We’ve posted numerous times about instances in which a CCA issues what appears to be a published opinion, but that opinion doesn’t show up in the West’s Military Justice Reporter (or doesn’t show up in a timely fashion) for one reason or another. See, e.g., here, here, here, and here. The issue is a significant one, since published CCA opinions generally have binding effect throughout the relevant service while unpublished opinions don’t. Compare N-M. Ct. Crim. App. R. 18.1(a) (“Published opinions serve as precedent providing the rationale of the Court’s decision to the public, the parties, military practitioners, and judicial authorities.”) with N-M. Ct. Crim. App. R. 18.2 (“Unpublished Opinions–Declaration of No Precedential Value“); see also A.F. Ct Crim. App. R. 5.7(b) (“Unpublished and memorandum decisions have limited precedential value. Counsel shall not normally cite such opinions to the Court.”).
Now there’s another unpublished published decision. ACCA’s website lists three kinds of opinions: “Opinions of the Court,” “Memorandum Opinion,” and “Summary Disposition.” I believe that until recently, there was a 100% correlation between “Opinions of the Court” and published opinions; in other words, every opinion on ACCA’s website’s “Opinions of the Court” page was published and every published ACCA opinion was on the “Opinions of the Court” page.
Then came Bowersox. United States v. Bowersox, No. ARMY 20100580, is a 24 February 2012 ACCA opinion on the “Opinions of the Court” page of ACCA’s website. On its front page, it’s designated as an “OPINION OF THE COURT.” And it feels like a published opinion. It rejects a constitutional challenge to 18 U.S.C. § 1466A’s criminalization of obscene visual depictions of minors engaging in sexually explicit conduct — an issue that certainly seems worthy of publication. Yet on WESTLAW, the opinion is topped with this designation: “Not Reported in M.J.”
So is Bowersox a binding opinion in the Army or not? I would assume it is, since ACCA has designated it as an “Opinion of the Court.” And yet it isn’t published in West’s Military Justice Reporter and WESTLAW doesn’t reflect that it will be published by using a “__ M.J. __” designation, as is routine for to-be-published opinions.
Speaking of published opinions, so far this calendar year, ACCA has issued either 4 or 5 — depending on whether Bowersox counts. NMCCA has issued 7. AFCCA has issued 1, and the Coast Guard Court has issued none.
I’m a huge fan of NMCCA’s website, but its webmaster could make one small change to help out its users. If you look at the site’s opinions page for 2012, you’ll see a column for “Type” of opinion. There are four designated types: “Summary Disposition”; “Per Curiam”; “Authored”; and “Published.” But even though there’ve been 7 published opinions issued, only one — Tearman — is identified as “Published.” The other 6 published opinions — Walker, Simmons, Useche, Hunt, Warren, and Lonsford — are identified as “Authored,” a designation also used for many unpublished opinions. It would be helpful for the site’s users if all published opinions were designated as “Published” in the “Type” column.