statute, converting a state tax into a lien against the taxpayer) ; Weil v. Calhoun, 25 F. 865 (federal court could enjoin a state ordinary, having the powers of a probate judge, from declaring the results of a county election).

       The only injunctive relief sought in Hartke’s amended complaint was “that the court permanently restrain and enjoin the defendants and restraining and enjoining the defendants Samuel Walker, John R. Hammond and Duge Butler [the recount commissioners) from convening and commencing a recount, and the defendant Richard L. Roudebush and all persons acting in his behalf or in concert with him [from] taking any further action to use said machinery and procedures to carry forward a recount of the vote for the office of United States Senator in the general election of November 3, 1970.” An interlocutory injunction against- the same defendants was also sought.

       Ind. Ann. Stat. §§ 29-5201 through 29-5220.

       Ind. Ann. Stat. §§ 29-5401 through 29-5417.

       The District Court cited three cases decided by the Indiana Supreme Court as authority for its rulings. State ex rel. Batchelet v. Dekalb Circuit Court, 248 Ind. 481, 229 N. E. 2d 798; State ex rel. Beaman v. Circuit Court of Pike County, 229 Ind. 190, 96 N. E. 2d 671; State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N. E. 2d 838. These cases held that the Indiana Constitution prohibited recounts in certain state elections. They do not address the federal constitutional question at issue in this cause.

       See n. 8, supra.

       The Secretary of State is required by statute to certify to the Governor the leading candidate as duly elected “as soon as he shall receive” certified statements from the counties. The statutory period for receiving those statements is 26 days. The Governor is required to give a certificate of election to each certified candidate. Ind. Ann. Stat. §§29-5306 through 29-5309.
      A petition for a recount may be filed 15 days after the election is held. §29-5403. The petition cannot be granted nor the recount commission appointed by the court for another 25 days. § 29-5409. The recount may not commence until at least five days after the commission is appointed. §29-5411. Additional time elapses before the results are made final and the appropriate persons are notified. Thus, the recount is unlikely to be completed before the Governor becomes obligated by statute to issue a certificate of election based on the initial count. Nevertheless, the recount supersedes the initial count even though a certificate of election may have been issued. § 29-5415.

       The Senate’s power to judge the qualifications of its members is limited to the qualifications expressly set forth in the Constitution. Powell v. McCormack, 395 U. S. 486. One of those qualifications is that a Senator be elected by the people of his State. U. S. Const., Amend. XVII.

       The Senate itself has recounted the votes in close elections in States where there was no recount procedure. E. g., O’Conor v. Markey, Senate Election, Expulsion and Censure Cases from 1789 to 1960, S. Doe. No. 71, 87th Cong., 2d Sess., 144 (1962).

       Several areas of decisionmaking are immune from judicial review by federal courts. The cases are reviewed in Baker v. Carr, 369 U. S. 186.

       Cf. Ex parte Peru, 318 U. S. 578.


text:
    PARISI v. DAVIDSON et al.
    No. 70-91.
    Argued October 19-20, 1971
    Decided February 23, 1972
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNan, White, Marshall, and BlackmuN, JJ., joined. Douglas, J., filed an opinion concurring in the result, post, p. 46. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case.

      Richard L. Goff argued the cause for petitioner. With him on the briefs were George A. Blackstone and Stephen V. Bomse.

      William Terry Bray argued the cause for respondents. On the brief were Solicitor General Griswold, Assistant Attorney General Mardian, William Bradford Reynolds, Robert L. Keuch, and Robert A. Crandall.

   Mr. Justice Stewart

delivered the opinion of the Court.

When a member of the armed forces has applied for a discharge as a conscientious objector and has exhausted all avenues of administrative relief, it is now settled that he may seek habeas corpus relief in a federal district court on the ground that the denial of his application had no basis in fact. The question in this case is whether the district court must stay its hand when court-martial proceedings are pending against the serviceman.

The petitioner, Joseph Parisi, was inducted into the Army as a draftee in August 1968. Nine months later he applied for a discharge as a conscientious objector, claiming that earlier doubts about military service had crystallized into a firm conviction that any form of military activity conflicted irreconcilably with his religious beliefs. He was interviewed by the base chaplain, the base psychiatrist, and a special hearing officer. They all attested to the petitioner’s sincerity and to the religious content of his professed beliefs. In addition, the commanding general of the petitioner’s Army training center and the commander of the Army hospital recommended that the petitioner be discharged as a conscientious objector. His immediate commanding officer, an Army captain, disagreed, recommending disapproval of the application on the ground that the petitioner’s beliefs were based on essentially political, sociological, or philosophical views, or on a merely personal moral code.

