Opinion Analysis: CAAF lacks jurisdiction to review an alleged victim’s petition under Article 6b in EV v. United States & Martinez, No. 16-0398/MC
CAAF decided the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (CAAFlog case page) (link to slip op.), on Monday, June 21, 2016. In a short opinion the court finds no jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. As a result, CAAF dismisses the petition.
Judge Stucky writes for a unanimous court.
The case is a writ-appeal by an alleged victim (EV) who sought extraordinary relief from the Navy-Marine Corps CCA to reverse a military judge’s order for disclosure of portions of her mental health records. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), however the military judge found that disclosure was required to protect the constitutional rights of the accused (Sergeant Martinez) and also that the crime/fraud exception in Mil. R. Evid. 513(d)(5) applies to the facts of this case. That exception removes the privilege against disclosure for any communications that “clearly contemplate the future commission of a fraud or crime.”
EV filed her petition pursuant to the recently-enacted provision in Article 6b(e), which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The NMCCA denied the petition, concluding that EV did not have a clear and indisputable right to reversal of the judge’s order. EV appealed that denial to CAAF, raising three issues that challenged the military judge’s ruling and the NMCCA’s denial of relief. CAAF then specified a fourth issue questioning whether the court has jurisdiction to consider this case:
I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.
II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.
III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.
IV. (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.
CAAF finds the jurisdictional question dispositive, dismissing the petition for lack of jurisdiction because Article 6b:
is quite straightforward. It is a clear and unambiguous grant of limited jurisdiction to the Courts of Criminal Appeals to consider petitions by alleged victims for mandamus as set out therein. There is no mention whatsoever of this Court. Congress having legislated in this area and bestowed certain third-party rights on alleged victims, we must be guided by the choices Congress has made. Congress certainly could have provided for further judicial review in this novel situation. It did not.
Slip op. at 5. In so doing, Judge Stucky distinguishes this case from the court’s split decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), where the court’s jurisdiction was triggered by certification of the case by the Judge Advocate General of the Air Force. Slip op. at 5. Yet it’s debatable that CAAF would even reach the merits had this case been certified, as Judge Stucky explains that:
LRM was decided before Congress had legislated in this area, either through the enactment of the substantive victims’ rights provisions of Article 6b or through the later enactment of the remedial provision at issue here. The LRM decision was rendered without the benefit of Congress’s direction in the matter. Congress having now legislated in the area, we are bound by the choices it made.
Slip op. at 5 (emphasis added).
CAAF’s resolution of this case leaves for another day the questions of whether a patient’s rule-based privilege to maintain the privacy of communications with a psychotherapist must yield to an accused’s constitutional rights (such as the Sixth Amendment right to compulsory process), and whether the crime/fraud exception to that rule-based privilege applies in a case where the accused asserts that the communications were part of a fabricated allegation designed to fraudulently obtain a material gain (in this case a humanitarian transfer from Okinawa, Japan, to California for EV’s active duty husband).
• NMCCA’s order denying writ petition
• Blog post: A writ-appeal by an apparent alleged victim
• Blog post: CAAF grants review of a writ-appeal by an alleged victim
• EV’s brief (writ-appeal petition)
• EV’s brief (specified issue)
• Government’s brief
• Martinez’s brief
• Martinez’s brief (specified issue)
• EV’s reply brief
• Amicus brief in support of EV (Protect Our Defenders)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis