Petition for Writ of Certiorari — Toro v. United States

93-447 —meme

No. 93- SEP 22 1993

——<s | OFFIOE Oe Bal, ae

IN THE

Supreme Court of the United States

OCTOBER TERM. 1993

ROBERTO TORO, JR., U.S. AIR FORCE, PETITIONER

THE UNITED STATES OF AMERICA. RESPONDE}

AND OTHER CASES

PETITION FOR A WRIT OF CERTIORARI TO TI!

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

JAY L. COHEN

Licutenant Colonel, United States Air Force

Chief, Appellate Defense Division

(‘ounsel of Record

JOEL R. REIFMAN

Captain, United States Air Force

Appellate Defense Counsel

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Room 208

Bolling AFB, DC 20332-5113

(202) 767-1562

QUESTIONS PRESENTED

|. May the Judge Advocate General of an Armed Force,

who is not authorized to make appointments under the Ap-

pointments Clause of the Constitution, appoint commissioned

officers to serve as trial and military appellate judges, on the

theory that their appointment as commissioned officers al-

ready satisfies the Appointments Clause tor both their judicial

)

and non-judicial duties

Does the Due Process Clause of the Fifth Amendment

require that, in peacetime, military trial and appellate judges be

‘1 va. 1e mint | Asitic “yr $1 : . )

ippointed to their judicial duties for fixed terms

LISTING OF PARTIES PURSUANT TO

RULE 24.1(b)

ROBERTO TORO, JR., United States Air Force

USCMA Dkt No. 67811/AF.

WILLIAM T. LipSCOMB, United States Air Force

USCMA Dkt No. 68201/AF,

JAMES N. Coppock, United States Air Force

USCMA Dkt No. 68005/AF.

ANDREA P. HARVEY, United States Air Force

USCMA Dkt No. 67706/AF.

BARBARA J. TETERS, United States Air Force

USCMA Dkt No. 67692/AF.

EDWARD W. Perry, United States Air Force

USCMA Dkt No. 68065/AF.

JOUN Wo Procrok, United States Air Force

USCMA Dkt No. 67860/AF.

Petitioners

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

STATEMENT OF THE CASI

|. Institutional Framework

Rulings of the Court of Military Appeals

REASONS FOR GRANTING THE WRIT

| THE APPOINTMENTS CLAUSE VIOLA-

PION

Il. THE DUE PROCESS VIOLATION

CONCLUSION

APPENDIX A

(Opinion of the US) Court of Military Appeals

Weiss)

\PPENDIX B

(Unpublished Decision of the U.S. Navy-Marine Corps

Court of Military Review—Weiss)

APPENDIX (¢

(Decision of the US. Court of Military Appeals

Rice)

\PPENDIX D

(Decision of the U.S. Court of Military Appeals

loro)

APPENDIX |

(Decision of the U.S. Air Force Court of Military

Review— Toro)

APPENDIX F

(Order of the U.S. Court of Military Appeals

Lipscomb)

(ill)

TABLE OF CONTENTS—Continued

APPENDIX G

(Decision of the U.S. Court of Military Appeals

Coppock) [35a

APPENDIX H

(Decision of the U.S. Court of Military Appeals

Harvey) 1SOa

\PPENDIX |

(Decision of the U.S. Court of Military Appeals

Peters) I

APPENDIX J

(Decision of the U.S. Court of Military Appeals

Perry) 178a

\PPENDIX K

(Decision of the US. Court of Military Appeals

Pro ctor) overs |

\PPENDIX |

(Relevant provisions of Uniform Code of Military

Justice, Articles 6. 16, 26 and 66, 10 U.S

\s ROA ®16 R76 and & (6) | Ia

\PPENDIX M

(Rule for Courts-Martial 1002. Manual for Courts-

PABLE OF AUTHORITIES

Cases Page

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) 9 11

Dettinger v. United States, 7, MJ. 216 (C.M.A

1979 7

ltrevlag v. Commissioner, 111 8. Ct. 2631 (1991) rg. 82

Matthews v. kidridge, 424 U.S. 319 (1976) lO. 17

Medina v. California, 112 8S. Ct. 2572 (1992) LO. 17

Middendorf v. Henry, 425 U.S. 25 (1976) 15. 17

Palmore v. United States, 411 U.S. 389 (1973) LO

Rostker v. Goldberg, 453 U.S. 57 (1981) 15

Shoemaker v. United States. 147 U.S. 282 (1893) passim

Solorio v. United States, 483 U.S. 435 (1987) 6. 11

lumey v. Ohio, 274 U.S. 510 (1927) Is

United States v. Brown, 28 MJ. 470 (C_MA

}O89) 7

United States v. Cole, 31 MJ. 270 (C_M.A

1990) 4

United States v. Graf, 35 MJ. 450 (C.M.A

1992) passim

United States v. Maharajh, 28 M.J. 797 (A.F.C.M.R

1Y8Y) i

f Hliled State ) \ Ohrt 28 MI J 30 | (C M A

L989) 7

U/nited States v. Raddatz, 447 U.S. 667 (1980) |7

U/nited States v. Rice, 36 MJ. 264 (C.M.A

1993) 3

United States ex rel loth v. Quarles, 350 US. Il

(1955) 1Q

f nited State j V We INS 36 M J 224 (C MM A 1992)

cert. granted, 61 US. L.W. 3783 (May 24,

1993) passim

Watson v. McCoffer. 782 F.2d 143 (10th Cir

1OX6) 16

Vi

TABLE OF AUTHORITIES—Continued

Constitutional Provisions

US. Const. Art. Il S 2. cl. 2

U.S. Const. amend. V

UCM9J art. 6. 1O U S.C. § 806

UCM 9 art. 18, 1O U S.C. § 818

UCM art. 19, 10 U.S.C. §$ 819

UCM art. 26, 10 U.S.C. § 826

UCM art. 48, 10 U.S.C. $ 848

UCM] art. 66, 10 U.S.C. § 866

UCM3J art. 142, 10 U.S.C. § 942

10 US.C.A. § 867a (Supp. 1993)

28 USCA. §$ 1259(3) (Supp. 1993)

Manual for Courts-Martial. United States, 1984

Lule for Courts-Martial 1002

Misce HaneOus

William H ( ooke C Ours Martial Lh Lhird S) y/em

American Criminal Law, 1978 So. Ill. U. I

Francis A. Gilligen & Frederic I. Lederer, Court

Vfartiai Procedure (1991)

Page

Passim

DaSSIIMN

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-

ROBERTO ToRO, JR., U.S. AIR FORCE,* PETITIONER

V.

THE UNITED STATES OF AMERICA, RESPONDENT

AND OTHER CASES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI!

The petitioners, Roberto Toro, Jr, et al., respectfully pray

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 Appeals,

United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), cert.

granted, 61 U.S.L.W. 3783 (May 24, 1993), is reprinted as

Appendix A at App. la. The unpublished decision of the

* Full listing of parties to this proceeding appears on page i

' This petition incorporates essentially the same bricf which was sub-

mitted by U.S. Navy counsel in Heiss v. United States, No. 92-1482, and

by U.S. Army counsel in Barkley v. United States, No. 92-1646. and

Doucette v. United States, No. 93-68

(1)

2

United States Navy-Marine Corps Court of Military Review,

United States v. Weiss, No. 89-4189 (N.M.C.M.R. Jan. 31,

1992), is reprinted as Appendix B at App. 86a.

The decision of the United States Court of Military Appeals

in United States v. Toro, 37 M.J. 313 (C.M.A. 1993), is

reprinted as Appendix D at App. 88a. The decision of the

United States Air Force Court of Military Review, in United

States v. Toro, 34 M.J. 506 (A.F.C.M.R. 1991), is reprinted as

Appendix E at App. 89a. The opinion of the United States

Court of Military Appeals, United States v. Rice, 36 M.J. 264

(C_M.A. 1993), is reprinted as Appendix C at App. 91a.

JURISDICTION

The decisions of the Court of Military Appeals were ren-

dered between June 25, 1993 and August 18, 1993. The

jurisdiction of the Court is invoked under 10 U.S.C.A. § 867a

(Supp. 1993) and 28 US CA. § 1259 (3) (Supp. 1993).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Appointments Clause, U.S. Const. Art. Il, § 2, Cl. 2

provides:

The President... shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint Anibas-

sadors, 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 Depart-

ments

3

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 L, Pet. App. at 199a. Rule

for Courts-Martial 1002, Manual for Courts-Martial, 1984, is

set forth in Appendix M, Pet. App. at 205a.

STATEMENT OF THE CASE

This is a consolidated petition representing interested ser-

vice members of varying ranks from the Air Force, whose

court-martial convictions were affirmed by the Court of Mili-

tary Appeals between June 25, 1993 and August 18, 1993. In

United States v. Toro, 37 M.J. 313 (C.M.A. 1993) and United

States v. Lipscomb, No. 68201/AF (C.M.A. August 20, 1993),

the judicial appointment issue was expressly raised at the

Court of Military Appeals. In the latter case, the due process

issue was also raised. In both of these cases, the Court of

Military Appeals granted review to consider the judicial ap-

pointment issue, and rendered adverse summary dispositions

in light of United States v. Weiss, 36 M.J. 224 (C.M.A. 1992)

(Appendix A). The remaining petitioners raise the judicial

appointment issue pursuant to ihe jurisdictional statement

herein, infra p. 2, and United States v. Rice, 36 MJ. 264

(C.M.A. 1993) (Appendix C). Each case is factually distinct,

and most raised other issues before the Court of Military

Appeals which are not the subject of this petition

Subsequent to the Court of Military Appeals’ decision in

Weiss, that Court acknowledged in United States v. Rice, 36

M J. 264 (C.M.A. 1993) (Appendix C) that there were over

> Where, in the appendices the individual orders of the Court of

Military Appeals refer to a particular issue number, that issue represents

the judicial appointnient question

a . -

- @s <

J

2 ;

Uv y

— wa po 7)

U > ——_

> f

- 7 —

, -

M ° —

. y, =

- <—

4 A -

. 7

j

)

. : ~—

) «

Institutional Frame)

‘ ‘ +} PI

~U , i

tom + e + 1 ¢ rry

‘

i i LU LX)

USCA. §

A 4 ‘ f

TAs i | J

‘ } }

, ; ;

i ) | i i

‘ \ it} } r .

\ i . .

] { ty .

j i ij

U St :

, 1 ost is

tt , "1

y \ |

i the ( rt

; | } |

" }

] : ’

1 QU sd |

; { va T Texaf rr

i i ; ‘ i

vork

iC

9

Wola

sori?

Ut

5 Ul

i>

14.

‘ ;

j

Vil

.

,

’

+ ¢

‘

tive

+}

t

Mid

‘

ivi

4}

i

+?

YL!

iv

’

)

SSL

» * '

i il

An

ili a

; » it

oS Gas

{ean }

tL y

’ ’

}

LOK

r thy,

i iv

" ;

. pUR

' rT?

i bias

ry fa.

1 Yy .<

rt

bE ko

. S al

i}

i

tar

! i Y

;

‘ LO

w_ ©

i < \

i

if ;

ti i

ant va

Vit vv

} re

Lala’

i

ryt +

bik Wd

rah

‘ tal

\ il

bial

| é

Le RA

,

mit?

\t +}

C Livy

;

hs UA

tor

i il y

5

;

i

1

}

i;

ry

,

i ;

nt

(

‘

T é

LIV’

mmoyry

ah}

1

ryyvi|

bilki

itary officers, all of whom have been appointed as military

officers by the President with the advice and consent of the

Senate. However, their selection and appointment as a judge

is made by the Judge Advocate General of their service. Like

appellate judges, the trial judges have no fixed terms of office

Uniform Code of Military Justice art. 26(a)-(c), 10 U.S.C

§ 826(a)-(c) (1988). Military trial judges are assigned to a

circuit and are supervised by a Circuit Chief Judge, who in turn

reports to and is supervised by the Chief Judge of the Trial

Judiciary of the respective service

Each armed force assigns military judges as and when it sees

fit. Judges often serve a two-, three- or four-year assignment

However, a judicial assignment can be terminated at any time

through decertification as a judge or by transfer to other duties

at the discretion of the Judge Advocate General of the judge’s

armed force.”

\ court-martial can try any offense committed by a member:

tthe 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 ts that the accused was on active

ilitary at the time of the offense. So/orio v. United

Vales, 483 US. 435 (1987) A general court-martial may

impose sentences that include death, imprisonment for life o1

terms of years, total forfeiture of pay and allowances, and/or

a dishonorable or bad-conduct discharge (or dismissal for

officers) 1O U.S C. 8 818 (1988). A bad-conduct or dishon-

orable discharge carries a permanent stigma, and it can have an

‘William H. Cook. Courts-\fartial: The Third Svstem in American

riminal Law, 1978 So. Ill. U. L. Rev. 1, 17-18: 1 Francis A. Gilligan &

Frederic |. Lederer. Court-\fartial Procedure 14-31.00, at 518-19 (1991)

The Judge Advocate General does not issue the actual orders for a

transfer, but there is no doubt that, for all military lawyers, including

military trial and appellate judges, he controls their actual duty assign-

WiCcHnts

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. Maharayh,

28 M.J. 797 (A.F.C.M.R. 1989). Special courts-martial may

impose up to six months of confinement, and/or forfeiture of

up to two-thirds pay per month for six months, and/or a bad

conduct discharge. Uniform Code of Military Justice art. 19

lO 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 trial in federal district courts

The drafters of the Uniform Code of Military Justice wanted

military judges to be “real judges” as commonly understood

in the American legal tradition. U/nited States v. Graf, 35 MJ

450, 465 (1992). The military trial judge has far-ranging

discretionary powers, including the power to “rule on all

interlocutory questions and all questions of law raised during

the court-martial,” to “[i]nstruct the members [the jury] on

questions of law and procedure which may arise,” to “pro-

mulgate and enforce rules of court,”’ and to “exercise con

tempt power.” Uniform Code of Military Justice art. 48, 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 1s

not bound by the Federal Sentencing Guidelines. See Unned

States v. Brown, 28 MJ. 470, 474 n.3 (C.M.A. 1989), see

generally Manual for Courts-Martial, United States, 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 MJ. 216 (CMA

1979). Additionally, these courts exercise an ‘“‘awesome, ple-

nary, de novo power of review[.]”” United States v. Cole, 31

M.J. 270, 272 (C.M.A. 1990). Thus, a court ‘‘[mJay affirm

only such findings of guilty and the sentence . . . as it finds

correct inlaw and fact... . [I]t may weigh the evidence, judge

the credibility of witnesses, and determine controverted ques-

tions of fact{ ]”” Uniform Code of Military Justice art. 66(c),

, 10 U S.C. § 866(c) (1988)

2. Rulings of the Court of Military Appeals.

The Court of Military Appeals exercised its discretionary

jurisdiction to consider petitioners’ claims that the manner in

which the trial and appellate military judges in their cases were

appointed violated the Appointments Clause of the Constitu-

tion, and that failure to appoint those judges to fixed terms of

office denied petitioners liberty without due process. See Pet.

