Kise v. Department of Military

D. Conclusion under- competent and credible evidence In the absence Megan’s Law’s findings, regis- legislative mining relevant notification, constitute non- tration, counseling provisions govern- supporting legitimate regulatory measures punitive, Therefore, presently measures are these purpose. mental they in additional claim that result against Appellees’ upheld prescribed penalties failure punishment. criminal required are unconstitu- verify residence as register one’s Accordingly, provisions but those tionally punitive, severable. to the trial court invalidated, and the matter remanded remaining chal- Appellees’ constitutional for consideration lenges.27 participate ZAPPALA did

Former Chief Justice case. decision

832 A.2d 987 E. KISE Galen Affairs OF MILITARY Veterans DEPARTMENT Pennsylvania. General of Military Appeal and Veterans Affairs. Pennsylvania. Supreme Court Nov. 2002. Submitted Sept. 2003. Decided Megan’s claiming punitive, Appellees Law is In addition vagueness and violative of substantive due it is void assert guarantees powers Appellees separation doctrine. process more than one maintain that the statute contains also III, Pennsylvania Article Section Constitution. contravention of Frye, Harrisburg, for amicus curiae U.S. Mary Catherine Department of Justice. Bar- Roy, Michael Clark Wright,

Eclemus Kenneth Scott Sheehan, Annville, Department Military rett, for James M. and Veterans Affairs. Smith, Nicolosi, E. Wendy Ann George

Edward Galen Kise. NIGRO, Justice, CASTILLE, CAPPY, Cheif

Before LAMB, NEWMAN, SAYLOR, JJ. EAKIN and OPINION SAYLOR. Justice availability appropriate consider appeal,

In this we action appellate personnel review of breadth state from the involuntary separation cause in the form of Army program of the National Guard “Active Guard/Reserve” Army Reserve. Sergeant Kise years, Appellee Galen For fifteen Staff (“Kise”) as an enlisted member National served (“NGUS”) the Pennsylvania of the United States (“PAARNG)”,1 pur- on full-time active service National Guard 502(f), Code, 32 Title of the United suant to Section States (“AGR”) 502(f), part Active U.S.C. Guard/Reserve scheme, a soldier enlists Under the National Guard's dual enlistment serving capacity to the organization, in a reserve both in here, militia, Army, organized United States Perpich Department Pennsylvania generally Guard. National See 2418, 2425, (1990). Def., L.Ed.2d 312 Perpich at Supreme decision discusses The United States Court’s history system. length justification for and this dual See id. 340-46, 110 at 2422-26. S.Ct.

533 program. by, AGR is instituted and administered of, to government; pur- direction the federal its the pose provide highly person- officer and qualified enlisted Reserves, support Army Army nel to the National Guard generally in positions organizing, administering, related recruiting, instructing training. Army Regulation See ¶¶ (“AR”) (c). 135-18, 1-5, generally 3-1 See States United Castle, (D.Del.1990) Karr F.Supp. ex rel. 1237 n. 4 (“The program military person- AGR a of created new status nel dedicated to support the full-time of the National Guard[;][t]he creation of the program part AGR of an increasing emphasis on of augment the use Reserves to active forces.”), (D.Del.1991). modified, F.Supp. During his AGR, service paid by government, Kise was the federal of wore uniform Army, the active United States and was subject to regulations promulgated numerous by the federal Department Army adjunct of the it of Force, of the Air National Guard Bureau. May

Effective of separated Kise was from AGR (asserted misconduct) service for cause of order the Adju- (the tant General Pennsylvania General”), “Adjutant follow- ing investigation pursuant conducted provisions 15-6, (“NGR”) AR Regulation and National 600-5.2 regulations, Pursuant to the Kise received notice the inves- tigation report and permitted was to submit a written re- sponse with Judge from assistance counsel Advocate however, General’s Corps; regulations require do not a hearing as prerequisite separation, a and none was afforded Parenthetically, Kise. according Adjutant General, no action was taken to position remove Kise from his PAARNG, of which apparently he remained an active mem- ber.

Kise subsequently petition filed a for review in the Com- pursuant Code, monwealth Court to Section the Judicial 42 Pa.C.S. Chapter Pennsylvania Rules of regulation NGR promulgated 600-5 is the National authority Guard Bureau under of the Secretaries Air Force. See NGR 600-5. Procedure, appeals direct from Common- governing Appellate stay. application Rise agencies, together with an wealth alia, predicate contended, that he advised inter in the mili- participate to wrongdoing permitted of claims separation determi- investigation tary’s investigation; the process; in lacking due fraught with error nation were concluding his discretion Adjutant General abused 600-5. and violated NGR engaged that Rise had misconduct be set separation the order requested Rise therefore aside. Pennsylvania, Depart- response,

In the Commonwealth Adjutant Military Affairs the and Veterans ment motion filed a to (collectively, “Department”) the General Department contend- petition review. The dismiss Rise’s therefore in nature and separation that the federal ed courts, Adjutant as the of the state beyond jurisdiction the regula- to capacity, pursuant in a federal acted General in a tions, employee of a federal participation to the terminate regulation. pervasive federal program Further, requirement the Department addressed the the a certify that it Pennsylvania Appellate Rules of Procedure Pa.R.A.P.1952, via see appeal, with the record connection indicating that relevant Adjutant from the General affidavit subject to corre- of a federal character and documents were Adjutant The General national retention directives. sponding responsible federal officials that he had asked the attested could be made available provide such documentation as applicable laws and within the bounds court by provided were Various documents then regulations. officer, including report' of PAARNG human relations rebuttal, reflecting various investigation, documentation Rise’s recommendations, record official reviews and separation. of Rise’s approval General’s stay granted re- Commonwealth Court Initially, the Rise, single-judge Subsequently, Rise by via order. quested contempt, contending petition adjudication of civil filed a failing stay by order Department violated Following argu- position. his full-time AGR restore him to ment, however, the Commonwealth Court relief on the denied petition contempt the stay, again single-judge and vacated order, citing regarding serious concerns its jurisdiction. Sub sequently, the en banc Commonwealth Court considered the motion dismiss and opinion issued divided and order requested denying Department, directing relief certify Department record, an adequate and indicating the court’s intention to conduct merits review several of the implicated by appeal. issues Rise’s v. Department See Kise (Pa.Cmwlth. Military and Affairs, Veterans A.2d 2001). majority its opened by noting discussion

