IN RE: B.M. Appellant (2024)

The Judge Advocate General of the Navy certified the following two questions arising from the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) in In re B.M., 83 M.J. 704 (N-M. Ct. Crim. App. 2023):

I. M.R.E. 513 governs the procedures for production and in camera review of patient records that “pertain to” communications to a psychotherapist. The military judge applied R.C.M. 703 to order production and conduct an in camera review of Major B.M.’s diagnosis and treatment. Did the military judge err by applying the narrow scope of the M.R.E. 513(a) privilege defined in [United States v.] Mellette[, 82 M.J. 374 (C.A.A.F. 2022),] to bypass the procedural requirements of M.R.E. 513(e)?

II. The Army [Court of Criminal Appeals] held no constitutional exception to M.R.E. 513 exists. The Navy-Marine Corps Court of Criminal Appeals ruled the Constitution required production of mental health records. The resulting disparity in appellate precedent precludes uniform application of the law. Should [J.M. v.] Payton-O'Brien[, 76 M.J. 782 (N-M. Ct. Crim. App. 2017),] be overturned?

B.M. v. United States, 83 M.J. 463, 463 (C.A.A.F. 2023). For reasons that we will explain, we cannot fully answer either of these questions because of the unusual procedural posture of this case. We conclude, however, that the decision of the NMCCA should be affirmed.

I. Background

A convening authority referred charges against Lieutenant Commander Dominic R. Bailey (the accused) to a general court-martial. These charges included two specifications alleging that the accused did acts constituting abusive sexual contact and three specifications alleging that he did acts constituting assault consummated by a battery in violation, respectively, of Articles 120 and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928 (2018). All the specifications alleged that the victim of these offenses was Major B.M. (the named victim).

At the accused's request, the military judge ordered a military health facility to produce nonprivileged portions of the named victim's mental health records that were limited to her diagnoses and treatments. In issuing this order, the military judge relied on the general procedure for ordering the production of evidence in Rule for Courts-Martial (R.C.M.) 703 instead of the special procedure for determining the admissibility of patient records or communications in Military Rule of Evidence (M.R.E.) 513(e). The military judge explained that “diagnoses, prescriptions, and treatment are not covered by [the psychotherapist-patient privilege in] M.R.E. 513 and if that is the case then the applicable rule is R.C.M. 703 for the production of these records.”

The military health facility attempted to comply with the military judge's order by producing certain records. In reviewing these records in camera, the military judge learned that, contrary to her order, the documents were not limited to diagnoses and treatments but also contained some communications protected by the psychotherapist-patient privilege established by M.R.E. 513(a). The military judge further determined that, if the accused were tried by court-martial, disclosure of certain portions of these records would be “constitutionally required” in order “to guarantee the accused a meaningful opportunity to present a complete defense.” The military judge asked the named victim if she would waive her privilege with respect to the documents that contained exculpatory information so that the accused could see the documents. The named victim declined to waive her privilege. In response, the military judge abated the court-martial proceeding and ordered the records sealed.

The named victim then petitioned the NMCCA for extraordinary relief in the nature of a writ of mandamus and a stay of proceedings. In re B.M., 83 M.J. at 706. She asked the NMCCA to order the military judge to (1) seal or destroy her mental health records; (2) lift the abatement order; and (3) disqualify herself so that another military judge could preside over the court-martial. Id. The Government did not file an appeal seeking to overturn the abatement order. Id. at 708 n.17.

The NMCCA determined that it could not provide the named victim with any relief. It denied the named victim's request for an order directing the military judge to seal or destroy the mental health records, explaining: “[B]ecause the records are now sealed in accordance with the military judge's order, we find no further remedy is necessary.” Id. at 711. The NMCCA also refused to lift the abatement order, explaining:

[T]he military judge did not abuse her discretion when she abated the trial in light of information learned while reviewing the records over which Petitioner asserted a privilege. Her inadvertent review of privileged material did not, in any respect, waive Petitioner's privilege, but it did alert the military judge to the fact that the records contained evidence of both confabulation and inconsistent statements made by Petitioner which would be constitutionally required to be produced because the records were exculpatory ․ [W]e find that the military judge's decision was within the range of choices reasonably arising from the applicable facts and the law.

Id. at 717 (footnote omitted). The NMCCA further denied the named victim's request for an order disqualifying the military judge, explaining that “this matter is not ripe for consideration because the case is abated.” Id.

