Theories of Jurisdiction

Discussion of the theories of jurisdiction for extraordinary writs:

  1. Theories of JurisdictionThe authority of the appellate courts to review a court- martial on direct review.
    1. Article 66, UCMJ—Court of Criminal Appeals jurisdiction. Every court-martial in which the approved sentence extends to death, dismissal, punitive discharge or confinement for one year or more.
    2. Article 67, UCMJ—Court of Appeals for the Armed Forces jurisdiction. Every court-martial in which the sentence as affirmed by a Court of Criminal Appeals extends to death . . . cases certified by the Judge Advocate General . . . and cases reviewed by Courts of Criminal Appeals where accused shows good cause for grant of review.
    3. Article 69, UCMJ—The Court of Criminal Appeals may review any court-martial where action was taken by the Judge Advocate General pursuant to his authority under Article 69, or has been sent to the Court by the Judge Advocate General for review.
  2.  The authority to determine a matter that may reach the actual jurisdiction of the court.
    1. San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F. Ct. Crim. App. 1996). Petition for writ of mandamus to open Article 32 hearing to public where USAF major charged with murder of child. Court found jurisdiction to consider petition for extraordinary relief in exercising supervisory authority over court-martial process, and over cases that may potentially reach court on appeal. Since Article 32 hearing is integral part of court-martial process, then court has jurisdiction to supervise each tier of military justice process. And see, The Denver Post Corp. v. the U.S. and CPT Robert Ayers, Army No. 20041215 (February 23, 2005).
    2. U.S.N.M.C.M.R. v. Carlucci, et al, 26 M.J. 328 (C.M.A. 1988); Waller v. Swift, 30 M.J. 139 (C.M.A. 1990). (“The sentence adjudged by the court-martial included a punitive discharge and so was of a severity that would have authorized direct appellate review by this court. Indeed, even in its commuted form, the sentence is of such severity.” Id. at 142). See also Addis v. Thorsen, 32 M.J. 777 (C.G.C.M.R. 1991).
  3. The authority to determine matters incidental to the court’s exercise of its primary jurisdiction, such as ensuring adherence to a court order. Boudreaux v. U.S.N.M.C.M.R., 28 M.J. 181 (C.M.A. 1989); United States v. Montesinos, 28 M.J. 38, n.3 (C.M.A. 1989) (Because the integrity of the judicial process is at stake, appellate courts can issue extraordinary writs on their own motion).
  4.  The broad authority to determine matters that fall within the supervisory function of administering the military justice system.
    1. Unger v. Zemniak, 27 M.J. 349 (C.M.A. 1989). Military appellate courts have jurisdiction to grant extraordinary relief under the All Writs Act over courts-martial that do not qualify for review in the ordinary course of appeal.
    2. Jones v. Commander, 18 M.J. 198 (C.M.A. 1984) (Everett, C.J., dissenting). The court refused to exercise writ jurisdiction over a nonjudicial punishment proceeding.

Criminal Appeals jurisdiction

nonjudicial punishment proceeding