[Federal Register Volume 59, Number 94 (Tuesday, May 17, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11937]


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[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