Currently, the court-martial convening authority is required to “detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(e)(2) (emphasis added). As part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Congress amended Article 25(e), UCMJ, regarding the detailing of court members, by adding a new paragraph (4), requiring a convening authority for courts-martial to “detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.” Pub. L. No. 117-263, § 543(a) (2022) (emphasis added). The President is required to prescribe implementing regulations by 23 December 2024, when the amendment takes effect, for courts-martial convened on after that date. § 543(b), (c).
The new provision was not part of the original House bill; it was added, apparently without much deliberation, by Senate amendment No. 5499. See Joint Explanatory Statement to Accompany the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, at 83. https://www.armed-services.senate.gov/imo/media/doc/fy23_ndaa_
joint_explanatory_statement.pdf. Regardless of your sentiments on the merits of the issue, § 543 is an abysmal piece of legislation.
Typically, when Congress wishes an amendment to supersede an earlier statute, or it intends the earlier statute to remain in effect for some, but not all, purposes, it says so in the amendment. In fact, it “can strongly be presumed that Congress will specifically address language on the statute books that it wishes to change.” United States v. Fausto, 484 U.S. 439, 453 (1988). “[R]epeals by implication are not favored and will not be presumed unless the legislature’s intention to repeal is clear and manifest. Statutory repeal will not be inferred unless the later statute expressly contradicts the original act or such a construction is absolutely necessary to give the later statute’s words any meaning at all.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 646 (2007) (cleaned up).
On one hand, congressional intent is not clear and manifest. If Congress intended to repeal the first sentence of Article 25(e)(2), why not directly amend that provision to reflect a randomized court member selection process, rather than add a contrary provision in the same subsection of the statute? On the other hand, the amendment expressly contradicts the original act. Where the statute gave the convening authority almost unfettered discretion in selecting members, after applying statutory criteria, the amendment requires the President to establish procedures for the random selection of members but severs the convening authority from the actual selection process.
Article 25(e)(4) meets both criteria for inferring statutory repeal of the first sentence of Article 25(e)(2). It expressly contradicts the original act and repeal of the latter is absolutely necessary to give any meaning to the words of the amendment.
In the random selection amendment, Congress placed only one restriction on the President’s plan: the court members must be “qualified” members of the armed forces. The only qualifications under the current Article 25 require the individual selected for court-martial duty to be an active-duty member of the armed forces (Article 25(a), (b), (c)) and, when it can be avoided, not be inferior in rank or grade to the accused (Article 25(e)(1)).
In drafting a plan, the President will have to deal with other issues. Under Article 25(c)(2)(B), an enlisted accused has the right to select trial before a panel consisting of only officers or one in which at least one-third of the members are enlisted. With the vastly more numerous enlisted personnel than officers, random selection of members will inevitably result in some court panels consisting of enlisted members only. Will the President somehow restrict the random selection process so that officer representation on the panel is ensured? Congress seems to have foreclosed such restrictions in its mandate that the President’s plan randomize the selection process to “the maximum extent practicable.” The term “practicable” means “capable of being accomplished; feasible; possible.” Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed. 1995). Certainly, a court-martial with an all-enlisted panel is feasible and possible.
Regardless of how the President resolves the officer/enlisted and other questions that may arise, the congressional requirement that the selection process be randomized to the maximum extent practicable raises its own question: Who decides whether the President’s plan establishes randomization to the maximum extent practicable?
The term “practicable” is used elsewhere in the UCMJ but, normally, it is associated with a grant of authority to the President to determine what is practicable. See, e.g., Article 36(a) (permitting the President to prescribe court-martial procedures “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (emphasis added)). Although some may quibble, the President has executed this duty faithfully. The rules of evidence and procedure in courts-martial now pretty much track those in federal district courts, except where otherwise contrary to provisions of the UCMJ. And the courts are not flooded with litigation on whether it would be practicable to adopt more of the federal rules.
Ultimately, of course, Congress will be the final arbiter. But Congress acts slowly, leaving the question ripe for judicial intervention.
Good luck to the Joint Services Committee that is responsible for drafting the presidential regulations to implement the new Article 25(e)(4).
United States Supreme Court
This recent civil penalty case from the Supreme Court is worth a read. In Bittner v. United States (https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf), the Court considers the interpretation of the Bank Secrecy Act. Justice Gorsuch's opinion does a nice job discussing statutory interpretation and Skidmore deference. Most significantly for military criminal practitioners, Justice Gorsuch discusses application of the Rule of Lenity. There is a lot of good language for that appellate attorney invoking the Rule of Lenity.
Amendments to the CAAF Rules effective 9 march 2023.
No. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN ALLOWING THE VICTIM TO DELIVER HER UNSWORN VICTIM STATEMENT IN A QUESTION-AND-ANSWER FORMAT.
No briefs will be filed under Rule 25.
No. 23-0006/AR. U.S. v. Gene N. Williams. CCA 20130582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE ARMY COURT ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE.
Briefs will be filed under Rule 25.
Tuesday, February 28, 2023
Miscellaneous Docket - Summary Disposition
No. 23-0073/AF. A.L., Appellant v. United States, Appellee, & Theodore J. Slusher, Captain, United States Air Force, Real Party in Interest CCA 2022-12.
On consideration of the writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is hereby denied in part and granted in part; that Appellant's request for the trial counsel to destroy the medical records that he obtained from her military treatment facility is denied; and that Appellant's request for the military judge to conduct an in camera review of all her medical and Family Advocacy Program records in order to determine their relevancy and to adjudicate any claims of privilege is granted.
In issuing this order, the Court expresses no opinion on the legality of the means by which the Government obtained Petitioner's records.
Friday, February 24, 2023
Order Granting Petition for Review
No. 23-0061/CG. James D. Fink v. Y.B. & U.S. CCA 001-23. On consideration of the writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief, it is ordered that said petition is hereby granted on the following issue:
WHETHER THIS COURT HAS JURISDICTION TO REVIEW A WRIT-APPEAL PETITION FILED BY AN ACCUSED TO REVIEW THE DECISION OF A COURT OF CRIMINAL APPEALS ON A PETITION FOR EXTRAORDINARY RELIEF FILED UNDER ARTICLE 6b, UCMJ.
Within 10 days, each Appellee shall file a brief addressing the arguments in Appellant's writ-appeal petition that Article 67(a)(3), UCMJ, provides this Court jurisdiction, and that the amendment of Article 67(c), UCMJ, in the National Defense Authorization Act of 2017 requires this Court to reconsider its holding in Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017). Appellant may file an answer no later than 5 days after the filing of the Appellees' briefs.
The Court reserves judgment on whether it will grant review of the other assigned issues in the writ-appeal petition.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
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