AGANA BAY DEVELOPMENT COMPANY (HONG KONG) LTD., Petitioner-Appellee, v. SUPREME COURT OF GUAM, Respondent-Appellant, DILLINGHAM CORPORATION OF THE PACIFIC, Real Party in Interest.
No. 75-1059.
United States Court of Appeals, Ninth Circuit.
Jan. 14, 1976.
Rehearing and Rehearing En Banc Denied March 3, 1976.
529 F.2d 952
Furthermore, the EEOC has an avenue for relief if it is dissatisfied with any provision of the Consent Decree. The Decree itself provides that the EEOC may apply for such amendments and modifications as its experience may dictate.16 Had this litigation run its normal course, a point would have been reached at which the EEOC would probably have been asked to submit a proposed decree consonant with the court‘s decision. Its present position is not substantially different. The District Court has left open to the EEOC the power and responsibility to apply for modification of the Decree. The EEOC can make full use of this power for any constructive purposes it envisages in order to promote the interests of the public it represents.
Conclusion
It would be inopportune and unfortunate to permit this appeal to serve as a tool for destroying a settlement to which the private parties have agreed, in which the court has concurred and from which the EEOC improperly withdrew its participation at the last minute and without explanation. We cannot condone the conduct of the EEOC in this case or sanction its abandonment of the litigation. The Commission is not the exclusive vindicator of the public interest in Title VII of the
The judgment is affirmed.
David T. Wood, Asst. Atty. Gen. (argued), Government of Guam, Agana, Guam, for respondent-appellant.
OPINION
Before CARTER, GOODWIN and KENNEDY, Circuit Judges.
JAMES M. CARTER, Circuit Judge.
In this case we hold that the Territory of Guam is authorized to eliminate the appellate jurisdiction of the District Court of Guam, pertaining to local, non-federal issues, by transferring that jurisdiction to a court created by the territorial legislature. The Court Reorganization Act, Guam Public Law 12-85 (January 16, 1974), changes the designation of the principal local court created by the Territory from “Island Court” to “Superior Court.” The Act also creates a Supreme Court of Guam and provides, effective July 1, 1974, that the supreme court has exclusive jurisdiction of appeals from the superior court. Formerly, all appeals from the Island Court had been taken to an appellate division of the District Court of Guam.
Agana Bay Development Company, a petitioner in this action, was the defendant in a prior suit commenced in the superior court, concerning the validity of certain liens asserted by plaintiff Dillingham Corporation of the Pacific. Partial summary judgment was granted for the defendant Agana Bay, and Dillingham appealed to the Supreme Court of Guam. Agana Bay then filed this action in the District Court of Guam, seeking a Writ of Prohibition directing the supreme court to cease all appellate proceedings in the mechanics lien case. In the district court proceedings the respondent supreme court was represented by the Attorney General of Guam.
The district court issued a peremptory Writ of Prohibition pursuant to
As an unincorporated territory of the United States, Guam is subject to the plenary authority of Congress to provide for its government under
The provisions of the Organic Act of 1950 established a judicial system for Guam but also gave the territorial government significant responsibility for adapting that system to its changing needs. Section 22 of the Organic Act established the “District Court of Guam” as a court of record, with original jurisdiction both in cases arising under feder-
Pursuant to the authority delegated in the Organic Act, the first Guam Legislature in 1951 adopted implementing legislation for the territorial judicial system, Public Law 17. The provisions of this act remained substantially unchanged through 1973.1 Basically, they provided a judicial system with four tiers of courts. Commissioners’ courts had original jurisdiction over petty criminal cases under local law.
At the very outset it appeared Guam did not desire appeals from local courts to be heard by a single district judge. Public Law 17 stated that the District Court of Guam should exercise its appellate jurisdiction in a division consisting of the district judge as presiding judge and two other judges appointed by him from among the judges designated pursuant to section 24 of the Organic Act.3 This provision was understood as an implementation of section 22(a) of the Organic Act. See Eiban v. Government of Guam, 115 F.Supp. 519, 520-21 (D.Guam, App.Div.1953).
