[Federal Register Volume 62, Number 97 (Tuesday, May 20, 1997)]
[Notices]
[Pages 27592-27594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13110]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
U.S. Court of Appeals for the Armed Forces Proposed Rule Changes
ACTION: Notice of Proposed Changes to the Rules of Practice and
Procedure of the United States Court of Appeals for the Armed Forces.
-----------------------------------------------------------------------
SUMMARY: This notice announces the following proposed changes to Rules
15(f), 8(f), 19 (d) and (e), 25, and 27 of the Rules of Practice and
Procedure, United States Court of Appeals for the Armed Forces for
public notice and comment:
Proposed Revision to Rule 15
Rule 15. Disciplinary Action
Revise Subsection (f) as Follows
(f)(1) (as text presently is in current Rule 15(f)).
(f)(2) [new] When it has been shown to the Court that a member of
the Bar of the Court has been convicted by court-martial or by other
court of competent jurisdiction of conduct which evidences a failure to
comply with the Model Rules of Professional Conduct and such conviction
has become final, the Court may, in lieu of the complaint and
investigative procedures set forth in subsections (b) through (e),
initiate a disciplinary action under this rule by issuance of an order
to such person to show cause why the person should not be disbarred.
Upon the filing of the member's answer to an order to show cause, or
upon expiration of 30 days if no answer is filed, the Court will set
the matter for hearing, giving the member due notice thereof, or enter
such other order as may be deemed appropriate; but no order of
disbarment or suspension will be entered except with the concurrence of
a majority of the judge participating.
Proposed Revisions to Rules 8(f), 19 (d) and (e), 25 and 27
Rule 8. Parties
Amend Rule 8(f) to read as follows:
(f) The party or parties filing a petition for extraordinary relief
with the
[[Page 27593]]
Court will be deemed the petitioner or petitioners. All parties to the
proceeding below other than the petitioner or petitioners will be
deemed respondents for all purposes.
Rule 19. Time Limits
Delete from Rule 19(d) the phrase ``with a supporting brief and any
available record.'' Add the sentence, ``The Court will, whenever
practicable, give priority to such cases.''
Delete from Rule 19(e) the phrase, ``together with any available
record'' and the sentence, ``Unless it is filed in propria persona,
such writ appeal petition shall be accompanied by a supporting brief.''
Add the sentence, ``The Court will, whenever practicable, give priority
to such cases.''
Rule 25. When Briefs Are Required
Delete the phrase ``petitions for extraordinary relief and writ
appeal petitions.''
Rule 27. Petition for Extraordinary Relief, Writ Appeal Petition,
Answer, and Reply
(a) Petitions for Extraordinary Relief
(1) A petition for extraordinary relief shall be filed within the
time prescribed by Rule 19(d), shall conform in length to Rule 24(b),
and, in accordance with Rule 39, be accompanied by proof of service on
all respondents. The petitioner shall also provide a copy of the
petition to any trial or appellate military judge whose decision,
judgment, or order is the subject of the petition.
(2)(A) The petition for extraordinary relief shall be captioned
``In Re [name of petitioner].''
(B) The petition shall contain:
(i) A history of the case including whether prior actions or
requests for the same relief have been filed or are pending in this or
any other forum and the disposition or status thereof;
(ii) the reasons relief has not been sought from the appropriate
Court of Criminal Appeals, if that is the case (see Rule 4(b)(1));
(iii) the relief sought;
(iv) the issues presented;
(v) the facts necessary to understand the issues presented by the
petition;
(vi) the reasons why the writ should issue;
(vii) the mailing address, telephone and facsimile telephone
numbers of each respondent.
(C) The petition shall include copies of any order or opinion or
parts of the record that may be essential to understand the matters set
forth in the petition.
(D) Service on Judge Advocate General. The Clerk shall forward a
copy of the petition to the Judge Advocate General of the service in
which the case arose.
(3) Denial; Order Directing Answer; Briefs; Precedence.
(A) The Court may deny the petition without answer. Otherwise, it
may order the respondent or respondents to answer within a fixed time.
The Court may also take any other action deemed appropriate, including
referring the matter to a special master, who may be a military judge
or other person, to make further investigation, to take evidence, and
to make such recommendations to the Court as are deemed appropriate.
See United States v. DuBay, 17 U.S.C.M.A. 147 (1967).
(B) When the Court directs that an answer be filed, two or more
respondents may answer jointly.
