Some thoughts about today's ruling in Rodriguez

While it's inside baseball, for military appellate counsel Rodriguez was one of the most eagerly anticipated decisions of the term. And when it arrived, it didn't disappoint. It's a 3-2 decision featuring 46 pages of analysis spread over three opinions (one majority opinion by Judge Erdmann and separate dissents by Chief Judge Effron and Judge Baker).

The five-member Effron Court came into being on 20 December 2006 when Judges Stucky and Ryan were sworn in. In little more than two years, the five-member Effron Court has produced six major cases concerning court-martial or military appellate court jurisdiction: Lopez de Victoria, 66 M.J. 67; Denedo, 66 M.J. 114; Adams, 66 M.J. 255; Hart, 66 M.J. 273; Wuterich, 67 M.J. 63; Rodriguez, __ M.J. ___, No. 07-0900/MC. (Did I overlook any others?)

Before today's Rodriguez decision, there were several interesting trends among the cases:

(1) all construed jurisdiction expansively;
(2) Judge Baker was in the majority in each decision;
(3) Judges Erdmann and Stucky were on opposite sides of each decision;
(4) Chief Judge Effron and Judge Ryan were on opposite sides of each decision;
(5) Each decision was resolved by a 3-2 vote.

Only two of those trends remain uninterrupted today. The Rodriguez Court broke the first trend by construing Article 67 to deprive CAAF of jurisdiction to entertain a petition that was dropped in the mail or hand-delivered to CAAF's courthouse more than 60 days after actual or constructive notice. Judge Baker was in dissent. And, disproving the notion of a "GOP bloc" advanced by a commentator, this was the first of the six jurisdiction cases in which Judges Erdmann and Stucky voted together -- which, given the continued streak of Chief Judge Effron and Judge Ryan diverging on jurisdictional questions, ensured three votes.

Continuing with the jurisdiction theme, here's an interesting question: do the Supremes have jurisdiction to hear this case? (Even if the Supremes did, I don't believe that CAAF's application of Bowles v. Russell would be of the slightest interest to the Supremes, but the jurisdictional question is interesting.) The Supremes have jurisdiction to review "[c]ases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." 28 U.S.C. § 1259. CAAF initially granted review in Rodriguez. United States v. Rodriguez, 66 M.J. 488 (C.A.A.F. 2008). But in today's ruling, CAAF "vacated" the "grant of review dated June 12, 2008" and "dismissed" the petition for grant of review. Rodriguez, __ M.J. ___, No. 07-0900/MC, slip op. at 17. Does that vacature of the grant of review remove Rodriguez from SCOTUS jurisdiction under 28 U.S.C. § 1259? Now, CAAF recently laughed a similar argument out of court in record time when I advanced it in the Wuterich recon petition, but hear me out.

As Judge Posner, writing for the Seventh Circuit, has observed, "void judgments are legal nullities.” Smith v. Potter, 513 F.3d 781, 782 (7th Cir. 2008). The Fourth Circuit has similarly observed: "'Vacate' means 'to render an act void; as, to vacate an entry of record, or a judgment.' Black's Law Dictionary 1548 (6th ed. 1990). And a judgment that is 'void,' as opposed to one that is merely 'voidable,' 'is nugatory and ineffectual so that nothing can cure it.' Id. at 1573." United States v. Martin, 378 F.3d 353, 357 (4th Cir.), cert. denied, 543 U.S. 1029 (2004). And there's plenty of language from other circuits making the same point. Does a "void" grant provide a jurisdictional basis for cert in this case? Is it enough for 28 U.S.C. § 1259 purposes that CAAF did at one time grant review of this case? Or would the Supremes instead say that because the original grant was voided, the applicable prerequisite for SCOTUS to exercise jurisdiction isn't satisfied?

Next, what is the effect of Rodriguez on the venerable precedent of United States v. Engle, 28 M.J. 299 (C.M.A. 1989) (per curiam)? Seaman Apprentice Engle's appellate defense counsel moved to withdraw Engle's petition for grant of review as untimely. CMA's response was basically: don't do that, appellate defense counsel, pointing out deficiencies in your client's legal position isn't in your job description. (I'm paraphrasing.) After noting that "defense counsel should not place himself in a position contrary to that of his client, if this can be avoided," CMA wrote: "The dates of service of decisions by the Courts of Military Review and of the filing of petitions for review in our Court are matters of record open to appellate government counsel and to the personnel of our Court. The Government is free to move to dismiss such petitions for untimeliness; and we can do so on our own motion. The filing of an untimely petition is not analogous to a fraud on the Court or a misrepresentation, in which instance counsel must intervene even at the risk of being at odds with the client." Id. at 299-300.

After Rodriguez, what should an appellate defense counsel actually do when the client decides after day 60 that he or she wants to petition CAAF? Should the appellate defense counsel simply submit the petition without moving to file an untimely petition, relying on Engle, leaving it to appellate government counsel to point out its untimeliness? Does today's recognition of untimeliness as a jurisdictional defect render impermissible tomorrow what was permissible yesterday?

These aren't easy questions and it will take some time for the military justice system to produce definitive answers. I'll pose a couple of additional questions provoked by Rodriguez in a follow-on post.