Major changes were made in the Guam judicial system when the Court Reorganization Act was adopted in 1974. The chapter of the Civil Procedure Code dealing with the District Court of Guam was repealed. A new chapter was adopted in its place, establishing a Supreme Court of Guam with essentially the same appellate jurisdiction as previously held by the district court over local, non-federal issues. The Act also created a Superior Court of Guam to replace the former Island, police, and commissioners’ courts. The superior court was made a court of general original jurisdiction in all cases arising under the laws of Guam, but not for cases arising under federal law or pertaining to the Guam territorial income tax.4
The intent of the Court Reorganization Act was presumably to establish for Guam a local judicial system independent of the federal courts. The question raised on this appeal is whether Congress has authorized Guam to undertake such a reorganization, when the effect is to divest the District Court of Guam of its appellate jurisdiction as to local, non-federal questions. The language of section 22 of the Organic Act is most pertinent to this inquiry:
“There is created a court of record to be designated the ‘District Court of Guam‘, and the judicial authority of Guam shall be vested in the District Court of Guam and in such court or courts as may have been or may hereafter be established by the laws of Guam. The District Court of Guam shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, trea-
ties, and laws of the United States, regardless of the sum or value of the matter in controversy, shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine. The jurisdiction of and the procedure in the courts of Guam other than the District Court of Guam shall be prescribed by the laws of Guam.”
The first sentence of section 22 states that the judicial power in Guam shall reside in a “district court” and in “such court or courts as may have been or may hereafter be established by the laws of Guam.” The authority given to the Guam legislature is not limited to creating inferior courts.
The overstuffed sentence which follows has to be read in light of the power Congress has just given the Guam legislature to establish its own courts. When so read, it appears that Congress intended the following: First, with respect to federal cases, it tracked the jurisdiction of the district court to Article Three of the United States Constitution [“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . .”
It is not significant that section 22 expressly states that original jurisdiction of non-federal cases may be transferred to other courts, but the section does not expressly state that appellate jurisdiction may also be transferred. This sentence in section 22 is part of the
However, the granting of appellate jurisdiction by the Guam Legislature to the district court was not compelled by the statute. To the contrary, the creation of Guam‘s own court system was authorized. We conclude that Guam‘s power to transfer appellate jurisdiction to its own Supreme Court arises from its power to create appellate courts and its power to determine the appellate jurisdiction of the district court as to local, non-federal questions. We hold that Congress authorized the Legislature to create, for non-federal questions, any kind of appellate system it saw fit.
We also note that no procedure is given for review or appeal of Guam appellate court decisions to an Article Three Court. However, even before the creation in 1974 of the Guam Supreme Court, the Guam Legislature had the power to determine the extent of appellate jurisdiction by the district court over Guam inferior courts.
Also, it is well established that a right of appellate review is statutory, did not exist at common law, and is not required by the United States Constitution. Francisco Enterprises, Inc. v. Kirby, 482 F.2d 481, 484 (9th Cir. 1973), citing Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1955). Further-
We do not base our opinion on Corn v. Guam Coral Co., 318 F.2d 622 (9th Cir. 1963). In Corn we ruled that the 1958 amendments to the Organic Act did not create a new appellate body, but only formalized the appellate procedures already enacted by the Guam Legislature in 1951. Congress recognized that Guam had validly exercised its powers in creating appellate jurisdiction in the district court over local, non-federal, cases.
However, Corn did not hold that Guam could have independently created its own appellate courts which were not subject to review by the district court. Such an issue was not reached in Corn. Therefore we find Corn not on point and instead rely on the language in the
The lower court in this case relied on “congressional intent” in finding the 1974 legislation establishing a Guam supreme court invalid. It stated that prior to enacting the Organic Act in 1950, the United States House of Representatives considered a bill which would have provided Guam with a supreme court whose decisions would have been appealable to an Article Three Court. See 2 U.S.Code Cong.Serv. pp. 2840, 2847 (1950). As stated in a letter of May 3, 1949, from the Secretary of the Interior to the President of the Senate, “[t]he judicial branch would consist of a supreme court, with a single justice appointed by the President, with the advice and consent of the Senate for a 6-year term, and of such inferior courts as the legislature might create.” [Emphasis added]. See 2 U.S.Code Cong.Serv. p. 2847 (1950), letter from J. A. Krug, Secretary of the Interior to the Hon. Alben W. Barkley, President of the Senate.