Commonwealth previously Court jurisdiction had exercised adjudication over an challenged by a soldier, National Guard see id. at (citing Prewitt De partment Military Affairs, (Pa.Cmwlth.1996)); 686 A.2d 858 however, it also observed availability that the and scope of appellate jurisdiction state as concerns the administration program the had not AGR been in opinion. addressed that See In id. its evaluation of jurisdiction, the majority first addressed a serving whether member of the National Guard in program federal, the a state, AGR is opposed as to a employ ee. In this regard, majority the examined the National dual scheme, which, Guard’s enlistment in noted, a soldier in enlists both National the Guard of the United States militia, Kise, the state see (citing 784 A.2d at 255 Maj. Michael Smith, E. Representation Federal National Guard Mem Army bers in Civil Litigation, 41, 42-43; 1995-DEC see Law. 1, that, also supra highlighted particular time, note at any the in member serves one or the other of capacities, these functioning Kise, rather than simultaneously. both See 784 (citing 348, A.2d at 255 Perpich, 496 at 110 S.Ct. at 2426- (“[TJhe members ... keep State Guard must three hat, hats in their hat, closets—a civilian a state militia an army only one of which is any particular worn hat — time.”))). majority The that duty assignments observed most performed by (weekend drills, National Guard members annu training, al and most training assignments and other within States), duty,” is denominated “Title undertaken

the United Governor, paid that it by the albeit in a state status directed Kise, (citing Maj. 784 A.2d at with funds. See federal al., Blowers, the Force —Jurisdictional Disciplining et Grant Force, 1, 8 42 A.F.L.Rev. and Total Issues in Joint (1997)). Furthermore, strictly service distinguished federal it Secretary Army or the the President ordered laws, duty,” such as authority of “Title under missions, mobili training military training, overseas basic United States Govern the National zation of Guard ment. id. See majority concluded that Rise’s

The Court Commonwealth state militia and was as member status in the AGR therefore, soldier; at the of his time not as a federalized In this employee. respect, a state Rise was discharge, alia, cited, regu the salient inter Court Commonwealth (“Personnel (June 1996) 135-18, 19, lation, AR ch. 3-l.c see of 32 serving provisions tour under the AGR the ARNGUS status.”), 502(f)(2) commen ... serve State U.S.C. amendments, legislative see tary with relevant associated (1984), Cong., pp. No. 98th 2d Sess. H.R.Rep. (“The Con 4201-4202 in 1984 U.S.C.C.A.N. reprinted personnel always intended [National has gress under duty should remain serving status] in a full-time rather than Guard authorities control of State National majority also determined government.”). separating capacity in a Rise Adjutant acted General based on the General’s program, from AGR acknowledging Although official. as a Commonwealth position to administer federal responsibility Adjutant the General’s it majority nonetheless deemed regulations, the laws and accomplished pursuant state law this controlling Kise, A.2d at 258-59. authorization. See Department’s contention Next, rejected the majority the regula- based that, cause of action is on since Rise’s in tions, exclusively resides the jurisdiction over his claims courts, that, nation- reasoning under the district United States competent sovereignty, state courts are al scheme dual adjudicate arising States, claims under laws of the the United long they so expressly jurisdiction by divested of Congress. affirmative act of See id. at (citing Yellow Freight Sys., 820, 823, Inc. v. Donnelly, 494 U.S. (1990)). 1568, 108 L.Ed.2d 834 Finding no express such

divestiture, majority the concluded that it was free consider petition Rise’s provisions review under the of the Judicial Code pertaining appeals from agencies Commonwealth Law, Agency §§ Administrative 101- Pa.C.S. 763(a)(1). 754. See 42 Pa.C.S. majority also deter mined that rights Rise’s constitutional implicated by were his separation from the Although AGR. recognizing the doctrine of at-will employment prevailing Commonwealth, in the the majority nevertheless found applicable regulations set forth NGR 600-5 “quasi-contract functioned as a of contin employment,” ued guaranteeing premature Rise would not be ly AGR, Kise, terminated from the absent cause. 784 A.2d at 259-60, 263.

Responding to Department’s argument judicial involvement represent the matter would inappropriate in affairs, in military terference majority next considered the justiciability petition. of Rise’s In this regard, the majority purported to apply Third Circuit’s test justiciability military matters. It read this doctrine as requiring merits review of constitutional claims of service members absent rare finding case which plaintiff for the “require[s] a court Kise, to run military.” 784 A.2d at 261 (quoting Jorden v. Bureau, (3d National Guard Cir.1986) 799 F.2d 110-11 (citation omitted)). Thus, explained that, it military “[i]f justification outweighs infringement plaintiff’s indi freedom, vidual may merits, we hold for military on the but we will not Kise, find the claim to non-justiciable.” be Jorden, A.2d at 261 (quoting (citation 799 F.2d at 110-11 omitted; emphasis in original)). Applying standard, majority concluded: procedures

Whether Pennsylvania used deprived General employee of Constitutional due process question is not a expertise or one that This Court military mission. with the

causes interference military any into issues upon to intrude being called expertise matters committed or other doctrine Rather, asked to determine we are military commanders. Constitutional transgressed the agency a whether State appeal on The issues employees. of its rights of one justiciable. omitted). (footnotes and citations

