LRM v. Kastenberg

LRM, Airman First Class,
U.S. Air Force, Appellant
v.
Joshua E. KASTENBERG, Lieutenant Colonel,
U.S. Air Force, Military Judge, Appellee
and
Nicholas E. DANIELS,
Airman First Class, U.S. Air Force, Real Party in Interest
No. 13-5006
App. Misc. Dkt. No. 2013-05
United States Court of Appeals for the Armed Forces
Argued June 11, 2013
Decided July 18, 2013
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed a
separate opinion, concurring in part and dissenting in part and
in the result. RYAN, J., filed a dissenting opinion, in which
STUCKY, J., joined as to Part A.
Counsel
For Appellant: Colonel Kenneth M. Theurer, (argued); Major
Christopher J. Goewert, Major Matthew D. Talcott, and Major R.
Davis Younts (on brief).
For Appellee: Major Ryan N. Hoback (argued).
For Real Party in Interest: Dwight H. Sullivan, Esq. (argued);
Captain Christopher D. James and Captain Danko Princip (on
brief).
Amici Curiae:
For the United States: Major Tyson D. Kindness (argued);
Colonel Don M. Christensen and Gerald R. Bruce, Esq. (on brief).
For the Army Defense Appellate Division: Colonel Patricia
A. Ham, Lieutenant Colonel Jonathan F. Potter, and Captain
Matthew M. Jones.
For the Navy-Marine Corps Appellate Defense Division:
Captain Paul C. LeBlanc, JAGC, USN, and Captain Jason R.
Wareham, USMC.
For the National Crime Victim Law Institute: Margaret
Garvin, Esq., Rebecca S. T. Khalil, Esq., and Sarah LeClair,
Esq.
For the U.S. Marine Corps Defense Services Organization:
Colonel John G. Baker, USMC.
For the Air Force Trial Defense Division: Colonel Donna
Marie Verchio.
For Protect Our Defenders: Peter Coote, Esq.
Military Judge: Joshua E. Kastenberg
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
LRM v. Kastenberg, No. 13-5006/AF
Chief Judge BAKER delivered the opinion of the Court.
The Air Force Judge Advocate General (JAG) certified three
issues for review by this Court:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
BY HOLDING THAT IT LACKED JURISDICTION TO HEAR A1C
LRM’S PETITION FOR A WRIT OF MANDAMUS.
II. WHETHER THE MILITARY JUDGE ERRED BY DENYING A1C LRM
THE OPPORTUNITY TO BE HEARD THROUGH COUNSEL THEREBY
DENYING HER DUE PROCESS UNDER THE MILITARY RULES OF
EVIDENCE, THE CRIME VICTIMS’ RIGHTS ACT AND THE UNITED
STATES CONSTITUTION.
III. WHETHER THIS HONORABLE COURT SHOULD ISSUE A WRIT OF
MANDAMUS.
BACKGROUND
On October 16, 2012, Airman First Class (A1C) Nicholas
Daniels (Real Party in Interest) was charged with raping and
sexually assaulting A1C LRM in violation of Article 120, UCMJ,
10 U.S.C. § 920 (2006). Lieutenant Colonel (Lt Col) Joshua E.
Kastenberg (Appellee) was detailed to the case as military
judge. The Real Party in Interest was arraigned at Holloman Air
Force Base, New Mexico, and elected trial by enlisted and
officer members.
Captain (Capt) Seth Dilworth was appointed as special
victims’ counsel for LRM. In his formal notice of appearance,
Capt Dilworth stated that LRM had “standing involving any issues
arising under [Military Rules of Evidence (M.R.E.)] 412, 513,
and 514 in which she is the patient or witness as the subject of
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the motion.” Capt Dilworth noted that his formal involvement in
the court-martial would “be limited to asserting A1C [LRM]’s
enumerated rights as a victim of crime under federal law and
[M.R.E.] 412, 513, and 514.” He requested that the court direct
counsel to provide LRM with copies of related motions. Trial
counsel and trial defense counsel did not object to LRM
receiving copies of the motions, but trial defense counsel
opposed Capt Dilworth’s presence or participation at the
evidentiary hearings. Before the arraignment hearing, LRM
received copies of defense motions to admit evidence under
M.R.E. 412 and 513.
Initially during the arraignment hearing, Capt Dilworth
indicated that he did not intend to argue at any future M.R.E.
412 or 513 motions hearings. Later during the same hearing,
Capt Dilworth argued that there may be instances where LRM’s
interests in the motions hearings were not aligned with the
Government, in which case Capt Dilworth asked the court to
reserve LRM’s right to present an argument. The military judge
treated this request as a “motion in fact.”
In a judicial ruling, the military judge limited LRM’s
right to be heard to factual matters, finding that standing
“denotes the right to present an argument of law before a court,
which is fundamentally different than the opportunity to be
heard.” The military judge then found that LRM had no standing,
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through counsel or otherwise, to motion the court for relief in
the production of documents, and that Capt Dilworth could not
argue evidentiary matters in LRM’s interest. The military judge
concluded that “the prospect of an accused having to face two
attorneys representing two similar interests [is] sufficiently
antithetical to courts-martial jurisprudence” and would “cause a
significant erosion in the right to an impartial judge in
appearance or a fair trial.”
LRM filed a motion to reconsider, asking for relief in the
form of production and provision of documents, and that the
military judge grant LRM “limited standing to be heard through
counsel of her choosing in hearings related to M.R.E. 412,
M.R.E. 513, [Crime Victims’ Rights Act, 18 U.S.C. § 3771
(CVRA)], and the United States Constitution.” The military
judge denied the motion for reconsideration in full.
