NMCCA's Wuterich opinion (Revised)

NMCCA's Wuterich opinion is a remarkably -- and, I believe, erroneously -- aggressive opinion.

SSgt Wuterich is the accused in the case. The military judge made a ruling suppressing a subpoena issued to CBS News. The government appealed to NMCCA, designating SSgt Wuterich as the appellee in the case. SSgt Wuterich moved to dismiss for lack of jurisdiction and opposed the reversal of the military judge's ruling. NMCCA refused to consider SSgt Wuterich's motion to dismiss or his position on the merits, ruling that he had no standing. NMCCA did consider a motion to dismiss filed by the non-party CBS News and considered CBS News's position on the merits. But, according to NMCCA, this was an appeal with but one party -- the United States.

NMCCA's position that SSgt Wuterich had no standing to move to dismiss was obviously wrong. This was an appeal in his court-martial case which had the AUTOMATIC effect of delaying the trial. See R.C.M. 908(b)(4). That automatic stay of proceedings directly affected SSgt Wuterich and the litigation of his court-martial case. If NMCCA had no jurisdiction to hear the appeal, he had a right to point that out and challenge NMCCA's jurisdiction to proceed.

R.C.M. 908(c) provides that "[t]he parties shall be represented before appellate courts in proceedings under this rule as provided in R.C.M. 1202." SSgt Wuterich was a party to the appeal, and was expressly recognized as such by the United States, which designated him as the appellee. And NMCCA itself styles its decision as United States of America v. Frank D. Wuterich, Staff Sergeant (E-6), U.S. Marine Corps. Why is SSgt Wuterich's name in the caption if he isn't a party to the case? Interestingly, NMCCA's own rule governing Article 62 appeals provides: "The appeal shall be docketed under the same title given to the action in the court-martial with the accused and the United States denominated as the sole parties therein." N-M. Ct. Crim. App. R. 4-6.c. Nevertheless, NMCCA pointedly signals that it refuses to even consider SSgt Wuterich's submissions to the court. NMCCA writes: "We have carefully considered the record of the proceedings, the Government’s brief on appeal, and non-party CBS’s reply brief." Id., slip op. at 2. Gee, what's conspicuously absent from that list?

But let's assume for the moment that SSgt Wuterich wasn't a party. If not, how did NMCCA have jurisdiction? This would no longer be an appeal in the case of United States v. Wutercih. Rather, this would essentially have been litigation in the case of United States v. CBS News. How does the UCMJ provide jurisdiction to a CCA to rule on a dispute between the United States and a private corporation that is not now, and has never been, a member of the U.S. military?

Beyond that, NMCCA's ruling is a reprise of its recent Article 62 jurisdictional overreach in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), which we discussed here. For more than 15 years, published NMCCA case law held that Article 62 was to be construed strictly and narrowly. See, e.g., United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991); United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994); United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001). But then NMCCA panels turned around in Dossey and now Wuterich and construed Article 62 broadly. Most appellate courts that sit in panels apply the law of the circuit doctrine (also know by various other names including the doctrine of interpanel accord) to hold that one panel of a court can't overturn the published precedent of the court; only the court sitting en banc may do so. Dossey and Wuterich both overturned more than a decade's worth of established NMCCA precedent. Whether one thinks the Dossey and Wuterich panels had the better reading of the law, that way lies chaos. Panels must exercise self-restraint by following their own court's published precedent. If the judges on the Wuterich panel thought that cases like Pearson, Flores-Galaraz, and Santiago improperly construed Article 62, then their correct response should have been to propose en banc consideration of Wuterich. If not (or if the court declined to hear the case en banc), under the doctrine of interpanel accord, the court's earlier case law remains binding precedent and the later outlier, like Dossey, is not to be followed.

But forget about strict construction of Article 62 -- under a plain meaning analysis of its terms, the military judge's ruling in this case wasn't appealable. Article 62 provides, in pertinent part, that the government may appeal "[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding." 10 U.S.C. § 862 (2000). Judge Meeks didn't exclude anything. He has not prevented the United States government from presenting any evidence to the court-martial. If the United States can reach an agreement with CBS to obtain the outtakes -- or if the United States obtains them some other way -- they may very well be admissible. And that is because Judge Meeks didn't "exclude" such evidence. If Congress meant to make discovery disputes subject to an Article 62 appeal, presumably Congress would have chosen a much more direct way of saying so. As NMCCA suggests, some Article III courts may have construed similar language to allow the government to appeal discovery disputes. But some Article III courts' aggressive interpretation of a different statute doesn't justify NMCCA's stretching of Article 62's language beyond its plain meaning.

Wuterich is an aggressive and disturbing ruling. CAAF should certainly grant review to determine whether a CCA can choose to simply ignore the accused in ruling on an Article 62 appeal and, if so, whether a CCA has any jurisdiction to consider a dispute that doesn't involve the accused.

It's ironic that it will take an exercise of CAAF's jurisdiction that some of us think exceeds its statutory basis, see United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), to rein in NMCCA from exceeding its Article 62 jurisdiction.