MR. JUSTICE WHITE delivered the opinion of the Court.
Aside from an initial question of our appellate jurisdiction under 28 U. S. C. § 1257 (2), this case requires us to decide whether a defendant charged with a felony under the District of Columbia Code may be tried by a judge who does not have protection with respect to tenure and salary under Art. III of the Constitution. We hold that under its Art. I, § 8, cl. 17, power to legislate for the District of Columbia, Congress may provide for trying local criminal cases before judges who, in accordance with the District of Columbia Code, are not accorded life tenure and protection against reduction in salary. In this respect, the position of the District of Columbia defendant is similar to that of the citizen of
The facts are uncomplicated. In January 1971, two officers of the District of Columbia Metropolitan Police Department observed a moving automobile with license tags suggesting that it was a rented vehicle. Although no traffic or other violation was then indicated, the officer stopped the vehicle for a spot-check of the driver's license and car-rental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment of the car and explained why the car appeared to be, but was not, overdue. During this time, one of the officers observed the hammer mechanism of a gun protruding from under the armrest in the front seat of the vehicle. Palmore was arrested and later charged with the felony of carrying an unregistered pistol in the District of Columbia after having been convicted of a felony, in violation of the District of Columbia Code, § 22-3204 (1967).
The District of Columbia Court of Appeals affirmed, concluding that under the plenary power to legislate for the District of Columbia, conferred by Art. I, § 8, cl. 17, of the Constitution, Congress had "constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal cases within the District." 290 A.2d 573, 576-577 (1972). Palmore filed a notice of appeal with the District of
Title 28 U. S. C. § 1257
The 1970 amendment to § 1257 plainly provided that the District of Columbia Court of Appeals should be treated as the "highest court of a State," but nowhere in § 1257, or elsewhere, has Congress provided that the words "statute of any state," as used in § 1257 (2), are to include the provisions of the District of Columbia Code. A reference to "state statutes" would ordinarily not include provisions of the District of Columbia Code, which was enacted, not by a state legislature, but by Congress, and which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct from the States, Hepburn v. Ellzey, 2 Cranch 445 (1805); cf. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Nor does it follow from the decision to treat the District of Columbia Court of Appeals as a state court that the District Code was to be considered a state statute for the purposes of § 1257. We are entitled to assume that in amending § 1257, Congress legislated with care, and that had Congress intended to equate the District Code and state statutes for the purposes of § 1257, it would have said so expressly, and not left the matter to mere implication.
Palmore relies on Balzac v. Porto Rico, 258 U.S. 298 (1922), where an enactment of the territorial legislature of Puerto Rico was held to be a statute of a State within the meaning of the then-applicable statutory provisions governing appeals to this Court. That result has been codified in 28 U. S. C. § 1258; but, even so, the Balzac rationale was severely undermined in Fornaris, where we held that a statute passed by the legislature of Puerto Rico is not "a State statute" within the meaning of 28 U. S. C. § 1254 (2), and that it should not be treated as such in the absence of more definitive guidance from Congress.
We conclude that we do not have jurisdiction of the appeal filed in this case. Palmore presents federal constitutional issues, however, that are reviewable by writ of certiorari under § 1257 (3); and treating the jurisdictional statement as a petition for writ of certiorari, cf. 28 U. S. C. § 2103, we grant the petition limited to the question of whether Palmore was entitled to be tried by
Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power "[t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. The power is plenary. Not only may statutes of Congress of otherwise nationwide application be applied to the District of Columbia, but Congress may also exercise all the police and regulatory powers which a state legislature or municipal government would have in legislating for state or local purposes. Congress "may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States." Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899). This has been the characteristic view in this Court of congressional powers with respect to the District.
Pursuant to its Clause 17 authority, Congress has from time to time enacted laws that compose the District of Columbia Code. The 1970 Reorganization Act amended the Code by creating the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, the courts being expressly "established pursuant to article I of the Constitution." D. C. Code Ann. § 11-101 (2) (Supp. V, 1972). See n. 2, supra. The Superior Court, among other things, was vested with jurisdiction to hear criminal cases involving alleged violations of the criminal laws applicable only to the District of Columbia, id., § 11-923; the District of Columbia Court of Appeals, with jurisdiction to hear appeals in such cases. Id., § 11-721. At the same time, Congress exercised its powers under Art. I, § 8, cl. 9, and Art. III to redefine the jurisdiction of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. Id., §§ 11-301, 11-501, and 11-502. As the Committee on the District of Columbia said, H. R. Rep. No. 91-907, p. 44:
It was under the judicial power conferred on the Superior Court by the 1970 Reorganization Act that Palmore was convicted of violation of § 22-3204 of the District of Columbia Code (1967). The conviction was clearly within the authority granted Congress by Art. I, § 8, cl. 17, unless, as Palmore contends, Art. III of the Constitution requires that prosecutions for District of Columbia felonies must be presided over by a judge having the tenure and salary protections provided by Art. III.