LRM filed a petition for extraordinary relief in the nature
of a writ of mandamus and petition for stay of proceedings, but
the CCA concluded that it lacked jurisdiction to review LRM’s
petition for extraordinary relief. After the United States Air
Force Criminal Court of Appeals (CCA) denied LRM’s motion for
reconsideration en banc, the Air Force JAG certified three
issues for review by this Court.
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JURISDICTION
Jurisdiction is a question of law that this Court reviews
de novo. United States v. Ali, 71 M.J. 256, 261 (C.A.A.F.
2012).
As a preliminary matter, this Court has statutory
jurisdiction to review the decision of the CCA under Article 67,
UCMJ, 10 U.S.C. § 867 (2006). Article 67(a)(2), UCMJ, provides
that this Court shall review the record in “all cases reviewed
by a Court of Criminal Appeals which the Judge Advocate General
orders sent to the Court of Appeals for the Armed Forces for
review.”
In United States v. Curtin, this Court considered the
definition of a “case” as used in Article 67(a)(2), UCMJ. 44
M.J. 439 (C.A.A.F. 1996), cited with approval in United States
v. Dowty, 48 M.J. 102, 107 (C.A.A.F. 1998). In Curtin, the
military judge ruled that trial counsel’s subpoenas duces tecum
for the financial statements of the accused’s wife and her
father were administrative, and that the appropriate United
States district court was the proper forum for challenging the
subpoenas. Id. at 440. The Air Force JAG filed a certificate
for review of a CCA decision denying the government’s petition
for extraordinary relief in the form of a writ of mandamus. Id.
This Court held that it had jurisdiction, and determined that
the “definition of ‘case’ as used within that statute includes a
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‘final action’ by an intermediate appellate court on a petition
for extraordinary relief.” Id. (citing United States v.
Redding, 11 M.J. 100, 104 (C.M.A. 1981)).
Similarly, in this case the CCA took a final action on a
petition for extraordinary relief when it denied LRM’s writ-
appeal petition. Thus, as in Curtin, this Court has
jurisdiction over the certificate submitted by the JAG pursuant
to Article 67(a)(2), UCMJ, as we would in the case of a writ-
appeal.
Subject-Matter Jurisdiction
The CCA erred by holding that it lacked jurisdiction to
hear LRM’s petition for a writ of mandamus. The All Writs Act,
28 U.S.C. § 1651 (2006), and Article 66, UCMJ, 10 U.S.C. § 866
(2006), establish the CCA’s jurisdiction. The All Writs Act
grants the power to “all courts established by act of Congress
to issue all writs necessary and appropriate in aid of their
respective jurisdiction and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). Extraordinary writs
serve “to confine an inferior court to a lawful exercise of its
prescribed jurisdiction.” Bankers Life & Casualty Co. v.
Holland, 346 U.S. 379, 382 (1953). “[M]ilitary courts, like
Article III tribunals, are empowered to issue extraordinary
writs under the All Writs Act.” United States v. Denedo, 556
U.S. 904, 911 (2009).
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The All Writs Act is not an independent grant of
jurisdiction, nor does it expand a court’s existing statutory
jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 534-35
(1999). Rather, the All Writs Act requires two determinations:
(1) whether the requested writ is “in aid of” the court’s
existing jurisdiction; and (2) whether the requested writ is
“necessary or appropriate.” Denedo v. United States, 66 M.J.
114, 119 (C.A.A.F. 2008) (internal quotation marks omitted). In
the context of military justice, “in aid of” includes cases
where a petitioner seeks “to modify an action that was taken
within the subject matter jurisdiction of the military justice
system.” Id. at 120. A writ petition may be “in aid of” a
court’s jurisdiction even on interlocutory matters where no
finding or sentence has been entered in the court-martial. See,
e.g., Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012); Roche v.
Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943).
To establish subject-matter jurisdiction, the harm alleged
must have had “the potential to directly affect the findings and
sentence.” Ctr. for Constitutional Rights v. United States
(CCR), 72 M.J. 126, 129 (C.A.A.F. 2013) (citing Hasan, 71 M.J.
416). There is no jurisdiction to “adjudicate what amounts to a
civil action, maintained by persons who are strangers to the
courts-martial, asking for relief . . . that has no bearing on
any findings and sentence that may eventually be adjudged by the
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court-martial.” Id. The CCA’s holding that the present case
“does not directly involve a finding or sentence that was –– or
potentially could be imposed –– in a court-martial proceeding,”
does not accurately reflect this analysis.
Under the appropriate analysis, LRM prevails. The petition
invited the CCA to evaluate whether the military judge can limit
the right to be heard under M.R.E. 412 and 513 by precluding LRM
from presenting the basis for a claim of privilege or exclusion,
with or without counsel, during an ongoing general court-
martial. The military judge’s ruling has a direct bearing on
the information that will be considered by the military judge
when determining the admissibility of evidence, and thereafter
the evidence considered by the court-martial on the issues of
guilt or innocence -- which will form the very foundation of a
finding and sentence. Furthermore, unlike “strangers to the
courts-martial,” CCR, 72 M.J. at 129, LRM is the named victim in
a court-martial seeking to protect the rights granted to her by
the President in duly promulgated rules of evidence, namely to a
claim of privilege under M.R.E. 513 and a right to a reasonable
opportunity to be heard under M.R.E. 412(c)(2) and 513(e)(2).
