Petition for Writ of Certiorari — Carpenter v. United States
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93-676 |- ocreows
No. 93- wiak
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
MICHAEL J. CARPENTER, PETITIONER
Vv.
THE UNITED STATES OF AMERICA, RESPONDENT
Petition for a Writ of Certiorari to the
United States Court of Military Appeals
PETITION FOR A WRIT OF CERTIORARI
ALLEN Lotz
Lieutenant Commander,
U.S. Coast Guard
Commandant (G-LMJ)
2100 2nd Street, S.W.
Washington, D.C. 20593-0001
(202) 267-0115
Attorney for Petitioner
QUESTIONS PRSENTED
1. May the Judge Advocate General of an Armed
Force, who is not authorized to make appointments under
the Appointments Clause of the Constitution, appoint
commissioned officers to serve as military trial and ap-
pellate judges, on the theory that their appointment as
commissioned officers already satisfies the Appointments
Clause for both their judicial and nonjudicial duties, and
appoint civilians to serve as military appellate judges?
2. Does the Due Process Clause of the Fifth Amend-
ment require that, in peacetime, military trial and ap-
pellate judges be appointed to their judicial offices for
fixed terms, and that military appellate judges be assigned
to judicial duties as their primary duty?
(i)
TABLE OF CONTENTS
Page
og FE Se ee ee eae ae l
ct te eat. lal Pere Me re eee 2
CONSTITUTIONAL PROVISIONS AND STATUTES
OVE CUE cnvdentanyeoesnadutedaneaerGenenes 2
STAT Eeaees Gay SHU GPUEEe co dca nvonsvexscecvess 3
REASONS FOR GRANTING THE WRIT .......... 12
I. THE APPOINTMENTS CLAUSE
it Fk > | Pye ne ery Grae ee 13
Il. THE DUE PROCESS VIOLATION .......... 19
ee ee 8 re Co et ve ais ae 22
APPENDIX A
(Opinion of the U.S. Court of Military Appeals —
COU DONNTD oo ce viccvctsanstessaeeeee eee la
APPENDIX B
(Opinion of the U.S. Coast Guard Court of Military
REViaW — CORO oon a knee saccade ene atesebeees 2la
APPENDIX C
(Opinion of the U.S. Court of Military Appeals —
WOES ccc vcewnavededsdeneeeee 34a
APPENDIX D
(Relevant provisions of the Uniform Code of Military
Justice, Articles 6, 16, 26, and 66, 10 U.S.C. §§ 806,
SEQ, TO, WOE TE oo 6 6s nbenkheenbeeeeee 120a
APPENDIX E
(Rule for Courts-Martial 1002, Manual for Courts-
wertaes, SIO oc cknatdeus dbaesele ee 125a
TABLE OF AUTHORITIES
Cases:
Andrade vy. Lauer, 729 F.2d 1475 (D.C. Cir.
SOO «oncesnckese teen Grr Cae 18
Buckley v. Valeo, 424 U.S. 1 (1976) ......... 9,11, 13,17
(ii)
Cases — Continued: Page
Dettinger v. United States, 7 M.J. 216 (C.M.A.
RN ee ee a So ad he ae, 7
Freytag v. Commissioner of Internal Revenue, \11
ae 13, 14
Matthews v. Eldridge, 424 U.S. 319 (1976) ....... 10
McDowell v. United States, 159 U.S. 596 (1895) ... 18
Medina v. California, 112 S. Ct. 2572 (1992) ...... 10
Middendorf v. Henry, 425 U.S. 25 (1976) ........ 17, 20
Palmore v. United States, 411 U.S. 389 (1973) .... 10
Postker v. Goldberg, 453 U.S. 57 (1981) ......... 17
Shoemaker v. United States, 147 U.S. 282 (1893) passim
Solorio v. United States, 483 U.S. 435 (1987) ..... 6
Tumey v. Ohio, 274 U.S. 510 (1927) ............. 21
United States v. Brown, 28 M.J. 470 (C.M.A.
Noe ea bon Cheb Ee bee 7
United States v. Cole, 31 M.J. 270, 272 (C.M.A.
eel tie elaine habs benndoe« taee Xe > 5 7
United States v. Graf, 35 M.J. 450, 465 (1992) .... »
United States v. Maharajh, 28 M.J. 797 (A.F.C.
ols Ueaewe at iene 7
United States v. Ohrt, 28 M.J. 301 (C.MA. 1989). . 7
United States v. Raddatz, 447 U.S. 667 (1980) .... 19
United States ex re. Toth v. Quarles, 350 U.S.
ee a ce wu dd wees 10
United States v. Weiss, 36 M.J. 224(C.M.A. 1992),
cert. granted, __ U.S. __, 113 S. Ct. 2412, 124 L.
Sf) ae ee ihe were ti ewecetndi passim
Constitutional Provisions:
ty Ue Wis © Mie Gils Bo ccd ca seccuccevess passim
i wceesehoebeves 2
Statutes:
Art. 1(1), UCMJ, 10 U.S.C. § 801(1) ............ 4
Pe es Sg BE Wie BOND Sc ccssceecencs 2,4
Statutes — Continued: Page
Ast. 16, CEs. FO UB. 5 ORD os ccc vv cveavsss 2
At. 16, CEES, FO UBL. OGD cc cccccccsvvces 6
Ast, OD, Cs Be Urs ©] GEN oh evissecevcsss 6
Pat, Be, CRs Se ee ED occ cavvcreoves: 2, 6
Ast. 4B, WERE, TOU BA. OOD on vecvcccvecces 7
Ast. Gh, Vs FS ls BOO 0 ccs rsccccviene ye
Art. 67a, UCMJ, 10 U.S.C. § 867a............. 2
Ast. 142, UCHES, 10 U.S.C. § DAZR .. ccc cncees 5
Bee es Oe ED bic hod 8 0084000000680 4u8e8 2
Regulations:
Rule for Courts-Martial 1002, Manual for Courts-
RR a Per ere rr. >
GO CHR Part £, AGORA «occ cecccccevesessss 4,5
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
No. 93-
MICHAEL J. CARPENTER, PETITIONER
Vv.
THE UNITED STATES OF AMERICA, RESPONDENT
Petition for a Writ of Certiorari to the
United States Court of Military Appeals
PETITION FOR A WRIT OF CERTIORARI
The petitioner, Michael J. Carpenter, respectfully prays
that a writ of certiorari issue to review the judgment and
opinion of the United States Court of Military Appeals
entered in this proceeding.
OPINIONS BELOW
The opinion of the United States Court of Military Ap-
peals, United States v. Carpenter, 37 M.J. 291 (C.M.A.
1993) is reprinted as Appendix A at App. la. The opinion
of the United States Coast Guard Court of Military
Review, United States v. Carpenter, 34 M.J. 681
(C.G.C.M.R. 1992), is reprinted as Appendix B at App.
2ia.
The opinion of the United States Court of Military Ap-
peals, United States v. Weiss, 36 M.J. 224 (C.M.A. 1992),
(1)
2
cert. granted, U.S. _., 113 S. Ct. 2412, 124 L. Ed. 2d
635 (1993), is reprinted as Appendix C at App. 34a.
JURISDICTION
The decision of the Court of Military Appeals was
rendered on August 3, 1993. The jurisdiction of this Court
is invoked under Article 67a of the Uniform Code of
Military Justice, 10 U.S.C. § 867a (Supp. II 1990) and 28
U.S.C. § 1259(3) (Supp. II 1990).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The Appointments Clause, U.S. Const. Art. II, § 2, Cl.
2, provides:
The President . . . shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls,
Judges of the Supreme Court, and all other officers
of the United States, whose Appointments are not
herein otherwise provided for, and which shall be
established by Law; but the Congress may by Law
vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
The Fifth Amendment provides:
No person shall be . . . deprived of life, liberty, or
property, without due process of law.
The relevant provisions of the Uniform Code of
Military Justice, Articles 6, 16, 26, and 66, 10 U.S.C.
§§ 806, 816, 826 and 866, are set forth in Appendix D at
App. 120a. Rule for Courts-Martial 1002, Manual for
Courts-Martial, 1984, is set forth in Appendix E at App.
12Sa.
STATMENT OF THE CASE
Petitioner was a Subsistence Specialist Second Class
(E-5), U.S. Coast Guard, at the time of his court-martial.
He was tried by a military judge sitting alone as a general
court-martial. Contrary to his pleas, he was convicted of
various violations of the Uniform Code of Military Justice
(UCMJ). He was sentenced to confinement for fifteen
months, reduction to the lowest enlisted pay grade (E-1),
and a dishonorable discharge from the Coast Guard.
This petition raises issues important to the military
justice system. With respect to the questions presented, the
basic issues have been previously raised to, and are to be
decided by, this Court in United States v. Weiss, 36 M.J.
224 (C.M.A. 1992), cert. granted, __ U.S. __, 113 S. Ct.
2412, 124 L. Ed. 2d 635 (1993) (No. 92-1482). This peti-
tion adopts and incorporates the same argument as set
forth in Weiss, supra. In addition, however, with respect
to the first question presented this petition presents an ad-
ditional issue—the appointment by the Judge Advocate
General of an Armed Force of civilians to serve as military
appellate judges on the service Court of Military Review.
Finally, the second question presented involves a related
issue concerning the judicial independence of military ap-
pellate judges serving on the Coast Guard Court of
Military Review as a mere collateral duty.
Like United States v. Weiss, this petition raises closely
related questions which go to the heart of judicial in-
dependence for military trial judges who preside over
courts-martial and for military appellate judges who
review convictions. All military trial judges and most ap-
pellate military judges are commissioned officers and
lawyers on active duty in their services. Unlike judges ap-
pointed under Article | or Article III, military judges are
not appointed by the President with the advice and con-
4
sent of the Senate. Nor are they appointed by the Presi-
dent alone, the head of a department, or a court of law
composed of Article I or III judges. Instead, military
judges are selected and appointed by the Judge Advocate
General of their service; in this case, the Judge Advocate
General is the General Counsel of the Department of
Transportation. Art. I(1), UCMJ, 10 U.S.C. § 801(1)
(1988). The General Counsel has delegated most, but not
all, of his duties as Judge Advocate General to the Chief
Counsel of the Coast Guard, the senior uniformed lawyer
of the service. See 49 CFR Part 1, Appendix A (1992). The
Judge Advocate General is the official for each service
who is responsible for the overall supervision of military
justice matters. See Art. 6(a), UCMJ, 10 U.S.C. § 806(a)
(1988). Moreover, the Judge Advocates General, in con-
cert with other service officials, have absolute and
unreviewable discretion to remove or transfer judges out
of their judicial assignments, and those judges lack protec-
tion if their decisions do not suit their Judge Advocate
General. Finally, four of the five judges assigned to the
Coast Guard Court of Military Review, including two of
the three judges on the panel of the Court that reviewed
petitioner’s case, serve on that court as a mere collateral
duty. All have other, primary duties, for which they are
responsible to other officials, including, in some cases, the
Chief Counsel. Accordingly, the method of appointment
to judicial service in the Armed Forces violates the
Appointments Clause; the lack of any fixed term of office,
and the service of Court of Military Review judges on a
collateral-duty basis, violates the Due Process Clause of
the Fifth Amendment.
1. Institutional Framework
Under Article I of the Constitution, Congress has
established a three-tier system of military courts. At the
a
5
top is the Court of Military Appeals, which has five
civilian judges appointed by the President with the advice
and consent of the Senate for fixed terms of office. Art.
142, UCMJ, 10 U.S.C. § 942 (1988). The appointments
and tenure of the Court of Military Appeals judges are not
at issue.
Below the Court of Military Appeals are four Courts of
Military Review; one each for the Army, Air Force, Navy-
Marine Corps, and Coast Guard. The Coast Guard Court
of Military Review presently consists of five appellate
military judges, two of whom are civilians and three of
whom are Coast Guard commissioned officers. These
judges have been appointed by the Judge Advocate
General. Although the Courts of Military Review are per-
manent courts located in the Washington, D.C., area,
none of the judges is appointed to a fixed term of office.
Art. 66(a), UCMJ, 10 U.S.C. § 866(a) (1988). The Courts
of Military Review are typically divided into three-member
panels to hear cases; petitioner’s case was reviewed by such
a three-member panel. Absent waiver by an accused, the
Courts of Military Review are required to review all cases
in which a death sentence, confinement for one year or
more, a dismissal, or a dishonorable or bad-conduct
discharge is adjudged. Art. 66(b), UCMJ, 10 U.S.C.
§ 866(b) (1988).
Military trial judges preside at special courts-martial,
and, if qualified, at general courts-martial. Trial judges
must be military officers, all of whom have been ap-
pointed as military officers by the President with the ad-
vice and consent of the Senate. However, their selection
and appointment as a judge is normally made by the Judge
Advocate General of the service; in the Coast Guard, that
authority has been delegated to the Chief Counsel of the
Coast Guard. 49 CFR Part 1, App. A, para. 2(3) (1992).
Ln
6
Like appellate military judges, the trial judges have no
fixed terms of office. Art. 26(a)-(c), UCMJ, 10 U.S.C.
§ 826(a)-(c) (1988).
Each armed force assigns military judges as and when it
sees fit. However, a judicial assignment can be terminated
at any time through decertification as a judge or by
transfer to other, nonjudicial, duties at the discretion of
the Judge Advocate General of the judge’s armed force.
A court-martial can try any offense committed by a
member of the armed services regardless of when or where
the offense took place, who the victim was, what was
done, or why it was done; the sole requirement for court-
martial jurisdiction over the accused is that the accused
was On active duty in the military at the time of the of-
fense. Solorio v. United States, 483 U.S. 435 (1987). A
general court-martial may impose sentences that include
death, imprisonment for life or a term of years, total
forfeiture of pay and allowances, and a dishonorable or
bad-conduct discharge (or a dismissal if the accused is an
officer). Art. 18, UCMJ, 10 U.S.C. § 818 (1988). A bad-
conduct or dishonorable discharge carries a permanent
Stigma, and it can have an adverse impact on civilian job
opportunities, as well as on certain government-provided
benefits. See United States v. Ohrt, 28 M.J. 301 (C.M.A.
1989); United States v. Maharajh, 28 M.J. 797
(A.F.C.M.R. 1989). Special courts-martial may impose up
to six months of confinement, forfeiture of up to two-
thirds pay per month for six months, and a bad-conduct
discharge. Art. 19, UCMJ, 10 U.S.C. § 819 (1988).
Military trial judges are, for all practical purposes, the
equivalent of United States District Judges and Magistrate
Judges who preside over criminal trials in federal district
courts. The drafters of the Uniform Code of Military
Justice wanted military judges to be “real judges” as com-
~
monly understood in the American legal tradition. United
States v. Graf, 35 M.J. 450, 465 (1992). The military trial
judge has far-ranging discretionary powers, including the
power to “rule on all interlocutory questions and all ques-
tions of law raised during the court-martial,” to “[i]nstruct
the members [the jury] on questions of law and procedure
which may arise,” to “promulgate and enforce rules of
court,” and to “exercise contempt power.” Art. 48,
UCMJ, 10 U.S.C. § 848 (1988). If the accused elects a‘
bench trial, a general court-martial judge has even more
discretion than does a district judge, because the court-
martial trial judge is not bound by the Federal Sentencing
Guidelines. See United States v. Brown, 28 M.J. 470, 474
n. 3 (C.M.A. 1989); see generally Manual for Courts-
Martial, 1984, Rule for Courts-Martial 1002.
Courts of Military Review exercise all of the traditional
powers of appellate courts, including those under the All
Writs Act. See Dettinger v. United States, 7 M.J. 216
(C.M.A. 1979). Additionally, these courts exercise an
“awesome, plenary, de novo power of review[.|” United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). Thus, a
court of military review “[m]Jay affirm only such findings
of guilty and the sentence as it finds correct in law and fact
.. .. [[]t may weigh the evidence, judge the credibility of
witnesses, and determine controverted questions of
fact[.]” Art. 66(c), UCMJ, 10 U.S.C. § 866(c) (1988).
2. Rulings of the Court of Military Appeals
The Court of Military Appeals exercised its discre-
tionary jurisdiction to consider petitioner’s claims that the
manner in which the trial and appellate military judges in
his case were appointed violated the Appointments Clause
of the Constitution, and that the service of appellate
military judges as a mere collateral duty denied petitioner
8
liberty without due process. The failure to appoint
military trial and appellate judges to fixed terms of office
was not specifically addressed in petitioner’s case at the
Court of Military Appeals; however, the due process
violation was present, just as it was in Weiss. Several days
before it heard argument in Weiss, the Court of Military
Appeals issued an opinion rejecting the due process claim
with respect to fixed terms of office. United States v.
Graf, 35 M.J. 450 (C.M.A. 1992).' Then, on December
24, 1992, a sharply divided court rejected petitioner
Weiss’s Appointments Clause argument and affirmed the
Navy-Marine Corps Court’s decision.
In order to garner three votes, the majority in Weiss
needed two separate and largely inconsistent rationales.
Judge Gierke, writing the lead opinion for himself and
Judge Cox, agreed that Congress may establish a military
justice system, but that Congress cannot declare an ex-
emption for military judges from the Appointments
Clause. Therefore, Judge Gierke held that military judges
are officers who must be appointed in accordance with the
Appointments Clause, either by the President with the ad-
vice and consent of the Senate, by the President alone, by
a Head of a Department, or by a Court of Law. App. 4la.
This proposition was endorsed by four of the court’s five
judges. App. 55a, 70a, Illa.
