MISCELLANEOUS MATTERS: Judicial Review:
Advisory Opinion
2004
United
States v. Chisholm, 59 MJ 151 (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; courts established under
Article III of
the Constitution may not issue advisory opinions; courts established
under
Article I of the Constitution, such as this Court, generally adhere to
the
prohibition on advisory opinions as a prudential matter).
(in the present case, where the court of criminal appeals had
jurisdiction to
review the accused’s court-martial conviction under Article 66(b)(1),
UCMJ, was
obligated by Article 66(b)(1) to address the validity of the findings
and
sentence of the court-martial, and was presented with a concrete
dispute
between adverse parties regarding the appropriateness of the sentence
in light
of unreasonable post-trial delay, the opinion of the court did not
constitute
an impermissible advisory opinion).
(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).
(the certified issue questions whether a pertinent portion of the
opinion
below represents a valid analysis of the law concerning the post-trial
responsibilities of a military judge, and 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 the accused’s court-martial, and the
accused
has no personal stake in the outcome of any views that this Court 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, the Court concludes that consideration of the certified issue
would be
premature).