[Federal Register Volume 59, Number 94 (Tuesday, May 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11937]
[[Page Unknown]]
[Federal Register: May 17, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
Proposed changes to U.S. Court of Military Appeals Rule
ACTION: Notice of Proposed Changes to the Rules of Practice and
Procedure of the United States Court of Military Appeals.
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SUMMARY: This notice announces the following proposed changes
(underlined) to Rule 6 and to Rule 21(d) and (e) of the Rules of
Practice and Procedure, United States Court of Military Appeals for
public notice and comment:
Rule 6. Quorum
(a) A majority of the judges in regular active service
authorized to constitute the United States Court of Military Appeals
shall constitute a quorum. The concurrence of the majority of such
judges, whether present and voting or voting telephonically or
electronically, shall be required for a final resolution of any
matter before the Court, subject to subsections (b) and (c). In the
event there are fewer than three active judges, such active judges
shall constitute a quorum. 10 USC Sec. 943.
(b) The Chief Judge, or the judge performing the duties of the
Chief Judge, shall have the authority to issue temporary orders or
stays pending the convening of a quorum. See Rules 15(f) and
27(a)(4).
(c) If no judge is present, the Clerk may adjourn the Court from
day to day. See Rule 9(d).
Rule 21. Supplement to Petition for Grant of Review
* * * * *
(d) If no specific errors are assigned in the supplement to the
petition, the Clerk will enter an order dismissing the case without
awaiting an answer, and the Court will not call for an answer or
examine the record. In all other cases, the Court may, in its
discretion, examine the record for the purpose of determining
whether there is plain error not assigned by the appellant.
(e) [To be deleted.]
(f) [To be renumbered as (e)] An appellant or counsel for an
appellant may move to withdraw his petition at any time. See Rule
30.
DATES: Comments on the proposed changes must be received by July 18,
1994.
ADDRESSES: Forward written comments to Thomas F. Granahan, Clerk of
Court, United States Court of Military Appeals, 450 E. Street,
Northwest, Washington, DC 20442-0001.
FOR FURTHER INFORMATION CONTACT:
Thomas F. Granahan, Clerk of Court, telephone (202) 272-1448 (x600).
SUPPLEMENTARY INFORMATION: The Court has promulgated the new Rule 6
(Quorum) as an Interim Rule Change. The Rules Advisory Committee Report
on proposed changes to Rule 21(d) is included as an attachment to this
notice.
Majority Report on Proposed Rule 21(d)
This is to advise the Court that, by a vote of six to five, the
Rules Advisory Committee of this Court recommends that Rule 21(d) of
the Rules of this Court be revised to read as follows:
If no specific errors are assigned in the supplement to the
petition, the Clerk will enter an order dismissing the case without
awaiting an answer, and the Court will not call for an answer or
examine the record. In all other cases, the Court may, in its
discretion, examine the record for the purpose of determining
whether there is plain error not assigned by the appellant.
In addition, Rule 21(e) should be deleted and Rule 21(f) should be
renumbered as Rule 21(e).
The purpose of this recommended change is to end the Court's
current practice of docketing petition supplements that allege no
issues warranting review and then conducting an examination of the
record in these cases to determine whether any basis may exist in the
record meriting further consideration by the Court. A number of factors
support our recommendation.
First, and most fundamentally, the Court's current practice of
reviewing, sua sponte, cases coming to the Court on petition for review
in which no error is alleged by the accused is simply incompatible with
the Court's statutory charter. Article 67(a)(3) of the Uniform Code of
Military Justice, UCMJ, 10 U.S.C. 867(a)(3), directs that this Court
will review the record ``in all cases reviewed by a Court of Military
Review * * * upon petition of the accused and on good cause shown * *
*.'' In drafting Article 67 of the Code, Congress demonstrated that,
when it wanted this Court to exercise its appellate jurisdiction
without requiring particularized claims of error, Congress knew how to
say so expressly. See Art. 67(a)(1), UCMJ, 10 U.S.C. 867(a)(1)
(granting the Court jurisdiction to review the record in all cases in
which the sentence, as affirmed by a Court of Military Review, extends
to death); former Art. 67(a)(3), UCMJ, 10 U.S.C. 867(a)(3) (Court of
Military Appeals shall review the record in all cases involving flag
and general officers). The clear implication of the fact that, by
contrast with these provisions, Congress included the requirement of a
showing of ``good cause'' in Article 67(a)(3) is that Congress did not
intend for this Court sua sponte to review the record in cases
involving petitions by servicemembers from judgments of the courts of
military review.