Judge Gierke then held that the Appointments Clause is
satisfied when a military officer is commissioned by the
President with the advice and consent of the Senate,
because military judges are simply military officers with
legal training. Relying on Shoemaker v. United States, 147
' A petition for a writ of certiorari in Graf was filed on December
29, 1992 (No. 92-1102), and it is incorporated by reference. In the in-
terest of completeness, this petition will summarize the Graf decision,
as well as the reasons for granting review of the Due Process issue.
9
U.S. 282 (1893), Judge Gierke first ruled that Congress
had not created a “new office” when “Law Officers”
became “Military Judges” in the Military Justice Act of
1968, and thus no new appointment was necessary. Alter-
natively, he concluded that, if a new office had been
created, the duties of the military judge were “germane” to
those duties already required of a military officer with
legal training: “The principle we glean from Shoemaker is
that Congress may create a new office and give a military
officer the duties of that office without making a new ap-
pointment necessary, if the duties are germane[.]” App.
40a.
Judge Crawford eschewed the opinion of Judge Gierke,
and concurred only in the result. In her view the appoint-
ment of military judges need not comply with the Ap-
pointments Clause at all because of the special deference
given to Congress when it regulates the land and naval
forces. Her opinion does not mention Buckley v. Valeo,
424 U.S. | (1976), in which this Court held that no class or
type of officer is excluded from the reach of the Appoint-
ments Clause because of the special nature of their office
or the plenary power of Congress over the subject area.
‘Additionally, Judge Crawford reached her conclusion
even though the Department of Justice (appearing as
amicus and urging affirmance) disavowed that position in
both its brief and at oral argument.
Chief Judge Sullivan and Judge Wiss each filed dissent-
ing Opinions rejecting the arguments in both of the majori-
ty opinions. The dissenters found no broad exemption to
the strictures of the Appointments Clause based on the
judges’ status as military officers or military lawyers. App.
7la, 109a. Chief Judge Sullivan stressed the watershed
events of the Military Justice Act of 1968 which for the
first time created a “professional judiciary” in the military.
App. 93a (emphasis in original). He recognized that what
10
had occurred was no mere transfer of duties, but was a
clear break from past practice by creating the new offices
of military trial and appellate judge. Judge Wiss disagreed
with the lead opinion’s application of Shoemaker to this
case, in particular its assertion that the assignment of
specific and highly responsible judicial duties as a military
judge is “germane to some nebulous notion of duties of
legally trained military officers in general,” that is, to the
duties of all judge advocates from which military judges
are chosen. App. 118a.
The court did not revisit Graf where it had overruled
Graf’s due process objection to the lack of fixed terms of
office for military judges for two reasons. First, Graf re-
jected the balancing test set forth in Matthews v. Eldridge,
424 U.S. 319 (1976), which had long been used to resolve
Fifth Amendment due process claims. Instead, the court
used the less exacting Fourteenth Amendment due process
standard enunciated in Medina v. California, 112 S. Ct.
2572 (1992), which involved review of a state criminal con-
viction. Second, Graf treated dicta from United States ex
rel. Toth v. Quarles, 350 U.S. 11 (1955), and Palmore v.
United States, 41i U.S. 389 (1973), as approving the lack
of fixed terms of office, and announced a new rule that
military judges could not be removed in retaliation for
their judicial decisions. Nowhere did the Court of Military
Appeals suggest that military necessity precludes fixed
terms for military judges generally, let alone for those who
sit on the Courts of Military Review in the Washington,
D.C. area or for courts-martial such as this one, which
was held in peacetime.
The Court of Military Appeals’ consideration of peti-
tioner’s case aiso produced four published opinions by the
judges, though all judges voted to affirm petitioner’s case.
United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993).
(Bitrate
11
Judge Gierke, joined by Judge Cox, authored the opinion
of the court. Relying on the decision in Weiss, he conclud-
ed that the military judge who tried petitioner’s case and
two of the three Coast Guard Court of Military Review
judges (the two who were commissioned officers on active
duty) who reviewed petitioner’s case were appointed con-
sistently with the Appointments Clause. App. 3a.
However, with respect to the third member of the Court of
Military Review panel, Chief Judge Baum, who is a
civilian, the Weiss decision is not controlling.
The Government argued below that Chief Judge Baum’s
appointment to the Court of Military Review by the Judge
Advocate General was a proper appointment because the
Judge Advocate General was acting as delegee of the
Secretary of Transportation, the head of a department.
The court rejected that argument, holding that the ap-
pointment power is not delegable. App. Sa.
The Government next argued that, as a retired military
officer, Chief Judge Baum was not a civilian, but re-
mained a commissioned officer whose appointment as
such made a separate appointment as a court of military
review judge unnecessary in accordance with the Weiss
decision. The court also rejected that contention. The
court noted that Chief Judge Baum was employed and
serving in a civilian, not a military, billet, he had not been
recalled to active duty, and that judicial duties are not ger-
mane to the duties of a retired officer, because a retired of-
ficer has no duties. App. 6a.
The court then concluded that Chief Judge Baum’s ap-
pointment to the court of military review was defective.
App. 7a. However, it afforded de facto validity to the acts
of the Chief Judge, relying on Buckley v. Valeo, 424, U.S.
1 (1976), and a January 15, 1993, memorandum of the
Secretary of Transportation purporting to appoint the
judges of the Coast Guard Court of Military Review, in-
cluding Chief Judge Baum. App. 8a, Sa.
12
With respect to the Due Process issue, Judge Gierke
concluded that there were sufficient protections to ensure
the independence of the military judiciary. He held that
there is no requirement for appellate military judges to
serve as judges full time. App. 10a.
Chief Judge Sullivan concurred based on the de facto
appointment rationale. App. 19a. Judge Crawford con-
curred in the opinion of the court with respect to the Due
Process issue, but concurred only in the result with respect
to the Appointments Clause issue, relying on her separate
opinion in Weiss. App. 19a. Judge Wiss also concurred in
the opinion of the court with respect to the Due Process
issue, though he expressed misgivings about the “ap-
pearance of lack of total objectivity when associate ap-
pellate judges’ principal assignments are as division chiefs
under the immediate supervision of the Chief Counsel.
... App. 19a. He concurred only in the result, however,
with respect to the Appointments Clause issue, also relying
on the de facto appointment rationale.
REASONS FOR GRANTING THE WRIT
This petition, like Weiss, seeks to establish minimum
standards for the appointment of military judges, their
retention in office for a fixed term, and service as an ap-
pellate military judge as a primary duty. It does not seek to
have the Uniform Code of Military Justice or the military
justice system mirror that of Article III courts. Rather, it
seeks to ensure that the separation of powers requirements
embodied in the Appointments Clause, and the notions of
fundamental fairness embodied in the Due Process
Clause, are available to those tried by courts-martial.
Taken alone, either the Appointments Clause or the Due
Process violations would seriously undermine the fairness
of the military justice system; occurring together they call
13
into question whether anyone in the armed forces can
receive the minimal level of judicial independence that
every justice system requires.
1. The Appointments Clause Violation
Not since Solorio v. United States, 483 U.S. 435, 107
S.Ct. 2924 (1987), has an appeal presented questions
of such fundamental importance to the institutional
integrity and viability of the military justice system as
does this one. App. 110a (Wiss, J., dissenting).
The Appointments Clause precludes Congress from
placing the power to appoint inferior officers in anyone
other than the President alone, the Courts of Law, or the
Heads of Departments. U.S. Const. Art. II, § 2, Cl. 2;
Freytag v. Commissioner of Internal Revenue, 111 S. Ct.
2631, 2642 (1991). There can be little doubt that military
judges, who exercise extraordinary authority and discre-
tion, are Officers of the United States and are subject to
the Appointments Clause. See Buckley v. Valeo, 424, U.S.
1, 126 (1976). No judge of the Court of Military Appeals
disagreed with that proposition except Judge Crawford,
and her position was specifically disavowed by the Depart-
ment of Justice.
There is considerable force to the argument that military
appellate judges are “superior” or “principal” officers, in
which case the President must appoint them with the ad-
vice and consent of the Senate. But in any event, both
military trial and appellate judges are at least inferior of-
ficers, and so they must be appointed either by the Presi-
dent, the Head of a Department, or by a Court of Law.
With the exception of the after-the-fact appointment of
the judges of the Coast Guard Court of Military Review
by the Secretary of Transportation, no court has held that
military judges are appointed to their judicial offices by
any of the authorities listed in the Appointments Clause.
14
The only question with respect to judges who are commis-
sioned officers, is whether their appointment as military
judges, after they have been duly appointed as military of-
ficers, must be made by one of the authorities set forth in
the Appointments Clause. With respect to appellate
military judges who are civilians, the question is whether
an after-the-fact appointment by the service Secretary pro-
vides de facto validity to the prior judicial acts of the
judge.
The Appointments Clause preserves “the Constitution’s
structural integrity by preventing the diffusion of the ap-
pointment power.” Freytag, 111 S. Ct. at 2638. As this
Court reasoned in Freytag:
The Appointments Clause prevents Congress from
dispensing power too freely; it limits the universe of
eligible recipients of the power to appoint. Because it
articulates a limiting principle, the Appointments
Clause does not always serve the Executive’s interests.
For example, the Clause forbids Congress from
granting the appointment power to inappropriate
members of the Executive Branch. Neither Congress
nor the Executive can agree to waive this structural
protection .. .. The structural interests protected by
the appointments Clause are not those of any one
Branch of government but of the entire Republic.
Freytag, 111 S. Ct. at 2639 (emphasis added).
Relying on Shoemaker, two Court of Military Appeals
judges found that the Appointments Clause had been
satisfied for all military judges who are commissioned of-
ficers of the Armed Forces, because they have already
been nominated by the President and confirmed by the
Senate, although they have not been appointed to their
judicial positions in that manner. Apparently recognizing
that a presidential appointment had some limits —for ex-
ample, a Deputy Secretary of Defense could not simply
ee eB
feats
15
move over to become an Assistant Attorney General or a
member of the Equal Employment Opportunity Commis-
sion—the opinion alse concluded that there was no new
office created when Congress amended the Uniform Code
of Military Justice in 1968 to create the positions of
military trial and appellate judges because the new posi-
tions were simply continuations of the old ones, with some
modest changes. Even if that assessment were correct, and
petitioner agrees with the dissenters in Weiss that it is not,
that would at most allow those who were in a judicial posi-
tion in 1968—the “incumbent{s]” in Shoemaker’s words
(147 U.S. at 301)—to continue in office without a new ap-
pointment. Stated another way, Shoemaker can at most
solve the problem for those who were already serving in
judicial positions in 1968, not for those who were yet to be
appointed as judges, let alone those who were not yet
military lawyers.
As a fall-back Judges Gierke and Cox argued that,
under Shoemaker, Congress can add duties to an existing
office without requiring that the person then in office be
reappointed, so long as the “new” duties are “germane” to
the “old” ones of that office. What they overlook is that
Shoemaker arose in a one-time situation where Congress
had added duties to persons who were already in offices to
which they had been properly appointed. But there would
never be a problem for future occupants of those offices
since they would be appointed to positions encompassing
both the “new” and “old” duties. However, for military
judgeships, the problem is repeated whenever a non-judge
military lawyer replaces a military judge who retires or is
transferred to a new assignment.
Even if Shoemaker allowed those who were serving as
“law officers” in 1968 to continue in the new office of
military judge, those who became military judges there-
16
after would fail to meet Shoemaker’s “germaneness” test.
The duties and powers of military judges, including all of
those involved in petitioner’s case, are so different from
those of prosecutor, defense counsel, legal advisor to a
command — which is what most military lawyers do before
they become military judges —that there is not simply an
addition of a related duty, as in Shoemaker, but a
substitution of a new job, with entirely new functions, for
an old one. Surely, no one would contend that the two
civilians on the Coast Guard Court of Military Review
could be plucked from civilian life, even if they were ad-
ministrative law judges working for the federal govern-
ment, and placed on that court without meeting the re-
quirements of the Appointments Clause; the result should
be no different for any other military judge, whether at the
trial or appellate level. Similarly, no one would assume
that a member of the staff of the General Counsel of the
National Labor Relations Board could simply be “as-
signed” the additional duties of administrative law judge
at that agency without satisfying the requirements of the
Appointments Clause, yet that is the effect of the ruling
below in this case and in Weiss. Indeed, as both Buckley
and Freytag make clear, it is the function that the in-
dividual is performing that is decisive in determining
whether the Appointments Clause applies at all, and under
that analysis there can be no question that military judges
must be separately appointed because their functions dif-
fer so markedly from those performed by other military
lawyers. At the very least, these quite expansive extensions
of Shoemaker raise serious questions that this Court
should address.
The decision in Weiss rests on even shakier ground
because the decisive vote was cast by Judge Crawford. She
implicitly rejected an extension of Shoemaker in favor of a
much more sweeping rationale—that the Appointments
17
Clause does not apply at all to military judges, although
her rationale would lead to the conclusion that the Clause
does not apply to any appointments in the Armed Forces.
Her opinion conflicts with, but does not even attempt to
distinguish, Buckley, which made clear that there are no
subject-matter exemptions from the Appointments Clause
based on the interest of Congress in, or plenary power
over, particular subject areas. Judge Crawford’s rationale
also conflicts with decisions like Rostker v. Goldberg, 453
U.S. 57 (1981), and Middendorf v. Henry, 425 U.S. 25
(1976), which stand for the proposition that there are no
wholesale exemptions from the Constitution simply
because the case involves military affairs. Indeed, so ex-
treme is Judge Crawford’s ruling that the Department of
Justice, which appeared below as an amicus in support of
respondent, specifically rejected that position in its brief
and at oral argument. It is highly unlikely that Judge
Crawford would have taken the far more expansive route
to affirming Weiss’s conviction if she had been willing to
accept the rationale put forward by Judge Gierke. Thus, if
her “deference to Congress” analysis is in error—as it
clearly seems to be—there were three votes to overturn
Weiss’s conviction.
The Court of Military Appeals upheld petitioner’s con-
viction and sentence, despite the improper appointment of
Chief Judge Baum of the Coast Guard Court of Military
Review, a civilian, by relying on the de facto appointment
rationale. App. 8a. In reaching that result, however, the
court devoted only a single sentence to discussing the
issue, and cited only one case, Buckley v. Valeo, 424 U.S 1
(1976). However, Buckley was an action seeking
declaratory and injunctive relief to enjoin the operation of
the statutory provisions concerning the Federal Election
Commission, not a direct appeal of a serious criminal con-
18
viction, and does not support the action of the lower
court.
The de facto appointment rationale has been applied to
limit the consequences of improper appointments of of-
ficeholders, particularly when the defect is of a technical
nature, or when many innocent third parties would be
harmed by their reliance on the acts of the improperly ap-
pointed official, as in Buckley. The doctrine is clearly not
simple. See Andrade v. Lauer, 729 F.2d 1475, 1496-1501
(D.C. Cir. 1984). If it is to be extended to these cir-
cumstances, it should be by this Court, with a full discus-
sion of the matter. It has never been applied in a case like
this. The only federal criminal case in which the doctrine
was relied on to sustain a conviction on a direct appeal, is
McDowell v. United States, 159 U.S. 596 (1895). The doc-
trine was only an alternative basis for affirming the con-
viction there, and the facts of McDowell are substantially
different from petitioner’s case. In McDowell, a properly
appointed federal district judge had been assigned to sit in
a case in a different district, but the procedures followed
in the assignment were challenged. This Court found the
error in the assignment to be very minor and technical, if
error at all, and refused to overturn the defendant’s con-
viction. The key difference from this case, however, was
that the district judge in McDowell had been properly ap-
pointed and commissioned by the President with the con-
sent of the Senate as a district judge; it was only his tem-
porary inter-district assignment that was in question.
The validity of the appointment of military judges,
commissioned or civilian, under the Appointments Clause
is a significant constitutional question which this Court
should address. The 2-1-2 division within the Court of
Military Appeals in Weiss, and the four-opinion decision
of the court in petitioner’s case reflects the serious debate
19
on the merits of the issue. As it did in Weiss, this Court
should grant review to resolve this issue as promptly as
possible.
2. The Due Process Violation
Most of the reasons this Court should grant review on
the second question presented are set out in the previously-
filed Graf petition and are only summarized below. But
first, it is worth noting that, although the two questions
presented arise under different constitutional provisions,
the defects involve common concerns of accountability
and fundamental fairness to an accused. Noncompliance
with each of the provisions is magnified by the lack of
compliance with the other, such that there is a synergistic
impact on the accused’s rights. To further compound the
problem, the Judge Advocate General can both appoint
and remove military trial and appellate judges, yet he is
also responsible for supervising the efficient working of
the service’s military justice system, including its
prosecutors.
The lower court’s application of Medina’s Fourteenth
Amendment due process analysis in Graf to a federal Fifth
Amendment due process claim is ample reason to resolve
this issue. Indeed, in Medina this Court left open the cor-
rectness of one of its prior decisions— United States v.
Raddatz, 447 U.S. 667, 677 (1980)—which had applied
Matthews v. Eldridge to a due process challenge to a
federal criminal conviction. Petitioner believes that
respect for state legislative judgments and concerns of
federalism, which loom so large in Medina, have no place
where federal Due Process rights are at issue, but the
uncertainty created by Medina underscores the need for
this Court to settle an issue that only it can resolve. In that
regard petitioner also notes that the concerns about over-
turning specific judgments made by state legislatures
20
(Medina), or with those made by Congress for the Armed
Forces (Middendorf v. Henry, 425 U.S. 25, 44 (1976)), are
inapplicable here because there is no evidence that in 1968,
when Congress established the offices of military trial and
appellate judge, it gave any thought to terms of office, let
alone specifically legislated to preclude them.
