Friday, November 07, 2008

CAAF grant

CAAF granted review of these issues yesterday:

I. Whether the evidence is legally sufficient to support the finding of guilty for disobeying a lawful command where there was no evidence that the command was directed personally to Appellant or that Appellant knew it was from a superior commissioned officer.

II. Whether the order in the specification of Charge II was a lawful order when the evidence indicated the order's purpose was to accomplish some private end.
United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).

AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.

AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:

[T]he evidence in the record establishes that GySgt F's reason for issuing the order was his concern regarding the conflict between the duties imposed upon an NCO with regard to reporting non-compliance of junior Marine enlisted members with various restrictions placed upon their social activities and the existence of a relationship between an NCO and a junior enlisted member which tended to engender such non-compliance. He expressed concern about the impact such a situation would have on other junior enlisted members within the unit -- in essence its impact on the discipline and moral [sic] of the unit, clearly a traditional concern of those in supervisory positions within the military.


Had there been a supervisory relationship between the appellant and LCpl M within the unit, the basis for GySgt F's concerns would have had more gravitas. Yet, we are charged with discerning whether there existed a rational nexus between military duty and the order in question, not to parse where that military duty sits on a continuum from greatest to least. Based on the evidence in the record, we conclude that such a nexus existed in this case, and consequently the order was lawful.
Id., slip op. at 6-7.

CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).


Anonymous said...

Another wacky opinion from a CCA. There was no "duty" especially when there was no standing policy and no supervision, etc.

Mike "No Man" Navarre said...

Post-New and now with this grant I have always wondered how a due process based Apprendi challenge to this regime of the judge determining whether the order is legal is permissible. Isn;t legality of the order an element of the offense? I mean even the congressional elements require a "lawful order":
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued . . .

Ok, I see this issue where it does not exist, but someone, anyone, can I get at least one amen from the congregation (other than the Blue furry guy--I know you are with me)?

John O'Connor said...

Thwe constitutional right to association raised by Dwight would be a good candidate for application of the military deference doctrine, which pretty clearly applies to First Amndment associational rights. But CAAF traditionally has treated the military deference doctrine as sort of gauche, a doctrine not really befitting a court as cultured and evolved as CAAF.

Dew_Process said...

Mike - I think you hit the proverbial nail on the head. But, there is a way (especially under the facts of Ranney) to handle this issue consistent with Apprendi and its progeny.

The MJ makes a "preliminary" determination as to the legality of the order - just like they do for the voluntariness of a confession. Then, if the defense litigates the issue before the members, as in voluntariness issues, they are instructed to first consider that.

Here, the preliminary issue for the members would be, "was the purpose of the order 'official' or to 'accomplish some private end?'"

If the members preliminary vote was that it was "official" then fine, the MJ could then - consistent with Apprendi conclude as a matter of law, that the order was "legal" and then instruct the members to continue deliberating on the merits of the specification.

But, if the preliminary finding was that the order was for a "private" purpose or even if the government couldn't satisfy the BRD standard for lawfulness , then like the scenario if they find a confession involuntary, the MJ would THEN find it to be an unlawful order, and unless there's a LIO of dereliction present, enter a NG finding.

In New the lawfulness of the order - as I read the case and subsequent habeas litigation - was purely a question of law, e.g., did the proponent of the order have lawful authority to issue it versus the scope/intent of the order here.