Hobson v. Hansen

Circuit, Judge of the The Chief 291(c), authority of 28 U.S.C. § Judge Skelly designated Washington, Kunstler, J. D. Circuit M. William Judge Wright Washington, and to Anker, , Jerry to sit as a C. and D. Deeming the constitu- C., hear the case. plaintiffs. D. for challenge tional to Section Atty., Joseph Bress, David G. U. S. Judge Wright, pur- to be frivolous. Zimmerman,' Asst. M. Hannon and Gil 2284,1requested the to suant 28 U.S.C. § United Attys., U. S. for defendants Judge to constitute of the Circuit Chief Judges. States District three-judge to consider District Court Hansen, 252 issue. Hobson v. Acting Corp. Korman, Milton D. three-judge F.Supp. present 4. The for of Columbia Counsel the District purpose. for that court was constituted filed, complaint John the time the motion heard the We convened and Earnest, Redmon A. Robert R. summary judgment and plaintiffs Mullaney, Jr., Corp. Asst. Matthew J. dismiss the motion of defendants except Counsel, for all defendants complaint. This is 1 of the count Judges. States District constitutional raises the count which MILLER, Senior question Before WILBUR K. Issues as to Section 31-101. Judge, Wright FAHY and Judge Circuit alone to be decided Judges. WRIGHT,** opinion. Circuit are not discussed ** Sitting tion 28 U.S.C. determined application (1) pursuant law, Act of court, except any as District The district shall be as action or composition by a district court of three to 28 U.S.C. injunction (1964) as otherwise Judge by proceeding follows: reads in 291(c) or other to whom the procedure heard provided designa- required part: relief ber of application, he shall the chief designate ^[*] of whom shall be a presented ^{[*] [*]} such judge two other court. shall constitute one On judges, immediately circuit, who shall circuit filing at least one of the notify judge. mem- important education of children an

I. governments. function of state and local suggestion preliminarily We note Education, Brown v. Board of question of defendants that the as to the constitutionality Section 31-101 standing plaintiffs’ Defendants concede three-judge so insubstantial that a to contest the manner in which the required was not to consider it. dis-We Board administers the schools. agree opin- for reasons set forth in the standing step short also to Judge Wright ion of in Hobson v. Han- challenge constitutionality supra. sen, authority basic of the Board do the disagree We also with defend administering. persons Unless in the plaintiffs ants’ contention that lack position plaintiffs standing standing validity question of Sec imay escape do this the issue resolution. Suing tion 31-101. in their own behalf argues resolving This doubts favor they belong, and for the classes which plaintiffs case; in such a for there is plaintiffs pupils public include governs no hard and fast rule schools which are administered standing. As Mr. Justice Frankfurter guardians Board, parents “controversy,” said of a “case” or wheth- s.2 pupil They are clothed suf standing emerges er or depends also challenge ficient interest the author good part upon “expert feel of ity of the Board to administer lawyers.” Youngstown Sheet & Tube schools, separately which is Sawyer, 579, 594, Co. v. 343 U.S. 72 S.Ct. alleged, pending in the counts before 863, (concurring opin- 96 L.Ed. 1153 Judge Wright, to be exercised in a man ion). right by steps judicial The to take deprives equal ner protec them of means not to have the ad- schools Carr, tion of the laws. In Baker v. 369 ministered valid methods but also to 186, 204, 691, 703, U.S. 82 S.Ct. 7 L.Ed. have them administered those who 663, gist 2d the Court stated that “the may validly so, pertains do children standing” question of is, public schools, who under law attend the * * * [plaintiffs] Have the al- parents guardians. and their and leged personal such a stake the out- views of the commentators are not uni- controversy come of the as to as- form, sup- but we think the better view sure that concrete adverseness which ports position our in the circumstances sharpens presentation “ of issues Compare Davis, of this ease. ‘Judicial upon largely which the court so de- Control of Administrative Action’: A pends for illumination of difficult con- Review,” 635, 66 Colum.L.Rev. 659-66 questions? stitutional (1966) Jaffe, “Standing and To Secure Actions,” Judicial Review: Public Plaintiffs are not mere fed (1961), Harv.L.Rev. taxpayers, eral plaintiff as was the de Jaffe, standing Frothingham Judicial Mellon, Control nied of Administra- Action, tion 459-500 And see U.S. L.Ed. S.Ct. Wechsler, They Hart and closely pu The Federal Courts involved as System pils, parents guardians Federal as who right have the to direct the education of II. control, children under their Pierce v. Society Sisters, remaining question 534- On the be hold, first, fore us S.Ct. L.Ed. 1070 and the we that under Article Hobson, infant, standing 2. Plaintiff Jean Marie on issue the basis of of other private school; plaintiff plaintiffs. unnecessary is in a It seems Caro- to decide definitely standing line Hill Stewart is a teacher to the Miss as If, however, schools administered the Board Hobson or Miss Stewart. may under contract Board. It either desires a definitive decision it requested. plaintiffs doubtful these two have standing. We decide the constitutional Constitution, Con- I, as a State confer of the cl. * * Subject empowered *. to the gress to enact Section on her courts was guaranties liberty Code, requiring personal mem- 31-101 of original ap- to be amendments and Con- Board of Education bers stitution, pow- the United as much pointed District the District er to vest courts of the District Court for States variety powers provision jurisdiction The constitutional Columbia. legislature conferring provides: a state has in referred * * * jurisdiction courts. Prentis its Congress shall Power Co., supra, [211 v. Atlantic Coast Line Legislation To exercise exclusive U.S. S.Ct. 150] whatsoever, Dis- over such all Cases we held that ‘a state Constitu- when exceeding square) (not Miles trict ten legislative tion sees fit to unite may, by particular Cession single hand, powers there Acceptance Con- and the nothing to hinder far as the so gress, of the Govern- become Seat * * Constitution United States *. of the United ment States (211 225, 29 concerned.’ consequence provision and of this As Dreyer 150); v. [Peo- our of Article III of Constitution3 ple Illinois, State of] District Court4 has a dual character. L.Ed. 79. judicial power shares Hughes, The dissent of Justice Chief as a Court established District Mr. Justice Van and Mr. Jus- Devanter has the III.5 But it also strength tice Cardozo to the view adds powers conferred it in the exercise majority concerning powers legislative plenary Congress may courts of confer on the of Columbia. over disagreement the District. Their character, This dual with its combina- of the Dis- with the view courts stemming powers Ar- tion of from both merely of Columbia trict III, I and Article ticle is described dissent, established, quote “under States, 289 U.S. v. United authority upon the the broad conferred 545-546, 740, 748, 53 L.Ed. S.Ct. Congress government of the Dis- the 1356: by paragraph trict Columbia Congress dealing District, 8 of article I.” U.S. § powers belong possesses the which They this at 751. described as a S.Ct. respect territory it within power complete and state, itself derives powers and of a state. also the nothing of Article III. from Co., 261 U.S. Keller v. Potomac Elec. complete, power is less but It 443, 43 essentially words,” as that which same “In other this court 731. upon Congress conferred for the is possesses said, “it there a dual author- ** * government may ity territories. clothe over District only power is not a dual in the sense of the with the courts District sources, jurisdiction it is from two powers derived of federal is, III and both from Article also in the but courts several States non-judicial States, functions ercise 3. “The Power of the United supreme Court, uncommon. not been as has vested individuals shall be one readily Examples and need mind come to inferior Courts as Exee.Itep. g., See, may No. not be detailed. e. from time to time ordain and estab- ” * * * Cong., Ill 80th 1st Sess. 7-8 art. lish. U.S.Const. examples criticized there The which are 1. upon placed functions do not include the terminology point this use at We judges by 31- District Section our parties, if the sometimes used as have more our Code. 101 of We upon appointing power confers Code say about this infra. Code, however, confers The the court. upon “judges.” power §§ ex- See 28 U.S.C. provision for from constitutional cannot be conferred on government District, existing Ill, of the under Art. ap dual in the that the latter done with Court's sense this proval. provision O’Donoghue confers an so United v. broad that it enables the U.S. 53 S.Ct. that, invest the courts of the District not only 1356. In that held case was jurisdiction although powers District Columbia courts analogous courts, they of those of federal courts are Art. Ill also can exer juris- judicial power cise within but also with Con the States conferred gress powers analogous pursuant diction and to those The fact Art. I. may courts, which in their Columbia vest own courts, given local can courts. also admin legislative or istrative which functions S.Ct. at 751. exercise, other Art. Ill courts cannot emphasize that, does but al fact While the considered that if dissenters though the latter are limited to the respect limitations with tenure may judicial powér, exercise con compensation attached stitutionally be received from either applicable Article III courts to our I, congres Art. Ill general Art. and that jurisdiction local courts of District, flowing sional over the prevent attaching would powers to the latter I, plenary every from Art. sort, re of an administrative this in spect. way no detracts their view of the powers by Congress broad foregoing conferrable opinion is from the upon our courts6 Article I. Jackson, Mr. Justice who announced the Moreover, view of judgment the dissenters joined of the Court and that Article III courts not be opinion by could vest- his Mr. Justice Black Mr. ed responsibilities with administrative Justice Burton. While there was not does not opinion indicate that would hold which had the adherence of a appointive power invalid such majority vest- Court, the correctness of judges by ed in Section 31-101 of States, supra, v. Code, light especially ap- our unquestioned concurring and dis- pointive power senting be conferred Justices. See 608- Article III courts under Article Mr. Justice Constitution, § Cl. 2 Rutledge, writing concurring discussed opinion opinion. in Part III of this Murphy, himself and Mr. Justice join could not that confer- view Again, in National Co. Mut. Ins. plenary powers ment I Article of 582, Co., Tidewater Transfer U.S. 337 legislate for the District enabled Con- 590-592, 69 L.Ed. it S.Ct. 93 gress to extend to citizens of the District is said: right the to invoke in nonfederal or di- versity jurisdiction long Congress cases the It has may been held of District that throughout Courts the He clothe District of courts nation. said: Columbia jurisdiction not I think the Article III courts powers of the federal courts in several vested, the several by be states cannot states but with such as a provisions virtue other of of the may state confer her coúrts. Constitution, powers specifically ^[*] It is too late to hold that ^{[*] [*] [*]} « judicial ^[*] III. denied them the terms of Article powers I 337 S.Ct. functions incidental to Art. U.S. 1185. Appeals this the of of the District of The courts of District involved Court O’Donoghue Columbia, predecessor of the United were the Appeals Columbia, predecessor States for the District of of Court of the District Court, States District Columbia the United Circuit.