Indeed, this Court has reversed court-martial convictions based
on erroneous M.R.E. 412 evidentiary rulings. See, e.g., United
States v. Ellerbrock, 70 M.J. 314, 321 (C.A.A.F. 2011)
(reversing rape conviction after finding that evidence of the
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victim’s prior extramarital affair was improperly excluded under
M.R.E. 412). LRM is not seeking any civil or administrative
relief. Cf. Goldsmith, 526 U.S. at 533 (challenging an
administrative separation proceeding, rather than a court-
martial). Rather, she is seeking her right to be heard pursuant
to the M.R.E. Thus, the harm alleged has “the potential to
directly affect the findings and sentence,” and the CCA erred by
holding that it lacked jurisdiction. See CCR, 72 M.J. at 129.
Standing
LRM’s position as a nonparty to the courts-martial, see
Rule for Courts-Martial (R.C.M.) 103(16), does not preclude
standing. There is long-standing precedent that a holder of a
privilege has a right to contest and protect the privilege.
See, e.g., CCR, 72 M.J. 126 (assuming that CCR had trial level
standing to make request); United States v. Wuterich, 67 M.J.
63, 66-69 (C.A.A.F. 2008) (assuming standing for CBS in part
under R.C.M. 703); United States v. Harding, 63 M.J. 65
(C.A.A.F. 2006) (assuming standing for victim’s mental health
provider); United States v. Johnson, 53 M.J. 459, 461 (C.A.A.F.
2000) (standing for nonparty challenge to a subpoena duces tecum
or a subpoena ad testificandum during an Article 32, UCMJ, 10
U.S.C. § 832 (2006), pretrial investigation); ABC, Inc. v.
Powell, 47 M.J. 363, 364 (C.A.A.F. 1997) (standing under First
Amendment); Carlson v. Smith, 43 M.J. 401 (C.A.A.F 1995)
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(summary disposition) (granting a writ of mandamus where the
real party in interest did not join petitioners, but rather was
added by this Court as a respondent).
Limited participant standing has also been recognized by
the Supreme Court and other federal courts. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (standing
created by First Amendment right); Church of Scientology v.
United States, 506 U.S. 9, 11, 17 (1992) (standing created by
attorney-client privilege). In particular, “[f]ederal courts
have frequently permitted third parties to assert their
interests in preventing disclosure of material sought in
criminal proceedings or in preventing further access to
materials already so disclosed.” United States v. Hubbard, 650
F.2d 293, 311 n.67 (D.C. Cir. 1980); see, e.g., United States v.
Antar, 38 F.3d 1348, 1350 (3d Cir. 1994); In re Subpoena to
Testify Before Grand Jury Directed to Custodian of Records, 864
F.2d 1559, 1561 (11th Cir. 1989); Doe v. United States, 666 F.2d
43, 45 (4th Cir. 1981); Anthony v. United States, 667 F.2d 870,
872-73 (10th Cir. 1981); In re Smith, 656 F.2d 1101, 1102-05,
1107 (5th Cir. 1981); United States v. Briggs, 514 F.2d 794,
796, 799 (5th Cir. 1975).
Ripeness
Finally, this issue is ripe for review. The military
judge’s ruling limits LRM’s right to be heard to factual
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matters, preventing her from making legal arguments while
invoking her legal privilege under M.R.E. 513.
Furthermore, while LRM’s counsel initially indicated at the
arraignment hearing that he did not intend to argue at a future
motions hearing, noting that LRM had not received any documents,
discovery, or court filings with respect to such hearings,
counsel asked the military judge to reserve that right. The
military judge treated this request as a “motion in fact.” In
the judicial ruling, the military judge specified whether
counsel had standing to represent LRM during applicable hearings
arising from the M.R.E. at trial as one of the issues before the
court-martial, and ultimately denied the motion to grant
standing. Accordingly, LRM interpreted the military judge’s
ruling as finding that she “does not have standing to be
represented by counsel during applicable hearings arising from
the military rules of evidence at trial.” In the motion to
reconsider, LRM asked for relief in the form of production and
provision of documents, and that the military judge grant LRM
“limited standing to be heard through counsel of her choosing in
hearings related to M.R.E. 412, M.R.E. 513, CVRA, and the United
States Constitution.” The military judge denied the motion for
reconsideration in full.
Thus, the issue of whether LRM has limited standing to be
heard through counsel in hearings related to M.R.E. 412 and 513
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comes to this Court in the form of a challenge by a limited
participant to a concrete ruling by a military judge in an
adversarial setting. See United States v. Chisholm, 59 M.J.
151, 153 (C.A.A.F. 2003) (“In the absence of a challenge by a
party to a concrete ruling by a military judge in an adversarial
setting, we conclude that consideration of Issue I under the
circumstances of the present case would be premature.”). The
parties have argued, and the military judge has addressed, the
relevant legal issues. The issue is ripe for review by this
Court.
SUBSTANTIVE ISSUES
Construction of a military rule of evidence, as well as the
interpretation of statutes, the UCMJ, and the R.C.M., are
questions of law reviewed de novo. United States v. Matthews,
68 M.J. 29, 35-36 (C.A.A.F. 2009); United States v. Lopez de
Victoria, 66 M.J. 67, 73 (C.A.A.F. 2008).
