Mississippi's "Camouflaged" Court
Article by Featured Author
Posted March 2018In Mississippi, there is an important court that almost no one has heard of: the Mississippi Court of Military Appeals. It is located in the Mississippi Military Department, and has sole jurisdiction over military appeals. In fact, to this date, it has convened only once, to review a single petition. That particular case, between the Governor and the Adjutant General of the Mississippi National Guard, highlighted the tension that can exist between state leadership and their military counterparts.
To better understand why the Mississippi Court of Military Appeals is important, one must have a basic understanding of the military justice system as a whole. Our current military justice system mirrors closely that of the civilian world. Military courts are governed by the Uniform Code of Military Justice, which serves as the foundation of military law in the United States. Individuals in the US armed forces are subject to a dual system of criminal justice. That is, a violation of both civilian and military law may be prosecuted under both. However, military justice rules apply only when an individual is in military status. Therefore, in applying a code of military justice, a soldier's status is key. "Full-time" soldiers are those typically found on active duty; they are virtually always subject to the UCMJ. "Part-time" soldiers are those whose service is typically in the Reserves or, in the context of this article, a state's National Guard. They are subject to a state's code of military justice only if in the status of a soldier when the crime occurs, usually during drill once a month or during two weeks of annual training.
A criminal trial in the military is referred to as a court-martial. A panel of members acts as a jury, and many of the same rules and procedures are followed as in civilian courts. Boards of Review originally existed to review cases in which the sentence included dismissal, a dishonorable discharge, or confinement in a penitentiary. The Judge Advocate General's office reviewed all other court-martial cases. Cases found legally insufficient by The Judge Advocate General were then referred to a Board of Review. The Boards were granted broad power to review court-martial records of trial, determine questions of law and fact, weigh evidence, and reduce sentences.
While revising the UCMJ in 1968, Congress redesignated Boards of Review as Courts of Military Review, which were again renamed to Courts of Criminal Appeals in 1994. The Court of Military Appeals was also renamed the United States Court of Appeals for the Armed Forces in 1994. Under these federal statutes, Court of Criminal Appeals decisions can be appealed to the United States Court of Appeal for the Armed Forces, but this court chooses which cases to take, so a service member's request for review to the Court of Appeal may be turned down. Convictions can ultimately also be appealed to the United States Supreme Court, which accepts even fewer appeals than the Armed Forces appellate court.
In 1981, the Mississippi legislature somewhat mirrored the 1968 changes to the federal statutes, "to revise and update the Mississippi Code of Military Justice in conformity with the Uniform Code of Military Justice …" The rules, codified in Miss. Code Ann. § 33–13-7, apply "to all members of the state military forces who are not in active federal service."
A somewhat interesting and unintended change was included in these updates. The Mississippi Court of Military Appeals was created, staffed, and given its mission all in one section of the Code: § 33–13-417. The court was provided a finality of review that apparently prevented review of its final decisions by the Mississippi Supreme Court. Because a right of appeal is derived only from statute, there was no explicit authority to appeal from the Court of Military Appeals to any civilian court. The Court of Military Appeals therefore seemingly remains the ultimate destination for appellate review within the Mississippi National Guard. Additionally, the court's review remains almost entirely discretionary.
While great effort has been made to increase the efficiency and effectiveness of courts-martial, they are seldom-conducted. A more efficient method of adjudicating military violations is "nonjudicial punishment," in which a soldier undergoes a hearing before his commander. Although the proceedings generally may not be as consistent or structured from one command to another, the possible punishments are much less severe than in courts-martial. Nonjudicial punishment may also be preferred by a commander in cases where a court-martial would be difficult or cost-prohibitive. Thus, courts-martial in Mississippi are rare; in fact, the Court of Military Appeals has had only one petition for review to consider. That occasion was extraordinary for a host of reasons. To best convey the significance of the event, this article relies heavily on discussion provided by Judge Leslie Southwick. Judge Southwick, himself a former Lieutenant Colonel and Army Judge Advocate, wrote a much more detailed analysis of this case and Mississippi military structure, which I enthusiastically recommend.1
The office of the Adjutant General (TAG) is the highest position that can be attained in the Mississippi National Guard, although, as the chief administrative officer, he is not the soldier who would lead troops into battle. The position of Adjutant General first became an office recognized by the constitution in 1869, and it also appears in the 1890 state constitution. The current term of service for the Adjutant General of the Mississippi National Guard is four years, beginning with a new governor's term. Only the governor, as commander-in-chief, outranks him when the Guard is in state service. Since the Adjutant General is the executive head of the state agency known as the Mississippi Military Department, as well as the commissioned military officer to whom all other officers of both the Army and Air Guard answer, he is the state equivalent of Secretary of Defense and Chairman of the Joint Chiefs of Staff — all in one person. He is one of the first appointments a newly-elected governor will typically make.