App. 2a n_1. Several days before it heard argument in Weiss,

the Court of Military Appeals issued an opinion rejecting the

due process claim. U/nited States v. Graf, 35 M.J. 450 (CMA

1992)° Then, on December 24, 1992, a sharply divided court

rejected petitioner Weiss’ Appointments Clause argument and

affirmed the Navy-Marine Corps Court’s decision.

In order to garner three votes, the majority below 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 exemption 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 Presi-

dent with the advice and consent of the Senate, by the Presi-

dent alone, by a Head of Department, or by a Court of Law

5 A petition for writ of certiorari in Graf was filed on December 29.

1992 (No. 92-1102), and it is incorporated by reference. In the interest of

completeness, this petition will summarize the Graf decision, as well as

the reasons for granting review of the Due Process Issue.

i me mena

9

Pet. App. Sa. This proposition was endorsed by four of the

court’s five judges. Pet. App. 21a, 36a. 77a.

Judge Gierke then held that the Appointments Clause is

satisfied when a military officer is commissioned by the Presi-

dent 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 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. Alternatively, he concluded that, if a new office

had been created, the duties of the military judge were “ger-

mane” 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 appoint-

ment necessary, if the duties are germane[.]’’ Pet. App. 8a

Judge Crawford eschewed the opinion of Judge Gierke, and

concurred only in the result. In her view the appointment of

military judges need not comply with the Appointments 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. baleo, 424 US. 1, 132 (1976) (per curiam),

in which this Court held that no class or type of officer is

excluded from the reach of the Appointments 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 an amicus below, urging affirmance) disavowed

that position in both its brief (Brief at 10) and at oral argu-

ment

Chief Judge Sullivan and Judge Wiss each filed dissenting

opinions rejecting the arguments in both of the majority opin-

ions. The dissenters found no broad exemption to the stric-

10

\

tures of the Appointments Clause based on the judges’ status

as military officers or military lawyers. Pet. App. 37a, 74a

Chief Judge Sullivan stressed the watershed events of the

Military Justice Act of 1968 which for the first time created a

‘professional judiciary” inthe military. Pet. App. 58a. (italics

in original). He recognized that what 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 appel-

late judge. Judge Wiss disagreed with the lead opinion’s appli-

cation of Shoemaker to this case, in particular its assertion that

the assignment of specific and highly responsible judicial du-

ties as a military judge is ““germane to some nebulous notion

of duties of legally trained military officers in general,” /.¢., to

the duties of the entire Judge Advocate General’s Corps from

which military judges are chosen. Pet. App. 83a

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 rejected the bal-

ancing test set forth in Matthews v. Lidridge, 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 8. Ct. 2572 (1992), which involved

review of a state criminal conviction. Second, Graf treated

dicta from U/nited States ex rel. loth v. Quarles, 350 U.S. 11

(1955), and Palmore vy. United States, 411 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 retalia-

tion 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 like these that are held

peacetime

1]

REASONS FOR GRANTING THE WRIT

This petition, like United States v. Weiss, seeks to establish

minimum standards for the appointment of military judges and

their retention in office for a fixed term. 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 embod-

ied in the Appointments Clause, and the notions of fundamen-

tal fairness embodied in the Due Process Clause, are available

to those tried by courts-martial. Taken alone, either the Ap-

pointments Clause or the Due Process violation would seri-

ously undermine the fairness of the military justice system, but

occurring together they call into question whether anyone in

the armed forces can receive the minimal level of judicial

independence that every justice system requires

I. 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. Pet. App. 72a (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 Depart-

ments. U.S. Const. Art. Il, § 2, Cl. 2. Freytag ve Commis-

sioner, 111 S. Ct. 2631, 2642 (1991). There can be little doubt

that military judges, who exercise extraordinary authority and

discretion, are Officers of the United States and are subject to

the Appointments Clause. See Buckley v. Valeo, 424 US 1,

126 (1976) (per curiam). No judge of the Court of Military

Appeals disagreed with that proposition except Judge

12

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 advice

and consent of the Senate. But in any event, both military trial

and appellate judges are at least inferior officers, and so they

must be appointed either by the President, the Head of a

Department, or by a Court of Law. No court has held that

military judges are appointed to their judicial offices by any of

the authorities listed in the Appointments Clause, the only

question is whether their appointment as military judges, after

they have been duly appointed as military officers, must be

made by one of the authorities set forth in the Appointments

Clause

The Appointments Clause preserves “the Constitution’s

structural integrity by preventing the diffusion of the appoint-

ment power.” Freylag, 111 S. Ct. at 2638. As the Court

reasoned in /reylag:

The Appointments Clause prevents Congress from dis-

pensing 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).”

6 A predictable consequence of having appointments made by an

intermediate official, such as the Judge Advocate General, instead of by

persons authorized by the Appointments Clause, is the homogeneity of

Relying on Shoemaker, two Court of Military Appeals judges

found that the Appointments Clause had been satisfied be-

cause all military judges are commissioned officers of the

Armed Forces, having been nominated by the President and

confirmed by the Senate, although they have not been ap-

pointed to their judicial positions in that manner. Apparently

recognizing that a presidential appointment had some limits-

a Deputy Secretary of Defense could not simply move over to

become the Assistant Attorney General for Antitrust or a

Member of the Equal Employment Opportunity Commission—

the opinion also concluded that there was no new office

created when Congress amended the Uniform Code of Mili-

tary Justice in 1968 to create the positions of military trial and

appellate judges because the new positions were simply con-

tinuations of the old ones, with some modest changes. Even if

that assessment were correct, and petitioners agree with the

dissenters that it is not, that would at most allow those who

were in a judicial position in 1968—the “‘incumbent[s]” in

Shoemaker 's words (147 U.S. at 301)—to continue in office

without a new appointment. 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

-~

the judges of the Courts of Military Review. Thus, the 35 current appel-

late judges include only two women and one African-American. The only

two civilians sit on the five-member Coast Guard Court

a

14

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 ap-

pointed to positions encompassing both the “new” and

“old” duties. However, for military judgeships, the problem ts

repeated whenever a non-judge military lawyer replaces a

military judge who retires or is transferred to a new assign-

ment

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 thereafter would fail

to meet Shoemaker’s “germaneness” test. The duties and

powers of military judges, including all of those involved in

petitioners’ cases, are so different from those of prosecutor,

defense counsel, or legal advisor to a command—-which ts

what most military lawyers do before they become military

judges that there is not simply an addition ofa 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

administrative law judges working for the federal government,

and placed on that Court without meeting the requirements of

the Appointments Clause, the result should be no different

from 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 “assigned” 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 Indeed, as both Buckley and /reytag make

clear. it is the function that the individual is performing that 1s

decisive in determining whether the Appointments Clause

applies at all, and under that analysis there can be no question

15

that military judges must be separately appointed because their

functions differ 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 below 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 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 ruling 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 Congress’s interest in, or ple-

nary 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 extreme is Judge

Crawford’s ruling that the Department of Justice, which ap-

peared below as an amicus in support of respondent, specifi-

cally 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 petitioner's convictions

if she had been willing to accept the rationale put forward by

Judge Gierke. Thus, if her “‘deference to Congress”’ analysis 1s

in error—as it clearly seems to be—there were three votes to

overturn petitioner’s convictions, and it should be respondent,

not petitioners seeking certiorari.

In this case it is not simply that the Judge Advocates

General, who appoint military judges, are not listed in the

Appointments Clause, but they are the supervisors of all

16

military lawyers who practice in military courtrooms, includ-

ing all of those who prosecute criminal cases on behalf of the

United States. In addition, the Judge Advocates General, or

the Assistant Judge Advocates General, writes the annual

fitness reports of the members of each respective service’s

Court of Military Review, which are then used to decide the

appellate judges’ promotions, future duty assignments, and

susceptibility to involuntary early retirement. Indeed, the Due

Process implications of this particular appointment arrange-

ment raise independent concerns that strongly reinforce the

Appointments Clause objections

The validity of the appointment of military judges under the

Appointments Clause is a significant constitutional question

which the Court should address immediately. The 2-1-2 divi-

sion within the Court of Military Appeals attests to the serious

debate on the merits of the issues. A split in the circuits ts

unlikely ever to arise, because the question has been fully and

fairly litigated and resolved by the military justice system, thus

potentially insulating it from review on habeas corpus. See

generally, Watson v. McCoffer, 782 F.2d 143, 145 (10th Cir),

cert. denied, 476 US. 1184 (1986). In any event, as it did in

l-reytag, this Court should grant review now to resolve the

dispute as promptly as possible

il. THE DUE PROCESS VIOLATION

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 com-

mon concerns of accountability and fundamental fairness to an

accused. Noncompliance with each of the provisions is mag-

nified by the lack of compliance with the other, such that there

Is a synergistic impact on the accused’s rights. To further

17

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 to a federal Fifth Amend-

ment due process claim is ample reason to hear the case

Indeed, in Medina this Court left open the correctness of one

of its prior decisions—United States v. Raddatz, 447 US

667, 677 (1980)—which had applied Matthews v. ldridge to

a due process challenge to a federal criminal conviction. Peti-

tioners believe 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

we also note that the concerns about overturning specific

judgments made by state legislatures (Medina), or with those

made by Congress for the Armed Forces, Middendor/ v. Henry,

425 US. 25, 44 (1976), are inapplicable here because there is

no evidence that in !968, 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

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, which sit perma-

nently in the Washington, D.C. area. 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 re-

lied on other alleged protections against improper retaliation

against military judges for unpo,» ‘ar decisions—-some of which

- f

-- , ge. ,

“ )

- — 7

b —+

— f J r

) a0

~~ if >

y /

' ae : 3

~ )

a ,

<A

v ~S

» =

CONCLUSION

} ? ’ , ? ‘ ; ( ; ‘ ? '

» 4 » >\ y ‘ . Y

’ ? , ; . ; . . ; ;

. i il SLR . y

t | , t Ay ' { net '

\ 4 \ } y i \ i } 4 . S v ai

+} + ¢ ‘ + . ; : » + { . rt

‘4 : : 4

'

)

}

ie

; | i\ 4

i ‘

h \ A J I

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 67,869

NMCM 89 4189

UNITED STATES,

Appellee,

V.

Eric A. WEISS,

Private U.S. Marine Corps,

Appellant.

Argued Oct. 6, 1992

Decided Dec. 21, 1992

For appellant: Commander Philip D. Cave, JAGC, USN

(argued) ; Captain Dwight H. Sullivan, USMC and Lieu-

tenant Franklin J. Foil, JAGC, USNR (on brief).

For appellee: Lieutenant Commander Lawrence W.

Muschamp, JAGC, USN (argued); Colonel T.G. Hess,

USMC (on brief).

Amici Curiae on behalf of appellant: Colonel Malcolm

H. Squires, Lieutenant Colonel James H. Weise, Major

James M. Heaton (on brief )—-For Defense Appellate Di-

vision, USA. Robert B. Weintraub, Joan EB. Goldherg,

Todd Gaziano (on brief)-—For the Committee on Mili-

(la)

2a

tary Justice and Military Affairs, Association of the Bar

of the City of New York.

Amici Curiae on behalf of appellee: Thomas E. Booth

(argued); Robert S. Mueller (on brief)—For the United

States Department of Justice. Lieutenant Commander

Charles J. Bennardini (argued)—For Appellate Govern-

ment Division, USCG. Colonel Richard L. Purdon, Lieu-

tenant Colonel Jeffery T. Infelise, Captain Jane M.E.

Peterson (on brief)—For Appellate Government Divi-

sion, USAF. Colonel Dayton M. Cramer, Major Joseph

C. Swetnam, Captain Donna L. Barlett, Captain Samuel

J. Smith, Jr. (on brief) —For Government Appellate

. Division, USA.

Opinion

GIERKE. Judge:

A military judge sitting as a special court-martial con-

cicted appellant, consistent with his pleas, of stealing a

acquetball glove from the base exehange, in violation of

121, Uniform Code of Military Justice, 10 USC

The approved sentence provides for a bad-conduct

discharge. confinement and partial forfeitures for 3

months. The Court of Military Review affirmed the find-

ings and sentence in an unpublished opinion dated Janu-

ary 31, 1992.

(

: Daw

This Court granted review of the following issue: ’

1 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 WHETHER THE NAVY-MARINE CORPS

COURT OF MILITARY REVIEW HAD POWER TO REVIEW

AND AFFIRM THIS CASE WHERE ITS JUDGES WERE

NOT APPOINTED TOA FIXED TERM OF OFFICE.

This issue was resolved adversely to appellant in United States v.

Graf, 35 MJ 450 (CMA 1992).

é

3a

WHETHER APPELLANT’S 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 MILITARY

REVIEW WAS WITHOUT POWER TO REVIEW

THIS CASE WHERE ITS JUDGES WERE DES-

IGNATED IN VIOLATION OF THE APPOINT-

MENTS CLAUSE OF THE CONSTITUTION.

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 aaditional appointment to perform judicial

duties. We hold that the Constitution does not require

that a military officer who meets the qualifications of

Article 26, UCMJ, 10 USC § 826, receive a second ap-

pointment to perform the duties of a military judge.

Likewise, we hold tha: a military officer meeting the

qualifications of Article 66, UCMJ, 10 USC § 866, need

not receive a second 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 pro-

vided for, and which shall be established by Law;

but the Congress may by Law vest the Appointment

4a

of such inferior Officers, as they think proper, in the

President 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

congressional encroachment on his power to appoint his

subordinates; and (2) “it limits the universe of eligible

recipients of the power to appoint.” Freytag v. Commis-

sioner of Internal Revenue, 501 U.S. ; , 111 S.Ct.

2631, 2639, 115 L.Ed.2d 764 (1991). Appellant argues

that this second purpose, a limitation on the power to ap-

point, 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-

nointments Clause is applicable to the military justice

<ystem. Government counsel have not disputed this ap-

plicability of the Appointments Clause. Counsel for the

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

pursuant to the plenary power of Congress “[t]o 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

MJ 521, 522-23 ‘CGCMR 1992); United States v. Prive,

35 MJ 569, 573-77 (CGCMR 1992).

We agree that “!jludicial 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. 485, 447, 107 S.Ct. 2924, 2931, 97

L.Ed.2d 364 (1987). Nevertheless, congressional author-

ity to raise, support, and govern the armed forces is

separate from the authority to appoint Officers of the

United States. Judicial deference is granted only to the

5a

former, a legislative power conferred by Article I of the

Constitution. The appointment of Officers of the United

States is an Executive power, conferred by Article II and

controlled by the Appointments Clause, from which the

armed forces are not exempt, either expressly or by im-

plication.

In Buckley v. Valeo, 424 U.S. 1, 96 S.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 Commis-

sion from the Appointments Clause. The Supreme Court

explained:

The position that because Congress has been given

explicit and plenary authority to regulate a field of

activity, 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 else-

where provided for, al/ 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, 96 S.Ct. at 688. Thus, we are compelled to

conclude 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.

Accordingly, 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

“Officers of the United States,” appointed in a manner

consistent with the Appointments Clause. See Freytag v.