9Q9 638-639, argument 69 S.Ct. at 1206. to the U.S. He the then turned O’Donoghue, it concern for the contrary upon and And was this limita- based “judicial power” III tion of the Article said: that, “controversies” “cases” O’Donoghue of the the With merits us, roots of was at the seems to holding that Article III decision in separate Mr. dissent of Justice Frank- judges salary reductions barred joined. furter, Mr. Justice which Reed question, are not the courts we 646-55, It 337 U.S. at S.Ct. presently Suffice concerned. interpolated should here be stat- express language point out attempt us not ute now before does negatives decision jurisdiction a was involved confer courts view that lodges only specific Tidewater. hybrid her- several share states power judges. appointment “ * * * itage Congress : derives expressed in of the various views None pow- clause distinct the District Tidewater, particularly in reference respect ers in the constitutional O’Donoghue, any power cloud on left Congress District which courts I to Article authorize under possess respect of such does not to ex- of our District Court courts District.” outside the upon conferred them ercise contrary. 31-101. Section On at 1186. U.S. S.Ct. legislative power plenary over Its dissenting opinion of Chief Jus- accordingly Con the District enables Vinson, Mr. Justice tice with whom Court, gress place upon the District joined, Douglas clear makes here, judges, responsibilities or, as difficulty confronting Tide- Court in may beyond competence be enlargement water was the other Article III courts through judicial jurisdic- I Article responsibilities comparable to the tion Ar- over or controversies cases may her courts. State confer on III courts located in the District ticle difficulty Columbia. This does Douglas, As stated Mr. Justice accompany by Congress the conferment Justice the concurrence of Mr. through appointing power I of dissenting Black, opinion in in his Glid- of our District Court. Zdanok, den 370 U.S. Co. v. O’Donoghue, In its reference 8 L.Ed.2d n. S.Ct. opinion Chief Justice’s states: majority respect consistent with opinion in that case: separate points Two con- related cerning emphasized. The District Court case should be Columbia, like the “inferior courts” first since the District of thjat given Art. Columbia non- established Constitution, duties, Ill, is an Butterworth v. United (O’Donoghue Hoe, v. ex rel. 656; L.Ed. Baldwin though 1356), Co., 1921, Co. even Howard powers 405, 816; possesses 41 III that Article S.Ct. 65 L.Ed. Keller v. Congress, Co., supra, could not exercise. Potomac Electric courts U.S. [261 granted acting plenary power (1923)] upon its 428 reliance that case legislate 8, support I, consid- Art. the Act now under Columbia, incompatible from posi- eration has time District of may of the Dis- in the courts tion that on- time vested constitutional courts legisla- ly even trict decide “cases” administrative and “controversies” g., See, powers. v. Poto- of e. Keller The second is tive nature. 428, Co., 261 U.S. O’Donoghue mac Electric 440- rationale of 445, is, 443, 447-448, terms, case 43 731 limited courts S.Ct. making); (review Postum of of the District. rate Ce- 910 authority Fig Co., District,

real Co. v. Nut 272 this commensurate California 693, 698-701, 284, may with that which “a state confer on U.S. 47 285- S.Ct. 286, (patent 71 L.Ed. 478 and trade- her courts.” v. appeals); States, supra 545-546, mark Radio 289 53 Federal Comm’n at U.S. 464, Co., 748; v. v. General Electric S.Ct. National Mut. Ins. Co. 390,. 590, 389, Tidewater, supra 69 50 L.Ed. 337 74 (review licensing; Indeed, special character 929 of radio station S.Ct. 1173. Columbia, cf. of the District Federal Radio Comm’n v. of which Nelson legislative body Co., 266, 274-278, neither nor an Bros. a local 53 S. argues 627, 631-633, 1166). executive, local for even Ct. elected Con- 77 gress greater Congress than is discretion has also authorized District may possessed by judges appoint That this Court States. members placing upon result our District Board Education. D.C.Code § duties other Article 31-101. may perform would seem be margin We set forth in the illustra- settled. authority- scope appointive tionsi proposed conferred on their courts States When first 1906 there approved, appears by Congress the constitu- debate in toas overwhelming weight tionality conferring upon of decision that appointive power as is involved the members Education; question Section 31-101 our Code valid- Board of ly conferred was then resolved we long-standing courts.7 follows that Section it now resolve when the provision challenged of our Code is a valid exercise of first time legislative authority Special in the courts.8 over reference was commissioners); (1891) (jury 7. State ex rel. Buttz Marion v. Circuit Staude v. Court, 7, 225, Commissioners, 225 Ind. Election 61 72 N.E.2d 170 Board of (1947) board); banc) (registration (1882) (en (board A.L.R. Cal. 313 187 Edwards, 18, police commissioners); Newton v. Ark. 155 203 Russell v. Coo- (1941) collectors); ley, regis- (tax (1882) (board S.W.2d 591 69 Ga. 215 City managers); State ex rel. School of South Bend tration and election Hoke Thompson, 144) 267, Field, (73 Ky. 144, v. 211 19 Ind. 6 N.E.2d v. 10 Bush 710 (1937) adjustment) collector); (board ; (Ky.1874) (tax of tax Peo Am.R. 58 ple 465, (72 White, Hart, ex rel. Rusch v. 334 Ill. Johnson v. De 9 Bush 640 Ky. 100, 640) (Ky.1873) (1929) (school 166 N.E. 64 commission- A.L.R. 1006 (election boards, Judges clerks); ers). Cf., re Dexter-Greenfield McCrea, Drainage District, P. Elliott v. 23 130 P. 21 N.M. 154 Idaho commissioners); (1913) (drainage commissioners); (1915) (drainage 785 382 Minsinger Rau, City Cincinnati, Pa. A. 21 St. v. 236 84 Walker v. Ohio (trustees (1912) (board public education); Am.Rep. (1871) railroad): People Evans, Cooley, v. see 1 247 Ill. 93 N.E. And Constitu- 1927) (1910) (examining boards); City (8th tional Limitations 213-21 ed. Indianapolis Barnett, Contra, ex v. State ex rel. and cases cited there. State (1909) Young Brill, 499, 111 172 Ind. rel. v. 100 Minn. N.E. 165 (appraisers); (1907) v. Board of Chosen N.W. 10 Ann.Cas. 425 Ross control). County, (county Freeholders of Essex 69 N.J. board of (1903) (park Law A. com missioners) ; eight Citizens’ Sav. Bank v. 8. In the 59th there were Greenburgh, offering Town of in the House 173 N.Y. bills introduced commissioners); (1903) (road plans reorganization of N.E. 978 different for the Perrine, Ky. 531, system Cahill of the District of v. 49 S.W. school Co- (guards); City hearings (1899) held. 50 S.W. 19 lumbia. Extensive Hearings of Terre Co., & T. H. R. on the Several School Bills Haute Evansville Relating Reorganization of the 149 Ind. 46 N.E. L.R.A. to the commissioners); (1897) (city Fox 416, Schools of the District Columbia Be- McDonald, fore of the House 101 Ala. So. a Subcommittee Com- Columbia, (1893) (board police the 21 L.R.A. 529 of on District of 59th mittee Cong., Mounts, (1906). commissioners); 1st Sess. The House State v. bill, 18442, 407, reported H.R. 15 L.R.A. 243 committee a W.Va. S.E. Ambassadors, ate, appoint other plan, under shall Philadelphia the made to Judges Consuls, public of legislature the had Ministers of State and the Court, supreme local and all other Officers a the appointive the vested Appoint- of whose the as follows: court provided not herein otherwise ments are public schools the of The controllers by for, established and which shall be Pennsyl- of district the first school pro- Law,” clause concludes with this appointed as be hereafter vania shall vision,9 duty of follows, be the It viz.: shall by Congress may common court of the Law vest of the county city Appointment Phila- pleas inferior Of- of such for the * * * ficers, proper, delphia, on or before as think year, Law, day alone, in each in the Courts of December President first * * * Departments. appoint citizens to the Heads of [fourteen] district, controllers to serve as of said by the decision This a deliberate was district, public schools of said of the Congress in its wis- to enable Framers * * years *. term of three for the of Law” dom to “the Courts authorize April 5, appoint- P.L. Act of executive Pa. to share with the May 25, ing amended, power Pa. Act of officers. of federal P.S. §§ P.L. P.S. § Story approved pro- Mr. Justice impressed was vision in his Commentaries: procedure, which had state of this success discretionary propriety The this thirty years. than in effect more been extent, Congress, to some policy adopted similar The any questioned. If dis- cannot be well 31-101 we the enactment of Section allowed, its limits be cretion should validity in I of think finds exactly being hardly could admit the Constitution. fairly defined; might left it be according act III. lights experience. difficult upon Ar rest alone We could provide com- for all the foresee or to gains support I, ticle but Section 31-101 circumstances binations 2, cl. of the from Article also might right vary in such providing that After Constitution. age appointment In one cases. nominate, President; President “shall might proper in the most be and Consent Sen- Advice age, department.10 another adopt- in which the Board Education was municipal corporation which had appointed by op- the D.C. plan Commissioners. it well. The ed and used Cong., H.B.Rep. 1st Sess. variety No. 59th position reasons advanced Congressman Fos- On the floor preferences alterna- for other based objection ter Vermont offered an amendment also that tives. There was (then to have the District Court the Su- precedent,” and would would be a “bad preme Colum- separation powers. Court of District of The violate Cong. bia) appoint Board. 40 adopted by the School amendment was over- modeled whelming Bee. 5754 This was vote of 113 Id. Philadelphia. plan adopted in after plan and the thus initiated has since Congress. General debate at 5754-63. ensued. Id. note retained And see should re- Some felt Commissioners infra. suggest- power, tain the and was also on the Federal 9. See Madison’s Notes popular ed that election would be best. in Documents Illustrative of Convention given power of Some States 682- Formation of the United President, appointment the Sec- 1927). (Tansill ed. retary Interior, or the Commis- “department” Story’s of the word sioner of Education. use ap- of Law” which focused on whether includes “the Courts debate footing proper placed pointment “the Presi- a municipal on the same Depart- dent allocation of functions within a alone” “the Heads proponents corporation. said was ments.” And see States, supra v. United example Philadelphia and cited as an Story, the Constitu- a clerk is one of the inferior officers Commentaries on (5th contemplated by provision tion of the United this States 1891). questioned. generally, ed. And see United constitution cannot be Solomon, F.Supp. 835, States v. 838- Pet.) (13 38 U.S. at 257-258. (S.D.N.Y.), contemporary dis- a This statement was not a decision power cussion of the allocation of the the Court that could confer appointment among the three upon power “the of Law” the Courts branches. appoint only officers concerned with justice. parte literally, II, the administration Ex Read Siebold, validity cl. 31- 25 L.Ed. sustains the U.S. Section however, explicitly interpretation made, 101.11 The refutes an contention is provision question lite of Hennen. the is not to be read Siebold the constitutionally Hennen, rally,12 that In the Matter of whether could (13 the confer the Pet.) U.S. 10 L.Ed. United States Circuit period appointive (1879) Court of that Court construed the power appoint supervisors congressional of “the of Law” to include a Courts only It officers manner election. was contended related in some the the could not do so since the duties of function. In Hennen supervisors entirely District Court executive ap Eastern character. The District of Louisiana had Court answered: pointed language a clerk of court. The proper is no doubt usual and upon by plaintiffs of the Court relied appointment inferior of- vest following: is the gov- department ficers in that appointing desig- here ernment, judicial, or or in executive nated, II, in the latter [Article 2]§ particular department executive part section, was, doubt, no ap- which the duties of such officers intended to exercised de- pertain. re- But there is no absolute partment government to which quirement to this effect in the Con- appointed ap- the officer to be most ; were, and, stitution if there propriately belonged. appoint- many be difficult eases to determine properly ment of clerks of be- department proper- to which office * * * longs law; to the courts of and that ly belonged. Constitution, 740 at 743. “The in dis- comma, form has “alone” followed a tributing powers government, cre- dash, significance not a so that if is to separate depart- ates three distinct and punctuation be attached it would legislative, executive, ments —the strengthen seem to view that judicial.” usage departments And see same par three are on a one with “department” Hennen, in Matter other, subject only to the discretion (13 Pet.) 10 L.Ed. 138 Congress. parte Siebold, And see Ex (quoted Siebold, infra), parte in Ex 100 U.S. 25 L.Ed. 717. (quoted 25 L.Ed. 717 reading 12. Of the Article course literal- infra). ly necessarily presuppose we it re- establishment, Plaintiffs assert the word “alone” fers to the federal dash, followed then “in the but we do construe “such inferior Law, Officers, Congress] Courts of the Heads of De- or think [the partments,” appears George proper” Ma- as identical with “Officers of Constitution, son’s Notes on the United States.” United States v. Ger- Earrand, maine, 508, 509-510, Records of the Federal Con- (1937), suggests vention of pyramid that would allow the President If a clerk of court is an “inferior Offi- meaning either de- executive cer” within the partments judiciary but would cl. difficult to exclude from appointing power category confine members of the Board of body Education, “Courts of Law” and created Act of “Heads Departments” respective Congress. spheres. final The Constitution by injuries the suffered stands, on claims for the the Constitution [A]s the from Amer- power, of Florida as inhabitants appointing selection rightfully army held named, ican in were the functionaries

