United States v. Rorie

J., ERDMANN, opinion of STATES, Appellee, delivered UNITED CRAWFORD, C.J., Court, which J., EFFRON, J., GIERKE, joined. filed BAK- dissenting opinion which separate Gregory RORIE, Specialist, G. J., ER, Army, joined. Appellant. U.S. E. Al- Colonel Appellant: For Lieutenant

No. 02-0949. Chandler, (argued); Robert len Jr. Colonel Crim.App. 20000964. No. (on Major K. Stone D. Jeanette Teetsel Court of U.S. brief); Ku. Captain Fansu the Armed Forces. Captain Christopher Grave- Appellee: For Argued April Margaret (argued); line Lieutenant Colonel Baines, Lauren B. B. Colonel Lieutenant July Decided (on Leeker, H. Major McGee Jennifer brief). (law Chung Ming-Hsuan Amicus Curiae: student)(argued); Berkeley Kaye, Esq. Cary Goldblatt, attorney), H. (supervising Steven (law (director), Esq. and Scott Weidenfeller brief) student)(on Georgetown Uni- the—For Center, Litigation versity Appellate Law Program. Fidell, Esq. R. Eugene

Amicus Curiae: Barry, Esq., Stephen A (argued); J. Kevin (on Cave, Philip Esq. D. Saltzburg, Esq. brief) Military National Institute of the—For Justice. Frank L.

Amicus Curiae: Lieutenant Gat- to, JAGC, (argued) R.M. Fa- USNR Colonel (on brief) vors, Appellate USMC —For Division, Corps Navy-Marine Government Activity. Appellate Review Judge ERDMANN delivered the Rorie, Gregory Appellant, Specialist G. by general was court-martial at Fort tried Polk, pleas, he Louisiana. Pursuant to his specifications of of three was convicted wrongful distribution cocaine violation 112a, Uniform of Article Code UCMJ], 10 [hereinafter Justice Appellant was sentenced 912a years and reduction to confinement for two grade June of Private E-l. On authority approved sen- convening 2002, 28, Army Army tence. On June Court of sent notice of the court decision to Appeals findings mail, Criminal affirmed the Appellant receipt return certified requested. sentence in a memorandum decision. United (A. Rorie, States v. ARMY 20000964 Ct.Crim. 12, 2002, July On the United States Postal 2002). App. June Service returned the certified mail with the Appellant August died on 2002. On Exp notation “Forward Time Rtn to Send.” 27, 2002, September Appellant’s ap- detailed Constructive service was effected therefore pellate 5, 2002, defense counsel filed a Petition for July on appellate as the defense Grant Review and a Motion to Abate with a copy counsel had received of the decision Upon this Court. consideration Peti- deposited and the been decision had tion for Grant Review and the Motion to Appellant mail on that date. Abate, specified we UCMJ, 867(b)(2) and ordered on the 67(b)(2), briefs following two issues:

Appellant days had 60 within which to I ISSUE review, grant this Court for period Septem- that expired would have on WHETHER THE FILING OF A PETI- August Appellant ber 2002. On TION FOR GRANT OF BY REVIEW sustained massive head trauma an automo- APPELLATE DEFENSE COUNSEL Upon learning bile accident and died. WAS SUFFICIENT TO CONFER JUR- death, Appellant’s appellate defense counsel ISDICTION ON THIS COURT OR sought copy and obtained a of the death WHETHER JURISDICTION WAS RE- Subsequently, September certificate. on TAINED BY THE UNITED STATES 2002, appellate defense counsel filed a Peti- ARMY COURT OF CRIMINAL AP- tion for Grant of Review and Motion to PEALS. proceedings. Abate the Upon consideration of the Petition II ISSUE Abate, Grant of and the Review Motion to IN THE EVENT THAT THIS COURT specified previously this Court noted is- JURISDICTION, DOES HAVE parties sues and directed that the file briefs. WHETHER THE PROCEEDINGS BE SHOULD ABATED. BACKGROUND argument parties agreed Prior to Principals Abatement ab initio jurisdiction this Court had question over the proceedings of whether the and conviction in Appellant’s motion for abatement rests this case should abated be ab initio. There- upon general concept that the death of an fore, proceed directly to consideration of comple accused after but conviction before specified the second issue. For the reasons abates the entire follow, we hold that abatement ab initio proceeding inception. granted, from If its appropriate required is neither nor at this ab initio has the effect of “elimi nating nullifying” proceeding or con viction “for reason unrelated to merits” (7th Dictionary of the case. Black’s Law FACTS ed.1999). “[I]t is as if the defendant had Army The United States Court of Criminal never been indicted convicted.” United Appeals Appellant’s reviewed conviction and (11th Logal, States 106 F.3d findings affirmed the in mem- sentence Cir.1997). July orandum decision June 2002. On 1, 2002, Appellant’s commonly initial Two defense reasons advanced prepared correspondence Appel- support counsel of abatement ab initio advising Army defendanVappellant. lant him that the court had death of a criminal July rendered a in his case. On first advanced relates to the interests reason Deputy Army justice. Clerk of the court The 7th Circuit and State Courts Application Federal noted that “the interests of ordi has narily require [a defendant] not stand Nonetheless, abatement is not the univer- resolution the merits of convicted without federal and state courts. sal appeal” his and echoed the Court’s years, a number of the United For part appeal ‘integral “is view that such an position on abatement Supreme Court’s system finally adjudicating [the] of for [our] States, clarity.1 In Durham v. United lacked guilt [of defendant]’.” or innocence 858, 481, 28 L.Ed.2d 200 91 S.Ct. 401 U.S. 126, Moehlenkamp, v. 557 F.2d 128 (1971), acknowledged previous its the Court (7th Illinois, Cir.1977)(quoting 858, v. 351 482, “ambiguity,” at 91 S.Ct. id. Griffin 585, 76 S.Ct. 100 L.Ed. 891 policy U.S. abatement ab initio: adopted the of (1956)). Pogue, 19 also United States v. See unanimity courts The of the lower federal 663, (D.C.Cir.1994). F.3d problem have with this over which worked years impressive. believe ... is We adjudi- arguably disrupts appellate Death Ac- they the correct rule. have may convic- cation and leave an unreviewed proceed for cordingly, the motion leave to unsound, unlawful, unjust. or petition pauperis and the for in forma may lacking Confidence be in such convic- granted. judg- The certiorari are writ of tions; they as the basis for should serve is vacated and the ease ment below (“[A] finality. Logal, 106 F.3d at 1552 with di- the District Court remanded to until resolu- criminal conviction not final rections to dismiss the indictment. appeal a matter tion of the defendant’s of 483, 91 Justice Blackmun Id. at S.Ct. 858. right”); Pogue, (rejecting at 19 F.3d signifi- In his dissent he found dissented. against arguments abatement ab initio even was not cant distinction in that the decedent guilty on when the conviction is based 484, right. Id. 91 exercising appeal Thus, plea). deprived where “death has (Blackmun, J., dissenting). S.Ct. 858 appellate] accused his [an deci- discussion, years A later and without few sion,” jus- abatement serves interests Supreme abruptly changed po- its by removing tice criminal convictions do States, on in Dove v. United sition abatement necessary not have the basis confidence 325, 579, 96 46 L.Ed.2d 531 423 U.S. S.Ct. finality. support Moehlenkamp, F.2d 557 The entire Court con- at 128. following: sisted of the The advanced is that second reason petitioner The that the Court is advised penal purposes proceeding a criminal Bern, N.C., 14, New on November died at defeated the death defendant. is there- certiorari trial, conviction, Charges, and sentences are To the extent that Dur- fore dismissed. States, 481[, punish directed ham 401 91 the individual. Those v. United U.S. (1971), 858, 200] 28 L.Ed.2d be purposes can be S.Ct. served after the defen- ruling, Durham is inconsistent with this away. passed has v. dant See United States (5th overruled. Asset, 208, Cir.1993); F.2d 211 990 Unit- 279, v. F. Pomeroy,

