MISCELLANEOUS MATTERS: Judicial Review: Advisory Opinion


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).

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