This position ultimately rests on the proposition that an Art. III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Art. III. In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice.
Article III describes the judicial power as extending to all cases, among others, arising under the laws of the United States; but, aside from this Court, the power is vested "in such inferior Courts as the Congress may from time to time ordain and establish." The decision with
It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. III judges. Nor, more particularly, has the enforcement of federal criminal law been deemed the exclusive province of federal Art. III courts. Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545, 551-553, 570-572 (1925); F. Frankfurter & J. Landis, The Business of the Supreme Court 293 (1927); Note, Utilization of State Courts to Enforce Federal Penal and Criminal Statutes: Development in Judicial Federalism, 60 Harv. L. Rev. 966 (1947). More recently, this Court unanimously held that Congress could constitutionally require state courts to hear and decide Emergency Price Control Act cases involving the enforcement of federal penal laws; the fact "that Rhode Island has an established policy against enforcement by its courts of statutes of other states and the United States which it deems penal, cannot be accepted as a `valid excuse.' " Testa v. Katt, 330 U.S. 386, 392 (1947). Although recognizing the contrary sentiments expressed in Prigg v. Pennsylvania, 16 Pet. 539, 615-616 (1842), and other cases, the sense of the Testa opinion was that it merely reflected longstanding constitutional decision and policy represented by such cases as Claflin v. Houseman, 93 U.S. 130 (1876), and Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1 (1912).
It is also true that throughout our history, Congress has exercised its power under Art. IV to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" by creating
"The same confluence of practical considerations that dictated the result in [American Ins. Co. v. Canter, supra], has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure," Glidden Co. v. Zdanok, 370 U.S. 530, 547 (1962), such as the Court of Private Land Claims, United States v. Coe, 155 U.S. 76, 85-86 (1894); the Choctaw and Chickasaw Citizenship Court, Stephens v. Cherokee Nation, 174 U.S. 445 (1899); Ex parte Joins, 191 U.S. 93 (1903); Wallace v. Adams, 204 U.S. 415 (1907); courts created in unincorporated districts outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266-267 (1901); Balzac v. Porto Rico, 258 U. S., at 312-313, and the Consular Courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464-465, 480 (1891).
Whatever may be true in other instances, however, it is strongly argued that O'Donoghue v. United States, 289 U.S. 516 (1933), constrains us to hold that all of the courts of the District of Columbia must be deemed Art. III courts and that the judges presiding over them must be appointed to serve during their good behavior in accordance with the requirements of Art. III. O'Donoghue involved the question whether the judges of the District of Columbia's Supreme Court and Court of Appeals were constitutionally protected from having their salaries reduced by an Act of Congress. This Court, over three dissents and contrary to extensive prior dicta, see Ex parte Bakelite Corp., 279 U.S. 438, 450 (1929); Butterworth v. Hoe, 112 U.S. 50 (1884); Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464 (1930), held that the two courts under consideration were constitutional courts exercising the judicial power of the United States and that the judges in question were not subject to the salary reduction legislation as they would have been had they been judges of legislative courts.
We cannot agree that O'Donoghue governs this case.
The case before us is a far cry from O'Donoghue. Here Congress has expressly created two systems of courts in the District. One of them is made up of the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia
The O'Donoghue Court had before it District of Columbia courts in which the consideration of "purely local affairs [was] obviously subordinate and incidental." O'Donoghue, supra, at 539. Here, on the other hand, we have courts the focus of whose work is primarily upon cases arising under the District of Columbia Code and to other matters of strictly local concern. They handle criminal cases only under statutes that are applicable to the District of Columbia alone. O'Donoghue did not concern itself with courts like these, and it is not controlling here.
