                                  IN THE CASE OF


                          UNITED STATES, Appellant

                                           v.

                       Dathan O. CHISHOLM, Sergeant
                            U.S Army, Appellee

                                    No. 03-5003
                            Crim. App. No. 9900240

       United States Court of Appeals for the Armed Forces

                            Argued October 8, 2003

                         Decided November 18, 2003


                                       Counsel


For Appellant: Captain Gregory M. Kelch (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler Jr.
    and Captain Terri J. Erisman (on brief); Captain Mary E.
    Card.


For Appellee: Captain Abraham F. Carpio (argued); Colonel
    Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and
    Major Mark L. Johnson (on brief).



Military Judges:      Stephen V. Saynisch and Nancy A. Higgins




        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Chisholm, No. 03-5003/AR



PER CURIAM

   At a general court-martial composed of officer members,

Appellee was convicted, contrary to his pleas, of conspiracy to

commit rape, conspiracy to obstruct justice, making a false

official statement, and rape, in violation of Articles 81, 107

and 120, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. §§ 881, 907 and 920 (2000), respectively.   He was

sentenced to a bad-conduct discharge, confinement for four

years, total forfeitures, and reduction to the lowest enlisted

grade.   The convening authority approved these results.    Before

the Army Court of Criminal Appeals, he requested a reduction in

sentence based upon a claim of dilatory post-trial processing in

light of a sixteen-month delay between the completion of trial

and the convening authority action.   The court, after concluding

that the post-trial delay was unexplained and excessive, reduced

the period of confinement by three months, and otherwise

approved the findings and sentence.   United States v. Chisholm,

58 M.J. 733, 739 (A. Ct. Crim. App. 2003).    The Government filed

a motion for reconsideration en banc, which the court denied in

an unpublished decision.   United States v. Chisholm, ARMY

9900240 (A. Ct. Crim. App. March 18, 2003).




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     Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2000), the Judge Advocate General of the Army submitted the

case to our Court, certifying the following issues:

          I. WHETHER THE UNITED STATES ARMY COURT OF
          CRIMINAL APPEALS’ OPINION IN UNITED STATES
          V. CHISHOLM, ARMY No. 9900240 (Army Ct.
          Crim. App. January 24, 2003) IMPROPERLY
          VESTED MILITARY TRIAL JUDGES WITH POWER TO
          ISSUE INTERLOCUTORY ORDERS AND AUTHORITY TO
          ADJUDCATE AND REMEDY POST-TRIAL PROCESSING
          DELAY CLAIMS?

          II. WHETHER THE UNITED STATES ARMY COURT OF
          CRIMINAL APPEALS’ DECISION CONCERNING THE
          ROLE OF THE MILITARY JUDGE IN ADJUDICATING
          AND REMEDYING POST-TRIAL PROCESSING DELAY
          CLAIMS CONSTITUTES AN ADVISORY OPINION?

     In the present appeal, the Government does not challenge

the conclusion of the court below that the post-trial processing

of Appellee’s case was “dilatory,” 58 M.J. at 734, nor does the

Government challenge the court’s modification of the sentence.

Likewise, Appellee does not challenge the adequacy of the relief

provided by the court below.   Neither party contends that the

court erred in approving the findings and sentence as modified.

Exercising our authority to review cases submitted under Article

67, we have determined that there are no legal impediments to

affirming the findings and sentence as approved by the Court of

Criminal Appeals.   The certified issues, and the Government’s

brief, focus solely on the portion of the opinion below

concerning alternative means of addressing post-trial delays,



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with particular emphasis on the role of military judges in post-

trial processing.   See 58 M.J. at 736-39.

     We shall address the certified issues in reverse order,

considering first the question of whether the court below issued

an impermissible advisory opinion.    An advisory opinion is an

opinion issued by a court on a matter that does not involve a

justiciable case or controversy between adverse parties.     See

Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997

(1994).   Courts established under Article III of the

Constitution may not issue advisory opinions.    See U.S. Const.,

Art. III, § 2; Lawrence H. Tribe, American Constitutional Law

§ 3-9, at 328-30 (3d ed. 2000).   Courts established under

Article I of the Constitution, such as this Court, generally

adhere to the prohibition on advisory opinions as a prudential

matter.   See United States v. Clay, 10 M.J. 269 (C.M.A. 1981).

     In the present case, the Court of Criminal Appeals had

jurisdiction to review Appellee’s court-martial conviction under

Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1)(2000). The court

was obligated by Article 66(b)(1) to address the validity of the

findings and sentence of the court-martial.    In particular, the

court was presented with a concrete dispute between adverse

parties, Appellee and the Government, regarding the

appropriateness of the sentence in light of unreasonable post-

trial delay.   Under these circumstances, the opinion of the


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court below did not constitute an impermissible advisory

opinion.   See United States v. Campbell, 52 M.J. 386, 387

(C.A.A.F. 2000) (“The parties in a subsequent case are free to

argue that specific aspects of an opinion . . . should be

treated as non-binding dicta, but such a possibility does not

transform a decision into an inappropriate advisory opinion.”)

Accordingly, we answer Issue II in the negative.

     Issue I raises two separate questions: (1) whether the

pertinent portion of the opinion below represents a valid

analysis of the law concerning the post-trial responsibilities

of a military judge; and (2) whether that aspect of the opinion

constitutes a precedential holding or non-binding dicta.     These

are the type of questions that may be resolved in the normal

course of trial and appellate litigation, should such questions

arise in an adversarial setting in a future case.   In the

present case, however, neither party has challenged the post-

trial actions of the military judge who presided at Appellee’s

court-martial, and Appellee has no personal stake in the outcome

of any views that we might express on the post-trial

responsibilities of military judges.

     In the absence of a challenge by a party to a concrete

ruling by a military judge in an adversarial setting, we

conclude that consideration of Issue I under the circumstances

of the present case would be premature.   Cf. Tribe, supra, § 3-


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10 at 334 (discussing prudential aspects of the ripeness

doctrine).   Accordingly, we decline to answer the first

certified issue.



                             Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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