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AGO 1950 No. 296 - July 06, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

MAY ENLISTED PERSONNEL BE INCLUDED ON NATIONAL GUARD COURTS-MARTIAL?

Enlisted personnel may be included on national guard courts-martial in the same manner and under the same conditions as provided for the regular army.

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                                                                     July 6, 1950

Lilliburn H. Stevens
Brigadier General, AGD, WNG
The Adjutant General
State of Washington
Camp Murray, Washington                                                                                                 Cite as:  AGO 49-51 No. 296

Dear Sir:

            This is in answer to your letter of April 10, 1950, requesting the opinion of this office on the following question:

            May enlisted men be included in the composition of General and Special Courts-Martial convened in state service?

            Our conclusion is as follows:

            Enlisted personnel may be included on national guard courts-martial in the same manner and under the same conditions as provided for the regular army.

                                                                     ANALYSIS

            You advise that pursuant to an opinion of the 41st Division Judge Advocate, special and general courts-martial of the Washington National Guard are including enlisted members of the courts in the same manner as prescribed for the regular army.

            Section 56, chapter 130, Laws of 1943 (8603-56 Rem. Supp. 1943), provides for two kinds of military tribunals: courts-martial, and courts of inquiry, and states:

             [[Orig. Op. Page 2]]

            "All such courts shall be composed of commissioned officers only.  * * *"

            Section 57 of the 1943 law provides, in part, as follows:

 

            "* * * They shall be respectively constituted like and have cognizance of the same subjects, and possess like powers, except as to punishments, as similar courts provided for by the laws and regulations of the United States, and proceedings of such courts shall follow the forms and modes of procedure prescribed for similar courts by the law and regulations of the United States Army.  * * *"

            The wording of section 57 is almost identical to that of 32 U.S.C. § 91, the federal law relating to national guard courts-martial.

            In 1948 Congress amended the federal court martial law to permit enlisted men to serve on general and special courts.  Thus, the above‑quoted portion of section 56 is now inconsistent with both section 57 of the state law and section 91 of the federal law.

            Power to regulate the militia, of which the national guard is one component, rests concurrently with the state and federal governments.  Article I, section 8 of the United States Constitution provides as follows:

            "To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."

            Our State Constitution, Article X, section 2, reads in part:

            "The legislature shall provide by law for organizing and disciplining the militia in such manner as it may deem expedient, not incompatible with the constitution and laws of the United States.  * * *"

             [[Orig. Op. Page 3]]

            Both from the text of the State and Federal Constitutions, and under the well-settled doctrine of federal supremacy, it is clear that federal law must prevail over conflicting state law in matters within the jurisdiction of Congress.

            Prescribing court-martial procedure comes within the scope of "disciplining the militia" and, as Congress has spoken, the state law must fall.

            Also, the "officers only" provision is now repugnant to the State Constitution, being incompatible with the Constitution and Laws of the United States.

            The "officers only" provision of section 56, being invalid, section 57 governs composition of courts-martial.  As federal law permits enlisted personnel to serve, the same is true for courts convened in state service.

Very truly yours,

SMITH TROY
Attorney General

GEORGE H. HOLT
Assistant Attorney General

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