C.LLR., 501 U.S. ——, 111 S.Ct. 2631, 115 L.Ed.2d 764

6a

(1991) (special trial judges of Tax Court) ; Go-Bart Im-

porting 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, 96 S.Ct. at 685

(“[A]ny appointee exercising significant authority pur-

suant to the laws of the United States is an ‘Officer of the

United States,’ and must, therefore, be appointed” in

accordance with the Appointments 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, 2 S.Ct. 551, 554, 27 L.Ed. 542

(1883). All regular officers of the military services are

appointed by the President and confirmed by the Senate.

See 10 USC £581; see also 14 USC §§ 211 and 212

regarding appointment of regular Coast Guard officers.

Reserve officers above the grade of major lieutenant com-

mander 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 ‘promotion of active-duty regular and reserve

officers of the Army, 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

officers may perform judicial duties without a new “judi-

cial” 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

commission created by Congress to select land for Rock

Creek Park in the District of Columbia, survey it, map

Ta

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

named officer, has regard to the civil or military serv-

ice of the United States. Wales v. Whitney, 114 U.S.

964, 569 [5 S.Ct. 1050, 1052, 29 L.Ed. 277 (1885) |:

Smith v. Whitney, 116 U.S. 167, 179, 181 [6 S.Ct.

970, 576, 577, 29 L.Ed. 691 (1886)!. But, in the

present case, the duty which the military officers in

question 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 Engin-

eer Commissioner for the District of Columbia, and not

the underlying office of military officer. A careful read-

ing of Shoemaker requires that we reject that argument

for two reasons. First, Shoemaker specifically referred

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

8a

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 du-

ties of the Navy Paymaster-General were of a civil or

military nature.

The principle we glean from Shoemaker is that Con-

gress may create a new office (e.g., Rock Creek Park

Commissioner) 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” appointment is not required if: (1) Congress

did not create a new “office”; or (2) Congress created

a new office, but the duties of that office are “germane”

to the duties of the military officer detailed to perform

them. A second appointment would be required if Con-

gress created a new office and the duties of that office

were not germane to the duties of the military officer

detailed to perform them.

II. Military Judges

A court-martial is a temporary court, called into ex-

istence by a military order and dissolved when its purpose

is accomplished. See Arts. 22, 28, 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 Constitution, are, unlike these, not 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, Mili-

tary Law and Precedents 49 (2d ed. 1920 Reprint).

9a

Military judges perform duties prescribed by statute

and the executive order when detailed to a specific court-

martial. See Art. 26; Exec. Order No. 12473, April 13,

1984, 49 Fed.Reg. 17,152 (promulgating the new Manual

for Courts-Martial) ; RCM 801-1011, 1102, 1104, Manual

for Courts-Martial, 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 per-

form judicial duties such as authorizing searches and

reviewing pretrial confinement, their authority is not

inherent but is either delegated or granted by executive

order. See Mil.R.Evid 315(d) (2), Manual, supra (mili-

tary judge may authorize searches if authorized by reg-

ulations of Secretary of Defense or Secretary concerned) :

RCM 305(g) (military judge may release from confine-

ment); RCM 3805(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 gen-

eral court-martial or special court-martial?

A. New Office

After examining the history and evolution of the mili-

tary judge, set out in greater detail below, we conclude

that Congress did not create a new “office” when it en-

acted: the Articles of War (AW) in 1920 (requring

that a “law member” be detailed te every general court-

martial—AW 8); or the Uniform Code of Military Jus-

tice 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

10a

the law officer as the military judge—Art. 26, 10 USC

§ §26)}.

As the position of military judge has evolved, the mili-

tary judge has acquired virtually all the duties previ-

ously performed by the president and members of a court-

martial. Prior to the 1920 amendments to the Articles 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

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 pro-

vided that the law member ruled finally on questions of

admissibility of evidence but could be overruled by a

majority of the court members on other interlocutory

questions. Until 1951, the Navy and Coast Guard con-

tinued the pre-1920 practice of using non-lawyers to pre-

side over courts-martial and decide interlocutory ques-

tions. 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, 64 Stat. 108, codified in 50 USC $§ 551-736, re-

codified 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. All military serv-

ices 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

‘ +144 _ . ‘ ; ;

Sladlure, and ransi ea more

‘ ] ‘ ‘

OT Une ( irt-martla »tne m

K's ‘ >, |

" i Loo Sine Lit \ me

' ' y

‘ ‘ ‘ ;

and ad es tron ne Nicla

7 | 7

{ } nel , » YY b 43

Cl Li { oe | ine P ’ it

£y A |

é \ ne Supreme ( l)

sa ‘ la | ‘

nal ( hnyvres a increase

t T y y y ‘ ,

I iTi} . ] i

41 . 1

, , , ,

ne iIncumbderit si! 1 pe ag l

~ 7 ‘ , ‘

Ss af { n 2 ¢

14% a } id ».( i ov 1

The Military Justice Act of

, | | 7 ,

lb, UCM, 10 US S 1 )

‘ | 4 ]

~ ) ¢ i «! ) aa c?

{Ue li DD a ( 1) lal ‘ (

| *? ] 2 \V

*t iw i ie } yvnen I

| ’ |

De} ne n i) idge sits

++ | a

martia A one-member cout

4 ’ A 4

military justice. See Art. 16

= : ' .

| ‘

I yt) PeCcoalied ] lt) Li

‘ ‘ ] A VI 7

ry :

il if \ COUTrL- alvidl fi. Vy f

martial); Art. 64(b), Article

XT ‘ » 1 ¢

ING ty.\ ius ie C} (

Orie f ‘ i ) Y { ) -~VY

ry yt +} ]

‘ 4 { < a\ag

+ | |

et - al i Wi [ ine

‘ y

:, , |

| ‘ f | ‘

i i ‘ . \\

, '

‘ l i A PS)

| \

i ‘ i . I vv ¢ { at if

9 Tr Tinite Chat, G r rt

, 155 t} sf ng , Tr

ASt1i¢a D I ; +}

i rr b

did not inte 1 t} = . } ;

il hee in 1969, when the Act be

Contrary tf a i] ente! i rt I

: '

if T yt WV J senting

ee = ‘ . li¢

( ‘ recos Ze ne awesome | iT

entrusted to military officer

ne Governm«: ni

} ‘

‘

{

i

eu

tr

AUT)

tne pres en

See Art. 26. ®

rr’e iin

narilai to i!

L create a ne

in S/ wd f

peen tne Cast

| , f

i tiu te Ul a

neCessa f)

ing appointed,

mended Artic

acCUu () T) *¢

= ]

niva mM ar

without met

court

Ss re new

’ ‘ » oe

yt) it ss ( »/

1956 ‘Sul

mmMaryvy cour

}

f ’ ? ¥

>, Ing a> <

nec i COUT

qerivet trol!

no Tron

I Ih

limited 1

peen deta ed

erred 7

'

imendment o

11d, In dicta [

1 tine { rT

‘

‘ \ oT 196

‘ gy? creat

lemeay’ militar

hat , ninint

; +» ]

raditionall

12a

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 mili-

tary judge to hold sessions outside the presence of the

members 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 dis-

posed of legal and procedural issues. S.Rep. No. 1601,

90th Cong., 2d Sess. 10 (1968), U.S.Code Cong. & Admin.

News 1968, 4501. Article 39(a) did not confer new du-

ties 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 Jus-

tice 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 appointed

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. 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

office was created.

13a

III. Appellate Military Judges

In order to resolve the granted issue with respect to

appellate military judges, we must address three ques-

tions: (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 (8) 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

office 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-martial was accomplished by

a hierarchy of reviewing, supervisory, and confirming au-

thorities, all of whom were military commanders, cabinet

Officers, or the President. In 1920, the Articles of War.

applicable only to the Army, were amenced by enact-

ment of AW 50!.:, which mandated: “The Judge Ad-

vocate 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 con-

firmation by the President.” Furthermore, “execution

of any ... sentence of a general court-martial involving

the penalty of death, dismissal not suspended, dishonor-

able discharge not suspended, or confinement in a peni-

tentiary,” 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 501%. On the other

hand, special courts-martial and summary courts-martial

l4a

were reviewed only by the officer appointing the court.

AW 36 (1920). After the 1948 amendments of the Ar-

ticles 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 1951, a Navy general court-martial was re-

viewed 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 dis-

missal of a commissioned 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).

feviewing authorities were required to examine juris-

dictional issues, the legal sufficiency of the pleadings, ob-

jections to evidence, and the legal sufficiency of the evi-

dence. Sce, ¢.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 Gaerd Headquarters, where it was “reviewed for

legality . .. with the same force und 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,

Manual for Courts-Martial, U.S. Coast Guard, 1949. All

other courts-martial were reviewed by the Secretary of

the Tressury. and the President in the case of dismissal

j

of un officer. 14 USC § 564(d) (1949); Art. 140, Man-

ual, USCG, supra. No Coast Guard court-martial could

impose a sentence exceeding a discharge, confinement for

l5a

5 years, forfeiture, and reduction. 14 USC § 564(b) and

(ce) ; see Art. 50, Manual, USCG, supra.

After the Uniform Code of Military Justice became

effective in 1951, convening authorities in all services re-

tained the authority and responsibility to review the rec-

ord of trial for legal sufficiency. See Art. 64, 50 USC

§ 651, recodified in 10 USC § 864 (1956) (“|The econ-

vening 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!5,

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 offi-

cers 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 com-

posed 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 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

l6a

the Naval services in 1951. For the first time, there

was a level of formal appellate review beyond the officer

who convened the general court-martial. Also, for the

first time, a permanent military tribunal was established,

as compared to courts-martial which are temporary en-

tities. Article 66 vested no discretion in the Judge Ad-

vocates General; boards of review were mandatory. We

are satisfied that Congress, acting indirectly through the

Judge Advocates General, created a new office by estab-

lishing boards of review. Cf. Dettinger v. United States,

7 MJ 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 au-

thority 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 tri-

bunals in military officers and giving them the authority

to appoint the members.

That Congress intended the boards of review to be tri-

bunals of a different nature from the Court of Military

Appeals is apparent both from the language of the stat-

utes creating them and the legislative history. The stat-

ute first creating the Court of Military Appeals used

traditional language for creating a civilian Article I

court: “There is hereby estabiished a Court of Military

Appeals... .” Art. 671a) (1), G4 Stat. 129 (1950). In

1969 the provision was amended to read: “There is a

United States Court of Military Appeals established un-

der article I of the Constitution 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 virtually the identical

17a

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 Ad-

vocate General of each of the armed forces shall con-

stitute 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 secre-

tary and whose judges, both military and civilian, would

have served 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 Vet-

erans Appeals. It would have amended Article 66/a) to

read: “There is established for each military depart-

ment 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 es-

tablished.” Joint Hearings before the Subcomm. on Con-

stitutional Rights of the Senate Judiciary Comm. and the

Special Subcomm. of the 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 in-

tent of the drafters to use military expertise on the

boards of review. The following exchange between Sen-

ator Kefauver and Professor Morgan is instructive:

SENATOR KEFAUVER.... May I ask at this

point, was there any difference of opinion on the part

18a

of the committee or extensive discussion as to whether

each service should have its own reviewing section?

MR. MORGAN. No; the committee was unani-

mous on that, so far as the board of review is con-

cerned.

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 par-

ticular 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 or 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

amendment 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 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. Gov’t. Printing Office). Certain or-

ganizational changes were mandated to improve efficiency

and protect the independence of appellate military

judges; but no new authority was conferred, no new

duties imposed, and no new appointment procedures for

appellate military judges were established.

,

19a

B. Germane Duties

Turning the second question, we observe that military

officers traditionally have been responsible for legal re-

view of court-martial convictions in their capacities as

reviewing and supervisory authorities. Prior to the crea-

tion of boards of review, military commanders were re-

sponsible 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) ; para. 35, Man-

ual for Courts-Martial, U.S. Coast Guard, 1949 (deck

court reviewed by Commandant of Coast Guard) ; § 472,

Naval Courts and Boards, 1937 (commander reviewing

the record must examine jurisdictional issues, legal suf-

ficiency 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% and Article 66 of the Code reflect that Con-

gress had this cadre of legally trained officers in mind

when boards of review were first created in 1920 and ex-

tended to all the services in 1951. Congress considered

the duties of the boards of review not only germane to

military duties, but particularly appropriate for mili-

tary lawyérs. We hold that the duties of the newly-

created boards of review were “germane” to the duties

of the legally trained military officers contemplated by

AW 50! 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 re-

20a

view created by Article 66(a) was the Army board of

review, composed of military officers, which was created

by AW 50!.. The provision for civilian members was

not included in AW 50':, 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 Jus-

tice, Mr. Larkin explained the provision for civilian mem-

bers 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

working in their court-martial procedures during

peacetime, and they feel they are very competent.

They don’t have an unusually large number of offi-

cers 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., 8lst Cong., Ist Sess. 1189

(1949), reprinted in Index and Legislative History, Uni-

form Code of Military Justice (1950).

In appellant’s case we need not decide whether Con-

gress inadvertently exceeded its authority by vesting the

powers of an “Officer of the United States” in civilians

who had not been appointed in accordance with the Ap-

pointments Clause, because no civilians participated in

the appellate review of his case. We regard the pro-

vision for civilian members of boards of review and their

successors, the Courts of Military Review, as severable

from the remainder of Article 66(a). Congress had two

purposes in enacting Article 66(a). The primary pur-

pose was to make boards of review mandatory for all

services. The secondary purpose was to accommodate

the Coast Guard by authorizing civilian members on

boards of review. Where a statute attempts to accom-

2la

plish two or more objects, it may he valid as to one and

invalid as to others. as long as its purpose can he se-

complished by the valid part and is not dependent won

or conditioned by the invalid part. Sutherland Ste

Const. § 44.07 at 503-04 (4th Ed.1986 Revision

D. Cone usion

Applying the Shoemaker analysis to dappe lant’s case,

we hold that appellate military judges need not be re-

appointed to perform judicial duties becanse

if (

duties are “germane” to the offices already held by ther

as legally trained commissioned officers of their 1" spec-

tive armed forces. Accordingly, we hold that appoint-

ment of the appellate military judges who reviewed ap

pellant’s case was consistent with the Appointment

Clause

{

ve requirement tl rial and e)

TT = per fies] avupcn (| } ives [ he Pr (ie!

Court of Law, o1 Head « 1) ment, and ¥

consider it) Inam site lo - Congr

ve) TELL é ryel relic . . {

leped ae byl Convress considered such ‘

n 1066 didn Mere We cle (

ne ] (ti¢ |’ ; pon ! \ ) Ci] t

quired for the trial and a Weide yucges nv ed in

pellant’s case. As we stated in United States +. Hew

o4 MJ 174, 178 (CMA 1992), “As a court...

are not involved in the merits ee poli vy. We nierpre

statutes, and we ean strike them down only when ‘he

violate the Constitution.”

The decision of the United States Navy-Marine C

Court of Military Review is affirmed.

Judge COX concurs.