The named victim filed a petition for review in this Court, but this Court dismissed the petition for lack of jurisdiction. B.M. v. United States, 83 M.J. 465 (C.A.A.F. 2023). Following this Court's dismissal of the named victim's petition, the Judge Advocate General of the Navy certified for review the two questions quoted above.

II. Jurisdiction

Although this Court did not have jurisdiction to consider the named victim's petition for review, see M.W. v. United States, 83 M.J. 361, 362, 364-65 (C.A.A.F 2023) (holding that this Court lacks jurisdiction to review a petition filed by a victim of an offense), this Court does have jurisdiction to review questions certified by a Judge Advocate General, pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2018). This Court, however, does not issue advisory opinions even if it has jurisdiction. United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003) (explaining that this Court “generally adhere[s] to the prohibition on advisory opinions as a prudential matter”). An advisory opinion is a ruling on a legal question “which cannot affect the rights of the litigants in the case before [the court].” St. Pierre v. United States, 319 U.S. 41, 42 (1943) (per curiam); see also Chisholm, 59 M.J. at 152 (“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.”). Similarly, this Court does not answer questions that are not ripe for decision or that have become moot. United States v. Wall, 79 M.J. 456, 459 (C.A.A.F. 2020) (explaining that this Court generally adheres to the principle that issues not ripe for appeal cannot be decided); United States v. McIvor, 21 C.M.A. 156, 158, 44 C.M.R. 210, 212 (1972) (declining to decide a moot certified question). Finally, as a prudential matter, this Court follows the principles of standing that apply to Article III courts. United States v. Wuterich, 67 M.J. 63, 69 (C.A.A.F. 2008). In accordance with these principles, this Court only addresses claims raised by parties who can show “an injury in fact, causation, and redressability.” Id. (citing Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008)).

III. Discussion

A. Certified Question I

The first certified question asks in relevant part whether “the military judge err[ed] by applying the narrow scope of the M.R.E. 513(a) privilege defined in [United States v.] Mellette[, 82 M.J. 374 (C.A.A.F. 2022),] to bypass the procedural requirements of M.R.E. 513(e).”

Four preliminary points of explanation may help to clarify the meaning of this question. First, the referenced M.R.E. 513(a) creates a privilege allowing a patient “to refuse to disclose ․ a confidential communication made between the patient and a psychotherapist ․ if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.” Second, this Court held in the referenced Mellette decision that while the privilege in M.R.E. 513(a) protects certain communications between a patient and a psychotherapist, “diagnoses and treatments contained within medical records are not themselves uniformly privileged under M.R.E. 513.” 82 M.J. at 375. Third, the referenced M.R.E. 513(e) establishes a “Procedure to Determine Admissibility of Patient Records or Communication” that are or may be protected by the privilege established in M.R.E. 513(a). Fourth, as described above, the military judge in this case decided not to follow the special procedures set forth in M.R.E. 513(e), but instead followed the general procedures for ordering the production of evidence in R.C.M. 703.

The procedural posture in which we confront this certified question is unusual and perhaps unprecedented. Although the Judge Advocate General certified the question, the Government asks this Court to answer the question in the negative and to affirm the NMCCA's decision. The Government does not seek any relief from this Court based on this certified question. The named victim has submitted briefs “in support of the U.S. Navy Judge Advocate General's Certificate for Review,” but her position differs from that of the Government. The named victim argues that this Court should answer the first certified question in the affirmative, and she further requests three specific remedies. First, the named victim asks this Court to reverse the NMCCA and to lift the military judge's abatement order. Second, the named victim asks this Court to disqualify the military judge from further proceedings in this case based on her erroneous actions and exposure to privileged material. Third, the named victim asks that “her mental health records [be] returned to a privileged and protected status.” We consider the victim's arguments for each of these remedies in turn.

1. Lifting the Abatement Order

In support of her request that this Court lift the abatement order, the named victim contends that the military judge should not have looked at her medical records without following the procedures in M.R.E. 513(e). She asserts that any potentially exculpatory evidence that the military judge may have seen therefore came from “improperly divulged” privileged communications. (Internal quotation marks omitted.) (Citation omitted.) Finally, she argues that the military judge had no authority under either M.R.E. 513 or R.C.M. 703 to abate the court-martial proceedings based on such privileged communications.

Before addressing the merits of these arguments, we must consider a preliminary issue: whether the named victim initially had standing to challenge the abatement order by filing an extraordinary writ in the NMCCA. On this point, we observe that Article 6b(e)(1), UCMJ, 10 U.S.C. § 806b(e)(1), authorizes the victim of an offense to seek a writ of mandamus from a CCA only in specified circumstances. The provision states:

If the victim of an offense ․ believes ․ a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require ․ the court-martial to comply with the section (article) or rule.

