source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Justice Brennan, Mr. Justice Marshall,

license: Public Domain

text:
    OREGON v. HASS
    No. 73-1452.
    Argued January 21, 1975
    Decided March 19, 1975

      Thomas H. Denney, Assistant Attorney General of Oregon, argued the cause for petitioner. With him on the briefs were Lee Johnson, Attorney General, and W. Michael Gillette, Assistant Attorney General.

      Sam A. McKeen argued the cause for respondent. With him on the brief was Enver Bozgoz.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents a variation of the fact situation encountered by the Court in Harris v. New York, 401 U. S. 222 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?

I

The facts are not in dispute. In August 1972, bicycles were taken from two residential garages in the Moyina Heights area of Klamath Falls, Ore. Respondent Hass, in due course, was indicted for burglary in the first degree, in violation of Ore. Rev. Stat. § 164.225, with respect to the bicycle taken from the garage attached to one of the residences, a house occupied by a family named Lehman. He was not charged with the other burglary.

On the day of the thefts, Officer Osterholme of the Oregon State Police traced an automobile license number to the place where Hass lived. The officer met Hass there and placed him under arrest. App. 15. At Hass’ trial Osterholme testified in camera that, after giving Hass the warnings prescribed by Miranda v. Arizona, 384 U. S. 436, 467-473 (1966), he asked Hass about the theft of the bicycle taken from the Lehman residence. Hass admitted that he had taken two bicycles but stated that he was not sure, at first, which one Osterholme was talking about. App. 10. He further said that he had returned one of them and that the other was where he had left it. Id., at 12. Osterholme and Hass then departed in a patrol car for the site. Id., at 12-13. On the way Hass opined that he “was in a lot of trouble,” id., at 13, 26, and would like to telephone his attorney. Id., at 13. Osterholme replied that he could telephone the lawyer “as soon as we got to the office.” Ibid. Thereafter, respondent pointed out a place in the brush where the bicycle was found.

The court ruled that statements made by Hass after he said he wanted to see an attorney, and his identification of the bicycle's location, were not admissible. The prosecution then elicited from Osterholme, in its case in chief before the jury, that Hass had admitted to the witness that he had taken two bicycles that day because he needed money, that he had given one back, and that the other had been recovered. Id., at 31-32.

Later in the trial Hass took the stand. He testified that he and two friends, Walker and Lee, were “just riding around” in his Volkswagen truck, id., at 42; that the other two got out and respondent drove slowly down the street; that Lee suddenly reappeared, tossed a bicycle into the truck, and “ducked down” on the floor of the vehicle, id., at 44; that respondent did not know that Lee “stole it at first,” id., at 45; that it was his own intention to get rid of the bike; that they were overtaken by a jeep occupied by Mr. Lehman and his son; that the son pointed out Lee as “that’s the guy,” id., at 46; that Lee then returned the bike to the Lehmans; that respondent drove on and came upon Walker “sitting down there and he had this other bicycle by him,” and threw it into the truck, id., at 48; that he, respondent, went “out by Washburn Way and I threw it as far as I could,” ibid.; that later he told police he had stolen two bicycles, id., at 49; that he had had no idea what Lee and Walker were going to do, id., at 61; and that he did not see any of the bikes being taken and did not know “where those residences were located,” id., at 63.

The prosecution then recalled Officer Osterholme in rebuttal. He testified that Hass had pointed out the two houses from which the bicycles were taken. Id., at 65. On cross-examination, the officer testified that, prior to so doing, Hass had told Osterholme “that he knew where the bicycles came from, however, he didn’t know the exact street address.” Id., at 66. Osterholme also stated that Lee was along at the time but that Lee “had some difficulty” in identifying the residences “until My. Hass actually pointed them” and then “he recognized it.” Id., at 78.

The trial court, at the request of the defense, then advised the jury that the portion of Officer Osterholme’s testimony describing the statement made by Hass to him “may not be used by you as proof of the Defendant’s guilt . . . but you may consider that testimony only as it bears on the [credibility] of the Defendant as a witness when he testified on the witness stand.” Id., at 79.

Respondent again took the stand and said that Oster-holme’s testimony that he took him out to the residences and that respondent pointed out the houses was “wrong.” Id., at 81.

The jury returned a verdict of guilty. Hass received a sentence of two years’ probation and a $250 fine. The Oregon Court of Appeals, feeling itself bound by the earlier Oregon decision in State v. Brewton, 247 Ore. 241, 422 P. 2d 581, cert. denied, 387 U. S. 943 (1967), a pre-Harri's case, reversed on the ground that Hass’ statements were improperly used to impeach his testimony. 13 Ore. App. 368, 374, 510 P. 2d 852, 855 (1973). On petition for review, the Supreme Court of Oregon, by a 4-to-3 vote, affirmed. 267 Ore. 489, 517 P. 2d 671 (1973). The court reasoned that in a situation of proper Miranda warnings, as here, the police have nothing to lose, and perhaps could gain something, for impeachment purposes, by continuing their interrogation after the warnings; thus, there is no deterrence. In contrast, the court said, where warnings are yet to be given, there is an element of deterrence, for the police “will not take the chance of losing incriminating evidence for their case in chief by not giving adequate warnings.” Id., at 492, 517 P. 2d, at 673. The three dissenters perceived no difference between the two situations. Id., at 493-495, 517 P. 2d, at 674. Because the result was in conflict with that reached by the North Carolina court in State v. Bryant, 280 N. C. 551, 554-556, 187 S. E. 2d 111, 113-114 (1972), and because it bore upon the reach of our decision in Harris v. New York, 401 U. S. 222 (1971), we granted certiorari. 419 U. S. 823 (1974). We reverse.

II

The respondent raises some preliminary arguments. We mention them in passing:

1. Hass suggests that “when state law is more restrictive against the prosecution than federal law,” this Court has no power “to compel a state to conform to federal law.” Brief for Respondent 1. This, apparently, is proffered as a reference to our expressions that a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards. See, e. g., Cooper v. California, 386 U. S. 58, 62 (1967); Sibron v. New York, 392 U. S. 40, 60-61 (1968). See also State v. Kaluna, 55 Haw. 361, 368-369, 520 P. 2d 51, 58-59 (1974). But, of course, a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them. See Smayda v. United States, 352 F. 2d 251, 253 (CA9 1965), cert. denied, 382 U. S. 981 (1966); Aftanase v. Economy Baler Co., 343 F. 2d 187, 193 (CA8 1965).

Although Oregon has a constitutional provision against compulsory self-incrimination in any criminal prosecution, Ore. Const., Art. 1, § 12, the present case was decided by the Oregon courts on Fifth and Fourteenth Amendment grounds. The decision did not rest on the Oregon Constitution or state law; neither was cited. The fact that the Oregon courts found it necessary to attempt to distinguish Harris v. New York, supra, reveals the federal basis.

“If we choose we can continue to apply this interpretation. We can do so by interpreting Article 1, § 9, of the Oregon constitutional prohibition of unreasonable searches and seizures as being more restrictive than the Fourth Amendment of the federal constitution. Or we can interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court” (footnote omitted). The second sentence of this quoted excerpt is, of course, good law. The last sentence, unsupported by any cited authority, is not the law and surely must be an inadvertent error; in any event, we reject it.

2. Hass suggests that a decision by a State’s highest court in favor of a criminal defendant is not reviewable here. This, we assume, is a standing argument advanced on the theory that the State is not aggrieved by the Oregon judgment. Surely, a holding that, for constitutional reasons, the prosecution may not utilize otherwise relevant evidence makes the State an aggrieved party for purposes of review. This should be self-evident, but cases such as California v. Green, 399 U. S. 149 (1970), manifest its validity.

3. State v. Brewton, 247 Ore. 241, 422 P. 2d 581 (1967), by which the Oregon Court of Appeals in the present case felt itself bound, merits comment. There the Oregon court, again by a 4-to-3 vote, held that statements, elicited from a murder defendant, that were inadmissible in the State’s case in chief because they had not been preceded by adequate warnings, could not be used to impeach the defendant’s own testimony even though the statements had been voluntarily made.

In the present case the Supreme Court of Oregon stated that it took review “for the purpose of deciding whether we wished to overrule Brewton,” 267 Ore., at 492, 517 P. 2d, at 673. It found it “not necessary to make that determination” because, in the majority view, Brewton and Harris were distinguishable. Ibid. As set forth below, we are unable so to distinguish the two cases. Furthermore, Brewton is pre-Harris.

Ill

This takes us to the real issue, namely, that of the bearing of Harris v. New York upon this case.

In Harris, the defendant was charged by the State in a two-count indictment with twice selling heroin to an undercover police officer. The prosecution introduced evidence of the two sales. Harris took the stand in his own defense. He denied the first sale and described the second as one of baking powder utilized as part of a scheme to defraud the purchaser. On cross-examination, Harris was asked whether he had made specified statements to the police immediately following his arrest; the statements partially contradicted Harris' testimony. In response, Harris testified that he could not remember the questions or answers recited by the prosecutor. The trial court instructed the jury that the statements attributed to Harris could be used only in passing on his credibility and not as evidence of guilt. The jury returned a verdict of guilty on the second count of the indictment.