Kise, A.2d at 261-62 however, rejected the majority, Court The Commonwealth hearing process ato due that Rise was entitled proposition provisions hearing-related discharge his under prior to Law. Pa.C.S. Agency See Pennsylvania’s Administrative of concern expressions into account taking § 504. While to be participation required degree limited regarding the from full-time reserve separations in connection with afforded alia, A. Kise, (citing, inter John 784 A.2d at programs, see Administra Wickham, Involuntary Concept, The Total Force Due Process: Are Reserv and Constitutional Separation, tive Citizens?, 2000-OCT Second Class Duty ists on Active Still 19, 29), the state courts majority deemed Law. States Supremacy Clause of the United preempted under the Const, VI, 2, from on the Constitution, art. cl. reliance grounding require a a Agency Law as source Administrative Kise, 784 A.2d at 263. hearing. See process of a due ment ques consideration of majority found that its Accordingly, the strictly to those limited procedural regularity tions and NGR 600-5. Constitution arising under the United States of additional issues Finally, majority addressed series review, that: including claims petition raised Rise’s by failing to address his discretion abused General includ- to be required by applicable regulations considerations commander or involuntary separation inquiry; Rise’s in an ed required letter to counsel or issue supervisor failed initiat- concerning alleged misconduct before reprimand Rise’s investigative cited separation; the evidence ing his relationship improper to demonstrate report used was insufficient two soldiers Rise and other between did prohibiting rules fraternization incompetent; not apply to Rise’s relationship with soldiers not in his chain of however, command. majority, found that ability its address those impaired issues was on account of Depart ment’s failure to certify and adequate submit an record in Appellate Kise, accordance with Rule of Procedure 1952. See 784 A.2d at example, 264. For majority indicated Department should have identified specific military regula tions by provided violated Rise and an explicit definition for each of separation, the bases for namely, inappropriate profes sional conduct and moral dereliction. See id. at 264-65. Accordingly, the Commonwealth Court remanded the matter Department with instructions to supply a record suffi permit cient to appellate effective review.

The dissent position took the that the Commonwealth Court jurisdiction lacked to consider the merits of petition for review, because the matter an appeal by involved a federal employee from a Kise, decision of a agency. federal See 784 A.2d (Pellegrini, J., at 265-66 dissenting). The dissent also observed that dynamic the federal involved in military separa deprived tions the court of meaningful enforcement authority. that, See id. at 266 (reasoning only “not is there evidence that this is matter, a federal regardless but of what this court orders, we cannot government force the federal to pay for or approve Rise’s duty status[;][c]ourts active should not enter enforce”). they orders cannot Additionally, the dissent ad monished that courts should not interfere in military decisions. id. See

We appeal allowed questions consider of first im pression concerning judicial review of a military personnel decision the National Guard concerned with separation of an AGR soldier. legal Our review of questions involved is plenary. Presently, filed a brief furthering argumentation it proffered in the Commonwealth Court; Rise, however, has made no submission to this Court.

In its opinion case, in this the Commonwealth Court accurately described the National Guard as a agency, control, under state service, and available for state yet as also law, part of the provided that is organization States, being called the United armed services at Accord 496 U.S. any Perpich, at time. into service (3d 386, Orr, 2425; 780 F.2d Johnson v. 345, 110 at S.Ct. Cir.1986). and state indicia results blending of federal This Militia and in both the grounding National Guard’s from the Constitution,3 of the United States the Armies Clauses incorporate the National corollary Congress’ decision nation designed to ensure concept,” into a “total forces Dukakis v. United conflict. See al readiness (D.Mass.1988) (quoting F.Supp. Dep’t Def., States Wiener, the Consti Bernays The Militia Clause Frederick (1940)). Per tution, generally See 54 Harv. L.Rev. Accordingly, the at 2425-26.4 pich, Congress: The Militia Clauses authorize Union, calling to execute Laws of the forth the Militia provide for [t]o Invasions; repel suppress [and] and Insurrections Militia, disciplining, organizing, arming, and provide and [t]o may employed in Service of be governing such Part of them States, Appoint- reserving respectively, the to the States United Officers, Authority training the Militia accord- ment of the by Congress[J discipline prescribed ing to the 8, I, § The Armies Clause establishes art. cl. 15-16. Const, I, Const, art. authority support and Armies.” U.S. Congress' “to raise 8,§ cl. 12. history enabling of and Perpich, Supreme Court examined In 4. Guard, explaining authority that: for the National themes, conflicting developed at the Constitutional Convention [t]wo during century, military policy next repeated and in debates over and in later compromise in the text of the Constitution led to hand, widespread fear one there was a statutory enactments. On the standing Army posed intolerable threat to individu- that a national while, States, sovereignty separate on the liberty of the al and to the hand, relying recognition danger on of the there was a other providing for primary means of inadequately trained soldiers as the Thus, Congress authorized both to raise was the common defense. Army organize and also to the Militia. support and a national omitted); 340, (footnotes see Perpich, at 2423-24 496 U.S. at Guard, Rich, Drug National Interdiction and Steven B. The also Lt. Col. Activities, Implica- Meaning Counterdrug and Posse Comitatus: Service", ("The essential 1994-JUN tions “In Federal Law. Congress powers concept has certain is that while constitutional militia, regarding of its officers and responsibilities the selection frequently National Guard and its infrastructure are referred See, Johnson, hybrid 388; to as e.g., in character. 780 F.2d at Guard, Williams v. Air 821 P.2d Colorado Nat'l (Colo.Ct.App.1991). level, III,

At the Commonwealth to Article pursuant Section Constitution, Assembly C of the Pennsylvania the General has designated Governor as of the commander-in-chief Penn- sylvania Guard, § required: see 51 Pa.C.S. National supervision organization by of the General and Department Affairs, of Military and see Veterans 701-02, 901-02; §§ organization Pa.C.S. of personnel accord- ing to of the Department directives United States the Army Force, 1102; Department § the Air see 51 Pa.C.S. conformity regulation regulations of state with all acts and States, the United see 51 Pa.C.S. noted, 763(a)(1)

As the Commonwealth Court Section of the Judicial it upon jurisdiction Code confers exclusive over direct appeals from agency adjudications— Commonwealth given organized that the was as a state executive agency, jurisdiction appear facially present. would to be In light unusual, dual character and of PAARNG, function however, in resolving jurisdictional question the Common wealth Court was correct to further assess whether Rise’s service in the in a AGR rendered state or capacity, and, similarly, the state versus federal Depart status of the ment as separation concerns the action. regard,