between powers upon not impose the courts resting of to in the discretion a matter therefore, judicial, were, void. looking Congress. And, the sub- duty appoint inferior of- perhaps light, But the to ject practical it is in a law, by required ficers, there, thereto when than rest it should that better courts; duty of the is a constitutional country harassed be that the should present is no the case and in there by to which controversies the endless duty required incongruity the in such sub- specific on this direction a more per- to the courts from might excuse given The ob- ject rise. have formance, Hennen, their acts void. or to render to the case of servation in 258), (13 Pet. is made which reference at 397-398. U.S. power appointing in clause the the by stat- the was authorized intended no doubt to “was referred appoint upheld the ute in to Siebold department by the to be exercised any way perform supervisors, not in to government to the official to which too, So, supervision. in the function of appropriately be- appointed most be Judges case, present the District longed,” to define intended to authorized Section 31-101 power of the constitutional Board,13 not to ad- the members of the express regard, rather to in this And Russell the schools.14 see minister be or rule which should law Cooley, v. 215. Ga. governed. The cases which Zdanok, cer- courts declined to exercise U.S. In Glidden by Congress, imposed stand tain duties 8 L.Ed.2d five upon different consideration participating de- Justices seven applies present case. in the that which judges of our Dis- cision noted that required The law which the members of trict Court selected claims circuit to examine validity Board of Education. revolutionary pensions, law though case, this, in the issue authorizing the district of the Court which involved status adjudicate up- Florida examine and of Customs of Claims and the Court 1957, Congress In added Section 31- Article I well as trict Court is an 101(b) Judges court, to allow the to remove a III there would have public incongruity duty member the Board hear- re- after been “such ing complaint quired on a filed the United the courts from its as to excuse assistants, Attorney, performance or one his acts or to render adequate affecting parte Siebold, supra “for his char- cause Ex void.” efficiency acter and as a board member.” at 398. “The law of 1792” referred provision required there This was added so the cir- Siebold would have provision removal. would be some to revolu- cuit court to examine claims proper tionary pensions; It was to vest deemed most war the law of power body appointed Siebold, which at- also to in referred H.R.Rep. Cong., Judge tempted member. No. 85th authorize the District (1957); S.Rep. adjudicate No. 85th 1st Sess. of Florida to examine Cong., injuries 1st Sess. the in- claims suffered generally accepted power of Florida the hands habitants functions, army incidental removal American 1812. Such appointment. Accord, g., said, “rightfully” e. In the Mat- held the Court supra Hennen, They sought place ter of at 259-260. unconstitutional. By adjudicatory upon 31- amendment Section its 1957 the courts deci- orig- responsibilities the action reaffirmed sional matters inally 1906, imposing taken in “controversies,” were not “cases” or duty appointing the mem- adjudicatory pow- which the or decisional bers of the Board. er of courts established under Article to admin- is limited. Were authorized though schools, ister even our Dis- Appeals, thought questioned. Congress, may Patent was not scribed opinion Harlan, of Mr. Justice be concerned with the administration justice. altogether Mr. Jus- Mr. Justice Brennan and Even if this were joined, correct, tice Stewart it does not follow probable resorting help referred to as the source of is so constrained in Siebold, 31-101, parte judges. Though Section and Ex to a court or its the Congress policy by 100 U.S. at 397-398 is cited. 370 U.S. indicated followed is authority, at 581 n. And see S.Ct. 1489. the use it makes of its dissenting opinion the of Mr. Justice Article II is couched in of terms dis- Douglas, cretion; Congress Black in which Mr. Justice has not consid- joined, empower appoint at 590 U.S. n. it can ered to supra, II, only referred to in Part of officers concerned with admin- the opinion. this justice, istration of as witness Section sixty years itself, ago, enacted case, to We are cited no legislatively since, retained re- ever none, we found holds invalid supra. That affirmed note Congress conferring appointive an Act of power so has construed its power upon judges of a a court or the narrowly by the is further demonstrated the court. In a of number instances Siebold, legislation approved parte in Ex power juris has been conferred in this Moreover, supra 100 397-398. the diction. This is not conclusive on legislative body the itself national validity, the issue of but demonstrates appointive power respects exercised congressional deep-seated the view legislative from function. removed the issue; constitutional and this is entitled 24 of the Act of 16 Stat. Section weight to the when the issue is before 419; D.C.Code; 2-201, Section and Sec- au District Court has been courts. Our interesting tion It D.C.Code. is Jury by Congress appoint thorized to Congress by to note D.C.Code also that Commissioners, 11-1401, as D.C.Code § Judge empowered 23-401 has the Chief sumed to be valid in Collazo v. perform in the Court to ex- District U.S.App.D.C. tradition a function like or- cases denied, F.2d cert. dinarily performed governor 1364; referred a state. limitation is The Register Wills, appoint D.C. The re- to in Siebold is not affirmative an judges are author Code 19-401. Its § quirement duty be of the officer appoint ized to of the District members justice. related administration Commission, Health Columbia Mental negative requirement is a And our District D.C.Code 21-502. incongruity” duty may not have “such Court, along District with all other with function as would void Courts, appoint and re is authorized power sought And to be conferred. Commissioners, 28 move United States suggested this when the 631; appoint interim and tc U.S.C. § an test in Siebold concerned with Attorneys, United States U.S.C. court, Article our whereas supra; Solomon, United States v. powers be clothed with broader Marshals, 28 and interim United States through “incongruity” The I. Authority conferred U.S.C. § safeguard, one be limitation is should Judges upon the several Chief governmental needed, protect Courts of legislative How- structure abuse. Legal Aid Trustees Board of ever, suggest tem- we should be Agency, 2-2204.15 D.C.Code § perately judiciary passing used upon offi the exercise mentioned The above legislative authority respect pre- cials, appointed courts as pow- plenary validity appointive I the Article of these legislate support for the District course finds ers of instances, also, in the local Columbia. limitations government of Columbia. There several the District judges may explained upon fully duties which more For reasons perform, no opinion dis- from the there called aside Part IV “incongruity” abling fact is limitation “cases” or “controversies” here. appointive is a limitation to. There nature of above referred that while the executive, propriety; upon policy there is never been it has based “incongruity” department re executive also limitation of limited to the Siebold; parte parte See, again, government. Ex there in Ex ferred to 397, and the Siebold, supra limitation that is the constitutional “guaran interesting the old case of discussion function be consistent Mayor City liberty” personal of Baltimore Council referred to ties of State, O’Donoghue; The mat- 455-461. is no constitu 15 Md. but there simply upon in United States follows ter stated as tional limitation based Mackey) (9 Cooper, being “non-judicial.” 124: the In 20 D.C. function * * * policy present the decision has case power appointment the Congress. “incongruity” by made so intrin- not a function to office is problem District of the is solved necessarily sically it be- executive that by present ex in the case the Columbia although longs department; to grant power press Congress in to to executive, it is whether be nature III courts with author vest even Article Legis- by by the exercised a Court or Officers”; ity to “inferior Mayor by lature the or President. scope power for this whatever City Baltimore v. Council of courts, per plainly III it other Article City of Balti- Police [Board [v. of] judges, clothed mits District our Court Board, 15 more] Md. stemming legis also Story’s Cooper to The court refers in also I, accept du lation to under Article separation, views the doctrine of imposed by And 31-101. ties Section “in limited was to be understood a “guaranties there is no invasion of sense.” personal liberty” in referred to constitutional There no subject we shall advert —a may principle judges not fully discussing proc to the due more engage officially judicial in non duties. ess issue. principle that There is the constitutional engage may separation Article III courts not doctrine adjudicatory though powers, or decisional functions ex to the nature essential cept system, and “controversies” those “cases” our is not set constitutional Constitution, explicitly referred III. The first to forth as illus Chief Justice of the United States it is in the constitutions of some sys implied the Court trated the He led distinction. states. It is in the federal give declining advisory opinions Largely to tem. reason its bound this years Washington; rigid clearly President but a few aries not or ascertain parte later he no when still Chief Justice saw able in all situations. See Ex becoming objection supra Siebold, constitutional at 397. To England negotiator gov applies American extent doctrine important Jay treaty his which bears of Columbia ernment of plenary power name. not contro This was without must take account of the versy, good part politically legislate moti for the albeit seat Jay experience government. vated. The is mentioned the nation national simply outstanding large, by express as illustration of terms of Article an may difference between functions “the Courts of Law” be cl. may by required not of Article courts to make federal be authorized appointments or their and functions of a non would be which otherwise by Executive, in made or in character which are barred some Congress. by by perhaps Since Constitution. stances appointive power Initially problem in the substantial we treat explicitly authorized, though even power is thus appointive clear, it if its boundaries are not Law” “the Courts of be exercised power necessarily to that the seem follow pursuant II of Constitu- Congress upon contend, our District conferred limited, plaintiffs tion is judges by ju- in the Court Section inferior officers associated congres- possible exercise of the fullest department.17 has never been dicial power, sional does no violence suggested hardly contended can be