22a

CRAWFORD, Judge (concurring in the result) :

The lead opinion has put forward a thoughtful and

well-reasoned analysis of how Article II, section 2, para-

graph 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 prem-

ise of the lead opinion that the Appointments Clause

applies to the selection of a military judiciary and there-

fore can only concur in the result.

In concluding that the Appointments Clause does not

apply either to selection of military trial or military

appellate judges, one of necessity must engage in both

an historical and a contemporary analysis of the Con-

stitution and its Appointments Clause. In applying both

approaches, the intentions of the Framers can be deter-

mined from documents that are available. See, e.g., 4

P. Kurland & R. Lerner, The Founders’ Constitution

thereafter Kurland: (1987); J. Harris, The Advice and

Consent of the Senate thereafter Harris) 25-30 (1953).

A. The Historical Approach

At the time of the Constitutional Convention in Phil-

adelphia from late May to mid-September 1787, no

thought was given to how the Appointments Clause

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 na-

tional judiciary without some sort of Council to sereen

the appointment process. Second, those who opposed a

strong legislature feared that if the appointment author-

ity was given to the legislative branch, the appointment

of a national judiciary would fall into the hands of cer-

tain factions. Harris, supra at 25-30.

At the time of these debates there was no military

judiciary in place, that function being served by military

23a

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

Founding Fathers gave no explicit consideration to in-

cluding a military judiciary within the ambit of the

Appointments Clause.

B. The Contemporary Approach

A contemporay approach to reviewing our Constitu-

tion and its provisions looks at the intent of the Fram-

ers and the interests and values they meant to protect.

'No. 78, “A VIEW OF THE CONSTITUTION OF THE JU-

DICIAL DEPARTMENT IN RELATION TO THE TENURE OF

GOOD BEH AVIOR, ” wherein Hamilton discusses “the doctrine of

judicial review,” stating: “Whenever a particular statute contra-

venes the Constitution, it will be the duty of the judicial tribunals

to adhere to the latter 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 Ham-

ilton expresses “[t]houghts 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 TC THE DISTRIBUTION OF ITS AU-

THORITY,” wherein Hamilton “states the case for a distinct,

learned, independent Supreme Court, then speculates on the rela-

tions of the Supreme Court to the lower courts.”

No. 82, “A FURTHER VIEW OF THE JUDICIAL DEPART-

MENT IN REFERENCE TO SOME MISCELLANEOUS QUES-

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 “Ham-

ilton 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).

’ = A ] hi ~ i caAil

T

j vi ; ‘ ; | is 9 Ce nst t1]

1 Whi 16, 407, 4 L.Ed. 579 (1819 he Constitu

y " O?) ‘ ioht ‘ =4 + ¢

‘ ) ' ? ) *i] (= | ’ ij

‘ 7 ‘ 5 { J sig Nat "4 ot th, ET

SS (Lal Pi 12] !

‘ ‘ | i 1g) ’ ’ , |

AN

,

)

f f

{ . ‘

‘ ‘ f t I

‘ . \i

\ f

1 1 .

>. ‘ ‘ ‘ < |

? ’ 1 ; an | ?

\ \ =e t y

‘ T, ]

? ' rr)? ¥ ¥ ’

£ | t . t | $ C\V eI {J f

" y . ;

4 j

‘ (i¢ é j

»s

\ LJ { \) ‘

ar , iay 4 YY : \ ¥s + hh + + 4 P

" il i A tc vy i rN .. [ . T

t et | ‘ ) ’ vy ? |

‘ ‘ ‘ T} I . v\ i i

> le

‘make all laws that are... . necessar

18).

The rationale fo. th approacn bY

found in Alexander Hamilton’s Federalist

NN +p)

ANU, 2oO

T] -)11+} 1th ] .

i1¢ aucnorl IPS @CSsSSseOTl_ lal LO lf Ca i'¢ QO]

y ' ita ‘45 ‘ "40 ra | , : :

mon ar fence Ale Nest O Valse ArmMIeéES to

CY il}) flee . oO presser pe yules ror tne ov

— ' .

() ) tr 7 : , ‘ ‘

[ i) I) O alyre Nel} w~ralions pie

+} 1 ‘ TIV\NV +t ry

[ie ! pul ine f 1) t’) Ou! > BASS

‘ : , of F ) 4 .

llmitation: Because it 3 dm pousstbhle— fe }

/ j .

de lL jleé Lilie ( CH aad adrieti of wa é

/ P ,

aid thie COTES Pi pade) r 4 f st) meet

hy ] }

WCQ, IMHLICIL Wier bye perce “pu 10 | rif

nN IycumMmstances Nat endange) ne ire

? } ’ ’ ] ‘ + |

MOMs are INnlinilte: and to) Nis ye )} !

on ( ( ( nv { )¢ } (j a

0 Whniecl L] ( \*¢ OT ecomn r i

1(rT () Lit (*(j¢ () i rit )

y ‘ + | ] |

INallon ()] ICN Clye ) n«i }

' ec -

(je ]} ne (LV e¢ ! | al { ne ~

—— } 4 . ’ }

pol) eC] ( re (ie f tne common dete}

Ay | +] | ]

W ne nes ner { {)] Li be : rede vo

i cA4 ~ ’

’ ] ; +} } ;

Y) ! ] ed ‘yi lr it { t )] at \ mm n (ie If

‘ ra | , a

U it On, a { n iT)( I (i)

but the moment it led

Dut tne moment it is decided in the affirn

1) £17 )

1 | + | ‘ + lL + ;

vill follow, that that government ought to b

: 1} on | ‘ |

WILD al] the powers requisite f ne comple

, ; * os 4 } . .

lon of its trust Ln niess it can be she

+} Tt yt 46 " . Re = ] ‘ ty |

Ilf CiIPCUulNsltances WiliCh nia AlLCC Wud

Ora Fa 11/0) +}

ale reducible Witnin ce) n determinate lin

4 | ]

e ne contrary of this position can be {

{ oy l}y , ‘ ‘ ]

bal nat) dis ) eC ] } L Ne i ttecd a

add ia

an’ nee ne nere can be n mit

ri, Spey “ws ; |

] ; 48 : ) { ror the

Rall } Met | }

| protection of the community. in any mi:

28a

sential to its efficacy; that Is, in any matter essen-

tial to the formation, direction or support of the

NATIONAL FORCES.

MeL. ra

added

n. supra, vol. I at 144-45 (some emphasis

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

anticipated, in another. piace, to admit an extensive

discussion of them in this place. The answer indeed

| discussion in any place. With what

c » of propriety could the force necessary for de-

nited by those who cannot limit the force

offence? If a federal Constitution could chain the

ition, or set bounds to the exertions of all other

cems to be so obvious and conclusive as secareely to

hoa ;

~10¢*) >

‘ ; Cll G

ence pe |}?

nations, then indeed might it prudently chain the

ejon of its own government, and set bounds to

7’ sat ra | P : it ] , + , 1+ ’ ane :

yet the Framers, mindful of the new nation’s fears

regarding establishment of a standing armed foree in

y rye ’ ryvy > } _ ore

ve * ( > Padover, lo SECT These Blessings 202-08

(1962). did not prepose to give the new executive and

lecislature this great authority without some limitation.

\iticle I, Seetion 8, Clause 12, gives Congress the au-

y to “raise and support Armies” but also provides

“no Appropriation of Money to that Use shall be

longer Term than two Years.” In The Federalist

No. 26, Alexander Hamilton puts forth a spirited defense

of this clause that limits appropriations for military

purposes to tWo Years:

29a

The legislature of the United States wil! be ob/iqed

by this provision, once at least in every two years,

to deliberate upon the propriety of keeping a mili-

tary force on foot; to come to a new resolution on

the point; and to declare their sense of the matter,

by a formal voie in the face of their constituents.

They are not at liber/y to vest in the executive de-

partment permanent finds for the support of an

army; if they were even incautious enough to be

willing to repose in it so impr; au confidence. As

the spirit of party, in different degrees, must be

expected to infect all political bodies, there will be

no doubt persons in the national legislature wil

enough to arraign the micastres and criminate thi

views of the majority. The provision for the sup-

port of a military force will always be a favourable

topic for declamation, Av cilen us the question

comes forward, the publ:ie attention wi:l be roused

and attracted to the subjeci:, by the party in opposi-

tion: And if the majority shceld

» exceed the Proper iMiits, the conm nity will be

’ . , “8 } 1] } ; 24

warned of the danger, and wal! have an opportun

of taking measures to euara against it. Indenend.

f »)*) ' ina } } if t

en 2 i} ( 'T} ‘ sla il ¢ Cll {

?

oiten as hi ( { ( Mn al el ne stace

legislatur sar! i ol we I spelen estates. Vesad

CY Isic ins Gee WO Will diweatl Ie? no (sil \ Vaigsian e i ‘

Uspiclous and lO Pealraians O} ne vieneus O11 LNne

CiliZens, A@AaAiNse MNCVOACHiVE: a m he Leer ae

ernment, Wiil Con otrtil Phos \ f= cl (’y} Nn ciW

tg the conduct of the : ar and

Bos ' <£ ¥ -

readady enouven li #3an n® : Mer Anpyped

sound the alai'm ¢ mye and not only to be the

VOICE, but, if nece:sar he ARM of thetr dis-

ce ontent.

ean Mpra, vol. | at 165-6.

An examination cf the milit I\ imary, although

similar to its civilian counterpart in the importance and

30a

scope of its duties, also reveals marked dissimilarities

from a civilian judiciary because of the ever-existent po-

tential 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 serving in Somalia as part of a relief effort called

Op ration Restore Hope.

These missions require worldwide deployment and the

need for instant mobility and flexibility in assignments,

including military judge assignments. Military judges

must try cases in combai environments, and, due to the

potential for military judge casualties, replacements must

be available at a moment's notice. The ever-expanding

role of the military only underscores the wisdom of our

lounding Fathers in entrusting Congress with the au-

thority and responsibility for providing for its day-to-

aav operations.-

[In carrying out its enumerated responsibilities Congress

has paid careful attention to the military justice system

Starting in 1950 with the adopiion of the Uniform Code

of Military Justice, Congress has been very active in ex-

panding the status and power of the military judge. In

- For example if during Desert Shield/Storm a scud missile hit

housing one or more judges from the services, replace

ments 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

eal ( es, the Judge Advocate General should have the flex-

ibilit of a vningy a trial judge not involved with those cases to

the appellate court.

3la

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 pro-

vided for military judges (at 1336) and the Courts of

Military Review (at 1841). See generally Cox, The

Army, The Courts, and The Constitution: The Evolu-

tion of Military Justice, 118 Mil.L.Rev. 1 (1987) ; Crimi-

nal Law Note: An Ongoing Trend: Expanding the

Status and Power of the Military Judge, The Army Law-

yer 23 (Dept. of the Army Pamphlet 27-50-239, October

1992).

In addition to his or her constitutional role as Com-

mander-in-Chief, U.S. Const. art. II, § 2, the President

has a specific role for military justice matters. Pursuant

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 au-

thority to prescribe “‘[p]retrial, trial, and post-trial pro-

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 1 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 Ap-

pointments Clause. First, with respect to selection of

qualified individuals to serve as military judges, Con-

gress has determined that these assignments be made

by the Judge Advocate General of each service who has

direct responsibility for military justice within his or

her respective service.* Congress has implicitly recog-

8 Article 26(c), Uniform Code of Military Justice, 10 USC

§ 826(c), provides: “The military judge of a general court-martial

nized that the

situated to

9.

“a

Judge Advocates General are uniquely

determine which officers are best qualified

within their respective services to serve as both trial and

an

necessity

in

gr

quickly al

other exigencies may affect

Second, with

and

bra

Dalances

is

assigning’ millita

P ll. 77 °

ippellate judge

combat

Moreover, these same individuals have

flexibility to make these assignments *

environment where

the military judiciary.

Ss

+

Ca |

casualties or

establishing a system of checks

between the Executive and Legislative

difficult to see how the present system of

idg |-

respect to

es jeopardizes that delicate ba

ance [ft anything le creation by Congress in 1951 of

the United States Court of AMIilitary Appeals, a federal

civilian court subject to the Appointments Clause, which

reviews Cecisions of the miuitary judiciary, more than

satisies anv concerns in that regard. See 64 Stat. 129.

Additionally, effective August 1, 1954, Congress provided

In Article 67(h) (1), UCMJ, 10 USC § 867(h) (1), now

hall designated by the Judge Advocate General, or his designee,

( e arm of which the military judge is a member. oe

rticle 66 UCMJ, 10 USC § 866 provides: “Each Judge

cate General shall establish a Court of Military Review which

: b mposed of e or more panels, and each such pane! shall

I mposed of not le than three appellate military judges.’

Se | Morgan, The Backqround of the Uniform Code af Mil

a Justice, 6 Vand.L.Rev. 169 (1953): Comments, Military Ju

tice cnd the Constitut Improvements Offered by the New Ur

f Code of Military Just 29 Tex.L.Rev. 651 (1951

is ( 6 UCMJ, 10 US S06(a), states

The assignment for duty of jud advocates of the Armv, Na

\ Force, and Coast Guard shall be made upon the recom

dation of the Judge Advocate General of the armed fore

of which they are membe) The assignment for duty of judge

advocates of the Marine Corps shall be made by direction of

the Commandant of the Marine Corps. The Judge Advocate

Gi ( r members of his staff shall make frequent in-

spections in the field in supervision of the administration of

military justice

33a

Article 67a, UCMJ, 10 USC § 867a (1989), that deci-

sions of our Court are reviewable by the Supreme Court

. the United States by writ of certiorari, Military Jus-

ice Act, Pub.L. No. 98-209, § 101¢e) (2), 97 Stat. 1395,

1406, thereby providing the ultimate check on judicial

decisions of the military justice system.

If there is dissatisfaction with the military justice

is it exists today, it can be changed or modified

by the majoritarian process. That is, the elected repre-

entatives of Congress, in consultation with the Execu-

tive branch, have the power to make any necessary

changes. But this Court must not, by judicial fiat, im-

pose the procedures intended for a federal civilian ju-

diciary -upon the military under the guise of the Con-

be to ignore the constitutional

deference given to Congress by our Founding Fathers

because of the vealities and practicalities of national

stitution. To do so woule

D. Special Deference

Based on the intent of the Framers, the Constitution,

and Federal statute, the Su prem » 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 ane

justice. Judge Grace in United States v. Prive, 35 MJ

569, 573-74 (CGCMR 1992), has listed some of those

decisions as follows:

Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 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. (4 Wall.) 2, 123, 18 L.Ed.

281 (1866) (“Congress has declared the kinds of trial

—a

34a

(for offenses by soldiers] and the manner in which they

shall be conducted. .. .’’).

Parker v, Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555,

41 L.Ed.2d 439 (1974) (“This Court has long recog-

nized that the military is, by necessity, a specialized so-

ciety separate from civilian society. ... {T]he military

has, again by necessity, developed laws and traditions of

its own during its long history.” )

Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.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 exi-

gencies as powerful now as in the past. Their contem-

porary vitality repeatedly has been recognized by Con-

gress,”

Norihern Pipe line Construction Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 66, 102 S.Ct. 2858, 2869, 73 L.Ed.