The prosecution had not sought to use the statements in its case in chief, for it conceded that they were inadmissible under Miranda because Harris had not been advised of his right to appointed counsel. The Chief Justice, speaking for the Court, observed, 401 U. S., at 224: "It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” Relying on Walder v. United States, 347 U. S. 62 (1954), a Fourth Amendment case, we ruled that there was no “difference in principle” between Walder and Harris; that the “impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility”; that the “benefits of this process should not be lost”; that, “[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief,” 401 U. S., at 225, and that the “shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Id., at 226. It was held, accordingly, that Harris’ credibility was appropriately impeached by the use of his earlier conflicting statements.

We see no valid distinction to be made in the application, of the principles of Harris to that case and to Hass’ case. Hass’ statements were made after the defendant knew Osterholme’s opposing testimony had been ruled inadmissible for the prosecution’s case in chief.

As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that “the trustworthiness of the evidence satisfies legal standards.” 401 U. S., at 224. Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, “the benefits of this process should not be lost,” id., at 225; and, again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.

We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. There is no evidence or suggestion that Hass’ statements to Officer Osterholme on the way to Moyina Heights were involuntary or coerced. He properly sensed, to be sure, that he was in “trouble”; but the pressure on him was no greater than that on any person in like custody or under inquiry by any investigating officer.

The only possible factual distinction between Harris and this case lies in the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore defective, as in Harris, does not mean that they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of the defect the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.

One might concede that when proper Miranda warnings have been given, and the officer then continues his interrogation after the suspect asks for an attorney, the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material. This speculative possibility, however, is even greater where the warnings are defective and the defect is not known to the officer. In any event, the balance was struck in Harris, and we are not disposed to change it now. If, in a given case, the officer’s conduct amounts to abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.

We therefore hold that the Oregon appellate courts were in error when they ruled that Officer Osterholme’s testimony on rebuttal was inadmissible on Fifth and Fourteenth Amendment grounds for purposes of Hass' impeachment. The judgment of the Supreme Court of Oregon is reversed.

It is so ordered.

Mr. Justice Douglas took no part in the consideration or decision of this case.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

In Harris v. New York, 401 U. S. 222 (1971), petitioner was not informed of his right to appointed counsel and thus his subsequent statements to police were inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). The Court nonetheless permitted the use of those statements to impeach petitioner’s trial testimony. The Court today extends Harris to a case where the accused was told of his rights and asked for a lawyer, yet police questioning continued in violation of Miranda. The statements that resulted are again held admissible for impeachment purposes.

I adhere to my dissent in Harris in which I stated that Miranda “completely disposes of any distinction between statements used on direct as opposed to cross-examination. ‘An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.’ ” Harris, supra, at 231. I adhere as well to the view that the judiciary must “avoid even the slightest appearance of sanctioning illegal government conduct.” United States v. Calandra, 414 U. S. 338, 360 (1974) (Brennan, J., dissenting). “[I]t is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that ‘[njothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.’ ” Harris, supra, at 232 (Brennan, J., dissenting).

The Court’s decision today goes beyond Harris in undermining Miranda. Even after Harris, police had some incentive for following Miranda by warning an accused of his right to remain silent and his right to counsel. If the warnings were given, the accused might still make a statement which could be used in the prosecution’s case in chief. Under today’s holding, however, once the warnings are given, police have almost no incentive for following Miranda’s requirement that “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda, supra, at 474. If the requirement is followed there will almost surely be no statement since the attorney will advise the accused to remain silent. If, however, the requirement is disobeyed, the police may obtain a statement which can be used for impeachment if the accused has the temerity to testify in his own defense. Thus, after today’s decision, if an individual states that he wants an attorney, police interrogation will doubtless be vigorously pressed to obtain statements before the attorney arrives. I am unwilling to join this fundamental erosion of Fifth and Sixth Amendment rights and therefore dissent. I would affirm or, at least, remand for further proceedings for the reasons given in Mr. Justice Marshall’s dissenting opinion.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

While I agree with my Brother Brennan that on the merits the judgment of the Oregon Supreme Court was correct, I think it appropriate to add a word about this Court’s increasingly common practice of reviewing state-court decisions upholding constitutional claims in criminal cases. See Michigan v. Mosley, 51 Mich. App. 105, 214 N. W. 2d 564 (1974), cert. granted, 419 U. S. 1119 (1975); Michigan v. Payne, 412 U. S. 47 (1973); Wisconsin v. Yoder, 406 U. S. 205 (1972); California v. Byers, 402 U. S. 424 (1971); California v. Green, 399 U. S. 149 (1970).

In my view, we have too often rushed to correct state courts in their view of federal constitutional questions without sufficiently considering the risk that we will be drawn into rendering a purely advisory opinion. Plainly, if the Oregon Supreme Court had expressly decided that Hass’ statement was inadmissible as a matter of state as well as federal law, this Court could not upset that judgment. See Jankovich v. Indiana Toll Road Comm’n, 379 U. S. 487 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940); Fox Film Corp. v. Muller, 296 U. S. 207 (1935). The sound policy behind this rule was well articulated by Mr. Justice Jackson in Herb v. Pitcairn, 324 U. S. 117 (1945):

“This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.’' Id., at 125-126 (citations omitted).

Where we have been unable to say with certainty that the judgment rested solely on federal law grounds, we have refused to rule on the federal issue in the case; the proper course is then either to dismiss the writ as improvidently granted or to remand the case to the state court to clarify the basis of its decision. California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965). Of course, it may often be unclear whether a state court has relied in part on state law in reaching its decision. As the Court said in Herb v. Pitcairn, supra, however, where the answer does not appear “of record” and is not “clear and decisive,”

“it seems consistent with the respect due the highest courts of states of the Union that they be asked rather than told what they have intended. If this imposes an unwelcome burden it should be mitigated by the knowledge that it is to protect their jurisdiction from unwitting interference as well as to protect our own from unwitting renunciation.” 324 U. S., at 128.

From a perusal of the Oregon Supreme Court’s opinion it is evident that these exacting standards were not met in this case. The Constitution of Oregon contains an independent prohibition against compulsory self-incrimination, and there is a distinct possibility that the state court intended to express its view of state as well as federal constitutional law. The majority flatly states that the case was decided below solely on federal constitutional grounds, but I am not so certain. Although the state court did not expressly cite state law in support of its judgment, its opinion suggests that it may well have considered the matter one of state as well as federal law. The court stated that it had initially viewed the issue of the case as whether it should overrule one of its prior precedents in light of this Court's opinion in Harris v. New York, 401 U. S. 222 (1971). It concluded that it was not required to consider whether to overrule the earlier state case, however, since upon examination it determined that Harris did not reach this fact situation. In view of the court’s suggestion that the federal constitutional rule in Harris would be regarded as merely a persuasive authority even if it were deemed to be squarely in conflict with the state rule, it seems quite possible that the state court intended its decision to rest at least in part on independent state grounds. In any event, I agree with Mr. Justice Jackson that state courts should be “asked rather than told what they have intended.”

In addition to the importance of avoiding jurisdictional difficulties, it seems much the better policy to permit the state court the freedom to strike its own balance between individual rights and police practices, at least where the state court’s ruling violates no constitutional prohibitions. It is peculiarly within the competence of the highest court of a State to determine that in its jurisdiction the police should be subject to more stringent rules than are required as a federal constitutional minimum.

The Oregon court’s decision in this case was not premised on a reluctant adherence to what it deemed federal law to require, but was based on its independent conclusion that admitting evidence such as that held admissible today will encourage police misconduct in violation of the right against compulsory self-incrimination. This is precisely the setting in which it seems most likely that the state court would apply the State’s self-incrimination clause to lessen what it perceives as an intolerable risk of abuse. Accordingly, in my view the Court should not review a state-court decision reversing a conviction unless it is quite clear that the state court has resolved all applicable state-law questions adversely to the defendant and that it feels compelled by its view of the federal constitutional issue to reverse the conviction at hand.

Even if the majority is correct that the Oregon Supreme Court did not intend to express a view of state as well as federal law, this Court should, at the very least, remand the case for such further proceedings as the state court deems appropriate. I can see absolutely no reason for departing from the usual course of remanding the case to permit the state court to consider any other claims, including the possible applicability of state law to the issue treated here. See Michigan v. Payne, 412 U. S., at 57; California v. Byers, 402 U. S., at 434; California v. Green, 399 U. S., at 168-170; C. Wright, Federal Courts 488 (2d ed. 1970); cf. Georgia Railway & Electric Co. v. Decatur, 297 U. S. 620, 623 (1936). Surely the majority does not mean to suggest that the Oregon Supreme Court is foreclosed from considering the respondent’s state-law claims or even ruling sua sponte that the statement in question is not admissible as a matter of state law. If so, then I should think this unprecedented assumption of authority will be as much a surprise to the Supreme Court of Oregon as it is to me.

I dissent.

        Miranda v. Arizona, 384 U. S. 436, 467-473 (1966).