In agree we with the Commonwealth Court’s conclusion that Rise functioned as a state soldier. In reaching determination, court the invoked properly the applicable military regulation, AR-135-18, 3-l.c, ch. and cor responding legislative direction, 691, H.R.Rep. No. 98th Cong., 243, 2d Sess. at reprinted 4201-4202, in 1984 U.S.C.C.A.N. at which explicit. 5; See supra page accord Knutson v. Guard, (7th Cir.1993) Wisconsin Air Nat'l 765, 995 F.2d 768 (describing adjutant a general’s state separation action in command and except during periods control remain with the states in States.”).

the actual of service the United

542 straightforward as “the rather case to an AGR officer relation to effectuate exercising authority their state of state officers personnel”). the De- of militia While the termination state arguments might that be colorable partment presents deemed direction,5 or express such it is unable in the of absence designation by Congress unwilling confront of as state Department Army of AGR service States United explicit and service, since, Court’s despite the Commonwealth no authority, Department makes reliance on such central this Court.6 of that it has submitted to it in the brief mention Court’s we the Commonwealth Similarly, approve Department’s action was accom separation conclusion that Although Adjutant in a state status. plished General and Affairs and the Military of Veterans Department itself, General, in like PAARNG serve both that it is consistent capacities,7 and we believe federal state contention, however, in Department's that an AGR soldier's dress 5. The govern- receipt payment and from the federal federal uniform commentary. controlling refuted in the cases and ment should be See, Guard, 1237; Rich, Karr, e.g., F.Supp. 746 The National 1994- at (“The depends 40 of status on command JUN Law issue apply; state or on whether: state or federal benefits control used; being authority duty for the lies state or federal funds are law; thereof."). Department any Although the combination federal or Commonwealth, Military Dep't fairly directs the Court’s attention Greenwood, 348, (1986), providing 292 v. 510 Pa. 508 A.2d Affairs decision, arising by way analogy, such in the support position for its arena, compensation AGR soldier. did not involve an state workers' Therefore, controlling here. we do not deem it categorization argue does that of AGR soldiers as 6. The Constitution, employees the United States which state would violate shall, Congress keep ... provides "No State without the Consent War, engage Troops, Ships War ... or unless or in time Peace invaded, Danger actually as will not admit of such imminent 10, I, § cl. In constitutional delay.” art. 3. absence of a Const, however, jurisdiction, challenge appropriate resolved tribunal clearly legisla- beyond intent of will not stated we look Perpich, generally U.S. at branches. tive executive Cf. system (recognizing of the federal state S.Ct. at 2426 dual unchallenged). program National remains (6th See, e.g., Stump, Cir. v. 1998 WL F.3d Hoffman 2, 1998) (table) general adjutant “hybrid (noting is a Dec. Oistead, (9th ]"); Bowen F.3d state official Knutson, Cir.1997); 995 F.2d at 767.

543 design with the federal and the Commonwealth’s scheme of implementation that should deemed be to be acting capacity in a state in its administration of soldiers who expressly designated serving in a as status. Accord Knutson, Additionally, 995 F.2d 768.8 the Depart- while 763(a)(1) suggests ment that Section of the Judicial Code should pertain only arising directly be read matters Law, Agency under the expressly Administrative the statute confers jurisdiction appeals the Commonwealth over Court from adjudications agency arising state administrative under that enactment “or 42 Although otherwise.” Pa.C.S. 763. appeal touches on federal questions, the Commonwealth observed, Court correctly general rule is that state courts jurisdiction issues, have concurrent such jurisdic- over unless tion has been Congress expressly, necessary removed implication. Katt, 386, 393-94, See Testa v. 330 U.S. 810, 814-15, (1947). 91 L.Ed. 967 1 generally See Moore, (2d ed.1977). 0.6 at 230-40 Accordingly, Federal P Practice jurisdiction proper in the Commonwealth Court. agree

We also with the Court Commonwealth Supremacy Constitution, Clause of the United States Const, VI, 2, art. cl. preempts Pennsylvania’s Administrative Agency Law to the requirement extent its of a due process hearing inconsistent with separation procedure embodied in NGR 600-5. Accord Bradley Stump, v. 971 1149, F.Supp. (W.D.Mich.1997), 1155 385903, WL 1998 aff'd (6th 1998) 149 1, F.3d 1182 (table); Cir. Jul. v. cf. Coffman (6th Cir.1997) Michigan, 57, 120 F.3d (noting that state law remedies are not available to service members challenging decisions); internal military discipline Hazelton State Per Comm’n, sonnel Wis.2d 505 N.W.2d 800-01 (Wis.Ct.App.1993) (holding that enforcement of a state em- respect, personnel In distinguished AGR mililary should be from technicians, expressly designated employees, who are to be federal thus, See, jurisdictional would prerequisites. be to different e.g., Auth., Lipscomb v. Federal Labor F.Supp.2d Relations (S.D.Miss.2001) (finding adjutant general that a state acted in a federal capacity in the personnel administration of matters of National Guard technicians, Williams, employees); who were federal 821 P.2d at 924- (same). in the National arena was discrimination law

ployment law). Significantly, preemption preempted by federal regulations federal statutes and generally encompasses both legislative City in with authorization. See adopted accordance Comm’n, 486 U.S. New York v. Federal Communications (1988). Thus, 1642, 68-64, 1637, 100 L.Ed.2d 48 57, 108 S.Ct. in narrowing was state Court correct the Commonwealth in this case. appellate review generality petition in view of the Kise’s

Additionally, of fundamental due allegations concerning in its denial review in of which are vagueness procedures terms process, its inadequate, concerning the to have been evaluation claimed First, necessary. it is appellate jurisdiction is scope of state to extent Ease claims that constitu- whether and what unclear a lacking was denied process tional due because he effectively a that separation, his claim would hearing prior to governing regulations challenge a federal represent noted, provide hearing. for a since, previously these do not ¶ 600-5 6-5. See NGR posi Kise such a

