*1 PALMORE v. UNITED STATES Argued February April 24, No. 72-11. 1973 Decided *2 Burger, White, J., opinion Court, of the in which delivered Powell, J., Brennan, Stewart, Marshall, Blackmun, C. dissenting Rehnquist, Douglas, J., opinion, JJ., joined. filed a post, p. 410. Flegal
Frank F. the cause and filed briefs argued appellant.
Solicitor General Griswold for the argued cause United States. With him on the brief were Assistant Attorney Petersen, Deputy General General Solicitor Lacovara, Jones, Roger Keith A. Pauley, A. and Mar- shall Tamor Golding. opinion Justice White delivered the
Mr.
Court.
Aside an question appellate jurisdic- initial of our tion under 28 U. C. § S. this case us (2), requires to decide a whether felony defendant charged with under the District of may Columbia Code tried aby judge who does not protection respect have tenure and salary under Art. Ill of the Constitution. We hold that under its Art. I, § cl.8, legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accord- ance with the District of Columbia Code, are not ac- corded life tenure and protection against reduction in salary. In this respect, position of the District of Columbia defendant is similar to that of the citizen of with violation of
any charged of the 50 States when criminal law: Neither has a federal constitutional state salary right to be tried before with tenure and jhdges guarantees.
I In uncomplicated. January facts are 1971, two officers of the Metropolitan District of Columbia Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was of- indicated, then stopped ficer spot-check vehicle for a of the driver’s license and agreement. car-rental Palmore, the driver of produced vehicle, a rental agreement from the glove compartment'of why car and explained car ap- *3 peared to be, but was not, overdue. During time, this one of the observed the officers mechanism hammer of a gun protruding from under the in armrest the front seat of the vehicle. Palmore was arrested and later charged felony with the of an carrying unregistered pistol in the District of Columbia after having been convicted of a in felony, violation of the District of Columbia Code, §22-3204 (1967).1 He was tried and in guilty found the Superior Court of the District of Columbia. provided:
1 The section person “No shall within carry the District of Columbia either openly or concealed person, except dwelling on or about his in his place house or possessed by him, of business or on other land a pistol, a provided, without license therefor issued as hereinafter or any deadly dangerous weapon capable being of so concealed. punished provided Whoever violates this section shall be in as section 22-3215, unless the violation occurs after he has been convicted in the District of Columbia of violation of this section or of felony, jurisdiction, either in the District of Columbia or another imprisonment in which case he shall be sentenced to for not more years.” than ten Re- I Court the District of Columbia of Title
Under 84 Stat. Act of 1970, Procedure and Criminal form Superior of Act),2 (Reorganization Reform of Court passage of the District Columbia Before system of consisted court Act of the local Criminal Procedure juvenile courts, which, trial two appellate court and three one third special jurisdiction. The court, tax were courts court and the Sessions, was court, General trial Court of District Columbia jurisdiction consisting jurisdiction, quite criminal one of limited its solely concurrently the United States District of that exercised with petty offenses, D. 11- over misdemeanors and C. Code Ann. § jurisdiction The court's civil was restricted to cases controversy where $10,000, the amount did exceed and it had jurisdiction involving property only part over cases title to real Id., a divorce judgments action. 11-961 and 11-1141. The of the §§ appellate court, the Appeals, Columbia Court of were subject to review the Appeals United States Court of for the Dis Id., trict of Columbia Circuit. 11-321. § The United States District Court for the District had concurrent jurisdiction with the Court of General Sessions over most criminal and civil matters court, id., 11-521, handled §§ 11-522, 11-523, jurisdiction and had exclusive felony over of- fenses, though even locally applicable laws, committed violation of id., Thus, 11-521. filling § District Court was role both a local and federal court. Seeking improve performance system, of the court Con- gress, in I Reorganization Act, Title invested the local courts jurisdiction equivalent Rep. to that exercised state courts. S. 91-405, pp. 2-3; No. Rep. *4 91-907, pp. H. R. No. 23-24. The three former trial courts were Superior combined into new Court of Columbia, District of D. V, C. Code (Supp. Ann. 11-901 § 1972), vested, which was id., a exception, (3), with minor 11-502 § jurisdiction with exclusive cases, including over all felonies, criminal brought applicable under exclusively laws District, id., to the (b). jurisdiction 11-923 Its civil § reached all civil actions and any other matter at equity, brought law or in in the District Columbia, except those in jurisdiction which exclusive in was vested the United Id., States District ap- Court. 11-921. The local § peals court, the District of Appeals, Columbia Court of would ultimately subject by to review the United States Court of appointed by are and for terms Court serve President years. D. Code 11-1502 (a), C. Ann. 11-1501 §§ (Supp. V, 1972).3 Palmore moved to the indict- dismiss only a urging ment against him, court “ordam[ed] and with Art. Ill of the establish accordance [ed]” constitutionally try him States Constitution could felony for prosecution under of Columbia the District Code. He also suppress pistol moved to the fruit illegal an search and seizure. The motions were denied Superior Court, was Palmore convicted.
The District of Appeals Columbia affirmed, concluding that under to plenary power legis- late for the Columbia, I, conferred 17, § cl. of the Constitution, Congress “constitu- had tional proscribe to only certain criminal conduct in the District and to appropriate select court, whether III created virtue of article I, or article hear determine particular these criminal cases within the District.” 290 A. (1972). 2d 576-577 filed Palmore a notice of appeal with the District of id., Appeals, 11-301, “highest and was declared be the court § of the District of purposes Columbia” for of further review this Id., Court. 11-102. § In jurisdiction, judges addition to the shift local number of increased, lengthened years, was their tenure was from 10 their percentage salaries were increased and at a of that of fixed Id., 11-903, 11-702, 11-703, of the United States courts. §§ 11-904, 11-702, 11-902, and 11-1502; D. C. Code Ann. §§ 11-1502, 47-2402 Reorganization The Act established Commission on Judicial Disabilities and Tenure with sus- to deal pension, retirement, judges, or removal of local D. C. Code Ann. seq. et V, 1972). provided improved (Supp. also for It §11-1521 seq., including courts, id., 11-1701 et administration local § responsible authorization for an Executive Officer for the adminis- Id., system. the local tration of court 11-1703. § 15-year subject provision mandatory term is to the retire age V, 1972). ment (Supp. at 70. D. C. Code Ann. 11-1502. § *5 394 state- jurisdictional Appeals and his
Columbia Court of appeal an under 28 here, perfect purporting ment considera- (2). postponed 1257 We further § U. S. C. by way case of jurisdiction of our to review tion this 840 hearing on the merits. 409 U. S. appeal the (1972).