(C) The Court may invite or order any trial or appellate military
judge whose decision, judgment or order is the subject of the petition
to respond or may invite an amicus curiae to do so. A trial or
appellate military judge may request permission to respond but may not
respond unless invited or ordered to do so by the Court.
(D) The court may set the matter for hearing. However, the Court
may grant or deny the relief sought or issue such other order in the
case as the circumstances may require on the basis of the pleadings
alone.
(E) If further briefing or oral argument is required, the Clerk
shall advise the parties and, when appropriate, any judge or judges or
amicus curiae.
(4) Electronic message petitions.
The Court will not docket petitions for extraordinary relief
submitted by means of an electronic message or by facsimile without
prior approval of the Clerk.
(b) Writ Appeal Petition, Answer and Reply
A writ appeal petition for review of a decision by a Court of
Criminal Appeals acting on a petition for extraordinary relief shall be
filed by an appellant, together with any available record, including
the items specified by subsection (a)(2)(C), within the time prescribed
by Rule 19(e), shall be accompanied by proof of service on the
appellee, and shall contain the information required by subsection
(a)(2)(B). The appellee shall file an answer no later than 10 days
after the filing of the writ appeal petition. A reply may be filed by
the appellant no later than 5 days after the filing of the appellee's
answer. See Rules 28(b)(2) and (c)(2). Upon the filing of pleadings by
the parties, the Court may grant or deny the writ appeal petition or
take such other action as the circumstances may require.
Rules Advisory Committee Comment on Proposed Rule 15(f)
The proposed revision to Rule 15(f) establishes an alternative
procedure for the initiation of a disciplinary action that would apply
when a member of the Bar is convicted by court-martial or by other
court of competent jurisdiction and the conviction has become final. If
the conviction evidences conduct that constitutes a failure to comply
with the ABA Model Rules of Professional Conduct, the Court may, sua
sponte, commence a disciplinary action by issuing an order to show
cause why the member of the Bar should not be disbarred. The proposed
revision allows the Court, at its discretion, to avoid formal
investigations in cases where a record has already been developed
through a judicial criminal process and there has already been a
conviction that has become final.
The rule is consistent with the prior practice of the Court. In In
Re Trimper, Special Docket No. 89-04, the Court issued such an order to
show cause without first referring the matter to the Investigations
Committee under the current provisions of Rule 15(b)-(e). The order was
issued to an active duty military lawyer, after the Court affirmed his
court-martial conviction for wrongful use of drugs.
Rules Advisory Committee Comment on Proposed Revisions to Rules 8(f),
19(d) and (e), 25 and 27
The purpose of the proposed revisions to Rules 8(f) and 27 is to
clarify, in the context of extraordinary writ practice, the identities
of petitioners and respondents and the responsibilities of such
parties. Such revisions also clarify the roles, in responding to
petitions for extraordinary relief, of trial and appellate military
judges whose decisions, judgments, or orders are at issue. Finally, the
revisions seek to make these rules conform, as closely as possible, to
recent revisions of Fed. R. App. P. 21 (Writs of Mandamus and
Prohibitions, and Other Extraordinary Writs), effective December 1,
1996, See 924 F. Supp. No. 3 at CCXXVII (July 1, 1996).
The revision to Rule 8(f) makes it clear that any party below, who
is not the moving party, shall be deemed a respondent. See Fed. R. App.
P. 21(a)(1). The proposed revision, however, is not intended to
preclude a respondent from being realigned as a petitioner in an
appropriate case.
[[Page 27594]]
As revised, Rule 27(a)(1) requires that the petitioner provide a
copy of the petition to any trial or appellate military judge whose
decision, judgment, or order is the subject of the petition. The
purpose of this requirement is to alert the judge or judges to the
filing of the petition, a necessity because members of the lower court
are not treated as respondents and are therefore not served. This
revision conforms to revised Fed. R. App. P. 21(a)(1).
As revised, Rule 27(a)(2)(A) requires that the caption of the
petition merely identify the moving party rather than the name of the
judge or judges whose order is subject to challenge, as has been the
practice in some cases. In this respect, the amendment clarifies that
such judge or judges are not to be considered or treated as
respondents.
Revised Rule 27(a)(2) (B) and (C) modifies those subsections to
conform more closely to Fed. R. App. P. 21(a)(2) (B) and (C) in
connection with the required contents of a petition for extraordinary
relief. In substance, the revision does not deviate substantially from
the Court's present Rule 27(a)(1).
