Military Judges Take Dual-Office Fight to SCOTUS

(CN) – The Supreme Court said Thursday it will consider a trio of consolidated cases, questioning whether a presidential appointment to a civilian military review court disqualified a judge from continuing to serve on a military criminal appeals panel.

In March 2016, then-President Barack Obama nominated Col. 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, 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 to inappropriate because the appeals court that is the subject of the writs of certiorari did not consider those claims.

As is their practice, the justices did not explain their rationale for taking up the case.

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