UNITED STATES, Appellant
Dathan O. CHISHOLM, Sergeant
U.S Army, Appellee
Crim. App. No. 9900240
United States Court of Appeals for the Armed Forces
Argued October 8, 2003
Decided November 18, 2003
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
This opinion is subject to editorial correction before final publication.
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 The Government filed a motion for reconsideration en banc, which the court denied in an unpublished decision.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).
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:
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?
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 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, § 3-10 at 334 (discussing prudential aspects of the ripeness doctrine). Accordingly, we decline to answer the first certified issue.
The decision of the United States Army Court of Criminal Appeals is affirmed.