II specifies Title 28 § U. S. C. the circumstances under which the final the of a judgments highest of court may way State by reviewed in this Court or appeal writ of As certiorari. amended 172 (a)(1) § of the Reorganization Act, 84 “high- Stat. term est court a State” as used 1257 includes the Dis- § trict Columbia of Appeals. Appeal lies only such courts a where statute the United States is struck down, 28 (1), § U. S. C. or where statute of a is State against sustained federal constitu- id., tional attack, § 1257 Because the statute at 4 Title 28 provides: U. S. C. 1257 § judgments “Final highest or decrees rendered court of a State in may which a had, decision could be be reviewed Supreme Court as follows: “(1) By appeal, question where is validity drawn in of a treaty or statute of against the United States and the decision is its validity. “(2) By appeal, where question validity is drawn in of a any ground statute of being repugnant state on the of its to the Constitution, States, treaties or laws the United and the decision is in validity. favor of its “ (3) By certiorari, validity treaty writ o'f where the of a or statute of the United question validity States drawn in is or where the question State statute is ground being drawn in on the of its repugnant Constitution, to the States, treaties or laws any title, right, privilege or where immunity or specially up set or Constitution, claimed under of, treaties or statutes or com- authority mission held under, exercised the United States. purposes section,
“For 'highest of this the term court of a State’ includes Appeals.” the District of Columbia Court of *6 appeal an to this Court upheld case,
issue was
in this
only if
“statute
lies
statute was a
judgment
that
Palmore
(2).
§
of
state” within the
of 1257
any
meaning
it
agree.
that
but we cannot
is,
insists
plainly provided that
§
The 1970 amendment
to
1257
of
of
Appeals
District
Columbia Court
should
of a
but
“highest
State,”
treated as the
court
nowhere
in
that
1257,
elsewhere,
provided
or
has
Congress
§
any state,”
words
of
are
(2),
§
“statute
as used
1257
to
provisions
include the
of the
District
Columbia
A
ordinarily
Code.
reference to “state statutes” would
not include
provisions
Code,
the District of Columbia
by
which was
not
by
state
enacted,
legislature, but
Con
only
gress,
applies
which
within the
boundaries
and.
the District of Columbia. The
Columbia is
constitutionally
distinct
from the
States, Hepburn
v.
Ellzey,
Montana, 104, (1889), 129 U. S. 113 as demonstrated specific provisions concerning the United States Code District of 1363, Columbia. Cf. U. 28 S. C. added to the § (c) (1) Reorganization Act, United Code 172 States § 84 purposes jurisdic Stat. where dealing for of c. 85 with the tion of the United Courts, provided States District “references laws Congress States Acts do 396 pre- “with to be are statutes construed
Jurisdictional which fidelity Congress terms and with to the cision 392 Cheng INS, Fan Kwok v. wishes,” its expressed has particularly prone (1968); and we are U. S. ap- authorizing “strict construction of accord statutes Co., Tool Ridge v. peals” to this Court. Fornaris will 41, 42 n. We hold (1970). therefore, U. not, S. Columbia intended to treat the District of Code Congress Cf. purposes § statute state *7 Farnsworth v. U. 112-114 Montana, 104, 129 S. Rico, Balzac Porto
Palmore relies on v. 258 U. 298 S. (1922), where an of the legislature enactment territorial of Rico held a Puerto was to be statute of a State within the of meaning statutory provisions the then-applicable governing appeals this Court. result That has been in 1258; codified 28 C. but, § U. S. even Balzac so, the severely rationale Fornaris, was undermined in we where held passed that by statute the of legislature Puerto Rico is “a State within statute” the meaning of 28 U. S. 1254 (2), §C. and it that should not be treated as such in the of absence more guidance definitive Congress.
We conclude that we do not jurisdiction have of the appeal filed case. presents Palmore this con- federal stitutional issues, however, that are reviewable writ of certiorari under (3); § 1257 and treating the jurisdic- tional petition statement as a for writ of cf. certiorari, 28 U. § S. C. we 2103, grant petition the limited question of whether Palmore was entitled be tried applicable include laws exclusively to the District of Columbia.” See also treatment of the of District Columbia as a “State” for purposes diversity of jurisdiction, 28 U. (d), S. C. and the § equally provision discrete of 1451, 28 U. S. C. added to the Code § (d) (1) Reorganization of Act, § 591, 84 Stat. which provides purposes that for provisions, the removal Superior Court of the District Columbia is to be considered a "State court”; and the District Columbia is deemed to be a “State.” and Art. court established in accordance with ordained is to issue that
Ill, § Constitution.6 It this 1, we now turn.
