Opinion Analysis: Applying stare decisis, CAAF rejects the Navy’s challenge to the authority of a CCA to order a sentence-only rehearing in United States v. Quick, No. 15-0347/MC
CAAF decided the certified case of United States v. Quick, 74 M.J. 332, No. 15-0347/MC (CAAFlog case page) (link to slip op.), on Tuesday, August 11, 2015. A divided court rejects a Government challenge to longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial. Holding that the Government failed to justify reversing this precedent, CAAF affirms the decision of the NMCCA that ordered a sentence-only rehearing in this case.
Chief Judge Erdmann writes for the court joined by Judge Ryan. Judge Baker writes separately, concurring in the result. Judge Stucky dissents, joined by Judge Ohlson.
The Judge Advocate General of the Navy certified the following issue to CAAF:
Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.
The Navy-Marine Corps CCA ordered a sentence-only rehearing in this case after it reversed the appellee’s conviction of viewing an indecent visual recording in violation of Article 120(c) because it found that the offense requires actually viewing the real-life private area of a person (and not merely viewing a recording as the appellee did). United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. 2014) (discussed here). The CCA ordered the rehearing because it found that it could not reassess the sentence for the other convictions because the penalty landscape was dramatically changed by the reversal of the indecent viewing conviction. The court’s order returned the case to the convening authority with the option to either refer the case to a new court-martial to adjudge another sentence or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii). But the Navy JAG certified the case to CAAF to challenge the CCA’s authority to issue such an order.
In yesterday’s decision CAAF rejects that challenge because:
In the more than six decades since the adoption of the UCMJ, this court has consistently interpreted Article 66(d), UCMJ, to authorize CCAs to order sentence-only rehearings. . . . The ability of CCAs to order sentence-only rehearings is an accepted and viable appellate remedy and is relied upon by all litigants in the military justice system.
Slip op. at 16.
The newly-installed Chief Judge’s opinion of the court reviews the court’s 1959 decision in United States v. Miller, 27 C.M.R. 370. (C.M.A. 1959), in which the court rejected a similar challenge from the Judge Advocate General of the Army. “The Miller court reviewed its precedent as to the authority of boards of review to order rehearings and noted that it had, without exception, upheld the power of the boards to order sentence-only rehearings.” Slip op. at 8. Chief Judge Erdmann considers whether that decision should be reversed:
For purposes of our analysis under the doctrine of stare decisis, therefore, we do not limit our review to whether Miller was wrongly decided, but rather we examine: whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations of servicemembers; and the risk of undermining public confidence in the law.
Slip op. at 9-10. For each factor, Chief Judge Erdmann concludes that Miller should not be reversed. Acknowledging that sentence-only rehearings may be difficult, he explains that difficulty does not equate to unworkability:
[A] process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.
Slip op. at 10. Acknowledging criticisms of the court’s reasoning in Miller, he finds that the reasoning is not so poor as to require reversal:
We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
Slip op. at 11. Rejecting the Congressional silence about sentence-only rehearings in the Military Justice Act of 1983 as a intervening event justifying reversal of Miller, Chief Judge Erdmann explains that “both the Senate and House Committee Reports on [the Act] recognized that the Courts of Military Review possessed the authority to order sentence rehearings at that time.” Slip op. at 10 n.7. Accordingly:
In view of the government’s position and congressional recognition that the CCAs possessed that authority at the time, there would be no reason for Congress to take legislative action. The Military Justice Act of 1983 does not constitute an intervening event for purposes of stare decisis.
Slip op. at 13. Considering the expectations of servicemembers, he observes that:
While it is difficult to quantify the expectations of servicemembers in regard to the authority of the CCAs to order sentence-only rehearings, in the over sixty years of this court’s consistent interpretation, Miller has become an established component of the military justice system.
Slip op. at 13. Finally, addressing public confidence, Chief Judge Erdmann explains that:
the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow.
Slip op. at 15.
