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An overview of the qualifications to be a military judge

Article 26, UCMJ

Military judge shall be a commissioned officer who is a member of the bar of a Federal court or the highest court of a State and who is certified to be qualified for duty as a military judge by TJAG.

Member of a bar

Military judge’s “inactive status” with her state bar nevertheless equated to her being a “member of the Bar” of Pennsylvania as contemplated by Article 26(b). United States v. Cloud, ARMY 9800299 (A. Ct. Crim. App., Dec. 14, 2000) (unpub), aff’d, 55 M.J. 164 (C.A.A.F. 2001) (summary disposition); United States v. Brown, ARMY 9801503 (A. Ct. Crim. App. Dec. 11, 2000) (unpub), aff’d, 55 M.J. 366 (C.A.A.F. 2001) (summary disposition) (ACCA also considered fact that judge, although “inactive” in state bar, was a member in good standing of “this [the ACCA] Federal bar”). See also United States v. Corona, 55 M.J. 247 (C.A.A.F. 2001) (summary disposition).

Reserve Judges

Change to RCM 502; Executive Order removed holdover provision concerning qualifications for military judges.

MCM had mandated that military judges be commissioned officers on active duty in the armed forces. The current RCM 502(c) deletes that requirement, enabling reserve military judges to try cases while on active duty, inactive duty training, or inactive duty training and travel.

Issue: Does this mean reservists can try GCM and SPCMs? Generally, no. Only military judges assigned directly to TJAG and TJAG’s delegate (Trial Judiciary) may preside at GCMs. AR 27-10, paras. 8-1(c)(2), 8-2(a).

Detail. AR 27-10, para. 5-3.

Detail is a ministerial function to be exercised

by the Chief Trial Judge, U.S. Army Judiciary, or his or her delegate. The order detailing military judge must be in writing, included in the record of trial or announced orally on the record.

Detailing in a joint environment. Military judges are normally detailed according to the regulations of the “Secretary concerned.” In a joint environment, there is no “Secretary concerned.” See Captains William H. Walsh and Thomas A. Dukes, Jr., The Joint Commander as Convening Authority: Analysis of a Test Case, 46 A.F. L. Rev. 195 (1999). Detailing should be agreed upon by convening authority, SJA, and defense. Id.

Appellate Judges

United States v. Walker, 60 M.J. 354 (C.A.A.F. 2004). In a capital case, the CAAF granted the accused’s motion for extraordinary relief regarding the composition of judges on his N-MCCA panel. In 1995, the accused’s case was assigned to the N-MCCA panel 3. Over the years the composition of panel 3 changed resulting in the presence of only one judge in the spring of 2004. Most N-MCCA judges, to include the Chief Judge, were disqualified in the case. Based on the Chief Judge’s disqualification the TJAG under Article 66, UCMJ selected a new Chief Judge to handle the accused’s case.

Immediately prior to the TJAG’s appointment, the original Chief Judge established a new court policy establishing “an order of precedence among judges on the court for the purpose of exercising the responsibility to make panel assignments in a particular case in the event of the absence or recusal of the chief judge.” The problem at issue occurred when the substitute Chief Judge appointed by the TJAG retired requiring the appointment of another substitute Chief Judge to proceed over the accused’s case. At that time the N-MCCA attempted to use the new policy letter to select a substitute Chief Judge with objection from the accused. The CAAF held because the N-MCCA did not use the policy to select the first substitute Chief Judge it was not appropriate to use the policy to select the second substitute Chief Judge and a substitute appointment by the TJAG was necessary.

United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006). A Member of Congress may not serve as an appellate judge for a service court because of the Ineligibility and Incompatibility Clauses of the United States Constitution. The CAAF reasoned that no Person holding any office under the United States [i.e., a service court judicial position] should simultaneously serve as a Member of either House during his Continuance in Office. In the case, Senator Lindsey Graham, a reserve military judge on the AFCCA, was challenged.

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Tenure/Fixed Term and Appointment

Settled issue regarding appointment of civilians to Coast Guard Court of Criminal Appeals. Edmond v. United States, 520 U.S. 651 (1997), aff’g United States v. Ryder, 44 M.J. 9 (C.A.A.F. 1996) (holding that civilian judges on Coast Guard Court of Criminal Appeals are inferior officers and do not require additional presidential appointment; therefore, the Congressional delegation of appointment authority to Secretary of Transportation to appoint judges is consistent with Appointments Clause. See also United States v. Graf, 35 M.J. 450 (C.M.A. 1992); United States v. Weiss, 36 M.J. 224 (C.M.A. 1993), aff’d, 510 U.S. 163 (1994). United States v. Grindstaff, 45 M.J. 634 (N-M. Ct. Crim. App. 1997) (judges of courts of criminal appeals, military judges, and convening authorities are not principal officers under Appointments Clause and do not require a second appointment).

United States v. Paulk, 66 M.J. 641 (A.F. Ct. Crim. App. 2008). Accused, an Air Force officer, pled guilty to several offenses and was sentenced to confinement for 30 days and a dismissal. On appeal, the defense argued that the Equal Protection component of the Fifth Amendment’s Due Process Clause was violated because the military judge and the appellate judges serve without a fixed term of office, while those in the Army and Coast Guard judiciary enjoy such protection by regulation. “Essentially, the appellant is saying that either all or none of the services should have fixed terms, but the mixed bag currently existing violates constitutional imperatives of equal protection.” The court rejected the defense argument.

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