The military judge erred by determining at the outset of
the court-martial, during arraignment proceedings and before any
M.R.E. 412 or 513 evidentiary hearings, that LRM would not have
standing to be represented through counsel during applicable
hearings arising from the M.R.E. The President has expressly
stated the victim or patient has a right to a reasonable
opportunity to attend and be heard in evidentiary hearings under
M.R.E. 412 and 513. M.R.E. 412(c)(2) provides that, before
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admitting evidence under the rule, the military judge must
conduct a hearing where the “alleged victim must be afforded a
reasonable opportunity to attend and be heard.” See also M.R.E.
513(e)(2) (“The patient shall be afforded a reasonable
opportunity to attend the hearing and be heard . . . .”).
M.R.E. 513(a) also provides that a patient has the privilege to
refuse to disclose confidential communications covered by the
psychotherapist-patient privilege. A reasonable opportunity to
be heard at a hearing includes the right to present facts and
legal argument, and that a victim or patient who is represented
by counsel be heard through counsel. This is self-evident in
the case of M.R.E. 513, the invocation of which necessarily
includes a legal conclusion that a legal privilege applies.
Statutory construction indicates that the President
intended, or at a minimum did not preclude, that the right to be
heard in evidentiary hearings under M.R.E. 412 and 513 be
defined as the right to be heard through counsel on legal
issues, rather than as a witness. Both M.R.E. 412 and 513
permit the parties to “call witnesses, including the alleged
victim [or patient].” M.R.E. 412(c)(2); M.R.E. 513(e)(2).
However, in addition to providing that the victim or patient may
be called to testify as a witness on factual matters, the rules
also grant the victim or patient the opportunity to “be heard.”
Id. Furthermore, every time that the M.R.E. and the R.C.M. use
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the term “to be heard,” it refers to occasions when the parties
can provide argument through counsel to the military judge on a
legal issue, rather than an occasion when a witness testifies.
See, e.g., R.C.M. 806(d) Discussion; R.C.M. 917(c); R.C.M.
920(c); R.C.M. 920(f); R.C.M. 1005(c); R.C.M. 1102(b)(2); M.R.E.
201(e).
This interpretation of a reasonable opportunity to be heard
at a hearing is consistent with the case law of this Court and
other federal courts. In Carlson, for example, this Court
provided extraordinary relief to two sexual assault victims who
had sought to prevent “unwarranted invasions of privacy” and to
protect their rights under M.R.E. 412, Article 31, UCMJ, 10
U.S.C. § 831, and other privileges recognized by law. 43 M.J.
401. The Court ordered that the victims “will be given an
opportunity, with the assistance of counsel if they so desire,
to present evidence, arguments and legal authority to the
military judge regarding the propriety and legality of
disclosing any of the covered documents.” Id. (emphasis added).
While Carlson is a summary disposition, this Court “has profited
from guidance offered in prior summary dispositions.” United
States v. Diaz, 40 M.J. 335, 339-40 (C.M.A. 1994); see also
Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (holding that
“lower courts are bound by summary decisions by” the Supreme
Court); United States v. Sanchez, 44 M.J. 174, 177 (C.A.A.F.
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1996) (citing Carlson). Similarly, in United States v. Klemick,
the Navy-Marine Corps CCA found that the military judge did not
abuse his discretion in rulings on M.R.E. 513 matters. 65 M.J.
576, 581 (N-M. Ct. Crim. App. 2006). During the evidentiary
hearing, the patient opposed trial counsel’s motion “through
counsel who entered an appearance in the court-martial on her
behalf for this limited purpose,” and the military judge
considered the patient’s brief and argument. Id. at 578.
Furthermore, while the military judge suggests that LRM’s
request is novel, there are many examples of civilian federal
court decisions allowing victims to be represented by counsel at
pretrial hearings. Although not precedent binding on this
Court, in the United States Court of Appeals for the Fifth
Circuit, for example, victims have exercised their right to be
reasonably heard regarding pretrial decisions of the judge and
prosecutor “personally [and] through counsel.” In re Dean, 527
F.3d 391, 393 (5th Cir. 2008). The victims’ “attorneys
reiterated the victims’ requests” and “supplemented their
appearances at the hearing with substantial post-hearing
submissions.” Id.; see also Brandt v. Gooding, 636 F.3d 124,
136-37 (4th Cir. 2011) (motions from attorneys were “fully
commensurate” with the victim’s “right to be heard.”).
Similarly, in United States v. Saunders, at a pretrial Fed. R.
Evid. 412(c)(1) hearing, “all counsel, including the alleged
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victim’s counsel, presented arguments.” 736 F. Supp. 698, 700
(E.D. Va. 1990). In United States v. Stamper, the district
court went further and, in a pretrial evidentiary hearing,
allowed counsel for “all three parties,” including the
prosecution, defense, and victim’s counsel, to examine
witnesses, including the victim. 766 F. Supp. 1396, 1396
(W.D.N.C. 1991).
While M.R.E. 412(c)(2) or 513(e)(2) provides a “reasonable
opportunity . . . [to] be heard,” including potentially the
opportunity to present facts and legal argument, and allows a
victim or patient who is represented by counsel to be heard
through counsel, this right is not absolute. A military judge
has discretion under R.C.M. 801, and may apply reasonable
limitations, including restricting the victim or patient and
their counsel to written submissions if reasonable to do so in
context. Furthermore, M.R.E. 412 and 513 do not create a right
to legal representation for victims or patients who are not
already represented by counsel, or any right to appeal an
adverse evidentiary ruling. If counsel indicates at a M.R.E.
412 or 513 hearing that the victim or patient’s interests are
entirely aligned with those of trial counsel, the opportunity to
be heard could reasonably be further curtailed.