It has been argued by the members of the Rules Advisory Committee
in the minority that this Court's practice of conducting sua sponte
review of ``no issue'' petitions is now so well established that
Congress has come to expect that this Court will perform that function.
The majority finds mistaken the view that Congress can legislate by
acquiescence. If Congress intended for this Court to adhere to such a
practice, Congress would have expressed that intent in positive law on
one of the numerous occasions on which it amended the Code within the
last few decades. Absent such a clear expression of legislative intent,
this Court does not believe that it lacks the power to revise its
internal procedures in order to conform them to its clear statutory
mandate.
Second, the Court's practice in conducting sua sponte reviews of
``no issue'' petitions is at odds with the practice of every other
appellate court in the federal judicial system, all of which require
litigants to present with particularity alleged claims of error. See,
e.g., S.Ct.R. 21.1(a) (the petition for writ of certiorari shall
contain ``[t]he questions presented for review, expressed in the terms
and circumstances of the case but without unnecessary detail'');
Fed.R.App. P. 28(a)(3); First Cir. R. 28 (incorporating Fed. R. App. P.
28); Second Cir. R. 28 (same); Third Cir. R. 21(d); Fifth Cir. R. 28.3.
We are informed by the Office of the Clerk of the Supreme Court that it
will not even docket petitions for writs of certiorari that do not
present any issues for review. Persistence in this Court's past
practice isolates this Court from the mainstream of federal appellate
practice and creates the perception that the Court is not truly
performing a comparable judicial function but, rather, serves as an
inspector general for the military justice system. As Justice (then
Judge) Scalia observed in Carducci versus Regan, 714 F.2d 171, 177
(D.C. Cir. 1983), ``[t]he premise of our adversarial system is that
appellate courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal questions presented
and argued by the parties before them.''
Those who disagree with our views maintain that, in the context of
the armed forces, a different practice from that of the federal
judicial system governing civilians is warranted because review by a
court composed of civilians ensures and creates the perception that
members of the armed forces are being treated fairly by the military
justice system. As we explain later, however, other safeguards--
including the possibility of Supreme Court review--are more than
sufficient to minimize the likelihood that a member of the armed forces
will be treated in a manner that is incompatible with accepted
standards of justice and also to eliminate the perception that the
military justice system is less fair than its civilian counterparts to
those who stand accused of crime.
Third, ending the practice of entertaining ``no issue'' petitions
will have the salutary effect of eliminating any risk that defense
counsel will rely on this Court to identify legal or factual issues
that could be resolved in the servicemember's favor, instead of fully
canvassing the record to make that determination. The burden of
reviewing the record to ensure that a servicemember has received a fair
trial properly rests with defense counsel, not with this Court. The
proposed rule change reinforces that well-settled principle, while also
enabling this Court to perform its role as the arbiter of the legal
matters that have been properly brought before the Court for
resolution.
Fourth, eliminating the practice of entertaining ``no issue''
petitions will substantially reduce the workload of this Court's legal
staff. We are informed by the Director of this Court's central legal
staff, that prior to the recent (and near universal) asserting of
constitutional challenges to the selection and assignment of judges in
the military justice system, ``no issue'' cases comprised between 80
and 85 percent of all cases filed with this Court. In response to a
query by members of this Committee, the Director estimated that
elimination of the practice of reviewing ``no issue'' cases would
reduce the staff's workload by as much as 80 percent, although it is
not clear precisely what the net reduction would be. The resulting
savings would permit the limited resources of the central legal staff
to be directed to cases in which the issues have been identified by the
parties through the adversarial process. This will promote the issuance
of timely, well-reasoned decisions by this Court.
Fifth, the reasons that appear to have prompted the adoption of the
practice of conducting sua sponte reviews of ``no issue'' cases no
longer exist. The Director of the Court's central legal staff informed
us that the practice began when, shortly after this Court was
established, one of the Judge Advocates General stated that he intended
to control the cases sent to this Court for its review. In addition,
the practice was designed as a check on military appellate counsel, who
were frequently perceived to be inexperienced, and as a mechanism to
ensure that servicemembers received the benefit of review by a civilian
court.
It is highly unlikely that today any of the Judge Advocates General
would attempt to restrict the questions presented to this Court by
defense appellate counsel, or that the Judge Advocates General could
effectively accomplish that end even if they desired to do so.