In contrast with the Court's present Rule 27(a)(3), the revision
adopts the federal practice of dispensing with separate briefs
accompanying petitions for extraordinary relief. The submission of such
multiple pleadings fosters redundancy and is inconsistent with the
time-sensitive context in which such petitions are typically filed. Any
necessary legal argument is properly contained in the explanation of
why the writ should issue in subsection (a)(2)(B). In the event the
Court deems supplemental briefing necessary following the submission of
the petition and any answer, the revised rule affords ample authority
to direct such briefings. See draft Rule 27(a)(3) (A) and (E). Should
this revision be adopted, Rule 19(d) which is captioned ``Time Limits''
will have to be revised to delete reference to the submission of
supporting briefs. References to submission of ``any available record''
in these rules is also unnecessary as such a requirement is imposed by
Rule 27(a)(2)(C), as revised. Rule 25, which is captioned ``When Briefs
Are Required,'' will likewise have to be revised to omit reference to
petitions for extraordinary relief.
Revised Rule 27(a)(3) has been drafted to conform more closely to
Fed. R. App. P. 21(b). Subsections (a)(3) (B) and (E) are new.
Subsections (a)(3)(C) clarifies the responsibilities of a trial or
appellate military judge or judges whose decision, judgment, or order
is the subject of a petition for extraordinary relief. It anticipates
that the views of such judge or judges will normally have been stated
on the record or in an order in the usual course and that, as in a
direct appeal, the lower court's interest in defending such an order
will ordinarily be fulfilled by the prevailing party. Accordingly, in
language adopted from Fed. R. App. P. 21(b)(4), it makes clear that
such judge or judges are not expected to respond to a petition and have
no right to respond except in the extraordinary instance where invited
or ordered to do so by the Court. The Committee recognizes that there
may be instances where the respondent chooses not to defend the
decision of the trial or appellate military judge whose decision is the
subject of the petition. United States v. Harper, 729 F. 2d 1216, 1217
(9th Cir. 1984) (noting refusal by government to defend, in a mandamus
proceeding, order of district court). In such instances, the proposed
rule permits that judge to request permission to respond on his own
behalf. The Court has discretion whether to permit such a response by
or on behalf of a judge.
It is the view of the Rules Advisory Committee that, due to the
mobility of sitting military trial judges, as well as former military
appellate judges, the Judge Advocates General are better situated than
the Court to ensure that such judges are promptly notified of orders
granting or denying extraordinary relief. Accordingly, in contrast with
Fed. R. App. P. 21(b)(7), the revised Rule makes no provision for such
service by the Court. See Rule 43(b).
As revised, Rule 27(b) eliminates, for the reasons set out above,
the requirement that separate briefs accompany writ appeal petitions.
As in the case of petitions filed in the first instance, writ appeal
petitions should ordinarily contain ample legal analysis to permit
disposition without further briefing. Should this revision be adopted,
Rules 19(e) and 25 will have to be amended to omit reference to the
submission of briefs in connection with writ appeal petitions.
Rule 27(a)(4) has been revised to preclude the submission of
petitions for extraordinary relief by electronic means, including
facsimile, except by authorization of the Clerk. When counsel in the
field find it necessary to submit, by electronic means, a petition for
immediate transmission to the Court, it should normally be transmitted
to the Chief of the Appellate Defense Division or the Appellate
Government Division, as appropriate, within the Office of the Judge
Advocate General of petitioner's service, with copies to all named
respondents and to any trial or appellate military judge whose
decision, judgment, or order is the subject of the petition, in
accordance with subsection (a). Upon receipt, the appropriate Appellate
Division will reproduce the submission and it will be filed by an
appellate counsel appointed within such office in accordance with Rule
37.
Finally, Rules 19(d) and 19(e) have been amended to afford a
preference in disposition to petitions for extraordinary relief and
writ appeal petitions.
* * * * *
DATES: Comments on the proposed changes must be received by July 21,
1997.
ADDRESSES: Forward written comments to Thomas F. Granahan, Clerk of
Court, United States Court of Appeals for the Armed Forces, 450 E
Street, Northwest, Washington, DC 20442-0001.
FOR FURTHER INFORMATION CONTACT:
Thomas F. Granahan, Clerk of Court, telephone (202) 761-1448 (x600).
Dated: May 14, 1997.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-13110 Filed 5-19-97; 8:45 am]
BILLING CODE 5000-04-M
