Friday, September 29, 2006

You say Dubay, I say DuBay, Let's call the whole thing off

CAAF’s Daily Journal for 26 September includes an interlocutory order in United States v. Luke, No. 05-0157/NA. The CAAF order itself refers to a “Dubay” hearing that was held in the case. The order also reproduces the Findings of Fact by the military judge who conducted that hearing. The military judge refers to a “DuBay” hearing. Which is right?

For any military appellate practitioner, the case reported at 17 C.M.A. 147, 37 C.M.R. 411 is as familiar as World-Wide Volkswagon is to whatever kinds of lawyers actually care about long-arm jurisdiction. But looking at 37 C.M.R. 411 doesn’t tell us the proper way to capitalize the case name because the only time the opinion refers to the eponymous Army private, it renders his name in all capital letters.

But exactly one week after issuing that decision, the Court of Military Appeals cited it. In United States v. Keller, the court began its opinion with the observation, “This is another general court-martial involving the question before us in United States v DuBay, 17 USCMA 147, 37 CMR 411.” United States v. Keller, 17 C.M.A. 165, 37 C.M.R. 429 (1967) (per curiam). That seems conclusive to me: the proper capitalization is DuBay.

The DuBay decision actually involved 14 different Army Board of Review cases, so we might easily have been spared this question had The Judge Advocate General of the Army listed Private Robert L. Jones or Private Gary E. Farmer before Private Robert L. DuBay on the certification order.

Finally, it’s interesting that the military judge conducting the DuBay hearing in Luke used the proper capitalization while CAAF rendered the name of its own earlier decision incorrectly.

--Dwight Sullivan


Marcus Fulton said...

What kind of hearing would we have to hold to determing this issue?

Jason Grover said...

I bet Loving doesn't care what you call it. Great job Teresa Norris!