Judicial Limitation Upon a Statutory Rigth: The Power of thw Judge Advocate General to Certify Under Article 67(b)(2)
| Author | by Lielteuaui Colonel Robert M. Mummey |
| Pages | 07 |
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INTRODUCTION
This article was generated by a conviction that The Judge Advocates General are being denied an appeal, conferred by statute, by which conflicting board of review opinions may be harmonized and potential miscarriages of justice abated. The impact of recent judicial decisions on this right has been emphasized by the unfortunate absence of explicit ratiocination that has characterized these decisions and the correlative unawareness in the profession that such a corrosive process was in action.
Recognizing, as Judge Learned Hand has warned,' that "the last acquisition of civilized man is forbearance in judgment and to it is neceasary one of the highest efforts of the will," one must also accept his later precept: "Let [the judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."2 A comparable license to criticize is found in Justice Frankfurter's observation :
The ultimate reliance fat. the fair operation of any standard is B
judiciary of high competence and character and the canitant play of aninformed professional critique upon its n,Vork.B
Finally, an expreas imitation to "the bar, individually and through its legal journals" to "tell the public, the services and us,the judges, whether we are performing properly" was extended
'
The Opinions and eunelusion~presented herein are those of the author and
do not neeenaarily renresent the yiews of The Judge Advocate Generai'Åœchool or any other governmental agency.
'*JAGC, U.S. Army; Member of the Faculty, The Judge Advocate General'i School, U.S. Army, Chaciottesvilio, Virpinia; Member of the Xama-chvsetts Bar; LL.B., 1061, University of Chicago.
From a tribute to Justice Holmes in the hew York World, March 8, 1926,reprinted in The Spirit of Liberty, Papern and Addresses of Learned Hand 21(Diliiard ed. 1958).
1 The Spirit of Liberty, op. cit. supra note 1, at 85.8 Universal Camera Carp. V. NLRB, 340 U.S. 474,489 (1951).*oo 4SlOB 193
from chamber8 as long ago as February, 1953,' and from the bench as recently as 1958.1
11. THE RIGHT TO APPEAL
A. THE HISTORICAL DEVELOPMENT PRIOR TO 1951
The right to appeal that concerns us is that conferred on The Judge Advocate General to "certify" c a m to the United States Court of Xilitary Appeals. In establishing a Jingle, civilian Court of Military Appeals at the apex of a non-unified system of initial and intermediate appellate review, Congress provided far it a three-part jurisdiction:
The Court of Militam Appeala shall review the record in: (1) all cases in which the sentence, ai affirmed by aboard of iei.iew, affeeC a general or flag officer or extends to death; (2) all eases reviewed by a board of ~emew which The Judge Ad.
vocste General orders sent to the Court of Military Appeala for review; and (3) all ease reviewed by B bard of review In which, upon petition of the accused and on goad came shown, the Cmit of Military Appeain has granted a revied
Witnesses before the Subcommittee of the House Committee on Armed Services complained that these provisions conferred on The Judge Advocate General a poxer to appeal a decision of the board of review adverse to the government' while giving the accused, in all but Article 61(b) (1) cases, anl?. a right to petition the court for a grant of review on good cause shoiT-r., i.e., a certiorari type application.' Xewrtheless, the hearings9 and the reports clearly indicate that what was intended to be established was an appellate
4 Quinn, The Coart'B Respoesibdity. 6 \'and. L. Rev. 161,162 (1853).6 United Starer v Sulewiki. 0 TSCblA 400, 482 n. 1. 26 CMR 270, 272 n. 1(195S), where Ch>ef Judge Quinn sratod' "The right EO critielze the 'carreetof the deesioni of Courts and judger has alwayp existed under our form ~arernment and must continue to ennt, not merely BP a right possessed by the mdividual but as B safeguard to our Initltutlan.' United States V. Craig, 266Fed230.231 (SDNY) 11820)."e Art. 67(b), Uniform Code of hlllitiry Justice, 10 U.S.C. 8 S67(b) (1868). 1 Note that this paver may be and has been exercised rsgardless of the result at the board of review. See. e.& ACM 18277, Storey, 24 CMR 696 (1857) disevssed infra: ACM 14722, Dkl, 25 CMR 845 (1958).
8Hearing.a on H. R. 4m89 Betore u Subeomniittee of the House Cmmiltea on Aned Sevvirss, 8lrt Cong.. 1st Sess. 686, 758. 822-23. 84142 (1848). sZd. at 725, 758-58. See a h
Heorinm or% S. 850 and H. R. LOBO Before a
Suboommittas a i the Smote Coamuftce on Anned Servioea. 81rt Con p... lat Sess.44 (1949).
IO H. R. Rep. Xo, 491,811t Cong., lit Seer. 32 (1849); S. Rep. KO.