In November 1969, the Department of the Army denied the petitioner conscientious objector status, on the grounds that his professed beliefs had become fixed prior to entering the service and that his opposition to war was not truly based upon his religious beliefs. On November 24, 1969, the petitioner applied to the Army Board for Correction of Military Records (hereafter sometimes ABCMR) for administrative review of that determination.

Four days later the petitioner commenced the present habeas corpus proceeding in the United States District Court for the Northern District of California, claiming that the Army’s denial of his conscientious objector application was without basis in fact. He sought discharge from the Army and requested a preliminary injunction to prevent his transfer out of the jurisdiction of the District Court and to prohibit further training preparatory to being transferred to Vietnam. The District Court declined at that time to consider the merits of the habeas corpus petition, but it retained jurisdiction pending a decision by the ABCMR, and in the meantime enjoined Army authorities from requiring the petitioner to participate in activity or training beyond his current noncombatant duties.

Shortly thereafter the petitioner received orders to report to Fort Lewis, Washington, for deployment to Vietnam, where he was to perform noncombatant duties similar to those that had been assigned to him in this country. He sought a stay of this redeployment order pending appeal of the denial of habeas corpus, but his application was denied by the Court of Appeals, on the condition that the Army would produce him if the appeal should result in his favor. A similar stay application was subsequently denied by Mr. Justice Douglas as Ninth Circuit Justice, Parisi v. Davidson, 396 U. S. 1233. The petitioner then reported to Fort Lewis. He refused, however, to obey a military order to board a plane for Vietnam. As a result, he was charged with violating Art. 90 of the Uniform Code of Military Justice, 10 U. S. C. § 890, and, on April 8, 1970, a court-martial convicted him of that military offense.

While the court-martial charges were pending, the Army Board for Correction of Military Records notified the petitioner that it had rejected his application for relief from the Army’s denial of his conscientious objector application. The District Court then ordered the Army to show cause why the pending writ of habeas corpus should not issue. On the Government’s motion, the District Court, on March 31, 1970, entered an order deferring consideration of the habeas corpus petition until final determination of the criminal charge then pending in the military court system. The Court of Appeals for the Ninth Circuit affirmed this order, concluding that “habeas proceedings were properly stayed pending the final conclusion of Parisi’s military trial and his appeals therefrom,” 435 F. 2d 299, 302. We granted certiorari, 402 U. S. 942.

In affirming the stay of the petitioner’s federal habeas corpus proceeding until completion of the military courts’ action, the Court of Appeals relied on the related doctrines of exhaustion of alternative remedies and comity between the federal civilian courts and the military system of justice. We hold today that neither of these doctrines required a stay of the habeas corpus proceedings in this case.

With respect to available administrative remedies, there can be no doubt that the petitioner has fully met the demands of the doctrine of exhaustion — a doctrine that must be applied in each case with an “understanding of its purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U. S. 185, 193. The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence — to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies. Id., at 194-195; McGee v. United States, 402 U. S. 479, 485; K. Davis, Administrative Law Treatise § 20.01 etseq. (Supp. 1970).

In this case the petitioner fully complied with Army Regulation 635-20, which dictates the procedures to be followed by a serviceman seeking classification as a conscientious objector on the basis of beliefs that develop after induction. Moreover, following a rule of the Ninth Circuit then in effect, he went further and appealed to the Army Board for Correction of Military Records. The procedures and corrective opportunities of the military administrative apparatus had thus been wholly utilized at the time the District Court entered its order deferring consideration of the petitioner’s habeas corpus application.

It is clear, therefore, that, if the court-martial charge had not intervened, the District Court would have been wrong in not proceeding to an expeditious consideration of the merits of the petitioner’s claim. For the writ of habeas corpus has long been recognized as the appropriate remedy for servicemen who claim to be unlawfully retained in the armed forces. See, e. g., Eagles v. Samuels, 329 U. S. 304, 312; Oestereich v. Selective Service Board, 393 U. S. 233, 235; Schlanger v. Seamans, 401 U. S. 487, 489. And, as stated at the outset, that writ is available to consider the plea of an in-service applicant for discharge as a conscientious objector who claims that exhaustion of military administrative procedures has led only to a factually baseless denial of his application. In re Kelly, 401 F. 2d 211 (CA5); Hammond v. Lenfest, 398 F. 2d 705 (CA2).

