FAHY, Circuit Judge, with whom WILBUR K. MILLER, Senior Circuit Judge, joins.
Plaintiffs seek a declaratory judgment and an injunction forbidding the exercise of authority by the members of the Board of Education of the District of Columbia, on the ground that D.C.Code § 31-101 (1961 ed.), under which they were appointed by the Judges of the United States District Court for the District of Columbia, is unconstitutional.
Section 31-101 in pertinent part provides:
Plaintiffs challenge also the manner in which the Board has been performing its functions.
The Chief Judge of the Circuit, under the authority of 28 U.S.C. § 291(c), designated Circuit Judge J. Skelly Wright to sit as a District Judge and to hear the case. Deeming the constitutional challenge to Section 31-101 not to be frivolous. Judge Wright, pursuant to 28 U.S.C. § 2284,
We note preliminarily the suggestion of defendants that the question as to the constitutionality of Section 31-101 is so insubstantial that a three-judge court was not required to consider it. We disagree for reasons set forth in the opinion of Judge Wright in Hobson v. Hansen, supra.
We also disagree with defendants' contention that plaintiffs lack standing to question the validity of Section 31-101. Suing in their own behalf and for the classes to which they belong, plaintiffs include pupils in the public schools which are administered by the Board, and parents and guardians of such pupils.
Plaintiffs are not mere federal taxpayers, as was the plaintiff denied standing in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. They are closely involved as pupils, or as parents and guardians who have the right to direct the education of children under their control, Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 and the education of children is an important function of state and local governments. Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873. Defendants concede plaintiffs' standing to contest the manner in which the Board administers the schools. It is but a short step to standing also to challenge the constitutionality of the basic authority of the Board to do the administering. Unless persons in the position of plaintiffs have standing to do this the issue may escape resolution. This argues for resolving doubts in favor of plaintiffs in such a case; for there is no hard and fast rule which governs standing. As Mr. Justice Frankfurter said of a "case" or "controversy," whether or not standing emerges also depends in good part upon the "expert feel of lawyers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594, 72 S.Ct. 863, 96 L.Ed. 1153 (concurring opinion). The right to take steps by judicial means not only to have the schools administered by valid methods but also to have them administered by those who may validly do so, pertains to children who under public law attend the schools, and their parents and guardians. The views of the commentators are not uniform, but we think the better view supports our position in the circumstances of this case. Compare Davis, "`Judicial Control of Administrative Action': A Review," 66 Colum.L.Rev. 635, 659-66 (1966) and Jaffe, "Standing To Secure Judicial Review: Public Actions," 74 Harv.L.Rev. 1265, 1310 (1961), with Jaffe, Judicial Control of Administration Action, 459-500 (1965). And see Hart and Wechsler, The Federal Courts and the Federal System 174-75 (1953).
On the remaining question before us we hold, first, that under Article
As a consequence of this provision and of Article III of the Constitution
The dissent of Chief Justice Hughes, Mr. Justice Van Devanter and Mr. Justice Cardozo adds strength to the view of the majority concerning the powers Congress may confer on the courts of the District. Their disagreement was with the view that the courts of the District of Columbia were not merely courts established, to quote the dissent, "under the broad authority conferred upon the Congress for the government of the District of Columbia by paragraph 17 of § 8 of article I." 289 U.S. at 552, 53 S.Ct. at 751. They described this as a
289 U.S. 552, 53 S.Ct. at 751.
While the dissenters considered that if the limitations with respect to tenure and compensation which attached to Article III courts were applicable to our local courts of general jurisdiction this would prevent attaching to the latter powers of an administrative sort, this in no way detracts from their view of the broad powers conferrable by Congress upon our courts
Again, in National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 590-592, 69 S.Ct. 1173, 93 L.Ed. 1556, it is said:
The foregoing is from the opinion of Mr. Justice Jackson, who announced the judgment of the Court and was joined in his opinion by Mr. Justice Black and Mr. Justice Burton. While there was no opinion which had the adherence of a majority of the Court, the correctness of O'Donoghue v. United States, supra, is unquestioned by the concurring and dissenting Justices. See 337 U.S. at 608-609, 638-640, 69 S.Ct. 1173, Mr. Justice Rutledge, writing the concurring opinion for himself and Mr. Justice Murphy, could not join in the view that conferment by Article I of plenary powers to legislate for the District enabled Congress to extend to citizens of the District the right to invoke in nonfederal or diversity cases the jurisdiction of District Courts throughout the nation. He said:
337 U.S. 607, 69 S.Ct. 1185.
337 U.S. at 608-609, 69 S.Ct. at 1186.
The dissenting opinion of Chief Justice Vinson, with whom Mr. Justice Douglas joined, makes clear that the difficulty confronting the Court in Tidewater was the enlargement by Congress through Article I of the judicial jurisdiction over cases or controversies of Article III courts not located in the District of Columbia. This difficulty does not accompany the conferment by Congress through Article I of an appointing power upon the judges of our District Court. In its reference to O'Donoghue, the Chief Justice's opinion states:
337 U.S. at 638-639, 69 S.Ct. at 1206. And it was this concern for the limitation of the Article III "judicial power" to "cases" or "controversies" that, as it seems to us, was at the roots of the separate dissent of Mr. Justice Frankfurter, in which Mr. Justice Reed joined. 337 U.S. at 646-55, 69 S.Ct. 1173. It should here be interpolated that the statute now before us does not attempt to confer a jurisdiction such as was involved in Tidewater. It lodges only a specific power of appointment in the judges. None of the various views expressed in Tidewater, particularly in reference to O'Donoghue, left any cloud on the power of Congress under Article I to authorize the judges of our District Court to exercise the power conferred upon them by Section 31-101. On the contrary.
Its plenary legislative power over the District accordingly enables Congress to place upon the District Court, or, as here, its judges, responsibilities which may be beyond the competence of other Article III courts and which are comparable to the responsibilities a State may confer on her courts.
As stated by Mr. Justice Douglas, with the concurrence of Mr. Justice Black, in his dissenting opinion in Glidden Co. v. Zdanok, 370 U.S. 530, 590 n. 1, 82 S.Ct. 1459, 8 L.Ed.2d 671, in a respect consistent with the majority opinion in that case:
We set forth in the margin illustrations of the scope of appointive authority conferred by the States on their courts and approved, from which it appears by the overwhelming weight of decision that such appointive power as is involved in Section 31-101 of our Code may be validly conferred by the States upon their courts.
When first proposed in 1906 there was a debate in Congress as to the constitutionality of conferring upon the judges authority to appoint the members of the Board of Education; but the question was then resolved by Congress as we resolve it now when the long-standing provision is challenged for the first time in the courts.
Pa. Act of April 5, 1867, P.L. 779, § 1, as amended, Pa. Act of May 25, 1874, P.L. 228, 24 P.S. § 1964, 17 P.S. §§ 252, 253. Congress was impressed by the success of this state procedure, which had been in effect more than thirty years. The similar policy adopted by Congress in the enactment of Section 31-101 we think finds its validity in Article I of the Constitution.
We could rest alone upon Article I, but Section 31-101 gains support also from Article II, § 2, cl. 2, of the Constitution. After providing that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law," clause 2 concludes with this provision,
This was a deliberate decision by the Framers to enable Congress in its wisdom to authorize "the Courts of Law" to share with the executive the appointing power of federal officers.
Mr. Justice Story approved the provision in his Commentaries:
Read literally, Article II, § 2, cl. 2, sustains the validity of Section 31-101.