It is apparent that neither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress, to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction. Rather, both Congress and this Court have recognized that state courts are appropriate forums in which federal questions and federal crimes may at times be tried; and that the
From its own studies, Congress had concluded that there was a crisis in the judicial system of the District of Columbia, that case loads had become unmanageable, and that neither those matters of national concern nor those of strictly local cognizance were being promptly tried and disposed of by the existing court system. See, e. g., 115 Cong. Rec. 25538 (1969); 116 Cong. Rec. 8091-8092 (1970).
Furthermore, Congress, after careful consideration, determined that it preferred, and had the power to utilize, a local court system staffed by judges without lifetime tenure. S. Rep. No. 91-405, supra, at 17-18; H. R. Rep. No. 91-907, supra, at 44. Congress made a deliberate choice to create judgeships with terms of 15 years, D. C. Code Ann. § 11-1502 (Supp. V, 1972), and to subject judges in those positions to removal or suspension by a judicial commission under certain established circumstances. Id., §§ 11-1502, 11-1521 et seq. It was thought that such a system would be more workable and efficient in administering and discharging the work of a multifaceted metropolitan court system. See S. Rep. No. 91-405, supra, at 8-11; H. R. Rep. No. 91-907, supra, at 35-39.
In providing for fixed terms of office, Congress was cognizant of the fact that "virtually no State has provided" for tenure during good behavior, S. Rep. No. 91-405, supra, at 8, see H. R. Rep. No. 91-907, supra,
We do not discount the importance attached to the tenure and salary provisions of Art. III, but we conclude that Congress was not required to provide an Art. III court for the trial of criminal cases arising under its laws applicable only within the District of Columbia. Palmore's trial in the Superior Court was authorized by Congress' Art. I power to legislate for the District in all cases whatsoever. Palmore was no more disadvantaged and no more entitled to an Art. III judge than any other citizen of any of the 50 States who is tried for a strictly local crime. Nor did his trial by a nontenured judge deprive him of due process of law under the Fifth Amendment any more than the trial of the citizens of the various States for local crimes by judges without protection as to tenure deprives them of due process of law under the Fourteenth Amendment.
The judgment of the District of Columbia Court of Appeals is affirmed.
MR. JUSTICE DOUGLAS, dissenting.
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 Columbia,
The judges of the court that convicted him
In other words, these Superior Court judges are not members of the independent judiciary which has been one of our proudest boasts, by reason of Art. III. The safeguards accorded Art. III judges were designed to protect litigants with unpopular or minority causes or litigants who belong to despised or suspect classes. The safeguards surround the judge and give him a measure of protection against the hostile press, the leftist or rightist demands of the party in power, the glowering looks of those in the top echelon in whose hands rest the power of reappointment.
In the Constitutional Convention of 1787 it was proposed that judges "may be removed by the Executive on the application by the Senate and House of Representatives."
Without the independence granted and enjoyed by Art. III judges, a federal judge could more easily become the tool of a ravenous Executive Branch. This idea was reflected in Reports by Congress in 1965 and 1966,
Art. I, § 8, cl. 17, of the Constitution provides: "The Congress shall have Power . . . To exercise exclusive Legislation. . . over such District . . . as may . . . become the Seat of the Government of the United States . . . ." This legislative power is plenary, giving Congress authority to establish the method by which the District of Columbia will be governed, and to alter from time to time the form of that government. District of Columbia v. Thompson Co., 346 U.S. 100, 104-110.
Legislative courts may be given executive and administrative duties, the examples being well known. But if they are given "judicial Power," as are the judges of the
The Fifth Amendment provides for the right to indictment; and Congress may not dispense with that right for a local criminal offense in the District of Columbia. United States v. Moreland, 258 U.S. 433.
The Sixth Amendment's guarantee extends to speedy and public trials, the right of confrontation, compulsory process and the assistance of counsel "[i]n all criminal prosecutions."
The Fifth Amendment guarantees one against double jeopardy and gives the privilege against self-incrimination "in any criminal case," and guarantees that no one shall "be deprived of life, liberty, or property, without due process of law."
The Fourth Amendment protects "[t]he right of the people to be secure . . . against unreasonable searches and seizures . . . ."
The Eighth Amendment says that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Few, if any, of these guarantees, I assume, would be applicable to Art. I tribunals exercising legislative or
I have been unable to see how that is possible. Yet if those aspects of "judicial Power," as the term is used in Art. III, are all applicable, how can the requirements for an independent judiciary be made an exception? For it is as clearly required by Art. III for any exercise of "judicial Power" as are the other guarantees.