       Hass’ testimony would appear to be an admission of guilt of the Oregon crime of “theft by receiving,” Ore. Rev. Stat. § 164.095, that is, the receipt or disposal of property of another, knowing that the property was stolen. Hass, however, was not charged with that offense,

       See also United States ex rel. Wright v. LaVallee, 471 F. 2d 123, 125 (CA2 1972), cert. denied, 414 U. S. 867 (1973); United States ex rel. Padgett v. Russell, 332 F. Supp. 41 (ED Pa. 1971); State v. Johnson, 109 Ariz. 70, 505 P. 2d 241 (1973); Rooks v. State, 250 Ark. 561, 466 S. W. 2d 478 (1971); People v. Nudd, 12 Cal. 3d 204, 524 P. 2d 844 (1974), cert. pending, No. 74-5472; Jorgenson v. People, 174 Colo. 144, 482 P. 2d 962 (1971); Williams v. State, 301 A. 2d 88 (Del. 1973); State v. Retherford, 270 So. 2d 363 (Fla. 1972), cert. denied, 412 U. S. 953 (1973); Campbell v. State, 231 Ga. 69, 200 S. E. 2d 690 (1973); People v. Moore, 54 Ill. 2d 33, 294 N. E. 2d 297, cert. denied, 412 U. S. 943 (1973); Davis v. State, 257 Ind. 46, 271 N. E. 2d 893 (1971); Sabatini v. State, 14 Md. App. 431, 287 A. 2d 511 (1972); Commonwealth v. Harris, — Mass. —, 303 N. E. 2d 115 (1973); State v. Kish, 28 Utah 2d 430, 503 P. 2d 1208 (1972); Riddell v. Rhay, 79 Wash. 2d 248, 484 P. 2d 907, cert. denied, 404 U. S. 974 (1971); Ameen v. State, 51 Wis. 2d 175, 186 N. W. 2d 206 (1971). Cf. Commonwealth v. Horner, 453 Pa. 435, 441, 309 A. 2d 552, 555 (1973).

       The respondent would take comfort in the following pronouncement of the Supreme Court of Oregon in State v. Florance, 270 Ore. 169, 182, 527 P. 2d 1202, 1208 (1974), a search and seizure case:

       See, e. g., Watts v. Indiana, 338 U. S. 49, 59 (1949) (Jackson, J., concurring in result) (“any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances”). See also Comment, 80 Yale L. J. 1198, 1220 (1971) (“[the police] realize that as soon as a lawyer arrives there is little chance that any further questioning will be permitted”).

       As I pointed out in Harris v. New York, 401 U. S. 222 (1971), “the accused is denied an ‘unfettered’ choice when the decision whether to take the stand is burdened by the risk that an illegally obtained prior statement may be introduced to impeach his direct testimony denying complicity in the crime charged against him.” Id., at 230 (BkennaN, J., dissenting).


author: Per Curiam.

text:
    LASCARIS, COMMISSIONER, DEPARTMENT OF SOCIAL SERVICES OF ONONDAGA COUNTY v. SHIRLEY et al.
    No. 73-1016.
    Argued December 18, 1974
    Decided March 19, 1975

      Alan W. Rubenstein argued the cause for appellants in both cases. With him on the briefs for appellant in No. 73-1095 were Louis J. Lefkowitz, Attorney General of New York, and Ruth Kessler Toch, Solicitor General. Philip C. Pinsky and John B. LaParo filed a brief for appellant in No. 73-1016.

      Douglas A. Eldridge argued the cause pro hac vice for appellees in both cases. With him on the brief for appellee Stuck was Isadore Greenberg.

       Together with No. 73-1095, Lavine, Commissioner, Department of Social Services of New York v. Shirley et al., also on appeal to the same court.

         Ronald A. Zumbrun filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal in both cases. Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and John J. Klee, Jr., Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal in No. 73-1095.

   Per Curiam.

After our previous remand, 409 U. S. 1052 (1972), the three-judge District Court held that amended New York Social Services Law § 101-a “engraft[ed] ... a condition on to the Congressionally prescribed initial AFDC eligibility requirements or on to the grounds for discontinuance of benefits.” 365 P. Supp. 818, 821 (1973). That condition, the court held, rendered the amended section invalid because in conflict with the Social Security Act, § 402 (a), 42 U. S. C. § 602 (a), insofar as it required recipient cooperation in a paternity or support action against an absent parent as a condition of eligibility for benefits under the program for Aid to Families with Dependent Children. On June 17, 1974, we noted probable jurisdiction of the appeals of the State and County Commissioners of Social Service, 417 U. S. 943. Since that time, however, on January 4, 1975, Pub. L. 93-647, 88 Stat. 2359, amended § 402 (a) of the Social Security Act expressly to resolve the conflict as to eligibility found by the three-judge District Court to exist between the federal and state laws. Amended §402 (a), like New York’s amended § 101-a, requires the recipient to cooperate to compel the absent parent to contribute to the support of the child.

Section 402 (a), as amended, in pertinent part provides:

“A State plan for aid and services to needy families with children must
“(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required—
“(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child and that, if the relative with whom a child is living is found to be ineligible because of failure to comply with the requirements of subparagraphs (A) and (B) of this paragraph, any aid for which such child is eligible will be provided in the form of protective payments as described in section 406 (b) (2) (without regard to subpara-graphs (A) through (E) of such section) . . .

We affirm the judgment of the three-judge court. Townsend v. Swank, 404 U. S. 282 (1971); Carleson v. Remillard, 406 U. S. 598 (1972). In light of the resolution of the conflict by Pub. L. 93-647, we have no occasion to prepare an extended opinion.

Affirmed.

The Chief Justice, Me. Justice Powell, and Me. Justice Rehnquist dissent.

      Pub. L. 93-647 provides that § 402 (a), as amended, shall become effective on July 1, 1975. However, President Ford announced when he signed the law that he would propose changes to several sections, including the child-support provisions, during the early months of the 94th Congress, stating:
      “The second element of this bill involves the collection of child support payments from absent parents. I strongly agree with the objectives of this legislation.
      “In pursuit of this objective, however, certain provisions of this legislation go too far by injecting the Federal Government into domestic relations. Specifically, provisions for use of the Federal courts, the tax collection procedures of the Internal Revenue Service, and excessive audit requirements are an undesirable and unnecessary intrusion of the Federal Government into domestic relations. They are also an undesirable addition to the worldoad of the Federal courts, the IRS and the Department of Health, Education, and Welfare Audit Agency. Further, the establishment of a parent locator service in the Department of Health, Education, and Welfare with access to all Federal records raises serious privacy and administrative issues. I believe that these defects should be corrected in the next Congress, and I will propose legislation to do so.” 11 Weekly Compilation of Presidential Documents, No. 2, Jan. 13, 1975, p. 20.


text:
    COX, FORMER ASSISTANT DIRECTOR FOR TREATMENT, VIRGINIA DIVISION OF CORRECTIONS, et al. v. COOK
    No. 74-751.
    Decided March 24, 1975
   Per Curiam.

This petition by officials of the Virginia prison system for a writ of certiorari arises out of a suit brought against them by an inmate of the Virginia State Penitentiary in which he alleged that on three occasions, between October 1968 and March 1970, he was placed in solitary confinement for misconduct without being given notice of the misconduct charged or an opportunity to meet the charge at a hearing, in violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment; and in which he requested monetary damages and expunction of all records of the discipline.

A jury at a partial trial found that respondent had in fact been placed in solitary confinement for misconduct without notice or a hearing. It also found that he had suffered mental but no physical damage. However, it made no finding with respect to the responsibility of any of the petitioners for his confinement. After offering respondent an additional opportunity to adduce further proof on this issue before a second jury, the trial judge ruled that respondent could recover nothing as the proof was insufficient to establish that petitioners had knowledge of or were responsible for respondent's confinement.

Respondent appealed and, without briefs or oral argument, the United States Court of Appeals for the Fourth Circuit, holding that the proof below would support a finding that petitioners were ultimately responsible for respondent’s solitary confinement, reversed and remanded for further proceedings.

On petition for rehearing petitioners contended that the constitutional rule requiring notice and some kind of a hearing in connection with serious prison discipline determinations was created in Wolff v. McDonnell, 418 U. S. 539, in 1974, and was expressly made inapplicable to disciplinary action taken before the date of that decision. Id., at 573-574. Thus even if respondent had proved that petitioners were responsible for his solitary confinement he could not, as a matter of law, obtain relief. The Court of Appeals denied the rehearing petition, saying that, in the district in which respondent was incarcerated, a federal decision predating Wolff v. McDonnell, supra, namely Landman v. Royster, 333 F. Supp. 621 (ED Va. 1971), required notice and a hearing in connection with serious prison discipline determinations. Petitioners contend here that Landman v. Royster, supra, was itself decided after the discipline determinations involved in this case and thus supplies no more basis for liability in this case than does Wolff v. McDonnell. We agree.

In Wolff v. McDonnell, supra, we held that a state prisoner was entitled under the Due Process Clause of the Fourteenth Amendment to notice and some kind of a hearing in connection with discipline determinations involving serious misconduct. However, we expressly rejected the holding of the Court of Appeals in that case that

"the due process requirements in prison disciplinary proceedings were to apply retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged,” 418 U. S., at 573;

and we expressly held our decision not to be retroactive. The holding was made in the context of a request for expunction of the records of prison discipline determinations. The same result obtains, a fortiori, to monetary claims against prison officials acting in good-faith reliance on a pre-existing procedure. See Pierson v. Ray, 386 U. S. 547 (1967). It is true that the United States District Court for the Eastern District of Virginia in Landman v. Royster, supra, anticipated in part the holding of this Court in Wolff v. McDonnell, supra. Even if this might bear on' the retroactivity issue with respect to discipline determinations made in the Eastern District of Virginia after the decision in Landman v. Royster, supra, and before the decision in Wolff v. McDonnell, supra, the discipline determinations in this case all occurred before the decision in Landman v. Royster, supra. Therefore, neither the rule announced in that case nor the one announced in Wolff v, McDonnell, supra, supports respondent’s damage or expunction claims here, Accordingly, the writ of certiorari is granted and the judgment of the Court of Appeals for the Fourth Circuit is

Reversed.

