United States v. Onate

6 M.J. 985, 1979 CMR LEXIS 743
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 20, 1979
DocketNCM 78 1202
StatusPublished
Cited by2 cases

This text of 6 M.J. 985 (United States v. Onate) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Onate, 6 M.J. 985, 1979 CMR LEXIS 743 (usnmcmilrev 1979).

Opinions

BAUM, Senior Judge:

Appellant has assigned three errors before this Court. The first two are summarily rejected. The third merits discussion.

[986]*986In his last assignment, appellant contends that the military judge erred in denying the defense challenge of him for cause. The challenge was based in part on the fact that after assuming the bench, the judge had continued to act as a court-martial review officer by writing two reviews for the staff judge advocate, both of which were unrelated to this case and completed before appellant’s trial. Furthermore, while a member of the trial judiciary, the military judge continued to perform duties as advisor to the Marine Exchange, continued a certain amount of work as command labor counsel, and continued to act as counsel in a suit against the Department of the Navy involving a civil service employee. The judge made it clear that the staff judge advocate did not write his fitness reports and that no pressure had been brought to bear upon him because of work for the staff judge advocate. The military judge stated that he had “absolute discretion to refuse anything of that nature,” that he was able to sit independently in this case even though he had done some work for the staff judge advocate, and that he perceived no problems because of this work that would warrant recusing himself. Despite these assurances, appellant challenged the judge for cause and the challenge was denied.

Appellant now asserts before this Court that the judge’s denial of the challenge was error because of violations of Canon 5 F of the Code of Judicial Conduct, which admonishes that “a judge should not practice law,” and Standards §§ 1.5 and 1.7, with commentaries, in the American Bar Association Standards relating to the Function of the Trial Judge. A.B.A. Standards §§ 1.5 and 1.7, distinct in scope and purpose from Canon 5 F, emphasize the importance of recusal when the judge has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned. In that regard, appellant notes that the commentary to Standard § 1.5 states: “Any appearance that suggests a special relationship between the district attorney’s office and the judiciary is certain to create doubts concerning the impartial administration of justice.” Appellant then poses the rhetorical question, “What more special relationship could there be with the military’s equivalent to the district attorney’s office than to have the military judge actually composing the reviews on which the staff judge advocate will later sign off!” See United States v. Morrison, 3 M.J. 408 (C.M.A.1977), where Chief Judge Fletcher in his opinion concurring in the result equates the staff judge advocate with chief prosecutor for the command.

At the outset, we note that, despite the Government’s statement to the contrary, the Code of Judicial Conduct has been made applicable to Navy and Marine Corps trial judges by regulation. Section 0152 and appendix A-1-p(1) of the Manual of the Judge Advocate General of the Navy (JAG Manual) make the American Bar Association’s Code of Judicial Conduct specifically applicable to Navy and Marine Corps trial judges. Also applicable are the A.B.A. Standards relating to The Function of the Trial Judge, unless the standards are clearly inconsistent with the Uniform Code of Military Justice, the JAG Manual and applicable departmental regulations. Accordingly, seeing nothing in these two standards which is inconsistent with the Uniform Code of Military Justice, the Manual for Courts-Martial, United States, 1969 (Revised edition), the JAG Manual, or other Navy Department regulations, we find the Standards cited by appellant to have been applicable to the judge in this case.

Canon 5 F of the Code of Judicial Conduct says, without commentary, that a judge should not practice law. The record is unclear as to the services the military judge rendered to the Marine Exchange or in connection with command labor matters. Assuming he gave legal advice in these areas, we have no difficulty in concluding that these duties entailed practicing law. Certainly, the judge’s role as an associate attorney in a law suit involves the practice of law in its purest sense. Regarding the drafting of staff judge advocate reviews, there is no evidence that the judge was reviewing cases at the time of this trial. It [987]*987is clear, however, that he had performed such services since assuming the bench. The drafting of a staff judge advocate review entails rendering advice as to the legal sufficiency of court-martial proceedings and recommending appropriate disposition of criminal judicial proceedings. The military judge thereby assists the staff judge advocate in preparing advice to his client, the general court-martial authority. This assistance is practicing law. We conclude that these extra-judicial activities of the military judge were contrary to the rule set forth in Canon 5 F of the Code of Judicial Conduct.

The Department of the Navy, however, adopted in toto the Code of Judicial Conduct, which includes the “Compliance” provision, paragraph A of which provides that part-time judges are not required to comply with Canon 5 F and certain other provisions. The definition of a “part-time judge” includes those who serve on a continuing basis but are permitted by law to devote time to some other profession or occupation “and whose compensation for that reason is less than that of a full-time judge.” Even a part-time judge, however:

[Sjhould not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in a proceeding in which he had served as a judge or in any other proceeding related thereto. [Compliance provision A(2)].

The Code of Judicial Conduct espouses the norm that, in the judgment of the American Bar Association, judges should observe. Generally speaking, states adopting the Code of Judicial Conduct have not done so without making substantial changes or substitutions deemed necessary to harmonize the Codal provisions with the customs and practices of the particular state. See, e. g., National College Of The State Judiciary, Ethics for Judges Ch. IV (2d ed. 1975). Courts within the military justice system are courts of limited jurisdiction. Their trial judges are military personnel governed by military regulations, many of which regulations have nothing to do with judicial duties. It would seem that careful tailoring and selective adoption of certain provisions of the Code of Judicial Conduct would have been the most appropriate course for the naval service, but, curiously, the Code has been adopted without change or reservation. It therefore requires imaginative and, frequently, tortured construction when attempts are made to apply the canons to military judges’ conduct.

SECNAVINST 5813.7 of 18 June 1974, establishing the Marine Corps Special Court-Martial Judiciary, calls for “full-time” judges, but further provides that the judge can be made “available for the performance, outside the Judiciary, of legal duties of a nature not incompatible with his status as a military judge.” Ignoring the inapplicable language regarding compensation in the Compliance provision of the Code of Judicial Conduct, when we apply the provision to this case, we conclude that the military judge here, when made available for other duties, is a judge who serves on a continuing basis but is permitted by law to devote time to some other profession or occupation.

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Related

United States v. Hagen
9 M.J. 659 (U.S. Navy-Marine Corps Court of Military Review, 1980)
United States v. Jones
7 M.J. 806 (U.S. Navy-Marine Corps Court of Military Review, 1979)

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Bluebook (online)
6 M.J. 985, 1979 CMR LEXIS 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-onate-usnmcmilrev-1979.