separation liberty, doctrine. anyone life, deprived of process property law or without due Moreover, matter other merely the official conduct because competence of a wise within ques- appointed might an be officer not removed therefrom or cpntroversy tioned a case or controversy growing out political some appointed him. court which exercise,16 occasional and an of its Clause does not Due Process violate the complaint exaggerated public perhaps ap- authorizing a District participation find one two who or point court, deputy or a clerk or clerk of burdensome, bar constitutional at- interim marshal or United States indeed, to have rier, nor, said can be torney, Health or members of the Mental validity can the Nor been so intended. report- Commission, referees, or court appointing denied because of an er, notwithstanding official conduct carrying appointee his own out might litigation be- become involved may separate involved become functions appointing in- fore the court. If this controversy. the members The legislation authorizing validated the may held accountable Board be appointments, to make such the manner the law for follow, fortiori, would seem to a that a perform their duties. judge pass upon could not a case which IV. challenged the official action of of- the appointed ficial who him —so to hold the due further discuss We now part would cause a substantial of our although not issue, plaintiffs do process governmental collapse. structures not rely heavily upon this, opin Judge Wright in his referred to judge has a substan A who request three- a justifying his ion specified tial interest in or one of several judge the constitutional to consider court case, must personal a connections with Hobson validity See 31-101. of Section disqualify himself. U.S.C. au Hansen, supra. The constitutional v. judge litigant a And if a feels that Ar thority legislation, whether for the may personal prejudice, he have a bias or Article considered I alone or ticle filing judge disqualified have dispositive, very not persuasive, if is “sufficient U.S.C. affidavit.” process The contention issue. due possibility But the instances aris it, however, made, understand as we ing validity of Sec affect does appointive power conferred tion 31-101.18 process of judges of due is violative may litigation arise before law because permits Congress If II to em- manner over the power the District Court “the Courts of Law” to administers the schools. which the Board officers whose official functions are not notwithstanding Marshal, of course is so 16. This or members of the Mental po- rivalry, may be even a sort there Health Commission. ap- rivalry, as to who should litical States, 17. See Collins United v. Ct.Cl. ap- may pointed. be said This (1878), decided before the decision or, example, Clerk, pointment of our Supreme supra. Siebold, of the Court vacancy, appointment of a in case Attorney cases, 18. In neither of Court, Siebold, involving United States Hennen the va- Turney process of law.” v. State construc- courts —a associated Ohio, Congress’ 47 S.Ct. harmony with is in tion stringent L.Ed. 749. Dis- Such legislate for the power plenary by judges proc- rule sometimes bar trial the due I —then trict Under who no actual and who would ten- bias more even contention becomes ess very weigh do their best to the scales schools administration uous. The justice contending equally operation between totally removed parties. high perform But to in- func- ease in a If Court. of our District way “justice court, tion in the best must volving of a clerk action satisfy appearance justice.” Of- Com- Health the Mental or members of 11, 14, futt v. United at- mission, United States or an interim litigant [99 11]. torney, examples, a by legislation deprived process of due judge In Murchison a had conducted ap- authorizing court or contempt proceedings against persons two officials, point there a fortiori those having questions refused to answer legislation process no violation of due judge put had to them as witnesses ap- empowering court or grand jury” in a “one man which the point of Education of the Board members judge same had conducted under state from the remote whose duties are more law: referred than those of the officials very strange It would be if our process of course to. due contention system permitted of law gains weight no is remembered when it grand jury try act as a and then legislative plenary of Con- very persons accused as a result of gress by Ar- over this District conferred investigations. his ticle I is sufficient basis for Sec- alone tion 31-101. 349 U.S. at 75 S.Ct. at 625. applicable principles on Tumey Ohio, State referred process the issue of due were stated Murchison, to in the official authorized Supreme Murchison, in In re pecuniary to act had a in interest 133, 136, outcome; in and Offutt v. as follows: pointed judge the Court out “personally fair had A trial in a fair become tribunal so embroiled” requirement process. a basic of due defense trial counsel the actual requires displayed personal Fairness of course an absence case animosity contempt actual bias in the trial of cases. conviction system always But our of law has en- by judge aside, had to the mat- be set prevent probabil- deavored to even the by judge. ter to be tried another ity of unfairness. To this end no man Cooley proc- Plaintiffs cite on the due judge can abe in his own case and ess issue as follows: permitted no try man is cases where legislative he has an act un- [A] interest which should the outcome. judge That interest dertake to make cannot be arbiter defined with precision. void, in his own Circumstances and relation- controversies would ships because, though provision must be considered. in form a This Court said, however, “Every power, pro- for the exercise cedure which possible substance would offer a it would be the creation of temptation average arbitrary irresponsible to an man authori- as a * ** judge ty, executive, legislative, nor not to hold neither the balance nice, clear, judicial, wholly and true between unknown to consti- the State and the government. accused denies the latter tutional due congressional grounds, appointing judge lidity pass of the an official, there action validity any question of inability, on due process after appointee appointment. Cooley, persons Constitutional Limitations 356 plaintiffs the situation of (8th 1927). ed. impartial a fair and tribunal. Cooley, op. supra As shown in 2 cit. may Time and circumstances 870-71, the author had reference argue well plan; now a better but judge acting respect as such legislative policy this is a matter of com executor, estate of which he was or Congress. O’Donoghue mitted to Un pecuniary in a case in he in- has a ited 289 U.S. at terest, personal right or in which some (opinion Hughes, of Chief Justice of his own was involved. Mr. Justice Van Mr. Devanter and Jus Cardozo). tice As is well known much Nothing comparable to the being given by Congress consideration is

problems any which arose in of the above plan and others to a new for the entire situations has arisen virtue of the governmental structure of the national enactment of Section rea capital. appointments son of made thereunder. Plaintiffs do not assert that the exist We are not to whether decide wisely, ence Section 31-101 the fact of has here acted appointments judgment under it have resulted whether the it has exercised any impartial competence. denial to them fair of a resides within its In the present litigation. self-gov tribunal their And absence of a fuller measure any might District, future case which in ernment in this sonably rea performance by

volve the members could turn to men with those pre qualities Board of prob duties we believed were process ably possessed sume that by independent judges, denial of due occur reason of Section and chosen the President and confirmed appointments Indeed, appeal made thereunder. in office the Senate. The judge might before whom a come case for a better solution we think must al might nothing have had Congress, whatever do so be to the Constitu appointments when tion. aside, assuming made. But this opinion We are concerned otherwise, participat the official act of grant with an affirmative constitutional ing in the selection of Board members governmental authority Congress. preclude does not in and of itself grant narrowly should not be con process grounds ability due strued. The said Court has fairly to decide of liti the merits subject only guar its exercise is “to the gation challenging validity personal liberty anties of in the amend performance by a Board of his member original ments and in the Constitution.” particular duties as such. If in a case O’Donoghue States, supra at v. United challenge such a were made its sound 545, 748. None of these process grounds ness on due would de guaranties infringed by Section 31- pend bearing on the there circumstances by power or the exercise on and not fact that the on the mere therein conferred. or not Whether duty performed reposed had by schools are of administered members upon by Congress him in 31-101. Section guar consistently the Board with personal liberty anties of mat another Public discussion from time time ter, as would be members were the appointees, over the merits of or of those required appointed of the Board to be appointment, may place considered for by or selected some other method. judges position, an unenviable bring increase the of their re- unwelcomeness We cannot ourselves to the view sponsibility. by But of this falls far short that of the exercise ruling necessitating responsibility a constitutional that under 31-101 de- Section by ability appointing prives members of the Board the the District Court of the any deprived deprive any statutory impartially or will have to decide pointments any provisions Article II of by of presented issues constitutional agree. I Or- litigant perform- the Constitution. cannot in connection with Congress dinarily, nullifying of an Act of Board of their ance members any judge is a drastic venture. feels unconstitutional responsibilities, if or that to But the considerations will fail institutional he or she to do so unable persuade restraint courts to show when step aside. asked to affairs intervene finds We conclude Section largely government dis- other of branches plenary validity (1) in the constitutional appear review when statute respect legislative power to the Dis- with responsibilities assigning to the is one Congress trict of vested Columbia agree judiciary; all that a federal Constitution, (2) Article I of zealously duty guard court’s is to first Congress by power Article vested integrity against impairment of its own Constitution, permitting the II of the Marbury Madi- institution. See and, officers,19 appoint inferior courts son, (1 Cranch) further, (3) of these combination pre- majority ignores these is, power powers, the Article II two cepts. Today time a court first appointment, if circumscribed even impose has ever held established exercised when any court on this or other III, pursuant Article is freed here duty totally to the so unrelated clearly function. And indicators show plenary Article such restrictions poses a real threat to this that § legislative power re- I integrity. court’s and, Columbia, spect to the District of encompasses freed, thus Section 31-101. I which, Actually, summary cl. Article plaintiffs The motion of courts, course, applies judgment denied, to all federal the motion bearing question on the Judges granted has no immediate defendant to dismiss is suit, presented since members complaint. this as to Count of1 are not “Of- boards Columbia within the ficers of the States” WRIGHT, Judge J. SKELLY Circuit were, Article.1 If sense (dissenting): rig- appointment would be modes of their three-judge majority of idly courses to the alternative limited has decided that 31 D.C.Code, present II. But charted alternatively by (1961) is sustained sprinkled past practice instanc- are ap- I and the District clause in which District officials es Senate, 19. Even were a restricted construction Advice Consent given appointive power pub- Ambassadors, Article II to the other shall Consuls, Judges “the of Law” such construc- Courts lic Ministers plenary legis- Court, supreme tion not affect other Offi- all and States, Ap- lative over this District vested whose cers pointments the United Congress by Article I. otherwise herein provided for, could not confer a Dis- and which shall be estab- Maryland authority ap- Congress may trict Court in point lished by Law: Maryland, Appointment a school board Law vest authority up Officers, prop- has no to set a think as inferior Maryland alone, er, school board. It has in the Courts in President District, Depart- in Law, to create a school this board in the Heads of or “courts” there are here ments.” power appointive may be conferred 11 the United other Officers “[A] II, under as Arti- Article well as under apparent antecedent of States” is I. cle phrase Officers,” “such inferior passage on at the end the clause 2, 1. el. 2 : Article reads § “ * * * President] [the he the court relies. nominate, shall and with the 920 by processes judicial However, chosen alien II.2 in to Article eials branch. language education, of Article II 101 has never § concerns a board of straining comprehensive body