But since a court-martial charge was pending against the petitioner when he sought habeas corpus in March 1970, the respondents submit that the Court of Appeals was correct in holding that the District Court must await the final outcome of those charges in the military judicial system before it may consider the merits of the petitioner’s habeas corpus claim. Although this argument, too, is framed in terms of “exhaustion,” it may more accurately be understood as based upon the appropriate demands of comity between two separate judicial systems. Requiring tile District Court to defer to the military courts in these circumstances serves the interests of comity, the respondents argue, by aiding the military judiciary in its task of maintaining order and discipline in the armed services and by eliminating “needless friction” between the federal civilian and military judicial systems. The respondents note that the military'constitutes a “specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby, 345 U. S. 83, 94; Gusik v. Schilder, 340 U. S. 128, and that in recognition of the special nature of the military community, Congress has created an autonomous military judicial system, pursuant to Art. I, § 8, of the Constitution. They further point out that civilian courts, out of respect for the separation-of-powers doctrine and for the needs of the military, have rightly been reluctant to interfere with military judicial proceedings.

But the issue in this case does not concern a federal district court’s direct intervention in a case arising in the military court system. Cf. Gusik v. Schilder, supra; Noyd v. Bond, 395 U. S. 683. The petitioner’s application for an administrative discharge — upon which the habeas corpus petition was based — antedated and was independent of the military criminal proceedings.

The question here, therefore, is whether a federal court should postpone adjudication of an independent civil lawsuit clearly within its original jurisdiction. Under accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks — discharge as a conscientious objector — would also be available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of the court-martial charge. Griffin v. County School Board of Prince Edward County, 377 U. S. 218, 229; Davis v. Mann, 377 U. S. 678, 690-691; Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 716-717. For the reasons that follow, we are not persuaded that such relief would be even potentially available, much less that it would be either prompt or certain.

Courts-martial are not convened to review and rectify administrative denials of conscientious objector claims or to release conscientious objectors from military service. They are convened to adjudicate charges of criminal violations of military law. It is true that the Court of Military Appeals has held that a soldier charged in a court-martial with refusal to obey a lawful order may, in certain limited circumstances, defend upon the ground that the order was not lawful because he had wrongfully been denied an administrative discharge as a conscientious objector. United States v. Noyd, 18 U. S. C. M. A. 483, 40 C. M. R. 195. The scope of the Noyd doctrine is narrow, United States v. Wilson, 19 U. S. C. M. A. 100, 41 C. M. R. 100, and its present vitality not wholly clear, United States v. Stewart, 20 U. S. C. M. A. 272, 43 C. M. R. 112. A Noyd defense, therefore, would be available, even arguably, only in an extremely limited category of court-martial proceedings. But even though we proceed on the assumption that Noyd offered this petitioner a potential affirmative defense to the court-martial charge brought against him, the fact remains that the Noyd doctrine offers, at best, no more than a defense to a criminal charge. Like any other legal or factual defense, it would, if successfully asserted at trial or on appeal, entitle the defendant to only an acquittal — not to the discharge from military service that he seeks in the habeas corpus proceeding.

The respondents acknowledge, as they must, the limited function of a Noyd defense in the trial and appeal of the court-martial proceeding itself. But they suggest that, if the military courts should eventually acquit the petitioner on the ground of his Noyd defense, then the petitioner may have “an available remedy by way of habeas corpus in the Court of Military Appeals.” In support of this suggestion, the respondents point to the All Writs Act, 28 U. S. C. § 1651 (a), and to cases in which the Court of Military Appeals has exercised power under that Act to order servicemen released from military imprisonment pending appeals of their court-martial convictions. See Noyd v. Bond, 395 U. S., at 695; Levy v. Resor, 17 U. S. C. M. A. 135, 37 C. M. R. 399; United States v. Jennings, 19 U. S. C. M. A. 88, 41 C. M. R. 88; Johnson v. United States, 19 U. S. C. M. A. 407, 42 C. M. R. 9.

But the All Writs Act only empowers courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions . . . ,” and the jurisdiction of the Court of Military Appeals is limited by the Uniform Code of Military Justice to considering appeals from court-martial convictions. 10 U. S. C. § 867; United States v. Snyder, 18 U. S. C. M. A. 480, 40 C. M. R. 192. That court has been given no “jurisdiction” to consider a serviceman’s claim for discharge from the military as a conscientious objector.

Whether this conceptual difficulty might somehow be surmounted is a question for the Court of Military Appeals itself ultimately to decide. See United States v. Bevilacqua, 18 U. S. C. M. A. 10, 12, 39 C. M. R. 10, 12. But the short answer to the respondents’ suggestion in this case is the respondents’ own concession that that court has, to date, never so much as intimated that it has power to issue a writ of habeas corpus granting separation from military service to a conscientious objector. We conclude here, therefore, as in Noyd v. Bond, supra, at 698 n. 11, that the petitioner cannot “properly be required to exhaust a remedy which may not exist.” Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the District Court with directions to give expeditious consideration to the merits of the petitioner’s habeas corpus application.