To that seeks assert the extent tion, 'questions concerning a there substantial whether agency appeal from a Commonwealth under Section direct Code, contesting is a what asserted be the Judicial a applicable to National military personnel decision an serving capacity, appropriate state vehicle member federal, constitutionality military challenge which Court, recognize, as did the Commonwealth regulations. We that state courts maintain concurrent general rule questions. Nev jurisdiction to consider federal constitutional ertheless, that, present unique circumstances are re gardless capacity, in a he must simulta Kise’s service state recognized federally status to fulfill a role neously maintain governing AGR regulations AGR—the service therefore military also only upon active service but touch state To the extent for national service. readiness find challenge regulations, intends to we Kise entanglement impedes of strong substantial federal interests review, regulators as the appellate particularly action, parties jurisdiction are not over them cannot gained by be the Commonwealth Court in the absence of an express Congress government’s waiver of the national sovereign immunity, Fox, v. see Blue Inc., 255, 261, 690, 142 L.Ed.2d (1999). purposes any challenge For constitutional federally prescribed involuntary procedures separation of soldier, an AGR that an appropriate entity we conclude authority indispensable therefore, an party, absent express Congressional waiver of sovereign immunity, juris- diction such a claim over does not lie in the courts of this Sprague 48-49, Commonwealth. Accord 520 Pa. Casey, (1988) 550 A.2d (explaining absence of an indispensable party “goes absolutely jurisdic- to the court’s tion”). regulations

Since the separation establish proce- a dure that is not to challenge amenable constitutional in state court, and petition any Rise’s identify procedure does not local by established the might which serve as the basis for heightened procedural protection, purposes of the present, appeal, state court NGR 600-5 the maxi- establishes process mum due was Rise. jurisprudential

Additional arise with regard concerns appellate to Adjutant review of the merits of the General’s separation Ordinarily, decision. review decision of a of proceeds pursuant Commonwealth agency to Section 704 of Law, the Agency Administrative Pa.C.S. which au judicial thorizes compliance, review for constitutional adher to applicable procedure, ence law and record support for findings. tension, however, factual is There between the components process of this procedures review and the set since, forth in discussed, NGR 600-5 for example and as state court review for constitutional violations must be carefully federal, limited challenges to military exclude the regula tions. incongruity Further with traditional administrative re broad, regulations’ view results from: open-ended use of concepts specific military discipline “separation as such cause,” professional “inappropriate conduct,” and “moral dere-

liction;” hearing for a or the creation requirement of a lack sense; any conventional the absence of a record of fact Adjutant findings for the General issue requirement action. support separation law and conclusions of characteristics, which determined are we have These forum, in the further insulate challenge state re- judicial from establishment state decision various view, to render unavailable consequence since their may be judicial which review mechanisms state is that accomplished. The net effect Commonwealth soldier, involving an AGR separation review of a action Court’s federal, mili- accomplished in reliance on separation is where state regulations supplemental procedures and no tary invoked, effectively limited to determination required man- federally General adhered whether the Vuinovich, N.J.Super. procedures.9 C.J. v. dated Cf. (noting (N.J.Super.Ct.App.Div.1991) A.2d 553-54 from discharge in a and transfer judicial intervention HIV-positive duty standby member active reserve if only it regulations appropriate would be required Hazelton, regulations); by the federal permitted supremacy Con- (“Perpich N.W.2d establishes national personnel criteria for the gress regulation prin- supremacy clause guard[;][w]e conclude regulating person- state from ciples preemption prevent the guard.”).10 national criteria of the nel conclusions, on differ- have reached similar albeit 9. Other state courts 03-01-00358-CV, See, State, op., slip grounds. e.g., Gough v. No. ent Jan.25, 2002) (not designated publication) (Tex.App. for WL 2002 90930 (“Because complied requirements with the of amended the 635-100, nonjusticiability precludes our Regulation the doctrine of discretionary military dis- Department’s the decision further review of however, recognize, charging Gough.”). We that some other courts See, available, e.g., may of review. take view court broader 888, State, Bowen, Military Dep’t v. P.2d 896 and Veterans 953 Affairs (Alaska 1998). that We need address the Commonwealth Court’s determination not 10. possessed constitutionally protected interest in continuation in Kise since, Agency judicial Law position, under Administrative his AGR (where jurisdic- only is not for constitutional violations review available law, compliance applicable see present), but also with tion would be 704, regulations. § governing, 2 Pa.C.S. here 547 predicated Although jurisdictional our decision is on here precepts (or, jurisprudential applicable to state courts to unique, our Agency the extent that Administrative Law is to Commonwealth), courts of we note that various federal military personnel courts have concluded that their review of constrained, similarly decisions grounds nonjus- is either on ticiability owing or on to based the substantial deference military residing sphere establishment matters within the military expertise.11 landscape Such decisions arise in a facially two Supreme authority.12 discordant lines of Court See, States, 1400, Cir.1997) e.g., Aktepe (11th 11. v. United 105 F.3d 1403 ("[t]he Supreme generally Court has declined to reach the merits of decisions, requiring military particularly cases review of when those challenged functioning military cases institutional areas personnel, discipline, training.”); Bradley, such as F.Supp. 971 at "[cjourts (observing regularly 1155 decline to hear lawsuits involv ing personnel ture”) integrally military's unique actions related to the struc Owens, 747, (9th Cir.1995)); (quoting v.Mier 57 F.3d 749 Baratz, 23, (D.D.C.1996) F.Supp. (observing Housman v. 916 28 military highest court's deference to the military, its "when pursuant regulations, personnel changes through its own effects Alexander, promotion discharge process”) (quoting Dilley v. 603 F.2d 914, (D.C.Cir.1979)); States, Heisig v. 920 United 719 F.2d 1156 (Fed.Cir.1983) ("[R]esponsibility determining who is fit or unfit to serve in judicial province[.]”); Randolph the armed services is not a v. State, Military Dep't Oklahoma ex 895 (Okla.Ct.App. rel. P.2d 741 1995) (expressing inquiry the view that into the National Guard’s personnel internal military decisions interfere would with functions and involve discretion”) expertise in the military courts “sensitive area of Guard, (quoting Costner v. Oklahoma Nat’l F.2d (10th 1987)); (2002) § Cir. accord 6 C.J.S. Armed Services ("Judicial discharges personnel review of enlisted available matters, respect discretionary with may but it be utilized where the military powers have comply authorities exceeded their or failed to with regulations procedures governing discharges.”). hand, Supreme On the one the United States Court has maintained judicial review is available ensure rights that the constitutional of armed services members are vindicated. See v. Winters United (he States, 57, 60, (1968) ("A S.Ct. L.Ed.2d 80 member of Armed equal justice Forces is entitled law under not as conceived generosity of a commander but as written in the Constitution and engrossed Laws.”); by Congress in our Public C.J.S. Armed See 6 ("The (Aug.2002) judiciary protect [ability] has the Services rights military constitutional personnel, prevent and to violations Constitution, statutes, military tions.”). military authorities regula- hand, other substantially On the the Court has limited the availability special of review based relationship on the between the mission, personnel light unique Chappell and its of its see