taken as “totally toward which the court concedes coverage; by construction, judiciary. traditional or- If, removed” from the as the dinary employees clerks, minor contends, federal Article II sustains 101 § — inspectors, lawyers quite independently even I, excluded of Article it would —are “Officers,” equally at least when validate the conferral of similar language hospit- appointment silent.3 And that powers upon federal dis able to a District; distinction between officers trict hypo courts outside the capital the nation thetically, and of the nation’s these courts could be instruct city. ed to nominate the board directors Community Agency of a local Action or Because District of officials Columbia Project operating Head Start under qualify do not the United “Officers of Opportunity Title II of the Economic States,” justify Article II cannot § 516, Act.4 78 2781- U.S.C. Nevertheless, §§ if II Stat. does authorize (1964), as amended. In like manner generally, Congress’ federal courts be- majority’s logic impel hest, appoint inferior federal officials oblig affirm not 101 but a statute judicial branch, § other than the ing appeals, a federal court of for ex would seem unreasonable hold that fed- ample, appoint board members of powers eral courts here have lesser with agency, respect appointment administrative or one to the of officers of government. fastening way, comparable local appointive District In this duties expansive reading the court’s of Article on the Court itself. might II influence the dimensions Con- The court must shoulder the burden power over federal courts egress’ defending convincing arguments deal, therefore, I District. constitutional construction instinctive- so court’s construction of that Article. ly hostile to American constitutional unquestionably empowers II my judgment, argu- tradition. In Congress to confide in the courts control very ments fall mark. short of this ancillary appointment over offi problem, first, escaping There is no ()., (1961) (two 2. E. 2 D.C.Code “incongruous” § courts tasks that are members of District Anatomical Board ap- function. But then it picked Surgeons to be pears General appoint- to decide that duties Army Navy); (chairmen ment, opposed § to the administrative appointees, committees Senate House tasks committed to the never one member Ar “incongruous.” of District connection it this mory Board); 101(b) provides Act of ch. § should be noted that § pp. 2 Stat. xxix-xxxi D.C.Code for removal of school board members (1961) (District mayor court, course, to be selected 101(a), and under § appointees may board of aldermen and board of common re- or council); appointed. 2 Stat. Act of ch. (1961) pp. opinion xxviii-xxix D.C.Code The court’s does find or council). (public city See rely any triviality election of the stature Thomp responsibilities R. District of Columbia v. John of Educa- Board Co., 100, 104-110, tion, body son 346 U.S. 73 S.Ct. whose members this court (1953) (home appoints general rule 101. The lan- constitutional). guage of Article II renders such a dis- tinction of relevance. And the dubious Compare Burnap finding rightly could not v. United be made “perhaps 64 L.Ed. 692 case. Education the most important (1920), rel. Crow function of state and local United States ex governments,” Mitchell, App.D.C. F.2d Brown v. Board of Edu- Siebold, cation, (1937),with Ex parte (1954); (10 Otto) 98 L.Ed. 873 to con- 25 L.Ed. 717 trol the character school board is of the community pro- majority grants lever to a affect that Article II 4. The foundly. Congress assign to could not authorize

921 * * * no appointing power II, reading “the from the “literal” of Article by the simply doubt intended to be exercised it II not Article true that government to which department of (cid:127)expresses any meaning quite so clear. appro- appointed language to most very naturally officer Its admits the Subsequently, belonged.” reading priately common-sense that courts of law statutory Siebold, approved a the Court meant and the other listed offices were appointment arrangement requiring appoint only those “inferior” officers by the cir- recently supervisors meaning election to them. This was the on, how- leading went courts.6 The Court attributed “inferior” a stu- cuit puzzling ever, to comment somewhat dent of the Constitution. Corwin, correctly ex- language Hennen had that and Powers 1787- Office President: pressed or rule “the law (4th 1957). 1957 75-76 ed. also See Col- governed,” under [Congress] should be v. United lins 14 Ct.Cl. 574 “in II, and then (1878). volunteered Article dispute, No one would for ex- in- no such present is required case there ample, the congruity contemplates that Article II duty Congress may permit Secretary ap- point only performance, assistants,5 his its own courts from not excuse personnel any of the other executive their void.” render acts or to departments. reading And fully the narrower developedmore reasons For at 398. apparent pur- harmonizes with the most assigned duties hereinafter, this court’s pose of Article II: to let clothe its incongruous with are 101 § necessary Secretaries and courts with the practical status, since Article § filling vacancies con- relegates District citizens effect (cid:127)own staffs. Board grievances against the stitutional support To position, its II court whose to this majority language next relies one ambig- conflicting Moreover, and Board. opinion, parte Ex Sie- century cases language in 19th uous bold, (10 Otto) mak- preclude this court should (1880). Hennen, '717 Matter of ing independent evaluation its (13 Pet.) cognate guidance II, those (1839), ap- upheld the Court throughout print felt pointment whose doctrines a district court of clerk saying of court structure. under Article our constitutional contemplate dures, now, granted 5. and Since lias then these complaint permissions, answer submission immediate subordinates deposi- Department opportunity provide to secure now Secretaries all XI, appointed pursuant general pro- tions, Feb. ch. Act of amended, is, 201- vision of Article II: §§ 2 U.S.O. Stat. expected (1964); make President advice and consent apply findings of law. Senate. rules of fact Scharpf, Review Judicial See 6. Under Anal- Functional Qxiestion amendments to the Enforce Political —A TjJ. Act, (1871), ysis, ment 16 Stat. Rev. Yale (1875), supervis gave Stat. Tit. XXVI circuit these The Enforcement Act itself jurisdiction ors were to do no ballots and count more than witness con gressional munici- elections winners state to find out whether declare the qualifications voting dep- evenliandedly alleged pal were contaminated elections applied. Apparently right on account then to to vote rivations report irregularities CXIV, 16 Stat. ch. the House of of race. Section Representatives, (1870), progenitor of 28 U.S.C. use as evidence if were, requested supervisors the House were to exercise responsibility auxiliary judg then, its constitutional to the administration ing congressional justice. Certainly they legislative the outcome of no elec had U.S.Const., I, responsibility tions. Art. cl. 1. for de- or administrative veloping policy. When the House so sits to elec tions, supervisors pro- repealed exercises function which is n characteristically judicial; proce- visions Stat. Finally, indulging pur- nonjudicial in the court cites statutes activities. This portedly establishing deeply policies encircling sensed doctrine and the it present congressional understanding resolving that should be in instrumental what- ambiguity of Article II those it ever boundaries are II. in Article inheres singu- But now identifies. larly its citations Under Article III of the Constitution any congres- fail to uncover by permit- implication federal courts are practice. sional All but two of the cited engage only ted to in that business which merely judicial ap- enactments authorize “judicial,” only is judicial mat- pointment personnel,7and of court-related ters in what which become incarnated appointments II sanctions these the Constitution or calls “cases contro- reading. any exceptions, The versies.” The Constitutional Convention Siebold, course, re- are the statute in pristine scruplous arrived set- pealed To advance and 101. § § deliberating on, tlement rejecting after congres- ingrained manifesting as an end, proposals in the sional are view that statutes like § have associated federal constitutional is a wondrous instance Legislative Branches, and Executive bootstrapping. obligated Supreme or file Court to Rather, congressional prac- if historic advisory opinions request.9 upon due germane ques- tice is to the constitutional Shortly afterward, celebrated en- tion, impressively supports narrow- Jay’s counter in preme Su- Chief Justice II; for, apart er construction of Article politely spurned Court President super- passing from 101 and § Washington’s enlighten request Siebold, visors status we moot by rendering advisory the nation terpretation in- instances, past present, are cited no or provisions in treaties be- necessary in which found it or France.10 tween the United States proper impose on federal courts the judicial responsibility appointing elaboration since then of- particular restraints latent ficials whose duties are unconnected with negative judicial in broad commandments of Article tradition function. This revealing history. harmony III If is if familiar is in exact law, be sub articulated resolution a case will insistent doctrine of our ject subsequent history, or revision kindred and constitutional Executive, Legislature judiciary action refrain from the federal intended, Health, suggestion, if 7. Even the ture. This Commission on Mental anything heresy, unsupported by appointed in his- District Court clearly tory, law, (1961), or the commentaries. case D.C.Code very great anomaly enough if would be a powers courts’ a servant of the court. Its statu reports accept tory responsibility increased tasks “make judicial. decreasingly And the court tasks became and recommendations to * * * necessity majority prepared fully to em- of treatment * * * thesis, persons,” act of Arti- insane is to brace this its discussion superfluous; equity court.” I II would be “under direction of cles non-adjudicative. Appeals unquestionably in De As Court of said Overholser, U.S.App.D.C. Marcos Hughes, See the accounts 9. The Su- (1943): 131.132,137 F.2d 698. 699 “The preme op Court United * * * passed statute was in 1938 (1928), and Hart & Wechsler, 27-29 recognition fact as The Federal and The Fed- Courts experts essen sistance unbiased System 13-14 eral dealing with in tial to assist courts in sanity collected in cases.” See the source materials op. supra Wechsler, eit. Note Hart & points opinion At several court’s 75-77, and in 1 War- the accounts hinting seemingly limitation, denies this Supreme ren, The Court that, while the or contro instead “case History (1922), and versy” requirement powers modifies their op Haines, The Role judicially, remain act federal courts accept responsibilities American Government somewhat free to non-adjudicative entirely in na- 1789-1835 143-145 Politics

