Saturday, August 30, 2008

Acting SG sides with Code 46 and GAD against JAJG

There is considerable discussion below about the extent to which the Acting SG's cert petition in Denedo was coordinated among the services. Anonymous posters claiming to be involved in the process (we cant' really know, can we?) tell us that there was considerable coordination. (I wish they would also tell us why the Supremes have jurisdiction, but they haven't done that yet.)

Here's what I find interesting. As we discussed some time ago, the Navy-Marine Corps Appellate Government Division (Code 46) and the Army Government Appellate Division (GAD) took the position in Lopez de Victoria and Michael that CAAF had no jurisdiction to review a CCA's ruling on an Article 62 appeal while the Air Force Government Trial & Appellate Counsel Division (JAJG) took the position in Miller and Webb that CAAF did have such jurisdiction. [DISCLAIMER: I was an appellate defense counsel in Miller.] As explained by the appellees in both Miller (before I was one of his counsel) and Webb, taking such an inconsistent position on behalf of the United States actually appears to have been impermissible; differences in litigation positions between various departments and agencies are supposed to be resolved internally rather than flaunted for all to see. Interestingly, in the Denedo cert petition, the Acting SG adopts the position of Code 46 and GAD while rejecting the position of JAJG.

In the Denedo cert petition, the Acting SG writes: "The decision below represents the latest iteration of [CAAF's] efforts to expand its role beyond its congressionally prescribed jurisdiction to 'review * * * specified sentences imposed by courts-martial.' Goldsmith, 526 U.S. at 534." The very first example the cert petition offers of such extra-statutory expansion is United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).
Posted by Dwight Sullivan at 11:08 AM

11 comments:

Anonymous said...

I question the need for the SG to comment about prior cases that CAAF held jurisdiction contrary to the government's position. First, the SC is posed with a limited question of jurisdiction on collateral review under Art 67, UCMJ which involves different jurisdictional issues then lopez or even loving. Second, the SG had an opportunity to file a petition in those cases and chose not to.

Sat Aug 30, 12:26:00 PM EDT
Dwight Sullivan said...

It seems fair game to me, because it was in a section about why the case is certworthy. Regardless of the merits of any individual item in the list, if a court consistently exceeds its statutory jurisdiction, then it seems to me it's more worthy of the Supremes' time to clip that court's wings than if the court does so in only one isolated incident.

Sat Aug 30, 12:39:00 PM EDT
John O'Connor said...

What CAAFlog said.

Sat Aug 30, 01:11:00 PM EDT
Anonymous said...

Anyone else see the NM GAD's support for the cert petition in Denedo ironic in light of the recent US v. Harty, Misc. No. 08-8024/NA writ-appeal petition. So expand writ petitions for government interlocutory appeals (contrary to SC guidance to the contrary); however, adhere to a strict interpretation of writ appeal jurisprudence for an accused? Nothing worse then government hypocrisy veiled in righteousness: “The true hypocrite is the one who ceases to perceive his deception, the one who lies with sincerity.”

Sat Aug 30, 03:24:00 PM EDT
Anonymous said...

Again with the MJ issue...someone, anyone tell me what do you do when a MJ refuses to follow NMCCA's directives? And when such a refusal is then approved by the same court that 2 months prior required something totally opposite? And, the government is not being hypocritical...if CAAF says that is the state of the law the government is fully within their rights to exploit CAAF's mistake.

Sat Aug 30, 03:30:00 PM EDT
Anonymous said...

CAAFlog, why does the importance of the cert petition depend on how many times the lower court has been wrong on related matters under SC Rule 10.1? Doesn't the issue itself need to be of significant importance and not simply "episodic?" Rice v. Sioux City Cemetery, 349 U.S. 70, 74 (1955).

Sat Aug 30, 04:08:00 PM EDT
Anonymous said...

Anon 03:24:00,

The Government must know which rule to apply. Does a ruling by email start the 72 hour clock for an Article 62 appeal or does a ruling made during an Article 39a session start the 72 hour clock. Appellate Government is right to raise the issue to CAAF. NMCCA will not clarify the rule. Uncertainty in the law germane to procedural rules should be clarified whenever possible.

I agree that there is nothing hypocritical with Appellate Government's decision to seek clarification from the CAAF regarding something that NMCCA refuses to clarify.

Sat Aug 30, 04:23:00 PM EDT
Anonymous said...

CAAFlog I apologize about getting off-topic; however, NM GAD may want to be able to answer this: How does the original writ question to NMCCA in Harty have the "effect of dismissal" as enunciated in Will v. United States, 389 U.S. 90, 98 (1967)? If it doesn't, how does the CAAF have jurisdiction under Art 67 to review something the NMCCA couldn't under Art 66? And so, back to my original question, broad government writ petition jurisdiction in one case, but narrow prescribed for the accused?

Sat Aug 30, 04:53:00 PM EDT
Anonymous said...

It's a Writ and the state of the law is now, as CAAF interprets it that a Writ in such a case is appropriate. The government may have felt it not the case in the past but CAAF has clearly said thy will entertain such writs so why not exploit CAAF's mistake?

Sat Aug 30, 11:13:00 PM EDT
Dwight Sullivan said...

1608 Anon,

I think you're working from an obsolete copy of the Supremes' rules. (I'm not being snarky -- the copy of the Rules you're working from seems to precede the 2005 version, which is no longer in effect either.)

Rule 10 emphatically does not provide either sufficient or necessary conditions for obtaining a cert grant. Rule 10 itself makes that point by noting that the factors it lists are not controlling and do not "fully measur[e] the Court's discretion."

The Supremes can -- and often do -- turn down cert petitions that fall within one of the criteria set out in Rule 10, no doubt because the case isn't deemed sufficiently important. A cert petition seeking to constrain a lower court to its proper jurisdiction would seem more important if the lower court often exceeds its jurisdiction than if it does so only in one isolated incident, just as I might discipline my daughter differently if she grabbed a forbidden pre-dinner sweet on one occasion than if she did so habitually.

Sat Aug 30, 11:46:00 PM EDT
Anonymous said...

In United States v. Gore (CAAF 2004) Code 46 did not take the position that CAAF did not have jurisdiction to review NMCCA's rulings in Article 62 Appeals. Perhaps the counsel who were involved could enlighten us as to Code 46's former position?

Sun Aug 31, 09:07:00 AM EDT

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