In holding as we do today that the pendency of court-martial proceedings must not delay a federal district court’s prompt determination of the conscientious objector claim of a serviceman who has exhausted all administrative remedies, we no more than recognize the historic respect in this Nation for valid conscientious objection to military service. See 50 U. S. C. App. § 456 (j); United States v. Seeger, 380 U. S. 163. As the Defense Department itself has recognized, “the Congress . . . has deemed it more essential to respect a man’s religious beliefs than to force him to serve in the Armed Forces.” Department of Defense Directive No. 1300.6 (May 10, 1968).

But our decision today should not be understood as impinging upon the basic principles of comity that must prevail between civilian courts and the military judicial system. See, e. g., Noyd v. Bond, 395 U. S. 683; Burns v. Wilson, 346 U. S. 137; Orloft v. Willoughby, 345 U. S. 83; Gusik v. Schilder, 340 U. S. 128. Accordingly, a federal district court, even though upholding the merits of the conscientious objector claim of a serviceman against whom court-martial charges are pending, should give careful consideration to the appropriate demands of comity in effectuating its habeas corpus decree.

The judgment is reversed.

Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas,

concurring in the result.

I agree with the Court’s view that habeas corpus is an overriding remedy to test the jurisdiction of the military to try or to detain a person. The classic case is Ex parte Milligan, 4 Wall. 2, where habeas corpus was issued on behalf of a civilian tried and convicted in Indiana by a military tribunal. During the Civil War all civil courts in that State were open and federal authority had always been unopposed. While the President and the Congress had “suspended” the writ, id., at 115, the suspension, said the Court, went no further than to relieve the military from producing in the habeas corpus court the person held or detained. “The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it.” Id., at 126.

Mr. Chief Justice Taney in Ex parte Merryman, 17 F. Cas. 144 (No. 9,487) (CC Md. 1861), held that the President alone had no authority to suspend the writ, a position that Lincoln did not honor. To date, the question has never been resolved, and its decision is not relevant to the present case. I mention the matter because of the constitutional underpinning of the writ of habeas corpus. Article I of the Constitution, in describing the powers of the legislative branch, states in § 9 that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Court has consistently reaffirmed the preferred place of the Great Writ in our constitutional system. Fay v. Noia, 372 U. S. 391, 400; Smith v. Bennett, 365 U. S. 708, 713.

Article III, § 1, gives Congress the power to “ordain and establish” inferior federal courts; and §2 subjects the “appellate Jurisdiction” of this Court to “such Exceptions, and . . . such Regulations as the Congress shall make.” Once Congress withdrew from this Court its appellate jurisdiction in habeas corpus cases. See Ex parte McCardle, 6 Wall. 318, 7 Wall. 506. An Act of Congress passed by the very first Congress provided for the issuance of the writ. But as Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 95, “for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.” It is also true that “the meaning of the term habeas corpus” is ascertained by resort “to the common law;” yet “the power to award the writ by any of the courts of the United States, must be given by written law.” Id., at 93-94.

What courts may do is dependent on statutes, save as their jurisdiction is defined by the Constitution. What federal judges may do, however, is a distinct question. Authority to protect constitutional rights of individuals is inherent in the authority of a federal judge, conformably with Acts of Congress. The mandate in Art. I, § 9, that “The Privilege of the Writ . . . shall not be suspended” must mean that its issuance, in a proper case or controversy, is an implied power of any federal judge.

We have ruled that even without congressional statutes enforcing constitutional rights, the federal judges have authority to enforce the federal guarantee. Fay v. New York, 332 U. S. 261, 283-284, 285, 293; Katzenbach v. Morgan, 384 U. S. 641, 647. Those cases involved protests by individuals against state action. Certainly the military does not stand in a preferred position.

The matter is germane to the present problem. For here the military is charged with exceeding its proper bounds in seeking to punish a person .for claiming his statutory and constitutional exemption from military service. The conflict between military prerogatives and civilian judicial authority is as apparent in this case as it was in Ex parte Milligan. A person who appropriately shows that he is exempt from military duty may not be punished for failure to submit. The question is not one of comity between military and civilian tribunals. One overriding function of habeas corpus is to enable the civilian authority to keep the military within bounds. The Court properly does just that in the opinion announced today.

While the Court of Military Appeals has the authority to issue the writ of habeas corpus, Noyd v. Bond, 395 U. S. 683, 695 n. 7; Levy v. Resor, 17 U. S. C. M. A. 135, 37 C. M. R. 399, we have never held that a challenge to the military’s jurisdiction to try a person must first be sought there rather than in a federal district court. Of course, where comity prevails, as it does between state and federal courts, federal habeas corpus will be denied where state habeas corpus or a like remedy is available but has not been utilized. Ex parte Hawk, 321 U. S. 114. A petitioner must, indeed, pursue his alleged state remedies until it is shown that they do not exist or have been futilely invoked.