Based on the foregoing discussion, the military judge’s
ruling in the present case runs counter to the M.R.E., and is in
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error for three reasons. First, by prohibiting LRM from making
legal arguments, the military judge improperly limited LRM’s
right to be heard on the basis for the claim of privilege or
admissibility. M.R.E. 513(a) creates a privilege to refuse to
disclose confidential communications, which necessarily involves
a legal judgment of whether the privilege applies, as well at
the opportunity for argument so that a patient may argue for or
against the privilege. Neither M.R.E. 412 nor 513 preclude the
victim or patient from arguing the law.
Second, the military judge’s ruling, made during the
arraignment hearing process and prior to any M.R.E. 412 or 513
proceedings, is a blanket prohibition precluding LRM from being
heard in M.R.E. 412 or 513 proceedings through counsel without
first determining whether it would be unreasonable under the
circumstances. Instead, the military judge based his ruling on
his flawed conclusion that LRM was precluded from making legal
argument. While LRM’s right to be heard through counsel is not
absolute, LRM has a right to have the military judge exercise
his discretion on the manner in which her argument is presented
based on a correct view of the law.
Third, the military judge cast the question as a matter of
judicial impartiality. It is not a matter of judicial
partiality to allow a victim or a patient to be represented by
counsel in the limited context of M.R.E. 412 or 513 before a
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military judge, anymore than it is to allow a party to have a
lawyer. The military judge’s ruling was thus taken on an
incorrect view of the law, and is in error.
REMEDY
As a threshold matter, the Government argues that, even
though the Judge Advocate General has certified three issues to
this Court, this Court is not authorized to act with respect to
matters of law when the CCA has not acted with respect to the
same matters of law. The relevant text of Article 67, UCMJ,
states:
(a) The Court of Appeals for the Armed Forces shall
review the record in --
. . . .
(2) all cases reviewed by a Court of Criminal Appeals
which the Judge Advocate General orders sent to the
Court of Appeals for the Armed Forces for review;
. . . .
(c) In any case reviewed by it, the Court of Appeals
for the Armed Forces may act only with respect to the
findings and sentence as approved by the convening
authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals. In a case which
the Judge Advocate General orders sent to the Court of
Appeals for the Armed Forces, that action need be
taken only with respect to the issues raised by him.
In a case reviewed upon petition of the accused, that
action need be taken only with respect to issues
specified in the grant of review. The Court of
Appeals for the Armed Forces shall take action only
with respect to matters of law.
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Emphasis added. The first clause of Article 67(c), UCMJ, does
not confine the second clause in the way the Government
proposes. In United States v. Leak, for example, this Court
considered that:
One possible reading of the language in subsection (c) of
the statute is that because the lower court did not affirm
the finding with respect to Appellant’s rape charge, or
set it aside as incorrect in law, this Court is without
authority to “act.” Under this reading, this Court would
be obliged to “review” the Judge Advocate General’s
certified question, but we would have no statutory
authority to “act.”
61 M.J. 234, 239 (C.A.A.F. 2005). The Court concluded that
“Article 67 does not preclude review of questions of law
certified by Judge Advocates General where the courts of
criminal appeals have set aside a finding on the ground of
factual insufficiency.” Id. at 242. Similarly, in the present
case, even though the CCA did not reach the substantive issues,
this Court may still take action with respect to all of the
certified issues, including whether this Court should issue a
writ of mandamus.
Furthermore, prudential concerns, such as the impending
court-martial start date, the parties’ interest in the speedy
resolution of these issues, and the JAG’s certification of all
three issues, counsel the Court to reach all the substantive
issues and proceed to grant relief at this time, if appropriate.
In addition, the military judge’s ruling raises issues of law of
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first impression which could apply in all M.R.E. 412 and M.R.E.
513 hearings. Absent any guidance from this Court and with no
other meaningful way for these issues to reach appellate review,
every military judge could interpret the scope and extent of a
victim’s rights differently, so that a victim or patient’s
rights vary from courtroom to courtroom. Under these
circumstances, this Court should not decline to address
substantive issues which are properly before it, and which
present a novel legal question regarding the interpretation of
the M.R.E. affecting an ongoing court-martial. As in Wuterich,
“[i]n view of the pending court-martial proceedings, and because
this case involves an issue of law that does not pertain to the
unique factfinding powers of the Court of Criminal Appeals, we
[should] review directly the decision of the military judge
without remanding the case to the lower court.” 67 M.J. at 70.
“[N]either justice nor judicial economy would be served by
delaying the [court-martial] pending remand to the Court of
Criminal Appeals.” Powell, 47 M.J. at 364.
However, while this Court may appropriately take action at
this time, a writ of mandamus is not the appropriate remedy. At
the lower court, LRM petitioned for a writ of mandamus directing
the military judge “to provide an opportunity for [LRM] to be
heard through counsel at hearings conducted pursuant to [M.R.E.]
412 and 513, and to receive any motions or accompanying papers
21
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reasonably related to her rights as those may be implicated in
hearings under [M.R.E.] 412 and 513.” The military judge’s
ruling must be based on a correct view of the law. M.R.E. 412
and M.R.E. 513 create certain privileges and a right to a
reasonable opportunity to be heard on factual and legal grounds,
which may include the right of a victim or patient who is
represented by counsel to be heard through counsel. However,
these rights are subject to reasonable limitations and the
military judge retains appropriate discretion under R.C.M. 801,
and the law does not dictate the particular outcome that LRM
requests.