Ray Mabus was elected Governor of Mississippi on November 4, 1987. Three months later, he appointed Major General Jim Farmer as The Adjutant General. The new TAG had excellent connections with his commander-in-chief. Farmer was a retired airline pilot and long-time member of the Guard. He had raised significant funds for the Mabus campaign, personally contributed a large amount, and flew candidate Mabus across the state.
Two years later, in January 1990, the Clarion Ledger published an article revealing that the TAG had purchased land outside Camp Shelby, in Hattiesburg, MS. The article accused him of using confidential information that the National Guard facility would expand to make the purchase, thereby increasing the value of his land. That same month, the Clarion-Ledger revealed that the General sold his interest in the land. However, the article also revealed that the Governor had asked General Farmer to resign over the controversy, but the General refused.
Mississippi's Constitution ends the TAG's term only with the expiration of the governor's term of office. Therefore, Governor Mabus did not appear to have authority to fire or otherwise remove General Farmer from his position. In response, the Governor simply reassigned General Farmer to special projects of little significance, and gave the responsibilities of TAG to an assistant adjutant general, Brigadier General Denver Brackeen. General Farmer was also assigned to a different office, one not typically occupied by the TAG. Shortly afterwards, General Farmer attempted to regain control of his position by physically occupying the office he once held. Mississippi Highway Patrol officers were dispatched to the location by Lieutenant Governor Brad Dye to escort the General out, and he was prohibited from stepping foot on any National Guard facility.
The situation escalated on May 1, 1990, when General Farmer filed a lawsuit in federal district court against Governor Mabus, seeking a declaratory judgment on the unconstitutionality of the Governor's actions. In response, the Governor charged General Farmer with three violations of the Mississippi Code of Military Justice: absent without leave from the office assigned to him by the Governor, failure to obey orders, and bringing discredit to the armed forces stemming from both his land purchase and wearing rank insignia appropriate to the TAG's rank (although that rank had been withdrawn by the Governor).
The subsequent military investigation concluded that General Farmer's court-martial could proceed on the basis that his land purchase had created a conflict of interest in violation of § 33–13-529 of the Military Code of Justice. He was ordered to stand trial by a general court martial on October 18, 1990. General Farmer moved to stay the court-martial proceeding in federal court, which was denied by District Judge William Barbour. That case was eventually dismissed by the United States Court of Appeals for the Fifth Circuit on the basis that the claims were non-justiciable.
General Farmer then moved to dismiss the charges in his court-martial on October 23, 1990, citing unlawful command influence ("UCI") by Governor Mabus. UCI occurs when a person bearing "the mantle of command authority" pressures — or even appears to pressure — military judicial proceedings. General Farmer essentially alleged that the proceedings were brought for ulterior reasons, former Adjutants General were wrongly excluded as potential court members, the Convening Authority failed to exercise independent judgment in selecting potential panel members, and there was a risk of selecting a possibly hostile potential panel member. The presiding judge, Lieutenant Colonel William Eshee, found sufficient evidence to create a prima facie case of discriminatory intent on the part of the Governor, and dismissed the charges.
On appeal, the State moved to restyle the proceedings to seek extraordinary relief under the Mississippi Rules of Court-Martial, including a writ of mandamus directed to the military judge to reinstate the charges. This appeal convened the first session of the Mississippi Court of Military Appeals. It conducted a hearing on May 18, 1991, in which the dismissal of charges was affirmed as being within the trial judge's discretion. The unpublished opinion revealed many of the nuances of military justice, on which the Court was clearly divided. Of main concern to some, including Chief Judge Donald Kruger in his dissent, was the notion that if UCI would disqualify the governor from instituting proceedings under the Mississippi Code of Military Justice, the Adjutant General would be left above the system of military justice that applies to everyone else. Neither side sought further relief.
Shortly afterwards, a new governor was elected, and a new TAG appointed. This brief call to duty was the first and last time the Mississippi Court of Military Appeals revealed itself. The system remains true to its charge, however, and continues to grant protections mirroring that of its civilian counterpart. Mississippi's citizens still receive proper access to justice, regardless of whether they wear a suit or camouflage to court.
- Judge Leslie Southwick, Military Justice for Foreign Terrorists and for American Soldiers: Comparisons and a Mississippi Precedent, 72 Miss. L.J. 781 (2002).