III provides I, 17, cl. of the § Constitution Congress power Legis- have exclusive exercise shall “[t]o lation in all over” the District whatsoever, Cases only may Columbia. Not stat- plenary. utes of application otherwise Congress nationwide may applied to Columbia, but Congress District also police powers exercise all which regulatory a state legislature municipal have government would “may legislating for state or local purposes. Congress exercise within legislative powers all the legislature State; of a might State exercise within the and may authority vest and distribute the judicial among courts and magistrates, regulate pro- ceedings them, before as may fit, think it long so any does not provision contravene of the Constitution Capital Traction Co. Hof, States.” v. U. 5 (1899). S. This has been the characteristic view *8 in this congressional Court of powers with respect to the apparent District.7 It that the of Congress 6 postponed jurisdiction question Because we the our over this appeal to merits, entering consideration of the than unre rather an probable jurisdiction, stricted notation of for there is basis no inferring, finding improper, from appeal our this that our initial having granted order must nevertheless be on taken as certiorari any presented. Hence, of the re issues our denial of the writ with spect dismissal, is claim, to the Fourth Amendment rather than a proper. 502, (1966). York, v. Cf. Mishkin New 383 S. 512-513 U. 7 524, (1838); Mattingly States, Kendall 12 v. United 619 Pet. Columbia, (1878); Dis 687, v. District 97 Gibbons v. U. S. 690 Columbia, 404, (1886); trict Shoemaker v. United 116 U. S. 407 States, 282, Dyers v. (1893); 147 Cleaners & U. S. 300 Atlantic O’Donoghue States, 427, (1932); United 286 U. v. S. 435 States, 516, (1933). 289 545 U. S. District for the legislate it to permits Clause
under exceed that would subjects respect to manner with in a con- in the very unusual, would at least powers, its powers other under enacted legislation of national text District v. Gibbons Art. 8. See I, § under to it delegated Columbia, 116 U. S. has authority, Congress to its Clause Pursuant District of compose the enacted laws time to time Act amended Reorganization The 1970 Code. Columbia of the District Superior Court by creating the Code Ap- Court of of Columbia and the District Columbia to pursuant “established expressly peals, being the courts 11-101 § D. Code Ann. I C. article of the Constitution.” Superior 2, supra. n. (2) (Supp. 1972). See V, jurisdiction was with Court, among things, other vested hear violations of the involving alleged criminal cases only the District of applicable Columbia, criminal laws id., 11-923; Appeals, § of Columbia Court of District jurisdiction Id., appeals to hear in such cases. § 11-721. At time, Congress exercised its same powers 8,§ under Art. Ill I, cl. to redefine jurisdiction United States District Court the District of Columbia and the United Court of States Appeals for the District of Id., Columbia Circuit. §§ 11-501, and 11-301, 11-502. As the Committee on said, Columbia H. Rep. R. No. 91-907, p. 44:
“This title (section makes 11-101) clear District of (the Columbia Courts District of Colum- bia Court of Appeals, and Superior Court of the District of Columbia) are Article I courts, created pursuant I, Article section 8, clause 17 United States Constitution, and not Article III courts. The authority under which the local courts *9 are established has not been statutorily provided in prior law; Supreme the Court of the United States system either Ar-
has declared the local to be I ticle or Article III indi- courts, having decisions of courts cated that the District Columbia are, both respect, expression this fish and fowl. This the intent of the Congress clarifies the status local courts.” judicial
It was under the on conferred the Su perior Court Reorganization the 1970 Act that Palmore was convicted of violation of § 22-3204 of the Columbia clearly Code The conviction was within authority the granted Congress by 8,§ I, cl. 17, unless, as Palmore Art. III contends, Consti requires tution prosecutions for District Columbia felonies presided must be over aby judge having salary tenure and protections provided by Art. III.8 Sections and of Art. III state: judicial 1. States, Power of shall “Section supreme vested in Court, one and in such inferior Courts Congress may Judges, from time to time ordain and establish. The supreme Courts, both of the and inferior shall hold their Offices during good Behaviour, shall, Times, and at stated receive for their Services, Compensation, a during which shall not be diminished their Continuance in Office. Cases,
“Section 2. The Power shall extend all in Law Equity, arising Constitution, and under this the Laws the United States, made, made, and Treaties which under or shall be their Au- thority; affecting Ambassadors, all public Cases other Ministers —to Consuls; admiralty all Cases of and maritime Jurisdic- —to tion; Controversies to which the a United States shall be —to Party; States; Controversies between two more or —to —between State; State and Citizens of another Citizens different —between States; claiming same Lands under Citizens State —between States, State, Grants of different and between Citizens thereof, foreign States, Subjects. Citizens or affecting Ambassadors, public
“In all Cases other Ministers Consuls, Party, supreme and those which a State shall be original have In all Court shall Jurisdiction. the other Cases before Jurisdiction, mentioned, supreme appellate shall have *10 III vests Art. straightforward: is argument Palmore’s in courts of the United States Power” “judicial and whose behavior during good office holding Power” that “judicial diminished; salary cannot be Cases, extend all are to exercise “shall courts these Constitution, under this arising in and Equity, Law or which made, and Treaties States, Laws of United . the Dis Authority . .”; be under their made, shall Congress, enacted having been Code, trict of Columbia for viola prosecution this States; is a law of the United arising a case of the Code is therefore tion of 22-3204 § States, involves an exercise under the laws of the United of the must “judicial States, Power” by an III judge. therefore be tried position ultimately proposition rests on the This Ill preside every judge proceeding an Art. must over which a is on an Act of charge, claim, defense based authority. or a law made Congress under its At the very least, it that criminal under the asserts offenses laws passed by may be Congress prosecuted except not pursuant courts established In our view, Art. III. there no however, support is for this in either view history constitutional text or in constitutional practice. III
Article power describes the as extending to all cases, among others, under arising the laws of the United States; but, aside from this Court, “in vested such inferior may Courts as the Congress time to time ordain and establish.” The decision with Fact, both as to Law and Exceptions, with such and under such Regulations Congress as the shall make. Crimes, except “The Trial of all Impeachment, Cases of shall by Jury; and such Trial shall be held in the State where the said committed; Crimes shall have been when but not committed within any State, the Trial shall be such Place or Congress at Places as the may by have Law directed.” to inferior federal as well the task of
respect
courts,
their
left to
defining
jurisdiction, was
the discietion
constitutionally
Congress.
body
required
was
That
III
to create inferior Art.
courts
decide cases
hear
judicial power
including
within the
States,
the United
arising
those criminal cases
under the laws of the United
*11
Nor,
States.
if
created,
inferior federal courts were
was it
required to invest
au
jurisdiction
them
all the
it was
thorized to
judicial
bestow under Art.
power
III.
