|U.S. Court of Appeals|
for the Armed Forces
The Court should change Rule 21, but not in the way the proposal would change it. The Court should instead make it clear that if the supplement does not show good cause, the petition will ordinarily be denied (assuming it is within the Court's statutory jurisdiction). That requires a change to Rule 21(e). The Court, like any court, can of course notice issues when reviewing a matter that is properly before it, but the affirmative search for error, especially in cases where the appellant and appellate defense counsel are unable to identify any error (even so much as a Grostefon issue), is not a proper routine task for an appellate court. The mischief in the proposed change to Rule 21(a) -- substituting "should" for "must" -- is that it will only encourage the filing of yet more no-issue petitions, burdening the Court and the Central Legal Staff and sending the Court on a search for error that is basically incompatible with the judicial role. This is a habit the Court should finally kick.
When the Rules Advisory Committee considered this general issue some years ago, it divided 6-5 in favor of changing the Court's practice. The Court never explained why it did not approve the majority's recommendation. Nor have its procedural rulings in cases since then shed light on the Judges' thinking. Whatever the Court decides with respect to the Rules Advisory Committee's current proposal, it should articulate its reasons. Similarly, it would be helpful to the bar if the Court were to disclose the role, if any, played by the criteria in Rule 21(b)(5)(A) in the decision to grant review in any particular case. By analogy, Supreme Court decisions often explain more or less precisely why certiorari has been granted.
In one respect the Committee's Comment may not be quite correct. It suggests that litigation over the "good cause" issue has been framed in jurisdictional terms. Is this really a jurisdictional matter (which would be the case if review were sought, for example, of a decision by a state court-martial, a military commission or a correction board) or a question of whether the petition ought to be granted? That is, if a petitioner fails to show good cause, the result should not be dismissal (the action ordinarily taken when a court lacks jurisdiction), but simply denial. Again by way of analogy, when a petition for certiorari is filed with the Supreme Court and the Justices find that it does not satisfy the criteria for granting certiorari, it is simply denied and not dismissed.If you comment on the government's site, please cross-comment here (using your real name, of course).