Mark Franke: Due process for the Indiana National Guard

A trend at the national level is the proliferation of judges in federal agencies.

They can streamline decision-making about legitimate citizen and taxpayer matters so that some value is added.

The problem is that these cases often involve fines and penalties imposed by the agency whose hearing officer decides what is reasonable. Worse still, these administrative decisions often lack effective legal remedies in court. These officers serve as both prosecutors and judges, as many unfortunate defendants have learned to their chagrin.

The problem is that this is the quintessential Catch 22 for the defendant. The administrative route can save money and time for both parties, but at the expense of the defendant forgoing the constitutional rights afforded by the Sixth, Seventh, and 14th Amendments to the Constitution.

In this respect, the procedure is similar to the arbitration clauses found in most commercial contracts. These clauses may specify arbitration as a first step, but often specify it as mandatory. That makes sense when it’s all about money.

With my mouth firmly planted in my cheek, I would also compare it to being sent to the principal’s office. The school makes the law, the school accuses the students of breaking the law, and the school judges the student’s guilt. In this situation at least, there is an appeals process to the local school board, although one I suspect is more theoretical than real.

In a measure ahead of the Indiana General Assembly, the stakes now are more than staying after school. It would deprive an Indiana National Guardsman of the right to appeal a discipline handed down by his commanding officer to a formal court-martial.

Proponents of this amendment to the state military code argue that the current appeals regime could overload the governor’s office, which has jurisdiction to convene courts-martial. As a partial remedy, HB 1076 authorizes the Indiana Adjutant General to convene courts-martial in place of the governor.

When asked how many of those appeals reach the governor’s desk, the number could not be given. That tells me it’s small, barely enough to distract the governor from his more pressing duties.

I admit that I am pedantic about our rights as American citizens, both the natural rights stated in the Declaration of Independence and those enumerated in the Constitution and the Bill of Rights. The Constitution was not written to create an efficient government, but a limited one, intentionally restricted in its authority.

Government inefficiency may be a running joke among us taxpayers, perhaps even more accurate in reality than our humor, but I contend that this inefficiency serves as an unintended brake on widespread government hyperbole.

I’ll also admit that I tend to oversimplify things, but I’m notorious for always having Occam’s razor handy. Find the principle at stake and cut away the efficiency arguments. Everything has a price, but not always one that can be measured in dollars or time. In this case, the potential cost to be paid by the National Guardsmen under military law is too great to pay for an unclear improvement in the governor’s time management.

I realize that military justice follows a different path than that on the civilian side. Procedurally it is done differently for obvious reasons, but the principle is the same. Deliver justice to the accused, which inevitably means due process and equal protection, terms found in Fourteenth Amendment language.

In this case, as in most others, there are two sides to the story. My touchstone in questions like this is to forego individual freedom by default. That puts me in the guards corner. Your rights as an American supersede any concerns I might otherwise have about the effectiveness of government.

The Indiana American Legion opposes it through its Legislative Committee, despite its endorsement by the state’s other veteran service organizations. In the interests of full disclosure, I am a member of this committee. According to these veterans, this is an unreasonable usurpation of military personnel’s rights. I think it’s more than inappropriate. It’s unconstitutional.

This is just one example, but I asked a friend who is a member of the Indiana Air National Guard if he had a problem with the legislation. Obviously he did. “I did not waive my rights in my recruitment.”

He also told me that in his 27 years of service he could not recall a court-martial. So much for the metaphorical gnashing of teeth at the governor’s workload.

If we expect these people to risk their lives to protect our rights, we should be just as diligent to protect their rights.

This bill must die and be buried… and without an American Legion color guard at the funeral.

Mark Franke, Associate Fellow of the Indiana Policy Review and its book reviewer, was formerly Associate Vice Chancellor at Indiana University-Purdue University Fort Wayne. Send comments to [email protected]

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