ed States 152 282 325, While Id. at S.Ct. 579. (C.C.S.D.N.Y.1907). “[S]huffling off dismissed, the un- Supreme was punishment, completely mortal coil forecloses intact. derlying criminal conviction was left incarceration, rehabilitation, Thus, this side of ab initio has not been any Supreme grave policy rate.” United States v. at the United States (4th Cir.1984). 175, Dudley, F.2d since 1976. See, States, 338, Singer imposed e.g., was to the Circuit Court v. United 323 U.S. fine that Atlanta, 405, 346, 282, (1945)(Court Appeals.”); 131 U.S. 89 L.Ed. 285 Menken v. 405, 794, (1889)(considered 33 L.Ed. 221 dismissed writ and "remanded to the District disposition and ordered writ error Court for as law and the cause “abated” such 396, Johnson, dismissed); Pennsylvania, U.S. require.”); v. List v. United States (1888)("cause has n. 87 L.Ed. 1546 9 S.Ct. 33 L.Ed. (1943)(dismissed abated”). "disposition of writ and left hand,

On other (1997)(noting Federal Circuit that several states Appeals unanimously apply Courts of substantially changed have or abandoned policy policies initio); when accused dies their before those abatement ab v. State Clements, (Fla.1996); complete courts review a So.2d 980 federal State Makaila, (1995); 79 Hawaii conviction.2 The circuit courts 897 P.2d have adhered Peters, People 449 Mich. to a 537 N.W.2d despite of abatement ab initio Dove, largely Court’s decision in the basis that an to the circuit court is right, a matter of whereas certiorari is dis- Application by this Court cretionary review before the This Court has followed See, e.g., v. Christopher, ab abatement initio since 1953. In United (3d 294, Cir.2001); F.3d 296 United States v. Mosher, States v. 14 229 C.M.R.