This bill was relied upon by the district court for the proposition that, “Congress intended to supervise the judicial branch of government in Guam.” However, when the Organic Act was finally passed by Congress, the provisions relating to a Congressionally created supreme court were eliminated.5 The refusal to enact the bill leads to an interference directly contrary to that drawn by the district court—that is, Congress did not intend to prohibit the creation by Guam of appellate courts nor did Congress intend to retain control over Guam‘s appellate courts with respect to local, non-federal cases.
A comparison of Guam with other territories shows that the Guam Organic Act is unique and it delegates the widest powers of any of the territories to the legislature for the creation of appellate courts. For example, prior to statehood, Alaska had no supreme court. The judicial authority was vested in district court.
For the Territory of Hawaii, the judicial power was vested in “one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish.” (emphasis added)
For the Virgin Islands the judicial power is vested in a district court and “in such court or courts of inferior jurisdiction as may have been or may hereafter be established by local law.”
In contrast is Guam. Congress has not created a supreme court, nor has it acted to regulate any such court which Guam may create. In Hawaii and Puerto Rico, on the other hand, Congress has regulated the appointment, tenure, and salaries of supreme court justices.
Secondly, Guam was given the power to create a court system and was not limited to creating “inferior” courts. This is in contrast to the Virgin Islands and Hawaii, which were, or are, so limited.
Thirdly, Guam was expressly given the power to extinguish the appellate jurisdiction of the district court over local courts, with respect to local, non-federal, cases. In contrast, no other territory was given such power.
We therefore draw the inference that had Congress intended to prohibit the creation of appellate courts or to bar the transferring of appellate jurisdiction from the district court, Congress could have clearly stated as much or could have patterned Guam after the other territories.
We believe that the policy of leaving local matters to courts created by local legislatures is a sound one. Twenty-five years have passed since Guam was an “underdeveloped and isolated possession of the United States“, as described by the district court. There is nothing to indicate that Guam is incapable of establishing and operating its own appellate court with respect to purely local matters. There is nothing in the language or legislative history of the Organic Act requiring the interpretation that the district court must be the highest and only appellate court in Guam. Rather, the only language pertaining to appellate courts grants the Guam Legislature total authority to transfer appellate jurisdiction over local, non-federal cases from the district court to Guam courts.
Reversed.
ANTHONY M. KENNEDY, Circuit Judge (dissenting).
In my view the Organic Act of Guam does not authorize the territorial legislature to transfer the appellate jurisdiction of the District Court of Guam to a locally-created court. Thus I would affirm the judgment of the district court.
The District Court of Guam shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties, and laws of the United States, regardless of the sum or value of the matter in controversy, shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it, and shall have such appellate jurisdiction as the legislature may determine.
My brothers acknowledged that section 22(a) does not explicitly authorize Guam to transfer the district court‘s appellate jurisdiction to a local court. However, they find such a transfer included within the legislature‘s power to “determine,” and thus to extinguish, the appellate jurisdiction of the district court. Moreover, section 22(a) literally empowers the territorial government to establish a “court or courts” in addition to the district court and to prescribe the jurisdiction and procedure of these other courts; this power is not expressly limited to “inferior” courts or courts of original jurisdiction.
However, the Organic Act must be construed to give force and effect to all its provisions, and no language should be taken out of context and construed without reference to the whole territorial system established by Congress. See Carter v. Gear, 197 U.S. 348, 25 S.Ct. 491, 49 L.Ed. 787 (1905). I think Congress would have spoken more directly had it intended to enable the territorial legislature to substitute a local appellate court for the appellate division of the district court. Unlike the majority, I find it significant that section 22(a) says nothing about the transfer of appellate jurisdiction to local courts, while it expressly authorizes such a transfer of the district court‘s original jurisdiction. I would conclude that such a transfer of appellate jurisdiction was not authorized by Congress.