2d 598 (1982) «| T]he exercise by Congress and the

executive of the power to establish and administer courts-

martial... involves a constitutional grant of power that

has been historically understood as giving the political

sranches of Government extraordinary control over the

precise subject matter at issue.”’)

In United States v. Prive, supra 35 M.J. at 576, Judge

Grace summarized the effect of these decisions on the

present issue by paraphrasing a statement from North-

crn Pipeline as follows:

T {hese precedents [of the Supreme Court] “rep-

resent no broad departure from the constitutional

command that” appointments must be made in ac-

cordance with the Appointments Clause. Rather,

they reduce to a narrow situation not subject to that

command, that “recognizi/es] a circumstance in

which the grant of power to the Legislative and

I’xecutive Branches was historically and constitution-

35a

ol] . +7 2 | h« h . °ys ’ ~] + .

ally so exceptional tnat tne congressional assel n

. 9 } } . . PP ° ;

oT power fo designate military J idqges outside of the

es , . , -

pro OWS oft thie Appoint me nis Clause MS CO)-

il

sistent with, rather fhan threatening to, the COn-

. : , : , ;

stitutional mandate oT separation of powers,

i

’ - rQ : ‘ ‘os ¢ , } Ss

See 458 U.S. at 64, 102 S.Ct. at 2808 (emphasis added)

Judge Grace also relied on this statement from SS: rlO

v. United States, 485 U.S. 435, 447, 107 S.Ct. 2924, 2951,

97 L.Ed.2d 364 (1987

’

‘ _ T ‘ . Ys . > ‘ ) lé oe od

95 U.S. 258. 89 S.f 1683. 23 L.Ed.2d 291 11969)

. ‘ ’ ’

lave aiso emnpnas 7e¢] na (onare has primary re-

. we ; ,

DO rsahilita ror Thre Cericdate tash of balancing the

, ’ ,

, hts OT ) (me) “da af ain need Ort Th a -

avi \ we re ! yore aced, a citi ear ( =

f f : power wnen legisiative a n

: . . , .

nae) e congressional aulno! O Yalse and l}-

’ “2 oe ‘

ort armies and make rule and regulations for then

rover! nce Ss enailenvget

}

Emphasis added and citations omitted. )

Ww and “econeclude tnet Congress, In !legisiating tor tne

ne i } ‘ rorces, n , 1) vide ror tne des gnation

i * ] . . + + ‘7 + " .

f coves within ne n ar’ istice systen na man-

36a

SULLIVAN, Chief Judge (dissenting) :

I respectfully disagree with the lead opinion and Judge

Crawford’s separate opinion in this case. In my view the

Constitution speaks clearly on the granted issue, and we

are duty-bound to follow its supreme command. U.S.

Const. art. VI. Military judges, both trial and appellate,

are “inferior Officers” of the United States and must be

appointed to their offices by “the President alone,” or by

this Court or one of the other “Courts of Law,” or by the

Secretary of Defense or one of the other “Heads of De-

partments.” Art. II, § 2, para. 2, cl. 2. See Freytag v.

Commissioner of Internal Revenue, 501 USS. , 1ll

S.Ct. 2631, 115 L.Ed.2d 764 (1991). Appellant’s mili-

tary judges were not so appointed, but their status as de

facto appointees might preclude reversal of his convic-

tion. See Northern Pipeline Construction Co. v. Mara-

thon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858,

2880, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424

U.S. 1, 142-43, 96 S.Ct. 612, 693, 46 L.Ed.2d 659

(1976): Nevertheless, I must dissent to the majority’s

simple affirmance of this case. Id.

More particularly, I do not believe that Congress’ broad

power to make rules for the land and naval forces under

Article I, § 8, clause 14 of the Constitution is unlimited

such that the Appointments Clause can be considered per

se inapplicable to military justice legislation. See gen-

erally Mistretta v. United States, 488 U.S. 361, 382,

109 S.Ct. 647, 660, 102 L.Ed.2d 714 (1989). (Even

Congress’ primary duty to make laws is limited by the

constitutional prohibition against an ex post facto Law-

e.g., Art. I, $9, para. 3). A contrary opinion in my

view is extremely dangerous in that it upsets the deli-

cate system of checks and balances provided in our Con-

stitution to ensure the American way of government.

I also would hold that commissioning and promoting

military officers by the President by and with the advice

87a

and consent of the Senate does not obviate the need for

additional constitutional appointments of such persons

for higher or more responsible offices both within and

without the military department (i.e., military trial

judge or appellate judge). There is no blanket “com-

missioned officer” exception to the Appointments Clause

written in the Constitution, and the decision of the Su-

preme Court in Shoemaker v. United States, 147 U.S.

282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), should not be

broadly extended to create one for military officers who

are simply “legally trained.” In sum, consistent with my

judicial philosophy of spurning judicial legisiation, I also

must reject the judicial constitution-making accomplished

by the lead opinion in this case.

I

The Granted Issue

The issue raised by appellate defense counsel and

granted review by this Court is as follows:

WHETHER APPELLANT'S COURT-MARTIAL

LACKED JURISDICTION WHERE THE MILI-

TARY JUDGE WAS DESIGNATED IN VIOLA-

TION OF THE APPOINTMENTS CLAUSE OF

THE CONSTITUTION, AND WHETHER THs

NAVY-MARINE CORPS COURT OF MILITARY

REVIEW WAS WITHOUT POWER TO REVIEW

THIS CASE WHERE ITS JUDGES WERE DES-

IGNATED IN VIOLATION OF THE APPOINT-

MENTS CLAUSE OF THE CONSTITUTION.

In this regard, I note that the judge in this trial was

Major Edward F. Pesik, Jr., United States Marine

Corps. He was certified in accordance with Article 26

(b), Uniform Code of Military Justice, 10 USC § 826

(b): sworn in accordance with Article 42(a), UCMJ,

38a

10 USC § 842(a); and detailed to this case.’ The ap-

pellate military judges in this case were Senior Judge

James A. Freyer, a Navy Captain; Senior Judge Richard

A. Strickland, a Marine Colonel; and Judge James E.

Orr, a Navy Captain. These judges constituted Panel

No. 1 of the Court of Military Review, and they re-

viewed appellant's case in accordance with that court’s

internal rules.

The issue of law raised by appellate defense counsel

and granted by this Court focuses on the “designat[ion]”’

of the military judge who tried his case and the “de-

signat{ion]” of the military appellate judges who heard

his appeal. Appellant does not contend that these desig-

nations were accomplished in violation of the Uniform

Code of Military Justice. Instead, he contends that they

were not accomplished in accordance wih the Appoint-

ments Clause of the United States Constitution. Art. I],

$2. para. 2, cl. 2. Relying heavily on the recent Supreme

Court decision in Freytag v. C..R., supra, he asserts that

military judges “are ‘Officers of the United States’”’ who

must be “appointed as such by the President, the Courts

of Law, or the Head of a Department.” Final Brief at

10. Finally, he asserts that the designation of these mili-

tary judges by the Judge Advocate General of the Navy

fails to satisfy this constitutional appointment standard.

I]

The Statutes Establishing The Military Judge

A necessary step in resolving the granted issue is to

understand the statutes which create the military trial

and appellate judges and provide for persons to fill these

judicial positions. At the outset I note that Congress

has not expressly provided that a person be “appointed”

1 Appellant represents without opposition that Major Pesik was

a “General Court-Martial qualified” judge and the Sierra Judicial

Circuit's Chief Military Judge.

39a

a military trial judge or appellate judge. However, in

the version of the Uniform Code of Military Justice en-

acted in 1950, Congress did provide for “appoint{ment]”

of a law officer, the statutory predecessor of the military

judge, by appropriate convening authorities. See Art.

°%ia’. UCMJ. 50 USC $590(a), recodified in 10 USC

© 296/a) (1956). Furthermore, in the 1950 Code, Con-

gress provided for “appoint!ment|” of judges of this

Court “by the President, by and with the advice and

consent of the Senate.” Art 67(a), UCMJ, 50 USC

§654(a), recodified in 10 USC $867(a) (1956); see

Art. 142(b) (1), UCMJ, 10 USC § 942(b) (1) (1989).

Despite Congress’ obvious familiarity with the appoint-

ment terminology, it chose to create the military judge

and provide for filling this government position with

somewhat less direct language.-

I first note that, since 1969, Article 26(b) had pro-

vided that “!a] military judge shall be a commissioned

officer of the armed forces.” 10 USC $531 further pro-

vides:

£531. Original appointments of commissioned of-

ficers

(a) Original appointments in the grades of second

lieutenant through colonel in the Regular Army,

2What is an “appointment’ for purposes of the Appointments

Clause is a substantial constitutional question concerning separa-

tion of powers which implicates all three branches of our Govern-

ment. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 2 L.Ed.

60 (1803). See generally Buckley v. Valeo, 424 U.S. 1, 122-24, 96

S.Ct. 612, 46 L.Ed.2d 659 (1976). Moreover, in Auffmordt v. Hed-

den, 187 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890), the

Supreme Court clearly held that Congress’ use of the word “select”

rather than “appoint” was but one factor to be considered in deter-

mining whether the Appointments Clause applied. Finally, in Shoe-

maker v. United States, 147 U.S. 282, 12 S.Ct. 361, 37 L.Ed. 170

(1893), the Supreme Court impliedly held that designation of

officers for additional duty requires compliance in some manner

with the Appointments Clause.

40a

Regular Air Force, and Regular Marine~Corps and

in the grades of ensign through captain in the Regu-

lar Navy shall be made by the President, by and

with the advice and consent of the Senate.

(Emphasis added.) See also 10 USC § 593 (appointment

in reserves in commissioned grades below lieutenant col-

onel and commander by President alone).

The qualifications for original appointment are also

statutorily established:

$552. Qualifications for original appointment as a

commissioned officer

(a) Under regulations prescribed by the Secretary

of Defense, an original appointment as a commis-

sioned officer (other than as a commissioned warrant

officer) in the Regular Army, Regular Navy, Regu-

lar Air Foree, or Regular Marine Corps may be

given only to a person who—

(1) is a citizen of the United States;

(2) is able to complete 20 years of active commis-

sioned service before his fifty-fifth birthday;

(3) is of good moral character;

(4) is physically qualified for active service; and

(5) has such other special qualifications as the See-

retary of the military department concerned may

prescribe by regulation.

Article 26:b) (1969) also provides that a military

judge must be “a member of the bar of a Federal court

or a member of the bar of the highest court of a State.”

This requirement for legal training is somewhat less

stringent than the requirement for detail as trial counsel

or defense counsel at a general court-martial. See Art.

27(b), UCMJ, 10 USC § 827(b), which states:

(b) Tria] counsel or defense counsel detailed for a

general court-martial—

Eo

4la

(1) must be a judge advocate who is a graduate

of an accredited law school or is a member of the

bar of a Federal court or of the highest court of a

State; or must be a member of the bar of a Federal

court or of the highest court of a State; and

(2) must be certified as competent to perform

such duties by the Judge Advocate General of the

armed force of which he is a member.

(Emphasis added. )

I next note that Article 26(b) (1969) provides that

a military judge must be “certified to be qualified for

duty as a military judge by the Judge Advocate Genera!

of the armed force of which such military judge is a

member.” The standards for certification are not pro-

vided by statute, and there is no statutory requirement

that a military judge be designated a member of the

Judge Advocate General’s Corps or a Marine Corps judge

advocate. However, as a_ practical matter, military

judges to be certified as qualified normally would have

experience as a trial or defense counsel under Article

27(by. This statute alternatively requires designation

as a “judge advocate,”

In fact, the military judge who presided over this

court-martial was a Marine judge advocate. See NAVMC

P-1005, Officers on Active Duty in the Marine Corps at

1-43 (1 Oct.1989, 48th Rev.). 10 USC § 5587a provides:

§5587a. Regular Marine Corns: judge advocates

With the approval of the Se cretary of the Navy,

any regular officer on the active-duty list of the

Marine Corps who is qualified under section7827 (b)

of this title may, upon his application, be designated

as a judge advocate,

(Emphasis added. )

42a

Moreover, two of the appellate military judges who

heard his appeal before the Court of Military Review

were members of the Navy Judge Advocate General’s

Corps. 10 USC § 5150 provides:

$5150. Staff corps of the Navy

(a) The staff corps of the Navy are—

(1) the Medical Corps;

(2) the Dental Corps;

(3) the Judge Advocate General's Corps;

(4) the Chaplain Corps; and

(5) such other staff corps as may be established

by the Secretary of the Navy under subsection

(b).

(b) (1) The Secretary of the Navy may establish

staff corps of the Navy in addition to the Medical

Corps, the Dental Corps, the Judge Advocate Gen-

eral’s Corps, and the Chaplain Corps. The Secretary

may designate commissioned officers im, and may as-

sign members to, any such staff corps.

(Emphasis added. )

As indicated above, designation as a judge advocate

does not determine where or when a commissioned officer

serves this duty. Article 6, UCMJ, 10 USC § 806 (1984),

further comments on the assignment for duty of judge

advocates, as follows:

£906. Art. 6. Judge advocates and legal officers

(a) The assignment for duty of judge advocates

of the Army, Navy, Air Force, and Coast Guard

shall be made upon the recommendation of the Judge

Advocate General of the armed force of which they

are members. The assignment for duty of judge ad-

vocates of the Marine Corps shall be made by direc-

43a

tion 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.

(Emphasis added.) The legislative history makes clear

that Congress intended the Judge Advocate General of

each service to play a substantial initiating role in the

assignment process while reserving to military personnel

authorities the final say.* See Hearings on H.R. 2498

Before a Subcomm. of the House Armed Services Comm.,

8ist Cong., Ist Sess. 898-901 (1949), reprinted in Index

and Legislative History, Uniform Code of Military Jus-

tice (1950).

310 USC §5013(g) provides:

(g) The Secretary of the Navy may—

(1) assign, detail, and prescribe the duties of members of

the Navy and Marine Corps and civilian personnel of the De-

partment of the Navy;

(2) change the title of any officer or activity of the Depart-

ment of the Navy not prescribed by law; and

(3) prescribe regulations to carry out his functions, powers,

and duties under this title.

10 USC § 5131 creates the Bureau of Naval Personnel and 10 USC

§ 5132 empowers it as follows:

§ 5132. Bureaus: distribution of business; orders; records;

expenses

(a) Except as otherwise provided by law, the business of the

executive part of the Department of the Navy shall be dis-

tributed among the bureaus as the Secretary of the Navy con-

siders expedient and proper.

(b) Each bureau shall perform its duties under the authority

of the Secretary, and its orders are considered as coming from

the Secretary.

(c) Under the Secretary, each bureau has custody and charge

of its records and accounts.

(d) Each bureau shall furnish to the Secretary estimates for

its specific, general, and contingent expenses.

For members of the Marine Corps, these powers are vested in the

Commandant of the Marine Corps. See 10 USC § 5043(e)(3).