CONCLUSION
Certified questions I and II are answered in the
affirmative. Certified question III is answered in the
negative. The current record is returned to the Judge Advocate
General of the Air Force for remand to the military judge for
action not inconsistent with this opinion.
22
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STUCKY, Judge (concurring in part and dissenting in part
and in the result):
While I agree with the majority that we have subject matter
jurisdiction in this case, I nonetheless agree with the
discussion of standing in Part A of Judge Ryan’s dissent. I
would therefore dismiss the petition for lack of standing and
would not reach either the second or the third certified issues.
LRM v. Kastenberg, No. 13-5006/AF
RYAN, Judge, with whom Stucky, J., joins as to Part A
(dissenting):
A.
Whether it is more irregular that the Judge Advocate
General of the Air Force (TJAG) “certified” these issues or
that the Court chooses to answer them is a close call,
particularly in light of the Supreme Court’s recent
decision in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1155 (2013) (holding that the respondents lacked standing
“because they cannot demonstrate that the future injury
they purportedly fear is certainly impending,” and,
therefore, cannot establish a sufficient injury-in-fact),
and the plain language of Article 67(a)(2) and Article 69,
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 867(a)(2), 869 (2006).
The putative victim in this pending court-martial,
LRM, through her attorney, asked the military judge to
order that she be provided copies of motions related to the
admission of evidence under Military Rules of Evidence
(M.R.E.) 412, 513, and 514, and that the court reserve to
her attorney the right to argue on those motions, although,
at that point, her attorney admitted that he “[did] not
intend to do so.” Trial and defense counsel did not object
to LRM receiving informational copies of any motions filed
LRM v. Kastenberg, No. 13-5006/AF
pursuant to those rules. While the military judge found
that LRM lacked standing to motion the court for production
of documents or be heard through counsel, the Government
avers that trial counsel provided LRM, through her
attorney, with (1) copies of defense motions to admit
evidence pursuant to M.R.E. 412 and 513, (2) the
Government’s response to the defense motion to admit
evidence under M.R.E. 412, and (3) other trial-related
documents.1
Based on the foregoing, at this point in the
proceedings, LRM -- having no intention to speak or legal
arguments to raise -- has not suffered any actual harm.
She alleges no “certainly impending” harm, Clapper, 133 S.
Ct. at 1155, and does not allege any divergence between her
interests and those of the Government, or that such a
divergence in interests is likely, let alone certain, to
occur at a later stage in the proceedings. The absence of
any actual or imminent injury to LRM, a nonparty to the
pending court-martial below, makes TJAG’s unprecedented use
of his certification power to certify interlocutory issues
to this Court all the more perplexing.
1
In the Government’s Response to Judicial Order –- Special
Victims’ Counsel, the Government avers that it did not
provide LRM with a copy of its response to defense motion
to admit evidence under M.R.E. 513.
2
LRM v. Kastenberg, No. 13-5006/AF
While we are assuredly not an Article III court, we
have, up until now, understood ourselves to be bound by the
requirement that we act only when deciding a “case” or
“controversy.” See U.S. Const. art. III, §2; United States
v. Johnson, 53 M.J. 459, 462 (C.A.A.F. 2000) (holding that
the appellant lacked standing to object to an unlawful
subpoena issued to secure the attendance of his wife as a
witness at an Article 32, UCMJ, 10 U.S.C. § 832 (2006),
hearing where the appellant “was neither deprived of a
right nor hindered in presenting his case”); United States
v. Jones, 52 M.J. 60, 63-64 (C.A.A.F. 1999) (holding that
the appellant lacked standing to challenge the violation of
a witness’s Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2006),
or Fifth Amendment rights and explaining that “[t]he
requirement is designed to allow a moving party with a
personal stake in the outcome to enforce his or her rights”
(quotation marks and citations omitted)). “No principle is
more fundamental to the judiciary’s proper role in our
system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or
controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 341 (2006) (quotation marks and citations omitted).
And paramount to enforcing that jurisdictional threshold is
3
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the requirement that, inter alia, a party have standing.
See Raines v. Byrd, 521 U.S. 811, 818 (1997).
Integral to standing is a showing of injury-in-fact;
“an injury must be ‘concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.’” Clapper, 133 S. Ct.
at 1147 (citing Monsanto Co. v. Geertson Seed Farms, 130 S.
Ct. 2743, 2752 (2010)). This requirement ensures that
federal courts resolve only actual disputes where people
are being harmed in fact, leaving hypothetical issues of
law to be resolved where they should be, by the coordinate
executive and legislative branches of government. See
Hollingsworth v. Perry, 133 S. Ct. 2652, __ (2013), slip
op. at 6 (“The doctrine of standing . . . ‘serves to
prevent the judicial process from being used to usurp the
powers of the political branches.’” (quoting Clapper, 133
S. Ct. at 1146)); Allen v. Wright, 468 U.S. 737, 752 (1984)
(“[T]he law of Art. III standing is built on a single basic
idea -- the idea of separation of powers.”).
The issues before us are not justiciable because LRM
has not been presently harmed and any future injury “is too
speculative to satisfy the well-established requirement
that threatened injury must be ‘certainly impending.’”
Clapper, 133 S. Ct. at 1143. Per the representations of
4
LRM v. Kastenberg, No. 13-5006/AF
both parties, LRM either has or will be permitted to have
the documents she requested, and her attorney stated that
he does not intend to speak on LRM’s behalf, as LRM’s
interests are aligned with the Government’s. Which begs
the question: at this point, what, if any, injury would be
redressed by a favorable decision from this Court? On
these facts, I can see no injury to be remedied, rendering
any decision from this Court purely advisory and outside
the “judicial Power” of Article III federal courts. See
U.S. Const. art. III, §2. On this ground alone the
certification should be dismissed.