The concerns raised by the lack of any fixed term of of-
fice are only exacerbated for four of the five Coast Guard
Court of Military Review judges by their assignment as
judges on a collateral-duty basis only. This arrangement
implies that the duties of an appellate judge are simply not
important enough for full-time, or even primary duty,
assignment. The part-time judges are supervised and
evaluated on their performance of their primary, non-
judicial duties. Thus, devotion to their judicial duties
could only detract from the performance of their primary
duties, on which their evaluations, future promotions, and
assignments depend. Furthermore, for many of the part-
time judges, the Chief Counsel, the senior uniformed
lawyer in the Coast Guard, is their immediate supervisor;
concern about issuing judicial decisions contrary to his
wishes may impinge on the independence vital to the
proper performance of judicial duties.
Certainly, in time of war or other serious exigency,
military necessity may require some adjustments regarding
the tenure of trial judges, although not for the appellate
judges who comprise the four Courts of Military Review.
Moreover, neither the government nor the Court of
Military Appeals has sought to justify the lack of any fixed
term of office on grounds of military necessity. Instead,
the Court of Military Appeals relied on other alleged pro-
tections against improper retaliation against military
judges for unpopular decisions, although none of them
can be invoked by an accused, even if they were actually,
21
as opposed to theoretically, available to the judges
themselves. Even if those protections served to prevent
naked retaliation, they cannot possibly guard against the
more subtle and virtually undetectable problems of
adverse or “faint praise” evaluations that can have signifi-
cant impacts on promotions, future assignments, and
susceptibility for involuntary early retirement for all
military judges.
At bottom, the Court of Military Appeals fell woefully
short of justifying an exception to the generally-accepted
principle of American jurisprudence, as reflected in such
due process cases as Tumey v. Ohio, 274 U.S. 510 (1927),
and in the nearly universal fact that state judges have fixed
terms of office, such that judicial independence for those
who preside at criminal trials and hear criminal appeals is
an absolute minimum protection for the accused. The due
process issue alone is sufficiently important to warrant
consideration by this Court, especially because the terms
of office of a military judge can be cut short by a military
officer who is the ultimate superior of both the judge and
the prosecutor.
i
22
CONCLUSION
For the reasons stated, petitioner prays that this Court
grant review of the questions presented in order to bring
the military court-martial system into line with accepted
principles of American jurisprudence, and ensure that
trials by court-martial are conducted and reviewed in a fair
and impartial manner.
Respectfully submitted,
ALLEN LOTZ
Lieutenant Commander,
U.S. Coast Guard
Commandant (G-LMJ)
2100 2nd Street, S.W.
Washington, D.C. 20593-0001
(202) 267-0115
Attorney for Petitioner
2S
TT EPO
APPENDIX A
U.S. COURT OF MILITARY APPEALS
No. 67,757
CMR No. 968
UNITED STATES, APPELLEE
V.
MICHAEL J. CARPENTER, SUBSISTENCE SPECIALIST
SECOND CLAss, U.S. Coast GUARD. APPELLANT
Argued March 2, 1993
Decided Aug. 3, 1993
37 M.J. 291
Counsel
For Appellant: Lieutenant Commander Allen Lotz
(argued); Lieutenant Commander G. Arthur Robbins.
For Appellee: Lieutenant Commander Charles J.
Bennadini (argued).
Opinion of the Court
GIERKE, Judge:
A military judge sitting as a general court-martial con-
victed appellant, contrary to his pleas, of two specifica-
tions of assault with a dangerous weapon, one specifica-
tion of impersonating an agent of superior authority, two
specifications of willfu'ly damaging military property, and
(la)
2a
one specification of dereliction of duty, in violation of Ar-
ticles 128, 134, 108, and 92, Uniform Code of Military
Justice, 10 USC §§ 928, 934, 908, and 892, respectively.
The approved sentence provides for a dishonorable
discharge, confinement for 15 months, and reduction to
the lowest enlisted grade. The Court of Military Review
aifirmed the findings and sentence. 34 MJ 681 (1992).
We granted review of the following issues:
WHETHER THE GENERAL COURT-MARTIAL
MILITARY JUDGE AND THE JUDGES OF
THE COURT OF MILITARY REVIEW WERE
APPOINTED IN VIOLATION OF THE AP-
POINTMENTS CLAUSE OF THE CONSTITU-
TION.
WHETHER THE ASSIGNMENT OF MILITARY
APPELLATE JUDGES TO SERVE ON THE
COAST GUARD COURT OF MILITARY
REVIEW AS A MERE COLLATERAL DUTY
COMPLIES WITH THE DUE PROCESS RE-
QUIREMENTS OF ARTICLE 66, UCMJ.
Ill
WHETHER THE COURT OF MILITARY RE-
VIEW ERRED WHEN IT CONCLUDED THAT
THE GOVERNMENT SHOULD NOT BE HELD
ACCOUNTABLE FOR THE DELAY CAUSED
BY A SECOND RCM 706 INQUIRY CON-
DUCTED TO REMEDY GOVERNMENT AC-
KNOWLEDGED FAILURE TO PERFORM AN
ADEQUATE RCM 706 INQUIRY IN THE FIRST
INSTANCE.
3a
Appointment of Military Judges
Appellant elected to be tried by Captain Douglas A.
Smith, United States Coast Guard, a full-time military
judge designated, certified, and detailed in accordance
with Article 26, UCMJ, 10 USC § 826. After appellant was
convicted and sentenced, his case was reviewed by the
Court of Military Review, composed of Chief Judge
Baum, the full-time civilian Chief Judge of the Coast
Guard Court of Military Review, and two Coast Guard
captains serving as part-time appellate military judges in
addition to their other legal duties. Chief Judge Baum is a
retired Navy captain who served as an appellate military
judge while on active duty.
We held in United States v. Weiss, 36 MJ 224, 226-27
(1992), cert. granted, _. U.S. __, 113 S.Ct. 2412, 124
L.Ed.2d 635 (1993), that judicial duties must be perform-
ed by “Officers of the United States.” For the reasons set
out in Weiss, we hold that the military judge who tried and
sentenced appellant and the two Coast Guard officers who
sat as members of the Court of Military Review were ap-
pointed in a manner consistent with the Appointments
Clause of the Constitution, art. II, § 2, cl. 2. Regarding
the appointment of the Chief Judge, we reserved judgment
in Weiss on the question “whether Congress inadvertently
exceeded its authority by vesting the powers of an ‘Officer
of the United States’ in civilians who had not been ap-
pointed in accordance with the Appointments Clause.” 36
MJ at 233.
Appellant’s case presents three questions left
unanswered in Weiss: (1) Are appellate military judges of
a Court of Military Review “principal” officers, who must
be appointed by the President and confirmed by the
Senate, or “inferior officers,” who may be appointed by
the President alone, a Department Head, or a Court of
4a
Law? (2) Does the Appointments Clause require that a
retired military officer, who has not been recalled to active
duty, receive a new appointment to sit as a member of a
Court of Military Review? and (3) If the Chief Judge of
the Coast Guard Court of Military Review was not ap-
pointed in accordance with the Appointments Clause, is
the decision of that court in appellant’s case valid?
The Appointments Clause distinguishes between “prin-
cipal” officers, although it does not use that term, and “in-
ferior officers,” which are mentioned expressly. See
Freytag v. Commissioner of Internal Revenue, __ U.S. _,
_-__, 111 S.Ct. 2631, 2641-42, 115 L.Ed.2d 764 (1991).
The distinction between a “principal” and an “inferior” of-
ficer is not necessarily founded in the officer’s level or
scope of responsibility but, rather, in the manner of ap-
pointment. For “principal” officers, the Appointments
Clause divides the power to appoint between the President
and the Senate, requiring both nomination by the Presi-
dent and confirmation by the Senate as preconditions to
appointment. Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct.
612, 688, 46 L.Ed.2d. 659 (1976). The Clause expressly ap-
plies only to “Ambassadors, other public Ministers and
Consuls, (and) Judges of the supreme Court.” U.S.
Const., art. II § 2, cl. 2. Congress has the constitutional
power to decide who are otherwise “principal” officers. If
Congress chooses not to allow the President, the head of a
department, or a court of law to appoint an officer
without Senate confirmation, then that officer remains a
“principal” officer in the residual category of “all other
Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be
established by law.” if Congress allows the President, the
head of a department, or a court of law to appoint certain
officers without Senate confirmation, then those officers
Sa
are “inferior officers.” Buckley v. Valeo, 424 U.S. at 132,
96 S.Ct. at 688.
Congress has authorized the Secretary of Transporta-
tion to “appoint . . . officers and employees of the Depart-
ment of Transportation,” of which the Coast Guard is a
part (14 USC § 1), without Senate confirmation. 49 USC
§ 323. The Secretary of Transportation is the head of a
“department” as that term is used in the Appointments
Clause, since he is the head of one of the cabinet-level ex-
ecutive departments. See 5 USC § 101; Freytag v. C.1.R.,
__ U.S. at __, 111 S.Ct. at 2643, 115 L.Ed.2d at 785. Since
Congress has expressly delegated the appointment of “of-
ficers” within the Department of Transportation to the
Secretary of Transportation, the Appointments Clause
would be satisfied if the Secretary of Transportation ap-
pointed the judges of the Coast Guard Court of Military
Review. !
At the time appellant’s case was decided, judges of the
Coast Guard Court of Military Review were appointed by
the General Counsel, Department of Transportation, who
is also the Judge Advocate General for the United States
Coast Guard. See United States v. Claxton, 32 MJ 159,
160 n. * (CMA 1991). In view of 5 USC § 101, the General
Counsel is not a department head, so appointment by him
does not satisfy the Appointments Clause.
The Government argues that the General Counsel acted
as delegee of the Secretary of Transportation in appoint-
ing the judges of the Coast Guard Court of Military
Review. We reject that argument as inconsistent with the
' During oral argument we were advised by counsel that the
Secretary of Transportation, a department head within the meaning of
the Appointments Clause, see 37 MJ at 293, appointed all members of
the Court of Military Review on January 15, 1993, fully complying
with the Appointments Clause as of that date. See Appendix.
6a
intent of the framers of the Constitution to prevent “the
diffusion of the appointment power.” Freytag v. C.1.R.,
__ U.S. at _, 111 S.Ct. at 2638, 115 L.Ed.2d at 779; see
United States v. Weiss, 36 MJ at 226. Delegation of the
power to appoint “inferior officers” to the General
Counsel would violate the Appointments Clause, because
“the Constitution limits congressional discretion to vest
power to appoint ‘inferior officers’ to three sources: the
President alone, the Heads of Departments, and ‘the
Court of Law,’” Freytag v. C.1.R., __ U.S. at _, 111
S.Ct. at 2638, 115 L.Ed.2d at 779. Accordingly, we hold
that appointment of the Chief Judge of the Coast Guard
Court of Military Review by the General Counsel! of the
Department of Transportation does not satisfy the Ap-
pointments Clause.
The Government argues that, because the Chief Judge
of the Coast Guard Court of Military Review is a retired
Navy captain, he is already an Officer of the United States
by virtue of his military commission, so he does not need a
second judicial appointment to serve as an appellate mili-
tary judge. See United States v. Prive, 35 MJ 569, 579
(CGCMR i992) (Baum, C.J., concurring). There are two
flaws in this argument which cause us to reject it. First,
Chief Judge Baum is not acting in his capacity as a Navy
captain when he sits as an appellate military judge for the
Coast Guard. The Directory of Coast Guard Lawyers and
Billets, submitted with appellant’s pleadings, reflects that
the billet for the Chief Judge is a civilian billet. Chief
Judge Baum is paid as a civilian employee (GS-15), not as
a Navy captain, for his service as Chief Judge. When
retired officers are needed to perform military duties, they
are recalled to active duty and paid at the rate provided for
their military grade. See 10 USC § 688. Chief Judge Baum
was not recalled to active duty to serve on the Court of
7a
Military Review; he was appointed as a civilian to a
civilian office. In short, he is not discharging the office of
captain, United States Navy, but that of a senior civilian
within the Coast Guard.
Second, Chief Judge Baum’s duties as Chief Judge are
not “germane” to the duties of a retired Navy officer. A
retired military officer is an Officer of the United States.
See McCarty v. McCarty, 453 U.S. 210, 221-22, 101 S.Ct.
2728, 2735-36, 69 L.Ed.2d 589 (1981); United States v.
Tyler, 105 U.S. 244, 26 L.Ed. 985 (1882); Flower v. United
States, 31 Ct.Cl. 35, 1800 WL 1926 (1895). Nevertheless, a
retired officer has no duties; he is in the status of an of-
ficer “placed on waiting orders.” Flower v. United States,
supra at 41; see Gibson v. United States, 47 Ct.Cl. 554,
1911 EL 1380 (1912). Since Chief Judge Baum has no
duties as a retired officer, the “germane duties” analysis of
Weiss and Shoemaker v. United States, 147 U.S. 282, 301,
13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), cannot apply to
him.
Finally, the Government argues that Chief Judge Baum
is not a “civilian” because Article 142(b), UCMJ, 10 USC
§ 942(b), requiring that judges of the Court of Military
Appeals be appointed “from civilian life,” specifically ex-
cludes certain retired military officers (including Chief
Judge Baum) from the definition of “civilian life,” see Art.
142(b)(4). While Chief Judge Baum may not be a
“civilian” for purposes of appointment to the Court of
Military Appeals, we regard that definition as limited to
Article 142, which was intended to ensure that the Court
of Military Appeals be an independent civilian court unen-
cumbered by ties to any of the military services.
Based on the foregoing analysis, we hold that Chief
Judge Baum’s status as a retired military officer does not
satisfy the Appointments Clause.
8a
We next turn to the question of the effect of the Chief
Judge’s defective appointment. Just as the acts of the
federal election commissioners were accorded de facto
validity in Buckley v. Valeo, 424 U.S. at 142, 96 S.Ct. at
693, we hold that the judicial acts of the Chief Judge are
entitled to de facto validity. Accordingly, we hold that the
decision of the Court of Military Review in this case is
valid, . . withstanding the defective appointment of the
Chief Judge.
Part-Time Judges
Appellant contends that he was denied due process of
law because two appellate military judges of the panel
which decided his case were not assigned to the Court of
Military Review as a primary duty. The Coast Guard
Organization Manual, COMDTINST M5400.7C (7
Dec.1990), provides:
The Court of Military Review, established under Arti-
cle 66, UCMJ, by the Judge Advocate General
(General Counsel DOT) is composed of the Chief
Judge and not less than two additional appellate
military judges. The judges may be commissioned of-
ficers or civilians. The Coast Guard Court of Military
Review is normally composed of one panel of five ap-
pellate judges. All but the Chief Judge are normally
Division Chiefs who serve on the court as a collateral
duty.
COMDTINST M5400.7C, supra at 2.7.8.
Appellant bases his argument on two decisions from our
Court which held that it was jurisdictional error to detail
military judges to general courts-martial whose primary
duty was other than judicial duties. United States v.
Beckermann, 27 MJ 334 (CMA 1989); United States v.
el
eee
9a
Moorehead, 20 USCMA 574, 44 CMR 4 (1971). Those
decisions are distinguishable from appellant’s case because
they were based on Article 26(c) of the Code which pro-
vides:
A conimissioned officer who is certified to be
qualified for duty as a military judge of a general
court-martial may perform such duties only when he
is assigned and directly responsible to the Judge Ad-
vocate General, or his designee, of the armed force of
which the military judge is a member and may per-
form duties of a judicial or nonjudicial nature other
than those relating to his primary duty as a military
judge of a general court-martial when such duties are
assigned to him by or with the approval of that Judge
Advocate General or his designee.
No such or similar provision is found in Article 66, UC-
MJ, 10 USC § 866, pertaining to appellate military judges
assigned to a Court of Military Review. We have found
nothing in the legislative history of Article 66 indicating
that Congress intended that the duty restrictions of Article
26(c) be incorporated in Article 66. We decided
Moorehead on the basis of a statutory requirement, not
constitutional due process. The purpose of the statutory
requirement was explained in Beckermann: “to assure the
independence and the professionalism of the judges who
presided over general court-martial.” 27 MJ at 338. The
concern of Congress in enacting Article 26(c) was to
remove trial judges from the command of convening
authorities and commanders in the field and place them
under the direct supervision and control of the Judge Ad-
vocate General or his designee. /d. In United States v.
Graf, 35 MJ 450 (CMA 1992), cert. granted sub nom.
Weiss v. United States, supra (see 37 MJ at 293), we grap-
pled with the requirement for judicial independence at
: er
10a
both the trial and appellate levels, and we concluded that,
even without a fixed term of office, both trial and ap-
pellate military judges enjoy institutional protections suf-
ficient to guarantee their judicial independence and
thereby satisfy constitutional due process. The Coast
Guard Organization Manual provides institutional in-
dependence by requiring that only division chiefs in the of-
fice of the Chief Counsel, not subject to the control of
convening authorities in the field, be assigned collateral
duty as appellate military judges. 37 MJ at 295. Accor-
dingly, we are satisfied that the appellate military judges
who decided appellant’s case were sufficiently independent
to satisfy the requirements of constitutional due process.
We hold that, absent a statutory provision such as that
in Article 26(c), there is no constitutional or statutory re-
quirement that appellate military judges perform only
judicial duties or that they serve as full-time judges.