38 U.S. (13 Pet.) at 257-258.
This statement was not a decision by the Court that Congress could confer upon "the Courts of Law" the power to appoint only officers concerned with the administration of justice. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717, explicitly refutes such an interpretation of Hennen. In Siebold the question was whether Congress could constitutionally confer upon the United States Circuit Court of that period (1879) authority to appoint supervisors of a congressional election. It was contended Congress could not do so since the duties of the supervisors were entirely executive in character. The Court answered:
100 U.S. at 397-398.
The court was authorized by the statute upheld in Siebold only to appoint the supervisors, not in any way to perform the function of supervision. So, too, in the present case, the District Judges are authorized by Section 31-101 to appoint the members of the Board,
In Glidden v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671, five of the seven Justices participating in the decision noted that the judges of our District Court selected the members of the Board of Education. The validity of this, though not in issue in the case, which involved the status of the Court of Claims and the Court of Customs and
We are cited to no case, and we have found none, which holds invalid an Act of Congress conferring appointive power upon a court or the judges of a court. In a number of instances the power has been conferred in this jurisdiction. This is not conclusive on the issue of validity, but it demonstrates the deep-seated congressional view of the constitutional issue; and this is entitled to weight when the issue is before the courts. Our District Court has been authorized by Congress to appoint Jury Commissioners, D.C.Code § 11-1401, assumed to be valid in Collazo v. United States, 90 U.S.App.D.C. 241, 250, 196 F.2d 573, 582, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364; and to appoint The Register of Wills, D.C. Code § 19-401. Its judges are authorized to appoint members of the District of Columbia Mental Health Commission, D.C.Code § 21-502. And our District Court, along with all other District Courts, is authorized to appoint and remove United States Commissioners, 28 U.S.C. § 631; and to appoint interim United States Attorneys, 28 U.S.C. § 506, United States v. Solomon, supra; and interim United States Marshals, 28 U.S.C. § 545. Authority is conferred upon the several Chief Judges of the Courts of the District to appoint the Board of Trustees of the Legal Aid Agency, D.C.Code § 2-2204.
The above mentioned officials, appointed by the courts as prescribed by Congress, may be thought to be concerned with the administration of justice. Even if this were altogether correct, it does not follow that Congress is so constrained in resorting for help to a court or its judges. Though the policy followed by Congress is indicated by the use it makes of its authority, Article II is couched in terms of discretion; and Congress has not considered it can empower judges to appoint only officers concerned with the administration of justice, as witness Section 31-101 itself, enacted sixty years ago, retained ever since, and legislatively reaffirmed in 1957, note 13, supra. That Congress has not construed its power so narrowly is further demonstrated by the legislation approved in Ex parte Siebold, supra 100 U.S. at 397-398. Moreover, the national legislative body has itself exercised appointive power in respects removed from the legislative function. Section 24 of the Act of 1871, 16 Stat. 419; Section 2-201, D.C.Code; and Section 2-1702, D.C.Code. It is interesting to note also that Congress by D.C.Code 23-401 has empowered the Chief Judge of the District Court to perform in extradition cases a function like that ordinarily performed by the governor of a state. The limitation which is referred to in Siebold is not an affirmative requirement that the duty of the officer be related to the administration of justice. It is a negative requirement that the duty may not have "such incongruity" with the judicial function as would void the power sought to be conferred. And when the Supreme Court suggested this test in Siebold it was concerned with an Article III court, whereas our judges may be clothed with broader powers through Article I. The "incongruity" limitation is a safeguard, should one be needed, to protect the governmental structure from legislative abuse. However, we suggest that it should be temperately used by the judiciary in passing upon the exercise by Congress of its legislative authority with respect to the
The court in Cooper also refers to Story's views of the doctrine of separation, that it was to be understood "in a limited sense."
There is no constitutional principle that federal judges may not engage officially in nonjudicial duties. There is the constitutional principle that Article III courts may not engage in adjudicatory or decisional functions except in those "cases" and "controversies" referred to in Article III. The first Chief Justice of the United States illustrated the distinction. He led the Court in declining to give advisory opinions to President Washington; but a few years later when still Chief Justice he saw no constitutional objection to becoming the American negotiator with England of the important Jay treaty which bears his name. This was not without controversy, albeit in good part politically motivated. The Jay experience is mentioned simply as an outstanding illustration of the difference between functions which may not be required of Article III courts or their judges and functions of a non-judicial character which are not barred by the Constitution.
