Ortiz v. United States

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Supreme Court of the United States
Ortiz v. United States
Term: 2017
Important Dates
Argument: January 16, 2018
Decided: June 22, 2018
Outcome
United States Court of Appeals for the Armed Forces affirmed
Vote
7 - 2
Majority
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Sonia Sotomayor • Elena Kagan
Concurring
Clarence Thomas
Dissenting
Samuel Alito • Neil Gorsuch


Ortiz v. United States is a case argued during the October 2017 term of the U.S. Supreme Court. Argument in the cases was held on January 16, 2018. The case came on a writ of certiorari to the United States Court of Appeals for the Armed Forces. The court consolidated arguments in the case with arguments in Cox v. United States and Dalmazzi v. United States.

The issue in this case was whether a judge's service on the United States Court of Military Commission Review disqualifies the judge from also serving on the Air Force Court of Criminal Appeals.

HIGHLIGHTS
  • The case: A United States Airman challenged his criminal conviction on the grounds that one of the judges on the panel that heard her appeal was also a judge on the United States Court of Military Commission Review and should have been disqualified.
  • The issue: Does service on the U.S. Court of Military Commission Review disqualify a judge from also serving on the Air Force Court of Criminal Appeals?
  • The outcome: On a vote 7 - 2, the Supreme Court affirmed the ruling of the United States Court of Appeals for the Armed Forces.[1]


    • In brief: Keanu D. W. Ortiz appealed his criminal conviction to the United States Air Force Court of Criminal Appeals (CCA). After the CCA affirmed his conviction, he appealed to the United States Court of Appeals for the Armed Forces (CAAF), arguing that the CCA's decision should be invalidated on the grounds that one of the CCA judges was also a judge on the United States Court of Military Commission Review (USCMCR) and so should have been disqualified from serving as a CCA judge. The issue on appeal was whether simultaneous service on the CCA by a United States Court of Military Commission Review (USCMCR) judge violates the long-held rule that active-duty military officers generally may not hold civil governmental posts.

    You can review the lower court's opinion here.[2]

    Background

    Legal question

    This was a case about the appointment of judges to military appellate courts when they are also serving on the United States Court of Military Commission Review (CMCR). The CMCR is composed of both military and civilian judges and has appellate jurisdiction over all appeals from United States Military courts with regard to military commission cases. Generally, active-duty military officers are barred from simultaneously holding a civilian governmental post. The issue in this case was whether service on the CMCR, a civilian post, means that a CMCR judge cannot simultaneously serve as a member of the military on a military court.[2]

    Case background

    Airman First Class Keanu D. W. Ortiz was convicted by a military judge on charges related to child pornography. The United States Air Force Court of Criminal Appeals (CCA) upheld the judge's decision. Ortiz then asked the CAAF to review the CCA's decision, arguing that the participation of United States Court of Military Commission Review (USCMCR) Judge Martin T. Mitchell on the CCA panel invalidated the panel's decision.[2]

    Panel opinion

    The court addressed whether Judge Mitchell was statutorily authorized to sit on the CCA, examining the statute that prohibited active duty military officers from serving in civilian posts.[3] The CAAF concluded that the prohibition applied to the civil office--in this case, to the USCMCR--and not to the CCA:

    “ While there is much that is unsettled about this situation, the aim of the statute is clear. The evil sought to be protected against is the unauthorized holding of civil office by officers of the armed forces on active duty, which is thought to threaten 'civilian supremacy in the conduct of governmental affairs.' Thus, the prohibitions in the statute are aimed at the holding of 'civil office' (here, civil office requiring presidential appointment with Senate advice and consent) rather than the performance of assigned military duty. Section 973 might prohibit Judge Mitchell from holding office at the USCMCR—a question that is not before us—but nothing in the text suggests that it prohibits Judge Mitchell from carrying out his assigned military duties at the CCA.Cite error: Invalid <ref> tag; invalid names, e.g. too many[4][5] ”

    The CAAF did not conclude that Judge Mitchell could not serve on the USCMCR; rather, it determined that if the statute applied in this situation, the conflict would only affect his ability to serve on the USCMCR. The court concluded that his participation on the CCA panel that decided Ortiz's case was lawful.

    The court affirmed the decision of the CCA, and Ortiz appealed to the United States Supreme Court.[2]

    Petitioner's challenge

    Keanu D. W. Ortiz, the petitioner, challenged the holding of the United States Court of Appeals for the Armed Forces. Ortiz argued that Judge Mitchell was not permitted to simultaneously serve as a USCMCR judge and a CCA judge.[6]

    Certiorari granted

    On May 19, 2017, Keanu D. W. Ortiz, the petitioner, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the Armed Forces. The U.S. Supreme Court granted Ortiz's request for certiorari on September 28, 2017, consolidating arguments in the case with arguments in Cox v. United States and Dalmazzi v. United States. Argument in the case was held on January 16, 2018.[6]

    Question presented

    Question presented:

    "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.

    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)."[6]

    Oral argument

    Audio

    • Audio of oral argument:[7]



    Transcript

    • Transcript of oral argument:[8]

    Outcome

    Decision

    On a vote 7 - 2, the Supreme Court affirmed the ruling of the United States Court of Appeals for the Armed Forces.

    Majority opinion

    Justice Elena Kagan wrote the opinion for the court majority, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.[1]

    Kagan first addressed an issue that neither party had raised: whether the court had jurisdiction to rule on appeals from the United States Court of Appeals for the Armed Forces (CAAF), since that court was created by Congress via Article I of the United States Constitution and is not an Article III court. Kagan and the majority concluded that the Supreme Court did have jurisdiction to hear CAAF appeals. Kagan wrote, "Congress has explicitly authorized us to undertake such review in 28 U. S. C. §1259." The majority's analysis of that question, Kagan continued, "leads us to conclude that the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." Moreover, she said, "we have routinely, and uncontroversially, exercised appellate jurisdiction over cases adjudicated in the non-Article III District of Columbia courts."[1]

    Kagan then turned to the issue on appeal: whether Judge Mitchell was permitted to simultaneously serve as a USCMCR judge and a CCA judge. Kagan concluded that neither federal law nor the Appointments Clause prohibited the simultaneous service. First, she wrote, federal law expressly permitted the Secretary of Defense to appoint Mitchell as a judge CMCR.

    “ The authorization in §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from the civil office holding ban—not just before but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a 'civil office. And once that happened, the President’s later appointment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the President’s appointment erased or otherwise negated the Secretary’s earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the Secretary had already done.[1][5] ”


    Kagan then rejected the plaintiffs' contention that Mitchell's simultaneous service violated the Appointments Clause:

    “ This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of 'incongruity' or 'incompatibility' to test the permissibility of holding two offices. As Ortiz himself acknowledges, he can cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service.


    And if we were ever to apply the Clause to dual officeholding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in 'undue influence' on his CCA colleagues. The CMCR does not review the CCA’s decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell’s views because he also sat on the CMCR—any more than we can imagine a judge on an Article III Court of Appeals yielding to a colleague because she did double duty on the Foreign Intelligence Surveillance Court of Review (another specialized court).[1][9][5]

    		”


    For those reasons, Kagan concluded, "There is no violation of the Appointments Clause."Cite error: The opening <ref> tag is malformed or has a bad name

    Concurrence by Justice Thomas

    Justice Clarence Thomas joined the majority's ruling and also wrote separately. Thomas wrote to emphasize his understanding of why the court had jurisdiction over CAAF appeals.

    “ I join the Court’s opinion in full, which persuasively explains why petitioner’s statutory and constitutional arguments lack merit. I also agree that the statute giving this Court appellate jurisdiction to review the decisions of the Court of Appeals for the Armed Forces (CAAF), 28 U. S. C. §1259, complies with Article III of the Constitution. I write separately to explain why that conclusion is consistent with the Founders’ understanding of judicial power—specifically, the distinction they drew between public and private rights . . . Because the CAAF exercises a judicial power, the statute giving this Court appellate jurisdiction over its decisions does not violate Article III.[1][10][5] ”


    Dissent by Justice Alito

    Justice Samuel Alito dissented from the court's ruling, joined by Justice Neil Gorsuch. Alito would have held that the court did not jurisdiction to hear CAAF appeals.

    “ Our appellate jurisdiction permits us to review one thing: the lawful exercise of judicial power. Lower federal courts exercise the judicial power of the United States. State courts exercise the judicial power of sovereign state governments. Even territorial courts, we have held, exercise the judicial power of the territorial governments set up by Congress. Executive Branch officers, on the other hand, cannot lawfully exercise the judicial power of any sovereign, no matter how court-like their decisionmaking process might appear. That means their decisions cannot be appealed directly to our Court . . . Courts-martial are older than the Republic and have always been understood to be Executive Branch entities that help the President, as Commander in Chief, to discipline the Armed Forces. As currently constituted, military tribunals do not comply with Article III, and thus they cannot exercise the Federal Government’s judicial power. That fact compels us to dismiss Ortiz’s petition for lack of jurisdiction.[1][5] ”


    Text of the opinion

    See also

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 United States Supreme Court, "Dalmazzi v. United States Opinion," June 22, 2018
    2. ↑ 2.0 2.1 2.2 2.3 U.S. Court of Appeals for the Armed Forces, United States of America v. Ortiz, April 17, 2017
    3. ↑ The CAAF first noted its decision in Dalmazzi' v. United States, which the United States Supreme Court consolidated with this case. Contrary to that case, in this case Judge Mitchell had already received his commission before his participated in Ortiz's case. Therefore, in contrast to Dalmazzi, the claims in this case were not moot.
    4. ↑ Internal citations omitted.
    5. ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ 6.0 6.1 6.2 Supreme Court of the United States, Ortiz v. United States Question Presented, September 28, 2017
    7. ↑ Supreme Court of the United States, "Dalmazzi v. United States and consolidated cases," argued January 16, 2018
    8. ↑ Supreme Court of the United States, Ortiz v. United States, argued January 16, 2018
    9. ↑ Quotations and citations omitted.
    10. ↑ Quotations and citations omitted.
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