Today’s oral argument in United States v. Hathorne (audio available here), gives rise to some word sleuthing.

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?

Maj Kerr:  No, Your Honor.

Judge Effron:  Did you find it in any dictionary?

Maj Kerr:  No, Your Honor.

We now know where the word comes from: Yale Law School professor Eugene R. Fidell.  The earliest use I found was in Gene’s Guide to the Rules of Practice and Procedure of the United States Court of Military Appeals as published by the Military Law Review in 1991.  131 Mil. L. Rev. 169, 185, 187, 191, 192, 259.  It’s likely that Professor Fidell used the word “subjurisdictional” in earlier versions of his CMA Rules Guide as well.  The earliest version of that Guide of which I’m aware is the 1978 version published by PLEI.  Further sleuthing is in order.

Gene spelled the word “subjurisdictional.”  Since it’s his word, I’ll treat that as the official spelling.  In its brief on the specified issue in Hathorne, the Government inserted a “[sic]” after quoting the word “subjurisdictional” from the Appellant’s brief, preferring “sub-jurisdictional” instead.  Government Brief at 3 n.1.

Personally, I’m a fan of the word, regardless of when it was originally coined.  It’s unwieldy to refer to “cases in which the accused receives neither a punitive discharge nor a year or more of confinement.”  “Subjurisdictional” conveys the same meaning far more succinctly.

14 Responses to “A question of etymology”

  1. Mike "No Man" Navarre says:

    Maybe SJ Effron just didn’t like WHERE the word was used frequently. Google the word, I’ll bet a CAAFlog t-shirt I know where the first handful of hits come from.

  2. Zachary Spilman says:

    It’s a trial level word.

  3. Bridget Wilson says:

    Close, No Man, my Google brought up the first 4 as CAAFlog. But there were a number of other references with the word spell both subjurisdictional and sub-jurisdictional.

  4. Michael Korte says:

    From “A Few Good Men…”
    Capt. Ross: Corporal Barnes, I hold here the Marine Outline for Recruit Training. You’re familiar with
    this book?
    Cpl. Barnes: Yes, sir.
    Capt. Ross: Have you read it?
    Cpl. Barnes: Yes, sir.
    Capt. Ross: Good. Would you turn to the chapter that deals with code reds, please?
    Cpl. Barnes: Sir?
    Capt. Ross: Just flip to the page of the book that discusses code reds.
    Cpl. Barnes: Well, well, you see, sir code red is a term that we use, I mean, just down at Gitmo, I don’t know if it’s actually…
    Capt. Ross: Ah, we’re in luck then. Standard Operating Procedures, Rifle Security Company, Guantanamo Bay Cuba. Now I assume we’ll find the term code red and its definition in that book. Am I correct?
    Cpl. Barnes: No sir.
    Capt. Ross: No? Corporal Barnes, I’m a Marine. Is there no book. No manual or pamphlet, no set of orders or regulations that lets me know that, as a Marine, one of my duties is to perform code reds?
    Cpl. Barnes: No sir. No book, sir.
    Capt. Ross: No further questions.
    [as Ross walks back to his table Kaffee takes the book out of his hand]
    Kaffee: Corporal, would you turn to the page in this book that says where the mess hall is, please.
    Cpl. Barnes: Well, Lt. Kaffee, that’s not in the book, sir.
    Kaffee: You mean to say in all your time at Gitmo you’ve never had a meal?
    Cpl. Barnes: No, sir. Three squares a day, sir.
    Kaffee: I don’t understand. How did you know where the mess hall was if it’s not in this book?
    Cpl. Barnes: Well, I guess I just followed the crowd at chow time, sir.
    Kaffee: No more questions.

  5. Peanut Gallery says:

    With all this discussion about lexicon, I suppose it is appropriate that yesterday was the Great Bard’s birthday.

  6. stewie says:

    I thought it was jurisdiction on a submarine.

  7. Gene Fidell says:

    No, Stewie, on a sub-marine.

  8. stewie says:

    Well played…or well-played?

  9. Keith Hodges says:

    There is a CAAF-log t-shirt?

  10. Cap'n Crunch says:

    So, I was thinking about this issue broadly… when the appeal was filed, Article 62 applied:  In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specifications or which excludes evidence that is substantial proof of a fact material in the proceeding. 

    Without question, as I see it, the CCA reviewed the case.  I therefore believe Article 67 (a)(3) applies, which states that CAAF has jurisdiction over “all cases reviewed by a Court of Military Review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted review.”

    The gatekeeping function of jurisdiction for sentences is at the CCA.  Here, the CCA had jurisdiction not because of the sentence, but rather because the government appealed an order terminated the proceedings.  In my view, CAAF had jurisdiction because the CCA reviewed the case.

    I do not see where Article 67(C) provides any sort of limitation on the review of the case: In any case reviewed by it, the Court of Military Appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Military Review.

    They are reviewing the approved findings and sentence.  Again, there is no limitation on review based on imposed sentence in Article 67.  Following the plain language of the statutes, I believe CAAF has jurisdiction to review any Article 62 case, irregardless of stays and irregardless of sentence imposed, so long as the CCA reviews the case — which happens anytime an Article 62 appeal is concluded and decided.    

  11. Christopher Mathews says:

    Good to know that CAAF is focused on the real issues in the case.

  12. No Man says:

    Ooooh, burn, JMTG!!!

  13. Ama Goste says:

    While we’re mincing words regarding word choice–is the 4-syllable word the tasty breakfast character used several times in the last paragraph of his post really a word?  I must admit I was surprised at the authoritative answer from Wikipedia:

  14. Cap'n Crunch says:

    To JMTG’s point — back when I was much younger and not a grey hair to be found, we used to put words in briefs that were not found in the english language.  We had a supervisor who simply signed, and did not read, the briefs.  He goes to oral argument and got a similar exchange as Maj Kerr.  The difference was, he hadn’t caught on — but the court had.  Funny young lawyer prank.  Not so funny when we all got back to the office.