548 Military New York State Div. generally See Jones v. of op., 93-CV-0862, 1997 266765 Affairs, slip Naval No. WL (‘‘For courts, (N.D.N.Y. 7, 1997) question May military matters has justiciability realm been Principle one.”); Ohlweiler, John Nelson difficult Def- Challenges Military Regula- erence: Facial Constitutional tions, (1993) 147, (expressing 148 view 10 & J.L. Pol. clearly articulated standard Court “has not Supreme military can restrict constitutional liber- or when how ties”). event, concerning assessment the available any In our justiciability and defer- ameliorates the appellate review military amenability of decisions ence concerns related generated controversy in the judicial that have review federal arena.13 involuntary for appeal,14 provisions

On the merits 2365-66, 296, 300-01, 2362, Wallace, 103 76 L.Ed.2d 462 U.S. S.Ct. 301, (1983); precepts, separation powers id. at S.Ct. at 586 see 103 83, 534, 94, 540, 2366; Willoughby, S.Ct. L.Ed. 345 U.S. 73 97 Orloff v. (1953) ("Orderly requires judiciary ... government be 842 matters.”), and, legitimate Army more scrupulous not to interfere with unique military judicial specifically, status of the vis-á-vis the 304, system. Chappell, 462 U.S. at 103 S.Ct. 2367-68. See See 2446, 1, 10, 2440, generally Gilligan Morgan, 413 U.S. v. (1973) “it is area (explaining that difficult to conceive of an L.Ed.2d 407 compe governmental activity in which the courts have less subtle, tence[;][t]he professional complex, decisions as to the com military training, position, equipping, and control of a force are essen military judgments, subject always to control tially professional civilian Branches”). Legislative and of the Executive States, 1252, (Fed.Cir.2002) Lindsay 13. 295 F.3d See United compliance appli- (noting competent are to review with an that courts regulation, military any "[t]he or no less than other cable statute organ statute, government by granted bound and even when Congress must abide its own discretion unfettered them.”); procedural regulations promulgate it choose Adkins should States, (Fed.Cir.1995) (observing that a v. United F.3d judicial procedural review because “the claim of violations is against military’s which this court measures the actions test or standard they applicable regulations.”); are the statutes inherent: ("It may WL *1 is well established that civil courts Gough, 2002 military agencies comply with own claims that failed to their review regulations.”) (citing (5th Callaway, Hodges v. 499 F.2d 419 n. Cir.1974)). gained jurisdiction Although have must be over a we concluded challenge entity authority purposes any constitutional separation 600-5, for cause as forth NGR paragraph set 6- for, alia, permit separation inappropriate professional inter ¶ conduct moral dereliction. See 6-5c. NGR 600-5 As a guideline, regulations implicate counseling reprimand or prior to a commander’s of a request separation, submission proviso to counseling that may be eliminated ¶ 6-5a.(l). unnecessary. where it is See id. Various factors are which may delineated in be considered the commander’s decision making, including: the seriousness of the underlying conditions; recurrence; events the likelihood of the adverse impact on the member’s fitness serve and unit mission readiness; military record; the member’s possibility ¶ 6-5a.(2). reassigning the member. id. at separa- See The tion recommendation to be made the commander or supervisor at the level commensurate with AGR soldier’s ¶ position, full-time duty 6-5b.(l), see id. at and the AGR rebut, soldier is afforded an opportunity with the advice and Judge assistance of Corps Advocate General’s counsel. See ¶ (4). 6-5b.(2), (3), id. at proceed The recommendation is to through command channels to the for final General ¶ decision. See NGR 600-5 6-5.

Here, the that involuntarily recommendation Kise be separated from the AGR was initiated Lieutenant Colonel Griffith, Jr., David Commander, J. Headquarters 28th Infan try Division (Mechanized), on an investigation based under Army Regulation 15-6. After interviews with Kise and other witnesses, investigating Kise, officer found that a non- officer, extramarital, commissioned in engaged intra-service sexual with serving encounters females his unit in ranks own; lower than that his this occurred while Kise was on and off duty; that Kise knowingly made false statements during investigation the course of his conduct.15 The federal, military regulations governing separation involuntary soldiers, AGR holding we will not merely seeking extend this to claims regulations against Department acting enforcement of the federal capacity, its state as such upon limited review is far less intrusive generally supra domain. See note 13. procedures 15. We pursuant investigative reiterate that the to which the findings officer federally prescribed made his uniquely military. path opinion aptly summarizes Commonwealth Court’s chain of com through PAARNG’s investigative report stages At in this Kise, various 784 A.2d at 260. mand. See capable Kise non- acknowledged it process, was officer, conclusion was nonetheless but commissioned unit’s morale of his conduct on his maintained the effect great support his retention in a too climate was ethical Pursuant supervisory responsibility the AGR. position of report of the provided with the regulations, Kise was comment it and LTC Grif permitted on investigation fith’s recommendation. Kise complaint regarding process only specific that he in his the assertion

presented petition review participate investigation. to in the opportunity an denied belied, however, investigation, of by report the which This is him, with and the investigating the officer’s interviews reflects moreover, submit; permitted that Kise was to written rebuttal further, participa- any general not regulations the do establish disagree the Commonwealth Court’s tory We also with right. by the supplemented must be that the record determination reasoning the explain supporting to the decision applicable regulations to forego counseling, identify to violation, and to the policies of which Kise was in define and moral controlling unprofessional of conduct standards Rather, that, hold in we view of the character dereliction. military have establishment adjudged the conduct the occurred, impact of such military’s the the assessment readiness, a non-commis- position unit Kise’s as conduct on comprised in that is organization officer be sioned soldiers, and qualified exemplary proce- highly most military with dures that were afforded accordance directives, ambit his Adjutant acted within the General inquiry exacting matter. A more would discretion this review, breadth of our as described above. exceed the limited Accordingly, only our review entails a determination since Department complied federally applicable, with the man- whether veracity findings. of such procedures, we do assess dated reversed, The Commonwealth Court’s order is and the case is remanded with directions that underlying military per- sonnel action be affirmed.

