A key jurisprudential issue this CAAF term has been the extent to which a judge in dissent in one opinion should subsequently apply the majority opinion under the doctrine of stare decisis. The CAAF judges have taken varying approaches to this issue; sometimes individual judges have pursued inconsistent approaches. And the issue was barely addressed overtly — popping up once in a partial dissent to a summary disposition. Given the importance of the question to the outcome of cases this term, it merits plenary consideration by CAAF in some future case in which it matters once again.
This term began with CAAF resolving trailers to 2 of last term’s divided decisions — United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), which was announced on the penultimate day of last term, and United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), which was announced on 8 August 2011. Upon the start of this term, 8 cases in which CAAF had already granted review on Sweeney-type issues were pending on CAAF’s docket, as was one additional supp raising a Sweeney-type issue. How should a judge who dissented in Sweeney apply Sweeney in such instances?
Judge Ryan, joined by Judge Erdmann, demonstrated one approach in the wake of their dissent in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), where they opined that CAAF didn’t have jurisdiction to review a CCA’s decision on an Article 62 appeal. In the next Article 62 appeal that came before CAAF decided, Judge Ryan explained:
For the reasons stated in my dissent in United States v. Lopez de Victoria, 66 M.J. at 74 (C.A.A.F.2008) (Ryan, J., dissenting) I would hold that we have no jurisdiction over this case in its present procedural posture. However, the Court has found that we have jurisdiction, and I agree with the opinion of the Court on the merits. Consequently, I concur in the judgment. See, e.g., McKelvey v. Turnage, 792 F.2d 194, 210 (D.C.Cir.1986) (Scalia, J., concurring in part and dissenting in part) (participating on the merits after finding, contrary to the majority, that no jurisdiction existed). I do not intend, going forward, to revisit my dissent on the jurisdictional point in every appeal of a Court of Criminal Appeals decision stemming from an Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), appeal: a majority of the Court has held that we have jurisdiction.
United States v. Michael, 66 M.J. 78, 81 -82 (C.A.A.F. 2008) (Ryan, J., joined by Erdmann, J., concurring in part and in the result).
Taking a different approach, then-Judge Baker dissented from all of the Sweeney trailer summary dispositions this term. Judge Stucky dissented to some, but not all, explaining his rationale for concurring in the result in 3 Sweeney trailers and simply joining the result without explanation in one. United States v. Sanders, 70 M.J. 353 (C.A.A.F. 2011) (summary disposition).
Then came the Fosler trailers. Chief Judge Baker would ultimately dissent from 78 remands on Fosler grounds. But his approach wasn’t consistent. In 4 plenary review cases — Schumacher, Goodman, Winckelmann, and Morrissette — Chief Judge Baker joined in an opinion that remanded on Fosler grounds without noting a dissent. It would have been especially odd for Chief Judge Baker to have dissented from the Fosler remand in Morrissette, since he authored the opinion that ordered that result. United States v. Morrissette, 70 M.J. 431 (C.A.A.F. 2012). Yet both before and after joining those opinions, Chief Judge Baker would dissent from summary dispositions remanding on Fosler grounds. And after these decisions, he declined to join the majority opinion, concurring in the result instead, in Ballan, issued on 1 March 2012.
Chief Judge Baker’s most interesting discussion of his application of Fosler came in the summary affirmance of AFCCA’s denial of an Article 62 appeal in Brissette. In that case, the accused had been found guilty of an Article 134 offense and had begun serving his sentence when Fosler was published. At a post-trial Article 39(a) session, the military judge ordered the findings and sentence set aside and the charges dismissed. Yet Brissette remained confined while the government pursued an Article 62 appeal, which it lost. Even after AFCCA upheld the military judge’s ruling, Air Force officials refused to order him released from confinement. Brissette’s counsel filed a habeas petition at CAAF, which, without dissent, ordered Brissette’s immediate release. In re Brissette, 71 M.J. 91 (C.A.A.F. 2012) (summary disposition). The Judge Advocate General of the Air Force then certified the case to CAAF, which summarily affirmed AFCCA. United States v. Brissette, __ M.J. __, No. 12-6–3/AF (C.A.A.F. March 19, 2012) (summary disposition). Chief Judge Baker dissented and explained ihs position:
A summary affirmance is consistent with the majority’s position in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and in light of Fosler, correctly resulted in the granting of Appellee’s petition for extraordinary relief on January 3, 2012. However, because I adhere to my position in Fosler, I concur in denying the motion to dismiss, but dissent with regard to the Fosler issues for the reasons stated in my dissenting opinion in Fosler. 70 M.J. 225, 240-47 (C.A.A.F. 2011).
But even after offering this explanation, Chief Judge Baker followed an inconsistent course, concurring in the result in Watson, 71 M.J. 54 — issued the day after his Brissette dissent — to note his continued adherence to his Fosler and Ballan dissents while concurring in the result in Stanley two days later without even discussing Fosler. United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).
Then came Humphries, in which one of the members of the Fosler majority — Judge Stucky — agreed with the majority that the adultery specification at issue failed to state an offense, but declined to find plain error due to a lack of showing of prejudice by the defense. Chief Judge Baker continued to adhere to his position in his Fosler and Ballan dissents — positions that had already been rejected by a majority of the court. Judge Ryan and Judge Erdmann, who were in the Fosler majority, voted to reverse. The case came down to Senior Judge Effron’s vote. And despite his Fosler dissent and his dissents from the 51 Fosler trailer summary dispositions, he voted to apply Fosler to overturn the adultery conviction. Senior Judge Effron didn’t explain his vote — he simply joined the Humphries majority — but stare decisis seems like the most likely explanation. Regardless of whether he agrees or disagrees with Fosler, it has established the law for the military justice system and Senior Judge Effron applied that law.
Once Humphries was decided, CAAF was confronted with 43 trailers whose outcome was dependent on Humphries. For purposes of those trailers, CAAF was a four-judge court. See In re September 2011 Term of the Court, 70 M.J. 367 (C.A.A.F. 2011). It doesn’t appear that Senior Judge Effron participated in those trailers’ resolution. So unless at least one of the two dissenting judges supported applying Humphries to those cases — presumably in an exercise of the stare decisis doctrine — the court would be at an impasse. In each of those 43 cases, Chief Judge Baker dissented. But Judge Stucky did not, apparently providing the necessary third vote to apply Humphries to dictate those cases’ outcome. So once again, we see a judge who was in dissent in the original opinion supporting its application to subsequent cases.
Given the critical importance of the application of stare decisis to this term’s cases, the inconsistent approaches that were demonstrated throughout the term, and the apparent doctrinal differences among the judges, this seems like an appropriate issue for CAAF to explore in the course of a plenary decision. Then CAAF could apply stare decisis to its interpretation of stare decisis.