Mr. Justice Douglas took no part in the consideration or decision of this case.

       The suit was also based on a claim that an unidentified guard inflicted a beating on respondent. The Court of Appeals for the Fourth Circuit has sustained the District Court’s holding that none of the petitioners was responsible for the beating, and respondent has not filed a cross-petition for a writ of certiorari.

       The trial judge was uncertain whether respondent was entitled to a jury trial. Counsel and the court agreed to obtain a jury’s findings of fact on certain issues in the form of a special verdict, and to postpone decision whether a jury trial was warranted.

       We do not regard the uncertain dicta in Landman v. Peyton, 370 F. 2d 135 (CA4 1966), which did predate the discipline determinations involved here, as laying down a rule binding on petitioners prior to the later decision in Landman v. Royster, 333 F. Supp. 621 (ED Va. 1971). These dicta were not mentioned or relied on by the Court of Appeals or respondent.


author:
Mr. Justice Powell Mr. Chief Justice Burger,
      Mr. Justice Brennan,

text:
    SCHLESINGER, SECRETARY OF DEFENSE, et al. v. COUNCILMAN
    No. 73-662.
    Argued December 10, 1974
    Decided March 25, 1975

      Solicitor General Bork argued the cause for petitioners. With him on the brief were Assistant Attorney General Petersen, Danny J. Boggs, and Jerome M. Feit.

      Nicholas D. Garrett and Orin Christopher Meyers argued the cause and filed a brief for respondent.

        David F. Addlestone, Donald S. Burris, Marvin M. Karpatkin, and Melvin L. Wulj filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

On March 27, 1972, court-martial charges were preferred against respondent Bruce R. Councilman, an Army captain on active duty at Fort Sill, Okla. The charges alleged that Captain Councilman had wrongfully sold, transferred, and possessed marihuana. On July 6, 1972, the District Court for the Western District of Oklahoma permanently enjoined petitioners, the Secretaries of Defense and of the Army and the Commanding General and Staff Judge Advocate of Fort Sill, from proceeding with Captain Councilman's impending court-martial. On appeal, the Court of Appeals for the Tenth Circuit affirmed, holding that the offenses with which Captain Councilman had been charged were not “service connected” and therefore not within the military court-martial jurisdiction. 481 F. 2d 613 (1973.).

The judgments of the District Court and the Court of Appeals were predicated on certain assumptions, not hitherto examined by this Court, concerning the proper relationship between the military justice system established by Congress and the powers and responsibilities of Art. Ill courts. In the view we take of the matter, the case presents no occasion for resolution of the merits of Councilman’s “service-connection” claim. Although the District Court may have had subject-matter jurisdiction, we think that the balance of factors governing exercise of equitable jurisdiction by federal courts normally weighs against intervention, by injunction or otherwise, in pending court-martial proceedings. We see nothing in the circumstances of this case that alters this general equitable balance. Accordingly, we reverse.

I

The parties in the District Court stipulated the relevant facts. They need only be summarized here. The Army's Criminal Investigation Detachment at Fort Sill received information from a confidential informant that Councilman was using marihuana at his off-post apartment. The detachment arranged to have Councilman invited to an off-post party, where he was introduced to Specialist Four Glenn D. Skaggs, an enlisted man working as a detachment undercover agent. Skaggs, who used the name Danny Drees in his undercover activities, was identified as an enlisted clerk-typist at the Fort Sill Army Training Center. Shortly after their initial meeting, Councilman allegedly transferred to Skaggs small quantities of marihuana, once by sale and once by gift. On both occasions, Councilman and Skaggs were off post and not in uniform. Councilman was off duty and, to all appearances, Skaggs was off duty as well. Thereafter, based on Skaggs' investigations, Councilman was apprehended by civilian authorities, who searched his apartment and discovered additional quantities of marihuana. Councilman later was remanded to military authorities. He was charged with having violated Art. 134 of the Uniform Code of Military Justice by wrongfully selling, transferring, and possessing marihuana. Following an investigatory hearing, the charges were referred to a general court-martial for trial.

At a preliminary hearing held on June 27, 1972, Councilman, represented by counsel, moved to dismiss the charges, contending that the court-martial lacked jurisdiction under this Court’s decision in O’Callahan v. Parker, 395 U. S. 258 (1969), because the alleged offenses were not “service connected.” After an eviden-tiary hearing, the presiding military judge denied the motion and scheduled the court-martial to begin on July 11. On July 5, Councilman brought this action in the District Court, moving for a temporary restraining order and a preliminary injunction to prevent his impending court-martial. Councilman claimed that since the court-martial lacked jurisdiction over the alleged offenses, he “[would] suffer great and irreparable damage in that he [might] be deprived of his liberty without due process of law, if the Court-Martial Proceedings are permitted on July 11 . . . .” On the following day, after a hearing on the service-connection issue, the District Court permanently enjoined the military authorities from proceeding with the court-martial.

The Court of Appeals affirmed, holding that the alleged offenses did not meet the tests for service connection set forth in O’Callahan v. Parker, supra, and elaborated in Relford v. U. S. Disciplinary Commandant, 401 U. S. 355 (1971). The court found that only one of the factors enumerated in those decisions pointed to service connection in this case: the “factor relating] to the rank of the persons involved in the incident or the fact that both were servicemen.” 481 F. 2d, at 614. The court concluded that this factor, standing alone, was insufficient to sustain court-martial jurisdiction and that Councilman’s possession and distribution of marihuana “affect [ed] military discipline no more than commission of any crime by any serviceman.” Id., at 615.

On behalf of the military authorities, the Solicitor General filed a petition for a writ of certiorari addressed to the “service-connected” offense issue, and noting the existence of conflicts on this issue between the decision below and decisions of the Court of Military Appeals. We granted the petition, 414 U. S. 1111 (1973), and although normally we do not consider questions raised neither below nor in the petition, see United States v. Richardson, 418 U. S. 166, 206 (1974) (Stewart, J., dissenting), the jurisdictional and equity issues necessarily implicit in this case seemed sufficiently important to raise them sua sponte. See, e. g., Younger v. Harris, 401 U. S. 37, 40 (1971); Duignan v. United States, 274 U. S. 195, 200 (1927), and cases there cited. We therefore requested supplemental briefs “on the issues of (1) the jurisdiction of the District Court, (2) exhaustion of remedies, and (3) the propriety of a federal district court enjoining a pending court-martial proceeding.” Since our resolution of these issues disposes of the case, we express no opinion on the “service-connection” question.

hH i — I

Presumably the District Court found jurisdiction under 28 U. S. C. § 1331, which grants subject-matter jurisdiction of civil actions where the matter in controversy exceeds $10,000 “and arises under the Constitution, laws, or treaties of the United States.” No contention is made that respondent’s claim fails to assert a case arising under the Constitution. See O’Callahan v. Parker, supra. Petitioners argue, however, that even if the District Court might otherwise have had jurisdiction under § 1331, this was removed by enactment of Art. 76 of the Uniform Code of Military Justice, 10 U. S. C. § 876. That article, set forth in the margin, provides in pertinent part that “the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter . . . are final and conclusive” and “all action taken pursuant to those proceedings [is] binding upon all . . . courts ... of the United States ....”

Petitioners rely on the legislative history of Art. 76 as demonstrating that Congress intended to limit collateral attack in civilian courts on court-martial convictions to proceedings for writs of habeas corpus under 28 U. S. C. § 2241. If this is so, petitioners further argue that Congress must have intended to remove any jurisdiction the civilian courts might otherwise have had to intervene before the court-martial has taken place. In short, it is argued that with respect to court-martial proceedings and convictions, Art. 76 acts as a pro tanto re-pealer of § 1331 and all other statutes, with the exception of § 2241, conferring subject-matter jurisdiction on Art. Ill courts.

We have declined to decide this question in the past. We now conclude that although the article is highly relevant to the proper scope of collateral attack on court-martial convictions and to the propriety of equitable intervention into pending court-martial proceedings, it does not have the jurisdictional consequences petitioners ascribe to it.

A

This Court repeatedly has recognized that, of necessity, “[m]ilitary law ... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, 346 U. S. 137, 140 (1953); Parker v. Levy, 417 U. S. 733, 744 (1974). Congress is empowered under Art. I, §8, to “make Rules for the Government and Regulation of the land and naval Forces.” It has, however, never deemed it appropriate to confer on this Court “appellate jurisdiction to supervise the administration of criminal justice in the military.” Noyd v. Bond, 395 U. S. 683, 694 (1969). See Ex parte Vallandigham, 1 Wall. 243, 249-253 (1864). Nor has Congress conferred on any Art. Ill court jurisdiction directly to review court-martial determinations. The valid, final judgments of military courts, like those of any court of competent jurisdiction not subject to direct review for errors of fact or law, have res judicata effect and preclude further litigation of the merits. See, e. g., IB J. Moore, Federal Practice ¶ 0.405 [4.-1], pp. 634-637 (2d ed. 1974). This Court therefore has adhered uniformly to “the general rule that the acts of a court martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise.” Smith v. Whitney, 116 U. S. 167, 177 (1886). See Hiatt v. Brown, 339 U. S. 103, 111 (1950); In re Grimley, 137 U. S. 147, 150 (1890).