Moreover, the existence of separate defense corps in each branch of the
armed forces, as well as independent trial and appellate judiciaries,
who are insulated by statute from improper command influence,
substantially reduces the risk of any perception that the due process
rights of servicemembers can only effectively be protected by a
civilian review of courts-martial. Finally, the experience of military
appellate counsel, who are all specialists in criminal appeals, is, at
least, comparable to that of public defenders in the federal or state
systems. And, by contrast to the typical situation in public defender's
offices, military appellate counsel are closely supervised in their
representational decisions by field grade officers of the Judge
Advocate General's Corps who are invariably highly experienced criminal
lawyers.
The Committee members submitting this Majority Report are as
follows: Professor Mary M. Cheh; John F. DePue, Esquire; Eugene R.
Fidell, Esquire (Chairman); Professor Steven H. Goldblatt; COL Jeffrey
T. Infelise, USAF; and Paul J. Larkin, Jr., Esquire.
Minority Report on Proposed Rule 21(d)
Six members of the Court's Rules Advisory Committee have voted to
recommend a change to Rule 21(d) of the Court's Rules which would
direct the Clerk of the Court to dismiss, without answer or
consideration by the judges, any petition for grant of review submitted
by an accused which had no specific errors assigned in the supplement
filed by counsel. The stated purpose of this recommended change is to
end the Court's practice of docketing petition supplements that allege
no issues warranting review and then conducting an examination of the
record in such cases to determine whether any basis may exist in the
record meriting further consideration by the Court.
The following five members of the Rules Advisory Committee are
opposed to this change: Joseph H. Baum, Chief Judge, U.S. Coast Guard
Court of Military Review; William S. Fulton, Jr., Clerk of the U.S.
Army Court of Military Review; Thomas F. Granahan, Clerk of the U.S.
Court of Military Appeals; F. Whitten Peters, Williams & Connolly; and
CDR Timothy C. Young, USN, Director, Appellate Defense Division, Navy-
Marine Corps Appellate Review Activity.
By way of background, we are today seeing the military justice
system at the highest state of its development in its long history. We
know it to be a fair system, seemingly in the hands of carefully-
selected, well-trained lawyers and judges in adequate numbers in all
services and courts, and we believe administration of the system has
reached its highest level of competence ever.
Nevertheless, the military justice system is always in danger, both
from without and within. From the outside it traditionally appears to
be a system of justice that is subject to the control of prosecutorial
decisions and outcomes by the command structure of the service
involved. Accordingly, no matter what the conditions in today's all-
volunteer, relatively peacetime forces, the military justice system
must be prepared to meet the suspicions of the families of far greater
numbers of servicemembers, perhaps serving involuntarily, and of the
Congress, which holds the fate of the UCMJ in its hands.
From the inside, the military justice system always faces a less
visible challenge; namely, the impact of budgetary and manpower
exigencies on the quality of representation and adjudication. Judge
Advocate Generals must compete with others for personnel spaces and
money. They don't always win. In short, there is command control,
albeit indirect and unintended, over the number of lawyers available
(outside factors affect the quality of recruits) and over the funds for
educating lawyers and judges and for their continuing training. Even
within the sphere of the Judge Advocate Generals, choices must be made
as to the assets and efforts to be devoted to various branches of the
law, of which military justice is but one.
Those are the reasons why military justice always has had some
features we call paternalism. Those are the reasons why we assert that,
notwithstanding the triumph of legal professionalism over paternalism
reflected in Code and Manual changes and judicial decisions in the last
20 years, some vestiges of paternalism must remain. We regard Rule
21(d) as one of them so long as it does not cause delays that adversely
affect justice in other cases.
In addition to those reasons set forth above, the five factors
cited by the majority as supporting the recommended rule change will be
addressed below.
First Factor. The majority sees the Court's forty-year practice of
examining the record in every petitioned case to determine whether good
cause exists for further review to be incompatible with Article
67(a)(3), UCMJ. We disagree. Article 67(a)(3) states that: ``The Court
of Military Appeals shall review the record in * * * all cases reviewed
by a Court of Military Review in which, upon petition of the accused
and on good cause shown, the Court of Military Appeals has granted a
review.''
In viewing the Court's practice as contrary to the statute, the
majority undoubtedly interprets the phrase ``on good cause shown'' to
mean that good cause must be shown by the accused before the Court may
grant review. That interpretation, in our view, is much too narrow. The
Court from its inception appears to have seen ``good cause shown'' as
meaning good cause shown by the record. We believe that interpretation
to be more reasonable and more in accord with the Congressional grant
of discretionary review to this first-time civilian court, created to
oversee the military's court-martial system and to protect the rights
of the military accused.