The principle of comity was invoked by Congress when it wrote in 28 U. S. C. § 2254 that federal habeas corpus shall not be granted a person in state custody “unless it appears that the applicant has exhausted the remedies available in the courts of the State.” That principle of comity is important in the operation of our federal system, for both the States and the Federal Government are administering programs relating to criminal justice. See Fay v. Noia, 372 U. S. 391. But “the principles of federalism which enlighten the law of federal habeas corpus for state prisoners are not relevant,” Noyd v. Bond, 395 U. S., at 694, to analogous questions involving military prisoners. Military proceedings are different. As we said in O’Callahan v. Parker, 395 U. S. 258, 265, “A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.”

Comity is “a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Darr v. Burford, 339 U. S. 200, 204. But the Pentagon is not yet sovereign. The military is simply another administrative agency, insofar as judicial review is concerned. Cf. Comment, 43 S. Cal. L. Rev. 356, 377-378. While we have stated in the past that special deference is due the military decisionmaking process, Gusik v. Schilder, 340 U. S. 128, this is so neither because of “comity,” nor the sanctity of the Executive Branch, but because of a concern for the effect of judicial intervention on morale and military discipline, and because of the civilian judiciary’s general unfamiliarity with “extremely technical provisions of the Uniform Code '[of Military Justice] which have no analogs in civilian jurisprudence,” Noyd v. Bond, supra, at 696.

The "special expertise” argument is often employed by the defenders of the military court system. Thus, the argument was advanced — and rejected — that the civilian judges who were to staff the Court of Military Appeals could not do service, absent military experience, to the complicated, technical niceties of military law. See, e. g., 96 Cong. Rec. 1305-1306. But civilian courts must deal with equally arcane matters in such areas as patent, admiralty, tax, antitrust, and bankruptcy law, on a daily basis.

Our system of specialized military courts, though “necessary to an effective national defense establishment,” O’Callahan v. Parker, 395 U. S., at 265, has roots in a system almost alien to the system of justice provided by the Bill of Rights, by Art. Ill, and by the special provision for habeas corpus contained in Art. I, § 9. Military law is primarily an instrument of discipline and a “military trial is marked by the age-old manifest destiny of retributive justice.” Id., at 266. For the sake of discipline and orderliness a person in the military service must normally follow the military administrative procedure and exhaust its requirements. Gusik v. Schilder, 340 U. S. 128. But once those administrative remedies are exhausted, he must then be permitted to resort to civilian courts to make sure that the military regime acts within, the scope of statutes governing the problem and any constitutional requirements. To repeat, both statutes and the Constitution are implicated in the claims of conscientious objectors.

Petitioner claims to be a conscientious objector and therefore not subject to military orders. He was charged with refusing to obey a military order sending him to Vietnam and has been convicted of that offense. While the court-martial charges against him were pending, he exhausted all administrative remedies for relief from the Army’s denial of his conscientious objector application. In theory he could pursue his remedies within the military system by appealing the conviction or seeking habeas corpus in the Court of Military Appeals. But he need go no further than to exhaust his administrative remedies for overruling the decision that he was not a conscientious objector. If there is a statutory or constitutional reason why he should not obey the order of the Army, that agency is overreaching when it punishes him for his refusal.

The Army has a separate discipline of its own and obviously it fills a special need. But matters of the mind and spirit, rooted in the First Amendment, are not in the keeping of the military. Civil liberty and the military regime have an “antagonism” that is “irreconcilable.” Ex parte Milligan, 4 Wall., at 124, 125. When the military steps over those bounds, it leaves the area of its expertise and forsakes its domain. The matter then becomes one for civilian courts to resolve, consistent with the statutes and with the Constitution.

       At the time of oral argument of the present case, an appeal from this conviction was pending in a court of military review.

       The right of a person in the armed forces to be classified as a conscientious objector after induction is bottomed on Department of Defense Directive No. 1300.6 (May 10, 1968), issued by the Secretary of Defense pursuant to his authority under 10 U. S. C. § 133. The purpose of the directive is to provide “uniform procedures for the utilization of conscientious objectors in the Armed Forces and consideration of requests for discharge on the grounds of conscientious objection.” Army Regulation 635-20 was issued to effectuate the broader policies announced in DOD Directive No. 1300.6.