Whether such a requirement would be desirable is a ques-
tion for Congress, not this Court. See United States v.
Weiss, 36 MJ at 234.
Speedy Trial
At trial, appellant moved to dismiss the charges for lack
of speedy trial. At issue is the period from May 7 to June
4, 1990, during which a second inquiry into appellant’s
mental capacity to stand trial was conducted, pursuant to
the order of the military judge. If that period is charged to
the Government, appellant is entitled to dismissal of the
charges in accordance with RCM 707(d), Manual for
Courts-Martial, United States, 1984.
Appellant was placed in pretrial confinement on
February 3, 1990. His commander ordered a one-member
sanity board on the following grounds:
SS2 Carpenter is charged with serious UCMJ offenses
alleging willful discharge of a firearm on two separate
lla
occasions into living spaces, which placed the in-
habitants in serious physical danger. On one occa-
sion, the accused discharged a .22 caliber rife (sic) in-
to the communications spaces inhabited by the Coast
Guard Station Brant Point watchstanders. In the
other instance, SS2 Carpenter allegedly fired the same
.22 caliber rifle with a scope through the bathroom
window of a government owned housing unit, which
was then occupied by a Coast Guard dependent wife.
In the course of the investigation of these instances,
SS2 Carpenter supposedly falsely portrayed himself
as a Coast Guard Intelligence Agent to the local
police so that he could examine any evidence that had
been collected. Additionally, there is information
which indicates that SS2 Carpenter had received
psychological testing and evaluation as a result of his
response to stressful situations in the past. Due to the
seriousness of the charges and the apparent lack of a
discernible motive on the part of the accused, an ex-
amination into the accused’s mental condition is
deemed warranted.
Appellant was examined by the one-member sanity
board on March 5, 1990. On March 12 the sanity board
issued its report finding appellant competent to stand trial.
The charges were referred to a general court-martial on
April 24.
On May 3, 1990, trial counsel informed defense counsel
that he belived that appellant was not competent to stand
trial. Trial counsel based his belief on information that ap-
pellant was continuing to claim that he was a United States
Treasury Agent and that appellant claimed to have been
associated with the “CIA,” so he might be suffering from a
“grandiose delusional disorder.” See 34 MJ at 682.
l2a
Both trial counsel and defense counsel visited the con-
vening authority to discuss the possibility of alternate
disposition of the case if appellant was not competent. The
convening authority suggested raising the issue with the
military judge.
At a conference under RCM 802 on the same day, trial
counsel requested the military judge to order a new sanity
board. Defense counsel indicated that the original sanity
board had been “cursory and inadequate,” that he did not
oppose the motion for a new sanity board, but that he
could not request it because “it would strain his relation-
ship with his client.” On May 4 the military judge ordered
a second sanity board. At a later RCM 802 conference, ap-
pellant objected to any further delays of his case and in-
formed the military judge that he disagreed with his
counsel’s decision not to oppose the request for a new sani-
ty board.
On May I1, 1990, defense counsel learned that ap-
pellant’s references to “CIA” were to the Culinary Institute
of America, not the Central Intelligence Agency. Counsel
requested another RCM 802 conference to inform the
military judge that he no longer considered a second sanity
board necessary and to request that the charges be dis-
missed for a violation of RCM 707 or that “trial proceed
immediately.” Trial counsel argued that a second sanity
board was still necessary because appellant “had been
misrepresenting himself as a treasury agent for the past 8
years” and had engaged in “other bizarre behavior,” in-
cluding drawing a weapon on a fellow crew member and
threatening a local civilian police officer. The military
judge informed both counsel that he “would NOT enter-
tain” a motion to dismiss in an RCM 802 conference but
that he “remained convinced” of the need for a new sanity
board.
l3a
Arrangements were made to have appellant evaluated
by a three-member sanity board at Lackland Air Force
Base, located in San Antonio, Texas. On May 14 appellant
arrived at Lackland for an estimated 2-week period of in-
patient evaluation. After “extensive observation,
psychological testing, an electroencephalogram, and a
computed tomogram (CT scan) of his head” as well as a
personal interview, the sanity board determined that ap-
pellant had “sufficient mental capacity” to stand trial. On
May 25 he was returned to his home duty station in Nan-
tucket, Massachusetts.
When the court-martial convened on June 4, 1990,
defense counsel moved to dismiss the charges for violation
of RCM 707. As the basis for his argument that the time
required for the second sanity board should be charged to
the Government, defense counsel argued that the Govern-
ment had negligently misinterpreted appellant’s reference
to the “CIA” and that the two instances of bizarre
behavior used to justify the second sanity board were
known to the Government in February, well before the
first sanity board, but were not made known to that sanity
board. Defense counsel did not assert “bad faith” on the
part of the Government.
The military judge denied the motion to dismiss. In his
written findings of fact and ruling on the motion, the
military judge stated that his bases for ordering a second
sanity board were:
(1) the trial counsel’s representations that the infor-
mation concerning the accused’s claims to be an agent
of various other government agencies had not been
brought to the attention of the initial RCM 706 Board
and (2) both counsel’s representations that the actual
examination which formed the basis for the first
RCM 706 report (Def.Ex.B) had only lasted 2-3
hours.
l4a
Regarding the mistaken references to the “CIA,” the
military judge stated:
[T]he defense counsel’s representation on 11 May
1990 that the Government’s mistaken belief that the
accused had represented himself to be a CIA agent
eight years ago was not enough to convince me that a
further examination was no longer necessary. I reach-
ed this conclusion because I never specifically relied
on that piece of information in making my original
decision to order the new evaluation. The basis for
continuing my order was that the prior evaluation was
not trustworthy and that a more thorough evaluation
would serve the ends of justice.
The military judge ruled that the “entire period” re-
quired for the second sanity board, from May 7 until June
4, 1990, was excludable from the time chargeable to the
Government. By excluding that period from the time
chargeable to the Government along with a total of 19
days which are not challenged, the military judge charged
the Government with responsibility for only 74 of the 122
days of delay.
Two issues are involved: (1) Did the military judge
abuse his discretion by ordering a second sanity board?
and (2) was the time required to conduct the second sanity
board properly excluded from the time chargeable to the
Government?
The question whether additional psychiatric examina-
tion is necessary rests within the discretion of the military
judge and is reviewable only for abuse of discretion.
United States v. Frederick, 3 MJ 230, 232-33 (CMA 1977).
We hold that the military judge did not abuse his discre-
tion by ordering a second sanity board in this case. Both
counsel regarded the first sanity board as cursory and in-
adequate. Both counsel informed the military judge that
iSa
the first sanity board had not considered significant rele-
vant information. Under the circumstances, it was well
within the limits of the military judge’s discretion to order
a second sanity board.
Turning to the second issue, we note that RCM 707(d)
and (e), prior to that Rule’s amendment on July 6, 1991,
provided that failure to bring an accused held in pretrial
confinement to trial within 90 days “shall result in
dismissal of the affected charges upon timely motion by
the accused.” RCM 707(c)(1)A) specifically excluded
from the 90-day period any delays resulting from an “ex-
amination into the mental capacity or responsibility of the
accused.” Nevertheless, as we stated in United States v.
Longhofer, 29 MJ 22, 27 (CMA 1989), “[I]t cannot be said
that the mere happening of any of the events listed in
RCM 707(c)\(1)-(8) results in an aufomatic exclusion,
because all of them contemplate that the length of time ex-
cluded will be reasonable.”
Appellant argues that the delay attributable to the sec-
ond sanity board is not reasonable because the Govern.
ment was negligent. See United States v. Longhofer, 29
MJ at 29 (exclusion is inapplicable when the Government
has not been “reasonably diligent” in pursuing pretrial
matters). He argues that a second sanity board would not
lave been necessary if the Government had provided al!
relevant information to the first sanity board. The Court
of Military Review rejected the “negligence” standard and
decided the speedy-trial issue on a “bad-faith” standard.
34 MJ at 685. We hold that the correct standard is neither
negligence nor bad faith; the correct standard under
Longhofer is reasonabieness.
The Longhofer requirement that excludable periods of
time be “reasonabie” does not necessarily require mistake
free processing. Nevertheless, evidence of either
16a
negligence or bad faith is relevant to the extent that it
proves whether the event in question was accomplished in
a reasonable period of time. The parties do not dispute
that the second sanity board in this case was conducted in
a reasonable period of time. Having reviewed the record,
we hold that the period from May 7 to June 4 was a
reasonable time to arrange for an extensive evaluation in a
facility operated by a sister service in a distant place. Ac-
cordingly, we hold that the Court of Military Review did
not err in holding that the Government should not be held
accountable for the delay caused by the second sanity
board.
Assuming arguendo that the time consumed by the first
sanity board was “unreasonable” because the board was
not conducted properly, adding the period from March 5
to 12 to the time chargeable to the Government still leaves
the total chargeable time well below 90 days. Accordingly,
we hold that appellant was not entitled to dismissal of the
charges for a violation of RCM 707(d).
We have also considered whether appellant is entitled to
dismissal of the charges under the more stringent re-
quirements of United States v. Burton, 21 USCMA 112,
44 CMR 166 (1971), as modified by United States v.
Driver, 23 USCMA 243, 49 CMR 376 (1974). The record
does not reflect whether the first psychiatric examination
was requested by the defense or was simply ordered by the
command. In either event, the delay associated with that
examination is not chargeable to the Government. See
United States v. McClain, 1 MJ 60, 63 (CMA 1975)
(psychiatric examination requested by pretrial investi-
gating officer not chargeable to Government). The second
psychiatric examination was ordered by the military judge,
not because of the mistaken references to the “CIA” but
because he was convinced that appellant’s behavior
17a
warranted a more extensive evaluation. This delay likewise
is not chargeable to the Government. /d. The delay
associated with the two psychiatric examinations, when
added to earlier delays requested by the defense, brings the
time chargeable to the Government below 90 days.
Therefore, the Burton presumption of a violation of Arti-
cle 10, UCMJ, 10 USC § 810, was not triggered in this
case.?
Decision
The decision of the United States Coast Guard Court of
Military Review is affirmed.
Judge Cox concurs.
* Having found no Burton violation, we need not decide whether
RCM 707, Manual for Courts-Martial, United States, 1984, supersed-
ed Burton. See United States v. Kossman, 37 MJ 232 (CMA 1993)
(raising issue whether RCM 707 overruled Burton).
18a
APPENDIX
U.S. DEPARTMENT OF TRANSPORTATION
Office of the Secretary of Transportation
MEMORANDUM
Subject: APPOINTMENT OF APPELLATE MILITARY
JUDGES TO THE COAST GUARD COURT OF
MILITARY REVIEW
Date: January 15, 1993
From: The Secretary
To: Chief Judge, U.S. Coast Guard Court of Military
Review
1. The assignment of appellate military judges to the
Coast Guard Court of Military Review, as reflected in the
General Counsel’s memo of April 20, 1992, is adopted this
date as judicial appointments of my own. Those judges
presently assigned and appointed by me are:
Chief Judge
Joseph H. Baum
Judges
Alfred F. Bridgman, Jr.
Michael C. Grace
John A. Bastek
Terrance M. Edwards
The judicial duties and powers of these judges will be as
prescribed under the Uniform Code of Military Justice.
19a
SULLIVAN, Chief Judge (concurring):
I agree with the principal opinion in this case, although |
dissented in United States v. Weiss, 36 MJ 224, 240 (CMA
1992), cert. granted, _. U.S. __, 113 S.Ct. 2412, 124
L.Ed.2d 635 (1993). I perceive no inconsistency in this
regard because of the manner in which the particular Ap-
pointments Clause, see 37 MJ at 293, question is resolved
in this case.
CRAWFORD, Judge (concurring in part and in the result):
i wholeheartedly concur with the principal opinion con-
cerning the discussion of part-time judges and the speedy
trial issue. However, I only concur in the result as to ap-
plication of the Appointments Clause, see 37 MJ at 293, to
appellate judges. United States v. Weiss, 36 MJ 224, 234
(CMA 1992) (Crawford, J., concurring in the result), cert.
granted, __ U.S. __, 113 S.Ct. 2412, 124 I..Ed.2d 635
(1993).
Wiss, Judge (concurring in part and in the result):
As to Issue I, | concur in the result. For the reasons that
I set Out in my dissenting opinion in United States vy.
Weiss, 36 MJ 224, 256 (CMA 1992), cert. granted, __ U.S.
—, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993), I believe that
neither the military judge nor any of the appellate judges
were properly appointed. However, | am willing to apply
the de facto-appointee rationale of Buckley v. Valeo, 424
U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), to this case:
Concerning the military judge and the associate judges of
the Court of Military Review, the majority in Weiss ap-
proved their appointment, so I will consider them de facto
appointees; as to the Chief Judge of the Court of Military
Review, since he acted on this case before this Court held
his appointment improper, | join in extending his appoint-
ment de facto validity.
20a
Regarding Issue II, | must confess some misgivings
about at least the appearance of lack of total objectivity
when associate appellate judges’ principal assignments are
as division chiefs under the immediate supervision of the
Chief Counsel, the Coast Guard’s top-ranking uniformed
lawyer. The unanimous opinion of this Court in United
States v. Graf, 35 MJ 450 (CMA 1992), cert. granted sub
nom. Weiss v. United States, supra, however, ultimately
persuades me to concur in the principal opinion that due-
process notions are not offended by the Coast Guard’s
structure of its Court of Military Review.
As to Issue III, I concur in the principal opinion’s
discussion and disposition of the claimed denial of speedy
trial under RCM 707, Manual for Courts-Martial, United
States, 1984. I concur only in the result, however, with the
disposition of the speedy-trial claim under United States v.
Burton, 21 USCMA 112, 44 CMR 166 (1971). I do not
read the Court’s opinion in United States v. McClain, |
MJ 60 (CMA 1975), to support a black-letter rule that a
pretrial psychiatric examination is never chargeable to the
Government for Burton purposes. The Court there took
pains to make clear to the contrary:
For the purposes of this case, and without definitively
assigning to which party the period involved in a sani-
ty inquiry is chargeable, the 18-day delay in the Arti-
cle 32 investigation for the examination of this accused
will not be considered against the Government.
Id. at 63. In any event, assuming that this case does give
rise to the Burton presumption of a violation of Article 10,
Uniform Code of Military Justice, 10 USC § 810, the fac-
tual circumstances fully set out in the principal opinion
lead me to conclude that extraordinary circumstances ac-
counted for not trying appellant within 90 days of his
pretrial confinement so that the presumption is rebutted.
2la
APPENDIX B
UNITED STATES COAST GUARD
COURT OF MILITARY REVIEW
CGCM No. 0042
Docket No. 968
UNITED STATES
V.
MICHAEL J. CARPENTER, SUBSISTENCE SPECIALIST
SECOND CLASS, U.S. CoAstT GUARD
January 27, 1992
34 M.J. 681
General Court-Martial convened by Commander, First
Coast Guard District, Boston, Massachusetts. Tried at the
Office of the Commander, First Coast Guard District,
Boston, Massachusetts on 11-14 June 1990.
Military Judge: CAPT Douglas A. Smith, USCG.
Trial Counsel: LT John B. Gately, USCG
Defense Counsel: LT Jeffrey D. Stieb, USCG
Appellate Defense Counsel: LCDR G. Arthur Robbins,
USCG
Appellate Government Counsel: LCDR Charles J.
Bennardini, USCG
BEFORE
PANEL TWO
BAUM, GRACE, AND BASTEK
Appellate Military Judges
22a
GRACE, Judge:
The Appellant was tried by a general court-martial con-
sisting of a military judge alone. Contrary to his pleas, he
was found guilty of two specifications of assault with a
dangerous weapon under Article 128 of the Uniform Code
of Military Justice (UCMJ), one specification of imper-
sonating an agent of superior authority under Article 134,
UCMJ, two specifications of willfully damaging military
property under Article 108, UCMJ, and one specification
of dereliction of duty under Article 92, UCMJ. He was
sentenced to confinement at hard labor for fifteen
months, reduction to the lowest enlisted pay grade (E-1),
and to be discharged from the service with a Dishonorable
Discharge. The convening authority approved the sentence
as adjudged.
On the evening of 31 January 1990, the Communica-
tions Watch at the Brant Point Coast Guard Station on
Nantucket Island was disrupted when four .22 caliber
bullets smashed through the watchroom’s double-plated
glass window where a Coast Guard watchstander was on
duty. Two nights later, at a Coast Guard government
housing unit, three more shots were fired through a bath-
room window just as the occupant left the bathroom and
turned out the light. No one was injured in either incident.
Petty Officer Second Class Michael Carpenter was ac-
cused of firing the shots and was arrested and placed in
pretrial confinement.
The Appellant has raised four errors before this court.
Oral argument was heard on October 17, 1991, and the
case is ready for decision.
Petty Officer Carpenter was arrested and placed in pre-
trial confinement on 3 February 1990. On March §, the
Convening Authority ordered a sanity board under Rule
for Courts-Martial 706. “If it appears to any commander
23a
who considers the disposition of charges . . . that there is
reason to believe that the accused lacked mental respon-
sibility for any offense charged or lacks capacity to stand
irial, that fact and the basis of the belief or observation
shall be transmitted . . . to the officer authorized to order
an inquiry into the mental condition of the accused.”
R.C.M. 706(a). The Convening Authority is authorized to
order such an inquiry before referral of charges. R.C.M.