There are several limitations upon the duties which judges may be called upon to perform, aside from the "cases" or "controversies" limitation above referred to. There is a limitation based upon policy or propriety; there is also the limitation of "incongruity" referred to in Ex parte Siebold; and there is the constitutional limitation that the function be consistent with the "guaranties of personal liberty" referred to in O'Donoghue; but there is no constitutional limitation based simply upon the function being "non-judicial." In the present case the policy decision has been made by Congress. The "incongruity" problem is solved for the District of Columbia in the present case by the express grant to Congress of power to invest even Article III courts with authority to appoint "inferior Officers"; for whatever the scope of this power for other Article III courts, it plainly permits our District Court judges, clothed also with authority stemming from legislation under Article I, to accept the duties imposed by Section 31-101. And there is no invasion of the "guaranties of personal liberty" referred to in O'Donoghue — a subject we shall advert to more fully in discussing the due process issue.
The doctrine of separation of powers, though essential to the nature of our constitutional system, is not set forth explicitly in the Constitution, as it is in the constitutions of some of the states. It is implied in the federal system. Largely for this reason its boundaries are not rigid or clearly ascertainable in all situations. See Ex parte Siebold, supra 100 U.S. at 397. To the extent the doctrine applies to the government of the District of Columbia it must take account of the plenary power of Congress to legislate for the seat of the national government. In the nation at large, by the express terms of Article 2, § 2, cl. 2, "the Courts of Law" may be authorized by Congress to make federal appointments which otherwise would be made by the Executive, or in some instances perhaps by Congress. Since a
Moreover, a matter otherwise within the competence of a court or judge is not removed therefrom by some political controversy growing out of its exercise,
We now discuss further the due process issue, although plaintiffs do not rely heavily upon this, and it was not referred to by Judge Wright in his opinion justifying his request for a three-judge court to consider the constitutional validity of Section 31-101. See Hobson v. Hansen, supra. The constitutional authority for the legislation, whether Article I alone or considered with Article II, is very persuasive, if not dispositive, on the due process issue. The contention is made, however, as we understand it, that the appointive power conferred upon the judges is violative of due process of law because litigation may arise before the District Court over the manner in which the Board administers the schools.
Initially we treat this problem as though the appointive power which may be exercised by "the Courts of Law" pursuant to Article II of the Constitution is limited, as plaintiffs contend, to inferior officers associated with the judicial department.
A judge who has a substantial interest in or one of several specified personal connections with a case, must disqualify himself. 28 U.S.C. § 455. And if a litigant feels that a judge would have a personal bias or prejudice, he may have the judge disqualified by filing a "sufficient affidavit." 28 U.S.C. § 144. But the possibility of such instances arising does not affect the validity of Section 31-101.
If Article II permits Congress to empower "the Courts of Law" to appoint officers whose official functions are not
The applicable principles on the issue of due process were stated by the Supreme Court in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, as follows:
In Murchison a judge had conducted contempt proceedings against two persons for having refused to answer questions the judge had put to them as witnesses in a "one man grand jury" which the same judge had conducted under state law:
349 U.S. at 137, 75 S.Ct. at 625.
In Tumey v. State of Ohio, referred to in Murchison, the official authorized to act had a pecuniary interest in the outcome; and in Offutt v. United States the Court pointed out that the judge had become so "personally embroiled" with defense counsel in the actual trial of the case and displayed such personal animosity that the contempt conviction by the judge had to be set aside, the matter to be tried by another judge.
Plaintiffs cite Cooley on the due process issue as follows:
As shown in 2 Cooley, op. cit. supra 870-71, the author had reference to a judge acting as such with respect to an estate of which he was executor, or in a case in which he has a pecuniary interest, or in which some personal right of his own was involved.
Nothing comparable to the problems which arose in any of the above situations has arisen by virtue of the enactment of Section 31-101, or by reason of appointments made thereunder. Plaintiffs do not assert that the existence of Section 31-101 and the fact of appointments under it have resulted in any denial to them of a fair and impartial tribunal in their present litigation. And in any future case which might involve the performance by members of the Board of their duties we may not presume that denial of due process would occur by reason of Section 31-101 and appointments made thereunder. Indeed, a judge before whom a case might come might have had nothing whatever to do with the appointments when they were made. But this aside, and assuming otherwise, the official act of participating in the selection of Board members does not in and of itself preclude on due process grounds the ability of the judge to decide fairly the merits of litigation challenging the validity of the performance by a Board member of his duties as such. If in a particular case such a challenge were made its soundness on due process grounds would depend on the circumstances bearing thereon and not on the mere fact that the judge had performed the duty reposed upon him by Congress in Section 31-101.