But this general rule carries with it its own qualification — that the court-martiars acts be “within the scope of its jurisdiction and duty.” Collateral attack seeks, as a necessary incident to relief otherwise within the court's power to grant, a declaration that a judgment is void. A judgment, however, is not rendered void merely by error, nor does the granting of collateral relief necessarily mean that the judgment is invalid for all purposes. On the contrary, it means only that for purposes of the matter at hand the judgment must be deemed without res judicata effect: because of lack of jurisdiction or some other equally fundamental defect, the judgment neither justifies nor bars relief from its consequences.

These settled principles of the law of judgments have been held from the start fully applicable to court-martial determinations. Habeas corpus proceedings have been and remain by far the most common form of collateral attack on court-martial judgments; but historically they have not been the exclusive means of collateral attack. Nor were they the earliest. In Wise v. Withers, 3 Cranch 331 (1806), an action for trespass against a collector of court-martial fines, the Court held that the plaintiff, a federal official, was exempt from military duty and that the court-martial lacked jurisdiction. The Court concluded that “it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it.” Id., at 337. See Dynes v. Hoover, 20 How. 65 (1857); Martin v. Mott, 12 Wheat. 19 (1827). At the end of the last century, on the basis of the same principle the Court approved collateral attack in the form of backpay suits in the Court of Claims. E. g., Runkle v. United States, 122 U. S. 543 (1887). These cases, and the early military habeas cases, demonstrate a uniform approach to the- problem of collateral relief from the consequences of court-martial judgments: such relief was barred unless it appeared that the judgments were void.

“Persons, then, belonging to the army and the navy are not subject to illegal or irresponsible courts martial.... In such eases, everything which may be done is void — not voidable, but void; and civil courts have never failed, upon a proper suit, to give a party redress, who has been injured by a void process or void judgment.” 20 How., at 81.

B

Petitioners argue that Art. 76 effected a change in this regime, not solely as a matter of the law of judgments, but as a matter of jurisdiction. This case, of course, does not concern a collateral attack on a court-martial judgment, at least in the normal sense, since there was no judgment to attack. Instead, Councilman, alleging the likelihood of irreparable injury, sought injunctive relief from an impending court-martial. He asserted, as the basis for such relief, that any judgment entered by the court-martial would be void and hence subject to collateral impeachment, at least by way of habeas. E. g., O’Callahan v. Parker, supra. Thus, the legal basis on which Councilman rested his claim for equitable relief did not go beyond recognized grounds for collateral attack. In effect, Councilman is attempting to attack collaterally the military authorities’ decision to convene the court-martial and the refusal of the military judge to dismiss the charges. Article 76, however, gives binding effect not only to court-martial judgments, but also to “all action taken pursuant to those proceedings We therefore agree with petitioners that, as a jurisdictional matter, Councilman’s suit stands on precisely the same footing as suits seeking possible postjudgment forms of collateral relief. If Art. 76 was intended to bar subject-matter jurisdiction in suits for collateral relief other than by way of habeas, it also must remove § 1331 jurisdiction prior to any court-martial judgment.

Article 76, however, does not expressly effect any change in the subject-matter jurisdiction of Art. Ill courts. Its language only defines the point at which military court judgments become final and requires that they be given res judicata effect. But, as the Court has recognized in the past, there is no necessary inconsistency between this and the standard rule that void judgments, although final for purposes of direct review, may be impeached collaterally in suits otherwise within a court’s subject-matter jurisdiction. In Gusik v. Schilder, 340 U. S. 128 (1950), this Court was required to determine the effect on military habeas proceedings of Art. 53 of the Articles of War, the immediate statutory predecessor of the present Art. 76, containing identical finality language. Petitioner had argued that Art. 53 deprived civilian courts of all jurisdiction to entertain suits collaterally attacking military court judgments, and thus worked an unconstitutional suspension of the writ of habeas corpus. The Court declined to give the article the suggested construction:

“We read the finality clause of Article 53 as doing no more than describing the terminal point for proceedings within the court-martial system. If Congress had intended to deprive the civil courts of their habeas corpus jurisdiction, which has been exercised from the beginning, the break with history would have been so marked that we believe the purpose would have been made plain and unmistakable. The finality language so adequately serves the more restricted purpose that we would have to give a strained construction in order to stir the constitutional issue that is tendered.” 340 U. S., at 132-133.

Petitioners agree with Ousik insofar as it holds that habeas corpus remains available despite the mandate of Art. 76. It is argued, however, both from the legislative history of Art. 76 itself and from the judgment implicit in the establishment of a comprehensive system of review within the military, that Congress intended to confine collateral attack in Art. Ill courts exclusively to habeas corpus. In doing so, it is said, Congress was acknowledging the special constitutional status of that writ under the Suspension Clause, a status shared by no other form of collateral relief. Petitioners point in particular to statements in the House and Senate Committee Reports that “[sjubject only to a petition for a writ of habeas corpus in Federal court, [Art. 76] provides for the finality of the court-martial proceedings and judgments.” In addition, the House Committee Report explained that the Court of Military Appeals, established by the Code, was intended as “the court of last resort for court-martial cases, except for the constitutional right of habeas corpus.”

Petitioners’ interpretation of Art. 76, if its full reach were accepted, not only would prevent servicemen from obtaining injunctions under any circumstances against pending court-martial proceedings. It also would preclude any collateral relief in Art. Ill courts, even if the court-martial lacked jurisdiction in the most traditional sense, unless the serviceman could satisfy the requirements of habeas corpus jurisdiction. As pointed out above, certain remedies alternative to habeas, particularly suits for backpay, historically have been available. Indeed, this availability was reiterated shortly before enactment of the Code. See Shapiro v. United States, 107 Ct. Cl. 650, 69 F. Supp. 205 (1947). Yet nothing in Art. 76 distinguishes between habeas corpus and other remedies also consistent with well-established rules governing collateral attack. If Congress intended such a distinction, it selected singularly inapt language to express it.

Nor does the legislative history justify an interpretation of the language so at odds with its clear purport. As we have had occasion recently to repeat, “repeals by implication are disfavored,” and this canon of construction applies with particular force when the asserted re-pealer would remove a remedy otherwise available. Regional Rail Reorganization Act Cases, 419 U. S. 102, 133-136 (1974). It is true, as petitioners urge, that the writ of habeas corpus occupies a position unique in our jurisprudence, the consequence of its historical importance as the ultimate safeguard against unjustifiable deprivations of liberty. We read the statements attending congressional consideration as addressing the particular concern that Art. 76 not be taken as affecting the availability of habeas corpus, a concern of special significance because of the vital interests the writ protects and because it is the most common mode of collateral relief from court-martial convictions. But an affirmative intent to preclude all other forms of collateral relief, on whatever ground, cannot be inferred from these scattered statements in the legislative history. Restraint on liberty, although perhaps the most immediately onerous, is not the only serious consequence of a court-martial conviction. Such convictions may result, for example, in deprivation of pay and earned promotion, and even in discharge or dismissal from the service under conditions that can cause lasting, serious harm in civilian life.

This is not to say, of course, that for every such consequence there is a remedy in Art. Ill courts. That depends on whether the relief is sought in an action otherwise within the court’s subject-matter jurisdiction, on a ground that recognizes the distinction between direct and collateral attack, and in a form that the court is able with propriety to grant. See Part III, infra. We also emphasize that the grounds upon which military judgments may be impeached collaterally are not necessarily invariable. For example, grounds of impeachment cognizable in habeas proceedings may not be sufficient to warrant other forms of collateral relief. Lacking a clear statement of congressional intent one way or the other, the question whether a court-martial judgment properly may be deemed void — i. e., without res judicata effect for purposes of the matter at hand — may turn on the nature of the alleged defect, and the gravity of the harm from which relief is sought. Moreover, both factors must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress.

But we are concerned here only with petitioners’ broad jurisdictional argument, which we reject for the reasons stated above. We therefore reiterate the construction given the Art. 76 language in Gusik and accepted by other courts, including the Court of Military Appeals, and accordingly hold that Art. 76 does not stand as a jurisdictional bar to Captain Councilman’s suit.

Ill

Our holding that the District Court had subject-matter jurisdiction, assuming the requisite jurisdictional amount, does not carry with it the further conclusion that the District Court properly could reach the merits of Councilman's claim or enjoin the petitioners from proceeding with the impending court-martial. There remains the question of equitable jurisdiction, a question concerned, not with whether the claim falls within the limited jurisdiction conferred on the federal courts, but with whether consistently with the principles governing equitable relief the court may exercise its remedial powers.

In support of his prayer for an injunction, Councilman claimed that he would incur “great and irreparable damage in that he [might] be deprived of his liberty without due process of law. . . The presiding military judge had refused to dismiss the charges against Councilman, rejecting the argument that they were not service connected and that therefore the court-martial lacked jurisdiction to act on them. Thus, when the District Court intervened, there was no question that Councilman would be tried. But whether he would be convicted was a matter entirely of conjecture. And even if one supposed that Councilman’s service-connection contention almost certainly would be rejected on any eventual military review, there was no reason to believe that his possible conviction inevitably would be affirmed.

It therefore appears that Councilman was “threatened with [no] injury other than that incidental to every criminal proceeding brought lawfully and in good faith.” Douglas v. City of Jeannette, 319 U. S. 157, 164 (1943). Of course, there is inevitable injury — often of serious proportions — incident to any criminal prosecution. But when the federal equity power is sought to be invoked against state criminal prosecutions, this Court has held that “[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, [can]not by themselves be considered 'irreparable’ in the special legal sense of that term.” Younger v. Harris, 401 U. S., at 46. “The maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law.” Stefanelli v. Minard, 342 U. S. 117, 120 (1951). This maxim of equitable jurisdiction originated as a corollary to the generad subordination of equitable to legal remedies, which in turn “may originally have grown out of circumstances peculiar to the English judicial system . . . .” Younger v. Harris, supra, at 44. The history is familiar enough. But ancient lineage, particularly if sprung from circumstances no longer existent, neither establishes the contemporary utility of a rule nor necessarily justifies the harm caused by delay in the vindication of individual rights.