I also do not agree with the majority that the power to “determine” the appellate jurisdiction of the district court necessarily includes the power to abolish it. I think it was more likely intended to permit the local legislature to decide what cases were serious enough to be appealable. This power may be compared to that of Congress under article III to regulate the appellate jurisdiction of the Supreme Court. Congress has never tried wholly to eliminate the Court‘s appellate jurisdiction, and thus we cannot tell how far this power extends. Professor Hart has suggested it would not permit Congress to “destroy the essential role of the Supreme Court in the constitutional plan.” Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362, 1365 (1953). Similarly, I would conclude that the power of Guam to determine the appellate jurisdiction of the district court would not allow that jurisdiction to be entirely extinguished. Moreover, for Guam to abolish all appellate jurisdiction would be a wholly irresponsible legislative act, raising serious constitutional questions. It is unlikely that Congress intended to give the Guam legislature the power to commit such an act, and such intent should not be assumed in the absence of express language to that effect. To rest the validity of the Court Reorganization Act, as the majority does, on the assumption that such power
My conclusion that Congress did not intend to authorize such a transfer of jurisdiction is supported by subsequent legislative history. In 1951, Congress amended the Organic Act to expand the Ninth Circuit‘s appellate jurisdiction to all final decisions of the district court, rather than the limited categories contained in the original section 23.1 In 1958 Congress added a paragraph to section 22(a) of the Organic Act, giving explicit authorization for the three-judge appellate court procedure that had been implemented by Guam Public Law 17.2 These amendments indicate a congressional purpose to sanction a prescribed system for federal court review of local court decisions. Every word of the second paragraph of the amended section 22(a) would become superfluous if Guam could remove the appellate jurisdiction of the district court. This pattern of congressional approval and acceptance cannot now be made completely moot by the Court Reorganization Act.
The Court Reorganization Act makes sweeping changes in the judicial system developed in Guam over the previous 23 years. Prior to 1974, virtually all significant matters were within either the original or appellate jurisdiction of the district court, and reviewable by this court and the United States Supreme Court. Under the new system, only cases “arising under” federal law or involving the territorial income tax remain within the federal court jurisdiction; as to other matters there is no appeal beyond the Supreme Court of Guam. Important federal issues can be presented in cases which do not “arise under” federal law. See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3562 (1975). It seems unlikely to me that Congress intended to confer on the territorial legislature the power to eliminate review in the federal court system of all claims raised in the territorial courts.3
Notes
Pub.L.No. 85-444, 72 Stat. 178. This amendment was described as “an additional paragraph recognizing and making suitable procedural provisions for the appellate division of the district court as it now exists under the local law.” S.Rep.No.1582, 85th Cong., 2d Sess., 2 U.S.Code Cong. & Admin. News 2623 (1958). It was thought that this addition would “eliminate any doubt as to the status of the appellate division.” Id. at 2629.Appeals to the District Court of Guam shall be heard and determined by an appellate division of the court consisting of three judges, of whom two shall constitute a quorum. The judge appointed for the court by the President shall be the presiding judge of the appellate division and shall preside therein unless disqualified or otherwise unable to act. The other judges who are to sit in the appellate division at any session shall be designated by the presiding judge from among the judges assigned to the court from time to time pursuant to section 1424b(a) of this title. The concurrence of two judges shall be necessary to any decision by the District Court of Guam on the merits of an appeal but the presiding judge alone may make any appropriate orders with respect to an appeal prior to the hearing and determination thereof on the merits and may dismiss an appeal for want of jurisdiction or failure to take or prosecute it in accordance with the applicable law or rules of procedure.
There is no evidence in the legislative history of the Organic Act of 1950 that Congress intended section 22(a) to give the territorial legislature the option of creating a local supreme court having the power of ultimate review. Earlier versions of the Organic Act included provisions for a congressionally-created supreme court for Guam; these were eliminated in favor of a federal district court.4 The district court was established for the purpose of providing litigants in the Western Pacific with direct access to the federal court system.5 Because of concern that there would not be sufficient federal question litigation to justify a separate district court in Guam, the court was given original jurisdiction in local matters. It was also envisioned that the district court would serve as an appellate body once local courts were established.6 The apparent reason for eliminating the provision for a local supreme court was to avoid duplicative judicial machinery, rather than to allow local authorities to put certain controversies beyond review by the federal court system.
A comparison of Guam‘s judicial system with those established in other territories provides no support for the majority‘s view. Although there are many differences, there are indications that the system established in Guam was intended to be similar to those of the other territories.7 Congress assured that there would be review by article III courts of all cases in the former territories of Hawaii and Alaska and still maintains that policy for the Virgin Islands. Cases in the local courts of the Virgin Islands may be transferred or appealed to the District Court of the Virgin Islands,
For the reasons set forth above I think that the Guam legislature‘s action in setting up the Supreme Court of Guam was beyond the scope of its powers under the Organic Act.
Accordingly, I respectfully dissent.