Here’s the latest development in the ever-fascinating case of Partington v. Houck:  on Tuesday, DOJ filed this motion to reconsider and dissolve the TRO that Judge Scullin issue last Friday staying the Judge Advocate General of the Navy’s suspension of Mr. Partington from practice in naval proceedings.

In the reconsideration motion, DOJ argues:  (1) the request for a TRO didn’t comply with Fed. R. Civ. P. 65(b)(1) because Mr. Partington’s counsel made no effort to provide notice to the defendants’ counsel before seeking emergency injunctive relief and Mr. Partington’s counsel should have sought relief sooner after the Hawai‘i Supreme Court issued its suspension order on 9 November; (2) Mr. Partington’s request for a TRO misstated the date by which he would have to notify his clients of his suspension and recommend that they seek new counsel; and (3) any harm to Mr. Partington’s reputation that would occur as a result of his notification to clients may have already occurred since the Honolulu Star Advertiser ran an article about his suspension on 11 November.

6 Responses to “Defendants ask judge to reconsider TRO in Partington v. Houck”

  1. Cap'n Crunch says:

    I don’t see where TJAG (or even CAAF) has jurisdiction to impose discipline upon civilian attorneys.  Lets start with Articles 2 and 3.  Civilian Counsel are not subject to the chapter, by the plain terms of those sections.  Judge Advocate certification can be revoked, certainly, under Article 6.  And Article 6a applies for fitness determinations of the military judge or appellate military judge.  Article 17 provides for jurisdiction of court martials only for persons subject to the chapter (but again, civilian counsel are not subject to the chapter). 

    Article 36 gives the President the ability to promulgate rules governing procedure.  But procedural rules, it seems to me, is not the same as the ability to impose discipline upon civilian counsel. 

    Article 38 provides for civilian counsel, but, again, does not provide for discipline of those counsel: “(2) The accused may be represented by civilian counsel if provided by him.”

    Article 42 provides that counsel shall take an oath, but again, defense counsel is not the same as civilian counsel.

    Article 48 DOES allow the ability to hold counsel in comtempt:  “A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100 or both.”  But nothing about a bar on further representation is noted.

    While MCM Rule 109 appears to provide for authority for the Judge Advocate to promulgate and regulate professional responsibility for “Each Judge Advocate General … [responsible for the] discipline of … other lawyers who practice in proceedings governed by the code and this Manual.”  I do not see the authority to do so when it comes to civilian counsel in the UCMJ.  I think the remedy for the government is likely contempt power or referal to the state bar where the civilian counsel is licensed.

  2. Just Sayin' says:

    Another problem is the inherent lack of due process in the system.  The rules don’t allow for any external judicial review, and half the time the Navy doesn’t follow it’s own written rules anyway.  I think it’s time the ABA look at this system and decide whether or not they want to consider it valid for reciprocal jurisdiction purposes.  Were it up to me, it wouldn’t be.

  3. just me says:

    Agree with just sayin’. I think Hawaii should look behind the JAG action  and see what sort of lunacy it is endorsing. Trial by Marsupial Magistrates is twice as shocking when imposed by lawyers upon lawyers.  

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  4. stewie says:

    I’m confused, didn’t the military system simply say, you can’t practice in our system? The Hawaii Bar then said, yeah, we agree what you did was wrong so we are going to separately discipline you.
    The military isn’t responsible for the second part, but are folks on here saying they have no authority to do what they did, which is to bar him from their courts? The only remedy is to report to the State Bar but otherwise be forced to continue letting them practice?
    That seems inconceivable to me. Certainly, if one wants to argue that the manner in which this decisions are made are arbitrary or otherwise violates basic due process then that’s one thing, but to say that they have no power at all other than reporting, not sure that makes practical sense, even if I can be convinced it makes legal sense.

  5. Cap'n Crunch says:

    stewie: that is exactly what I am saying.  I am saying that I do not see the authority for this in the UCMJ.  I am saying that, if the authority is to exist, then Congress needs to place that authority in the UCMJ.  Of course, the issues of due process, of a politically charged disciplinary process, is another matter all together.

  6. Dew_Process says:

    The issue really boils down to is whether or not Congress, in creating the position of Navy TJAG [or any other service’s TJAG], delegated “rule-making” authority to that TJAG.  They did not.  See 10 USC 5148(d).  Congress gave CAAF rule making authority per Article 144, UCMJ.  TJAG of course could have referred the matter to Partington’s State Bar where he would have had the full panoply of due process and court supervision.  The basic issue here is whether or not the actions of the Navy TJAG are ultra vires.  The secondary issue then becomes, did the “disciplinary procedures” utilized comport with minimal due process requirements?