“[T]he
of the United
(except
in enumerated
States ...
instances, applicable
court)
exclusively
dependent
this
to
for its distribution and organization, and for the modes of
its
entirely upon
exercise,
the action
who
Congress,
of
possess
the sole
of
(inferior
creating
tribunals
to
Supreme Court)
.
of
.
. and
them with
investing
jurisdiction either limited,
concurrent,
exclusive,
of
jurisdiction
withholding
from them in the exact de
grees and character which
Congress may
seem proper
for
public good.”
Cary v. Curtis,
245
236,
3 How.
(1845).9 Congress plainly
this,
understood
for
1875
until
Congress refrained from providing the lower federal
courts with general
jurisdiction.
federal-question
Until
time,
the state
provided
only
courts
forum for
many
vindicating
important
federal
then,
claims. Even
with exceptions, the state courts remained the sole forum
for the
trial
federal cases not involving the required
jurisdictional amount, and for the
part
most
retained
9 This was the view of the
prior
Court
to Martin v. Hunter’s
Lessee, 1
(1816).
304
Wheat.
Turner
America,
v. Bank
North
4 Dall.
(1799);
8
Hudson,
United States
(1812).
v.
concurrent
courts.
federal
lower
of the
jurisdiction
view, there
nor
legislative
neither the
It was
were
questions
federal
all
and decision
trial
fore,
particularly,
more
Nor,
judges.
Art. III
reserved
deemed
been
law
federal criminal
has the enforcement
Very
III courts.
of federal
province
the exclusive
the enforcement
left
Congress
early
history,
in our
courts
laws to state
criminal
federal
selected
enjoy
protections
did not
who
judges
state court
Warren,
in Art. III. See
for federal
prescribed
Harv. L.
and the State Courts,
Criminal Laws
Federal
&
F. Frankfurter
(1925);
570-572
545, 551-553,
Rev.
(1927) ;
Supreme
Court
J.
Business
Landis,
Federal
Courts to Enforce
of State
Note, Utilization
Development
Judicial
Penal
Criminal Statutes:
recently,
L.
Federalism,
60 Harv.
More
Rev.
unanimously
held that
could con
Congress
this
*12
stitutionally require state
hear and decide
courts to
Price
Emergency
involving
Control Act
the en
cases
forcement
penal laws;
of federal
“that Rhode
fact
Is
land has an established policy against enforcement by its
courts of statutes of other states and the United States
which it deems penal, cannot
accepted
as a ‘valid
Katt,
excuse.’” Testa v.
330 U. S.
392
386,
(1947).
Although recognizing
contrary
expressed
sentiments
in Prigg v. Pennsylvania,
It is also true throughout our history, Congress has exercised its under Art. IY to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” creating
403
ap
them
manning
territorial
courts
pointed
years.
for a term of
These courts
not been
have
subject
though
deemed
the strictures
even
Ill,
they
only
enforced
the civil and
characteristically
criminal
Congress applicable throughout
laws of
States,
applicable only
United
but also the
within
laws
the boundaries
particular
territory.
Speak
for
ing
unanimous Court
American Ins. Co.
v. Canter,
v.
Toombs,
648,
(1874); Reynolds
Wall.
655-656
18
v. United
States,
145,
98
U. S.
(1879);
154
City
Panama, 101 U. S.
453,
(1880);
460
174,
McAllister v. United
States,
141
180-
U. S.
(1891);
184
504,
(1897);
McMillan,
United States v.
165 U.
S.
Todd,
(1907);
v.
U. S.
Romeu
Zdanok,
v.
Co.
Glidden
U. S.
544-548
11 See,
g.,
(1846);
There is con defendants and tried, are federal statutes ing under 8,§ Art. I, its III courts. Under in non-Art. victed, and Government Rules for the make cl. 14, “[t]o Congress has Forces,” land and naval Regulation Armed by members of behavior certain declared trial of such provided for the criminal to be Forces military mode, in the proceedings cases court-martial III. under Art. ordained established not courts constitu courts-martial are proper sphere, their Within execu carry congressional out tional instruments Hoover, 82 65, 79, (1857). 20 Dynes v. How. tive will. discipline require the existence military “exigencies all of military not system courts which special in Art. protections deemed essential specific procedural Parker, III O’Callahan v. 395 U. S. apply,” trials need provide 261 and “the Constitution does 258, (1969); in mili performing judicial life tenure for those functions Quarles, tary (1955). Toth 17 trials,” 11, v. 350 U. S. practical “The same confluence of considerations Canter, that dictated the result in Ins. Co. v. [American supra], governed has the decision later cases sanc tioning the creation of other courts Zdanok, limited Glidden Co. 370 tenure,” v. U. S. 530, 547 such (1962), as the Court of Private Land Claims, Coe, United States v. (1894) ; U. S. 85-86 the Choctaw and Chickasaw Citizenship Stephens Court, Nation, v. Cherokee parte U. S. 445 Ex (1899); Joins, 191 U. 93 (1903); Adams, S. Wallace v. U. S. 415 (1907); courts created in unincorporated dis tricts outside the mainland, Downes Bidwell, v. 182 U. S. 244, 266-267 (1901); Balzac Rico, v. Porto 258 U. at S., 312-313, and the Consular Courts established con cessions from foreign countries, Ross, In re 140 U. S. 464-465,
405
IV
it
however,
in
may
instances,
be true
other
Whatever
States, 289
O’Donoghue United
argued
that
v.
strongly
U.
to hold that all
(1933),
S. 516
constrains us
be deemed
courts of the District
Columbia must
Ill
judges
Art.
courts and that
over them
presiding
their
behavior
appointed
during
good
must
to serve
in
requirements
accordance with the
of Art.
III.
O’Donoghue
question
judges
involved the
whether the
Supreme
District of
Court
Columbia’s
and Court
Appeals
constitutionally
protected
having
were
their
salaries
an
Congress.
reduced
Act of
over
Court,
This
three
contrary
prior
dissents and
see
dicta,
extensive
parte
Ex
Bakelite Corp,,
438,
(1929);
279 U.
450
S.
