End of year lists are all about trends. Spotting them and commenting on them. Sometimes the wind blows to and sometimes the wind blows fro. This year, the wind of jurisdiction blew fro. That’s our Number Five story, the winds of jurisdiction.

Judge Stucky authored two decisions which highlight the trend of a narrow reading of military appellate jurisdiction.

First, in United States v. Arness, 74 M.J. 441 (2015) (CAAFlog case page), CAAF looks at a writ-appeal of an extraordinary writ in the nature of a writ of error coram nobis (which is a writ of error coram vobis, yes? My favorite writ trivia item: an appeal of a coram nobis is a coram vobis. I think the Honorable Marcus Fulton may have taught me that. Any appellate geeks out there, feel free to educate me if I’m confused, as is often the case. And if I am wrong, I also give credit, or blame, to the Klipper).

This writ involved an Air Force Lieutenant Colonel (I have a soft spot of O-5 misfits) convicted by general court-martial of UA, false official statements, and conduct unbecoming. His approved sentence was sub-jurisdictional under Article 66, UCMJ (confinement for eleven months and a reprimand).

Because the case didn’t qualify for review by AFCCA under Article 66, it was reviewed by TJAG under Article 69(a). TJAG found no errors and did not send the case to AFCCA under Article 69(d). Appellant asked TJAG to reconsider, raising legal errors (for the first time apparently?). TJAG denied reconsideration because the case was final under Article 76. (By the way, I get that this blog is called CAAFlog (Col Sullivan’s choice as I recall) and therefore is all about appellate stuff, but this article 66, 69, and 76 stuff is like really appellatey).

Appellant then filed his writ of error coram nobis at AFCCA. AFCCA decided it had jurisdiction under the All Writs Act but denied relief. Appellant appealed (coram vobis, remember?) to CAAF.

The majority’s opinion starts out with the tried but true mantra that CCAs are creatures of statute and are of limited jurisdiction. After reviewing Article 69(d), CAAF concludes because TJAG did not send the case to AFCCA and no other jurisdictional hook existed, there was no jurisdiction. In acknowledging that the wind sometimes has blow to, CAAF explicitly overrules pre-Clinton v. Goldsmith, 526 U.S. 529 (1999) cases that could be viewed as providing more expansive jurisdictional views.

The case of United States v. LaBella is another leaf tossing in the wind that lets us see the wind continues to blow fro. 75 M.J. 52 (2015) (CAAFlog case page). Decided less than three weeks ago, LaBella involves an out-of-time petition for reconsideration at the CCA (it’s AFCCA again). LaBella, a child pornography case, had already gone up to CAAF once, where CAAF granted review and remanded to AFCCA to review in light of United States v. Barberi, 71 M.J. 127 (2012). 72 M.J. 471 (2013) (order granting review). Upon remand, AFCCA reaffirmed findings and sentence.

Then Appellant didn’t petition CAAF within 60 days. Appellant was reassigned original appellate counsel who moved for out-of-time reconsideration by AFCCA.

AFCCA granted the motion to file reconsideration out-of-time but denied reconsideration. Appellant petitioned CAAF.

Judge Stucky again begins the discussion noting the limited jurisdiction of federal courts. CAAF holds simply that the case had become final under Article 76 and therefore AFCCA lacked jurisdiction to reconsider anything and CAAF lacks jurisdiction as well.

There was no discussion of coram nobis or coram vobis at this point.

While the trend is clear and that alone makes it a significant marker post for the year, it was former Chief Judge Baker’s concurrence in Arness that captured my attention. With some of the best lines of the term, in an opinion published just shy of three weeks after his appointment ended, CJ Baker starts his concurrence with the wonderful, “There are usually two sides to every story, or case.”

Noting the shifting winds, he describes CAAF has having gone “too far” in Goldsmith v. Clinton and having been reversed by the Supreme Court in Clinton v. Goldsmith. CJ Baker then suggests CAAF has overreacted to Clinton v. Goldsmith. (nope, that’s not right, he doesn’t suggest it, he just comes out and says it: “this Court has swung too far in the other direction and neither asserted nor defended its jurisdiction or the jurisdiction of military appeals courts to hear appeals.”)

Then, reminding me of the way juniors are suppose to correct seniors as taught at Officer Indoctrination School in Newport, Rhode Island in between lobster at the Officer’s Club and learning how to march around goose-covered square fields (yes, naval judge advocate training in 1998 in Newport was no TBS), CJ Baker throws out the classic, “I invite your attention to.” But his is the ultimate version:

“Therefore, if the President and the Congress believe that judicial appellate review is important, if not essential, to a uniform and credible military justice system, or that civilian judicial oversight upholds an important constitutional principle, I would urge the Congress and the President to consider where and how to clarify and express judicial appellate jurisdiction over courts-martial. Likewise, I would urge the President and the Congress to clarify the appellate jurisdiction of the courts of criminal appeals (CCAs) with respect to Article 69, UCMJ, and to do so conscious of how this article has been applied, or more to the point, not applied.”

Wow.

CJ Baker then goes into a technical reading of Article 69, considering whether it presents a conjunction requirement or a list. Years ago, when he sat on the far left of the bench, CJ Baker always seemed to ask the “list” question, “give me the top three reasons . . .” His proposition that Article 69 could be a list of alternatives rests on the meaning of “and.” This was a fun concurrence.

CJ Baker did not end with statutory interruption. He invoked policy and legislative history. He notes, “It is hard to imagine that Congress intended to create a system where the government could abuse a right or skirt the law and then avoid judicial review by having the convening authority ensure the punishment was sub-jurisdictional, preventing the CCA from rectifying the error.” Ultimately he concurs because “where Article I courts are concerned, the tie goes to the narrow view of jurisdiction.”

But CJ Baker has one last point to make. He refreshingly acknowledges that TJAGs, at a minimum, are “aligned with” the government. They are not independent yet they control the review of sub-jurisdictional cases. So he ends with a last invitation for the President and Congress to consider anew Article 69.

The winds are clearly blowing fro and the narrower jurisdictional argument is most likely to prevail for the time being, at least going into 2016. And CJ Baker, look me up, I will happily buy you a round or two of drinks for the chance to trade stories. This concurrence was a gem.

One Response to “Top Ten Military Justice Stories of 2015 – #5: The trend towards narrower readings of jurisdiction”

  1. k fischer says:

    Good article, Jason.  Jurisdictional issues are usually a snoozefest…..yaaaaawwwwwwnnn……but you actually made this appellate jurisdiction post halfway palatable.  And that concurrence was spot on.