       Under the rule of Craycroft v. Ferrall, 408 F. 2d 587 (CA9 1969), the petitioner was required to appeal the Department of the Army’s decision to the civilian Army Board for Correction of Military Records in order to exhaust military administrative remedies and have access to federal court. Current governmental policy rejects Craycroft. Compliance with Army Regulation 635-20, not perfection of an ABCMR appeal, marks the point when military administrative procedures have been exhausted. Department of Justice Memo. No. 652 (Oct. 23, 1969). In Craycroft v. Ferrall, 397 U. S. 335, this Court vacated the judgment of the Ninth Circuit that the petitioner there had to appeal to the Board for the Correction of Naval Records before proceeding in federal court. But our decision was announced on March 30, 1970, more than four months after the present petitioner had appealed to the ABCMR.

       In 1946, Congress enacted legislation empowering the service secretaries, acting through boards of civilian officers of their respective departments, to alter military records when necessary to prevent injustice. Legislative Reorganization Act of 1946, § 207, 60 Stat. 837, as amended by 70A Stat. 116, 10 U. S. C. § 1552 (1952 ed., Supp. IV). Pursuant to this legislation, each service established a board for the correction of military records whose function is, on application by a serviceman, to review the military record and intervene where necessary to correct error or remove injustice. 10 U. S. C. § 1552 (a).

       The Department of Justice, in consultation with the Department of Defense, has accepted the holdings of the Kelly and Hammond cases. Department of Justice Memo. No. 652 (Oct. 23, 1969). See United States ex rel. Brooks v. Clifford, 409 F. 2d 700, 701 (CA4). Compare Noyd v. McNamara, 378 F. 2d 538 (CA10), with Polsky v. Wetherill, 403 U. S. 916, vacating judgment in 438 F. 2d 132 (CA10).

       The respondents do not contend that the military courts have a special competence in determining if a conscientious objector application has been denied without basis in fact. As they acknowledge in their brief:
      “Plainly, judicial review of the factual basis for the Army’s denial of petitioner’s conscientious objector claim does not require an interpretation of ‘extremely technical provisions of the Uniform Code [of Military Justice] which have no analogs in civilian jurisprudence,’ ” quoting Noyd v. Bond, 395 U. S. 683, 696.
      Thus,, it is not contended that exhaustion of military court remedies — like exhaustion of military administrative remedies- — -is required by the principles announced in McKart v. United States, 395 U. S. 185, and McGee v. United States, 402 U. S. 479.
      The concept of “exhaustion” in the context of the demands of comity between different judicial systems is closely analogous to the doctrine of abstention. For a discussion of the exhaustion and abstention doctrines in the federal-state context, see generally C. Wright, Handbook of the Law of Federal Courts 186-188, 196— 208 (2d ed. 1970).

       Barker, Military Law — A Separate System of Jurisprudence, 36 U. Cin. L. Rev. 223 (1967); Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181 (1962). Military courts are legislative courts; their jurisdiction is independent of Art. Ill judicial power. Following World War II, Congress, in an attempt to reform and modernize the system of military law, created the Uniform Code of Military Justice, Act of May 5, 1950, c. 169, 64 Stat. 107. In 1968, the Code was amended by the Military Justice Act, 10 U. S. C. § 819, to improve court-martial and review procedures.

       See Hammond v. Lenfest, 398 F. 2d 705, 710 (CA2 1968):
      “Judicial hesitancy when faced with matters touching on military affairs is hardly surprising in view of the doctrine of separation of powers and the responsibility for national defense which the Constitution . . . places upon the Congress and the President. Moreover, the ever-present and urgent need for discipline in the armed services would alone explain the relative freedom of the military from judicial supervision.”

       Army Regulation 635-20 provides that
      “individuals who have submitted formal applications [for conscientious objector' status] . . . will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications.” Noyd involved an Air Force officer who, after being denied conscientious objector status, refused to obey an order to instruct student pilots to fly a fighter plane used in Vietnam. Noyd’s commanding officer had refrained from ordering the accused to give such instruction until the application had been processed and denied. As the Court of Military Appeals said:
      “The validity of the order [to instruct students], therefore, depended upon the validity of the Secretary’s decision [rejecting the conscientious objector application] ... If the Secretary’s decision was illegal, the order it generated was also illegal.” United States v. Noyd, 18 U. S. C. M. A. 483, 492, 40 C. M. R. 195, 204.

       The petitioner did, in fact, interpose a Noyd defense at his court-martial trial, and it was rejected upon the military judge’s finding that “the ruling of the Secretary of the Army was not arbitrary, capricious, unreasonable, or an abusive [sic] discretion.”

       We have been referred to no reported military court decision (including Noyd itself) that has yet acquitted a defendant upon the basis of a Noyd defense.

       If the military courts should ultimately acquit the petitioner on grounds other than wrongful denial of his conscientious objector application, the respondents acknowledge that he could not seek habeas corpus in the military judicial system. In this event, therefore, the petitioner could clearly not obtain the relief that he seeks in the military court system.

