Friday, October 20, 2006

Seeking an even McKeel

In a recent post, I was called a geek by a self-confessed dork, a.k.a., the Columbus Clipper. At the risk of being elevated to "dweeb" status, I think the on-going machinations over the McKeel cert petition are fascinating. Here is a link to a letter that the Solicitor General's office sent to Gene Fidell in response to his argument that once CAAF grants review of a case, all issues in that case -- granted or not -- are fair game at the Supremes:

I am enjoying this rare high-level legal discussion of military justice appeals. I mean, if all of the areas of law got together and had a party at MCCXXIII, the bouncer wouldn't let military justice past the velvet rope. And yet here's the S.G.'s office paying attention to little ol' us. I do declare.

The Supreme Court's front doors weigh 13 tons. (I'm not kidding -- here's a web page devoted to the Supreme Court's front doors: What next, their own blog?) Trying to pry open 13-ton bronze doors is a fitting metaphor for trying to get a cert grant. In the real world, it matters little whether a military appellant can take his case to the Supreme Court because the result will be the same as for an appellant who can't. Perhaps the better reform would be to open CAAF's comparatively inviting doorway a little further. How about a system in which CAAF will review any assignment of error actually raised? (I wouldn't make CAAF review merits submission cases on the merits, though I would still allow it to specify issues if it chose to do so.) Of course, this would have the concomitant effect of allowing an unsuccessful appellant to file a cert petition in all of these cases. But the more important effect would be a civilian court's resolution of the merits of any issue that an appellate defense counsel thinks is important enough to raise.

--Dwight Sullivan


Marcus Fulton said...

First of all, I was only in Columbus, Ohio for the five and a half years it took me to get through college. And as an alumnus of Ohio State University--the capital of the college football universe--why should I be tagged with the moniker "Columbus Clipper," a reference to a minor league team held in derision even in Columbus?
As for the S.G.'s letter, I agree that it is strange that the Supreme Court's jurisdiction to hear issues CAAF affirmatively decided not to hear extends only to those cases in which CAAF decided to take another unrelated issue. But that's by no means the strangest part of 67a. If Congress were to limit jurisdiction to only issues addressed by CAAF, you would have to come up with some definition of “issue,” or risk preventing the Supreme Court from tweaking a QP that needs fixed. And are we really worried about the Supreme Court clogging their docket with torrent of UMC or defective SJAR cases?

Marcus Fulton said...

What if CAAF granted review of a case on a merits petition an summarily affirmed? What's the Supreme Court's jurisdiction then?

gene fidell said...

Let me offer a variant on Marcus's hypothetical: what if a case--without or without assigned issues--is granted on a specified issue (i.e., one the Court itself identifies)?

This entire arrangement is indefensible and it's time to get it fixed. I don't see why our fighting men and women, who put their lives on the line for us every day, don't have precisely the same access to the highest court in the land as our fellow citizens, resident aliens, and nonresident aliens (exchange students? tourists? illegal immigrants?) who are convicted in the federal district courts or state courts.

It was wrong to make CMA a gatekeeper in the first place, and its wrong for CAAF to have that function today.

Marcus Fulton said...

Maybe the word in 67a that holds the key is the word "Decisions." The article states that CAAF's
"[d]ecisions" are subject to review. Is a decision an issue and a statement of a rationale leading to a conclusion, or is it the simple determination to affirm or set aside? The sixth edition of Blacks (the most recent edition on my shelf) says that a decision "is not necessarily synonymous with 'opinion.' A decision of the court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the judge."
If this is what "decision" means in 67a, then it leads one to think that the Supreme Court has jurisdiction to take the case, not just an issue. But if "decision means "judgment," what does that mean? Again, recourse to Blacks would indicate that "judgment" is refers to a final disposition of a case, rather than to an opinion or holding.
I imaging most people reading this will share my skepticism of a blunt (and perhaps overly simplistic) dictionary approach to this kind of question; but words have to mean something. Limitations aside, though, I think the results of this kind of scrutiny are consistent with the way the statute seems designed to work, common sense, and the implimenting portions of the MCM (RCM 1205), which indicates that certain "cases" are subject to review, rather than granted or certified issues.

No Man said...
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gene fidell said...
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