CAAF’s home page has a link to this Federal Register notice of proposed CAAF rules changes.

The first rule change would reduce the size of supps from 14,000 words to 9,000 words — or from about 62 pages to about 41 pages.  As the comment to the proposed change notes, this would make the word limit the same as for Supreme Court cert petitions.  The comment also notes that “[i]n exceptional cases, counsel would still be able to request to exceed the limit by motion under Rule 30.”  While I fairly recently filed a 5-issue supp that exceeded 9,000 words — and I’m aware of a Navy-Marine Corps 6-issue supp that exceeded 9,000 words — I doubt there are many such cases.  And it’s difficult to argue that more space is needed in a supp than in a Supreme Court cert petition.

The second rule change would apply to cases that CAAF grants and then remands.  CAAF’s current practice appears to be to automatically grant review in such cases if they return to the court, thus opening the door to a cert petition.  CAAF appears to be contemplating narrowing the opening to potential Supreme Court review of such remand cases.  Under the new rule, the supp to CAAF would have to identify any issue on which the appellant would like to seek cert. 

The third rule change applies to Grostefon submissions.  The proposed rule would cap all Grostefon submissions — including counsel’s treatment of the issues, material submitted by the client, and Grostefon matters submitted within the 30-day window following the supp’s filing — at 15 pages.  The rule would also prescribe a format for counsel to list the Grostefon issues raised by the client. 

[In case any of our trial-level readers aren’t familiar with Grostefon, it’s a case that requires appellate defense counsel to raise any issue the client would like raised, even if the issue is frivolous in counsel’s view.  See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Under current practice, clients sometimes have their counsel submit literally hundreds of pages of Grostefon material, though usually Grostefon submissions are fairly compact.]

2 Responses to “CAAF publishes three proposed rule changes”

  1. Anonymous says:

    Actually, I believe the proposed grant and remand policy will better conform with CAAF precedent. See US v. Wynn, 26 MJ 405 (CMA 1988).

  2. Gene Fidell says:

    This proposed change merits very careful study. Query, for example, whether the Court of Appeals should defer action on this until the fate of the legislative proposal to expand the certiorari jurisdiction is known. Also, is it implicit in the proposed change that only “issues” rather than “cases” that are granted are eligible for certiorari? Does the proposal in effect embrace the Solicitor General’s incorrect reading of the current certiorari provision? I anticipate that NIMJ will comment, and I encourage others to do so as well.