Public discussion from time to time over the merits of appointees, or of those considered for appointment, may place the judges in an unenviable position, and increase the unwelcomeness of their responsibility. But this falls far short of necessitating a constitutional ruling that by appointing members of the Board the judges have deprived or will deprive any persons in the situation of plaintiffs of a fair and impartial tribunal.
Time and circumstances may well argue now for a better plan; but this is a matter of legislative policy committed to Congress. O'Donoghue v. United States, 289 U.S. at 553, 53 S.Ct. at 751 (opinion of Chief Justice Hughes, Mr. Justice Van Devanter and Mr. Justice Cardozo). As is well known much consideration is being given by Congress and others to a new plan for the entire governmental structure of the national capital.
We are not to decide whether Congress has here acted wisely, but whether the judgment it has exercised resides within its competence. In the absence of a fuller measure of self-government in this District, Congress reasonably could turn to men with those qualities Congress believed were probably possessed by independent judges, chosen by the President and confirmed in office by the Senate. The appeal for a better solution we think must also be to Congress, not to the Constitution.
We are concerned in this opinion with an affirmative constitutional grant of governmental authority to Congress. The grant should not be narrowly construed. The Supreme Court has said its exercise is subject only "to the guaranties of personal liberty in the amendments and in the original Constitution." O'Donoghue v. United States, supra at 545, 53 S.Ct. at 748. None of these guaranties is infringed by Section 31-101, or by the exercise of the power therein conferred. Whether or not the schools are administered by members of the Board consistently with the guaranties of personal liberty is another matter, as it would be were the members of the Board required to be appointed or selected by some other method.
We cannot bring ourselves to the view that the exercise by the judges of their responsibility under Section 31-101 deprives the District Court of the ability impartially to decide any statutory or
We conclude that Section 31-101 finds constitutional validity (1) in the plenary legislative power with respect to the District of Columbia vested in Congress by Article I of the Constitution, (2) in the power vested in Congress by Article II of the Constitution, permitting the courts to appoint inferior officers,
The motion of plaintiffs for summary judgment is denied, and the motion of defendant Judges to dismiss is granted as to Count 1 of the complaint.
J. SKELLY WRIGHT, Circuit Judge (dissenting):
The majority of this three-judge court has decided that 31 D.C.CODE, § 101 (1961) is sustained alternatively by the District clause of Article I and the appointments provisions of Article II of the Constitution. I cannot agree. Ordinarily, nullifying an Act of Congress as unconstitutional is a drastic venture. But the institutional considerations which persuade courts to show restraint when asked to intervene in the affairs of the other branches of government largely disappear when the statute under review is one assigning responsibilities to the judiciary; and all agree that a federal court's first duty is to guard zealously against impairment of its own integrity as an institution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The majority ignores these precepts. Today is the first time a court has ever held that Congress may impose on this or any other federal court a duty so totally unrelated to the judicial function. And indicators clearly show that § 101 poses a real threat to this court's integrity.
Actually, Article II, § 2, cl. 2, which, of course, applies to all federal courts, has no immediate bearing on the question presented by this suit, since members of District of Columbia boards are not "Officers of the United States" within the sense of that Article.
Because District of Columbia officials do not qualify as "Officers of the United States," Article II cannot justify § 101. Nevertheless, if Article II does authorize federal courts generally, at Congress' behest, to appoint inferior federal officials in other than the judicial branch, it would seem unreasonable to hold that federal courts here have lesser powers with respect to the appointment of officers of local District government. In this way, the court's expansive reading of Article II might influence the dimensions of Congress' power over federal courts in the District. I deal, therefore, with the court's construction of that Article.