Hoe,
Butterworth
v.
(1884); Keller v.
U. S. 50
Potomac
Co.,
Power
Electric
Fed
(1923);
We cannot agree O’Donoghue governs this case.13 The District of Columbia courts involved, there 13We should note here Zdanok, supra, Glidden Co. v. urged it was that Art. assignment judge Ill forbade the aof of the Court of Appeals try Customs and Patent a criminal arising case under the District of Columbia Code. The Court of Appeals judge question ruled that even if the was not an Art. III judge, I, authority cl. was sufficient § for his as signment try cases in the District. United States there urged that this respect arising was true at least to laws under the District of Columbia Code rather than a law under of national application. Harlan, Mr. Justice for himself and Justices Brennan unnecessary Stewart, question, found to reach this but con open one, expressly an “intimating any sidered it for he reserved view authority had of Appeals, the Court Supreme *15 controver- over all those District, in but also only and arising under the Constitution sies, criminal, civil and having and nationwide of the United States statutes noted its application. courts, as this Court These with those of equal power were “of rank and opinion, other inferior courts of the . . . system federal O’Donoghue, supra, heavily at 534. on con- Relying gressional intent, Congress, the Court considered that by consistently of providing judges these courts tenure, prac- lifetime had indicated a “congressional tice from the beginning complete recognize [which] [d] parallelism between the of courts the District Co- [of and the district and appeals lumbia] circuit courts of the United Id., States.” at 549. courts, these Moreover, constituted they were, and being closer to legisla- tive department, jurisdiction “exercise a more extensive in cases affecting the operations of the general govern- ment and its id., various departments,” at and were only courts within the District in which Dis- trict inhabitants could exercise their “right to have their cases arising under the Constitution heard and deter- mined federal courts created under, and vested with power conferred Id., III.” by, at 540. The case before us a far cry from O’Donoghue. Here Congress has expressly systems created two of courts in the District. ofOne them up is made of the United States District Court for the District Columbia and the United States Court Appeals for the District of Co- as to the correctness holding below . . . .” 370 S.,U. at 538. Apparently, him, O’Donoghue had not foreclosed the issue with respect to the trial of the criminal case under the District of Colum- bia Code. Clark, Mr. Justice for himself and the Chief Justice, thought also question open. id., See at 589 n. 4. manned courts which are constitutional Circuit,
lumbia must Art. Ill which the citizens of the may of those constitutional resort for consideration statutory which general matters of concern so moved O’Donoghue. system is made the Court The other local, strictly Superior up courts, Appeals. the District of These Columbia Court plenary expressly pursuant courts were created to the Art. I Columbia, legislate for the District D. C. Code Ann. (2) (Supp. § 11-101 V, 1972), “powers exercise the government all ... State possible.” Stoutenburgh cases where v. legislation is Hennick, 129 U. S.
The O’Donoghue had Court before it of Co- District lumbia courts in which the of “purely consideration local affairs obviously subordinate and incidental.” [was] O’Donoghue, supra, at Here, hand, 539. on the other we have courts focus whose work is primarily upon arising cases under the District of Columbia Code and to other strictly matters of local They concern. handle only criminal cases ap- under statutes that are plicable to the District of O’Donoghue Columbia alone. did not concern itself with courts like these, and controlling here.
V It is apparent that neither this nor Congress has read the Constitution as requiring federal every ques- tion arising under the federal law, every even criminal prosecution for an violating Act of to Congress, be tried an Ill Art. court before a judge enjoying lifetime tenure protection and against salary reduction. Rather, both Congress and this Court have recognized that state appropriate courts are forums in which federal questions and federal may crimes at times tried; applicable are where which III, of Art. requirements of national con affairs applicability and laws of national way proper give cern at must circumstances stake, are Congress plenary grants to accommodate having par respect specialized areas legislate treatment. warranting distinctive ticularized needs system in the Dis the court Here, Congress reorganized in the and established one set of courts trict of Columbia III with Art. characteristics and devoted to District wholly It also created a matters of national concern. system primarily to concern itself separate designed court system and to local court for a with local law serve as a large metropolitan area. studies, Congress
From its own had concluded that was system there crisis District had become unmanageable, case loads Columbia, and that neither of national those matters concern nor strictly cognizance promptly those local were being tried disposed system. the existing court See, g., e. Cong. Rec. 25538 (1969); 116 Rec. 8091- Cong. 8092 (1970).14 remedy in part, was to relieve the Ill regular courts, that is, States Court for the District of Columbia and the United States
14The Senate notwithstanding Committee noted that visiting judge program, unsurpassed days “an number per on the bench *17 judge,” many district court and as out of the 14 District judges being “assigned Court felony full time to the trial of local offenses,” backlog of criminal cases in the United States District 1,669, Court numbered and lapse filing the median time from to disposition felony final in in trials that court was triple more than that in other Additionally, district courts. the median time for civil jury in trial the District nearly Court was double that in other Though district courts. there had been an increase in the number of felonies committed in Columbia, the District of there was a con comitant decrease in prosecuted. the number of felonies Rep. S. supra, 91-405, No. at 2-3. Circuit, Columbia for the Appeals responsibility great for the mass smothering inevitably characterizes criminal, civil that
litigation, system city confine work major the court a to they were to that for the most which, part, those courts try under namely, arising to cases designed do, nationally applicable the Constitution and the laws other Congress. part remedy, equally essen- entirely system an court with tial, was establish new essentially functions similar to of the local courts those found the 50 the Union responsibility States of for trying deciding distinctively local contro- those that versies local criminal law, including arise under local having little, laws if impact beyond juris- the local any, Rep. diction. S. H. pp. Rep. No. 91-405, 1-3, 18; R. 91-907, No. pp. 33. 23-24,
Furthermore, Congress, after consideration, careful de termined preferred, utilize, and had the system a local court staffed judges without lifetime tenure. S. Rep. supra, Rep. 17-18; No. at H. R. 91-405, No. supra, 91-907, 44. Congress at made deliberate choice to create judgeships with terms D. C. years, Code § Ann. 11-1502 (Supp. V, subject and to 1972), positions those to removal or suspension by judicial commission under certain established circum Id., stances. §§ 11-1502, 11-1521 et seq. It was thought a system such would be more workable and efficient in administering and discharging the work aof multi faceted metropolitan court system. See Rep. S. No. supra, 91-405, at H. R. 8-11; Rep. 91-907, No. at supra, 35-39.