44a

Article 26(c} (1969) also provides that a “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 for detail

in accordance with regulations prescribed under subsec-

tion (a).” (Emphasis added.) The language of desig-

nation is not new (10 USC § 8067) and generally refers

to “a special duty classification.” See 1967 U.S.Code

Cong. & Admin. News 2118, 2114. Again the actual

assignment of a designated military judge to Navy-

Marine Corps Trial Judiciary is impliedly left to mili-

tary personnel authorities. See SECNAVINST 5813.60

(13 April 1979).

Finally, Article 26(a) (1969), in providing for de-

tailing military judges to hear particular cases, states:

(a) A military judge shall be detailed to each

general court-martial. Subject to regulations of the

Secretary concerned, a military judge may be de-

4 6. Organization. The Navy-Marine Corps Trial Judiciary is

a naval activity as that term is defined in [U.S. Navy Regula-

tions, 1973]. It is composed of the Office of the Chief Judge

of the Navy-Marine Corps Trial Judiciary and such Judicial

Circuits and their Branch Offices as may be established by the

Judge Advocate General. The Judge Advocate General may

also establish Judicial Areas, each consisting of two or more

Judicial Circuits, for the purpose of providing an intermediate

level of supervision within the Trial Judiciary. Expansion of

the Navy-Marine Corps Trial Judiciary will come from cur-

rent manpower resources as determined by the Chief of Naval

Operations, the Commandant of the Marine Corps, and the

Judge Advocate General, acting in coordination. The Marine

Corps Special Court-Martial Judiciary is disestablished, and its

members are members of the Navy-Marine Corps Trial Ju-

diciary.

— * ca *

8. Authority Over Organization, Functions «and Administra-

tion. The Judge Advocate General is authorized to organize,

administer, assign, and reassign functions to the Navy-Marine

Corps Trial Judiciary and personnel attached thereto in accord-

ance with [10 USC § 826 et. seq.].

45a

tailed to any special court-martial. The Secretary

concerned shall prescribe regulations providing for

the manner in which military judges are detailed for

such courts-martial and for the persons who are au-

thorized to detail military judges for such courts-

martial. The military judge shal! preside over each

open session of the court-martial to which he has

been detailed.

(Emphasis added.) As noted in United States v. Graf,

35 MJ 450 (CMA 1992), these regulations provide that

detailing will be accomplished by the Chief Judge, the

circuit military judge, or the circuit military judge's

designee. See §§0120a(1) (1987); 0130a(1) (1990),

Manual of the Judge Advocate General of the Navy.

In sum, the President and the Senate make a person a

commissioned officer; the Secretary of the Navy makes

that commissioned officer a judge advocate; the Judge

Advocate General qualifies and classifies that judge ad-

vocate as a military judge; the Chief of Naval Personnel

or the Commandant of the Marine Corps assigns him a

duty station; and the Secretary of the Navy provides

regulations for his detail to a particular case within that

duty assignment.

Ill

Constitutional Tension

In view of these empowering statutes, it is now ap-

propriate to turn to the United States Constitution. Sce

Dynes v. Hoover, 61 U.S. (20 How.) 65, 61 U.S. 65, 15

L.Ed. 838 (1858). Article I, §8 of the Constitution

provides:

The Congress shall have Power

. . * +

To raise and support Armies, but no Appropria-

tion of Money to that Use shall be for a longer Term

than two years;

46a

To provide and maintain a Navy;

To make Rules for the Government and Regula-

tion of the land and naval Forces|{.|

In addition, I note that this same section of the Con-

stitution further provides:

The Congress shall have Power

a ~ * «

To constitute Tribunals inferior to the supreme

Court;

. . . *

To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers, and al! other Powers vested by this Con-

stitution in the Government of the United States,

or in any Department or Officer thereof.

Clearly, these constitutional grants of authority are suf-

ficient to provide for the above-noted statutory establish-

ment of a military justice system with military trial

and appellate judges. See Solorio v. United Siates, 483

U.S. 435, 441, 107 S.Ct. 2924, 2928, 97 L.Ed.2d 364

(1987); Schlesinger v. Councilman, 420 U.S. 738, 757-

58, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975). See

also Rostker v. Goldberg, 453 U.S. 57, 65-66, 101 7. Ct.

2646, 2652, 69 L.Ed.2d 478 (1981).

{ also note the operative provisions of the Constitu-

tion which appellant asserts are applicable to the ap-

pointment of military judges. Article II states in per-

tinent part:

»)

Section 2. The T’resident shall be Commander in

Chief of the Army and Navy of the United States. .

(Hie shall nominate, and by and with the Advice

dl Consent of the Senate, shall appoint Ambas-

suders, other public Ministers and Consuls, Judges

of the supreme Court, and all other Officers of the

tii

47a

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.

(Emphasis added.) Article II further states:

Section 3. He shall... take Care that the Laws

be faithfully executed, and shall Commission all the

O flicers of the United States.

(Emphasis added. )

In view of these provisions of the Constitution, three

distinct but nonetheless related issues are raised which

this Court must decide. First, can Congress create the

position of military judge and provide for its filling un-

der Article I, § 8 of the Constitution without regard to

the Appointment Clause of Article II, §2 of the Con-

stitution? (See Parts IV and V, below.) Assuming it

cannot, what does Article II, § 2 of the Constituion re-

quire for a proper constitutional appointment to the

office of military judge? (See Part VI below.) Finally,

does the statutory system of designation detail provided

by Congress for military judges meet the above constitu-

tional requirements? (See Part VII below.)

IV

The Scope of the Constitutional Power of

Congress in Military Justice

It is beyond cavil that Congress has extremely broad

powers to legislate in military matters generally and

military justice matters in particular. Moreover, it is

also quite clear that the Supreme Court has afforded

great deference to Congress’ decisions in this regard.

The Coast Guard Court of Military Review has exhaus-

tivel

ryt

4a

y summarized the relevant Supreme Court cases sup-

ing these assertions in its decision in United States

v. Prive. 35 MJ 569, 573-75 (1992).

Des

pite these pronouncements, the Supreme Court has

made ve) clear that its deference to Congress in

farv matte | not ab olute Reostker M Goldbe rq,

1. $53 | ~s at 67-68. 10] ~~ ea at PHD3, states:

None of th | LO Say Lnat (‘ongress is free to dis-

regard the Constit ition when it acts in the area of

litarv affairs. In that area, as any other, Con-

rie remains ipject to tne limitations of the Due

Process Clause, sce Ex parte Milligan, [71 U.S. ()

1 Wall 2 18 L.Ed. 281 (1866); Hamilton v.

Kentucky Distilleries & Warehouse Co., 251 U.S.

146, 156 [40 S.Ct. 106, 108, 64 L.Ed, 194] (1919).

but the tests and limitations to be applied may differ

hecause of the mi! tary ce ntext. We of course, do not

abdicate our ultimate res onsibility to decide the con-

utional question, but simply recognize that the

con U1 elf requi such deference to con-

gressional choice. See Columbia Broadcasting Sys-

tem. Ine. v. Democratic National Committee, 412

U.S. [94] at 103 [93 S.Ct. 2080, 2087, 36 L.Ed.2d

772 (1973 In deciding the question before us we

must be particularly careful not to substitute ow

] yrimen. f what is desirable for that of (- moress

or ou wn evaluation of evidence for a reasonable

evaluation b\ the Legislative Branch.

oreover. in Middeinds yt i’. le uri, 195 1; Ss 95 Qf

1281, 47 L.Ed.2d 556 (1976), the Supreme Court

" ’ 4} ’ ’ les . 4

earlier held that Congress’ military justice powers

not totally independent of the rest of the Constitu-

According { » then-Justice Rehnquist:

We recognize hat laintiffs, who have eithe r been

convicted or are due to appear before a summary

court-martial. may he subjected to loss of liberty

49a

or property, and consequently are entitled to the due

process of law guaranteed by the Fifth Amendment.

However, whether this process embodies a right

to counsel depends upon an analysis of the interests

of the individual and those of the regime to which he

is subject. Wolff ve MeDonnell, 118 US. D359, 556,

94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974).

In making such an analysis, we must give par-

ticular deference to the determination of Congress,

made under its authority to regulate the land and

naval forces, U.S. Const., Art. I, §8, that counsel

should not be provided in summary courts-martial.

As we held in Burns v. Wilson, 346 U.S. 137, 140,

73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953) :

“(T]he rights of men in the armed forces must

perforce be conditioned to meet certain overrid-

ing demands of discipline and duty, and the civil

courts are not the agencies which must deter-

mine the precise balance to be struck in this

adjustment. The Framers especially entrusted

that task to Congress.” (Footnote omitted. )

425 U.S. at 43, 96 S.Ct. at 1291. See also Solorio v.

United States, 483 U.S. at 451 n.18, 107 S.Ct. at 2933

n.18.

A question remains, however, whether Congress’ power

to make rules for the government and regulation of the

Army and Navy is also limited or restricted by Article

II, §2, paragraph 2, clause 2 of the Constitution. The

Coast Guard Court of Military Review in United States

v. Prive, supra, has held that the Framers of the Con-

stitution did not intend to include Congress’ military

justice power within the scope of the appointment clause.

Relying on Northern Pipeline Construction Co. v. Mara-

thon Pipe Line Co., 458 U.S. at 63-70, 102 S.Ct. at 2867-

71, it asserts that the military justice system is one of

those “narrow situations . . . in which the grant of

50a

power to the Legislative and Executive Branches was

historically and constitutionally so exceptional that the

congressional assertion of a power to create legislative

courts was consistent with, rather than threatening to,

the constitutional mandate of separation of powers.” Id.

at 64, 102 S.Ct. at 2868 (plurality opinion). See 35

MJ at 575-76.

I disagree with the Coast Guard Court of Military Re-

view for several reasons. First, the Supreme Court in

Northern Pipeline held that the bankruptcy courts were

not legislative courts properly excepted from compliance

with the requirements of Article III of the Constitu-

tion. While it stated that courts-martial created by Con-

gress under Article I, § 8 of the Constitution were legis-

lative courts, and thus were not affected by Article III]

of the Constitution, it went no further. The additional

leap taken by the Coast Guard Court of Military Review

in extending this decision into the area of Article II and

the Appointments Clause in disregard of the plain lan-

guage of the Constitution is simply not justified. See

Mimmack v. United States, 97 U.S. 426, 4387, 24 L.Ed.

1067 (1878): see also Wood v. United States, 107 U.S.

114, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542 (1883); Blake

». United States, 108 U.S. 227, 232, 26 L.Ed. 462

(1881); 30 Op.Atty.Gen. 177, 180 (1913); 4 Op.Atty.

Gen. 603, 610 (1847). See generally 4 P. Kurland and

R. Lerner, The Founders’ Constitution 31-38, 98 (1987).

Second, the principle of separation of powers disputed

in Northern Pipeline was between the congressional and

judicial branches of our government. However, the Su-

preme Court in Northern Pipeline clearly recognized that

the Constitution’s exceptional plenary grant of power

over the Nation’s armed forces was to both the Legisla-

tive and Executive Branches of our Government. /d.

58 U.S. at 71, 102 S.Ct. at 2871. Accordingly, the ratio

decidendi employed by the Supreme Court in Northern

Pipeline cannot be logically applied to a dispute between

a

Bla

branches of the government which both historically and

constitutionally share that very power. See generally E.

Corwin, The President: Office and Powers (1787-1984)

at 296 (5th rev. ed. 1984).

Finally, the Supreme Court in Freytag v. C.LR., 501

U.S. , 111 S.Ct. 2631, clearly recognized two con-

cerns of the Framers of the Constitution in adopting the

Appointments Clause of the Constitution. Justice Black-

mun said:

The roots of the separation-of-powers concept em-

bedded in the Appointments Clause are structural

and political. Our separation-of-powers jurisprudence

generally focuses on the danger of one Branch’s ag-

grandizing its power at the expense of another

Branch. See Mistretta v. United States, 488 U.S.

361, 382, 109 S.Ct. 647, 659, 102 L.Ed. 2d 714

(1989). The Appointments Clause not only guards

against this encroachment but also preserves another

aspect of the Constitution’s structural integrity by

preventing the diffusion of the appointment power.

Id. 501 U.S. at ——, 111 S.Ct. at 2638 (emphasis

added).

More particularly, he later said:

We cannot accept the Commissioner’s assumption

that every part of the Executive Branch is a depart-

ment the head of which is eligible to receive the ap-

pointment power. The Appointments Clause pre-

vents Congress from distributing power too widely

hy limiting the actors in whom Congress may v st

the power to appoint. The Clause reflects our Fram-

ers’ conclusion that widely distributed appointment

power subverts democratic government. Given the

inexorable presences of the administrative state, a

holding that evers organ in the Executive Branch 1s

a department would multipiy indefinitely the number

52a

of actors eligible to appoint. The Framers recog-

nized the dangers posed by an excessively diffuse

appointment power and re Ve cted efforts to expand

that power. See Wood, at 79-80. So do we. For the

chief judge of the Tax Court to qualify as a “Head

ff a Department,” the Commissioner must demon-

strate not only that the Tax Court is a part of the

Executive Branch but also that it is a department.

Id. at 111 S.Ct. at 2642 (‘emphasis added). This

constitutional concern with Congress’ excessive diffusion

of the Executive’s appointing power is simply not ad-

dressed by the Northern Pipeline rationale.

V

The Scope « f the Constitutional Power of the

BE vecutive to Appoint Infenror O fhicers

of the [’nited States

The next inquiry concerns the actual scope of the

Presidential appointment power. The general adage is

Congress creates the offices and the President ap-

ints the necessary officers to fill them. See generally

L.. Tribe, American Constitutional Law 244 (2d ed. 1988)

However, the words of the Constitution more particularly

narrow the positions in the Federal government which are

included within the constitutional appointment process.

Article II of the Constitution states:

Section 1. The executive Power shall be vested in

+ President of the United States of America....

Section 2. The President shall be Commander in

—

Chief of the Army and Navy of the United States. ..

He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided

two thirds of the Senators present concur; and he

shall nominate, and by and with the Advice and Con-

58a

sent of the Senate, shall appoint Ambassadors, other

public Ministers and Consuls, ’udges of the supreme

Court, and all other Officers of the United States,

whose Appointments are not herein otherwise pro-

vided 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 President shall have Power to fill up all Va-

cancies that may happen during the Recess of the

Senate, by granting Commissions which shall expire

at the End of their next Session.

Section 3. He shall... take Care that the Laws

be faithfully executed, and shall Commission all the

Officers of the United States.

(Emphasis added. }

In light of these provisions, the first question which

arises is who are “all other Officers of the United States”

or “such inferior Officers, as they think proper” within

the meaning of Article II of the Constitution. The Su-

preme Court in United States v. Germaine, 99 U.S. 508,

510, 25 L.Ed. 482 (1879), defined such officers as “all

persons who can be said to hold an office under the gov-

ernment about to be established under the Constitution.