Article II unquestionably empowers Congress to confide in the courts control over the appointment of ancillary officials in the judicial branch. However, § 101 concerns a board of education, a body which the court concedes is "totally removed" from the judiciary. If, as the court contends, Article II sustains § 101 quite independently of Article I, it would equally validate the conferral of similar appointment powers upon federal district courts outside the District; hypothetically, these courts could be instructed to nominate the board of directors of a local Community Action Agency or Project Head Start operating under Title II of the Economic Opportunity Act.
The court must shoulder the burden of defending with convincing arguments a constitutional construction so instinctively hostile to American constitutional tradition. In my judgment, its arguments fall very short of this mark. There is no problem, first, in escaping
To support its Article II position, the majority next relies on language in one Supreme Court opinion, Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880). In Matter of Hennen, 38 U.S. (13 Pet.) 230, 257-258, 10 L.Ed. 138 (1839), the Court upheld the appointment by a district court of a clerk of court under Article II, saying that "the appointing power * * * was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged." Subsequently, in Siebold, the Court approved a statutory arrangement requiring the appointment of federal election supervisors by the circuit courts.
Rather, if historic congressional practice is germane to the constitutional question, it impressively supports the narrower construction of Article II; for, apart from § 101 and passing by the supervisors with moot status in Siebold, we are cited no instances, past or present, in which Congress found it necessary or proper to impose on federal courts the responsibility for appointing federal officials whose duties are unconnected with the judicial function. This tradition in Congress is in exact harmony with the insistent doctrine of our law, articulated by Article III and constitutional history, that the federal judiciary refrain from indulging in nonjudicial activities. This doctrine and the policies encircling it should be instrumental in resolving whatever ambiguity inheres in Article II.
Under Article III of the Constitution federal courts are by implication permitted to engage only in that business which is "judicial,"
The judicial elaboration since then of the particular restraints latent in the broad negative commandments of Article III is revealing if familiar history. If judicial resolution of a case will be subject to revision or kindred subsequent action by the Legislature or Executive,
While this cluster of restrictions undoubtedly reflects a variety of constitutional policies, common threads run through them all. One is that attention to extrajudicial activities is an unwanted diversion from what ought to be the judge's exclusive focus and commitment: deciding cases. Another is that, inasmuch as the judicial method is inappropriate for coping with nonjudicial issues, federal judges have no special competence for disposing of them. Since these issues involve democratic choice, it is politically illegitimate to assign them to the federal judiciary, which is neither responsive nor responsible to the public will. Moreover, it misleads the public to camouflage the legislative character of a social decision and shore up its acceptability by committing it to the judiciary, thereby cashing in on the judicial reputation. Most critically, public confidence in the judiciary is indispensable to the operation of the rule of law; yet this quality is placed in risk whenever judges step outside the courtroom into the vortex of political activity. Judges should be saved "from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties."
These considerations apply with more than usual force to § 101. The duties it imposes periodically result in a serious drain upon the available work time of district judges.
The issues with which the judges have necessarily become involved in selecting board members are highly charged with political emotion. The race issue, for one, has cropped up in widely variant contexts: whether, in the years before 1954, District schools should remain segregated
Apart from race, public education is today riven by keen debate about priorities and techniques. Should youngsters be taught to read phonetically or by the instant appreciation of entire words and phrases?
Those hazards inhering in judicial acceptance of extrajudicial occupations have then been realized quite fully within the District Court's experience under § 101. In some measure, further, the hazards will recur whenever federal courts are told to appoint government administrators whose work is not connected with the judiciary; and, while the measure may vary, the evils will seldom be de minimis.
Avoidable constitutional construction entailing so widespread a sacrifice of Article III principles should not be undertaken unless the practical considerations in its favor are quite compelling. The reason advanced in Siebold, supra, explaining its treatment of Article II, is that the difficulty in classifying particular positions as within or outside the judiciary would trouble Congress and the courts were the narrower construction
In elaborating its Article II argument, the court places repeated reliance on the fact that § 101 confides duties in the "judges," not the court itself. There is a rather uneasy tradition indicating that judges may take on extrajudicial public responsibilities. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792); United States v. Todd, 54 U.S. (13 How.) 52, 14 L.Ed. 47 (1794). That practice has come under congressional fire
For all these reasons, my conclusion is that Article II permits Congress to require a federal court to appoint only personnel meaningfully affiliated with the judiciary. Therefore, it affords no basis for § 101.
