United States v. Chisholm , 59 M.J. 151 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellant
v.
Dathan O. CHISHOLM, Sergeant
U.S Army, Appellee
No. 03-5003
Crim. App. No. 9900240
United States Court of Appeals for the Armed Forces
Argued October 8, 2003
Decided November 18, 2003
Counsel
For Appellant: Captain Gregory M. Kelch (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler Jr.
and Captain Terri J. Erisman (on brief); Captain Mary E.
Card.
For Appellee: Captain Abraham F. Carpio (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and
Major Mark L. Johnson (on brief).
Military Judges: Stephen V. Saynisch and Nancy A. Higgins
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Chisholm, No. 03-5003/AR
PER CURIAM
At a general court-martial composed of officer members,
Appellee was convicted, contrary to his pleas, of conspiracy to
commit rape, conspiracy to obstruct justice, making a false
official statement, and rape, in violation of Articles 81, 107
and 120, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 881, 907 and 920 (2000), respectively. He was
sentenced to a bad-conduct discharge, confinement for four
years, total forfeitures, and reduction to the lowest enlisted
grade. The convening authority approved these results. Before
the Army Court of Criminal Appeals, he requested a reduction in
sentence based upon a claim of dilatory post-trial processing in
light of a sixteen-month delay between the completion of trial
and the convening authority action. The court, after concluding
that the post-trial delay was unexplained and excessive, reduced
the period of confinement by three months, and otherwise
approved the findings and sentence. United States v. Chisholm,
58 M.J. 733, 739 (A. Ct. Crim. App. 2003). The Government filed
a motion for reconsideration en banc, which the court denied in
an unpublished decision. United States v. Chisholm, ARMY
9900240 (A. Ct. Crim. App. March 18, 2003).
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Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)
(2000), the Judge Advocate General of the Army submitted the
case to our Court, certifying the following issues:
I. WHETHER THE UNITED STATES ARMY COURT OF
CRIMINAL APPEALS’ OPINION IN UNITED STATES
V. CHISHOLM, ARMY No. 9900240 (Army Ct.
Crim. App. January 24, 2003) IMPROPERLY
VESTED MILITARY TRIAL JUDGES WITH POWER TO
ISSUE INTERLOCUTORY ORDERS AND AUTHORITY TO
ADJUDCATE AND REMEDY POST-TRIAL PROCESSING
DELAY CLAIMS?
II. WHETHER THE UNITED STATES ARMY COURT OF
CRIMINAL APPEALS’ DECISION CONCERNING THE
ROLE OF THE MILITARY JUDGE IN ADJUDICATING
AND REMEDYING POST-TRIAL PROCESSING DELAY
CLAIMS CONSTITUTES AN ADVISORY OPINION?
In the present appeal, the Government does not challenge
the conclusion of the court below that the post-trial processing
of Appellee’s case was “dilatory,” 58 M.J. at 734, nor does the
Government challenge the court’s modification of the sentence.
Likewise, Appellee does not challenge the adequacy of the relief
provided by the court below. Neither party contends that the
court erred in approving the findings and sentence as modified.
Exercising our authority to review cases submitted under Article
67, we have determined that there are no legal impediments to
affirming the findings and sentence as approved by the Court of
Criminal Appeals. The certified issues, and the Government’s
brief, focus solely on the portion of the opinion below
concerning alternative means of addressing post-trial delays,
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with particular emphasis on the role of military judges in post-
trial processing. See 58 M.J. at 736-39.
We shall address the certified issues in reverse order,
considering first the question of whether the court below issued
an impermissible advisory opinion. An advisory opinion is an
opinion issued by a court on a matter that does not involve a
justiciable case or controversy between adverse parties. See
Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997(1994). Courts established under Article III of the
Constitution may not issue advisory opinions. See U.S. Const.,
Art. III, § 2; Lawrence H. Tribe, American Constitutional Law
§ 3-9, at 328-30 (3d ed. 2000). Courts established under
Article I of the Constitution, such as this Court, generally
adhere to the prohibition on advisory opinions as a prudential
matter. See United States v. Clay, 10 M.J. 269 (C.M.A. 1981).
In the present case, the Court of Criminal Appeals had
jurisdiction to review Appellee’s court-martial conviction under
Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)(2000). The court
was obligated by Article 66(b)(1) to address the validity of the
findings and sentence of the court-martial. In particular, the
court was presented with a concrete dispute between adverse
parties, Appellee and the Government, regarding the
appropriateness of the sentence in light of unreasonable post-
trial delay. Under these circumstances, the opinion of the
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court below did not constitute an impermissible advisory
opinion. See United States v. Campbell, 52 M.J. 386, 387
(C.A.A.F. 2000) (“The parties in a subsequent case are free to
argue that specific aspects of an opinion . . . should be
treated as non-binding dicta, but such a possibility does not
transform a decision into an inappropriate advisory opinion.”)
Accordingly, we answer Issue II in the negative.
Issue I raises two separate questions: (1) whether the
pertinent portion of the opinion below represents a valid
analysis of the law concerning the post-trial responsibilities
of a military judge; and (2) whether that aspect of the opinion
constitutes a precedential holding or non-binding dicta. These
are the type of questions that may be resolved in the normal
course of trial and appellate litigation, should such questions
arise in an adversarial setting in a future case. In the
present case, however, neither party has challenged the post-
trial actions of the military judge who presided at Appellee’s
court-martial, and Appellee has no personal stake in the outcome
of any views that we might express on the post-trial
responsibilities of military judges.
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. Cf. Tribe, supra, § 3-
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United States v. Chisholm, No. 03-5003/AR
10 at 334 (discussing prudential aspects of the ripeness
doctrine). Accordingly, we decline to answer the first
certified issue.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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