706(b). The basis for ordering the evaluation was “the
seriousness of the charges and apparent lack of discernible
motive on the part of the accused. .. .” Commander,
U.S. Coast Guard Group Woods Hole letter dated 5
March 1990. After an examination by a one-person board,
the Appellant was declared mentally competent to par-
ticipate in his own defense and was found not to be suffer-
ing from a mental disease or defect at the time of the com-
mission of the offenses.
On 3 May 1990, the Trial Counsel informed the Defense
Counsel that he believed that the Appellant was not com-
petent to stand trial. The Trial Counsel had recently
learned that the Appellant continued to claim that he was
a United States Treasury Agent. The Trial Counsel had
also received information that the Appellant had claimed
to have been with the C.I.A. This information led the
Trial Counsel to believe that the Appellant might be suf-
fering from a grandiose delusional disorder. Additional
information had also come to the Trial Counsel’s attention
that Appellant had made threats against a local police of-
ficer and had “drawn down” on a fellow crewmember on
31 January 1990. (“Drawing down” apparently involved
pointing a pistol at the crewmember and continuing to
point it at him for an extended period of time.)
On May 5, 1990, the Trial Counsel requested another
sanity evaluation under R.C.M. 706. An R.C.M. 802 Con-
24a
ference was held,' in which the Defense Counsel! con-
curred in Trial Counsel’s request.
Based on the representations by the Trial Counsel, the
military judge ordered the second R.C.M. 706 evalua-
tion.? In his “Essential Findings and Ruling on Speedy
Trial Motion” he stated that the deciding factors in order-
ing a second R.C.M. 706 evaluation were: “(1) the trial
counsel’s representations that the information concerning
the accused’s claims to be an agent of various other
government agencies had not been brought to the atten-
tion of the initial R.C.M. 706 Board and (2) both counsel’s
representations that the actual examination which formed
the basis for the first R.C.M. 706 report (Def. Ex. B) had
only lasted 2-3 hours.” Appellate Exhibit XL at page 2.
[Emphasis appears in the original.}| He went on to say
“Itlhe basis for continuing my order was that the prior
evaluation was not trustworthy and that a more thorough
evaluation would serve the ends of justice.” Appellate Ex-
hibit XL at page 2.
The first evidence was presented on the merits 123 days
after the Appellant was ordered into pretrial confinement
on 6 June 1990. The Appellant moved for dismissal of all
charges based upon a denial of his right to a speedy trial.
R.C.M. 707° requires that an accused be brought to trial
' R.C.M. 802. Conferences.
(a) In general. After referral, the military judge may, upon re-
quest of any party or sua sponte, order one or more conferences with
the parties to consider such matters as will promote a fair and ex-
peditious trial.
2“. The military judge may order a mental examination of the
accused regardless of any earlier determination by the convening
authority.” R.C.M. 706(b)(2).
> R.C.M. 707 was changed by Change No. 5 to the M.C.M. on 27
June 1991. However, since this case was tried before that change was
in affect, all references to R.C.M.s are to the R.C.M. in effect on the
date of trial.
25a
within 120 days after the imposition of restriction in lieu
of arrest, or pretrial confinement pursuant to R.C.M.
304(a). In addition, R.C.M. 707(d) requires that im-
mediate steps shall be taken to bring to trial an accused in
pretrial arrest or confinement under R.C.M. 304 or 305. It
also provides that no accused shall be held in pretrial ar-
rest or confinement in excess of 90 days. If an accused is
held in pretrial confinement beyond 90 days (not counting
certain deductible periods), a presumption arises that the
accused’s right to a speedy trial has been violated. U.S. v.
Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Cer-
tain periods are excluded from the Government’s account-
ability when calculating the 90 days under R.C.M. 707(d).
The military judge took evidence on the motion and made
essential findings. The military judge denied the Ap-
pellant’s motion for dismissal after concluding that four
periods of delay, including a 29-day delay associated with
a second R.C.M. 706 evaluation, were excluded from the
Government’s accountability.
* The military judge ruled that the following were excluded from
Government accountability: |. The first R.C.M. 706 examination §-12
March 1990, 8 days; 2. A defense requested delay in the Article 32 In-
vestigation 17-26 March 1990, 8 days; 3. A defense requested delay 4-7
May 1990, 3 days; and 4. The second R.C.M. 706 examination 7
May-4 June 1990, 29 days. “Essential Findings and Ruling on Speedy
Trial Motion,” Appellate Exhibit XL.
26a
Assignment of Error 1
THE MILITARY JUDGE ERRED TO THE
SUBSTANTIAL PREJUDICE OF THE AC-
CUSED, BY EXCLUDING FROM GOVERN-
MENT SPEEDY TRIAL ACCOUNTABILITY
THE UNREASONABLE DELAY CREATED BY
A SECOND R.C.M. 706 EVALUATION THAT
WAS A RESULT OF THE GOVERNMENT'S
FAILURE TO ADEQUATELY CONDUCT THE
INITIAL R.C.M. 706 EVALUATION.
There are two aspects to the ordering of the second
R.C.M. 706 examination. The first is whether the military
judge acted properly in ordering the second examination.
The second is whether the Government should be held ac-
countable for the 29-day delay that occurred while the ex-
amination was conducted and the board’s report was filed.
The Appellant focused this appeal on the latter aspect
and argues that the military judge committed prejudicial
error by failing to hold the Government accountable for
its negligence in conducting the first R.C.M. 706 examina-
tion without providing the medical board all relevant in-
formation in the possession oi the Government. Before
discussing that issue, we will dispose of any doubt con-
cerning the first aspect of this issue.
“{T]he question of whether another examination was
necessary was a matter within the discretion of the military
judge.” U.S. v. Frederick, 3 M.J. 230, 232-233 (CMA
1977). This Court is satisfied that the military judge did
not abuse his discretion by ordering a second R.C.M. 706
examination. The judge conducted a full inquiry into the
necessity for a second sanity board. His ruling is sup-
ported by the evidence on the record. His ruling was well
within his discretion, and we find he did not abuse that
discretion.
27a
The issue raised by the Appellant is not one concerning
the appropriateness of the judge’s ruling, but rather
whether the Government should be charged for the 29-day
delay resulting from the second R.C.M. 706 examination.
The military judge ruled that the 29-day delay should be
excluded from the Government’s accountability. The Ap-
pellant is asking us to overrule the military judge and
charge the delay to the Government due to its negligence
by failing to make certain information available to the
first R.C.M. 706 board.
The military judge held the Government accountable
for 74 days of delay under the Speedy Trial Rule (R.C.M.
707(d) ). If the Appellant’s argument prevails, 29 addi-
tional days would be added to the Government’s accoun-
tability bringing the total to 103 days thereby violating the
R.C.M. 707 (d) 90-day rule.
At trial it became clear that, although the Trial Counsel
believed the information provided to the military judge at
the R.C.M. 802 Conference to be new, a Government in-
vestigator had learned of these incidents as early as 13 or
14 February 1990. Also the reference to the C.I.A. was
found to be a reference to the Culinary Institute of
America, not the Central Intelligence Agency.
Despite the fact that agents of the Government knew of
these incidents and they were not reported to the first
R.C.M. 706 board, the military judge found “that the
government did not act in bad faith in failing to inform the
initial R.C.M. 706 Board about the accused’s claimed in-
volvement with other government agencies or about the
two incidents described (Threats and ‘drawing down’) in
Para. 2 of App. Exh. VII.” Appellate Exhibit XL at page
3. He went on to say “I also find that the government did
not act in bad faith in misinterpreting the information it
received about the ‘CIA’ from then SSC Bernard.” Ap-
pellate Exhibit XL at page 3.
28a
As far as this Court can determine, there are no
established standards for what must be presented to a
board conducting an R.C.M. 706 evaluation. Moreoever,
we have found no cases on the precise issue before this
Court: whether there are exceptions to the R.C.M. 707 (c)
(1)(A) mandate requiring exclusion from speedy trial com-
putation of delay resulting from examination into the
mental capacity or responsibility of an accused and, if
there are such exceptions, under what circumstances
should they apply. In other words, when, if ever, should
the Government be held accountable for the delay
resulting from an R.C.M. 706 mental evaluation of the ac-
cused?
While no cases have been found directly on point, there
is language in U.S. v. Tebsherany, 32 M.J. 351 (CMA
1991) which offers guidance. That case dealt with a speedy
trial issue and the accountability for delay requested by the
defense. When determining whether the requirement for
trial within 120 days has been met, R.C.M. 707 (c)(3) calls
for exclusion of defense requested delay in the same man-
ner as delay from mental examination under R.C.M. 707
(c)(1)(A).
Despite that provision, Judge Cox, in U.S. v. Teb-
sherany supra, points to at least one instance when defense
requested delay may be included in the 120 days for which
the Government is accountable:
If the Government interferes with discovery or acts in
had faith to preclude defense counsel’s preparation
for...{an Article 32 investigation] proceeding, an ac-
cused would be deprived of his right to effective
representation. From this, it would follow that time
requested by counsel to examine material not disclos-
ed until the pretrial investigation might, under facts
showing bad faith, be charged to the United States in
accounting for pretrial delay. (Emphasis added)
29a
Here, the Appellant has asked this Court to take a giant
leap beyond that contemplated in U.S. v. Tebsherany,
supra, citing as authority language in l’.S. v. Longhofer,
29 M.J. 22, 27 (CMA 1989}, U.S. v. Carlisle, 25 M.J. 426,
428 (CMA 1988) and U.S. v. Cherok, 22 M.J. 438, 440
(CMA 1986). Appellant argues that negligence rather than
bad faith on the part of the Government should require
charging the Government with the delay from the second
mental examination board. Appellant asserts that infor-
mation used as a basis for requesting the second R.C.M.
706 board was known by Government agents at the time of
the first examination and should have been transmitted to
that first board. Negligence is not providing that known
information to the first board and the negligent manner in
which the first examination was conducted should shift ac-
countablity for delay to the Government, according to Ap-
pellant.
We need not reach the question whether there was, in
fact, negligence on the part of the Government because we
do not believe that negligence is the proper standard for
assessing whether delay normally excluded from speedy
trial computation should be charged to the Government.
U.S. v. Tebsherany, supra, suggests a “bad faith” standard
for such matters, and we agree with that approach. That,
in fact, was the standard the trial judge applied when he
made his findings.
Accordingly, we reject the argument that this Court
should establish a “negligence” standard for the informa-
tion that must be provided to a R.C.M. 706 Board. We
find that the military judge’s use of “bad faith,” as the
standard to be applied to the Government in this case, ap-
propriate for measuring the Government’s actions when
providing information to a board convened under R.C.M.
706.
30a
As a separate matter, the Discussion section, following
the R.C.M. 707(d) 90-day confinement provision, refers to
judicial decisions holding that a presumption of speedy
trial violation arises when an accused has been in pretrial
confinement for more than 90 days. This is based on the
language found in U.S. v. Burton, supra. Our reading of
R.C.M. 707(d) in conjunction with U.S. v. Burton, supra,
leads us to conclude that a two-part analysis must be done
when analyzing delays in bringing an accused to trial who
was in pretrial confinement for longer than 90 days. We
must be satisfied that the delays excluded from the
Government’s accountability were properly excluded
under R.C.M. 707(d) and that the Government has over-
come its heavy burden under U.S. v. Burton, supra, to
show that the accused’s right to a speedy trial under Article
10, UCMJ was not violated. The discussion of that rule in-
dicates that reasonable delays for examinations into men-
tal capacity or mental responsibility ordinarily are not in-
cluded in the 90-day presumption. No elaboration of the
term reasonable is provided—whether it relates only to
length of delay or is broad enough to encompass
reasonableness in ordering the examination. Under either
interpretation, we find the delay for the second examina-
tion was reasonable. It was not unduly long, and the judge
had a reasonable basis for ordering it.
We find that the military judge did not abuse his discre-
tion when he did not charge the 29-day delay for the sec-
ond R.C.M. 706 Board to the Government. We are satis-
fied by that ruling that the Government’s burden under
U.S. v. Burton, supra, was also met. His ruling on the
Speedy Trial Motion was proper and will not be reversed.
Based on that ruling, the Appellant was brought to trial
within the time limits prescribed by law.
Mee
3la
This Court commends the participants in this court-
martial for the manner in which they fulfilled the obliga-
tion to ensure that an accused who may not be competent
to stand trial or may not be mentally responsible for the
offenses for which charged does not stand trial. The
record shows that the trial counsel, defense counsel and
military judge all had doubts about the Appellant’s mental
condition and took the appropriate steps required by the
UCM] to ensure that he was fully evaluated prior to trial.
Assignment of Error Il
CHARGE II AND THE SPECIFICATIONS
THEREUNDER ARE MULTIPLICIOUS FOR
FINDINGS WITH SPECIFICATIONS | AND 2
OF CHARGE |
Although this Court, in an earlier decision (U.S. v.
Howard, 24 M.J. 897 (CGCMR 1987)), exhaustively ex-
amined multiplicity, this case does not require that kind of
exhaustive analysis. The basic rule for multiplicity laid out
in U.S. v. Baker, 14 M.J. 361 (CMA 1983) will suffice.
The U.S. Court of Military Appeals has held that “in cases
in which application of the Baker standard has compelled
a conclusion that findings were multiplicious, we have
viewed as plain error the failure of the trial or intermediate
appellate courts to dismiss the included offenses. In such
instances, we have not hesitated to grant relief, even
though the defense had not complained of multipli-
ciousness at trial or on appeal.” U.S. v. Holt, 16M.J. 393,
394 (CMA 1983). In Holt the Court went on to say
“however, we do not believe that, in testing for multipli-
ciousness, we need go beyond the language of the
specifications on which the case is tried.” /d. at 394.
32a
The Appellant raises for the first time on appeal the
issue of multiplicity for finding of Specifications | and 2
of Charges | and II. We have examined the specifications
to determine if, after applying the Baker Rule, we are
compelled to make the conclusion that the findings were
multiplicious. Our answer is no. The specifications under
Charge I allege assaults with intent to commit murder
against named individuals with a dangerous weapon by
firing it through a window. The specifications were
modified by the military judge during his findings to just
assaults with a dangerous weapon.
The specifications under Charge II allege that on two
occasions the Appellant without proper authority willfully
damaged, by gunfire, military property of the United
States.
The elements of proof of assault with a dangerous
weapon are: (1) That the accused attempted to do bodily
harm to a certain person; (2) That the accused did so with
a certain weapon; (3) That the attempt was done with
unlawful force or violence; (4) That the weapon was used
in a manner likely to produce death or grievous bodily
harm; and (5) That the weapon was a loaded firearm.
Manual for Courts-Martial (M.C.M.) paragraph
54b(4)(a).
The elements of proof for destruction of military pro-
perty are: (1) That the accused, without proper authority,
damaged certain property; (2) That the property was
military property of the United States; (3) That the
damage was willfully caused by the accused; and (4) That
the damage was of a certain amount. M.C.M. paragraph
32d(2).
The specifications under Charge | allege crimes against
a person and those under Charge i! allege crimes against
ee ee
AR ye sha GPO
a ee
.
WEE cp ee cei ls ct el Ll eB iat
33a
property. The elements of proof of the two offenses are
different. The only commonality between them is that a
firearm was used in the commission of each offense. This
Court does not feel compelled by the language of the
specifications to draw the conclusion that the specifica-
tions under Charges I and II are multiplicious for findings.
Therefore, Assignment of Error III is rejected.
Assignments of Error II and I[V° are without merit and
are rejected for the reasons stated in U.S. v. Smith, 27
M.J. 242, 248 (CMA 1988) and U.S. v. Ezell, 6 M.J. 307,
327 (CMA 1979) (Fletcher, C.J. concurring) with respect
to Assignment of Error Il and U.S. v. Stewart, 29 M.J.
621 (CGCMR 1989) and U.S. v. Payne, 22 M.J. 592
(CGCMR 1986) with respect to Assignment of Error IV.
Based on the entire record, the findings and sentence are
correct in law and fact and should be approved. Accord-
ingly, the findings and sentence, as approved below, are
affirmed.
Chief Judge BAUM and Judge BASTEK concur.
* The Appellant’s Assignments of Error II and IV were: Il. THE
MILITARY JUDGE DENIED APPELLANT DUE PROCESS OF
LAW BY DENYING APPELLANT'S MOTION FOR TRIAL BY
UNANIMOUS JURY; AND IV. THE CONVENING AUTHORITY
WAS PROVIDED A DEFECTIVE 1106 RECOMMENDATION BY
A LAW SPECIALIST WHO DID NOT HAVE PROPER
AUTHORITY, IN ACCORDANCE WITH THE UCM3J, AND
WHO WAS FURTHER DISQUALIFIED BY CONFLICT.
34a
APPENDIX C
U.S. COURT OF MILITARY APPEALS
No. 67,869
NMCM 89 4189
UNITED STATES, APPELLEE
Vv.
Eric A. WEISS, PRIVATE
U.S. MARINE CORPS, APPELLANT
Argued October 6, 1992
Decided December 21, 1992
36 M.J. 224
Counsel
For appellant: Commander Philip D. Cave, JAGC, USN
(argued); Captain Dwight H. Sullivan, USMC and Lieute-
nant Franklin J. Foil, JAGC, USNR (on brief).
For appellee: Lieutenant Commander Lawrence W.
Muschamp, JAGC, USN (argued); Colonel T.G. Hess,
USMC (on brief).
Military Judge: Edward F. Pesik, Jr.
Opinion
GIERKE, Judge:
A military judge sitting as a special court-martial con-
victed appellant, consistent with his pleas, of stealing a
racquetball glove from the base exchange, in violation of
Article 121, Uniform Code of Military Justice, 10 USC
§ 921. The approved sentence provides for a bad-conduct
35a
discharge, confinement and partial forfeitures for 3
months. The Court of Military Review affirmed the find-
ings and sentence in an unpublished opinion dated
January 31, 1992.