Pauline, (5th 684, Cir.1980); 625 F.2d 685 (C.M.A.1953)(summary disposition), we noted Moehlenkamp, 557 F.2d at 128. petitioner the was “or- deceased and The determination of whether and how be, is, dered that this cause and the same much of a criminal conviction to abate in the abated, hereby and it is further ordered that considerably, state courts varies with most be, the for Petition Grant of the Review and adopting courts form is, some of abatement.3 It hereby same dismissed.” Since these ear- however, noting, is worth that a cases, number of ly routinely applied we have the recently changed states have policies, their summary of abatement ab initio in fashion moving See, away from ad abatement initio. appellant when an died while his case was Salazar, e.g., 778, State v. 123 pending N.M. 945 P.2d at this Court.4 905, 1482, Wright, (10th Cir.1992)("dismiss 2. See United States v. 160 F.3d 908 F.2d 1486 [the] (2d Cir.1998)("[W]e normally judg vacate the appeal judgment the remand criminal ... to ment and remand to the district court with in the district court with instructions to the vacate indictment.”); structions to dismiss the United judgment underlying and dismiss the indict 294, (3d Christopher, States v. 273 F.3d ment.”); 1547, Cir. Logal, United States v. 106 F.3d 2001)("The established, rule of abatement is well (11th Cir.1997)("This circuit has Thus, adopt and we it as the law in this Court. general the rule that the death aof where a convicted criminal defendant dies after during pendency ap defendant the of his direct filing appropriate appeal, the conviction will peal renders his conviction and ab sentence void be the abated and case remanded to the District initio; i.e., it is if as the defendant had never Court with ment.”); to instructions dismiss the indict convicted.”); been indicted and United States v. Dudley, United States v. 739 F.2d Pogue, (D.C.Cir.1994)(adopting 19 F.3d 663 the (4th Cir.1984)("requiring ultimately that initio). general policy of abatement ab case be remanded ... with direction to vacate ab initio, abated, proceedings.”); as the criminal Thomas, Annotation, 3. Tim A. Abatement State Asset, (5th United v. States 990 F.2d Pending Appeal Criminal Case Accused's Death Cir.1993)("It is well established in this circuit Cases, Conviction—Modem 80 A.L.R.4th pending that the death of a criminal defendant (1990 Supp.2002), & identified seven abates, initio, appeal of his of her case ab the categories policies of state court on abatement: proceeding.”); entire criminal United States v. defendani/appellant ab abatement when initio (6th Cir.1975)(convic Toney, 527 F.2d pending appeal; dies resolution of his tion vacated and the cause to the ”remand[ed] appeal appeal ab initio where the issue is an Judge District with to instructions dismiss the right; abatement ab initio where the court has accused.); against” indictment review, granted discretionary application (7th Moehlenkamp, v. 557 F.2d Cir. treating appellant as thereafter case if the 1977)(court practice by followed its "established right; given appeal had been the case not moot, dismissing appeal vacating [the] prosecuted; appeal abated be ..., remanding conviction the case to the initio, appeal may case is not abated but ab district outstanding court dismissal prosecuted; personal representative be not indictment[.]”); Littlefield, United States initio; may be to substituted avoid abatement ab (8th Cir.1979)("The F.2d death of a or, appeal superior abates without the court pen during defendant in a criminal case addressing proceedings whether the are abated dency of an renders moot the ab initio. deceased[.]”); against abates the cause D'Ar States, gento (9th v. United 353 F.2d See, Cir.1965)("[T]he McGill, prosecution e.g., abates on the death United States v. defendant.”); Davis, (C.A.A.F.2001)(summary disposition); of the United States v. United Kuskie, authority, noting petition that both 11 M.J. 253 Court’s In United States per- (C.M.A.1981), nature as the same “substantive specifically addressed had J., (Cook, dis- pending appeal.” before Id. question whether cases missive senting). be ab initio when should abated ad- petitioner/appellant dies. This unanimity policy was on this lack of initio ab hered to the of abatement Berry Judges v. The evidenced further authority from that distinguished our review Army Court the United States Supreme Court: (C.M.A.1993). There, a Review, 37 M.J. 158 has referred It true that Berry’s convic- Court abated majority of this military supreme court of the itself as “the was because the conviction tion ab initio system.” judicial McPhail v. United 71(e), meaning of Article final within (C.M.A.1976). States, Such 871(c) Berry UCMJ, itself, however, a characterization prior his days expiration seven died military equate a accused’s sufficient to petition this Court. time within which to petition this Court for 71, it majority on Article focused While petition for certiorari rejected argument that this Court’s again equation ignores the Court. Such an sub- authority akin the discretion- was statutory language stantial differences at the Su- ary of certiorari review nature 67(b)(3) 28 between Article Rather, majority preme found Court. 1254(1). Moreover, 1291. it See 28 U.S.C. authority analogous” “more Court’s this to the critical this indifferent role Ap- of the Federal Circuit Courts that plays in direct review of courts-martial peals. Id. Bond, 683, 694, (Noyd v. 395 89 U.S. (1969)) Judges dissented. Crawford Gierke 23 L.Ed.2d 631 as the Berry’s justice finding the military addition to facts of court of last resort in the In Councilman, present system. Schlesinger 420 from those v. case to be distinct Kuskie, rea- 95 43 noted number of U.S. the dissent L. 591 supporting Ed.2d Such distinctions conclusion that abatement sons proper understanding to a of the required central consideration at ab initio was Pauline, (1) jurisdiction Dove v. decision. United States of this this Court: (5th Cir.1980); Disposi- 625 F.2d 684 See is similar to (2) 71(c) Court; Federal Criminal Case When finality an under Article Pending Appeal, Dies impact matter that has no administrative Defendant (Fall 1979). U.Mich.L.J.Ref. determining was of whether Moreover, (3) in cases decided this Court practice discretionary; States, supra, since Dove v. United analogous” not “more to the Court is approach have not to the de- where the Federal Circuit Courts ceased-appellant situation. See United right. 37 M.J. at 162-65 one (C.M.A. Flannigan, v. States M.J. J., Gierke, J., (Crawford, joins, with whom 1978); Day, United States v. 5 M.J. 998 dissenting). Johnson, (C.M.A.1976); United States v. Ward, recently, in v. More United States (C.M.A.1977). M. 391 J. (C.A.A.F.2001), de- 54 M.J. this Court (footnotes omitted). Id. at 254-55 proceed- clined reconsider abate days Nevertheless, ings appellant where the died seven this Court’s on abate- after this had issued a decision his ment ab initio has not been without dissent. Ward, Kuskie, In the Court focused on the disputed case. Judge In Cook that there justice ordinarily require [a “interests of were “substantial differences” between reso- authority not stand convicted without defendant] Court’s certiorari and this Brown, United (C.M.A.1991)(sum (C.M.A.1977)(summary disposition); States v. 34 M.J. Flannigan, (1975)(sum United States v. disposition); Ferguson, v. States 50 C.M.R. 905 mary disposition); (C.M.A.1978)(summary M.J. disposition). mary Johnson, v. United States appeal.” lution “experienced judges of the merits of Id. at 391 the and mature of the 665). (quoting Pogue, 19 F.3d at found Appeals[.]” We Courts of Criminal justice Boone, the interests of were satisfied 49 M.J. “full review” and that “abatement ab initio (C.A.A.F.1998)(quoting only required. due to death” was not Id. at Cook, (C.A.A.F.1997)). 46 M.J. Eversole, also United States v. (C.A.A.F.2000)(expressing confidence in “expertise” Ap- Court of Criminal DISCUSSION peals). presented Resolution of the issues in this requires only inquiry case into the purpose The second advanced for abate- initio, principles of abatement ab but also an punishment ment ab initio is that decisis,

inquiry into the doctrine of stare personal criminal arena is and the death of change position in the Court’s on purpose pun- the defendant eliminates the would overrule established of this Asset, 211; ishment. See 990 F.2d at Pomer- oy, Unquestionably, upon 152 F. at 282. military pun- death defendant traditional

Abatement ab initio ishments such as confinement and forfeiture noted, However, primary As ease law sets forth two become moot. we believe there in support reasons of abatement punitive remains a substantial interest purpose ab initio. The first relates to the preserving just military otherwise lawful and interests of dictates that defen- persons serving convictions. For in uniform dant should “not stand convicted without res- subject who are to court-martial and for the olution of appeal[.]” the merits of his Moeh- Government, military status and the nature lenkamp, (citing Griffin, 557 F.2d at 128 discharge significant aof remain consider- 585). Pogue, U.S. at See also do the ations. We not believe that death of 665; Asset, F.3d at 990 F.2d at 210-11. The appellant following an of an resolution post-trial appellate processes and under the appeal Appeals to the of Criminal Uniform of Code Justice afford a punitive purposes moots the or substantial military clemency defendant with a review interests attached to a bad-conduct dis- and of appeal following three levels a convic- charge, discharge, puni- a dishonorable or a an appeal trial level: initial ato tive dismissal from the service. Appeals; appeal Court of Criminal an to this analyz- weigh Another consideration to in Court; Supreme and to an the U.S. ing impact this issue is the of ab abatement 60, 66, 67, 67a, Court. See Articles and rights. Congress initio on victims’ In 1990 UCMJ, 860, 866, 867, §§ 867a of Bill “Victims Crime of (2000). (2000). § Rights”. 42 U.S.C. Subse- by We believe the initial review quent to this Court’s decisions in and Kuskie Appeals provides Court of Criminal a mili- Berry, Department of Defense revised tary legal with defendant a substantive and Defense, 1030.1, Dep’t of Directive Victim factual review. The interests of are (November 1994) Witness and Assistance further enhanced at the Courts of Criminal 1030.1], adopt [hereinafter Directive Appeals by appellant’s right broad provisions of 42 10606 as of U.S.C. matters personally military assert matters before the Department policy. of Defense courts. See United States Gros- (C.A.A.F. Spann, M.J. (C.M.A.1982). tefon, 12 1999). recognized Directive 1030.1 the role Appeals unique Criminal are Courts of justice process of victims in the criminal and great power justice. and are vested do provided: specifically Gibson, United States v. (C.A.A.F.1999). convening Court-martial authorities expressed We have often clemency parole our in boards shall consider confidence the Courts of Criminal Appeals ability making expertise of restitution to the victim condition juris- petition tionary of this Court’s agreements, nature granting pretrial reduced of Supreme analogous to the sentence, parole. is more clemency, and diction discretionary practice. certiorari We Court’s 1030.1, para. 4.5. Directive any review deprive appellant of of do not agree- pretrial uncommon for It is not respect to by changing provisions. We ments to contain restitution initio. abatement ab fines, adjudged approved also note that debt, may compensatory have which create poli- that have reviewed Circuit courts aspects. example, adjudged fine For in the context cy abatement ab initio fact that an accused was be based rejection Supreme Court’s such against unjustly enriched offenses difference have focused on fundamental See Rule Courts-Martial Government. Supreme proceedings before 1003(b)(3)discussion. courts. Cir- and the circuit Appeal right. See 28 are cuit Courts noted, ap- initio is As when abatement ab §§ the other On “it if never plied is as the defendant had been hand, granted on a Logal, 106 of certiorari indicted and convicted.” F.3d writs §§ Particularly discretionary there has been 1551-52. where basis. See U.S.C. right, ab Thus, one prevailing practice level “[t]he legiti- initio at level frustrates a victim’s Supreme petitions for Court to dismiss compensa- mate interest restitution and upon the death of the convicted certiorari tion.5 readily transfer ... does not defendant Appeals.” Christopher, 273 the Courts support further our decision We find Pauline, 625 F.2d at F.3d at 296. See also adopt policy ab not to of abatement initio 685; Moehlenkamp, at 128. 557 F.2d jurisdic- the nature of this Court’s unique statutory jurisdiction of tion. The Supreme After Court abandoned its from this Court is distinct both Dove, a num- policy of abatement ab initio and the Circuit Courts of the nature ber of courts focused on believe, however, Appeals. We discretionary jur- certiorari Supreme Court’s petition authority is akin to the Court’s more determining as a critical factor isdiction authority writ exercised policies to maintain own of whether their Court, particularly respect pri- to the with Among Circuit abatement. the several mary appeals, sources of the writ of certiora- aspect Appeals of to look at this of Courts petition grant ri and for review. of issue, appel- there was consensus that an 1257; 67(a)(3). 1254(1), §§ Article right the circuit courts was lant’s of In- Appellant While and Amicus National supported main- a substantial distinction that otherwise, urged stitute of Justice See, taining policy a initio. of abatement ab there this can be little doubt that Court 296; at e.g., Christopher, 273 F.3d United discretionary respect exercises review with (10th Davis, v. 953 F.2d States question petition to our of “[T]he docket. Schumann, Cir.1992); States v. United Ap- [Court what cases are heard of (11th Cir.1988); n. 1 Moeh- F.2d peals a of for the Armed is matter Forces] lenkamp, 557 F.2d management, properly internal left to that Finally, rule we note that the of abatement guide- with Court’s decision accordance policy initio is matter in the Federal rules.” ab of expressed lines in that Court’s (1983).6 98-53, It the Constitu- S.Rep. The courts. is not mandated No. discre- Michigan Michigan recently enactment of the Crime 5. The of rec- since Rights significance rights Act[.]” Id. at 161. ognized it Victim's of victims' when substantially approach modified its own to abate- Peters, Fidell, People ment in v. 449 Mich. Eugene also R. Guide to the Rules 6. See of (1995). Michigan Supreme The N.W.2d 160 Procedure the United States Practice and for (10th persuaded was "not 126-28 Court stated it the Armed Forces of ed.2001)(making initio, applied compensa- to the discre- ab when several references abatement review). sanctions, Michigan tionary tory law nature of this Court's is consistent with statute, or policy nor have we it as A alter of abatement ab part of the Rules any categories of Practice Procedure initio into of does fall for this Court. Absent direction from Con- important identified above within as areas gress matter, or the President on precedent preserve which to under de- stare convinced that initio not a abatement ab is cisis. The issue before this Court is not one policy compelled by or interests statutory interpretation, of constitutional or jurisdictional underpinnings presented any nor have we been with- “reli- Appellant. ance interests” of principle “Stare decisis is of decision Stare Decisis rule, making, applied not a and need not be recognize holding today We that our when the issue ‘unworkable contrary existing precedent our and are Tualla, badly ... reasoned’.” 52 M.J. at importance not unmindful of the (quoting Payne, 501 U.S. at plays doctrine of stare decisis decision- 2597). Admittedly, policy S.Ct. the current Tualla, making. See United v. States abatement cannot be considered “unwork- (C.A.A.F.2000); M.J. believe, however, weight able.” We that the Boyett, reason, preceding discussed sec- (C.A.A.F.1995). The doctrine of stare decisis opinion, supports change tion of this in the preferred “the promotes course it because rule. evenhanded, predictable, and consistent First, Berry part upon focused in the im- development legal principles, reli- fosters pact finality under Article 71. believe decisions, We judicial ance and contributes to misplaced. proper that this focus was perceived judi- integrity the actual and process.” Tennessee, dealing focus of upon cial cases with abatement is Payne 501 U.S. 808, 827, opportunity an appeal and a 115 L.Ed.2d 720 conviction that can be relied as fair and Moreover, just. nothing plain there is plays key The doctrine role a number language congres- 71 imposing of areas. The compelling” doctrine is “most sional mandate for abatement ab initio. Ar- statutory where courts undertake construc compels adopt ticle no more that we Ry. tion. Hilton v. South Carolina Public compels ab than initio it Comm’n, 197, 205, 502 U.S. have (1991); 116 L.Ed.2d 560 Mc Patterson v. respect such a to its Union, Lean Credit military convictions. 2363, 105 L.Ed.2d 132 It comes play interpretation into constitutional premise The second asserted for abate- through where “correction legislative action ment initio at ab this Court is the distinction practically impossible!.]” Payne, is 501 U.S. by peti- drawn between the nature of review (quoting 111 S.Ct. 2597 Burnet by tion at this Court and review certiorari Co., 393, 407, Coronado &Oil Gas Berry, Court. See 37 M.J. at (1932) (Brandeis, L.Ed. 160; Kuskie, 11 M.J. at 254-55. The mere J., dissenting)). But see Harris v. United possibility that this Court will exercise its States, U.S. “good grant discretion to find for a of cause” (2002)(stare impor L.Ed.2d 524 less decisis appeal review does not into an transform of cases). tant constitutional The doctrine is right existing similar to that at the Federal important rights, “property and contract Appeals. of See Circuit Courts where reliance interests are involved!.]” § Berry, also M.J. at Payne, 501 U.S. at 2597. Ad (Crawford, J., dissenting). ditionally, plays the doctrine role in a ensur Thus, ing superior we believe that Court alter decisions of courts are not this policy in ignored by regard its to abatement ab initio or overturned inferior courts. by being Allbery, See United States v. without constrained stare decisis. (C.A.A.F.1996). by are constrained the doctrine of We less the UCMJ Statutory requirements under we are decisis in this instance because stare determining matter rather a of court statutory provisions This is about the case change a in the law or a contemplating than finality. particu- In governing of the UCMJ impacting upon of change an articulable lar, finality in of case addresses issue dispo “The of a appellant. an determination when subject to review our Court cases proceedings of cast into sition to be made Appellant occurs before the death of the by defendant-appel death of the completed limbo statutory proceedings have been us, only.” appears, to of contains three lant to be one in our The UCMJ State, statutory provisions. When the pertinent 266 Ind. Whitehouse a have findings of and sentence court-martial 1015, 1016 N.E.2d Ap- approved by a Court of Criminal been becomes the peals, decision of court CONCLUSION legality judgment “final to of 71(c), UCMJ, Article proceedings” under adopt by rule We therefore established 871(c) (2000) further without review the U.S. Court Dove. When following if by our of condi- one 67(a)(3) pending an appellant dies (1) the service member tions has been met: Court, by will appellate review we dis- case; non-capital appeal of withdraws deny petition will not miss or but abate (2) timely does not file service member Berry action initio.7 are ab Kuskie petition and the case is other- for review they hereby to overruled the extent that (3) Court; by our wise under review with this In view of inconsistent decision. petition rejects review. our conclusion that the Courts finality language in Article Although the right, Appeals is an Criminal 71(c) punitive refers cases which Judge courts or leave those Advocates adjudged, separation has Rule for been parameters General establish the R.C.M.], [hereinafter Courts-Martial policy of abatement in the event that an considerations makes it clear that the same appellant pending dies review a Court by the apply all courts-martial reviewed Appeals. Criminal Appeals, regardless Courts Criminal nature of the sentence: DECISION Finality R.C.M. 1209. courts-martial (a) A court- When conviction final. Proceedings The Motion to Abate the is final martial conviction when: denied, and the Petition for Grant of Review (1) by completed a Court of Review is is dismissed. Criminal and— (A) timely The accused does not file BAKER, EFFRON, J., Judge, with whom by Ap- petition for review the Court of joins (dissenting): case peals for the Armed Forces under is not otherwise fifty years lead overrules court; and subject on the of abatement. To- (B) A for review is denied or express day’s contrary to the Ap- rejected otherwise Jus- terms Uniform Code peals ForcesL] for the Armed UCMJ], the consistent [hereinafter tice by dating our treatment Court finality 1209 is consistent with R.C.M. days practice under from the earliest 76, UCMJ, 10 provisions of Article U.S.C. Code, the treatment of cases the federal (2000), provisions § and direct review 867(a) 67(a), UCMJ, § appeals, prevailing civilian courts of of Article (2000). proceed- provides Article that the practice under state law. Court, for another those issues will be reserved As the issue of abatement of involv- 67(a)(l)-(2), day. ing capital punishment by Article Uniform Code of certified Justice, 867(a)(l)-(2) (2000). § Judge 10 U.S.C. General are not before the Advocate ings congressional of a court-martial are “final conclu- provide intent to service mem- reviewed, only sive” when “approved, or af- significant opportunity bers with a to obtain required by tribunal, by [the firmed as independent, UCMJ].” Article review civilian 67(a) describes two classes of cases within requiring grant without our court to full re- jurisdiction mandatory our involve re- every view case. See United States capital cases and eases submitted to Byrd, (C.A.A.F.2000)(citing view— our Judge certification of the 81-491, (1949); H.R.Rep. S.Rep. No. at 6-7 Advocate General concerned. Article (1981)). 97-146, S.Rep. No. See also 67(a)(l)-(2). respect With to a third class of 98-53, No. at 34 by petitions a service member —Arti- cases— Statutory interpretation provides: cle 67 limited, statutory

(a) Courts-martial exercise Appeals The Court of for the Armed jurisdiction specific persons. over See Arti- Forces shall in— review record 2-3, UCMJ, §§

cles 10 U.S.C. (2000); 201(b)(4). see R.C.M. accused (3) by all cases reviewed Court of Crimi- court-martial, defendant and the which, upon nal Appeals petition of the UCMJ does not authorize of an- substitution shown, good accused cause person party other to the court-martial Court of for the Armed Forces during if the accused dies either or after granted has a review. trial. The use of the term “shall review” in Article significant. Compare 67 is 10 U.S.C. «Shortly enacted, after the UCMJ was our 101(e)(l)(2000)(“ § imper- ‘shall’ used in an question Court confronted what action sense”) ative with id. could be taken under the Code when an 101(e)(2)(2000)(“ § ‘may* permis- is used in a appellant prior died to final review of the sense.”) 67(a)(3) Although sive pro- legality proceeding. of the In United States greater vides our Court flexibility with much Mosher, (1953), 14 C.M.R. 229 the Court than appeals the Article III courts of through was informed motion abate- review, deciding terms of which cases to appellant ment that the subsequent had died do not have the unfettered discretion of the by to action on the case Board of Re- Supreme deny regardless Court to review predecessor today’s view—the Courts of the Compare merits case. Appeals. granted Criminal Our Court (2000)(providing the Article III courts peti- motion for abatement and dismissed the appeals “jurisdiction with appeals from grant tion for For of review. Id. all final decisions of the district courts” ex- fifty years, consistently over our Court has cept provides where statute for direct re- granted ap- motions abatement when the Court) Supreme view in the with 28 U.S.C. pellant prior by dies of a issuance 1254(1), §§ (2000)(describing cases Court, opinion. as noted in the lead “may be Supreme reviewed” M.J. at 402-03. certiorari). by writ in a As noted Stare Decisis law, military treatise on “Counsel familiar practice should not con- guide Reliance on critical as a fuse ‘good cause’ standard [under Article post in deciding cases—the doctrine of stare 67] with certiorari. Those courts that to the fair decisis—is essential administration issuing a case a writ of certiorari justice. As the Court has em required merely are not to hear a case be- phasized, indisputable “it-is that stare decisis party legal cause a demonstrates viable is- self-governing principle basic is a within the Services, requiring Legal sues Dep’t relief.” Branch, which Judicial is entrusted with the 27-173, Army, Pamphlet No. Trial fashioning sensitive difficult task of Procedure system preserving jurisprudential ” upon arbitrary The in ‘an combination Article 67 of mandato- not based discretion.’ (“shall review”) Union, ry language and a flexible Patterson v. McLean Credit 491 U.S. shown”) 164, (“upon 2363, good standard cause reflects L.Ed.2d 132 S.Ct. prece- statutory for our current The basis (1989)(quoting The Federalist No. at ed.1988)). Judges the (A.Hamilton)(H. Berry in v. Lodge was reviewed Adher dent of Military Re- Army Court precedence preferred “is course United States ence to the of (C.M.A.1993)(dis- evenhanded, view, predict promotes it the 37 M.J. because 71.) able, legal finality provisions of in Article development cussing consistent the judicial principles, precedent reliance on deci was opinion fosters that our noted sions, per actual and prevailing practice and contributes the with the consistent process.” integrity judicial the ceived of appeals the statuto- III courts of Article Tennessee, 808, 827, 111 Payne v. 501 U.S. governing petitions in ry language review of 2597, 115 L.Ed.2d 720 (discussing Article Id. at our Court. 67(a)(3)). judi- principle of Because stare decisis is rule, precedent making, not cial decision for opinion offers reasons The lead several may be overruled when it is “unworkable First, overruling opinion lead Berry. the Id., badly in quoted ... reasoned.” required by the that abatement is not states (C.A.A.F. Tualla, 52 M.J. 71. 58 at express language of Article M.J. 2000). precedent particularly The role of is opinion’s theory, the Under the lead statutory in- important involving in matters of of the Court Criminal decision terpretation: judgment the constitute the final would [A]ny departure from the doctrine of stare proceedings in this case even legality of special justification____ decisis demands though the was not final under by party burden borne advocat- [T]he requirements ma- express of Article 71. The ing pre- the abandonment of an established jority’s nothing in assertion that Article greater is cedent where the Court is asked statutory interpretation “compels” the set point statutory overrule construc- provide Berry appropri- forth does here, ... unlike the context precedent. overruling ate test for The issue interpretation, legislative constitutional so precedents us is whether our before power implicated, Congress is remains poorly they must be over- reasoned free to what we alter have done. consistency turned. Given the between