These factors lead Chief Judge Erdmann to conclude that:
The government has failed to establish sufficient justification to depart from the doctrine of stare decisis. See Arizona v. Rumsy, 467 U.S. 203, 212 (1984) (any departure from the doctrine of stare decisis demands special justification).
Slip op. at 16.
Concurring with this analysis, Judge Baker writes separately to emphasize three points. First, he finds that “the legislative history of the UCMJ and the predecessor Articles of War clearly indicates that Congress empowered the courts of criminal appeals — previously the boards of review –- to order rehearings on sentence.” Con. op. at 1. Next, he notes that “the year is 2015, not 1958. In the nearly six decades that have elapsed, the President has consistently promulgated Rules for Courts-Martial authorizing and establishing procedures for sentence-only rehearings.” Con. op. at 4. Finally, he highlights how it is the Government’s position that would lead to absurd results by (for example) allowing a simple majority of a CCA to affirm a death sentence despite finding prejudicial error during the sentencing phase of the court-martial:
The CCA may conclude by majority vote that, notwithstanding constitutional error prejudicial to the appellant’s substantial rights under Article 59(a), UCMJ, during the sentencing phase of trial, the death penalty is appropriate.
Con. op. at 7. Judge Baker concludes his concurring opinion by noting that the Navy Appellate Government Division – the agency that brought this challenge to sentence-only rehearings – actually argued in favor of such hearings in 2006 in United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006):
As the Navy argued in 2006, to conclude otherwise “would lead to obviously absurd results.”
Con. op. at 10. Whatever significance that inconsistent position deserves, it is an uncomfortable reality for the Navy’s Appellate Government Division.
Dissenting from these views are Judges Stucky and Ohlson, who find that “the Court of Military Appeals’ decision in Miller contravened vertical stare decisis by analyzing de novo whether the UCMJ authorized a sentence rehearing, rather than applying the Supreme Court precedent from Jackson. Diss. op. at 3. Writing for the dissenters, Judge Stucky sees the majority’s decision as “continuing the original sin of Miller.” Diss. op. at 6. He asserts that:
The question is not whether intervening developments, reasonable expectations, and the like support overruling Miller vel non, but the intrinsic legitimacy of Miller in the first place. The fact that we as a court may have gotten away with ignoring Jackson v. Taylor for decades does not justify repeating the error when the question is squarely presented, as it is here.
Diss. op. at 4. The dissenters do not, however, address the possible absurd results of a reversal of Miller.
CAAF’s decision in Quick is more of a win for stability than a loss for the Government. The Government may still seek review by the Supreme Court, but Judge Baker’s concurring opinion notes that:
In at least four petitions for writ of certiorari, petitioners have explicitly challenged the sentence reassessment power of military appellate courts, and have noted the possibility of sentence rehearings under this Court’s case law and Article 66(d), UCMJ. See United States v. Thomas, 66 M.J. 382 (C.A.A.F. 2008), cert. denied, 555 U.S. 886 (2008); United States v. Hoskins, 39 M.J. 361 (C.M.A. 1994), cert. denied, 513 U.S. 809 (1994); United States v. Arguello, 30 M.J. 219 (C.M.A. 1990), cert. denied, 498 U.S. 846 (1990); United States v. Burns, 25 M.J. 218 (C.M.A. 1987), cert. denied, 484 U.S. 977 (1987).
Con. op. at 9 n.7. The Government’s other option is to seek legislative changes to the UCMJ (perhaps through the Military Justice Review Group). Yet it’s unclear if there is a unified Government position on whether the existence of sentence-only rehearings is a good policy. Nevertheless, at least for the time being, the CCAs may continue to order sentence-only rehearings.
• NMCCA opinion (74 M.J. 517)
• Blog post: Analysis of NMCCA opinion
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Amicus brief: Air Force Appellate Defense Division
• Amicus brief: Air Force Appellate Government Division
• Amicus brief: Goast Guard Appellate Government Division
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis