Daniel Edward Henry, Etc., et al., Individually and Onbehalf of All Persons Similarly Situated, et al.,intervenors, Plaintiffs-appellees, v. Honorable John E. Warner, Individually and in His Capacityas Secretary of the Navy, et al., Defendants-appellants, 493 F.2d 1231 (9th Cir. 1974)

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US Court of Appeals for the Ninth Circuit - 493 F.2d 1231 (9th Cir. 1974) March 27, 1974

Appeal from the United States District Court for the District of California; David W. Williams, Judge, 357 F. Supp. 495.

Joel Levine, Asst. U.S. Atty. (argued), John E. Nordin, Asst. U.S. Atty. (argued), William D. Keller, U.S. Atty., Los Angeles, Cal., for defendants-appellants.

Nathan R. Zahm (argued), Sherman Oaks, Cal., A. L. Wirin, Fred Okrand, Laurence R. Sperber, Los Angeles, Cal., for plaintiffs-appellees.

Before ELY, HUFSTEDLER and TRASK, Circuit Judges.


Under the compulsion of this court's opinion in Daigle v. Warner (9th Cir. 1973), 490 F.2d 358, the orders and judgment are ordered vacated and the cause is remanded to the district court for reconsideration in the light of Daigle.1 


Judges Ely and Hufstedler disagree with the holding of Daigle in that both believe that, absent emergency circumstances, the due process clause requires the appointment of counsel or a counsel substitute in all summary courts martial, without the limitations placed upon that right by the majority of the Daigle panel. Judge Ely adds his thought that if, under Supreme Court authority, a civilian is entitled to the assistance of an attorney in a hearing wherein the risk is no more than minimal confinement, then one in the military service of his country, facing much graver consequences, should be entitled to the same consideration. Judge Trask adheres to his views expressed, concurring and dissenting, in Daigle. All members of this panel, however, follow Daigle because it is the law of this circuit