Term: 2017
Docket: 16-1423
Ortiz v. United States
- Pro
16-1423 ORTIZ V. UNITED STATES DECISION BELOW: 76 M.J. 189 CONSOLIDATED WITH 16-961 AND 16-1017 FOR ONE HOUR ORAL ARGUMENT. IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE CASES IN NOS. 16- 961 AND 16-1017 UNDER 28 U. S. C. § 1259(3). DALMAZZI v. UNITED STATES, 16-961 AND COX v. UNITED STATES, 16-1017 DISMISSED AS IMPROVIDENTLY GRANTED. CERT. GRANTED 9/28/2017 QUESTION PRESENTED: Since shortly after the Civil War, federal law has required specific authorization from Congress before active-duty military officers may hold a "civil office,” including positions that require "an appointment by the President by and with the advice and consent of the Senate." 10 U.S.C. § 973(b)(2)(A)(ii). After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as an "additional judge" of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve as an appellate military judge on the U.S. Air Force Court of Criminal Appeals (AFCCA), including on the panel that heard (and rejected) Petitioner's appeal of his conviction by court-martial. The U.S. Court of Appeals for the Armed Forces (CAAF) rejected Petitioner's objections to such dual-officeholding, concluding that any statutory or constitutional infirmities with such dual service implicated Judge Mitchell's CMCR position, and not his eligibility to continue to serve on the AFCCA. The Questions Presented are: 1. Whether Judge Mitchell's service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii). 2. Whether Judge Mitchell's simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause. LOWER COURT CASE NUMBER: 16-0671
In the 2017 case Ortiz v. United States, the Supreme Court ruled that military courts are part of the executive branch and not bound by rules governing "inferior" courts as defined in Article I of the Constitution. The court upheld a decision made by an Air Force appeals court to convict Keanu Ortiz, an airman first class convicted of possessing and distributing child pornography. His lawyers argued that Judge Martin Mitchell should not have been allowed to participate in his conviction because he had already served on another military appellate panel reviewing his case - a violation according to civilian law principles regarding judicial appointments under Article I's Appointments Clause. However, Justice Elena Kagan wrote for unanimous court stating that these restrictions do not apply since Congress established military courts under its constitutional authority over armed forces rather than its power to create other types of tribunals.
In the dissenting opinion for Ortiz v. United States, Justice Alito argued that the case should have been dismissed due to lack of jurisdiction. He contended that under 10 U.S.C § 973(b)(2)(A), military officers cannot hold a civil office in the federal government and since Judge Mitchell served on both the Court of Military Commission Review (CMCR) and Air Force's Court of Criminal Appeals (CCA), his dual service was unlawful. Therefore, any decisions he made while serving on these courts were invalid including this one which led to Ortiz’s conviction. Furthermore, Justice Alito disagreed with majority's reliance on Neder v. United States where harmless-error analysis was applied because it did not involve an issue related to structural error or subject-matter jurisdiction as in this case.