923 hand11; camouflage legislative stay to its the federal court must the character similarly up is to abstain from social decision bound and shore ac- any ceptability by committing adjudicating ju- for which rea it to the lawsuits diciary, authentically adversary thereby cashing judicial son character lack an on the reputation. ; presented critically, public 12 must issues Most con- the judiciary legal indispensable dress but must fidence the is assume susceptible by judicial operation law; yet be the to resolution of the rule considerably quality placed methods rather than is in risk whenever judges competing step policies freer choice the courtroom into between outside legislative political activity. Judges which and ad vortex of characterizes decision-making.13 entanglements, should be ministrative saved “from the partisan suspicions, at times the so of- While un- this cluster of restrictions conflicting ten the result of other and doubtedly variety of constitu- reflects a 14 duties.” policies, tional run common threads through apply them all. These that attention considerations with more One extrajudicial than is an usual 101. unwanted force to The duties activities imposes ought periodically diversion from in a what result serious judge’s drain focus and commitment: exclusive the available work time of deciding judges.15 that, weighing appoint- district inas- cases. Another In judicial inappro- much as ments to method is Board the District School priate judicial issues, beleaguered coping frequently non has been special appeals competence groups lobbying federal have no of civic disposing against candidates, espousing or these is- them. Since choice, po- apply sues involve it is standards for in mak- democratic the court ing litically illegitimate assign appointments16; them to committee judiciary, judiciary which is neither District Court responsive actively responsible public nor screens nominees has sometimes Moreover, public will. misleads the solicited recommendations.17 Haybum’s Case, Dall.) 409, (2 1953, p. 1-A, 11. Judge 2 U.S. col. 6. 1956 (1792); Kirkland, 1 L.Ed. 436 United R. James head the commit- Ferreira, How.) (13 40, nominations, 54 U.S. tee which reviewed (1852). quoted saying: spend 42 as “I more time * * * on school business than Johnson, 302, 12. United States v. taxpayer if sometimes I wonder (1943) 1075, 63 L.Ed. S.Ct. 1413 87 getting money’s Washing- worth.” his (feigned case); Pierre St. v. United Post, 1956, 12, p. E-2, ton Feb. col. 2. States, 910, U.S. (1943) Washington (mootness); 16. L.Ed. 1199 Musk- Post news stories reveal following groups rat v. have cast S.Ct. influence: Federation Civic Associa- (June 26, 1949, p. 15-M, 8); tions League col. Co., 13. Prentis v. Line Atlantic Coast (April 15, of Women Voters L.Ed. 150 1-B, 7); (Feb. col. N.A.A.C.P. p. (1908); Weight, Federal see Courts 6, 1954, p. 15, 8); col. 15§ (March of Parents and Teachers Richardson, 1956, p. 14, Matter N.X. 3); col. Americans for Dem- (1928) (Cardozo, 160 N.E. (May 16, 1957, p. ocratic Action B-2. J.). 2); C. League col. Urban Central (June Northwest Association Citizens hearing Legislative- 15. At a before 1). B-4, groups col. Other p. Judiciary Subcommittee of the House in reported public positions to have taken 1953, the Director of the Administrative Congress Heights include the Citizens Office of why Courts U. S. was asked Association, Washington the Greater Judge Chief Bolitha J. Laws needed Council, Central Labor the Fort DuPont $10,000-a-year administrative officer. Association,, Civil and the Northwest He answered that “such duties select- Boundary Civic Association. ing ap- school board members ‘take an preciable Judge Washington amount time Post, 1956, p. 15, Feb. ” Washington Post, 3; Laws.’ April June p. B-2, col. col. 2. subject samples questions com- of editorial These are ultimately rebuke, depending perplex on the de mendation and educators can papers’ quality qualifications termine the national life. estimation our appointees, If and those selection of Board of Education agency public responsible act, serve school overseers.18 be a charged appointment inform with must The issues with have many positions itself of can selecting necessarily involved become questions didates on of the various edu charged highly board with members are begin policy cational to make at least and issue, political The emotion. race its own decisions where educational one, widely cropped up variant wisdom lies. years whether, before contexts: in the seg inhering 1954, remain District schools should Those hazards ac- 19; desegregation regated pace extrajudicial occupations ceptance af quite fully in Bol within the ter the Court’s decision then realized ling 497, Sharpe, experience 101. District Court’s § 20; .693, (1954) further, measure, racial In hazards 98 L.Ed. 884 some 21; composition Board itself recur federal School will whenever and, years, especially appoint government the racial in recent told to administra- ostensibly impact policies moti tors work is not connected whose discriminatory judiciary; and, vated considerations. the measure while may vary, de be will seldom evils Apart race, public from education minimis. priori today about riven keen debate youngsters techniques. ties and construction Should constitutional Avoidable taught phonetically entailing widespread or to read so a sacrifice appreciation principles and un- instant of entire words not be Article III should phrases practical in lower schools considera- ?22 Should dertaken unless mainly neighorhoods compelling. im quite class seek in its tions favor are supra, Siebold, plant instead endeavor vocational skills or advanced The reason general explaining educa Article to confer a traditional its treatment par- difficulty classifying and tion ? mixture of academic What is that public practical qualifications positions should ticular as within outside seeking judiciary initia and schools exact those would trouble teaching profession ?24 construction tion into the narrower courts were the Washington Post, Washington, g., 43- June In The D. Schools 18. E. C. p. 14, 1; (1957). p. Dec. col. col. (judges’ la “have worked out selections petitioned Negro groups 21. In 1962 mentably years”); in recent June representation greater on the 1; 0, 1952, p. p. 4, col. Oct. Washington Post, Board. See June 2; April 2; 1952, p. 8, col. col. Oct. p. 1962, B-4, 1. col. p. 1; 4-B, June col. Dalliman, A-16, 20, 1962, p. p. 14, 1; 22. DeBoer & See col. June Teaching Reading (rev. 2; April 9, I960, p. A-10, ch. 6A ed. 1. col. col. 1964); spectives (ed.), Per- New Mazuriciewicz judges de- 19. 1949 the District Court In Reading Instruction outspoken oppo- reappoint clined to an (1964); Gans, Fact Fiction segregation, in- nominated nent of (1964). Phonics About who, Negro another while he stead desegrega- Compare Conant, against segregation, And Sub- felt 23. Slums Rickover, (1961), Ed- education tion “takes a matter urbs ch. bring Washington Post, (1959); see June Freedom about.” ucation 28,1949, B-l, p. generally Burns, col. 2. & Problems Brauner Philosophy in Education consid- 20. an account of the Board’s For gradual desegrega- policy Conant, of a Education eration See public Koerner, tion, (1963); stirred its clamor American Teachers integrate rapidly decision to of American ultimate The Miseducation Hansen, possible, (1963); Mayer, see Miracle Of Teachers The Schools Desegregation Adjustment : Social ch. 19 non-adjudicative responsibilities 398. But embraced. 100 U.S. at regular judges. surely is room for deference court there congressional judgment on individual reasons, my For all conclusion these situations; concludes if permits is that II officer it is debatable whether require court a.federal judiciary executive or in an is in the personnel meaningfully affiliated with department, allow- II it can under Article judiciary. Therefore, no affords ábly appointing him commit the basis § to either one. II argument, elaborating II justification sup The other tendered places repeated on the reliance the court port I, cl. 17 is Article § duties fact 101 confides affirming congression Constitution, “judges,” There itself. legisla al “to exercise exclusive indicating uneasy tradition is rather a tion” of Columbia. over the District extrajudicial judges may on take authorization, Con Pursuant to this Hayburn’s public responsibilities. See gress juris of limited created courts (2 409, Case, Dali.) 1 436 2 L.Ed. U.S. juve civil, diction to criminal and handle (1792); Todd, 54 U.S. United v. States arising nile cases the District under (1794). (13 How.) 52, That L.Ed. 14 47 code; Columbia common law and congressional practice has come under years.26 for serve terms ten disfavor; fire25 and stands now “legislative prototypes These widely should felt that federal a by Congress under courts” —established assignments accepting abstain legislative I au discrete items of Article public except pressing in situations jurisdictional thority and free from the assignments any event, these need. In III. strictures of Article judges, not run to one or individual two man, whole; as to the to the court Court United States District office; they are without Appeals for the United Court of judge personally con effect unless the different have a of Columbia the District therefore, provides practice, sents. The endowed and function. While stature 101, imposes help no at all for § competence special certain over unit a con as a collective court cases,27 significant local classes of officially. tinuing obligation To act juris the entire are invested as well with constitutionality fact that let on the turn enjoyed spectrum federal dictional “judges” than rather said appellate courts elsewhere: trial * * * significance “court” attach critical complete.” parallelism “The draftsmanship. a trivial detail 156, Klesner, 47 T. v. 274 U.S. F. C. argument Lastly, “judges” were the (1927). The 557, 71 L.Ed. 972 S.Ct. sound, by its it would nature Con question presented here is whether logic no I can discern life of its own. assign gress may court to this federal limiting specially tying Article it to appointing a school board task of Alone, I. Article or for that matter turns, question That the District. legitimate then, well least, it would § on whether extent some legislative I or assigning Article provisions varieties court under as other ; Appeals) Report 1966) (D.C. Judiciary (Supp. 25. See on Court of Comm. V House Sessions) Nonjudicial 902(c) (Court ; Judges in § Offices General § the Use Government, S.Exec.Rep. 1502(c) (Juvenile Court). in the Federal Cong., No. 80th 1st Sess. 321(a), (as 521 27. See D.C.Oode §§ 11 961(a)), (Supp. qualified by 522 26. Jurisdiction: D.C.Oode 11 741- §§ § 1966). By congressional designation 1966) (D.C. (Supp. Court V V 742 superior Supreme Appeals); also a 1341 Court §§ Sessions); (Court 11 1551- court the District of of General Columbia. §§ Court). (Supp. 1966). (Juvenile 101(2) D.C.Oode V § 1557 702(c) D.C.Oode Term of Office: 11 926 III, blatantly unjudicial or both— risdiction so under in sub- Article