As to state criminal prosecutions, such justification has been found to reside in the peculiarly compelling demands of federalism and the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law . . . .” Stefanelli v. Minard, supra, at 120. The precise content of constitutional rights almost invariably turns on the context of fact and law in which they arise. State courts are quite as capable as federal courts of determining the facts, and they alone can define and interpret state law. Equally important, under Art. VI of the Constitution, state courts share with federal courts an equivalent responsibility for the enforcement of federal rights, a responsibility one must expect they will fulfill. These considerations of comity, the necessity of respect for coordinate judicial systems, have led this Court to preclude equitable intervention into pending state criminal proceedings unless the harm sought to be averted is “both great and immediate,” of a kind that “cannot be eliminated by... defense against a single criminal prosecution.” Fenner v. Boykin, 271 U. S. 240, 243 (1926); Younger v. Harris, supra, at 46. See Dombrowski v. Pfister, 380 U. S. 479 (1965). Precisely these considerations underlie the requirement that petitioners seeking habeas relief from state criminal convictions must first exhaust available state remedies: the federal courts are “not at liberty ... to presume that the decision of the State court would be otherwise than is required by the fundamental law of the land . . . .” Ex parte Royall, 117 U. S. 241, 252 (1886). See Darr v. Burford, 339 U. S. 200, 204 n. 10 (1950).

To some extent, the practical considerations supporting both the exhaustion requirement in habeas corpus and the federal equity rule barring intervention into pending state criminal proceedings except in extraordinary circumstances are similar to those that underlie the requirement of exhaustion of administrative remedies. E. g., Myers v. Bethlehem Shipbuilding Gorp., 303 U. S. 41, 50-51 (1938). The latter rule, looking to the special competence of agencies in which Congress has reposed the duty to perform particular tasks, is based on the need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors. The rule ensures that whatever judicial review is available will be informed and narrowed by the agencies’ own decisions. It also avoids duplicative proceedings, and often the agency’s ultimate decision will obviate the need for judicial intervention. E. g., McKart v. United States, 395 U. S. 185, 194-195 (1969); Parisi v. Davidson, 405 U. S. 34, 37 (1972).

These considerations apply in equal measure to the balance governing the propriety of equitable intervention in pending court-martial proceedings. But as in the case of state criminal prosecutions there is here something more that, in our view, counsels strongly against the exercise of equity power even where, under the administrative remedies exhaustion rule, intervention might be appropriate. While the peculiar demands of federalism are not implicated, the deficiency is supplied by factors equally compelling. The military is “a specialized society separate from civilian society” with “laws and traditions of its own [developed] during its long history.” Parker v. Levy, 417 U. S., at 743. Moreover, “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise,” Toth v. Quarles, 350 U. S. 11, 17 (1955). To prepare for and perform its vital role, the military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress.

In enacting the Code, Congress attempted to balance these military necessities against the equally significant interest of ensuring fairness to servicemen charged with military offenses, and to formulate a mechanism by which these often competing interests can be adjusted. As a result, Congress created an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals consisting of civilian judges “completely removed from all military influence or persuasion,” who would gain over time thorough familiarity with military problems. See Noyd v. Bond, 395 U. S., at 694-695.

As we have stated above, judgments of the military court system remain subject in proper cases to collateral impeachment. But implicit in the congressional scheme embodied in the Code is the view that the military court system generally is adequate to and responsibly will perform its assigned task. We think this congressional judgment must be respected and that it must be assumed that the military court system will vindicate servicemen’s constitutional rights. We have recognized this, as well as the practical considerations common to all exhaustion requirements, in holding that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted. Gusik v. Schilder, 340 U. S. 128 (1950); Noyd v. Bond, supra. The same principles are relevant to striking the balance governing the exercise of equity power. We hold that when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.

Respondent seeks to avoid this result by pointing to the several military habeas cases in which this Court has not required exhaustion of remedies in the military system before allowing collateral relief. Toth v. Quarles, supra; Reid v. Covert, 354 U. S. 1 (1957); McElroy v. Guagliardo, 361 U. S. 281 (1960). In those cases, the habeas petitioners were civilians who contended that Congress had no constitutional power to subject them to the jurisdiction of courts-martial. The issue presented concerned not only the military court's jurisdiction, but also whether under Art. I Congress could allow the military to interfere with the liberty of civilians even for the limited purpose of forcing them to answer to the military justice system. In each of these cases, the disruption caused to petitioners’ civilian lives and the accompanying deprivation of liberty made it “especially unfair to require exhaustion . . . when the complainants raised substantial arguments denying the right of the military to try them at all.” Noyd v. Bond, supra, at 696 n. 8. The constitutional question presented turned on the status of the persons as to whom the military asserted its power. As the Court noted in Noyd, it “did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented.” Ibid.

Assuming, arguendo, that, absent incarceration or other deprivation of liberty, federal court intervention would be appropriate in cases like Toth and its progeny despite failure to exhaust military remedies, the considerations supporting such intervention are not applicable here. Councilman was on active duty when the charges against him were brought. There is no question that he is subject to military authority and in proper cases to disciplinary sanctions levied through the military justice system. We see no injustice in requiring respondent to submit to a system established by Congress and carefully designed to protect not only military interests but his legitimate interests as well. Of course, if the offenses with which he is charged are not “service connected/’ the military courts will have had no power to impose any punishment whatever. But that issue turns in major part on gauging the impact of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society, and on whether the distinct military interest can be vindicated adequately in civilian courts. These are matters of judgment that often will turn on the precise set of facts in which the offense has occurred. See Relford v. U. S. Disciplinary Commandant, 401 U. S. 355 (1971). More importantly, they are matters as to which the expertise of military courts is singularly relevant, and their judgments indispensable to inform any eventual review in Art. III courts.

We have no occasion to attempt to define those circumstances, if any, in which equitable intervention into pending court-martial proceedings might be justified. In the circumstances disclosed here, we discern nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of military court processes.

Reversed.

Mr. Chief Justice Burger,

concurring in the judgment.

I concur in the judgment because I believe that Art. 76 of the UCMJ applies only to postjudgment attacks upon the proceedings of courts-martial and that the District Court should have dismissed the complaint on the basis of Younger v. Harris, 401 U. S. 37 (1971).

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

concurring in part and dissenting in part.

I agree that Art. 76 of the Uniform Code of Military Justice, 10 U. S. C. § 876, does not limit the jurisdiction of federal civil courts to habeas corpus review of court-martial convictions. I therefore join Part II of the Court’s opinion.

I dissent, however, from the Court’s holding in Part III that, as applied to his challenge that the offense charged was not service connected, this serviceman must exhaust every avenue within the military for determination and review of that question, and that, until he does, “federal district courts must refrain from intervention, by way of injunction or otherwise.” The Court imposes this restraint upon the exercise by the District Court of its conceded jurisdiction for reasons that clearly are not persuasive. Moreover, today’s holding departs from an unbroken line of our decisions that — consistent with our basic constitutional tenet that subordinates the military to the civil authority — restricts military cognizance of offenses to the narrowest jurisdiction deemed absolutely necessary, and precludes expansion of military jurisdiction at the expense of the constitutionally preferred civil jurisdiction. Toth v. Quarles, 350 U. S. 11 (1955); Reid v. Covert, 354 U. S. 1 (1957); McElroy v. Guagliardo, 361 U. S. 281 (1960); Noyd v. Bond, 395 U. S. 683 (1969).

I

It is, of course, settled that federal district courts may not entertain even a habeas corpus application of a serviceman convicted of offenses raising no question of service connection until the serviceman has exhausted all available military remedies, Noyd v. Bond, supra. But our opinion in Noyd carefully distinguished situations presenting challenges to the jurisdiction of the military over the persons charged, e. g., Toth v. Quarles, supra; Reid v. Covert, supra; McElroy v. Guagliardo, supra. We noted that in each of those cases the Court “vindicated complainants’ claims without requiring exhaustion of military remedies,” and that “[w]e did so . . . 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.” Noyd, supra, at 696 n. 8.

That statement precisely fits the situation presented by this case. The respondent serviceman raises “substantial arguments denying the right of the military to try [him] at all,” and the Court utterly fails to suggest any special “expertise of military courts,” including the Court of Military Appeals, that even approximates the far greater expertise of civilian courts in the determination of constitutional questions of jurisdiction. Thus there is compelled here the conclusion in favor of civilian court cognizance without prior exhaustion of military remedies that was reached in Toth v. Quarles, Reid v. Covert, and McElroy v. Guagliardo.

The Court provides no reasoned justification for its departure from these holdings in requiring exhaustion in this case. The Court’s failure is not surprising since plainly there is wholly lacking in military tribunals the qualification ordinarily relied on to justify the exhaustion requirement, namely, the know-how or “expertise” of an agency particularly knowledgeable in the determination of the same or like questions. Military tribunals simply have no special, if any, expertise in the determination of whether the offense charged to respondent was service connected. Civilian courts may properly defer to military tribunals when cases involve “extremely technical provisions of the Uniform Code,” Noyd v. Bond, supra, at 696, or where deference may avoid unnecessary friction because the serviceman may well prevail before the military authorities. But this case presents neither situation.