In providing fixed terms of office, Congress was cognizant of the fact that “virtually no State pro- has vided” for tenure during good behavior, Rep. S. No. 91-405, supra, at H. Rep. see R. No. 91-907, supra, *18 410 noting Appeals Court of of Columbia District
at tenure for provided life 50 States have that 46 578 n. 2d, 12; 290 felony cases, hear A. at trial who judges court ad- Act, respect provisions and the were suspension, and to removal and ministration 115 Cong. considered as a model for States. some H. 13689 (1969). Hearings Rec. on R. 25538 See 12854 before Subcommittee No. of the House Commit- on the District 1st Columbia, Cong., Sess., tee 91st pt. 1, pp. do importance
We not discount attached to the salary provisions tenure and Ill, but we conclude that Congress was not required provide an Art. Ill court for the trial of criminal cases under its arising applicable laws only within the District Columbia. Palmore’s trial in the Superior Court was authorized by I Congress’ Art. power to legislate for the District all cases whatsoever. Palmore was no more disadvan- taged and no more entitled to an Art. judge Ill than any other citizen of any of States who is tried for a strictly local crime. Nor did his trial a nontenured judge deprive him of process due of law under Fifth any Amendment more than trial of the citizens of the various States local crimes protec- without tion as to tenure deprives them of process due of law under the Fourteenth Amendment.
The judgment of the Columbia Court of Appeals is affirmed.
So ordered. Justice Douglas, dissenting. Mr.
Appellant, indicted for carrying a dangerous weapon in violation of D. C. Code Ann. § 22-3204, was tried and convicted in the Superior Court of the District of Co- *19 I
lumbia, Congress1 an Art. court created under and Pro- District of Columbia Court Reform Criminal objection timely cedure 84 Stat. 473. His is Act tried, convicted, that he and sentenced a court not was III. under Art. established
The of the court convicted him judges office for a term of fifteen
—hold not for life years,2 Ill do Art. judges; Ill pro- —unlike Art. their are judges,3 salaries not from tected diminishment their continuance during in office; Ill they
—unlike Art. can judges, be removed office a through five-member Commission4 V, 1972) judi 1 D. C. (Supp. provides, Code Ann. 11-101 “The § power cial (2) in the District of Columbia The is vested in . . . following pursuant District of Columbia courts established arti (A) cle I of the Constitution: The District Columbia Court Appeals. (B) Superior of Columbia.” District 2D. V, 1972). C. Code (Supp. Ann. 11-1502 § 3By III, judges good during federal “hold their Offices § Behaviour, shall, Times, Services, and at stated receive for their Compensation, during which shall be their not diminished Continu ance Office.” 4 A Commission on Judicial Disabilities and Tenure established suspend, “to retire, judges. remove” one or of these (Supp. V, 1972). D. C. Code Ann. 11-1521 The President names § members, one, three the Commissioner names of the District Judge Chief of the District Court names the fifth. There are three alternate members. The Id., President names the Chairman. appointed years. 11-1522. All members are term of six § Id., judge A 11-1523. must be he removed if has committed a § felony finally Id., (a)(1). been 11-1526 convicted. He shall § be removed if the Commission finds
“(A) office, willful misconduct in “(B) persistent perform judicial willful failure to or duties, “(C) any other prejudicial conduct which is to the administration justice brings which disrepute.” office into Ibid. involuntarily “(1) He shall be retired if the Commission deter- impeach- than procedure means of formidable less be must members five two of the While ment. Bar in active a member of the lawyers (one prior to years ten five of the at least practice for federal or retired an active and one appointment his may three District) other serving judge layman. be a must of the three laymen. One (Supp. V, 1972). Ann. 11-1522 § D. C. Code are Superior Court In other these words, been which has judiciary independent members *20 Art. III. The by reason of boasts, proudest one of our Ill designed Art. were judges accorded safeguards or minority causes unpopular or protect litigants with The despised suspect or classes. who litigants belong him a measure judge give the and safeguards surround or leftist press, the hostile the protection against party power, glowering the the demands of rightist hands rest the top in the echelon whose looks of those reappointment. pro- In Convention of 1787 it was the Constitutional “may by Executive on posed judges removed the Represent- the and House application the Senate judge disability physical the suffers from or mines a mental (including intemperance) likely habitual which is or to become is permanent seriously with, prevents, and which or interferes proper performance judicial duties, (2) of his and Commission Appeals files in the District of Columbia an order of involuntary appeal and the order retirement is affirmed on or may appeal time within which an be taken ex- order has Id., (b). pired.” 11-1526 § provisions suspension The Act also elaborate contains for the judge salary, salary, salary without retirement or with dependent (c)(1), (2), on the circumstances described in 11-1526 §§ procedure The Act contains which Commission hearing must follow and the judge notice and en- which the Id., titled. 11-1527. § only Connecticut defeated, was proposal atives.” the common expressed apparently for it. Wilson voting if be in bad situation would Judges “The sentiment: pre might which of faction depend any gust on made to of our Government.” branches in the two vail enjoyed by independence granted Without easily become more judge Ill federal could judges, Art. was Branch. This idea of a ravenous Executive the tool spon 1966,6 in 1965 Reports Congress reflected in to federal would lifetime tenure give a law that soring Report in Puerto Rico. The House stated: judges not be “. . Rico should litigants . Federal Puerto independent made life denied the benefit in- who pressures might tenure from the of those which benefits reappointment, fluence chances of his in all guarantees litigants to the the Constitution other Federal courts.” “The I, provides: cl. of the Constitution 8,§ Leg- have Power To exclusive
Congress shall ... exercise . ... . . become may islation . . over such District . the Seat of the Government of . . . .” the United States *21 legislative power This is au- plenary, giving Congress thority by to establish the which the method District be Columbia will and to alter from time governed, Co- District of government. to time the form of that Thompson Co., lumbia v. 346 U. 104-110. 100, S. may courts be Legislative given executive admin- and examples istrative duties, being well known. But if they “judicial are given Power,” as are the
5 Madison, 2 (G. Journal of the Federal 257 Convention Hunt ed. 1908). 6 135, Rep. Cong., Sess.; Rep. 1504, H. R. No. 89th 1st S. No. 89th Cong., 2d Sess. 135, supra, Rep. H. R. No. n. at 2. District, trials have Superior those
present
by
are
the Constitution and
prescribed
guarantees
Ill
jury
says:
“The
Rights. First,
trial,
Bill of
all
.