Article 6b(e)(1), UCMJ (emphasis added). 1 The referenced “paragraph (4)” includes protections afforded by Article 6b(a), UCMJ, and by “M.R.E. 513, relating to the psychotherapist-patient privilege.” Id. § 806(e)(4)(A), (D).

We first consider whether the “court-martial ruling violates the rights of the victim afforded by” M.R.E. 513. The named victim argues that the military judge violated M.R.E. 513 by not following the procedures in M.R.E. 513(e), when she was required to do so, before examining her records. But the named victim does not argue, nor could she argue, that the abatement order—which she is asking this Court to lift—itself violated either the privilege afforded by M.R.E. 513(a) or the procedures in M.R.E. 513(e). The abatement order served only to stop the court-martial proceedings; it did not vitiate her privilege or require her to waive the privilege. The abatement order is thus not “a court-martial ruling [that] violates the rights of the victim afforded by” M.R.E. 513. 2

We next consider whether the “court-martial ruling violates the rights of the victim afforded by” Article 6b(a), UCMJ. This article grants victims certain rights, including a “right to proceedings free from unreasonable delay” and a “right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense.” Article 6b(a)(7), (9), UCMJ. We hold that these rights, while important, do not provide the named victim with standing to challenge the military judge's abatement order.

In reaching this holding, we draw guidance from the United States Supreme Court's decision in Linda R.S. v. Richard D., 410 U.S. 614 (1973). In that case, a state prosecutor declined to prosecute a father for not paying child support for his illegitimate child. Id. at 615-16. The mother of the child sued the prosecutor, requesting from the Court a declaration that the practice of not bringing criminal charges against the fathers of illegitimate children was unlawfully discriminatory. Id. at 616. The Supreme Court

held that the mother lacked standing to bring the lawsuit. Id. at 619. The Supreme Court explained:

[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State's criminal laws.

Id.

Although the Linda R.S. case arose in a different context, and specifically concerned the standing of a plaintiff to bring a civil lawsuit against a prosecutor, we find that the general principles described by the Supreme Court preclude us from lifting this abatement order at the named victim's request. Under Article 6b(a), UCMJ, the victim of an alleged offense has a right to be treated with fairness and respect and a right to proceedings free from unreasonable delay. But we are not convinced that these rights give the victim “a judicially cognizable interest” in the ultimate question of whether the government will or will not prosecute the accused. Because the abatement order is not “a court-martial ruling [that] violates the rights of the victim afforded by” Article 6b(a), UCMJ, the named victim therefore lacked standing to challenge the abatement order before the NMCCA, and she lacks standing before this Court.

Our decision does not mean that abatement orders are unreviewable. On the contrary, this Court has recognized that Article 62(a), UCMJ, 10 U.S.C § 862(a) (2018), authorizes the government to take an interlocutory appeal asking for the lifting of an abatement order. In United States v. True, the Court reasoned that an “abatement order ․ is the functional equivalent of a ‘ruling of the military judge which terminates the proceedings’ under Article 62(a), [UCMJ,]” and held that such a “ruling is a proper subject for appeal by the Government under this statute.” 28 M.J. 1, 2 (C.M.A. 1989) (quoting Article 62(a), UCMJ). But in this case, although the Government now says that it supports the named victim's arguments for lifting the abatement order, the Government did not file an Article 62, UCMJ, appeal asking the NMCCA to lift the abatement order. In re B.M., 83 M.J. at 708 n.17. Based on the language of Article 6b, UCMJ, and the principle established by the Supreme Court in Linda R.S., the named victim cannot assume the role of the Government and lacks standing.

2. Disqualification of the Military Judge

The named victim's second requested relief is disqualification of the military judge. Given our decision not to lift the abatement order, we agree with the NMCCA's determination that this request is not ripe for decision. In re B.M., 83 M.J. at 718. This conclusion does not preclude the named victim from challenging the military judge if the abatement order is lifted in the future, but we express no view on the issue of disqualification in this opinion.

