Thursday, October 16, 2008

CAAF issues this term's first opinion of the court

CAAF has only been holding oral arguments this term for a month and already it has decided two of the argued cases. The first was a summary disposition; today CAAF announced the term's first opinion of the court, reversing NMCCA in a unanimous opinion written by Judge Ryan. United States v. Burch, __ M.J. ___, No. 08-0092/MC (C.A.A.F. Oct. 16, 2008).

NMCCA's decision in Burch seemed like an opinion in search of a smack-down. NMCCA held that even though the accused was actually confined for seven months beyond what the plain language of the convening authority's action allowed, the error was harmless because we all know that the CA meant to order that extra seven months executed. United States v. Burch, No. NMCCA 200700047, 2007 CCA LEXIS 351, 2007 WL 2745706 (N-M. Ct. Crim. App. Sept. 13, 2007). NMCCA's opinion contained the classic line, "At first blush, our two-part analysis may appear internally inconsistent." Id., slip op. at 8. But no, argued NMCCA, it isn't. Yes, held CAAF, it is.

CAAF held: "[W]here a clear and unambiguous action is the convening authority's last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) erred in relying on facts and circumstances predating the convening authority's unambiguous action to find that Appellant was not prejudiced." Burch, No. 08-0092/MC, slip op. at 2.

CAAF reasoned: "The CCA's conclusion that Appellant was not prejudiced explicitly rests on facts extrinsic to and predating the convening authority's action, ignoring the significance and timing of the action itself and our holding in" United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). Id., slip op. at 4.

CAAF also delivered this rebuke: "The CCA cited no legal authority for the novel precept that confinement not authorized by a convening authority's action does not prejudice an accused because events preceding the action suggest that at one time the convening authority 'did not intend to release Appellant from confinement prior to completion of his adjudged sentence.'" Id., slip op. at 5. Contrary to NMCCA's view, CAAF concluded that "the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority." Id., slip op. at 6.

As a remedy, CAAF ordered the record returned to NMCCA "to determine and award meaningful sentence relief to Appellant." Id., slip op. at 7.


John O'Connor said...

As I have said before, Wilson is an abomination. Contract construction principles have little to no place in construing CA actions. I haven't read this new decision, so I'm not saying it's right or wrong, but its reliance on Wilson makes it inherently suspect in my mind.

Anonymous said...

Obviously NMCCA also saw Wilson as an abomination. Instead of posting a comment on a blog, however, they decided to ignore the law and create their own rule based on their disagreement with CAAF. NMCCA's decision was not just disgraceful, it calls into question their very legitimacy as a court. This should serve as an important lesson to that court that following precedent is more important than arriving at what they consider to be a desired outcome.

Bramble Bush said...

Concur with the anon at 8:07, but one has to almost admire NMCCA's opinion (2007 CCA LEXIS 351). The attempt to use the prejudice analysis in this case to get around Wilson could be read as first-rate satire. Not to be outdone, though, CAAF ups the ante in the decretal paragraph by sending it back to NMCCA to determine meaningful sentencing relief! This is the same court that found the Appellant was not prejudiced by serving 223 days of disapproved confinement! Glad we're all grown-ups here.

But, seriously, if you (CCA) wish to air a disagreement with CAAF on Wilson, is an unpublished panel decision the best way to go about it?

Anonymous said...

I see Wilson as less of a Contract construction principle as an application of the fundamental principle of rule/statute construction. Would you be that offended, if CAAF intrepreted adhered to the plain language of title 10, even though some of the legislative history was to the contrary?

John O'Connor said...

Anon 0856:

Unlike CAAFlog, I am not an absolutist on legislative history. I think a judge should consider it in trying to give the fairest construction to the language of the statute. The real problem with using legislative history is that some courts use it indiscriminately to reach a preferred result, when much of the co-called legislative history has no real bearing on the legislature's intent. For instance, interesty groups sometimes get a friendly legislator to enter some comment on the meaning of the statute into the record when that was not truly indicative of intent. Similarly, sometimes courts rely on what those voting against a bill say it means, which is almost always a bad idea.

I would have to think long and hard before I would allow legislatrive history materials to change what I think is the unambiguous meaning of a statute, and I'm not sure I would do it even then. But I would never avert my eyes to available legislative history in trying to give a fair meaning to the words actually enacted into law.