trial
Jury.”
Crimes .
. shall
But
Trial
jury
Amendment
all
guaranteed
also
the Sixth
McReynolds
prosecutions. Even Mr. Justice
criminal
Butler,
libertarians, thought
Mr. Justice
not known as
and
of so-
“all,”
“all” meant
the exclusions
permitting
not
Clawans,
offenses. District Columbia
v.
“petty”
called
deprive
not
Congress may
U. S.
633.
an ac
protection
cused of that
of Columbia trial.
a District
Colts,
Columbia
Callan v.
63, 74;
v.
U. S.
Wilson,
The Fifth
provides
Amendment
for the
to indict-
right
ment;
Congress may
dispense
right
with that
for a local criminal offense in the District of Columbia.
United States Moreland,
v.
The Sixth Amendment's guarantee extends to speedy public trials, the right of confrontation, compulsory process and the assistance counsel all criminal “[i]n prosecutions.”
The Fifth guarantees Amendment one against double jeopardy and gives the privilege against self-incrimina- any tion “in criminal case,” and guarantees that no one shall deprived “be of life, liberty, or without property, process due of law.”
The Fourth protects Amendment right “[t]he people to be secure . . . against unreasonable searches and seizures . . .” .
The Eighth says Amendment that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments unusual inflicted.”
Few, if any, of these I guarantees, assume, would be applicable to Art. I tribunals exercising legislative or *22 any inap- But of them functions. are
administrative “judicial plicable prosecutions in criminal where the is exercised? Power” States if possible. I have unable is Yet been to see how that used aspects “judicial Power,” the term is those for requirements Art. are all how can the applicable, Ill, independent an For exception? an judiciary made any Ill for clearly required is as exercise “judicial Power” as guarantees. are the other legislative history
The of Columbia Court Reform and makes Criminal Procedure Act abundantly main purpose clear that was the creation one political of some judges. over leverage Superior Court Report As the Senate states: “In drafting provision the tenure of the amended bill, the committee was the in- conscious both of of the exactness art of selection and importance of com- attracting tenure the most petent men to the bench. The recog- committee nized requirement constitutional 'good behavior’ tenure played has role significant historic high quality of the Federal bench. On the other hand, the committee virtually was aware that no State provided has such tenure for judges, its an apparent recognition opportunity review quality of a judge’s performance also has its obvious advantages. committee, therefore, sought provision a tenure that would combine the attractiveness of system the federal op- with the portunity some review of the judge’s work. “At present, only means available rid the local bench of a sick or judge venal through process impeachment Repre- the House of *23 To be- and trial the U. S. Senate. sentatives history in our lieve that at this time Congress police through time judiciary has the to the local process That impeachment just is not realistic. proven the con- process has not even viable when tenure is good-behavior judges duct of drawn Federal, into 11. question.” Rep. 91-405, pp. 8, S. No. O’Donoghue States, In v. United U. S. Congress reducing
Court held Act of unconstitutional an the salaries appellate judges of trial and of separation It Columbia. held that inherent in the powers was the idea of each shall never that “the acts directly to, or by, subjected, indirectly, controlled the coercive departments.” influence of either of the other Id., at 530. Since the District was formed of portions two of the original States, the Court concluded it was “not reasonable to assume that the stripped cession them of these [rights, guarantees, immunities Constitution], and that it very was intended that at the seat of government the national people should be less fortified by the guaranty an independent judiciary than parts other of the Union.” Id., at 540. The Court concluded that while Congress could not confer admin- istrative or legislative on functions Art. Ill it courts, grant could such functions District courts reason Art. I. Id., at 546. But that power, held, may not be used destroy “to operative effect clause within the District.” Ibid. present Act does precisely that. Hence today we make a major retreat O’Donoghue.