Patterson, 172-73, 109 abatement, language at (citations omitted). quotations interpretation perti- and internal the President’s that ease has nent statutes R.C.M. opinion The lead overturn a half- would not been made. century precedent consistent on ground precedent upon that our is based Second, opinion the lead states that our by “policy” “compelled is not inter- precedent premised is on “the distinction jurisdictional underpin- ests of or the by peti- between the of review drawn nature nings of Court.” M.J. at 406. The at tion at this Court and review certiorari us, however, issue before does not involve a (citing at 406 Court.” M.J. competing public policy among choice alter- Berry, at Kusk- 37 M.J. precedent natives. Our involves matter (C.M.A.1981)). ie, Nei- M.J. statutory interpretation, legal in which the ease, however, precedent held that our ther policy preferences judiciary yield premised was distinc- change precedent proponents unless the nature our review and tion between interpretation either demonstrate that Court; the nature review the badly reasoned. unworkable or rather, analogy in each ease the merits of in our and review between review acknowledges,

As the abate- lead Supreme Court was raised the Gov- under ment our unworkable. argument overturning ernment as an opinion’s sugges- M.J. at 406. The lead precedent. opinion explained why Each weight supports tion that “the of reason abatement, unpersuasive. argument was change in far Government’s the rule” of falls Kuskie, 160; Berry, demonstrating “poor- rule short of that the ly reasoned.” 58 M.J. 254-55. opinion suggestion, recognized

The lead reiterates the our It decision. was the Kuskie, rejected Berry in a strong that time that made we should case could be for the that not precedents analogizing overturn our view the statute does reach re- conduct, private pre- that did but view Supreme in our in view Court to the vail. Members of Some this Court believe 401-02, opin- Court. 58 atM.J. 404-06. The Runyon incorrectly, that was decided Supreme ion notes in that it own others consider correct on its foot- abatement, policy 1970s first ing, question but the before isus whether (citing States, at 401 Durham United ought it now to be overturned. 401 U.S. 91 S.Ct. L.Ed.2d 200 (1971)), years and then abandoned it five (citations 171-72, 491 U.S. at 109 S.Ct. 2363 explanation, later without atM.J. 401 omittedXdeclining to overturn the Court’s States, (citing Dove v. United precedent). We are in similar situation. (1976)). 96 S.Ct. 46 L.Ed.2d 531 The agree The issue is whether we now that lead also that observes the Article Berry correctly incorrectly, was decided appeals III courts of have continued consis- question “the it ought before us is whether abatement, tently apply even in the after- now to be overturned.” Dove, noting math of that several courts have Second, prac- the issue is not our whether explained the difference in terms of the dis- analogous Supreme tice is so to review in the discretionary tinction between review in adopt “policy” we should Supreme Court and as a matter of abatement. The issue before is a us matter right in appeals. the courts of 58 M.J. at statutory interpretation. The current Building upon 401-02. the distinction be- case, like the similar cases we have reviewed tween in appeals the courts of past years, requires us over to inter- Court, Supreme non-abatement 67(b)(3) pret the mandate of Article —that opinion suggests lead that because re- our petitions “upon good “shall review” cause petitions “good view of cause” under Arti- light finality provisions shown”—in of the 67(b)(3) cle more analogous to discretion- Article 71 and Article 76. See also R.C.M. ary Supreme in review the Court than courts, right as of in the circuit we should Third, the issue is not how we should Supreme follow Court’s non-abatement question resolve this as a matter of first policy, by prior dissenting opin- advocated impression. Under the doctrine of stare de- in this ions Court. 58 M.J. 404-06. cisis, the burden is on who those would argu- There are problems several change demonstrate that 'First, Berry ment. fact and Kuskie interpretation our Court’s law is so opinions did not involve unanimous does not poorly reasoned or unworkable that it should provide abandoning prece- reason be abandoned. regard, In Supreme dents. Court’s Fourth, the brief in memorandum decision relationship pri- consideration of the between applying Dove in non-abatement or dissents stare in decisis Patterson is Court and the circuit court Patterson, instructive. In the Court consid- opinions applying of non-abatement Runyon ered whether overrule 401-02, opinion, cited the lead atM.J. McCrary, 427 U.S. specific 405-06 involve statutes cast terms (1976)(interpreting L.Ed.2d a federal provisions quite applicable from different prohibiting statute as racial discrimination Compare UCMJ. U.S.C. admissions). private schools respect With 1254(l)(wholly discretionary review the decisis, prior the effect of divisions stare Court), §§ and 28 1291- said: (2000)(appeal as of circuit arguments Runyon about courts), whether 67(b)(3)(providing with Article light correctly in lan- petitions

was decided “upon “shall review” our Court history shown”) guage and 71(c)(setting of the statute were ex- good cause and Article great express governing amined and discussed with care conditions final de- forth