This Court granted review of the following issue:!
WHETHER APPELLANTS COURT-MARTIAL
LACKED JURISDICTION WHERE THE MILI-
TARY JUDGE WAS DESIGNATED IN VIOLA-
TION OF THE APPOINTMENTS CLAUSE OF
THE CONSTITUTION, AND WHETHER THE
NAVY-MARINE CORPS COURT OF MILI-
TARY REVIEW WAS WITHOUT POWER TO
REVIEW THIS CASE WHERE ITS JUDGES
WERE DESIGNATED IN VIOLATION OF THE
APPOINTMENTS CLAUSE OF THE CONSTI-
TUTION.
Appellant argues that military judges must be nomi-
nated by the President and confirmed by the Senate as
military judges. The Government argues that military
judges already have been nominated and confirmed as
military officers, that military officers traditionally have
performed judicial duties, and that military officers need
not receive an additional appointment to perform judicial
duties. We hold that the Constitution does not require that
' We also granted review of the following issue:
WHETHER THE COURT-MARTIAL WHICH TRIED THIS
CASE HAD JURISDICTION WHERE THE MILITARY
JUDGE WAS NOT APPOINTED TO A FIXED TERM OF
OFFICE, AND DID THE NAVY-MARINE-CORPS COURT
OF MILITARY REVIEW HAVE POWER TO REVIEW
AND AFFIRM THIS CASE WHERE ITS JUDGES WERE
NOT APPOINTED TO A FIXED TERM OF OFFICE.
This issue was resolved in United States v. Graf, 35 MJ 450 (CMA
1992).
36a
a military officer who meets the qualifications of Article
26, UCMJ, 10 USC § 826, receive a second appointment
to perform the duties of a military judge. Likewise, we
hold that a military officer meeting the qualifications of
Article 66, UCMJ, 10 USC § 866, need not receive a sec-
ond appointment to perform the duties of an appellate
military judge.
I. Appointment of Officers of the United States
Article II, § 2, para. 2, clause 2 of the Constitution — the
Appointments Clause — provides that the President
shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the Supreme
Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provid-
ed for, and which shall be established by Law; but the
Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the Presi-
dent alone, in the Courts of Law, or in the Heads of
Departments.
The purpose of the Appointments Clause is twofold: (1)
it protects the prerogative of the President from congres-
sional encroachment on his power to appoint his subor-
dinates; and (2) “it limits the universe of eligible recipients
of the power to appoint.” Freytag v. Commissioner of In-
ternal Revenue, 111 S. Ct. 2631, 2639, 115 L. Ed. 2d 764
(1991). Appellant argues that this second purpose, a
limitation on the power to appoint, is violated by Articles
26 and 66 because they vest the appointment power in the
Judge Advocate General rather than the President, the
Courts of Law, or the head of a department.
The first question we must address is whether the Ap-
pointments Clause is applicable to the military justice
system. Government counsel have not disputed this ap-
plicability of the Appointments Clause. Counsel for the
37a
United States Coast Guard, appearing as amicus curiae,
argue that the Appointments Clause does not apply to the
military justice system because that system is created pur-
suant to the plenary power of Congress “to make Rules for
the Government and Regulation of the land and naval
Forces,” U.S. Const. art. I, § 8, cl. 14, and that the
Supreme Court grants great deference to Congress in the
exercise of that power. See United States v. Kovac, 36
M.J. 521, 522-23 (CGCMR 1992); United States v. Prive,
35 M.J. 569, 573-77 (CGCMR 1992).
We agree that “judicial deference . . . is at its apogee”
when the authority of Congress to govern the land and
naval forces is challenged. Solorio v. United States, 483
U.S. 435, 447, 107 S. Ct. 2924, 2931, 97 L. Ed. 2d 364
(1987). Nevertheless, congressional authority to raise, sup-
port, and govern the armed forces is separate from the
authority to appoint Officers of the United States. Judicial
deference is granted only to the former, a legislative power
conferred by Article I of the Constitution. The appoint-
ment of Officers of the United States is an Executive
power, conferred by Article II and controlled by the Ap-
pointments Clause, from which the armed forces are not
exempt, either expressly or by implication.
In Buckley v. Valeo, 424 U.S. 1, 96S. Ct. 612, 46 L. Ed.
2d 659 (1976), the Supreme Court held that the plenary
power of Congress over federal election practices did not
exempt members of the Federal Election Commission
from the Appointments Clause. The Supreme Court ex-
plained:
The position that because Congress has been given ex-
plicit and plenary authority to regulate a field of ac-
tivity, it must therefore have the power to appoint
those who are to administer the regulatory statute is
both novel and contrary to the language of the Ap-
pointments Clause. Unless their selection is elsewhere
38a
provided for, a// Officers of the United States are to
be appointed in accordance with the Clause .. . No
class or type of officer is excluded because of its
special functions.
Id. at 132, 96S. Ct. at 688. Thus, we are compelled to con-
clude that, while Congress may determine how the military
justice system will operate, it may not exempt those who
will operate it from the Appointments Clause. According-
ly, we hold that the Appointments Clause is applicable to
the military justice system.
The next question is whether the duties imposed on
military judges by Articles 26 and 66 must be performed
by an Officer of the United States, as that term is used in
the Appointments Clause. Appellant contends, and we
agree, that judicial duties may be performed only by “Of-
ficers of the United States,” appointed in a manner consis-
tent with the Appointments Clause. See Freytag v. C.1.R.,
111 S. Ct. 2631, 115 L. Ed. 2d 764 (1991) (special trial
judges of Tax Court); Go-Bart Importing Co. v. United
States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931)
(United States commissioners). See also Buckley v. Valeo,
424 U.S. at 126, 96S. Ct. at 685 (“Any appointee exercis-
ing significant authority pursuant to the laws of the United
States is an ‘Officer of the United States,’ and must,
therefore, be appointed” in accordance with the Appoint-
ments Clause.)
All military trial judges and most appellate military
judges are commissioned officers of their respective armed
forces. Commissioned officers of the armed forces are
“Officers of the United States.” See Wood v. United
States, 107 U.S. 414, 417, 2S. Ct. 551, 554, 27 L. Ed. 542
(1883). All regular officers of the military services are ap-
pointed by the President and confirmed by the Senate. See
10 USC § 531; see also 14 USC §§ 211 and 212 regarding
appointment of regular Coast Guard officers. Reserve of-
39a
ficers above the grade of major/lieutenant commander are
appointed by the President and confirmed by the Senate.
See 10 USC §§ 593 and 5912. Active duty military officers
are appointed and confirmed again upon each promotion
to a grade above pay grade 0-3. See 10 USC § 624 (promo-
tion of active-duty regular and reserve officers of the Ar-
my, Air Force, Navy, and Marine Corps).
If judicial duties may be performed only by Officers of
the United States, and military officers are Officers of the
United States, the next question is whether military of-
ficers may perform judicial duties without a new “judicial”
appointment. In Shoemaker v. United States, 147 U.S.
282, 13 S. Ct. 361, 37 L. Ed. 170 (1893), the Supreme
Court had occasion to consider the nature and scope of the
office held by military officers. The Supreme Court held
that two military officers, the Chief of Engineers and the
Engineer Commissioner for the District of Columbia, did
not require second appointments as members of a commis-
sion created by Congress to select land for Rock Creek
Park in the District of Columbia, survey it, map it, and
determine the just compensation to be paid by the United
States upon its condemnation. Justice Shiras explained:
As, however, the two persons whose eligibility is
questioned were at the time of the passage of the act
and of their action under it officers of the United
States who had been theretofore appointed by the
President and confirmed by the Senate, we do not
think that, because additional duties, germane to the
offices already held by them, were devolved upon
them by the act, it was necessary that they should be
again appointed by the President and confirmed by
the Senate.
He went on to define “germane” broadly, observing:
It is true that it may be sometimes difficult to say
whether a given duty, devolved by statute upon a
40a
named officer, has regard to the civil or military ser-
vice of the United States. Wales v. Whitney, 114 U.S.
564, 569 [5 S. Ct. 1050, 1052, 29 L. Ed. 277 (1885)];
Smith v. Whitney, 116 U.S. 167, 179, 181 [6 S. Ct.
570, 576, 577, 298 L. Ed. 601 (1886)]. But, in the pre-
sent case, the duty which the military officers in ques-
tion were called upon to perform cannot fairly be said
to have been dissimilar to, or outside of the sphere of,
their official duties.
147 U.S. at 301, 13 S. Ct. at 391.
Appellant argues that “the offices already held by them”
were the specific offices of Chief of Engineers and
Engineer Commissioner for the District of Columbia, and
not the underlying office of military officer. A careful
reading of Shoemaker requires that we reject that argu-
ment for two reasons. First, Shoemaker specifically refer-
red to “the duty which the military officers . . . were called
upon to perform.” (Emphasis added.) Second, the two
cases cited in Shoemaker both dealt with the scope of
military duties in general, not the specific duties of the
positions held by the military officers. Wales addressed
the question whether the medical duties of the Navy
Surgeon General were “military” as opposed to “civil”
duties. Smith addressed the issue whether the fiscal duties
of the Navy Paymaster-General were of a civil or military
nature.
The principle we glean from Shoemaker is that Congress
may create a new office (e.g., Rock Creek Park Commis-
sioner) and give a military officer the duties of that office
without making a new appointment necessary, if the new
duties are “germane” to the military duties of that officer.
Applied to this case, it means that a second “judicial” ap-
pointment is not required if: (1) Congress did not create a
new “office”; or (2) Congress created a new office, but the
—
4la
duties of that office are “germane” to the duties of the
military officer detailed to perform them. A second ap-
pointment would be required if Congress created a new of-
fice and the duties of that office were not germane to the
duties of the military officer detailed to perform them.
Il. Military Judges
A court-martial is a temporary court, called into ex-
istence by a military order and disssolved when its purpose
is accomplished. See Arts. 22, 23, and 24, UCMJ, 10 USC
§ 822, 823, and 824, respectively (prescribing who may
convene courts-martial). Its constitutional origin is based
on the congressional authority to govern the armed forces
set out in Article 1, § 8, clause 14. As Colonel Winthrop
explains, “Courts-martial of the United States, although
their legal sanction is no less than that of the federal
courts, being equally with these authorized by the Con-
stitution, are, unlike these, rot a portion of the Judiciary
of the United States, and are thus not included among the
‘inferior’ courts which Congress ‘may from time to time
ordain and establish.” W. Winthrop, Military Law and
Precedents 49 (2d ed. 1920 Reprint).
Military judges perform duties prescribed by statute and
the exeuctive order when detailed to a specific court-
martial. See Art. 26; Exec. Order No. 12473, April 13,
1984, 49 FR 17,152 (promulgating the new Manual for
Courts-Martial); RCM 801-1011, 1102, 1104, Manual for
Courts-Martia!, United States, 1984. Military judges have
no inherent judicial authority separate from a court-
martial to which they have been detailed. When they act,
they do so as a court-martial, not as a military judge. Until
detailed to a specific court-martial, they have no more
authority than any other military officer of the same grade
and rank. To the extent that they perform judicial duties
such as authorizing searches and reviewing pretrial con-
42a
finement, their authority is not inherent but is either
delegated or granted by executive order. See Mil.R.Evid
315 (d)(2), Manual, supra (military judge may authorize
searches if authorized by regulations of Secretary of
Defense or Secretary concerned); RCM 305(g) (military
judge may release from confinement); RCM 305 (i)(2) and
RCM 305(j) (military judge may review propriety of
pretrial confinement).
To resolve the granted issue with respect to military
judges, we must answer two questions: (1) Did Article 26
create a new office of “military judge”?; and (2) If so, are
the duties of the new office germane to the duties of the
military officer detailed as a military judge of a general
court-martial or special court-martial?
A. New Office
After examining the history and evolution of the
military judge, set out in greater detail below, we conclude
that Congress did not create a new “office” when it
enacted: the Articles of War (AW) in 1920 (requiring that
a “law member” be detailed to every general court-
martial — AW 8); or the Uniform Code of Military Justice
of 1950 (requiring detail of a “law officer” to every general
court-martial -- Art. 26, 50 USC § 590); or the Uniform
Code of Military Justice of 1968 (redesignating the law of-
ficer as the military judge — Art. 26, 10 USC § 826).
As the position of military judge has evolved, the
military judge has acquired virtually ali the duties
previously performed by the president and members of a
court-martial. Prior to the 1920 amendments to the Ar-
ticles of War, the president of a court-martial, who usually
was not a lawyer, presided over the trial. See para. 89,
Manual for Courts-Martial, U.S. Army, 1917. In 1920,
AW 8 was amended to require that a “law member” be
43a
detailed to general courts-martial in the Army. 41 Stat.
787, 788. AW 31 was amended in 1920 to transfer some
duties of the president to the law member. It also provided
that the law member ruled finally on questions of ad-
missibility of evidence but could be overruled by a majori-
ty of the court members on other interlocutory questions.
Until 1951, the Navy and Coast Guard continued the
pre-1920 practice of using non-lawyers to preside over
courts-martial and decide interlocutory questions. See
§§ 381 and 370, Naval Courts and Boards, 1937; para.
385(t), Manual for Courts-Martial, U.S. Coast Guard,
1949 at 134.
When the Uniform Code of Military Justice, Pub.L.
No. 81-506, 64b Stat. 108, codified in 50 USC §§ 551-736,
recodified in 10 USC §§ 801-940 (1956), became effective
in May 1951, the law member was redesignated as the law
officer and additional duties were transferred from the
president of the court to the law officer. Ail military ser-
vices were required to “appoint” a law officer to general
courts-martial. See Art. 26. Nonlawyers continued to
preside over special courts-martial, Art. 51, UCMJ, 50
USC § 626, recodified in 10 USC § 851 (1956). This
changed when the Military Justice Act of 1968, Pub.L.
No. 90-632, § 2(9), 82 Stat. 1335, 1336, became effective
in August 1969.
The Military Justice Act of 1968 changed the title of the
law officer to military judge, in order to increase his
stature, and transferred more duties from the president of
the court-martial to the military judge. See Art. 26, 82
Stat. 1336. Since the Act merely transferred authority and
duties from one official of the court-martial to another
and renamed the law officer, it did not create a new office.”
2 In United States v. Graf, supra, this Court said, in dicta, id. at
455, that Congress “created” the military judge and the. Courts of
44a
As the Supreme Court explained in Shoemaker, “It cannot
be doubted, and it has frequently been the case, that Con-
gress may increase the power and duties of an existing of-
fice without thereby rendering it necessary that the incum-
bent should be again nominated and appointed.” 147 U.S.
at 301, 13 S. Ct. at 391.
The Military Justice Act of 1968 also amended Article
16, UCMJ, 10 USC § 816, to authorize an accused to re-
quest trial by a court-martial composed of only a military
judge. 82 Stat. 1335. When trying a case without
members, the military judge sits as a one-member court-
martial. A one-member court-martial was not new to
military justice. See Art. 16(3), UCMJ, 50 USC § 576
(1950), recodified in 10 USC § 816(3) (1956) (summary
court-martial); AW 7 (1916) (summary court-martial);
Art. 64(b), Articles for the Government of the Navy
(AGN) (1909) (deck court). When sitting as a one-member
general court-martial or special court-martial to which he
is detailed, not from his status as a military judge. His
authority is limited to that of the court-martial to which he
has been detailed, and he may act only with respect to the
cases referred to that court-martial. We conclude that the
amendment of Article 16 did not create a new office but
merely altered the composition of general courts-martial
and special courts-martial.
Likewise, the amendment of Article 39(a), UCMJ, 10
USC § 839 (a), effective in 1969, authorizing the military
judge to hold sessions outside the presence of the members
Military Review by enacting the Military Justice Act of 1968. Wee -
not intend this imprecise dicta to hold that Congress created a new
“office” in 1969, when the Act became effective.
Contrary to a dissenter’s assertion that this view demeans military
judges (36 MJ at 260 (Wiss, J., dissenting)), we believe that our opin-
ion merely recognizes the awesome life-and-death authority tradi-
tionally entrusted to military officers.
45a
to dispose of interlocutory motions, arraign the accused,
receive pleas, and dispose of other procedural matters not
requiring the presence of the members, did not create a
new office. The purpose and effect of Article 39(a) was to
avoid wasting the time of the members by requiring them
to sit idly by while the military judge disposed of legal and
procedural issues. S.Rep. No. 1601, 90th Cong., 2d Sess.
10 (1968), U.S. Code Cong. & Admins. News 1968, 4501.
Article 39(a) did not confer new duties on the military
judge; it merely authorized him to discharge those duties
without wasting the time of the court members.
Since a new office was not created by the Military
Justice Act of 1968, a second “judicial” appointment was
not necessary for military judges. Accordingly, we hold
that the military judge in appellant’s case was not ap-
pointed in violation of the Appointments Clause.
B. Germane Duties
Assuming, arguendo, that a new office was created at
some time during the evolution of the military judge, the
result is the same, because the duties of the military judge
are the same as those traditionally performed by military
officers serving as members of courts-martial. As such,
they are germane to the duties of a legally trained military
officer. Shoemaker v. United States, 147 U.S. 282, 13 S.
Ct. 361, 37 L. Ed. 170. Just as the duties of a Rock Creek
Park Commissioner were germane to the duties of a mili-
tary engineer, presiding over courts-martial is clearly ger-
mane to the duties of a military lawyer. Accordingly, a
new appointment would not be required even if a new of-
fice was created.