The other justification tendered in support of § 101 is Article I, § 8, cl. 17 of the Constitution, affirming congressional authority "to exercise exclusive legislation" over the District of Columbia. Pursuant to this authorization, Congress has created courts of limited jurisdiction to handle civil, criminal and juvenile cases arising under the District of Columbia common law and code; their judges serve for terms of ten years.
The United States District Court and the United States Court of Appeals for the District of Columbia have a different stature and function. While endowed with special competence over certain classes of significant local cases,
Initially the Court of Appeals for this Circuit concluded that this District Court, having been established under Article III, was thereby incapacitated from functioning administratively. In re Macfarland, 30 App.D.C. 365 (1908), appeal dismissed, 215 U.S. 614, 30 S.Ct. 402, 54 L.Ed. 349 (1909.
Then, only three years after the General Electric case, the Court dramatically changed direction. In O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), it held that the United States courts in the District were Article III courts whose judges were due the salary and tenure protections that Article affords. Having gone so far, the Court declined to reverse Keller and its progeny completely, saying instead it would acquiesce in continued Article I jurisdiction for District federal courts, on the theory they were able to receive jurisdiction at the same time from Article
This hybrid jurisdiction dictum marked a clear departure from prior law, which had been pervaded by the unquestioned assumption that Articles I and III were mutually exclusive sources of federal judicial authority
Only two cases raising legislative court issues have come before the Supreme Court since O'Donoghue was decided; their cumulative effect has been to cut away its dictum's sustaining logic. In National Mutual Ins. Co. v. Tidewater Transfer Co.,
After Tidewater, O'Donoghue might have been assigned the rather practicalminded but perhaps satisfactory explanation that circumvention of Article III, intolerable if it applies to federal courts generally, can be condoned if isolated to one or two special courts. But that prop has been swept aside by the recent decision in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). There, after recognizing that the Court of Claims and the Court of Customs and Patent Appeals are within Article III, the Supreme Court, insisting on Article III purity, indicated they would be forbidden from thereafter exercising any incidents of Article I jurisdiction which might be found to remain in their portfolios.
Since Congress' Article I authority over customs, patents, and the settlement of federal liabilities is at first blush as complete and exclusive as that over District matters, Glidden and O'Donoghue are not easily reconciled; after Glidden, the most that might remain of the O'Donoghue dictum is that Congress may, under the District clause of Article I but no other, invest one or two Article III courts with Article I business, but only if the courts are physically located within the District. It is not easy to capture a general constitutional principle which can rationalize so unusually particularized a result; to say that the federal courts here are sui generis is to assert a conclusion, not to develop a logic which could explain the congressional authority to overcome Article III in begetting these seemingly aberrant institutions.
It should come, then, as no surprise that the Glidden prevailing opinion,
This view draws attention to inoffensive ways in which District of Columbia federal courts are undeniably unique within the federal judicial system. They cope daily with probate proceedings and in the past have entertained jurisdiction over divorce—areas of the law which other federal courts must shun whether or not diversity or alternative jurisdiction bases are satisfied.
These features all stem from the absence here of a state judicial establishment whose jurisdiction would complement and dovetail with the jurisdiction assumed by the federal courts. See Kendall v. United States, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838). And these features, Glidden strongly suggests, define the outermost limits of the extraordinary jurisdiction of the District federal courts
While this constitutional history may not be explicit enough to coerce lower federal courts here to embrace the revisionist doctrine proposed in Glidden, it at least relieves them of any obligation to honor and apply the O'Donoghue dictum in a mechanical, undiscriminating fashion; the assumption that this court may bypass Article III jurisdictional limitations in some or ordinary circumstances provides no answer to the question whether Congress may require it to appoint a school board.