Much is made of the fact many (about States three-fourths them) have their judges at all levels elected the people. That was one of the basic Jack- sonian principles. But the principle governing federal opposed.8 propo- Hamilton stated the strongly is
judges ed. (J. 1961): in No. 79 of the Federalist Cooke sition can con- permanency office, “Next nothing than independence tribute more to the provision support. a fixed The remark their equally appli- made in relation the president, *24 In general nature, cable here. the course of human power over a man’s subsistence amounts a to power over his will. hope we can never to And practice see realised complete separation in the any the from the in legislative power, system, which the former dependent pecuniary leaves resources on the occasional grants of the latter. The enlightened to in every friends good government, have state, seen cause to lament of precise the want explicit precautions and in the state constitutions on this head. Some these indeed have declared permanent that salaries should be established for but judges; experiment in has some instances 8 Brown, See The Armor, Rent in Our 10 Judicial Geo. Wash. L. (1941); Hyde, 127 Judges: Rev. Tenure, Their Selection and Q. N. (1947); Y. L. Haynes, U. Rev. 389 E. Selection and Tenure of Judges (1944); The Kurland, Constitution and the Tenure of Fed Judges: eral History, Some Notes from 36 U. Chi. L. Rev. 666 Bryce, writing James in “Any said: phenom- one three I popular ena have elections, terms, short sala- and small described— ries—would be judiciary. sufficient to lower the character of the Popular elections political parties, throw the choice into the hands of say, wirepullers that is to every knots inclined to use officeas a of rewarding political services, means garrisoning grateful and partisans posts may conceivably which political importance. become of oblige judge Short . . keep good terms . to remember and on terms with those who have made him is, what he and in whose hands They his timidity, they discourage fortunes lie. induce independ- Commonwealth, ence.” American p. (3d 1905). c. ed. sufficiently are not expressions such shewn that preclude evasions. Some- legislative definite positive unequivocal more has been thing still plan be of the conven- requisite. evinced to accordingly provided, tion has at stated times receive for the United States 'shall not be compensation, their services shall which diminished in during their continuance office.’ is the
''This, considered, all circumstances most provision that could have It eligible been devised. readily understood, will be fluctuations money, value the state of society, a fixed compensation rendered rate of in the con- stitution inadmissible. What might extravagant might day, century half a penurious become inadequate. necessary It was therefore to leave to the discretion of legislature vary its *25 provisions in conformity to the in cir- variations yet cumstances; under such put restrictions as to it out of the body of that to change con- dition of the for the individual A may worse. man then be sure the ground upon which he stands, and can never be deterred from duty by the his apprehension of placed in being a eligible less situ- ation. The clause which has been quoted combines both advantages. The salaries of judicial offices may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with any particular which judge comes into office, respect him.”
That theory opposed to the Jacksonian philosophy concerning election of state judges. But the present statutory scheme for control over Superior Court judges is even opposed to the Jacksonian theory. In the Dis- trict of Columbia the people do not elect these Art. I done in they Nor do “recall” them as is some
judges. Superior The named judges States. Court are they President and confirmed are re- Senate appointed by movable a commission the President. Superior The judge opportunity put no his has his problems, conduct, his behavior on the bench to the people. gun of the commission is held at his head. All of the normal vices of ju- removable dependent, diciary are accentuated in the District of Columbia.
The matter of naturally “law order” assumes majority minds of a people in the District an special problem. acute and A minority, however, sits as overlord, causing tensions to mount. The case of Harry a judge on the Alexander, Superior be- Court, has prominent. pressures come Great have been put on him to conform —or problem else. The only goes to the viability of life in the District but vitality to the guarantees in III and in Art. the Bill of Rights. Those guarantees run every and the on “person”; III Art. courts who sit dispense justice evenly and never undertake to ration it. But some judges, like the Bill of Rights, are in the of some minds threat security. to our
They, however, insure our security by administering justice evenhandedly. The ideals of III and the Bill of Rights provide the mucilage which holds ma- jorities and together minorities in the segment federal our Nation, and make tolerable the existence of non- conformists who do not walk to the measure of the beat of the Chief Drummer.
We take a great step today backward when we de- prive our federal in regime the District of independence which helps insure fearless and evenhanded dispensation justice. No federal court exercising Art. Ill judicial power should be made a any minion of cabal that from politics accidents of comes into the ascendancy as an of Columbia. effort overlord District That unhappily succeeds and is in of one of today disregard provisions. our most cherished constitutional I put As Justice Black and in our in Mr. dissent Zdanok, Glidden Co. v. 530, 589, 370 U. 598, S. the essen tial problem dealing “judicial” with a function exer I cised an Art. court concerns the pro standards and employed. If cedures “judicial exercised is power” defined in Art. as was true in the present Ill, case, procedures then standards and must conform to Art. one III, independent is an judiciary. which many There have been proposals in our history that are kin approved to those today; and the important ones are reviewed Prof. Kurland.9 To date efforts to tamper with judiciary the federal have not been suc- cessful, unless it be the bizarre decision of this Court in Chandler Council, v. Judicial 382 U. S. 1004, which Mr. Justice Black I dissented. The States, mostly have course, gone way.10 the other But as Prof. Kurland observed:11 various
“[T]he devices that the States re have cently adopted for policing judiciaries their are little more polite than blackmail, suggestions that the bar unhappy with the judge’s behavior and he’d better shape up or I else. shudder to think [easily] how the federal courts might have been deprived of the 9 Kurland, supra, n. 8. system The California is discussed Erankel, Jack E. Executive Secretary of the California Commission On Judicial Qualifications, Judges: in Removal California Tackles an Old Problem, 49 A. B. A. J. 166 Mr. quoted Frankel was approval Report the Senate proposing the of Columbia Reform and Criminal Procedure Act Rep. of 1970. 91-405, S. No. p. 11. 11Kurland, supra, n. at 668. *27 system of Hand under such Judge
services Learned and a politeness to counsel as California’s. For willingness gladly among to tolerate fools were only virtues, and it is such his virtues po- attendance the court house that the regular at systems capable licing seem timid evoking judges.” way by today
The is consti- achieve what is done tutional amendment. President Andrew Johnson said:12
“It is my on mind that strongly impressed tenure of office judiciary of the United States during good incompatible for life behavior spirit republican and in government, this I opinion fully am sustained the evidence of popular judgment subject in the upon this different States the Union.
“I my duty therefore deem it to recommend an amendment the Constitution which terms period would be to a officers limited I years, present hope herewith it in the will Congress to the people submit for their decision.”
Manipulated judiciaries are common the world, across especially communist and fascist nations. faith which freedom we profess opposed and which is those ideologies today assumes an ominous cast. It is ominous indirectly because it associates the causes of crime with Bill of Rights rather than with the sociological poverty factors of by unemployment caused and disemployment, political abrasive tactics used 12 Messages Papers (J. Presidents 3841 Richardson 1897). ed. like. and the of narcotics minorities, blight against Superior hold the heads gun Those who at the *28 spirit respect can retaliate those who against Fifth Amendment the Fourth Amendment practice of firmly and who the ancient against stand and who using degree get the third confessions fervently justify the means. believe that the end does
I would reverse the below. judgment