       This result is not inconsistent with the need to maintain order and discipline in the military and to avoid needless friction between the federal civilian and military judicial systems. If the Noyd defense is available and if the order that the petitioner disobeyed was unlawful if his conscientious objector claim is valid, then allowing him to proceed in federal district court as soon as military administrative remedies have been exhausted does not affect military-discipline. For if the conscientious objector claim is valid, the Army can have no interest in punishing him for disobedience of an unlawful order. If the conscientious objector claim is invalid, then the Army can, of course, prosecute the petitioner for his alleged disobedience of a lawful order.
      Correlatively, if the charges in military court would be unaffected by the validity of the conscientious objector claim, both the petitioner’s habeas corpus action and the criminal trial in military court could proceed concurrently. See n. 15, infra. Needless to say, the question whether wrongful denial of conscientious objector status may be raised as a defense against various types of military charges must remain with the military courts, as they exercise their special function of administering military law.

       See generally Report of the National Advisory Commission on Selective Service, In Pursuit of Equity: Who Serves When Not All Serve? 48-51 (1967); Selective Service System Monograph No. 11, Conscientious Objection (1950); Russell, Development of Conscientious Objector Recognition in the United States, 20 Geo. Wash. L. Rev. 409 (1952); Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif. L. Rev. 379 (1968).

       In the present case the respondents acknowledge that if the administrative denial of the petitioner’s conscientious objector claim had no basis in fact, then the court-martial charge against him is invalid. It follows that, if he should prevail in the habeas corpus proceeding, he is entitled to his immediate release from the military. At the other end of the spectrum is the hypothetical case of a court-martial charge that has no real connection with the conscientious objector claim — e. g., a charge of stealing a fellow soldier’s watch. In such a case, a district court, even though upholding the serviceman’s conscientious objector claim, might condition its order of discharge upon the completion of the court-martial proceedings and service of any lawful sentence imposed.

       It has been assumed that this Court has no jurisdiction to issue an original writ of habeas corpus except when issuance of the writ has been first denied by a lower court. R. Stern & E. Gressman, Supreme Court Practice 419-420 (4th ed. 1969). But the Court has not settled the question. See Hirota v. MacArthur, 335 U. S. 876, 338 U. S. 197.
      Some members of the Court have felt that, absent statutory authorization, the Court may not even transfer a petition for an original writ of habeas corpus to a lower court. But that view has not prevailed. See Chaapel v. Cochran, 369 U. S. 869.

       See Billings v. Truesdell, 321 U. S. 542. This case involved a Selective Service registrant whose conscientious objector claim was rejected by the service. Billings subsequently reported as ordered for induction, but refused to take the required oath. The oath was then read to him, and he was told that his refusal to take it made no difference; he was “in the army now.” Id., at 545. When Billings refused an order to submit to fingerprinting, military charges were brought against him.
      While the charges were pending, Billings sought federal habeas corpus relief, challenging the military's jurisdiction to try him, on the theory that he had not been lawfully inducted. The District Court discharged the writ, and the Court of Appeals affirmed, but this Court held that Billings’ induction had indeed violated existing statutory law, and ordered that the writ issue. Implicit in this holding is an affirmation of the proposition that exhaustion of military remedies, including pending court-martial, is not required of one challenging the military’s jurisdiction to try him in the first instance.
      While Billings was decided before the enactment of the Uniform Code of Military Justice, eases decided under the Code have reached similar results. See, e. g., McElroy v. Guagliardo, 361 U. S. 281; Reid v. Covert, 354 U. S. 1; Toth v. Quarles, 350 U. S. 11.

        Noyd v. Bond, 395 U. S. 683, is not to the contrary. There, the Court was faced with a serviceman who had refused to obey an order because of his asserted conscientious scruples against the war in Vietnam. His court-martial conviction was pending in the Court of Military Appeals. The issue decided against him on his federal habeas application, however, was not the jurisdiction of the military to try him in the first instance, but merely his entitlement to bail pending disposition of his military appeals. The Court held that his bail motion should first be presented to the Court of Military Appeals; but we were explicit in distinguishing Guagliardo, Covert, and Toth:

      “The cited cases held that the Constitution barred the assertion of court-martial jurisdiction over various classes of civilians connected with the military, and it is true that this Court there vindicated complainants’ claims without requiring exhaustion of military remedies. We did so, however, because we did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented. Moreover, it appeared especially unfair to require exhaustion of military remedies when the complainants raised substantial arguments denying the right of the military to try them at all. Neither of these factors is present in the case before us.” 395 U. S., at 696 n. 8.
      Thus, Noyd supports the proposition that “exhaustion is not required when a prisoner challenges the personal jurisdiction of the military.” Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1233 n. 169. And Parisi’s challenge is precisely of that nature.