In any event, Congress, by its failure to indicate otherwise for
over forty years of active oversight of military justice, has accepted
the Court's interpretation of the statute as correct. Rather than
legislation by acquiescence, as the majority asserts, the inaction of
Congress on this matter is simply an affirmation by that body that the
law is being applied properly. Accordingly, we believe a change of this
magnitude which departs from long-standing interpretation and
application of the law, while arguably within the Court's authority to
effect as simply a procedural rule change, should more appropriately
come from Congress.
With respect to statutory requirements, the majority cites the
contrast between the originally drafted mandatory review provisions of
Article 67 (death penalty, flag and general officers) and Article
67(a)(3), with its ``on good cause shown'' phrase, as implying that
Congress did not intend the Court to review a case sua sponte. The
majority mischaracterizes the Court's process as sua sponte review.
There are only three provisions under Article 67 pertaining to review
of a record by the Court, two that make review mandatory--death penalty
cases and those cases ordered sent to the Court by the Judge Advocate
General--and one that allows discretionary review, upon petition by the
accused.
The Court does not have the power to go beyond these three
Congressional grants and order a case reviewed on its own initiative.
To do so would be truly sua sponte review, which is not the situation
before us. For that reason we believe it incorrect to term the Court's
grant of a petition for review as sua sponte review. In any event, the
contrast between the provisions calling for mandatory review and the
one granting discretionary review, upon petition by the accused, does
not reflect an intent by Congress to limit the Court's discretionary
review authority to only those cases in which the accused has
demonstrated good cause. If an accused petitions for review and the
Court finds good cause for such review, the statute is satisfied.
Second Factor. The majority says the Court's procedure is at odds
with the practice of every other appellate court in the federal
judicial system. If so, there is ample reason for this difference. The
military is a closed society with rigorous disciplinary demands and
severe limitations on individual rights and freedoms that call for
special protections. Furthermore, when needed, individuals have been
conscripted to serve in this society, calling for even more protective
oversight. To some extent, the majority acknowledges these concerns,
but points to other safeguards, including Supreme Court review, as
minimizing the likelihood that a member of the armed forces will be
treated unfairly or contrary to accepted standards of justice.
In making this argument, the majority overlooks the fact that
Congress has authorized the Supreme Court to review only those cases in
which the Court of Military Appeals has granted an accused's petition
for review. As a result, the proposed rule change calling for automatic
dismissal by the Clerk of an accused's petition for review forecloses
any possible opportunity for subsequent review by the Supreme Court.
The proposed rule thereby denies the accused the very protection cited
by the majority in support of the rule change.
Third Factor. The majority focuses on the salutary effect the new
rule will have on the professional standards for defense counsel,
requiring, as it will, that counsel meet their responsibility to review
the record fully for errors. We agree with the premise that Court
actions calling for counsel to meet professional standards are
salutary. However, we believe there are other means available to the
Court for achieving this goal that are just as effective, or more so,
without penalizing the accused, as the proposed rule will do. In
addition, we view the proposed rule as drafted to created a substantial
question as to whether the Clerk is required to dismiss a case in which
the only matter presented in the supplement was a Grostefon assertion
by the accused.
Fourth Factor. The majority says that the new rule will result in
savings of central legal staff resources from a workload reduction of
as much as 80 percent. Suffice it to say that we did not draw the same
conclusion from what was said by the Director of the Central Legal
Staff when he appeared before the committee. Our recollection is that
he saw a minimal reduction in work from the rule change of not more
than 10 percent. If so, there appears to be little need for such a rule
from a work-savings standpoint.
Fifth Factor. The last point made by the majority is that the
reasons for the current practice, while possibly valid forty years ago,
are no longer a matter of concern. In answer, we must say that the
potential for abuse is still inherent in the system, and that such
potential requires constant vigilance. Over the years, this fact has
been demonstrated time and time again. The problem of overreaching and
undue influence by command authority will always be a possibility that
necessitates an unimpeded oversight by the Court of Military Appeals.
The procedure that has been in place for over 40 years appears to be
working well in that regard and we see no need for a change.
We conclude by urging the Court to reject the proposed change to
Rule 21(d).
Dated: May 12, 1994.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-11937 Filed 5-16-94; 8:45 am]
BILLING CODE 5000-04-M