constitutional litigation subject contemplated conflict stance and form as that of much so, ing jurisprudence.28 justified 101.31 Even its Court rulings only thesis that District Initially Appeals for this the Court of Columbia courts were unaffected Court, that this District Circuit concluded Electric, supra, Article III. See General having established 389; parte 281 U.S. Ex 50 S.Ct. incapacitated III, thereby from func- Corp., Bakelite 49 S.Ct. administratively. tioning Macfar- In re 73 L.Ed. 789 appeal land, (1908), dis- App.D.C. 365 30 54 missed, U.S. S.Ct. Then, only years three after the Gen however, Later, (1909.29 with- L.Ed. case, dramatically eral Electric the Court space years, of seven changed direction. indicated that thrice United jurisdictional (1933), held legislative organized purposes States courts the District were Pow- Potomac Electric courts. Keller v. courts whose were due Co., er U.S. S.Ct. salary protections and tenure (1923); Co. v. Postum Cereal L.Ed. 731 gone Having far, Article affords. so Co., Fig Nut California declined to reverse Keller (1927); Federal progeny completely, saying instead Co., General Electric Radio Comm’n v. acquiesce would Article I continued 389, 969 464, 74 L.Ed. 281 U.S. 50 S.Ct. jurisdiction courts, for District federal cases, (1930).30 all in- In none of these theory they on the were able to receive pro- volving of administrative review jurisdiction statutory ju- Ar ceedings, at the same from approved time was the tort, regularly perform (1964); tion courts Notes, 401 Nw.U.L.Rev. 28. See 58 litigation. contract (1963); and eminent domain Yale 71 N.Y.U.L.Rev. 302 38 proceedings 132, Review be- interference (1962)'; 979 62 Colum.L.Rev. L.J. gun Office, in the Patent into (1962); Casenotes, called 139-142, 76 question Postum, supra, perfect- (1962); was Harv.L. Harv.L.Rev. 160 47 ly judicial except an lack asserted (1933). Rev. 133 judicata appellate of res for the deci- in Moss dictum overturned 29. Macfarland opinion sion. And a later Court has (1904). App.D.C. States, v. 23 475 United practically confessed that the character- prior the text-writers The consensus of jurisdiction nonjudicial ization of this was 1920’s the brace of decisions Zdanok, was error. v. Glidden Co. 370 District courts in the United States 1459, U.S. 82 S.Ct. 1501 solely III. under Article were created (1962); 11, n. see id. at 605 8 L.Ed.2d g., Burdick, Law the Amer- E. (Douglas, J., dissenting). 671 General (1922); Dodd, 92 ican Constitution Electric, supra, concerned review of the District Co- Government F.R.C.’s renew refusal a radio station (1909). lumbia 136 license; license renewal raises issues so adjudicative agen- in nature that even holding in these three 30. The each of usually required cies are only afford III barred cases was trial-type hearing. g., appellate license-holder E. ultimate decisions review Loan, Jordan, Technically, Inc. Columbia Auto v. 90 Supreme in the Court. U.S.App.D.C. 222, (1952). 196 then, F.2d 568 of D.C. Court’s discussions In each of jurisdiction dicta; these situations identifiable how- court ever, parties appear Court, adverse would Electric General lawyers court flanked would appeal, who dismissing an stand let while evidence; argue from the appellate rewritten which had decision proceeding, structure of a not con- Compare while v. Brownlow order. Commission clusive, 263, Schwartz, Prentis v. Line Atlantic Coast 261 43 S.Ct. U.S. (1923). Co., 226-228, U.S. S.Ct. (1908), usually 53 L.Ed. 150 verifies Keller, supra, involved revision controversy. embodies a case by the District of valuations set Court Tutun 270 U.S. Commission; D. as- C. Public Utilities (1926). sessing property a func- S.Ct. 70 L.Ed. 738 the value tirely years hypothetical; since tide III and the District clause its announcement not once it been 1.32 uphold any specific assignment utilized to hybrid jurisdiction This dictum marked administrative business to a law, departure prior a clear District, court or elsewhere.34 pervaded by unquestioned had legislative assumption Only raising I and III were that Articles two cases ju- mutually exclusive sources of federal issues have come before the vigorously decided; authority33; O’Donoghue dicial it was since was O’Donoghue opposed in itself Chief cumulative effect has been to cut away Hughes sustaining logic. its In Justice and Justices Van Devan- dictum’s Cardozo, posi- dissenting, ter and whose National Mutual Ins. Tidewater Co. v. Co.,35 these, major relat- tion the limitations Transfer first of “[i]f ity ing qualified 1 of Ar- courts established under the Court the doctrine applied provided District ticle III to courts of the exclusive buttress necessarily hybrid Columbia, they pre- jurisdiction notion.36 attaching O’Donoghue vent the to the latter courts Mr. Justice had Sutherland jurisdiction powers Congress’ plenary powers of an administra- said that legislate justified tive sort.” 53 S.Ct. clothing at 751. And dictum has remained en- Article III court with ex logic immediately ciding underlying 32. This threatened the cases to search out viability principles inquiry of at least General Electric. rather than end his jurisdiction language seemingly Article I when he encounters apparently acquired only point. can if See Graham v. Brotherhood congressional management Firemen, relates Locomotive District; jurisdiction assign- but the 70 S.Ct. 94 L.Ed. 22 fit, contrary, ed in that case to the into 35. 337 U.S. regula- scheme nationwide economic Tidewater assessed the Zdanok, See tion. Glidden Co. v. constitutionality present 28 U.S.O. 580 & n. 1332(d) (1964), which defines the Dis J.). (1962) (Harlan, L.Ed.2d 671 purposes trict as a “state” for of statu offensive, example, would be gress if Con- tory diversity jurisdiction. Two Jus draw from the could United States (Rutledge Murphy) tices concluded Appeals advisory opin- Court of here an that the District was a state within the constitutionality proposed ion on the diversity clause; sense of the the re legislation. national maining disagreed. seven Three Justices Canter, (Jackson, Burton) 33. See American Ins. Co. v. Black and concluded Pet.) (1 (1828); assign U.S. Katz, 7 L.Ed. 242 could I Article Legislative jurisdiction Courts, gen Federal to the federal courts erally; this, six Justices denied ve Harv.L.Rev. hemently. favoring The five votes Compare States, Lurk v. legislation provided majority, although a U.S.App.D.C. 238, (1961), 296 F.2d 360 proposed each of the two theories grounds, other on sub nom. affirmed vindicate the statute was voted down Zdanok, Glidden Co. v. 370 U.S. majority. Compare a the discussion (1962), 82 S.Ct. 8 L.Ed.2d 671 judicial voting procedures Murphy, in only applying which is the District case Strategy Elements oe Judicial O’Donoghue any branch in man (1964). Tidewater decided the issue for ner. I am aware of no other field of parties it, apparently before constitutional regularly law in which so dicta are lasting precedent a the consti candidly discarded and so ac tutionality 1332(d). of § knowledged intrinsically lacking in be compulsive O’Donoghue authority. See opinions 36. At least four in Justices two itself, 740; arrayed 289 U.S. at op- S.Ct. Tidewater themselves position Williams v. United 289 U.S. to the notion of a dual status (1933); 13 S.Ct. 77 L.Ed. 1372 for United States courts the District. National Rutledge’s opinion reproved Mutual Ins. Co. v. Tidewater Mr. Justice Co., complexities Transfer 604 n. contradictions, “the (1949) 69 S.Ct. 93 L.Ed. 1556 subtleties which have surrounded (Jackson, J.). A federal is there courts of the District of Columbia obliged fore nowhere more ‘legislative else de- maze woven court— traordinary jurisdiction jurisdiction might I Article over I Article which concerning portfolios. matters But found to District. remain in their Tidewater indicated that the District Congress’ Since I Article over permit clause in and of itself does not customs, patents, and the settlement jurisdiction to attach such com- liabilities is first blush as at generally; federal district courts six plete and exclusive that over District spurned suggestion Justices there matters, O’Donoghue Glidden and are regular legit that a federal court could easily reconciled; Glidden, most after imately acquire jurisdiction, a mixed even might O’Donoghue remain of the legislation authorizing explicitly under Congress may, dictum is that under the grounded in the District ex clause and other, District clause of I but no Article pressing Congress’ policy deliberated invest one or two Article III courts with giving litigants due to fed access business, Article I the courts if eral forums.37 physically are located within District. easy general capture It is not a consti- Tidewater, O’Donoghue might After principle tutional which can rationalize assigned practical- have been rather result; unusually particularized so a satisfactory perhaps explana- minded but say that are sui the federal courts here III, tion that circumvention of Article generis conclusion, assert not to is to applies intolerable if to federal courts develop logic explain the could which generally, can be condoned if isolated to congressional authority Ar- to overcome special prop one or two courts. But that begetting seemingly III ticle these swept has been aside the recent deci- aberrant institutions. Zdanok, sion in Glidden Co. v. come, then, surprise It should no L.Ed.2d 671 opinion,38 prevailing the Glidden There, recognizing after that the Court of guise O’Donoghue, interpreting Claims and and Pat- the Court Customs considerably. probably fact modified it Appeals III, ent within argument blunting In the course insisting Court, to as- enables purity, indicated would be forbidden sign extrajudicial duties to two exercising any from thereafter incidents District, happen to sit within the controversy run- constitutional court’ geographical of that link. This because ning through con- decisions this Court’s Watson, suggestion, criticized cerning them.” Legislative Concept Court: A Con 1184; and Mr. Justice Frank- Fiction, 10 Geo.Wash.L.Rev. stitutional expounded furter im- doctrine 799, (1942), specifically argued O’Donoghue plication repudiated 820 was on this Zdanok, in point. 648, and rebuffed Glidden Co. v. 652, at S.Ct. 337 U.S. 69 530, 580, 1459, L. 370 U.S. 82 8 S.Ct. 1173. (1962); Glidden, Ed.2d see Brief 671 question was located 37. That the court in States, for 104-105. District, Maryland, in outside did opinion support deprive 38. The Mr. Justice Har- statute lan, joined clause, Brennan and Justices for clear the District gov- legislation, Stewart. The Chief Justice and Mr. Jus- if it that is related to separately legal erning District, may tice concurred because Clark ef- they beyond reached conclusion See Cohens fects its boundaries. question Wheat.) Virginia, (6 were created under courts v. 19 Com. of U.S. by independent reasoning. (1821). 264, 425-429, 5 L.Ed. Con- 257 hybrid They agreed, however, gress, example, could define the sub- wrong, governing those would be status courts contracts which stantive law any opinion though intima- is absent party, and a District citizen is a even plurali- they disagreed agreements tion that are entered into ty opinion’s reasoning point. Maryland on that or elsewhere. sued dissented, Douglas Conversely, Black and Justices the constitu- demeans did suggest Frankfurter and White Justices the District tional issue empowers Congress freely not sit. to ma- clause nipulate jurisdiction courts of federal