. 2’ (Emphasis added.) More recently, the Supreme

Court spoke particularly on the office holders who could

be considered “Officers of the United States,” as follows:

We think that the term “Officers of the United

States” as used in Art. II, defined to include “all

persons who can be said to hold an office under the

government” in United States v. Germaine, supra,

is a term intended to have substantive meaning. We

think its fair import is that any appointee exercising

significant authority pursuant to the laws of the

54a

United States is an “Officer of the United States,”

and must, therefore, be appointed in the manner pre-

scribed by § 2, cl. 2, of that Article.

Buckley v. Valeo, 424 U.S. at 125-26, 96 S.Ct. at 685

(emphasis added). See Freytag v. C.1.R., 501 U.S. at

» 111 S.Ct. at 2640. In this light, a critical question

in this case is whether a military judge is an Officer of

the United States.

I note that this Court most recently in United States

v. Graf, 35 MJ 450, 465 (CMA 1992), and United States

v. Mabe, 33 MJ 200 (CMA 1991), analyzed the statutes

and regulations concerning the military judge and con-

cluded that “the Uniform Code of Military Justice con-

templates that a military judge be a real judge as com-

monly understood in the American legal tradition.” 35

MJ at 465. In addition, I note that in Freytag v. C.LR.,

supra, the Supreme Court expressly held that a special

trial judge established by Congress “as an aide to [a]

Tax Court judge” is “an ‘inferior Officer’ whose ap-

pointment must conform to the Appointments Clause.”

o01 U.S. at -—~-, 111 S.Ct. at 2640.

The Supreme Court in Freytag articulated its reason-

ing for reaching this conclusion, as follows:

The Commissioner reasons that special trial judges

may be deemed employees in subsection (b) (4) eases

because they lack authority to enter a final decision.

But this argument ignores the significance of the

duties and discretion that special trial judges possess.

The office of special trial judge is “established by

Law.” Art. II. $2, cl. 2, and the duties, salary, and

means of appointment for that office are specified

by statute. See Burnap v. United States, 252 U.S.

912, 516-517, 40 S.Ct. 374, 376-377, 64 L.Ed. 692

(19201: United States +. Germaine, 99 U.S. 508,

911-512, 25 L.Ed. 482 (1879). These characteristics

distinguish special trial judges from special masters,

55a

who are hired by Article III courts on a temporary,

episodic basis, whose positions are not established by

law, and whose duties and functions are not delin-

eated in a statute. Furthermore, special trial judges

perform more than ministerial tasks. They take tes-

timony, conduct trials, rule on the admissibility of

evidence, and have the power to enforce compliance

with discovery orders. In the course of carrying out

these important functions, the special trial judges

erercise significant discretion,

Even if the duties of special trial judges under

subsection (b) (4) were not as significant as we and

the two courts have found them to be, our conelusion

would be unchanged. Under §§ 7443A(b)(1), (2),

and (3), and (ec), the chief judge may assign special

trial judges to render the decisions of the Tax Court

in declaratory judgment proceedings and limited-

amount tax cases. The Commissioner concedes that

in cases governed by subsections (b) (1), (2), and

(3), special trial judges act as inferior officers who

exercise independent authority.

501 U.S. at ——, 111 S.Ct. at 2640 (emphasis added).

The position of military judge is established by law.

See Arts. 26 and 66, UCMJ, 10 USC §§ 826 and &66,

respectively. The duties and functions of a person in

this position are also established by statute. See Arts.

26, 39. 51, and 66, UCMJ, 10 USC §§ 826, 839, 851, and

866, respectively. The Code authorizes military judges

to hear and determine motions on various pretrial, trial,

and posttrial matters (see Art. 39/a)); rule on all ques-

tions of law and interlocutory questions at courts-martial

(Art. 51(b)); and impose Federal convictions up to and

including life in prison, punitive separations from the

service, and substantial financial penalties (Arts. 16/1)

(B) and 18, UCMJ, 10 USC §§ 816/1)(B) and 818, re-

spectively). A judge sitting with court members also in-

56a

structs them on the various matters necessary to reach

appropriate findings and sentences, even in capital cases

where a servicemember’s life is at stake. (Art. 51(c)).

These are not ministerial tasks but judicial ones calling

for the exercise of significant discretion. See United

States v. Graf, 35 MJ 450; United States v. Cole, 31

MJ 270, 272 (CMA 1990). Finally, judges exercise in-

dependent authority. Art. 37, UCMJ, 10 USC § 837.

See United States v. Graf, supra. In my view, the mili-

tary judges and appellate military judges are “Officers

of the United States,” as provided for in Article II, §2

of the Constitution.

VI

The Constitutional Requirements for a

Valid Appointment

My next inquiry concerns the particular requirements

provided in the Constitution for a valid appointment of

“Officers of the United States.” The answer to this ques-

tion in large part depends on whether a military judge

is one of “all other Officers of the United States” or is

one of the “inferior Officers” generally denominated in

Article II, §2. See United States v. Germaine, 99 U.S.

908, 509-10. 25 L.Ed. 482 (1879). See generally R.

Rotunda, J. Nowak, and J. Young, Treatise on Constitu-

tional Law: Substance and Procedure §9.4 at 504-05

(1986). In light of the Supreme Court’s characterization

of a special tax court judge as an inferior officer in

Freytag v. C.LR., supra, I have no reservation in con-

cluding that a military trial judge and military appellate

judge are “inferior Officers” of the United States within

the meaning of Article II, § 2. See also Buckley v. Valeo,

424 U.S. 1, 96 S.Ct. 612.

In this light a military judge need not be appointed

by the President by and with the Advice and Consent of

the Senate. However, it is required that he be appointed

by “the President alone,” a Court of Law, or a Head

peeetateentnns DS A a, PEP et he _

SS a eae:

57a

of a Department. Freytag v. C.I.R., supra, Nevertheless,

the lead opinion and the Navy-Marine Corps Court of

Military Review in United States v. Coffman, 35 MJ 591

(1992), have held that this constitutional requirement

is satisfied by a military officer’s earlier commission and

succeeding promotions by the President with the Advice

and Consent of the Senate. Relying on Shoemaker v.

United States, supra, they assert that no further appoint-

ment by the President, a Court of Law, or a Head of

a Department is required to permit a “legally trained”

military officer to constitutionally assume the office of

military trial or appellate judge.°

The Navy-Marine Corps Court of Military Review ar-

ticulated its rationale for its holding in Coffman as

follows:

Assuming arguendo that [the Appointments Clause]

applies to military judges, the fact is that all mili-

tary judges must be commissioned officers of the

armed forces of the United States and, as such, have

by law already been appointed by the President. Art.

26(b), UCMJ, 10 U.S.C. § 826(b); 10 U.S.C. §§ 101

(4), 101(15), 531, 593, 624, 5001(6), 5912. De-

pending upon grade, component, and presence on the

active-duty list, some of these commissioned officers

by law must also have had their appointments con-

firmed by and with the advice and consent of the

Senate. 10 U.S.C. §§ 531, 593, 624, 5912. All mili-

tary judges must be lawyers. Art. 26(b), UCMJ,

10 U.S.C. § 826(b). The duties these commissioned

officers are detailed to perform as military judges

are within the sphere of their official duties and are

germane to the office they already hold. A second

appointment from the President to a commissioned

5 This argument on its face fails to justify appointment of civilians

to the Court of Military Review as authorized by Article 66, Uni-

form Code of Military Justice, 10 USC § 866.

58a

officer to perform the duties of a military judge is

simply not required. Cf. Shoemaker v. United States,

147 U.S. 282, 299-301, 13 S.Ct. 361, 390-391, 37

L.Ed. 170, 185 (1892) (Army officers (engineers)

were not required to obtain a second appointment

to perform duties on a commission created by Con-

gress to acquire lands for a park). Accordingly, we

conclude the appellant’s first assignment of error is

also without merit.

35 MJ at 592.

The lead opinion more particularly posits two reasons

why no further constitutional appointment of military

judges is required by the Appointments Clause. First,

it concludes that the office of military judge is not a

“new office,’ so no additional appointment is required

under Shoemaker v. United States, supra. Assuming it

is a new office, the opinion holds that the germaneness of

its duties to those duties previously performed by “legally

trained military officers” also precludes the need for a

second appointment under Shoemaker. I disagree.

The lead opinion concedes that a military judge is an

Officer of the United States. Moreover, it notes that the

new powers of this officer were previously shared by the

members of a court-martial, its president, and its law

officer. Thus, Congress did not increase the power and

duties of “an existing office’ but created a new office

to which these powers were transferred. It is the re-

moval of these powers and duties from commissioned

military officers, not their addition thereto, which renders

inapposite the lead opinion’s no-“new-office” argument.

I also find that the lead opinion grossly misapprehends

the nature of the duties of a military judge and his con-

tribution to military justice. The creation of the military

judge in 1969 was a watershed event because it intro-

duced for the first time, statutorily, @ professional ju-

~

59a

diciary at courts-martial.’ S.Rep. No. 1601, 90th Cong.,

2d Sess. 3, 14 (1968). See Ervin, The Military Justice

Act of 1968, 45 Mil.L.Rev. 77, 83, 88-91 (1969). See

¢ The establishment of the military judge was not the only change

accomplished by the legislation of 1968. Also, for the first time

in the history of American military justice, a service-member could

be tried and sentenced by a single military officer without court

members in serious non-capital cases. Art. 16(1)(B), UCMJ, 10

USC § 816(1)(B). See H. Moyer, Justice and The Military § 2-620

at 536 (1972); Douglass, The Judicialization of Military Courts,

22 Hast. L.J. 213, 220 (1971).

Representative Philbin commented on the reason for this bill as

follows:

The need for this bill has become acute because of the in-

creased size of our Armed Forces resulting from the military

activity in Southeast Asia. Besides the savings in time and

manpower afforded by the bill, the bill provides meaningful

benefits and protections to the accused.

The enactment of this legislation will permit the procedure

for trials by special and general courts-martial to conform more

closely with the procedure used in the trial of criminal cases

in the U.S. district courts and will enhance the prestige and

effectiveness of the law officer, whose name is changed by the

bill to “military judge,” so that his judicial stature and author-

ity in the courtroom will more closely approximate that of a

civilian trial judge. The bill allows the military judge to rule

finally on certain procedural matters, such as motions for finc-

ings of not guilty, on which he now may be overruled by the

court members who are untrained in the law. The bill provides

for pretrial and posttrial sessions to be held by the military

judge without the presence of the court panel for the purpose

of deciding procedural questions. The bill provides for trial in

special and general court-martial by a military judge alone

without court members if the accused requests and the request

is approved by the military judge. These last two provisions

are expected to save innumerable man-hours of line officers who

would otherwise be required to be in attendance at courts-

martial, as well as improving the internal efficiency of the jus-

tice system.

* 7 = *

[Continued ]

60a

generally Ross, The Military Justice Act of 1968: His-

torical Background, 23 JAG.J. 125 (1969). In this con-

text, a holding that this office is new is an understate-

ment.

® [Continued }

The enactment of this bill will be the most significant advance

in the field of military justice since the enactment of the Uni-

form Code of Military Justice in 1951.

114 Cong.Rec. 30563-64 (1968) (emphasis added). ~

Representative Bennett, a central figure in the development of

this legislation, made this statement regarding the 1968 legislation:

The need for this bill has become acute because of the in-

creased size of our Armed Forces resulting from our present

military activity in Vietnam. The bill provides meaningful

benefits and protections to the accused, as well as streamlining

procedures. The bill contains the following provisions, which

are designed to increase the fairness of the military justice

system: First, the accused must be afforded the right to be

defended by a qualified lawyer at special courts-martial—here-

tofore such a right only existed in the case of general courts-

martial; second, before a bad conduct discharge can be adjudged

at a special court-martial, the accused must be represented by

a qualified lawyer and the proceedings must be conducted by a

“military judge’—a term I will discuss below—except where

physical conditions or military exigencies prevent one from

being obtained; third, the bill extends the time in which the

accused can petition for a new trial from 1 to 2 vears: and

fourth, an accused faced with trial at summary court-martial

can object to such an informal trial, at which time the con-

vening authority must bring charges at a special or general

court-martial or dismiss them.

The enactment of H.R. 15971 will permit the procedure for

trials in the military to conform more closely to the procedures

used in the Federal courts. The bill also enhances the prestige

and effectiveness of the law officer, whose name is changed to

“military judge.” The role of the “military judge” will closely

approrimate that of a civilian trial judge: he will rule finally

on certain procedural matters and will hold open pretrial and

posttrial sessions without the presence of the court for the

purpose of deciding procedural questions. An accused can re-

6la

Turning to the lead opinion’s “germane duties” ration-

ale, I also find its application in the present case unac-

ceptable. Shoemaker v. United States, supra, is an ex-

ception to normal Appointments Clause practice, and a

very narrow one at that. The lead opinion’s extension

of that case beyond its facts to permit the blanket in-

vesting of “legally trained” military officers with the

office of military judge without compliance with the Ap-

yointments Clause is simply unprecedented. Strictly

speaking, such an approach might be appropriate only

if the “legally trained” military officers also held a spe-

cific presidentially appointed military justice office such

as the Judge Advocate General of the Navy. See 10 USC

$ 5148.7 Otherwise, the lead opinion’s general-duties an-

alysis, at least in my view, constitutes judicial activism.

quest a special and general court-martial by a “military judge”

alone.

The bill changes the name of the intermediate appellate

agencies in the military from boards of review to courts of

military review. The bill requires that the judges of these

courts and of courts-martial be part of an independent ju-

diciary. In addition, the bill authorizes a military form of

release on bail pending appeal, the need for which has been

pointed out in several recent cases.

The importance of this legislation cannot be overstated. It

is particularly needed in Vietnam, as has been pointed out by

General Westmoreland; for under the bill line officers will be

free from the necessity of serving as court members in many

cases; and many previously wasted man-hours will be saved

because of streamlined procedures.

I think it is most significant that the House of Representa-

tives, which fathered the Uniform Code of Military Justice, also

initiated the action on this legislation and now has the oppor-

tunity to put the capstone on it. The enactment of H.R, 15971

will be the most significant advance in the field of military

justice since enactment of the Uniform Code of Military Justice.

I heartily recommend the House approve the Senate amend-

ments.

114 Cong.Rec. 30565 (1968) (emphasis added).

7 Neither of the two cases cited in Shoemaker v. United States, 147

U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), supports

62a

In Shoemaker, the Supreme Court considered the de-

volution of additional duties not on commissioned mili-

tary officers in general or on commisisoned military en-

gineering officers. Instead, they devolved on military of-

ficers already holding a specific military or civilian office

requiring a presidential appointment. See Thain, Legis-

lative History of General Staff of the Army of the United

States 8, 485 (1901). See generally Hoeppel v. United

States, 85 F.2d 237, 241 (D.C.Cir.1936). One Rock Park

Creek Commission member who was a military officer had

been previously appointed by the President to the Office

of the Chief of Engineers of the United States Army.

See RS. §§ 1094, 1151, and 1198 (1878), and 17 Op.

