Now on to the bad and the ugly. Go to NMCCA's web site's opinions link, then click on the 2009 page. First off, notice that both the original Burk opinion and the opinion on reconsideration, which we discussed here, are now available on the page. But the cite to Burk is followed by this factually incorrect notation: "CAAF has granted review." No; no it hasn't. Nor is it likely that CAAF would grant review, since an accused is unlikely to file a petition for grant of review in a case in which the CCA set aside the findings and sentence. Nor has the Judge Advocate General of the Navy certified the case to CAAF. Rather, Code 46 has simply asked CAAF for more time for the Navy JAG to consider certifying the case. So while it's good that the two Burk opinions are now on NMCCA's web page, they seem to be up there solely because NMCCA is under a misimpression about the case's procedural posture. It will be interesting to see if the links are removed once NMCCA realizes that, in fact, CAAF hasn't granted review of the case.
Now let's get surreal. NMCCA has added some guidance about what's on the page and what isn't. Here it is, reproduced in full:
Opinions - This section will include final published and unpublished opinions. Published opinions are binding precedent upon this court. Opinions that are unpublished but authored may be cited as persuasive authority. Per Curium opinions (which are neither binding nor persuasive precedent), will not be posted to this web site unless the United States Court of Appeals for the Armed Forces grants a petition for review of that case.First, let's note that "per curiam" is misspelled. Now let's look at this weird provision's substance. Do I have this right? NMCCA doesn't consider ITS OWN per curiam opinions to be even "persuasive precedent." What does that make them, unpersuasive precedent? Well, not according to NMCCA's citation guide, available here, which observes: "Unreported cases typically are not binding authority; however, 'unpublished' does not necessarily equate to 'useless' or 'unimportant.'" Now I'm no Latin scholar, but I'm pretty sure "per curiam" means "by the court" and not "useless" or "unimportant." NMCCA's own rules provide: "Citations to published cases are favored; however, citations to unpublished cases are permissible. The Court views citation to unpublished cases merely as persuasive authority." N-M. Ct. Crim. App. R. 6-4(a). Neither the court's rules not its citation guide appears to even mention per curiam opinions, much less relegate them to some sort of inferior caste. Their inferior, unpersuasive status seems to arise from nowhere. Interestingly, the Federal Rules of Appellate Procedure provide that for opinions issued after 1 January 2007, a "court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been . . . designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like." Of course, NMCCA isn't restricting the precedential effect of its per curiam opinions; rather, it's making them almost impossible for anyone who doesn't work in the Washington Navy Yard's Center of Appellate Excellence to find.
NMCCA's web site doesn't even live up to its promise of providing the court's "unpublished but authored" opinions. Consider NMCCA's fairly recent decision in United States v. Diaz, No. NMCCA 200700970 (N-M. Ct. Crim. App. Feb. 19, 2009), an opinion authored by Senior Judge Geiser. The case was a prominent one, involving a Navy JAG at JTFGTMO who mailed a classified list of detainees in a Valentine's Day card to a prominent civil rights attorney--and Guantanamo critic--at the Center for Constitutional Rights. This authored opinion in a prominent case isn't on NMCCA's web site even though two other unpublished opinions released after Diaz are. (Since NMCCA hasn't made it available, I've posted Diaz here.)
NMCCA's choice not to post Diaz seems like a poor one, but why is NMCCA making such choices at all? As we've seen, a federal statute requires the Article III appellate courts to post all of their decisions on the web. CAAF makes all of its opinions, including summary dispositions, available on the web. It appears that ACCA, AFCCA, and the Coast Guard Court make all of their opinions available on the web. Is NMCCA the only federal appellate court in the country that doesn't post all of its opinions on the Internet? Is there any sound reason why it doesn't? If so, I can't think of it.