929 Tompkins, 64, signi- Erie R. R. v. 304 question, U.S. 58 it read 817, (1938). following: On its S.Ct. 82 L.Ed. 1188 fying the regularly criminal side Court the District are, of federalism “The restraints including rob- tries serious local crimes — powers course, ex- removed bery which, of- as federal murder — by Congress within Dis- ercisable beyond ordinarily us,41 * * remind ficials are Thus limitations *. those trict jurisdiction. sweep of federal implicit or contro- rubric ‘case in the versy’ spring Framers’ from the These all features stem from the ab- unduly upon anxiety intrude not to judicial sence here of a state establish- general jurisdiction courts of the state jurisdiction comple- ment whose would * * * application in need have no jurisdiction ment and dovetail with the 580, 82 S.Ct. 370 U.S. the District.” assumed the federal courts. Ken- See 1489. States, (12 Pet.) dall v. United U.S. 37 (1838). inoffen- And 1181 these draws attention This view features, strongly suggests, ways of Columbia Glidden de- sive undeniably unique fine the outermost limits of the extraor- courts are federal They dinary jurisdiction judicial system. of the District federal the federal within urgent 42; occupy daily proceedings and courts cope probate need what jurisdiction past otherwise abe vacuum have entertained hardly accept oth- licenses this court to func- of the law divorce—areas over legitimately judicial. tions in whether no sense must shun er federal courts significance jurisdiction diversity of Glidden’s discussion or alternative majority law of common cited in anoth- As bases are satisfied.39 «¿«willingness context, er absence the Court’s are free even citizenship ordi- there to locate 101 to entertain of diverse apply opinion displays actions,40 nary those Article That I.43 civil they independ- shrinking O’Donoghue legal caution in not ex- doctrines which cases Compare pressly plain ently does not alter its direc- discover or formulate. jurisdiction; Popovici v. and since the District of ex rel. 39. See State of Ohio enclave, Agler, is a com- Columbia federal its 50 S.Ct. 280 U.S. encompassed McAuley, may pro Byers (1930); mon law by tanto be L.Ed. 489 v. jurisdiction question also. L.Ed. 867 149 U.S. 13 S.Ct. suggestions (1893). These bolstered practice intermittent Republic Pang-Tsu 40. See Mow reviewing constructions our Court of China, U.S.App.D.O. 201 E.2d places Appeals on statutes the D.C. cert, (1952), denied, 345 U.S. e. Code, g., Kent v. United L.Ed. 1356 86 S.Ct. L.Ed.2d g., Marshall, rulings (1966), E. likewise Federalism Rights g., E. the common law. States, Fisher v. United Civil 66 S.Ct. Intriguing concerning wrinkles (1946); Looney L.Ed. 1382 v. Metro- juris- idiosyncratic classification of the politan R., R. need diction of D.C. federal courts (1906). Others, how- 50 L.Ed. 564 here. not be ironed out Divorce and ever, arising have assumed that cases un- lack, probate proceedings, they may while pose der our local law fail common suggests, Mr. ele- Justice Harlan questions. Katz, supra federal Note controversy,” may be ments of “ease or at 902-903. jurisdiction immune from federal court only exceptions itemizing ways because of tacit to the 43. After in which Arti- statute, diversity diversity permits enlarged jurisdiction to the cle I (probate, See Vestal clause of the Constitution. for District divorce), federal courts Implied Foster, says Limitations on & that Diversity Courts, (1961) Jurisdiction Federal § § D.C.Code (see opinion) prob- Minn.L.Rev. 1 aris- note 7 of this Cases “is ing Congress legislating ably traceable” to Acts Article clearly for the should fall with- at n. District 82 S.Ct. 1459. question regular in Article III federal perplexity And since of a III tion.44 judicial local federal courts elsewhere. U.S. at aptly distin- vacuum is a factor 53 S.Ct. 740. Even O’Don- guishing oghue, then, provides support from other the District clause little for § categories 101; congressional permitting I au- Article in to stand reliance thority, hybrid jurisdic- O’Donoghue triumph on that case is to allow dictum to Glidden, dictum, holding especially tion in re-formulated over gressive To do re- so emergent well con- harmonizes when time we are aware of how III stitutional rule that Article all other so eroded doctrinal foundation ju- I implica- courts Article are unable to receive of the dictum’s most extreme great tions, pres- risdiction. and cast on doubt viability. therefore, court, ent This history may While this constitutional grounds should on constitutional decline explicit enough fed- not be lower to coerce solely tasks, accept at least executive eral courts here to the revision- embrace there is firm when reason believe Glidden, proposed at ist doctrine damage seriously their execution would any obligation to them least relieves integrity this court derived apply O’Donoghue dictum honor and Article III. mechanical, undiscriminating in a fash- ; respects It assumption these 101 is ion the court § that this has, special first, vulnerable. abil bypass jurisdictional III limita- Article ity, opinion, ordinary exhibited in I this Part tions provides some or circumstances to embroil the in acute question District Court wheth- no answer to the injurious political controversy to its may require er it to prominence as a Chief Jus court of law. a school board. once tice Stone warned President Roose only judiciary Not does 101 bind the judge accepts that when a executive velt responsibilities chore45; grossly unjudicial but to a exposes himself “[h]e below, spelled just it serious- reasons out it, and indeed which be attack invites ly integrity jeopardizes of this inevitably peculiar cause of his situation disposition of the and interferes with its ap impairs his value and the as a coming it. before Article III business propriate of his office.”47 influence reasoning major part The O’Donoghue or not these inev Whether tendencies are idea itself to the was wedded general situation, itable independence of District’s vividly Court’s illustrated the District vigorously af- federal courts must be experience with 101. in which firmed. For these are the courts additionally, raises, government That section federal the activities unbecoming spectre against frequently of federal measured are so passing legality of their law; de- of acts rule of residents District brought justice appointees quality in suits excellent no less serve a rights, pressing includ- citizens federal than that available citizens III least at Justice scruples, inhibited anti See willing let contro- 1489: the “case or accept requirement, versy” courts the states extra-Article extent to the jurisdiction, independence safeguard if it were au- designed to “judicial.” fully thentically judiciary, “remains the federal of applicable invested least majority large conces- 46. The makes the jurisdiction solely over matters justify sion that cannot court, import.” But national jurisdiction assumption this court’s regular disposing of its in addition “incongruous” its would be business, entertains Article III also these Article III status. To that extent jurisdiction not lessen local does limited diverge only opinions their evalu- two independ- necessity preserving impact 101. ation of § ence, itself noted. Judg- Mason, 47. Esotra-Judicial Worlo for es; Stone, Tidewater, The Vieios Justice 45. In of Chief Jackson, (1953). Harv.L.Rev. Mr. 69 S.Ct. Justice integrity judicial process. right equal Fearful ing of the to edu- constitutional beings, tenacity dangers with which human opportunity. inher- The cational excluding justify judges, their ing judicial not seek to which in review of action in justifiable, way impli- presume I judge it behavior is in court or some very pri least, At recognized must conclude so. at the Constitution- cated were litigation, vate counsel school board echoed al Convention and have been antagonizing court, wary leading jurists.49 would For of our some board with the preside hesitate to condemn the a school District Court to over might imagina vigor might provoke that circumstances a serious board lawsuit bly “[e]very warrant; in members question, and board constitutional since might litigation be possible procedure volved offer a which would themselves they on average brood temptation in court as man as a come inhibited to the * ** subjection reappointment nice, to hold the clear to balance judges expire and to recall terms ac- as their and true between the State any cused, process Decisions of the court moment. denies latter due would, moreover, upholding be Turney Ohio, board law.” v. State understandably cynical popular susceptible to 47 S.Ct. pre erpretations.51 (1927), quoted The need to applied int in In re Mur- chison, just judicial integrity than is more serve (1955). satisfying L.Ed. 942 judges themselves matter they work in which the environment today, however, We need not reckon sufficiently en to interference is free public litigation with the issue whether in the law honora administer them to able deprive 101 would of its own force civil Litigants efficiently. bly and our plaintiffs 50; process question of due general citizenry be satis must also impact here whether its severe enough prove incongruous fied. Opposing proposal accomplished by to include federal state and judges gravity. in a council of revision which im- an evil of similar One stirs empowered is, however, portant have veto available: distinction King argued: legislation, Rufus criminal “[T]he involved both of those cases Judges ought expound prosecutions, to be able to where standards due them, especially rigorous. process law But should come before free are having participated rights from the bias of and constitu- secured federal op concerning Ferrand, formation.” education should tional law Records safeguarded by adherence the Federal likewise be Convention procedures. very fair turning opportunity ap- an down majority’s judicial analogy to the point the members or serve as chairman notably action is review of executive of a five-man United Ballot Com- very point the tenure strained. up problem mission set to handle guarantee release voting during soldier World War grati- any from debts Chief Justice Stone wrote: ap- running tude to the President who enough say, more, “It without pointed Justice told a new them. As one might said, action taken colleague pressures worried about by the Chief Justice in connection you associates, “Yes, are here former proposed with the administration of the Frank, Palace now.” Marble legislation subject might become pre- review the Court over which he might my political sides and that conclusions. 51. I am not alone implications political consequences Judge Youngdahl, Luther W. wholly 101 as should be dissociated decried § interviewed “contrary separation powers,” from the duties office.” to the Mason, supra Quoted Note at 208. and indicated that District (in reporter’s paraphrase) “were majority distinguishes Turney 50. The position placed in untenable because by noting particu- Murchison might try involving have to cases lar situations there found offensive the school board or members.” Wash- repeated here, going without ington Post, 1952, p. 10, investigate col. 2. Oct. whether between nexus

932 argued problem plainly beyond could be the constitutional easily by assigning judge suggested a circuit boundaries evaded Glidden. The jurisdiction pro- That items of Keller, eases. was the handle these dealt with long cedure for the Postum this case —but Electric followed and General have since been sufficient reason that district to other transferred tribunals judicial acquire here are virtue of the chal- defendants amended so as to lenge They will not form.52 101. be defend- And if still wishes to § legal attacking nonjudicial exploit judiciary ants in future actions purposes, prece- schools. The administration turn to the could inferior conclusion, supply District, potential dents no sure but since courts of the whose charged jurisdiction, subject possible with all the district while due judge pre- responsibility, process limitations, way 101 a district in no hemmed § siding charging states, Board suit over a Article III.53 Since similar- ly, legislative unconstitutional misfeas- with serious or attach duties to the sponte disqual- probably ance should non-Article III courts of their own crea- sua * * * ify tion, appellate “so connected himself as but not trial and to federal * * * any party sitting there, parity as to render courts between improper, opinion, majority sit his him to states the District which ** * opinion requires genuinely pres- on the therein.” 28 U.S.C. trial would be (1964). if, fact, And we could 455 ent. § District Court be assured that The federal courts in the of' District himself, would clear would recuse we have long Columbia labored under the de- nonjudicial evidence that function pressing psychology of the old line fully perform unfit has him rendered appeared that, cases. Just when primary role. his help Court, we would gain recognition full, soon unadulter- precludes To Constitution hold that the independence ated III status and judicial acceptance of tasks as these equal throughout federal augur appreciable no inconvenience country, today’s decision turns back the stewardship in its over holding that, all, clock after we are Presently the District Court District. Congress. still vassals of Appeals and the exercise Circuit Court respectfully aside, I jurisdiction, dissent. practically no § scope courts. Glidden Co. v. in the Keller 52. The review Zdanok, 53, narrowed, n. at 580 Act S.Ct. Au- statute 1459, (opinion Harlan, 882, 2, 8 L.Ed.2d 671 gust 27, 1935, Stat. 43 D.C. § J.). (1961), review is so Code jurisdiction judicial. The Postum now 1906, enacted, 53. reassigned when 101 was Court of has been police Appeals. local inferior courts were a Act of Patent Customs and ten other “courts” manned 45 Stat. c. March justices individually by peace of the lo- Act The §§ U.S.C. city. throughout cated See Act 1, 1930, July 46 Stat. c. March c. 31 Stat. of the of determinations review limited justices peace The consoli- Radio Commission issues Federal progenitor accept- dated into Court of as revised law. This review General in 1909. Act of Sessions Feb. Radio in Federal Comm’n ed Co., Stat. D.C. c. Bros. Nelson organized' Appeals was not April until 1942. Act of c. 207. this withdrawal taken note of Court has jurisdiction Stat. 194. of non-Article

Case Details

Case Name: Hobson v. Hansen

Court Name: District Court, District of Columbia

Date Published: Feb 9, 1967

Citation: 265 F. Supp. 902

Docket Number: Civ. A. 82-66

Court Abbreviation: D.D.C.