486, Slit
cong., llt sesa. 29 (1949)184 *oo ,SIOB
POWER TO CERTIFY CASES
court where cases requiring confirmation by the President receive automatic mandatory review, where "an accused may request re-view and will receive it where the court finds good cause," but where "The Judge Advocate General may direct that a case be reviewed by the court." 11
Although this variance may seem at first "unfair" to an accused, it should be noted that there are three separate stages in the military prosecution at which the accused may win an ac-quittal on the facts which is not reviewable-the court-martial, the convening authority and the board of review-and two stages at which he may win a revera81 (or acquittal) on the lew which is not reviewable-the court-martial and the convening authority.1Q
Nor is this type of provision unique in the military. Title 18of the United States Code provides a direct appeal for the government from certain decisions and judgments in federal criminal cases 18 and United States v. Heinze upheld the constitutionality of an earlier provision.
It may be helpful to some readers to note briefiy the genesis and evolution of the board of review.'$ Prior to 1920 no legal review of any court-martial case was required although in a limited category of cases confirming action by the President was necessary prior to execution of the sentence. Records of trial were forwarded to the Office of The Judge Advocate General for filing and the custom of examining each record and "advising" the convening authority of the opinion of that office regarding the legal sufficiency of the record to sustain the findings and sentence had been established.
In December 1917, by War Department general order, the affirmative opinion of The Judge Advocate General was made esseZial to execution of the sentence. In August, 1918, "boards of review" were established in the Office of The Judge Advocate General to perform this function. In July, 1919, the convening authorities were required by an amendment to the Nanual for Courts-Martial, 1917, to refer every record of trial by general court-martial to a judge advocate and secure his written legal opinion thereon. On
IlXeavinga .m S. 859 end X. R. 4080, BUWQ note 9, at 28.11 UCMS, Bits. 60-67.1118 U.S.C. $3731 (1968).11218 U.S. 632 (1910). See also Hepner Y. United States, 196 U.S. 100 (1904), holding that a state Court appeal from a iudement of aepuittsl iB notB denial of dua procesl.
16 For an exoeilent detailed history of thia development see Frateher, Am& lata Review in. American Militam Law, 14 310. L. Rev. 15-76 (1949).
*GO &BPO* 195
4 June 1920, the Articles of War were amended to require the written poat-trial review by the staff judge advocate and to establish a board of review in the Office of The Judge Advocate Gen- er81.'6
This board revimwed all cases requiring confirmation by the President, or from courts convened by the President, and submitted its written opinion to The Judge Advocate General. That officer then transmitted the case with the board's opinion and his owiz recommendation directly to the Secretary of War for the action of the President. By administrative decision when the board and The Judge Advocate General agreed that the record of trial i w s legallr insufficient, the record was not Bent to the Secretary of War but was returned to the convening authority far re-hearing or other appropriate action.
The board also rerie,\-ed cases (except those in which the accused pleaded guilty) where the sentence extended to death, dismissal not suspended, dishonorable discharge not suspended, or confinement in a penitentiary. If The Judge Advocate General agreed with the board, review was complete and the sentence could be ordered executed (if affirmed) or was vacated (if not affirmed).:' If The Judge Advocate General did not agree with the board, the record with the opinion of each, was forwarded to the Secretarj- of War for transmittal to the President who decided betneen the conflicting opinions.1s
In 1937 the Secretary of TYar was authorized to act in lieu of the President to reiolre such differences of cpinioil and in 1942 the commanding general of an overseas command in which a branch office of The Judge Advocate General was established was authorized to decide betneen the conflicting views of a board of
le 11 Stat. 787 (1920) (Arhcle of War 46 and 50%).
11 A.m. SOL;, mpm note 16. pmnded in part: ''[SI0 authority shall order the execution of any , , . sentence of B general mwtmartial inralving the penalty a i death, diJmirial not auipended, dishonorable discharge not QUQ.pended. or confinement in B penitentiary, unleis and until the hoard of r e ~ e w shall, uith the npproiol o/ The Judge Advocate General, have held the recordof trial upon which rich sentence 13 baaed legally sufficient to ruppart the sentence . . ." (Ernphahr added.)
18 A, W.
Go%, 8upra note 16, piorided in part: "In the event that The Judge Advocate General shall not concur m the holding af tho hoard of re~iew,
The Judge Advocate General shall forward 811 the paper3 in the ease, including the opinion of the board of review and hts awn dissent therafrom, directly be., not, as formerly, through The Adjutant General and Chief of Staff1 ta the Secretary af Far far the action of the President. . . .j' (Emphs%is added.)
196 *GO &IP(IB
IQ60 Stat. 724 (1837).
POWER TO CERTIFY...
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