Atty. Gen. 2, 3 (1881); see generally 1 Stat. 749 (1799)

and 20 Stat. 151, $13 +1878); see also 10 USC § 5036

(1956). The second, also a military officer, had pre-

viously been “detailed” by the President as the Engineer

Commissioner for the District of Columbia. See Ch. 150

£2. 20 Stat. 103 11878); 26 Stat. 1113 (1890); see also

a “commissioned officer” exception to the Appointments Clause or

its general-military-duty rationale as created by the lead opinion.

The petitioner in Smith vo Whitney, 116 U.S. 167, 6 S.Ct. 570,

% |, bd. 601 © iss860, was an officer of the Navy who was later

appointed hu the Peeedent be and with the consent of the Senate,

a~ the “ehict of the bureau of jrovisions and clothing and pay-

master peseral in the department of the navy, with the relative

rank of commouore.” Jd. at 168, 6 S.Ct. at 570

The petitioner in Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050,

29 L.Ed. 577 (1885), was an officer in the Navy who was later

appointed by the President, bu and with the consent of the Senate

as “chief of the bureau of medicine and surgery in the department

of the navy.” which offic. carried the additional tithe of “surgeon

general of the navy.” Jd. at 569, 5 S.Ct. at 1052. See 10 USC

§5127, Historical and Revision Notes, R.S. 421 and 426.

The Supreme Court's holding that these military officers could be

court-martialed for offenses under the Articles for the Government

of the Navy docs not logically suggest that an additional presi-

dential appointment was not required for their assumption of their

more particular civil or military offices.

63a

10 USC $3534 (1956). Thus, the additional “germane”

duty of membership on the Rock Creek Park Commission

cannot be simply said to have generally devolved on a

diffused pool of commissioned officers or commissioned

officers with engineering training.

Second, the Shoemaker decision makes clear that this

extraordinary application of the Appointments Clause

rests on a conclusion that the new additional duties are

“germane to the offices already held by them.” 147 USS.

at 301, 13 SCt. at 391. More particlularly, the Supreme

Court there said:

It is true that it may be sometimes difficult to

say whether a given duty, devolved by statute upon a

named officer, has regard to the civil or military

service of the United States. Wales v. Whitney, 114

U.S. 564, 569, 5 S.Ct. 1050 [1052]; Smith v. Whit-

ney, 116 U.S. 167, 179, 181, 6 S.Ct. 570 (576, 577).

But, in the present case, the duty which the military

officers in question were called upon to perform can-

not fairly be said to have been dissimilar to, or out-

side of the sphere of, their official duties.

147 U.S. at 301, 13 S.Ct. at 391 (emphasis added). The

additional duties as a member of the Rock Creek Park

Commission were particularly related to the military

officers’ office as Chief of Engineers of the United States

Army and office as Engineer Commissioner for the Dis-

trict of Columbia. Clearly neither duty as engineer 1or

training as an engineer sufficed.

Appellate government counsel and various amici have

also asserted that the duties of a military judge are

“cermane” to the various powers of a commissioned officer

under the Uniform Code of Military Justice. These in-

clude the power to “quell quarrels, frays, and disorders”

(Art. 7(e), UCMJ, 10 USC § 807(c))}; make arrests

(Art. 9(b), UCMJ, 10 USC § 809(b)); serve as an

investigating officer (Art. 32, UCMJ, 10 USC § 882);

ee—

64a

impose non-judicial punishments (Art. 15, UCMJ, 10

USC § 815); and serve as court-martial members at

special courts-martial without a military judge (Art.

25(a), UCMJ, 10 USC § 825(a)). I do not consider a

military judge’s judicial duties similar to or within the

sphere of the general military justice responsibilities of a

line officer. Moreover, the latter duties are collateral and

irregular and, therefore, also lack the specificity-of-office

considered in Shoemaker.

Finally, the available lower court decisions applying

Shoemaker simply do not support a broad military com-

mission-promotion exception to the Appointments Clause

for legally trained officers. The Court of Appeals for the

Eleventh Circuit applied Shoemaker in the context of the

“Investigating Committee of the Judicial Council of

Eleventh Circuit.” See In the Matter of Certain Com-

plaints Under Investigation, 783 F.2d 1488 (11th Cir.

1986), It noted that the members of this committee were

sitting federal judges already appointed by the President

who were later selected for service on this judicial com-

mittee by the Chief Judge of the Cireuit. It held:

Their selection for service on the Committee does not

gain them new positions in any meaningful sense:

to the contrary, service on a committee of the judicial

council, when called upon, is merely an outgrowth

of their existing responsibilities. See Shoemaker v.

United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391,

87 L.Ed. 170 11893) (a statutory expansion of the

functions of an existing position does not create a

now office requiring re-appointment, at least where

the newly-added dutics are “germane” to existing

functions). See also 28 U.S.C. $$ 291, 292 (the

Chief Justice may designate and temporarily assign

any circuit judge to act as a circuit judge in another

circuit if necessary; chief judges of circuit courts

may make similar designations and temporary as-

ai get oe aii mea.

ee ee

- eo ts ne

ee

65a

signments with respect to district judges and dis-

tricts within their circuits) ; id. §§ 293-96.

783 F.2d at 1515 (emphasis added). A previously ap-

pointed judge is not the same as a previously commis-

sioned officer who is simply “legally trained.”

Judge Lamberth of the United States Distriet Court

for the District of Columbia also impliedly rejected the

“legally trained” military-officer interpretation of Shoe-

maker. He said:

The [Supreme] Court rejected this argument [that

a commission member could not serve absent Senate

approval], holding that:

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 addi-

tional duties, germane to the offices already held

by them, were devolved upon them by the act, it

was necessary that they should be again ap-

pointed by the President and confirmed by the

Senate. It cannot be doubted, and it has fre-

quently been the case, that Congress may in-

erease the power and duties of an existing office

without thereby rendering it necessary that the

incumbent should be again nominated and ap-

pointed.

Id. at 301, 13 S.Ct. at 391 (emphasis added).

The Shoemaker ease is distinguishable from this

case in two important respects. First, the provision

challenged in Shoemaker added certain duties to two

offices; it did not confer additional responsibilities on

any particular officer. Had the Chief of Engineers

of the United States Army or the Engineer Com-

missioner of the District of Columbia resigned from

66a

office after the commission was established, he would

no longer have served on the commission—the new

Chief of Engineers or Engineer Commissioner would

have taken over those duties. Here, however, Mr.

Wall was designated the new Director of OTS. Al-

though the position was given to him by virtue of his

prior position, it was given to him.

Olympic Fy de ral S we iP Assn. v. Director, O flice of Thrift

Supervision, 732 F.Supp. 1188, 1192-93 (D.D.C.19990)

some emphasis added}. Again, no mention whatsoever

was made concerning their remaining status as military

++

“ : their general training as engineers.

Lastly, Gila River Pima-Maricopa Indian Community

United States, 8 Cl.Ct. 700 (1985), provides an ex-

ample of Congress’ recognition and treatment of the Sioe-

malker problem, That decision notes that Congress, in

‘onstituting the United States Claims Court in 1982 by

ising trial judges from the old Court of Claims, expressly

confronted a Shoemaker problem. Judge Merow provided

he following footnote in his opinion:

lus, in discussing the constitutionality of the pro-

vision of Pub.L. No. 97-164 reconstituting the trial

division of the Court of Claims into a United States

(Claims Court comprised of the trial judges of the

Court of Claims, H.R.Rep. No. 96-1300, 96th Cong.,

2d Sess. 23, n.25, states as follows:

“Article III, section 1, of the Constitution explicitly

empowers the Congress to ordain and establish in-

ferior courts. Consequently, the only questions con-

cern the relation between the power of Congress,

under Article I, section &, cl. 18, of the Constitution

to alter, enlarge, or restrict the functions of existing

federal officers and the requirement of the Appoint-

ments Clause, Article IT, section 2, cl. 2, that appoint-

ments as officers of the United States be made in the

manner prescribed by that clause. Stated differently,

67a

this involves a reconciliation of the Supreme Court’s

decisions in Shoemaker v. United States, 147 U.S.

282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893),

and Buckley v. Valeo, 424 U.S. 1, 118-86, 96 S.Ct.

612, 681-90, 46 L.Ed.2d 659 (1976). The earlier case

stated the principle that Congress may, by statute,

confer new duties on officers of the United States,

at least where the new duties are ‘germane’ to their

existing functions, without the necessity of reap-

portionment under the Appointments Clause. The

lat{tler holds that Congress may not itself appoint

officers of the United States.

“The Committee has concluded that the carry-over

of the trial judges into the Claims Court is a modifi-

cation of an existing position rather than a legisla-

tive appeintment to a new one, governed by Buckley.

The bill merely would confer ‘germane’ new duties

and extend the tenure of the existing trial judges

as permitted by Shoemaker, rather than create a

new office.”

8 Cl.Ct. at 702. Examination of the legislative history

of Article 26 especially since 1968 reveals no similar

statements by Congress concerning Shoemaker’s applica-

bility to “legal trained” or untrained commissioned officers

and the newly created position of military judge.

VII

Application to the Present Case

Finding the Shoemaker decision inapplicable, my final

concern is whether the system of appointment of a mili-

tary judge provided in the Uniform Code of Military

Justice nonetheless meets the standards of Article II, § 2

of the Constitution. I have noted earlier that military

judges are not technically “appointed” under the Code,

and their being invested with office is a more complicated

process than represented in the granted issue. In addi-

68a

tion, I note that Major Pesik, the military judge who

presided at appellant’s court-martial, was a Marine, and

the appellate court panel for this case was composed of

both Navy and Marine officers.

Turning first to Major Pesik, he was commissioned an

officer in the United States Marine Corps by appointment

of the President, by and with the Advice and Consent of

the Senate. 10 USC § 531(a); see 10 USC § 582 or § 593.

In accordance with the normal course of events, he rose

to the grade of major in the Marine Corps, some of his

promotions requiring appointment by the President alone

and some also requiring the Advice and Consent of the

Senate. 10 USC § 624(c). At some point, with the ap-

proval of the Secretary of the Navy, he was designated

‘a judge advocate.” 10 USC § 5587a. His assignment

for duty as a judge advocate of the Marine Corps was

made by direction of the Commandant of the Marine

Corps. Art. 6'a!. Moreover, he was certified by the

Judge Advoeate General of the Navy to perform the

duties of trial and defense counsel detailed for a general

‘ourt-martial. Art. 27(b!. Later, he was certified as

qualified to be a military judge and designated for detail

wh hy the Judge Advocate General of the Navy. Art.

Zoibi. Finally, he was assigned to duty at the Sierra

idicial Circuit by the Commandant of the Marine Corps

n the recommendation of the Judge Advocate General

The Marine Colonel and Navy Captains on the Court of

Military Review were also commissioned officers who were

pointed by the President with the Advice and Consent

of the Senate. Their promotions to these distinguished

grades were accomplished by appointment of the Presi-

dent with the Advice and Consent of the Senate. They

were constituted a court by the Judge Advocate General

of the Navy and designated for detail to it by that same

The bottom line Is that none of these n Li 1u

ars )) in¢ ] lL, 4 4 1+) . . ‘ ‘

Was appomeed O tha osition or a germal } On

7}

the President alone, the Cour of Law, « he Hlead o

In summary, s my view atan y jude !

onlv a military officer but an “inferior Officer’ of the

['nited States as provided for in Article II, $2 of the

Constitution. Congress under Article I, § & of the Cor

stitution was fully compete 0 create such a milita

judicial position and

dispense justice to servicemembers at courts-martial. H;:

Sa : : . £3 5s aeoed val ;

ine done so. however, it was further required by Articie

TY e ¢ } ’ 1 y

[| ys to provide that the Heprsgy] VW ( | | lice }

: , ' ' ot

‘ ointed py tne res qen a | 1 { \ e ra

| + ,

of a Denartme!

ry’) 5 | ’ ’

The reason that Congress has not p) | |

+ . 4 ]

)¢ r appotincmen TO) lta) ore ] f

en } ’ . }

j ren { rye PAC yt? ())) ~ ‘ a { ? J (

U.S. 282, 18 S.Ct. 861, 37 L.Ed. 170 made a ¢

.* « : ’ ,

lecision that a second appointment by thi Lye

. ’ }

( YY) VY * { ne (| offies } t BY | } , r y A ( )

} : ure) } YY " | ? ) y t

es W no necess.< I Miil l t C4

70a

tive history of the statutes creating this position, how-

ever, offers no express support for this theory. Cf. Gila

River Pima-Maricopa Indian Community v. United

States, 8 Cl.Ct. at 702 n. 1. Moreover, examination of the

Shoemaker decision in light of the legislation creating

the military judge suggests to me that this decision’s

rationale is inapplicable to the case at bar. See Olympic

Fed. S & L v. Office of Thrift Supervision, 732 F.Supp

1192-93. |

My own view is more consistent with congressional] si-

lence. The office of military judge was established in

1968 when the Supreme Court utilized a “mode of ap-

pointment” approach to the Appointments Clause. See

Note, Toward a New Functional Methodology in Appoint-

ments Clause Analysis, 60 G.W.L.Rev. 536, 539-43

(1992); cf. Note, Power of Appointment to Public peo

fice Under The’ Federal Constitution, 42 Harv.L.Rev. 426

(1929). In other words, an “inferior Officer’ of the

United States was a Federal office holder whose appoint-

ment Congress required be made by the President, a

Court of Law, or the Head of a Department. United

States v. Mouat, 124 U.S. 303, 8 S.Ct. 505, 31 L.Ed. 463

(1888). See Hoeppel v. United States, 85 F.2d 237, 241

(D.C.Cir.1936). It was not until 1976 in Buckley v.

Valeo, 424 U.S. 1, 96 S.Ct. 612, that the “mode of ap-

pointment” approach was jettisoned in favor of a func-

tiona! duty approach to Appointments Clause questions.

See Note, 42 Harv.L. Rev . at 544-52; see also Freytag v.

C.L.A., 501 U.S. ——., 111 8.Ct. 2631. In my view, there

is simply no doubt that a military judge’s duties and

responsibilities now qualify him as an “inferior Officer”

of the United States.®

® The Supreme Court has recently denied petitions for certiorari

in two cases where this Appointments Clause issue was raised for

the first time in that Court. Bolado v. United States, -— USS.

113 S.Ct. 321, 121 L.Ed.2d 242 (1992); Allen v, United

States, ——- U.S. ——,, 113 S.Ct. 324, 121 L.Ed.2d 244 (1992). How-

a aaa

Tla

The Remedy

Appellant has shown no specific prejudice to his case

due to the failure to provide for compliance with the

Appointments Clause. However, simple affirmance is not

sufficient under the de facto-appointee rationale of Buck-

ley and the Northern Pipeline cases. It is the duty of

this Court also to point out the unconstitutional statutory

deficiency as this opinion has done. It should be in Con-

gress’ hands to render appropriate legislation to fix this

statutory deficiency. In the interim, the President could,

based on the rationale in this opinion, direct the Head

of the Department of Defense to start appointing military

judges as necessary to perform military justice functions

in the department. See United States v. Matthews, 16

This text is long and has been trimmed here. Open the source document for the complete record.