Not only does § 101 bind the judiciary to a grossly unjudicial chore
It is in these respects that § 101 is vulnerable. It has, first, a special ability, exhibited in Part I of this opinion, to embroil the District Court in acute political controversy injurious to its prominence as a court of law. Chief Justice Stone once warned President Roosevelt that when a judge accepts executive responsibilities "[h]e exposes himself to attack and indeed invites it, which because of his peculiar situation inevitably impairs his value as a judge and the appropriate influence of his office."
That section raises, additionally, the unbecoming spectre of federal judges passing on the legality of acts of their appointees in suits brought by District citizens pressing federal rights, including
We need not reckon today, however, with the issue whether in public litigation § 101 would of its own force deprive civil plaintiffs of due process
To hold that the Constitution precludes judicial acceptance of tasks such as these would augur no appreciable inconvenience to Congress in its stewardship over the District. Presently the District Court and the Circuit Court of Appeals exercise practically no jurisdiction, § 101 aside, that is plainly beyond the constitutional boundaries suggested in Glidden. The items of jurisdiction dealt with in Keller, Postum and General Electric have long since been transferred to other tribunals or amended so as to acquire judicial form.
The federal courts in the District of Columbia have long labored under the depressing psychology of the old line of cases. Just when it appeared that, with the help of the Supreme Court, we would soon gain recognition of full, unadulterated Article III status and independence equal to federal courts throughout the country, today's decision turns back the clock in holding that, after all, we are still vassals of the Congress.
I respectfully dissent.
The debate focused on whether appointment by the court was a proper allocation of functions within a municipal corporation. The proponents said it was and cited Philadelphia as an example of a municipal corporation which had adopted this plan and used it well. The opposition advanced a variety of reasons based on preferences for other alternatives. There was objection also that it would be a "bad precedent," and would violate the separation of powers. The amendment was adopted by the overwhelming vote of 113 to 38, Id. at 5763, and the plan thus initiated has since been retained by Congress. And see note 13, infra.
If a clerk of court is an "inferior Officer" within the meaning of Article II, § 2, cl. 2, it is difficult to exclude from this category members of the Board of Education, a body created by Act of Congress.
By its 1957 amendment of Section 31-101 Congress reaffirmed the action originally taken in 1906, imposing upon the judges the duty of appointing the members of the Board.
Congress could not confer upon a District Court in Maryland authority to appoint a school board for Maryland, for Congress has no authority to set up a Maryland school board. It has authority to create a school board in this District, and there are "courts" here upon which the appointive power may be conferred under Article II, as well as under Article I.
"[A]ll other Officers of the United States" is the apparent antecedent of "such inferior Officers," the phrase in the passage at the end of the clause on which the court relies.
The court's opinion does not find or rely on any triviality in the stature or responsibilities of the Board of Education, the body whose members this court appoints under § 101. The general language of Article II renders such a distinction of dubious relevance. And the finding could not rightly be made in this case. Education is "perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954); the power to control the character of the school board is a lever to affect the community profoundly.
Congress repealed the supervisors provisions in 1894. 28 STAT. 36.
Term of Office: 11 D.C.CODE § 702(c) (Supp. V 1966) (D.C. Court of Appeals); § 902(c) (Court of General Sessions); § 1502(c) (Juvenile Court).
Conversely, it demeans the constitutional issue to suggest that the District clause empowers Congress freely to manipulate the jurisdiction of federal courts which happen to sit within the District, because of that geographical link. This suggestion, criticized in Watson, The Concept of a Legislative Court: A Constitutional Fiction, 10 GEO.WASH.L.REV. 799, 820 (1942), was specifically argued and rebuffed in Glidden Co. v. Zdanok, 370 U.S. 530, 580, 82 S.Ct. 1459, 8 L. Ed.2d 671 (1962); see Glidden, Brief for the United States, 104-105.
Quoted in Mason, supra Note 47, at 208.
The majority's analogy to the judicial review of executive action is notably strained. The very point of the tenure guarantee of Article III is to release federal judges from any debts of gratitude running to the President who appointed them. As one Justice told a new colleague worried about pressures from former associates, "Yes, but you are here now." FRANK, MARBLE PALACE 46 (1961).