       As Irving Brant says in the Bill of Rights 483 (1965), “the essential differences between state and federal criminal law, though immense in subject matter, have little bearing on 'fundamental fairness’ or ‘basic liberties.’ These are involved when overlapping jurisdictions produce double jeopardy, but the fundamentals of fairness are not different in state and federal courts.”

       Many of today’s critics of the Court of Military Appeals feel, that an insensitivity to military needs is the least of the court’s problems. Recent attacks have rested on the premise that, in fact, the court has become too closely identified with the viewpoint of the military establishment it is supposed to oversee. See, e. g., R. Sherrill, Military Justice Is to Justice as Military Music Is to Music 21A-215 (1970). Critics must concede, however, that the court has at least been partially successful in infusing civilian notions of due process into the military justice system. See, e. g., E. Sherman, Justice in the Military, in Conscience and Command 21, 28 (J. Finn ed. 1971). Thus, the court has extended to servicemen the right to a speedy trial, United States v. Schalck, 14 U. S. C. M. A. 371, 34 C. M. R. 151; the right to confront witnesses, United States v. Jacoby, 11 U. S. C. M. A. 428, 29 C. M. R. 244; the right to protection against unreasonable searches and seizures, United States v. Vierra, 14 U. S. C. M. A. 48, 33 C. M. R. 260; the privilege against self-incrimination, United States v. Kemp, 13 U. S. C. M. A. 89, 32 C. M. R. 89; the right to a public trial, United States v. Brown, 7 U. S. C. M. A. 251, 22 C. M. R. 41; the right to compulsory service of process, United States v. Sweeney, 14 U. S. C. M. A. 599, 34 C. M. R. 379; and the right to Miranda-type warnings, United States v. Tempia, 16 U. S. C. M. A. 629, 37 C. M. R. 249.
      Despite these advances, however, the military justice system’s disregard of the constitutional rights of servicemen is pervasive. See Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 260, 87th Cong., 2d Sess.; Joint Hearings on S. 745 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., pts. 1 and 2. See also Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 58, 88th Cong., 1st Sess. (Comm. Print 1963).

       At the hearings on the proposed Uniform Code of Military Justice, one witness analogized the military court-martial panel to a jury appointed by the sheriff’s office. Hearings on the Uniform Code of Military Justice before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 630 (1949). Rep. Sutton of Tennessee, himself a much-decorated veteran, summarized his views on the state of military justice during World War II by his statement, during the floor debates on the proposed Code, that “[h]ad they used the Pentagon Building for what it was designed, a veteran’s hospital, America would have been lots better off today.” 95 Cong. Rec. 5727.

       The Federal Rules of Civil Procedure govern habeas corpus (Rule 81 (a)(2)), that remedy being civil in nature; and those Rules are comprehensive, including depositions and discovery. Rules 26-37.
      The Rules of Practice and Procedure of the Court of Military Appeals (see the Rules ff. 10 U. S. C. A. § 867, Supp. 1972) contain no provisions respecting habeas corpus.
      While collateral remedies have been recognized by the Court of Military Appeals since 1966, United States v. Frischholz, 16 U. S. C. M. A. 150, 36 C. M. R. 306, and the express power to grant habeas corpus relief was asserted in 1967, Levy v. Besor, 17 U. S. C. M. A. 135, 37 C. M. R. 399, the military prisoner is at a substantial disadvantage compared to his civilian counterpart. See Uniform Code of Military Justice, Arts. 32, 36, 46, and 49, 10 U. S. C. §§ 832, 836, 846, and 849. See Melnick, The Defendant’s Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil. L. Rev. 1 (1965). See generally M. Comisky & L. Apothaker, Criminal Procedure in the United States District and Military Courts (1963). And see Manual for Courts-Martial, ¶¶ 30f, 34, 115, 117, and 145a (1968).

       50 U. S. C. App. §456 (j). See United States v. Seeger, 380 U. S. 163.

       See Gillette v. United States, 401 U. S. 437, 463 (Douglas, J., dissenting).

       Another factor militating against the Court’s reliance on “comity” in analyzing the insulation of the military justice system from civilian review is the enormous power of the military in modern American life.
      “From an initial authorized strength of well under one thousand, our army alone has grown into a behemoth numbering well over a million men even in time of nominal peace. No longer does the military lie dormant and unnoticed for years on end, coming to the attention of the typical citizen only in time of war. Today every male resident is a potential soldier, sailor, or airman; and it has been estimated that even in time of peace such service occupies at least four percent of the adult life of the average American reaching draft age. As Mr. Chief Justice Warren recently observed:
      “ ‘When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.’ [Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188.]”
      Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 Calif. L. Rev. 379, 446-447.