Justice NEWMAN files a dissenting opinion. NEWMAN, dissenting.

Justice Although I agree with the majority ultimate result of the opinion, which affirms underlying military personnel ac- tion, this congruence in purely outcome is coincidental. I separately my write opinion articulate review Court inappropriate, as jurisdiction there is no nonjusticiable. matter is

My conclusion regarding lack jurisdiction results from analyzing the state and federal of Appellee roles Galen Kise (Kise) (AG) General and untangling the components intertwined (AGR) of the Active Guard/Reserve program in order to view separate their state and federal identities. I am compelled to nonjusticiability, address well, based on United Supreme States precedent, Court which refuses to allow challenges command, which, decisions of if permitted, “would involve judiciary military sensitive affairs at expense discipline and effectiveness.” Shearer, United States v. 52, 59, 473 U.S. (1985).

L.Ed.2d 38 In analyzing jurisdictional issue, it necessary understand the nature the National Guard. The National is part of a “dual system, enlistment” guards- where a man simultaneously belongs to the National Guard of the United States and the National Guard of a particular state. occupies “The Guard a distinct role in the federal structure that does not neatly fit within scope of either or state national concerns.” Knutson v. Wisconsin Air National Guard, (7th Cir.1993). 995 F.2d

Under this “dual system, guardsmen enlistment” are state employees respective their state National Guard units when they are not on duty active in the National Guard of the United States. Kise v. Department Military and Veterans (internal (Pa.Cmwlth.2001) 258, 255 citations 784 A.2d

Affairs, omitted). Military Affairs and Veterans 8-9, explains the five (DMVA), Appellant in its Brief of can Pennsylvania a National types duty Guardsman (1) emergency to an duty pursuant active perform: state — an the Governor anticipation emergency, or in declaration duty. The may National Guard on active Common- place the activities, pursuant their wealth then controls funds (2) 508; duty active Governor special § state Pa.C.S. —the to order volunteer may delegate authority AG place “to special duty on state National Guard members needs, func- respond community support Commonwealth federal, tions, drug state and local eradication support necessary perform other operations interdiction state funded funds are available.” This is to the extent duties (federal) 391e; (3) by § 71 P.S. Title status authorized activates the National status —this is when President Operation duty call-up, such as Desert Shield. This Guard for government. control of the federal subject exclusive (4) any. duty; Title 32 status —this is duty preempts This Guard, compensated National who is drilling a member of the by component a of the government federal as reserve the United It is Forces of States. Armed Governor, it is status of the but federal control AG 502; (5) active AGR status —full-time pursuant to U.S.C. Guard; subject day-to- duty of the National by member status, federally but day of the AG reim- control § 502. regulated, and authorized 32 U.S.C. bursed dismissal, duty Kise on active Prior to his was full-time of the National Guard was member AGR His Pennsylvania in the National Guard. enlisted member did not affect his status in the termination from the AGR Guard. Pennsylvania National instituted, and sub- program

This AGR administered government. ject to the direction Kise this, position, an improper from his full-time terminated con- involving inappropriate professional relationship, sexual dereliction, that could not be tolerat- and moral attributes duct ed in position supervisory authority special his AGR program.1 jurisdiction on majority

The finds based its conclusion that employee discharge Kise was a and state at the time his that capacity acted his when terminated AG state he However, wrong, support Kise. this is and facts conclusion, opposite given complex intertwining of Pennsylvania and federal roles in and National Guard DMVA, programs. As aptly AGR characterized Kise soldier, was a capacity. federal acted in his the AG many jurisdictions The does not deny regard DMVA duty pursuant § AGR to 32 duty.” U.S.C. 502 as “state However, likely this classification results from confusion status, surrounding AGR Pennsylvania and the fact that a Guardsman can wear as many as five AGR different hats. status is defined as personnel serving National Guard 101(d)(6)(A). on National duty.” “full-time 10 U.S.C. Although subject to the day-to-day control of administrative AG, nature, it is federal in catego- in that Guardsmen ry prohibited are from serving duty either state active special duty. state active majority points

The to a regulation legislative history reflecting is performed AGR service under the authorities, control of state National Guard than the rather government. The majority believes that it not were regulation and legislative history, argu- the DMVA’s “might incorrect; ments be majority colorable.” The nei- legislative ther history regulation nor the answers the question judice. sub legislative history

The only personnel reflects full- time National Guard service are under control of state Nation- al Guard authorities and are not restrictions (UCMJ) the Uniform Code of Military Justice or the Posse 1. separation “[y]our honesty, notice sent to Kise stated lack of judgment sound keeping moral is not in dereliction with the values soldiers, expected professional and ethics of a soldier. Values are what profession, moral, judge right. They as a profes- to be ethical Kise, sional attributes of character.” 784 A.2d at n. 4201^202. Persons Act.2 U.S.C.C.A.N.

