Franke: Due Process for the Indiana National Guard

January 18, 2023

By Mark Franke

One trend at the national level is the proliferation of law judges in the federal agencies. They can streamline adjudication of legitimate citizen and taxpayer issues so there is some value added.

The problem is that often these cases involve fines and penalties imposed by the agency whose hearing officer is ruling on its appropriateness. Even worse, there is often no effective appeal from these administrative decisions to the courts. These officials serve as both prosecutor and judge as many unfortunate defendants have learned to their hurt.

The problem is that this is a quintessential Catch 22 for the accused. The administrative route can save money and time for both sides but at the cost of the accused’s waiving constitutional rights as granted by the Sixth, Seventh and Fourteenth amendments to the Constitution.

In that regard the process is similar to arbitration clauses found in most commercial contracts. These clauses may specify arbitration as the first step but often establish it as binding. That makes sense when only money is at stake.

With tongue planted firmly in cheek, I would also compare it with being sent to the principal’s office. The school makes the law, the school charges students with violating the law and the school judges on the student’s guilt. At least in this situation, there is an appeals process to the local school board, although one I suspect is more theoretical than real.

More than having to stay after school is at stake in a measure now before the Indiana General Assembly. It would remove the right of an Indiana National Guardsman to appeal a disciplinary penalty assessed by his commanding officer to a formal court martial.

Proponents of this change to the state’s military code argue that the current right of appeal could overburden the governor’s office where responsibility for convening courts martial lies. As a partial remedy for this, HB 1076 authorizes the Indiana Adjutant General to convene courts martial in lieu of the Governor.

When asked how many of these appeals reach the Governor’s desk, the number could not be given. That tells me that it is small, hardly enough to distract the Governor from his more urgent tasks.

I admit to being pedantic about our rights as American citizens, both the natural rights cited in the Declaration of Independence and the enumerated ones in the Constitution and Bill of Rights. The Constitution was not written to construct an efficient government but a limited one, purposely constrained in its authority. Government inefficiency may be a running joke among us taxpayers, perhaps even more true in actuality than in our humor, but I contend that this inefficiency serves as an unintended brake on expansive governmental overreach.

I also admit to a tendency to oversimplify things but I am notorious for keeping Ockham’s Razor to hand. Look for the principle at stake and cut away the arguments for efficiency. There is a cost to everything but not always one that can be measured in dollars or in time. In this case the potential cost to be paid by National Guardsmen under the military code is too high to pay for some unclear improvement in the Governor’s time management.

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

In this case as in most others, there are two sides to the story. My touchstone on issues like this is to default to individual liberty. This puts me in the Guardsmen’s corner. Their rights as Americans supersede any concern I would otherwise have for governmental efficiency.

The Indiana American Legion through its legislative committee is opposed despite its endorsement by the state’s other veterans service organizations. (In the interest of full disclosure, I am a member of this committee.) To these veterans’ thinking, this is an inappropriate usurpation of service member rights. I consider it more than inappropriate; it is unconstitutional.

This is only a sample of one but I asked a friend, a member of the Indiana Air National Guard, if he had an issue with the legislation. Clearly, he did. “I didn’t waive my rights when I enlisted.”

He also told me that in his 27 years of service, he could not recall any courts martial. So much for the metaphoric gnashing of teeth about the Governor’s workload.

If we expect these people to put their lives on the line to preserve our rights, we ought to be equally diligent in preserving theirs.

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

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.


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