Ill. Appellate Military Judges
In order to resolve the granted issue with respect to ap-
pellate military judges, we must address three questions:
| Re te ree eee
46a
(1) Did Congress create a new office?; (2) If Congress
created a new office, are the duties of that office germane
to the duties of the military officer detailed to perform
them?; and (3) What is the significance of the provision in
Article 66(a) authorizing civilian members on boards of
review and their successors, the Courts of Military
Review?
A. New Office
Appellant contends that Congress established a new of-
fice by creating an intermediate appellate court for each
service. We hold that a new office was created when
boards of review were established.
Prior to 1920, there were no appellate military courts.
Appellate review of courts-martia! was accomplished by a
hierarchy of reviewing, supervisory, and confirming
authorities, all of whom were military commanders,
cabinet officers, or the President. In 1920, the Articles of
War, apj.icable only to the Army, were amended by
enactment of AW 50 1/2, which mandated: “The Judge
Advocate General shall constitute, in his office, a board of
review consisting of not less than three officers of the
Judge Advocate General’s Department.” The board of
review was required to examine every record of trial in-
volving a sentence which required “approval or confirma-
tion by the President.” Furthermore, “execution of any
sentence of a general court-martial involving the
penalty of death, dismissal not suspended, dishonorable
discharge not suspended, or confinement in a
penitentiary,” required review by the board of review and
the Judge Advocate General. If the Judge Advocate
General disagreed with the decision of the board of
review, the record would be transmitted to the Secretary of
War for the action of the President. AW 50 1/2. On the
47a
other hand, special courts-martial and summary courts-
martial were reviewed only by the officer appointing the
court. AW 36 (1920). After the 1948 amendments of the
Articles of War, effective February 1, 1949, certain Army
and Air Force general court-martial cases were reviewed
by a board of review, a Judicial Council composed of
three general officers of the Judge Advocate General’s
Corps, and the Judge Advocate General. See AW 50
(1948).
Prior to 195i, a Navy general court-martial was review-
ed by “the commander of the fleet or officer ordering the
court.” 53d AGN (1934). A summary court-martial (the
counterpart of the modern special court-martial) was
reviewed “by the officer ordering the court . . . and by his
immediate superior in command.” 32d AGN. A sentence
“extending to the loss of life, or to the dismissal of a com-
missioned or warrant officer” required confirmation by
the President. 53d AGN. A deck court (the counterpart to
the modern summary court-martial) was reviewed by the
officer who ordered it. AGN 64(d). Reviewing authorities
were required to examine jurisdictional issues, the legal
sufficiency of the pleadings, objections to evidence, and
the legal sufficiency of the evidence. See, e.g., § 472,
Naval Courts and Boards, 1937.
Prior to 1951, a Coast Guard deck court was reviewed
“by the officer ordering” it and then was forwarded to
Coast Guard Headquarters, where it was “reviewed for
legality . . . with the same force and effect as though an
appeal had been taken.” The Commandant of the Coast
Guard was authorized to take whatever action “the in-
terests of justice and equity may require.” The accused had
a “right to appeal to the Secretary of the Treasury from a
decision of a deck court.” Arts. 31 and 36, Manuai for
Courts-Martial, U.S. Coast Guard, 1949. All other courts-
martial were reviewed by the Secretary of the Treasury,
48a
and the President in the case of dismissal of an officer. 14
USC § 564(d)(1949); Art. 140, Manual, USCG, supra. No
Coast Guard court-martial could impose a sentence ex-
ceeding a discharge, confinement for 5 years, forfeiture,
and reduction. 14 USC § 564(b) and (c); see Art. 50,
Manual, USCG, supra.
After the Uniform Code of Military Justice became ef-
fective in 1951, convening authorities in all services re-
tained the authority and responsibility to review the record
of trial for legal sufficiency. See Art. 64, 50 USC § 651,
recodified in 10 USC § 864 (1956) (“The convening
authority shall approve only such findings of guilty, and
the sentence or such part or amount of the sentence, as he
finds correct in law and fact... .”).
The 1950 Code made boards of review mandatory for
the Navy, Marine Corps, and Coast Guard. They were
already mandatory for the Army by virtue of AW 50 1/2,
enacted in 1920. This AW was made applicable to the Air
Force by 62 Stat. 1014 (1948), codified in 5 USC § 627k
(1948). Article 66(a) (1950) mandated;
The Judge Advocate General of each of the armed
forces shall constitute in his office one or more
boards of review, each composed of not less than
three officers or civilians, each of whom shall be a
member of the bar of a Federal court or of the highest
court of a State of the United States.
Effective in 1969, Article 66(a) was revised to its present
language, as follows:
Each Judge Advocate General shall establish a Court
of Military Review which shall be composed of one or
more panels, and each such panel shall be composed
of not less than three appellate military judges... .
Appellate military judges who are assigned to a Court
of Military Review may be commissioned officers or
|
49a
civilians, each of whom must be a member of a bar of
a Federal court or of the highest court of a State... .
Boards of Review were a new entity, created by Con-
gress for the Army in 1920, the Air Force in 1948, and the
Naval services in 1951. For the first time, there was a level
of formal appellate review beyond the officer who con-
vened the general court-martial. Also, for the first time, a
permanent military tribunal was established, as compared
to courts-martial which are temporary entities. Article 66
vested no discretion in the Judge Advocates General;
boards of review were mandatory. We are satisfied that
Congress, acting indirectly through the Judge Advocates
General, created a new office by establishing boards of
review. Cf. Dettinger v. United States, 7 M.J. 216 (CMA
1979) (Congress, acting through Judge Advocate General,
created Court of Military Review).
Unlike the Court of Military Appeals, created in 1950 as
an instrument of civilian oversight imposed upon the
military services, the boards of review were intended as
military tribunals constituted by competent military
authority from within each service. The mandate to each
Judge Advocate General to “constitute” boards of review
was consistent with the traditional practice of vesting the
authority and responsibility for constituting military
tribunals in military officers and giving them the authority
to appoint the members.
That Congress intended the boards of review to be
tribunals of a different nature from the Court of Military
Appeals is apparent both from the language of the statutes
creating them and the legislative history. The statute first
creating the Court of Military Appeals used traditional
language for creating a civilian Article I court: “There is
hereby established a Court of Military Appeals... .” Art.
67(a)(1), 64 Stat. 129 (1950). In 1969 the provision was
ae eee ne
50a
amended to read: “There is a United States Court of
Military Appeals established under article I of the Con-
stitution of the United States ... .” Finally, in Article
141, 10 USC § 941 (1989) Congress described the Court’s
status as follows: “There is a court of record known as the
United States Court of Military Appeals. The court is
established under article I of the Constitution.” This is vir-
tually the identical language used by Congress to create
other Article I courts. See 26 USC § 7441 (“There is hereby
established, under article I of the Constitution of the
United States, a court of record to be known as the United
States Tax Court.”); 38 USC § 7251 (“There is hereby
established, under Article I of the Constitution of the
United States, a court of record to be known as the United
States Court of Veterans Appeals.”). The language
creating the boards of review was substantially different:
“The Judge Advocate General of each of the armed forces
shall constitute in his office one or more boards of
review. .. .” 50 USC § 653 (1950), recodified in 10 USC
§ 866 (1956).
This difference in language was not accidental. Indeed,
in 1966, Senator Sam Ervin held hearings on a bill to
establish a Court of Military Review in each service which
would have been appointed by the service secretary and
whose judges, both military and civilian, would have serv-
ed for a fixed term of office. That bill used language
similar to the organic statutes for the Court of Military
Appeals, the Tax Court, and the Court of Veterans Ap-
peals. It would have amended Article 66(a) to read: “There
is established for each military department an appellate
court. .. . Each such court is a court of record and shall
be known as the Court of Military Review for the military
department for which it is established.” Joint Hearings
before the Subcomm. on Constitutional Rights of the
Senate Judiciary Comm. and the Special Subcomm. of the
rei
Sla
Senate Armed Services Comm., 89th Cong., 2d Sess.
497-98 (1966). The bill was not enacted. Two years later,
Article 66(a) in its present form was enacted.
The Senate Hearings on the 1950 Code reveal the intent
of the drafters to use military expertise on the boards of
review. The following exchange between Senator Kefauver
and Professor Morgan is instructive:
SENATOR KEFAUVER.... May I ask at this
point, was there any difference of opinion on the part
of the committee or extensive discussion as to whether
each service should have its own reviewiig section?
MR. MORGAN. No; the committee was
unanimous on that, so far as the board of review is
concerned.
The notion was that each service would know more
about the customs of the service, and all that sort of
thing, and that the Judge Advocate General of that
particular service would be the man that would be
most competent to handle that thing from the point
of view of this board of review, because the board of
review, now, has very extensive powers. |
Hearings on S. 857 and H.R. 4080 Before a Subcomm. of
the Senate Armed Services Comm., 81st Cong., Ist Sess.
42 (1949).
The amendments enacted in 1968 to Article 66(a) did
not change the character of authority of the boards of
review but merely completed the evolution by calling them
what they were: appellate courts composed of appellate
military judges. The legislative history of the 1968 amend-
ment reflects that the redesignation of boards of review as
a Court of Military Review was only a name change,
designed to enhance the stature of the board of review by
calling it a court and calling its members judges. This
change was consistent with redesignating law officers as
Oia
52a
military judges. See S.Rep. No. 1601, 90th Cong., 2d Sess.
3, 14 (1968); The Army Lawyer: A History of The Judge
Advocate General’s Corps, 1775-1975 at 247 (U.S. Govt.
Printing Office). Certain organizational changes were
mandated to improve efficiency and protect the in-
dependence of appellate military judges; but now new ap-
pointment procedures for appellate military judges were
established.
B. Germane Duties
Turning to the second question, we observe that military
officers traditionally have been responsible for legal
review of court-martial convictions in their capacities as
reviewing and supervisory authorities. Prior to the crea-
tion of boards of review, military commanders were
responsible for the legal review of courts-martial convened
by them or their subordinates. See 53d AGN (1934)
(record reviewed by “commander of the fleet or officer
ordering the court”); 32d AGN (1934) (summary court-
martial reviewed by “officer ordering the court” and “his
immediate superior in command”); AW 46 and 47 (1920)
(record reviewed by convening authority); AW 46 and 47
(1920) (record reviewed by convening authority); para. 35,
Manual for Courts-Martial, U.S. Coast Guard, 1949 (deck
“ourt reviewed by Commandant of Coast Guard); § 472,
Naval Courts and Boards, 1937 (commander reviewing the
record must examine jurisdictional issues, legal sufficiency
of pleadings, objections to evidence, and legal sufficiency
of evidence).
A cadre of legally trained officers existed in each of the
services prior to 1920. The language of Article of War 50
1/2 and Article 66 of the Code reflect that Congress had
this cadre of legally trained officers in mind when boards
of review were first created in 1920 and extended to all the
S3a
services in 1951. Congress considered the duties of the
boards of review not only germane to military duties, but
particularly appropriate for military lawyers. We hold that
the duties of the newly-created boards of review were “ger-
mane” to the duties of the legally trained military officers
contemplated by AW 50 1/2 and Article 66 of the Code;
therefore, we hold that a second judicial appointment is
unnecessary.
C. Civilian Members
Turning finally to the significance of the provision for
civilian members, the legislative history of Article 66(a)
reflects that the historical antecedent of the boards of
review created by Article 66(a) was the Army board of
review, composed of military officers, which was created
by AW 50 1/2. The provision for civilian members was not
included in AW 50 1/2, but was added to Article 66(a) at
the request of the Coast Guard. During the 1949 hearings
on the proposed Uniform Code of Military Justice, Mr.
Larkin explained the provision for civilian members as
follows:
Well, they were included initially at the request of the
Coast Guard — not that it be worded this specific way
but the Coast Guard does have civilian lawyers work-
ing in their court-martial procedures during
peacetime, and they feel they are very competent.
They don’t have an unusually large number of of-
ficers in their review, and they wanted to be free if
they desired to appoint a civilian lawyer working for
the Coast Guard to a board of review. This was the
easiest way to make that provision.
Hearings on H.R. 2498 before a Subcomm. of the House
Armed Services Comm., 81st Cong., Ist Sess. 1189 (1949),
reprinted in Index and Legislative History, Uniform Code
of Military Justice (1950).
54a
In appellant’s case we need not decide whether Congress
inadvertently exceeded its authority by vesting the power
of an “Officer of the United States” in civilians who had
not been appointed in accordance with the Appointments
Clause, because no civilians participated in the appellate
review of his case. We regard the provision for civilian
members of boards of review and their successors, the
Courts of Military Review, as severable from the re-
mainder of Article 66(a). Congress had two purposes in
enacting Article 66(a). The primary purpose was to make
boards of review mandatory for all services. The second-
ary purpose was to accommodate the Coast Guard by
authorizing civilian members on boards of review. Where
a statute attempts to accomplish two or more objects, it
may be valid as to one and invalid as to others, as long as
its purpose can be accomplished by the valid part and is
not dependent upon or conditioned by the invalid part.
Sutherland Stat. Const. § 44.07 at 503-04 (4th Ed.1986
Revision).
D. Conclusion
Applying the Shoemaker analysis to appellant’s case, we
hold that appellate military judges need not be reap-
pointed to perform judicial duties because judicial duties
are “germane” to the offices already held by them as legal-
ly trained commissioned officers of their respective armed
forces. Accordingly, we hold that appointment of the ap-
pellate military judges who reviewed appellant’s case was
consistent with the Appointments Clause.
We have not addressed the desirability of a legislative
requirement that trial and appellate military judges be
specifically appointed as judges by the President, a Court
of Law, or the Head of a Department, and we consider it
inappropriate to do so. Congress has the power to require
a second “judicial” appointment if considered desirable.
Congress considered such a measure in 1966 but did not
5Sa
enact it. We decide only that a second “judicial” appoint-
ment was not constitutionally required for the trial and ap-
pellate judges involved in appellant’s case. As we stated in
United States v. Henderson, 34 M.J. 174, 178 (CMA
1992), “As a court... we are not involved in the merits
of ... policy. We interpret statutes, and we can strike
them down only when they violate the Consitution.
The decisions of the United States Navy — Marine Corps
Conrt of Military Review is affirmed.
Judge COX concurs.
CRAWFORD, Judge (concurring in the resuit):
The lead opinion has put forward a thoughtful and well-
reasoned analysis of how Article II, section 2, paragraph
2, clause 2, of the United States Constitution is not
violated by the present manner of selecting military
judges. However, I part ways with the underlying premise
of the lead opinion that the Appointments Clause applies
to the selection of a military judiciary and therefore can
only concur in the result.
In concluding that the Appointments Clause does not
apply either to selection of military trial or military ap-
pellate judges, one of necessity must engage in both an
historical and a contemporary analysis of the Constitution
and its Appointments Clause. In applying both ap-
proaches, the intentions of the Framers can be determined
from documents that are available. See e.g., 4 P. Kurland
& R. Lerner, The Founders’ Constitution (hereafter
Kurland) (1987); J. Harris, The Advice and Consent of the
Senate (hereafter Harris) 25-30 (1953).
A. The Historical Approach
At the time of the Constitutional Convention in
Philadelphia from late May to mid-September 1787, no
thought was given to how the Appointments Clause
56a
should be applied to military trial and appellate judges.
Kurland, supra at 28-38. Two major themes dominated
the debates which shaped the Appointments Clause. First,
those who opposed a strong executive resisted giving the
chief executive the nomination authority over the national
judiciary without some sort of Council to screen the ap-
pointment process. Second, those who opposed a strong
legislature feared that if the appointment authority was
given to the legislative branch, the appointment of a na-
tional judiciary would fall into the hands of certain fac-
tions. Harris, supra at 25-30.
At the time of these debates there was no military
judiciary in place, that function being served by military
officers. There was, however, a great deal of debate and
attention paid to a federal civilian judiciary as evidenced
by Alexander Hamilton’s discussions in The Federalist
Papers, Nos. 78 through 83.' Thus, historically, the
‘No. 78, “A VIEW OF THE CONSTITUTION OF THE
JUDICIAL DEPARTMENT IN RELATION TO THE TENURE OF
GOOD BEHAVIOR,” wherein Hamilton discusses “the doctrine of
judicial review,” stating: “Whenever a particular statute contravenes
the Constitution, it will be the duty of the judicial tribunals to adhere
to the letter and disregard the former.”
No. 79, “A FURTHER VIEW OF THE JUDICIAL DEPART-
MENT IN RELATION TO THE PROVISIONS FOR THE SUP-
PORT AND RESPONSIBILITY OF THE JUDGES,” wherein
Hamilton expresses “thoughts on the salary, tenure, accountability,
and age of judges.”
No. 80, “A FURTHER VIEW OF THE JUDICIAL DEPART-
MENT IN RELATION TO THE EXTENT OF ITS POWERS,”
wherein “Hamilton traces the outlines of the judicial power.”
No. 81, “A FURTHER VIEW OF THE JUDICIAL DEPART-
MENT IN RELATION TO THE DISTRIBUTION OF ITS
AUTHORITY,” wherein Hamilton “states the case for a distinct,
learned, independent Supreme Court, then speculates on the relations
of the Supreme Court to the lower courts.”