B.
Additional grounds exist for dismissal of this
certification. By acting on the present certificate, the
majority approves a road map for evading the ordinary
limitations on our review of interlocutory issues. LRM, a
nonparty to the litigation who has not suffered any actual
injury or even a reasonable likelihood of future injury,
had interlocutory issues involving hypothetical future harm
to her rights certified by TJAG to this Court via Article
67(a)(2), UCMJ. This unprecedented use of Article 67(a)(2)
was made despite the fact that to have its interlocutory
issues considered, the Government would have to meet the
stringent requirements of Article 62, UCMJ, 10 U.S.C. § 862
5
LRM v. Kastenberg, No. 13-5006/AF
(2006), and an accused would have to satisfy both the
jurisdictional requirements of Article 67, UCMJ, in order
to invoke the power of the All Writs Act, 28 U.S.C.
§ 1651(a) (2006) (allowing this Court to issue “all writs
necessary or appropriate in aid of [its] respective
jurisdiction”), and the extraordinary burdens needed to
meet the criteria for an extraordinary writ. See, e.g.,
Hasan v. Gross, 71 M.J. 416, 416-17 (C.A.A.F. 2012)
(“Applying the heightened standard required for mandamus
relief, [and] conclud[ing] that based on a combination of
factors, a reasonable person, knowing all the relevant
facts, would harbor doubts about the military judge’s
impartiality.”).
Further exacerbating the impropriety of the situation
is that the instant certification was made in the early
stages of a criminal case; TJAG’s actions having ground the
accused’s proceedings to a halt ostensibly to determine the
contours of a right of a witness who has identified no
injury-in-fact and no divergence between her interests and
those of the Government. Considering that “[t]he exercise
of prosecutorial discretion is a prerogative of the
executive branch of government,” United States v. O’Neill,
437 F.3d 654, 660 (7th Cir. 2006) (citing Wayte v. United
States, 470 U.S. 598, 607 (1985)), and the ordinary state
6
LRM v. Kastenberg, No. 13-5006/AF
of affairs in our adversarial system where the government,
not TJAG, is the accused’s adversary, TJAG’s decision to
certify the question whether this nonparty should be
allowed to effectively intervene in this criminal
proceeding is all the more remarkable.
Nor is the certification proper under any provision of
the UCMJ. As relevant to this issue, Article 69(d), UCMJ,
provides that a Court of Criminal Appeals (CCA) may review
(1) “any court-martial case which (A) is subject to action
by [TJAG] under this section, and (B) is sent to the [CCA]
by order of [TJAG]; and, (2) any action taken by [TJAG]
under this section in such case.” Article 69(a)-(c), UCMJ,
provides the circumstances in which TJAG may modify or set
aside the findings and sentence in a court-martial case.
Nowhere do these sections provide TJAG with authority to
intermeddle on an interlocutory issue that is not case
dispositive, let alone the authority to certify an
interlocutory issue to this Court.
Yet despite the lack of statutory authority to intrude
at this juncture of the case, TJAG “certified” the issues
before this Court pursuant to Article 67(a)(2), UCMJ, which
presents yet another problem. Article 67(a)(2), UCMJ,
provides that “[this Court] shall review the record in all
cases reviewed by a [CCA] which [TJAG] orders sent to [this
7
LRM v. Kastenberg, No. 13-5006/AF
Court] for review.” In reviewing such “cases,” this Court
may “act only with respect to the findings and sentence as
approved by the convening authority and as affirmed or set
aside as incorrect in law by the [CCA].” Article 67(c),
UCMJ; see also Ctr. for Constitutional Rights v. United
States, 72 M.J. 126, 128-30 (C.A.A.F. 2013).
But there have been no findings or sentence entered
here, and in requesting review of this particular
interlocutory ruling, TJAG has not properly certified a
“case” under Article 67(a)(2), UCMJ. In United States v.
Redding, 11 M.J. 100, 102-04 (C.M.A. 1981), the Court
clearly and fully considered whether TJAG had properly
certified a “case” when he requested review of a trial
judge’s ruling “which rejected a command determination that
a military lawyer requested by the accused . . . was
unavailable” and where review of that ruling had been
initiated directly in the Court of Military Review by a
petition for extraordinary relief after the trial judge
effectively dismissed the case for failure to make the
requested military lawyer available.
The Court directly addressed whether the proceedings
before it constituted a “case,” and, therefore, were
properly certifiable, and explicitly distinguished the
military judge’s ruling from “an intermediate or
8
LRM v. Kastenberg, No. 13-5006/AF
interlocutory order” solely because “[the ruling] end[ed]
court-martial proceedings on the charges; it is, therefore,
not an intermediate or interlocutory order but a final
decree.” Id. at 104. The Court reasoned that because “the
posture of the proceedings . . . was tantamount to a final
disposition of the case,” TJAG had properly certified a
“case” within the meaning of Article 67(b)(2), UCMJ (now
Article 67(a)(2), UCMJ). Id. (internal quotation marks and
citation omitted).