3. Returning Records to a Privileged and Protected Status

Finally, we cannot grant the named victim's request to have her medical records returned to a privileged and protected status because, in our view, this remedy is moot. Any communications in the records that were privileged remain privileged. The named victim did not waive the privilege because she did not “voluntarily disclose[ ] or consent[ ] to disclosure of any significant part of” the privileged communications. M.R.E. 510(a). On the contrary, the named victim expressly declined to waive her privilege. Like the NMCCA, we therefore see no basis for concluding that the military judge's in camera viewing of privileged communications—even if done erroneously—diminished the victim's right to assert her psychotherapist-patient privilege. In re B.M., 83 M.J. at 717 & n.67. The military records are also already protected from disclosure because the military judge ordered them sealed and neither this Court nor the NMCCA has ordered them unsealed.

B. Certified Question II

The second certified question concerns a disagreement between the United States Army Court of Criminal Appeals (ACCA) and the NMCCA about whether there is a constitutional exception to the psychotherapist-patient privilege in M.R.E. 513. The question asks whether the NMCCA's decision in J.M. v. Payton-O'Brien, 76 M.J. 782 (N-M. Ct. Crim. App. 2017), should be overturned. Both the Government and the named victim ask us to answer this certified question in the affirmative.

Four preliminary points of background may also help clarify this question. First, the original version of M.R.E. 513, as promulgated in 1999, contained a constitutional exception that stated: “There is no privilege under this rule ․ when admission or disclosure of a communication is constitutionally required.” M.R.E. 513(d)(8) (2000 ed.). 3 Second, the President deleted this constitutional exception in 2015. 4 Third, the ACCA and the NMCCA have disagreed about the effect of the deletion of the constitutional exception. In United States v. Tinsley, the ACCA held that “the military courts do not have the authority to either ‘read back’ the constitutional exception into M.R.E. 513, or otherwise conclude that the exception still survives notwithstanding its explicit deletion.” 81 M.J. 836, 849 (A. Ct. Crim. App. 2021). But in Payton-O'Brien, the NMCCA reached a different conclusion. 76 M.J. at 788. The NMCCA held that the “removal of the constitutional exception is inconsequential insofar as its removal purports to extinguish due process and confrontation rights.” Id. The NMCCA then provided a non-exhaustive list of several situations in which it asserted that the psychotherapist-patient privilege must yield to the constitutional rights of the accused. Id. at 789. Certified Question II asks us to resolve this dispute between the ACCA and the NMCCA.

We recognize the general importance to the military justice system of resolving such conflicts among the Courts of Criminal Appeals. See C.A.A.F. R. 21(b)(5)(B)(iii). In this case, however, any decision that we would render on Certified Question II would be an advisory opinion because it would be a ruling on a legal question “which cannot affect the rights of the litigants in the case before [the court].” St. Pierre, 319 U.S. at 42. Regardless of whether we answered the question in the affirmative or in the negative, we could not provide any relief requested by the named victim (i.e., lifting the abatement order, disqualifying the military judge, and protecting the medical records). In our discussion of Certified Question I, we have already concluded on the basis of principles of standing, ripeness, and mootness, that we cannot grant this requested relief. Our decision did not turn on whether a constitutional exception to the privilege in M.R.E. 513(a) still exists. Because this Court does not issue advisory opinions, we therefore cannot answer Certified Question II in this case.

IV. Conclusion

For these reasons, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

FOOTNOTES

1.   Article 6b, as amended in 2021, applies to this appeal. This version is codified at 10 U.S.C. § 806b (2018 & Supp. III 2019-2022).

2.   The Government argues that the abatement order “force[d] the Victim to choose between waiving her privilege or facing abatement of charges.” But that does not make the abatement order “a court-martial ruling [that] violates the rights of the victim afforded by” M.R.E. 513.

3.   The President created M.R.E. 513 in the 1999 Amendments to the Manual for Courts-Martial, United States, Exec. Order No. 13,140, § 2(a), 64 Fed. Reg. 55,115, 55,116-17 (Oct. 12, 1999). This was first included in the Manual for Courts-Martial, United States (2000 ed.) (MCM).

4.   In 2014, Congress directed that M.R.E. 513 be amended “[t]o strike the current exception to the privilege contained in subparagraph (d)(8) of Rule 513,” i.e., the constitutionally required exception. See Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291, § 537(2), 128 Stat. 3292, 3369 (Dec. 19, 2014). The President then amended M.R.E. 513 in the 2015 Amendments to the Manual for Courts-Martial, United States, Exec. Order No. 13,696, Annex § 2(e), 80 Fed. Reg. 35,783, 35,819 (June 22, 2015). This amended version of M.R.E. 513 first appeared in the MCM (2016 ed.).

Judge MAGGS delivered the opinion of the Court.