No. 82, “A FURTHER VIEW OF THE JUDICIAL DEPART-
MENT IN REFERENCE TO SOME MISCELLANEOUS QUES-
_
OO Me Se ee Awl AWN! ae cop eairapie! A Na ecns ater ie es at as i tae
sem dal heals oF SR eat Naas
| den apt tm ei ane ti
Lal Nee, :
57a
Founding Fathers gave no explicit consideration to in-
cluding a military judiciary within the ambit of the Ap-
pointments Clause.
B. The Contemporary Approach
A contemporary approach to reviewing our Constitution
and its provisions looks at the intent of the Framers and the
interests and values they meant to protect. A contemporary
reading of the Constitution is important because as John
Marshall stated: “It is a constitution we are expounding.”
McCulloch v. Maryland, 17 U.S. 316, 407 (4 Wheat.), 4 L.
Ed. 579 (1819). The Constitution is a living document and
“states or ought to state not rules for the passing hour, but
principles for an expanding future,” B. Cardozo, The
Nature of the Judicial Process 83 (Yale Univ. Press 1921),
and “a principle to be vital must be capable of wider appli-
cation than the mischief which gave it birth.” Weems vy.
United States, 217 U.S. 349, 373, 30S. Ct. 544, 551, 54 L.
Ed. 793 (1910).
Utilizing a contemporary analysis I start by asking what
interest and values were meant to be protected by the Ap-
pointments Clause. It is undisputed that the Appointments
Clause was designed as a series of checks and balances be-
tween the Executive and Legislative Branches on the crea-
tion and filling of offices. Kurland, supra, 424 U.S at 33.
The Framers were concerned with a division of power to
prevent one branch from becoming more powerful than the
other.
TIONS,” wherein Hamilton discusses “the relations of the federal and
State courts.”
No. 83, “A FURTHER VIEW OF THE JUDICIAL DEPART-
MENT IN RELATION TO THE TRIAL BY JURY,” wherein
“Hamilton attempts . . . to quiet the fears of” some with a discussion
“of this ancient ‘palladium of free government.’ ”
The Federalist Papers, xxx-xxxi (A. Hamilton, J. Madison, J. Jay) (C.
Rossiter 1961).
58a
The debates among the Framers over appointments au-
thority in general and judicial appointments in particular
bear out their desire for checks and balances as well as for
qualified appointees. Edmund Randolph of Virginia
argued that if appointment authority was in the legislative
branch, this “generally resulted from cabal, from personal
regard, or some other consideration that a title derived
from the proper qualification.” Whereas George Mason,
also of Virginia, argued that, if the appointment to the
judiciary was with the executive, it was “a dangerous
prerogative. It might even give him an influence over the
Judiciary department itself.” Jd. at 33.
Alexander Hamilton of New York thought that giving
the Senate approval authority over nominations would be a
check on the “spirit of favoritism of the President” and
would work against the appointment of unqualified in-
dividuals or individuals selected because of a family con-
nection or personal attachment, Harris, supra at 28.
Hamilton argued that to empower the legislature with ap-
pointment authority would just lead to “intrigue and
cabal.” Jd. Cf. Kurland, supra at 31. Nathaniel J. Ghorum
(also spelled Gorham in some texts) of Massachusetts
thought it best that the Executive be responsible for ap-
pointment because “he will be careful to look through all
the States for proper characters.” Jd. at 31. To prevent
dependency on a single individual making the appointment,
some Framers thought it best to have the Senate vote on the
appointments. Others were concerned that a Senate vote
would mean too “much fettering [in] the Senate.” Jd. at 32.
Eventually the Framers settled on appointments by the ex-
ecutive with the advice and consent of the Senate.
In defense of the appointment power enunciated in the
Constitution. Alexander Hamilton in The Federalist No.
66 commented as follows on how the appointment power
would work:
Sachi pho
59a
It will be the office of the president to nominate, and
with the advice and consent of the senate to appoint.
There will of course be no exertion of choice on the
part of the senate. They may defeat one choice of the
executive, and oblige him to make another; but they
cannot themselves choose —they can only ratify or re-
ject the choice, he may have made. They might even
entertain a preference to some other person, at the
very moment they were assenting to the one pro-
posed; because there might be no positive ground of
opposition to him; and they could not be sure, if they
withheld their assent, that the subsequent nomination
would fall upon their own favourite, or upon any
other person in their estimation more meritorious
than the one rejected. Thus it could hardly happen
that the majority of the senate would feel any other
complacency towards the object of an appointment,
than such, as the appearances of merit, might inspire,
and the proofs of the want of it, destroy.
The Federalist: A Collection of Essays Written in Favour
of The New Constitution, vol. II at 218-19 (J. and A.
McLean, New York, 1788)(hereafter cited at McLean).
Thus the interests and values of providing for the selec-
tion of officers, including judicial officers, based on merit
and dividing power between the executive and legislative
branches gave birth to the Appointments Clause. The
question remains whether, in order to protect those in-
terests and values, it is necessary to select military trial and
appellate judges pursuant to the Appointments Clause. In
order to answer that question we must also examine the
additional interests and values unique to national security
and military matters which the Framers sought to protect.
In doing so we can determine whether these other factors
justify civilian judiciary and thereby render the Appoint-
ments Clause inapplicable to military judges.
60a
C. Analysis
Because of national security interests and concerns for
unforeseen military exigencies, it was the intent of the
Framers to vest great authority over these matters in Con-
gress. L. Tribe, American Constitutional Law 353-56 (2d
ed.1988). They accomplished this in the Constitution
through the enumerated powers of Article I, Section 8,
Clauses 11 through 16 and 18. Under the enumerated
powers, Congress has the power to “raise and support Ar-
mies” (cl. 12); “provide and maintain a Navy” (cl. 13);
“make Rules for the Government and Regulation of the
land and naval Forces” (cl. 14); and “make all laws that are
. . Necessary and proper” (cl. 18).
The rationale for this approach by the Framers is found
in Alexander Hamilton’s Federalist No. 23:
The authorities essential to the care of the common
defence are these—to raise armies—to build and
equip fleets —to prescribe rules for the government of
both —to direct their operations —to provide for their
support. These powers ought to exist without limita-
tion: Because it is impossible to foresee or define the
extent and variety of national exigencies, and the cor-
respondent extent and variety of the means which
may be necessary to satisfy them. [*| The cir-
cumstances that endanger the safety of nations are in-
finite; and for this reason, no constitutional shackles
can wisely be imposed on the power to which the care
of it is committed. This power ought to be coextensive
with all the possible combinations of such cir-
cumstances; and ought to be under the direction of
the same councils, which are appointed to preside
over the common defense.
+ « *
Whether there ought to be a federal government in-
trusted with the care of the common defence is a ques-
a oe.
6la
tion, in the first instance, open to discussion; but the
moment it is decided in the affirmative, it will follow,
that that government ought to be cloathed with all the
powers requisite to the complete execution of its trust.
And unless it can be shewn, that the circumstances
which may effect the public safety are reducible
within certain determinate limits; unless the contrary
of this position can be fairly and rationally disputed,
it must be admitted as a necessary consequence, that
there can be no limitation of that authority, which is
to provide for the defence and protection of the com-
munity, in any matter essential to its efficacy; that is,
in any matter essential to the formation, direction or
support of the NATIONAL FORCES.
McClean, supra, vol. I at 144-45 (some emphasis [*]
added).
This view was underscored by James Madison in The
Federalist No. 41:
But was it necessary to give an INDEFINITE
POWER of raising TROOPS, as well as providing
fleets; and of maintaining both in PEACE, as well as
in WAR?
The answer to these questions has been too far an-
ticipated, in another place, to admit an extensive
discussion of them in this place. The answer indeed
seems to be so obvious and conclusive as scarcely to
justify such a discussion in any place. With what col-
our of propriety could the force necessary for
defence, be limited by those who cannot limit the
force of offence? If a federal Constituticm could
chain the ambition, or set bounds to the exertions of
all other nations, then indeed might it prudently chain
the discretion of its own government, and set bounds
to the exertions for its own safety.
62a
McLean, supra, vol. II at 39.
Yet the Framers, mindful -f the new nation’s fears
regarding establishment of a standing armed force in
peacetime, S. Padover, To Secure These Blessings 203-08
(1962), did not propose to give the new executive and
legislature this great authority without some limitation.
Article I, Section 8, Clause 12, gives Congress the authori-
ty to “raise and support Armies” but also provides that “no
Appropriation of Money to that Use shall be for a longer
Term than two Years.” In The Federalist No. 26, Alex-
ander Hamilton puts forth a spirited defense of this clause
that limits appropriations for military purposes to two
Years:
The legislature of the United States will be obliged
by this provision, once at least in every two years, to
deliberate upon the propriety of keeping a military
force on foot; to come to a new resolution on the
point; and to declare their sense of the matter, by a
formal vote in the face of their constituents. They are
not at liberty to vest in the executive department per-
manent funds for the support of an army; if they were
even incautious enough to be willing to repose in it so
improper a confidence. As the spirit of party in dif-
ferent degrees, must be expected to infect all political
bodies, there will be no doubt persons in the national
legislature willing enough to arraign the measures and
criminate the views of the majority. The provision for
the support of a military force will always be a
favourable topic for declamation. As often as the
question comes forward, the public attention will be
roused and attracted to the subject, by the party in
opposition: And if the majority should be really
disposed to exceed the proper limits, the community
will be warned of the danger, and will have an oppor-
ihe
TS ee a
63a
tunity of taking measures to guard against it. In-
dependent of parties in the national legislature itself,
as often as the period of discussion arrived, the state
legislatures, who will always be not only vigilant, but
suspicious and jealous guardians of the rights of the
citizens, against incroachments from the federal
government, will constantly have their attention
awake to the conduct of the national rulers, and will
be ready enough, if any thing improper appears, to
sound the alarm to the people, and not only to be the
VOICE, but, if necessary, the ARM of their discon-
tent
McLean supra, vol. I at 165-66.
An examination of the military judiciary, although
similar to its civilian counterpart in the importance and
scope of its duties, also reveals marked dissimilarities from
a civilian judiciary because of the ever-existent potential
for military exigencies. “Military exigencies” is not a term
of art; our armed forces are not a garrison force. In the
past 4 years alone, our military men and women have
deployed to Panama in Operation Just Cause and to
Southwest Asia in Operations Desert Shield and Desert
Storm. In addition, they have participated in the
humanitarian mission to aid Kurdish refugees, Operation
Provide Comfort, following Operation Desert Storm.
Even as this opinion is being released, our troops are serv-
ing in Somalia as part of a relief effort called Operation
Restore Hope.
These missions require worldwide deployment and the
need for instant mobility and flexibility in assignments, in-
cluding military judge assignments. Military judges must
try cases in combat environments, and, due to the poten-
tial for military judge casualties, replacements must be
available at a moment’s notice. The ever-expanding role of
64a
the military only underscores the wisdom of our Fouading
Fathers in entrusting Congress with the authority and
responsibility for providing for its day-to-day operations. ?
In carrying out its enumerated responsibilities Congress
has paid careful attention to the military justice system.
Starting in 1950 with the adoption of the Uniform Code of
Military Justice, Congress has been very active in expand-
ing the status and power of the military judge. In 1950,
Congress provided for the law officer who was the
forerunner of the military trial judge. See Pub.L. No.
81-506, 64 Stat. 117. In the Military Justice Act of 1968,
Pub.L. No. 90-632, 82 Stat. 1335, Congress provided for
military judges (at 1336) and the Courts of Military
Review (at 1341). See generally Cox, The Army, The
Courts, and The Constitution: The Evolution of Military
Justice, 118 Mil.L.Rev. 1 (1987); Criminal Law Note: An
Ongoing Trend: Expanding the Status and Power of the
Military Judge, The Army lawyer 23 (Dept. of the Army
Pamphlet 27-50-239, October 1992).
In addition to his or her constitutional role as
Commander-in-chief, U.S. Const. art. II, § 2, the Presi-
dent has a specific role for military justice matters. Pur-
suant to its authority under the Constitution, Congress,
through Article 36(a), Uniform Code of Military Justice,
10 USC § 836 (a) (1979), has given the President the
authority to prescribe “pretrial, trial, and post-trial pro-
? For example if during Desert Shield/Storm a scud missile hit a
barracks housing one or more judges from the services, replacements
would be needed immediately. A service Judge Advocate General
looking for qualified individuals might select an individual from the
Court of Military Review. Likewise, if there was a heavy case load
before the Court of Military Review, for example, a series of classified
cases, the Judge Advocate General should have the flexibility of
assigning a trial judge not involved with those cases to the appellate
court.
65a
cedures, including modes of proof, for ... [trials by]
courts-martial.” Based on this delegation of authority
from Congress, the President has by Executive Order set
forth many rules in the Manual for Courts-Martial,
United States, 1984, that pertain to the authority of the
military judge. See generally | F. Gilligan and F. Lederer,
Court-Martial Procedure 514-56 (1991).
In fulfilling its responsibilities, Congress has been mind-
ful of the interests sought to be protected by the Appoint-
ments Clause. First, with respect to selection of qualified
individuals to serve as military judges, Congress has deter-
mined that these assignments be made by the Judge Ad-
vocate General of each service who has direct responsibili-
ty for military justice within his or her respective service?
Congress has implicitly recognized that the Judge Ad-
vocates General are uniquely situated to determine which
officers are best qualified within their respective services
to serve as both trial and appellate judges. Moreover,
these same individuals have by necessity great flexibility to
make these assignments‘ quickly in a combat environment
§ Article 26(c), Uniform Code of Military Justice, 10 USC § 826(c),
provides: “The military judge of a general court-martial shall be
designated by the Judge Advocate General, or his designee, of the
armed force of which the military judge is a member... .”
Article 66(a), UCMJ, 10 USC § 866(a), provides: “Each Judge Ad-
vocate General shall establish a Court of Military Review which shall
be composed of one or more panels, and each such panel shall be com-
posed of not less than three appellate military judges.”
See also Morgan, The Background of the Uniform Code of Military
Justice, 6 Vand.L.Rev. 169 (1953); comments, Military Justice and
the Constitution — Improvements Offered by the New Uniform code
of Military Justice, 29 Tex.L.Rev. 651 (1951).
* Article 6(a), UCMJ, 10 USC § 806(a), states:
The assignment for duty of judge advocaies of the Army, Navy,
Air Force, and Coast Guard shall be made upon the recommen-
dation of the Judge Advocate General of the armed force of
a
66a
where casualties or other exigencies may affect the military
judiciary.
Second, with respect to establishing a system of checks-
and balances between the Executive and Legislative
branches, it is difficult to see how the present system of
assigning military judges jeopardizes that delicate balance.
If anything, the creation by Congress in 1951 of the United
States Court of Military Appeals, a federal civilian court
subject to the Appointments Clause, which reviews deci-
sions of the military judiciary, more than satisfies any con-
cerns in that regard. See 64 Stat. 129. Additionally, effec-
tive August |, 1984, Congress provided in Article 67(h)(1),
UCMJ, 10 USC § 867(h)(1), now Article 67a, UCMJ, 10
USC § 867a (1989), that decisions of our Court are
reviewable by the Supreme Court of the United States by
writ of certiorari, Military Justice Act. Pub.L. No.
98-209, § 10(c)(2), 97 Stat. 1393, 1406, thereby providing
the ultimate check on judicial decisions of the military
justice system.
If there is dissatisfaction with the military justice system
as it exists today, it can be changed or modified by the ma-
joritarian process. That is, the elected representatives of
Congress, in consultation with the Executive branch, have
the power to make any necessary changes. But this Court
must not, by judicial fiat, impose the procedures intended
for a federal civilian judiciary upon the military under the
guise of the Constitution. To do so would be to ignore the
constitutional deference given to Congress by our Found-
ing Fathers because of the realities and practicalities of na-
tional security exigencies.
which they are members. The assignment for duty of judge ad-
vocates of the Marine Corps shall be made by direction of the
Commandant of the Marine Corps. The Judge Advocate General
or senior members of his staff shall make frequent inspections in
the field in supervision of the administration of military justice.
eee
ee Se SS
—
67a
D. Special Deference
Based on the intent of the Framers, the Constitution,
and Federal statute, the Supreme Court has given great
deference to the authority of Congress and the President
in military matters. The Supreme Court has repeatedly
recognized the power of Congress to provide for military
justice. Judge Grace in United States v. Prive, 35 M.J.
569, 573-74 (CGCMR 1992), has listed some of those deci-
sions as follows:
Dynes v. Hoover, 61 U.S. 65, 79 (20 How.), 15 L. Ed.
838 (1858) (“These provisions show that Congress has the
power to provide for the trial and punishment of military
and naval offenses in the manner then and now practiced
by civilized nations. . . .”).
Ex parte Milligan, 71 U.S. 2, 123 (4 Wall.), 18 L. Ed.
281 (1866) (“Congress has declared the kinds of trial [for
offenses by soldiers] and the manner in which they shall be
conducted... .”).
Parker v. Levy, 417 U.S. 733, 743, 94S. Ct. 2547, 2555,
41 L. Ed. 2d 439 (1974) (“This Court has long recognized
that the military is, by necessity, a specialized society
separate from civilian society. . . . The military has, again
by necessity, developed laws and traditions of its own dur-
ing its long history.”)
Schlesinger v. Councilman, 420 U.S. 738, 757, 95S. Ct.
1300, 1313, 43 L. Ed. 2d 591, 609 (1975) (“The laws and
traditions governing [military] discipline have a long
history; . . . they are founded on unique military exigen-
cies as powerful now as in the past. Their contemporary
vitality repeatedly has been recognized by Congress.”)
Northern Pipeline Construction Co v. Marathon Pipe
Line Co., 458 U.S. 50, 66, 102 S. Ct. 285
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