Given the plain language of Articles 67 and 69, UCMJ,
Redding at best expresses the outermost limits of TJAG’s
certification power, allowing him to certify an
interlocutory issue only where it is “tantamount to a final
disposition” of a case. Id. The majority, however,
ignores both the plain statutory language and this
precedent and instead, in cursory fashion, relies on United
States v. Curtin, 44 M.J. 439 (C.A.A.F. 1996), a case which
cited Redding to hold, without discussion, and contrary to
both the plain language of Article 67, UCMJ, itself and the
actual holding in Redding, that a “case” within Article
67(a)(2) “includes a ‘final action’ by an intermediate
appellate court on a petition for extraordinary relief,”
quoting Redding, 11 M.J. at 104. See Curtin, 44 M.J. at
440; LRM v. Kastenberg, __ M.J. __, __ (6-7) (C.A.A.F.
9
LRM v. Kastenberg, No. 13-5006/AF
2013). Redding narrowly held that “proceedings of the kind
in issue are certifiable” and distinguished between action
by a military judge that amounts to a “final decree,” which
could be certified because “[s]uch action ends court-
martial proceedings on the charges,” from a ruling that is
“interlocutory in nature,” which could not be certified.
Redding, 11 M.J. at 104 (internal quotation marks and
citation omitted).2
Where, as here, an interlocutory ruling is not
“tantamount to a final disposition of the case,” id., the
proper channels of review of the issue include (1) review
in the ordinary course of appellate review by the CCA under
Article 66, UCMJ, (2) an appeal by the Government subject
2
Moreover, in responding to the Government’s argument that
“this Court is not authorized to act with respect to
matters of law when the CCA has not acted with respect to
the same matters of law,” LRM, __ M.J. at __ (19), the
majority misapplies United States v. Leak, 61 M.J. 234
(C.A.A.F. 2005), in holding that, here, as in Leak, this
Court may act on the substantive issues “even though the
CCA did not reach [them].” LRM, __ M.J. at __ (20). Leak,
however, more narrowly held that this Court could review “a
lower court’s determination of factual insufficiency for
application of correct legal principles,” Leak, 61 M.J. at
241, and the majority’s passing extension of that holding
to the present case is unwarranted. See United States v.
Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010) (“[T]he power to
review a case under Article 67(a)(2), UCMJ, includes the
power to order remedial proceedings . . . to ensure that
the lower court reviews the findings and sentence approved
by the convening authority in a manner consistent with a
‘correct view of the law.’” (quoting Leak, 61 M.J. at
242)).
10
LRM v. Kastenberg, No. 13-5006/AF
to the limitations of Article 62, UCMJ, or (3) a petition
for extraordinary relief from the interlocutory ruling
requested by a person with standing to challenge the
ruling. See Article 66, UCMJ; Article 62, UCMJ; 28 U.S.C.
§ 1651(a).
It is entirely unclear why this Court would adopt a
more expansive interpretation of “case” in this context,
contrary to the plain language of the statute and
unsupported by legislative history. The Supreme Court, in
those limited instances where its jurisdiction is
mandatory, see, e.g., 15 U.S.C. § 29 (particular class of
civil antitrust cases), has been most exacting in requiring
that the case is actually one it must decide. See Heckler
v. Edwards, 465 U.S. 870, 876 (1984) (interpreting 28
U.S.C. § 1252 (repealed 1988), to provide mandatory
jurisdiction in the Supreme Court only where “the holding
of federal statutory unconstitutionality is in issue”);
Palmore v. United States, 411 U.S. 389, 395-96 (1973)
(holding that an appeal as of right would not lie to the
Supreme Court under 28 U.S.C. § 1257 (amended 1988), in the
context of a District of Columbia court’s upholding a local
statute against constitutional attack, and noting that
“[j]urisdictional statutes are to be construed with
precision and with fidelity to the terms by which Congress
11
LRM v. Kastenberg, No. 13-5006/AF
has expressed its wishes; and we are particularly prone to
accord strict construction of statutes authorizing appeals
to this Court”) (internal quotation marks and citations
omitted).
What the instant certification amounts to is an
improper attempt by TJAG to shortcut proper procedure
without statutory authority to do so at this juncture and
force this Court to review an interlocutory ruling that (1)
does not come before us in the form of a petition for
extraordinary relief, (2) is neither case dispositive nor
an adjudged finding or sentence, and (3) does not involve
an injury-in-fact to anyone (other than perhaps the
accused’s right to a speedy trial). This is not an effort
that should be rewarded. Article 67(a)(2), UCMJ, which
requires us to decide certified issues in “cases,” should
be strictly construed to require just that, and all
interlocutory routes to this Court should require parties
with standing and issues that qualify for review under
either Article 62, UCMJ, or the All Writs Act and Article
67, UCMJ. By presently certifying issues pursuant to
Article 67(a)(2), UCMJ, TJAG circumvented (1) the specific
requirements for a Government appeal under Article 62,
UCMJ; (2) the heightened scrutiny required for an
extraordinary writ by either LRM or the accused; and (3)
12
LRM v. Kastenberg, No. 13-5006/AF
this Court’s discretion over whether to grant review of
this issue if, in the future, LRM suffers or is reasonably
certain to suffer injury-in-fact and seeks a writ appeal.
TJAG may employ both congressional and executive
routes to answer interlocutory questions definitively where
his curiosity cannot await resolution of a particular case
and where those claiming a right have no injury-in-fact
such that they could seek a writ themselves. Permitting
certification of interlocutory issues that are neither
justiciable nor case dispositive in any sense distorts the
limited role of both TJAG and this Court within the
military justice system. For these additional reasons, I
would dismiss the certification as improper, and I
respectfully dissent.
13