Sunday, October 19, 2008

"DIG We Must"

This is my inaugural post as an official CAAFlog blogger. I appreciate the invitation to join the crew, and look forward to participating in the exchange of views.

Readers who grew up in New York may recall the saying that Con Edison used to display on barriers around its construction sites: "dig we must for a better New York," or words to that effect. In something of the same vein, it's not a surprise that the Court of Appeals DIGged [surely the past tense of DIG (dismissed as improvidently granted) cannot be "dug"] in Brown. DIG they must. If the fact on which the Court had specified an issue for review was wrong, it's no wonder they pulled the plug. This is, of course, the worst-case scenario for specifying an issue: sending the parties (and the Court itself) on what proves to be a wild goose chase.

There is no shortage of cases in which the Court has dismissed a grant as improvident:

"Upon reflection, the Court may also dismiss, e.g., United States v. Snyder, 46 M.J. 202 (1996) (mem.) (noting lack of factual basis for granted issue); United States v. Anderson, 41 M.J. 75 (1994) (mem.), vacate the grant as improvident, e.g., United States v. Hendon, 4 M.J. 256 (1978) (mem.), 6 M.J. 171, 172 (1979); United States v. Vick, 4 M.J. 235, 236 (1978) (mem.); United States v. Kennedy, 13 M.J. 465 (1982) (mem.); United States v. Chesney, 21 C.M.A. 358, 45 C.M.R. 132, 133 (1972); cf. United States v. Delacruz, 50 M.J. 221 (1998) (mem.) (3-1 decision) (dismissing specified issue as improvidently granted, and affirming), vacated, 50 M.J. 334 (1998) (mem.); United States v. Wilson, 46 M.J. 297 (1997) (mem.) (grant vacated without explanation); United States v. Counterman, 42 M.J. 81 (1995) (mem.) (grant vacated without explanation; petition denied); see also Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 Mil. L. Rev. 117, 129 & n.63 (1988) (collecting cases), . . ."  [Rules Guide 12th ed.]

I have not done a survey recently, but my impression is that the number of specified issues remains quite low, unlike the one-in-three rate observed in the Court's early years. Is there a place for specified issues? I'm less troubled by the practice than I once was, but I still feel it should be quite a rare event for the Court to specify an issue. Do others share this view?

I wonder whether the issue specified in Brown was truly identified by the Court or the Central Legal Staff or whether it was a markup of something asserted perhaps unartfully in the Supplement. Perhaps one of our readers knows the answer.

The larger issue lurking behind Brown's specified-issue drama is that the DIG Order closes the door to Supreme Court review. Did the Supplement identify no issues?


Jason Grover said...

Welcome aboard Gene. I would agree that the Court should rarely specify issues, but I don't disagree with the practice. Sometimes the Court may see an opportunity to clarify a legal issue in a way that the parties, focused on their own interests, don't see. I am not advocating an activist court, but a specified issue here or there I think can make sense. The Court for example specified many post-trial delay issues when it was a big problem in the Department of the Navy. Those problems seem to have been addressed, no doubt in part due to the Court's diligence at identifying the issue even when counsel did not.

Dew_Process said...

Thanks Gene. I suspect that the Court's workload also plays a significant part in these decisions. As Jason points out, when there appears to be a "trend" in a current issue, then it appears to be more prevalent.

And, as a few of us recall, the "Fletcher" Court never hesitated to specify something that they "felt" needed addressing.

Anonymous said...

As an aside, I think it might be important to delineate when the court is actually specifying an issue and when they're just reworking an especially terrible, but grantworthy, QP. Frankly, some of the ones in the petitions are horrendous and need to be rewritten, resulting in a "specified" question that the parties already identified. I don't think that happened here (I might be wrong), but it certainly does happen.