Published Air Force Court decision rejects equal protection challenge to Air Force judges' lack of fixed terms

The Air Force Court yesterday released a published opinion not yet available on its web site. United States v. Paulk, __ M.J. ___, No. ACM 36952 (A.F. Ct. Crim. App. May 20, 2008).

The central issue in Paulk was an equal protection challenge arising from the disparity in judicial terms of office between the Army and Coast Guard on the one hand and the Air Force and Department of the Navy on the other.

Judge Soybel wrote for the majority while Senior Judge Francis concurred separately.

Paulk was an Air Force major convicted of various sex offenses and an attendant false official statement offense. Mercifully, none of the sex offenses involved the word "child."

Both at trial and on appeal, his counsel challenged the lack of fixed terms of office for Air Force judges. The Air Force Court favorably cited the Navy-Marine Corps Court's decision in United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005), in rejecting the claim.

The majority applied the rational basis test to the service disparity. First, the court assigned the burden of proof to require the appellant to negate any plausible reasonable basis for the service disparity. Paulk, No. ACM 36952, slip op. at 4. The Air Force Court then concluded that "the appellant has provided absolutely no reasoning or facts to counter the assumption that a rational basis exists for the discrepancy he has identified." Id.

The court then proceeded to identify a basis for the service disparity: service-specific personnel assignment needs. The court explained: "It is beyond question that the services have distinct missions, cultures and modes of operation. Each must be free to have an assignment system that meets their particularized needs. The concept of assignment flexibility is as valid a rationale for variations in assignment rules between the services as it is within a particular service and serves as a rational basis to justify the differences in the way each military service formulates its own rules for judicial assignments." Id. (citation omitted).

Senior Judge Francis wrote separately, indicating that he would give the claim even less scrutiny than rational basis review. He framed the proper inquiry as not whether servicemembers from the various services had a right to have their cases heard by judges with similar terms of office, but rather whether they had a right to have their cases heard by independent judges. He then reasoned:

Judicial independence is an all or nothing proposition. You either have it or you don't. If, as the United States Supreme Court has ruled, military judges are already guaranteed judicial independence, adding a new measure designed to secure that same right has no practical effect. It is simply redundant.

Id. at 5 (Francis, S.J., concurring).

He concluded: "[W]hether or not one or more military services direct fixed terms for their own judges is of no consequence. The appellant already has the 'equal protection' he purports to seek." Id.