411 1, 98-53, at S.Rep. No. legality of court-mar- 1393. See terminations as to the best, comparison legislation, which included proceedings). At the tial 71, at the to 67 and did not practice of non-abatement amendments Articles between the inaction, Congressional and abatement at the courts address abatement. causes, a appeals provides fodder for de- many should which stem from be regarding competing merits of each statutory bate purposes of viewed with caution for approach. important per- from the Hilton, however, isWhat such interpretation. Under spective current case is the differ- of the grounds for con- provides inaction additional ing practices Article III in the courts demon- changing cluding proponents that the abatement, rejected they have not strate that interpretation have not sur- of the UCMJ developed policies in those imposed by the mounted the hurdle doctrine specific into account courts do not take decisis, light particularly of stare statutory provisions of the UCMJ. In the language the President broad used decisis, propo- context where of stare pertinent statutory implementation of the abandoning precedent nents of must show provisions. See 1209. R.C.M. position “poorly that our rea- Court’s soned,” differing of the III views practice State court prior that our courts do not demonstrate opinion The lead observes while most cases the interrelation- have misconstrued abatement, apply a num- states some form of 71, 67, ship among 76 Articles and R.C.M. recently in a ber of states have moved differ- ent direction. at 402. A number of Finally, also has em states, however, a matter of those state phasized relationship precedent between law, permit proceed on congressional purposes action for of con merits, society, based on the interests of sidering In Hilton stare decisis. v. South defendant, in ap- estate the defendant’s Comm’n, 197, Ry. Carolina Public See, pellate e.g., resolution of the case. Gol- 560, (1991), 116 L.Ed.2d 560 State, (Miss.1994); lott v. 646 So.2d 1297 Court considered whether to overturn the McDonald, State v. 144 Wis.2d Railway of Parden v. Terminal McGettrick, (1988); State v. N.W.2d Department, Alabama Docks U.S. (1987); N.E.2d 378 Ohio St.3d State 1207, 12 (1964)(constru- L.Ed.2d 233 Jones, P.2d Kan. ing permitting various federal statutes as a Walker, (1976); Commonwealth v. Pa. against cause of railroad action state-owned result, A.2d Such court). concluding state In the course of however, UCMJ, possible under the overturned, that the precedent should not be provision which makes no for substitution of the Court said: result, party. opinion As the lead finds it Congress years has had almost 30 in which necessary in present case dismiss the it corrected our could have decision appeal, approach signifi- contrary to the it, disagreed Parden if it has not cant number states that have modified weight chosen to do should so. We accord inconsistency their abatement rules. The be- acceptance this continued our earlier majority’s ap- and the tween decision holding. proach of those states underscores need 202, 112 respect 502 U.S. at With compre- any change in this area to reflect us, Congress to the has had over issue before legislative hensive consideration rather than years overturn Mosher and has chosen judicial piecemeal action. note, year particular not to do so. Of Policy considerations Kuskie, after our 1981 decision the De The lead a number of offers partment Congress of Defense submitted abatement, applying comprehensive proposal, reasons includ- legislative includ capabilities ing confidence in the of the ing process, revision of the Appeals, Courts of Criminal societal interests which led to enactment Jus 98-209, preservation judgment Act of a of convic- tice Pub.L. No. 97 Stat. tion, (3) impact rights. following and the victims If death occurs Appeals, the Court of Criminal should there important policy M.J. at 404-05. These are opportunity be an for further review on the concerns, given be full should consider- through party? merits of a substitution appropriate ation forum in terms (4) If death occurs while a case is under balancing the relative merits of abatement mandatory by our Court review under Arti- variety review. Given the wide 67(b)(1) cases) 67(b)(2) (capital cle or Article ap- means which has been (certified cases), proceed can the review on plied or modified at both the state and feder- the merits? level, however, al these concerns re- do not (5) party Assuming one is the United any change solve the issue of how should be case, States in who party? such a is the other implemented military justice system. questions, opened These are critical all but approach new Consideration of a to abate- left by opinion. unanswered the lead Our requires ment to a attention number of diffi- may represent current questions, including: cult choice, clear, best but it is worka- (1) If the accused dies while the case ble, and statute. based on Under the lead pending by convening authority, opinion, possibility years we face the litigation should the conflicting court-martial con- to resolve decisions at level, services, the command individual judgment stitute legality the final as to the Appeals. of Criminal Courts Be- proceedings? statutory cause this is a interpreta- matter (2) prior If the death occurs to a decision tion, precedent, relying should sustain by a Appeals, Court of Criminal should the Congress to address these concerns and decision of the court-martial and action of the appellants, balance the interests of their fam- convening authority judg- constitute the final ilies, victims, forces, society armed ment? large.

Case Details

Case Name: United States v. Rorie

Court Name: Court of Appeals for the Armed Forces

Date Published: Jul 1, 2003

Citation: 58 M.J. 399

Docket Number: 02-0949/AR

Court Abbreviation: C.A.A.F.