High Court Says Judges Can Sit on Two Military Panels

(CN) – The Supreme Court ruled Friday that a presidential appointment to a civilian military review court does not disqualify a judge from continuing to serve on a military criminal appeals panel.

In March 2016, then-President Barack Obama nominated Colonel Martin Mitchell to serve as a judge on the U.S. Court of Military Commission Review. At the time, Mitchell served on the U.S. Air Force Court of Criminal Appeals, and both he and the president anticipated his continuing to do so.

The U.S. Senate approved Mitchell’s nomination four weeks later.

All three petitioners in original cases were court-martialed and sentenced to dismissal from the military. In the lead case petitioner Nicole Dalmazzi, a second lieutenant in the Air Force, entered a guilty plea before a general court-martial to wrongfully using ecstasy. She was sentence to a month in the confinement and dismissal from the military.

Because the sentence included dismissal, the Judge Advocate General immediately referred the case to the Air Force Court of Criminal Appeals.

Dalmazzi appeared before that court, arguing that charge against her should have been dropped due “unlawful command influence” and that if it the charge were allowed to stand, her punishment was far too severe for what she had done.

On May 12, 2016, a three-judge panel that included Judge Mitchell rejected her appeal.

In her motion for reconsideration, Dalmazzi argued that because of Mitchell’s presidential appointment, his continuing to serve on the criminal appeals panel violated a longstanding dual-officeholding ban.

As a result, she said, the rejection of her appeal was invalid.

The case eventually wound up before the Court of Appeals for the Armed Forces, or CAAF, which held her objection was moot because President Obama did not formally sign Mitchell’s commission to the civilian court until May 25, 2016, 13 days after the military appeals court decided her case.

In her petition for a writ of certiorari, Dalmazzi argued the latest decision in her case is “a factually and legally indefensible application of the wrong doctrine.”

She further argued that the allegedly flawed mootness analysis applied to her case is “much more than an isolated flaw” and has led to the dismissal of petitions in at least six other cases on appeal.

According to court documents, Keanu Ortiz, the petitioner in the second case, was an Airman First Class in the U.S. Air Force who was convicted of possessing and distributing child pornography. He was sentenced to two years in jail and was dishonorably discharged. Laith Cox, petitioner in the third case, was convicted of several offenses related to sexual misconduct with a child, and was sentenced to 40 years in prison and dismissal from the armed services.

Both Ortiz and Cox raised the same issues on appeal as Dalmazzi, and their petitions for writs of certiorari were identical.

The government has responded by arguing the final appeals court decisions in these cases were appropriate because it determined the timing of the petitioners’ appeals meant their claims were not properly presented.

It also maintains that the petitioners’ request that the high court also look at their underlying statutory and constitutional claims is inappropriate because the appeals court that is the subject of the writs of certiorari did not consider those claims.

On Friday, the U.S. Supreme Court found that it has jurisdiction to review Court of Appeals for the Armed Forces (CAAF) decisions, and ruled 7-2 that Judge Mitchell’s simultaneous service on the U.S. Air Force Court of Criminal Appeals (CCA) and the Court of Military Commission Review (CMCR) did not violate the law.

The court decided only Ortiz’s case, saying in a footnote that Dalmazzi and Cox’s cases were dismissed as improvidently granted because the ruling in Ortiz’s case about jurisdiction makes it unnecessary to resolve the other petitioners’ claims.

Writing for the majority, Justice Elena Kagan said the U.S. Constitution’s Appointments Clause does not impose rules about dual service.

“Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in ‘undue influence’ on his CCA colleagues,” she wrote. “The CMCR does not review the CCA’s decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants.” (Parentheses in original.)

Kagan added, “The CAAF put the point well: ‘When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge.’ So there is no violation of the Ap­pointments Clause.”

On the issue of the high court’s jurisdiction to hear the case, Kagan wrote that there is no reason to differentiate military courts from territorial and D.C. courts.

“Here, three constitutionally rooted courts, ending with the CAAF, rendered inherently judicial decisions—just as such tribunals have done since our nation’s found­ing. In reviewing, ‘revis[ing,] and correct[ing]’ those proceedings, as Ortiz asks, we do nothing more or different than in generally exercising our appellate jurisdiction,” she wrote.

Justice Samuel Alito, joined by Justice Neil Gorsuch, dissented.

Alito took the position that military courts “have always been understood to be executive branch entities that help the president, as commander in chief, to discipline the armed forces.”

“Our appellate jurisdiction permits us to review one thing: the lawful exercise of judicial power. Lower federal courts exercise the judicial power of the United States. State courts exercise the judicial power of sovereign state governments. Even territorial courts, we have held, exercise the judicial power of the territorial governments set up by Congress,” he wrote. “Executive Branch officers, on the other hand, cannot lawfully exercise the judicial power of any sover­eign, no matter how court-like their decisionmaking pro­cess might appear. That means their decisions cannot be appealed directly to our court.” (Emphasis in original).

Alito called the majority’s decision unprecedented and said it violates the unambiguous text of the Constitution.

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