The offense charged here is not enmeshed in “technical provisions of the Uniform Code.” On the contrary, it is a common everyday type of drug offense that federal courts encounter all over the country every day. The Court agrees that a drug transaction is not a service-connected offense merely because the participants are servicemen. Rather, the Court analogizes military tribunals to administrative agencies and imposes the exhaustion requirement familiar in agency cases — and it does so even though the question presented is a constitutional determination whether the military has any jurisdiction to try the serviceman at all. The mere suggestion of such an analogy is well nigh incredible. Military tribunals have no expertise whatever to bring to bear on the determination whether a common everyday practice carried on by civilians becomes service connected when carried on by servicemen. It is virtually hornbook law that “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.” O’Callahan v. Parker, 395 U. S. 258, 265 (1969). For “ ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’ ” Id., at 262. Dealing with the “nice subtleties of constitutional law” is, however, a (if not the) primary business of civilian federal judges. It baffles me therefore how the Court can conclude that courts-martial or other military tribunals can be assigned on grounds of expertise, in preference to civilian federal judges, the responsibility for constitutional decisionmaking.

The Court’s grounding of its requirement of deference to the military on the notion that respondent may prevail on his claim that the offense was not service connected is equally bafHing. Petitioners concede that “the holdings of the Court of Military Appeals with regard to the ‘service connection’ of various kinds of drug offenses suggest that such a challenge to court-martial jurisdiction would probably have been unsuccessful.” Brief for Petitioners on Jurisdictional Issues 19. A cursory survey of decisions of the Court of Military Appeals suggests that petitioners might well have made a more positive concession. See United States v. Rose, 19 U. S. C. M. A. 3, 41 C. M. R. 3 (1969); United States v. Beeker, 18 U. S. C. M. A. 563, 40 C. M. R. 275 (1969); United States v. Teasley, 22 U. S. C. M. A. 131, 46 C. M. R. 131 (1973). One of the latest is United States v. Sexton, 23 U. S. C. M. A. 101, 48 C. M. R. 662 (1974), which held that off-post sales and transfers of marihuana, as in this case, by a serviceman to an undercover serviceman agent was service connected. That track record of the Court of Military Appeals clearly compels the conclusion that where “the highest court available under the Uniform Code of Military Justice has consistently upheld jurisdiction over persons in the same legal posture as [respondent, he] should not be required to await a similar decision in his case.” United States ex rel. Guagliardo v. McElroy, 104 U. S. App. D. C. 112, 114 n. 4, 259 F. 2d 927, 929 n. 4 (1958), aff’d, 361 U. S. 281 (1960).

I would conclude, therefore, that the Court of Appeals properly affirmed the action of the District Court in refusing to defer to the military, and in deciding the jurisdictional question of service connection. In that circumstance, I reach the merits. I conclude that the offense was not service connected and would affirm the Court of Appeals’ affirmance of the District Court’s injunction against respondent’s court-martial.

II

In Relford v. U. S. Disciplinary Commandant, 401 U. S. 355, 365 (1971), this Court identified 12 factors that O’Callahan v. Parker, supra, held should be weighed in determining whether an offense is service connected:

“1. The serviceman’s proper absence from the base.
“2. The crime’s commission away from the base.
“3. Its commission at a place not under military control.
“4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
“5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
“6. The absence of any connection between the defendant’s military duties and the crime.
“7. The victim’s not being engaged in the performance of any duty relating to the military.
“8. The presence and availability of a civilian court in which the case can be prosecuted.
“9. The absence of any flouting of military authority.
'TO. The absence of any threat to a military post.
“11. The absence of any violation of military property.
“12. The offense’s being among those traditionally prosecuted in civilian courts.” 401 U. S., at 365.

In weighing these factors, service connection cannot be established in this case. Respondent was properly absent from the post; the offense occurred in respondent’s off-post apartment, while he was off duty; it was committed in the United States in peacetime; there was no connection between respondent’s military duties and the crime; the offense is one which is prosecuted regularly in civilian courts, and these courts were available; and there was no threat to the security of the post or its property, or any flouting of military authority.

It is true that the undercover serviceman was performing a duty assigned to him by his military superiors. But this does not eliminate factor 7, for petitioners candidly admit that “Skaggs, was in fact an undercover agent and hence not a 'victim’ any more than in a civilian prosecution it would matter that a drug sale was made to a plainclothes policeman who did not intend to use the drug.” Brief for Petitioners on Merits 5. See also Schroth v. Warner, 353 F. Supp. 1032, 1044 (Haw. 1973), holding that a military undercover agent “is not performing a function which has any special military significance.”

But the petitioners urge that military significance is present in “the bearing of the offense in question on the discipline, morale, and effectiveness of fighting forces,” Brief for Petitioners on Merits 4, and that this suffices to establish, for two reasons, that the offense is service connected. First, respondent, an officer, knew that he was dealing with an enlisted man, and that “in the tightly-knit, rumor-prone society of the military, word will usually circulate among the enlisted ranks concerning an officer’s participation in such unlawfulness,” id., at 5, causing a breakdown in military discipline, effectiveness, and morale. Second, “possession of marijuana and other proscribed drugs, whether off base or on,” id., at 6, tends to impair the effectiveness of the Armed Forces.

Neither reason is supported by the record. Respondent was stationed at Fort Sill, and the offense occurred in the civilian community of Lawton, Okla., while respondent was off duty, and out of uniform. The petitioners introduced no evidence that respondent’s actions in any way impaired or threatened to impair the discipline and effectiveness of military personnel at Fort Sill. Similarly, and related, the record is devoid of any evidence whatever that use of marihuana in any amounts under any circumstances adversely affects a serviceman’s performance of his duties. Whatever might be the judgment of medical, psychological, and sociological research in these particulars, none was introduced in this record.

I would affirm.

       See Secretary of the Navy v. Avrech, 418 U. S. 676 (1974).

       Pet. for Cert., App. E, pp. 23-25.

       10 U. S. C. § 934. The article prohibits, inter alia, “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” This provision was upheld last Term as against vagueness and First Amendment overbreadth challenges. Parker v. Levy, 417 U. S. 733 (1974); Secretary of the Navy v. Avrech, supra. No similar challenge is repeated here.

       See UCMJ Art. 32, 10 U. S. C. §832.

       The District Court subsequently denied the military authorities’ petition for reconsideration, in which petitioners argued that because Councilman had not filed a complaint to institute the action as required by Fed. Rule Civ. Proc. 3, the court lacked jurisdiction to act. The District Court concluded that the papers filed by Councilman — motions for a temporary restraining order and a preliminary injunction, and supporting affidavit and briefs — although not formally denominated a complaint, were adequate to apprise petitioners of the nature of the claim and the relief sought and to invoke the jurisdiction of the court. The court stated that, as authorized by Fed. Rule Civ. Proc. 8 (f), it deemed the papers sufficient to comply with Rule 3, and entered an order nunc pro tunc, under Fed. Rule Civ. Proc. 15 (b), conforming the pleadings to the rules. Petitioners have raised no objection to this disposition of the matter. We think that so long as the court’s subject-matter jurisdiction actually existed and adequately appeared to exist from the papers filed, see n. 9, infra, any defect in the manner in which the action was instituted and processed is not itself jurisdictional and does not prevent entry of a valid judgment. See 2 J. Moore, Federal Practice ¶ 3.04, pp. 718-720, ¶3.06 [1], pp. 731-732 (2d ed. 1974).

       Pet. for Cert. 2.

        E. g., United States v. Castro, 18 U. S. C. M. A. 598, 40 C. M. R. 310 (1969); United States v. Adams, 19 U. S. C. M. A. 75, 41 C. M. R. 75 (1969) (off-post possession of marihuana or illegal narcotics held service connected); United States v. Rose, 19 U. S. C. M. A. 3, 41 C. M. R. 3 (1969) (unlawful sale of barbiturates off post by one serviceman to another held service connected). See Cole v. Laird, 468 F. 2d 829 (CA5 1972) (holding use of marihuana by a serviceman off post and off duty not service connected); Moylan v. Laird, 305 F. Supp. 551 (RI 1969); Lyle v. Kincaid, 344 F. Supp. 223 (MD Fla. 1972); Schroth v. Warner, 353 F. Supp. 1032 (Haw. 1973); Redmond v. Warner, 355 F. Supp. 812 (Haw. 1973) (holding that the military lacks jurisdiction over off-post drug offenses). Contra: Scott v. Schlesinger, No. C. A. A-2371 (ND Tex. Oct. 1, 1973) (off-post sales of marihuana to servicemen held service connected).

       28 U. S. C. § 1254 (1).

       The “complaint” filed in the District Court, see n. 5, supra, nowhere mentioned § 1331 nor alleged the requisite amount in controversy. The facts alleged and the claim asserted nonetheless were sufficient to demonstrate the existence of a federal question. See C. Wright, Law of Federal Courts 290-291 (2d ed. 1970). And although a complaint under § 1331 is fatally defective unless it contains a proper allegation of the amount in controversy, see, e. g., Canadian Indemnity Co. v. Republic Indemnity Co., 222 F. 2d 601 (CA9 1955), respondent now claims that the matter in controversy does exceed the requisite amount. Brief for Respondent on the Jurisdictional Issues 4r-5. Defective allegations of jurisdiction may be amended, 28 U. S. C. § 1653. In view of our disposition of the case, however, no purpose would be served by requiring a formal amendment at this stage.

