2023 (October Term)
B.M. v. United States, 84 M.J. 314 (the CAAF does not issue advisory opinions even if it has jurisdiction; an advisory opinion is a ruling on a legal question which cannot affect the rights of the litigants in the case before the court).
(an advisory opinion is a ruling on a legal question which cannot affect the rights of the litigants in the case before the court).
(the CAAF does not answer questions that are not ripe for decision or that have become moot).
(in this case, the CAAF declined to answer the certified issue as to whether a constitutional exception to the psychotherapist-patient privilege in MRE 513 exists because its decision did not turn on this issue, and it does not issue advisory opinions; here regardless of how it decided the MRE 513 issue, the CAAF could not provide any relief requested by the named victim where it already concluded on the basis of principles of standing, ripeness, and mootness, that it could not grant such relief).
2019 (October Term)
United States v. Wall, 79 M.J. 456 (in this case, where the CCA affirmed a rape conviction, set aside a sexual assault conviction and the sentence, and remanded the case to the convening authority to either (1) order a rehearing on the sexual assault offense and the sentence, (2) dismiss the sexual assault offense and order a rehearing on the sentence, or (3) dismiss the sexual assault offense and reassess the sentence, affirming no more than a DD, confinement for 10 years, total forfeitures, and reduction to E-1, the issue of whether the CCA was authorized to provide what amounted to an advisory opinion by declaring what sentence to confinement it would accept as appropriate was ripe for review by the CAAF because (1) the issue was a purely legal one, which could be resolved without further proceedings, (2) the adverse effect of the CCA’s ruling was neither remote nor abstract where the CCA sent a clear message to the convening authority about what sentence to confinement it would find appropriate -- a message that could unduly influence the independent judgment of the convening authority, and (3) resolution of the issue promoted judicial economy).
(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; while courts established under Article III of the Constitution may not issue advisory opinions, courts established under Article I, such as the CAAF and the CCAs, generally adhere to the prohibition on advisory opinions as a prudential matter).
(in this case, where the CCA affirmed a rape conviction, set aside a sexual assault conviction and the sentence, and remanded the case to the convening authority to either (1) order a rehearing on the sexual assault offense and the sentence, (2) dismiss the sexual assault offense and order a rehearing on the sentence, or (3) dismiss the sexual assault offense and reassess the sentence, affirming no more than a DD, confinement for 10 years, total forfeitures, and reduction to E-1, the CCA was not authorized to provide what amounted to an advisory opinion by declaring what sentence to confinement it would accept as appropriate; such an advisory opinion would improperly influence what is supposed to be an independent assessment by the convening authority).
2004
(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).