Comitatus compo- of a reserve subject include “members to the UCMJ training, in the mem- inactive-duty but case of nent while on of States or the Army National Guard the United bers only in when Federal Air the United States National 802(a)(3). § 10 U.S.C. service.” exempt Thus, from the restrictions personnel AGR UCMJ, recognizes that National Guard and the UCMJ times federal service other members are sometimes view, not of the my In this does warrant conclusion not. who was employee Kise was a state terminated majority —that Rather, AG, acting capacity. provides it by the his jurisdiction. that is no support for the determination there reimbursed, regu- federally federally program AGR lated, § Kise law 32 by and authorized federal at U.S.C. paid by government, was wore United States federal uniform, Army control subject was direction regulation, and investigated pursuant Army military, was regula- pursuant purely to a was dismissed AG tion. aspects majority chooses focus on the state

While the AG, able to of Kise and the it has not been the duties Judge Pellegrini jurisdiction that surmount the obstacle to Kise, joined which dissenting opinion raised in his Judge dissenters made absolute Leadbetter. The they strong when concluded that: statement pur- investigation Kise’s misconduct was conducted into Army regulation of a provisions suant to the because, only ... is there evidence This is relevant matter, u-hat court regardless this but this is a federal orders, government pay ive cannot force status. should not enter approve duty Kise’s active Courts they orders cannot enforce.

Kise, added). 266 (emphasis 784 A.2d at

Although jurisdiction I determine that we lack hear case, my it important opinion I articulate believe or Air (prohibits 2. 18 use of Force U.S.C.A. enforcement). personnel in civilian law nonjusticiable. this matter is Supreme The United States nonjusticiability Court describes as inappropriateness of the Carr, judicial matter for consideration. Baker v. 186, 198, (1962). Baker, S.Ct. L.Ed.2d 663 In Court stated “that in the nonjusticiability, instance of consid- eration of wholly foreclosed; the cause is not immediately rather, the Court’s inquiry necessarily proceeds to point deciding the duty whether asserted can judicially be identified judicially determined, its breach and whether protection the right asserted can be judicially molded.” Id. at 198 added). (emphasis case,

In the instant challenges Kise termination from his federally position salaried in the AGR. His termination was initiated and implemented pursuant regulation. to federal As recognized, Commonwealth Court process the due rights of Pennsylvania’s Agency Administrative Law impli- are not cated, and challenges go Rise’s to application of the regulation.3 As the Commonwealth Court dissent correctly noted, if even we determined that Rise’s termination improper, we could not require government the federal

pay his salary or to reinstate his AGR status. This fact renders nonjusticiable, the matter for the prong third Baker, protection that can molded, be judicially cannot be achieved. Because we cannot order government the federal reinstate Kise to the AGR pay and him salary, his we cannot judicial effectuate remedy, and the matter is nonjusticiable. majority recognizes The that the comprised AGR is of the highly qualified most and exemplary soldiers purpose whose is to provide officers and personnel enlisted to support National Guard and Army Reserves, generally positions related to organizing, administering, recruiting, instructing or training. special Given the nature program AGR military’s determination that Kise was unfit it, serve we should not interfere with the decision to terminate him. 3. Kise contends that the AG failing abused his discretion to address factors; “mandatory” counsel; certain that his commander failed to sufficiency that competency question; the evidence are in and that the rules of apply fraternization did not to his sexual relation- ship with another soldier who was not in his chain-of-command.

556 “judges are not long expressed has jurisprudence

Our 345 Willoughby, Army.” running given the task Orloff v. (1953). majority The 534, 97 L.Ed. 83, 93, 73 S.Ct. U.S. said, Court, “it is which Supreme States the United cites activity in governmental an area of to conceive difficult subtle, complex The competence. courts have less which the training, composition, decisions professional essentially military force are of a control equipping, civilian always to military judgments, professional Gilligan Executive Branches.” Legislative and of the control L.Ed.2d 407 1, 10, 413 U.S. Morgan, military is (1973). action or decision every While judicial inappropriate for judice sub the issue nonjusticiable, 52, 58, Shearer, See, S.Ct. review. Tort (claim the Federal against Army under L.Ed.2d would type of suit permit “[t]o because Act barred Claims prepared stand would have to commanding officers mean range of of a wide of the wisdom a civilian court to convince ... decisions; example, whether disciplinary ...).” discharge serviceman “ameliorates that its determination majority asserts amenability related to the concerns and deference justiciability It its describes judicial review.... military decisions upon is far less intrusive [which] a limited review review as However, I believe military domain.” any degree preclud- and review nonjusticiable, matter is intrusive review as less characterizing the majority’s The ed. by injecting itself harm that it causes not eradicate does process.4 militarys investigative into the on the terrain perfectly illustrates judice The case sub to terminate not The decision should tread. which this Court of the AGRs strategic importance from the Rise resulted of its members. mission, attributes demanded as well as the subjective wisdom equipped not evaluate courts are The adequacy of the record nonjusticiable, matter is Because the Nevertheless, majority its has conducted I note that irrelevant. record that the Common- based on a made its conclusions review and inadequate. determined wealth Court particular military judgments. may courts “[Civilian sit in plenary review military over disputes.... intraservice can [T]here be little doubt permissible range of by present lawsuits or against former servicemen superi- their is, very least, officers at narrowly circumscribed.” Mabus, (5th Farmer v. 921, Cir.1991), F.2d cert. denied, (1992) 117 L.Ed.2d 107 (internal omitted). citations Although Farmer held that a dispute involving the justiciable AG Governor was not court, reasoning its is relevant to appeal. Rise’s In Farmer, the district court dispute reached the merits of a governor between the AG, governor where the re moved the AG’s authority day- oversee the to-day operations of the Mississippi National Guard. On appeal, the court found the case nonjusticiable, describing the issue as:

little more than a personal direct attack on a order of the [governor]. While the courts occasionally willing have been to examine the lawfulness discharge, induction or deci- sions internal to the chain of require command great- much deference, er lest we soon find ourselves mired nigh- impossible task of judicially reviewing each order or di- rective issued lawful military authority. (internal

Id. omitted). at 924 citations Rise, Commonwealth Court dissent 784 A.2d at expresses my opinion succinctly: “[T]he National Guard is being prepared war, wage involving killing and dying. If serve, believes that [Rise] should not we should not interfere.”

Case Details

Case Name: Kise v. Department of Military

Court Name: Supreme Court of Pennsylvania

Date Published: Sep 25, 2003

Citation: 832 A.2d 987

Docket Number: 102 MAP 2002

Court Abbreviation: Pa.