       “The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President.”

        United States v. Augenblick, 393 U. S. 348, 349-353 (1969); Secretary of the Navy v. Avrech, supra. Cf. Warner v. Flemings, decided together with Gosa v. Mayden, 413 U. S. 665 (1973).

       See also In re Yamashita, 327 U. S. 1, 8 (1946); In re Vidal, 179 U. S. 126 (1900). Cf. Crawford v. United States, 380 U. S. 970 (1965) (motion for leave to file petition for writ of certiorari to Court of Military Appeals denied).

       Restatement of Judgments § 11 (1942); F. James, Civil Procedure § 11.5 (1965). Compare Ashe v. McNamara, 355 F. 2d 277 (CA1 1965), with Davies v. Clifford, 393 F. 2d 496 (CA1 1968).

       See Fay v. Noia, 372 U. S. 391, 423-424 (1963).

       See generally Weckstein, Federal Court Review of Courts-Martial Proceedings: A Delicate Balance of Individual Rights and Military Responsibilities, 54 Mil. L. Rev. 1 (1971); Bishop, Civilian Judges and Military Justice: Collateral Review of Court-Martial Convictions, 61 Col. L. Rev. 40 (1961).

       In Dynes, the Court stated:

        E. g., Ex parte Reed, 100 U. S. 13 (1879).

       See, e. g., McClaughry v. Deming, 186 U. S. 49 (1902) (habeas corpus); and United States v. Brown, 206 U. S. 240 (1907) (backpay suit). In Wales v. Whitney, 114 U. S. 564 (1885), the Court refused to consider a habeas corpus attack on the jurisdiction of a pending court-martial proceeding because the petitioner was not in custody. The Court, however, observed:
      “If that court finds him guilty, and imposes imprisonment as part of a sentence, he can then have a writ to relieve him of that imprisonment. If he should be deprived of office, he can sue for his pay and have the question of the jurisdiction of the court which made such an order inquired into in that suit. If his pay is stopped, in whole or in part, he can do the same thing. In all these modes he can have relief if the court is without jurisdiction .. . .” Id., at 575.

       If it had, Councilman’s suit would have been a species of prejudgment direct attack, in which case the District Court would have had no jurisdiction whatever.

       See, e. g., Weckstein, supra, n. 15, at 12.

       62 Stat. 639.

       U. S. Const., Art. I, § 9. Cf. In re Yamashita, 327 U. S., at 8; Fay v. Noia, 372 U. S., at 399-400.

       S. Rep. No. 486, 81st Cong., 1st Sess., 32 (1949); H. R. Rep. No. 491, 81st Cong., 1st Sess., 35 (1949).

       H. R. Rep. No. 491, supra, at 7. See also 95 Cong. Rec. 5721 (1949) (remarks of Rep. Brooks). It had been suggested in committee hearings that any restriction on the availability of habeas corpus would involve constitutional problems. Hearings on H. R. 2498 before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 799 (1949). Senator Kefauver, in discussing Art. 76, stated that “Congress, through its enactment, did not, and could not, . . . intend to take away the jurisdiction of the Supreme Court or of other courts in habeas corpus matters.” 96 Cong. Rec. 1414 (1950).

       See Augenblick v. United States, 180 Ct. Cl. 131, 142, 377 F. 2d 586, 592 (1967), rev'd on other grounds, 393 U. S. 348 (1969); Kauffman v. Secretary of the Air Force, 135 U. S. App. D. C. 1, 5, 415 F. 2d 991, 995 (1969), cert. denied, 396 U. S. 1013 (1970).

       In United States v. Frischholz, 16 U. S. C. M. A. 150, 151, 36 C. M. R. 306, 307 (1966), the Court of Military Appeals stated: “[Article 76] does not insulate a conviction from subsequent attack in an appropriate forum. At best it provides finality only as to interpretations of military law by this Court. ... It has never been held to bar review of a court-martial, when fundamental questions of jurisdiction are involved.”

       See n. 9, supra.

       2 J. Moore, Federal Practice ¶2.08, p. 406 (2d ed. 1974).

       It has been suggested that the continuing subordination of equitable to legal remedies is justified “under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings Younger v. Harris, 401 U. S., at 44. See O. Fiss, Injunctions 12 (1972). Whatever relevance the first of these justifications has in the Younger context, it has none here.

       See Levy v. Corcoran, 128 U. S. App. D. C. 388, 390, 389 F. 2d 929, 931 (opinion of Leventhal, J.), cert. denied, 389 U. S. 960 (1967). Cf. Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va. L. Rev. 483, 496-499 (1969).

       H. R. Rep. No. 491, 81st Cong., 1st Sess., 7 (1949).

       In Gusik v. Schilder, 340 U. S., at 131-132, the Court drew an explicit analogy to the exhaustion requirement for federal habeas attacks on state criminal convictions. See Gosa v. Mayden, 413 U. S., at 711-712 (Maeshall, J., dissenting).

       See United States ex rel. Guagliardo v. McElroy, 104 U. S. App. D. C. 112, 114, 259 F. 2d 927, 929 (1958), aff’d, 361 U. S. 281 (1960).

        Dooley v. Ploger, 491 F. 2d 608, 612-615 (CA4 1974); Sedivy v. Richardson, 485 F. 2d 1115, 1118-1121 (CA3 1973). See Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis of O’Callahan v. Parker, 54 Minn. L. Rev. 1, 50-52 (1969).
      The separate opinion of MR. Justice Bbennan states:
      “Military tribunals have no expertise whatever to bring to bear on the determination whether a common everyday practice carried on by civilians becomes service connected when carried on by servicemen.” Post, at 764-765. Moreover, that opinion finds the record devoid of evidence “that use of marihuana in any amounts under any circumstances adversely affects a serviceman’s performance of his duties.” Post, at 769.
      Although we do not address factual issues in this opinion, we note — in view of Mr. Justice BreNNAN’s position — the Solicitor General’s statement that “drug abuse is a far more serious problem in the military context than in civilian life.” Brief for Petitioners on Merits 15. The seriousness of the problem is indicated by information presented before congressional committees to the effect that some 86,000 servicemen underwent some type of rehabilitation for drug abuse in fiscal years 1972 and 1973, and only 52% of these were able to return to duty after rehabilitation. Id., at 17-18, citing Hearing on Review of Military Drug and Alcohol Programs before the Subcommittee on Drug Abuse in the Military Services of the Senate Committee on Armed Services, 93d Cong., 1st Sess., 109, 110 (1973). See also Hearings on Military Drug Abuse, 1971, before the Subcommittee on Alcoholism and Narcotics of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., 120-127 (1971). It is not surprising, in view of the nature and magnitude of the problem, that in United States v. Beeker, 18 U. S. C. M. A. 563, 565, 40 C. M. R. 275, 277 (1969), the Court of Military Appeals found that “use of marihuana and narcotics by military persons on or off a military base has special military significance” in light of the “disastrous effects” of these substances “ 'on the health, morale and fitness for duty of persons in the armed forces.’ ”
      We express no opinion whether the offense with which respondent in this case was charged is in fact service connected. But we have no doubt that military tribunals do have both experience and expertise that qualify them to determine the facts and to evaluate their relevance to military discipline, morale, and fitness.

       The Court would distinguish Toth, Reid, and McElroy on the ground that civilians, not servicemen, challenged the military’s jurisdiction. But Noyd v. Bond did not rely on that fact. Rather, we focused on the lack of expertise of military courts-martial to deal with federal jurisdictional and constitutional issues. “[W]e did not believe that the expertise of military courts extended to the consideration of constitutional claims of the type presented.” 395 U.'S. 683, 696 n. 8 (1969).

       The Court's reliance upon decisions restraining federal-court intervention in state criminal proceedings is misplaced. Ante, at 754-757. Those decisions invoke considerations of comity, equity, and general principles of “Our Federalism” which counsel against interference by the federal judicial system with proceedings pending in a state judicial system having like competence to decide federal constitutional questions. Military tribunals plainly lack a comparable competence.

       The Court pays deserved respect to the fairness of the military justice system, observing that one of its “critical element [s] . . . is the Court of Military Appeals consisting of civilian judges ‘completely removed from all military influence or persuasion,’ who would gain over time thorough familiarity with military problems,” ante, at 758, and adding “the view that the military court system generally is adequate to, and responsibly will, perform its assigned task.” Ibid. I agree, but “thorough familiarity with military problems” is not “thorough familiarity” with constitutional problems of jurisdiction. The problem presented by this case is not a traditional “military problem.” It is a constitutional question whether the military has any jurisdiction whatever to try respondent for the offense charged. That is the type of question rarely confronted by the Court of Military Appeals and certainly even more rarely by other military tribunals, composed of other servicemen, and, at least in the case of cpurts-martial, convened only for a single case.

       Petitioners’ arguments were effectively rejected only six years ago in O’Callahan v. Parker, 395 U. S. 258 (1969). There, the Government argued that because Toth, Reid, and McElroy all concluded that courts-martial were without jurisdiction to try nonmilitary personnel “no matter how intimate the connection between their offense and the concerns of military discipline,” it follows “that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.” Id., at 267. We held that although military status is essential to court-martial jurisdiction, “it does not follow that ascertainment of 'status’ completes the inquiry, regardless of the nature, time, and place of the offense.” Ibid.