The legislative history of the District of Columbia Court Reform and Criminal Procedure Act of 1970 makes abundantly clear that one main purpose was the creation of some political leverage over Superior Court judges. As the Senate Report states:
In O'Donoghue v. United States, 289 U.S. 516, the Court held unconstitutional an Act of Congress reducing the salaries of trial and appellate judges in the District of Columbia. It held that inherent in the separation of powers was the idea that "the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments." Id., at 530. Since the District was formed of portions of two of the original States, the Court concluded it was "not reasonable to assume that the cession stripped them of these [rights, guarantees, and immunities of the Constitution], and that it was intended that at the very seat of the national government the people should be less fortified by the guaranty of an independent judiciary than in other parts of the Union." Id., at 540. The Court concluded that while Congress could not confer administrative or legislative functions on Art. III courts, it could grant such functions to District courts by reason of Art. I. Id., at 546. But that power, it held, may not be used "to destroy the operative effect of the judicial clause within the District." Ibid. The present Act does precisely that. Hence today we make a major retreat from O'Donoghue.
Much is made of the fact that many States (about three-fourths of them) have their judges at all levels elected by the people. That was one of the basic Jacksonian principles. But the principle governing federal
That theory is 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 District of Columbia the people do not elect these Art. I
The matter of "law and order" naturally assumes in the minds of a majority of the people in the District an acute and special problem. A minority, however, sits as overlord, causing tensions to mount. The case of Harry Alexander, a judge on the Superior Court, has become prominent. Great pressures have been put on him to conform—or else. The problem goes not only to the viability of life in the District but to the vitality of the guarantees in Art. III and in the Bill of Rights. Those guarantees run to every "person"; and the judges on the Art. III courts who sit in the District dispense justice evenly and never undertake to ration it. But some judges, like the Bill of Rights, are in the minds of some a threat to our security.
They, however, insure our security by administering justice evenhandedly. The ideals of Art. III and the Bill of Rights provide the mucilage which holds majorities and minorities together in the federal segment of our Nation, and make tolerable the existence of nonconformists who do not walk to the measure of the beat of the Chief Drummer.
We take a great step backward today when we deprive our federal regime in the District of that judicial independence which helps insure fearless and evenhanded dispensation of justice. No federal court exercising Art. III judicial power should be made a minion of any cabal that from accidents of politics comes into the ascendancy
As Mr. Justice Black and I put it in our dissent in Glidden Co. v. Zdanok, 370 U.S. 530, 589, 598, the essential problem in dealing with a "judicial" function exercised by an Art. I court concerns the standards and procedures employed. If the power exercised is "judicial power" defined in Art. III, as was true in the present case, then the standards and procedures must conform to Art. III, one of which is an independent judiciary.
There have been many proposals in our history that are kin to those approved today; and the important ones are reviewed by Prof. Kurland.
The way to achieve what is done today is by constitutional amendment. President Andrew Johnson in 1868 said:
Manipulated judiciaries are common across the world, especially in communist and fascist nations. The faith in freedom which we profess and which is opposed to those ideologies assumes today an ominous cast. It is ominous because it indirectly associates the causes of crime with the Bill of Rights rather than with the sociological factors of poverty caused by unemployment and disemployment, the abrasive political tactics used
I would reverse the judgment below.
"No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in section 22-3215, unless the violation occurs after he has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or in another jurisdiction, in which case he shall be sentenced to imprisonment for not more than ten years."
The United States District Court for the District had concurrent jurisdiction with the Court of General Sessions over most of the criminal and civil matters handled by that court, id., §§ 11-521, 11-522, and 11-523, and had exclusive jurisdiction over felony offenses, even though committed in violation of locally applicable laws, id., § 11-521. Thus, the District Court was filling the role of both a local and federal court.
Seeking to improve the performance of the court system, Congress, in Title I of the Reorganization Act, invested the local courts with jurisdiction equivalent to that exercised by state courts. S. Rep. No. 91-405, pp. 2-3; H. R. Rep. No. 91-907, pp. 23-24. The three former trial courts were combined into the new Superior Court of the District of Columbia, D. C. Code Ann. § 11-901 (Supp. V, 1972), which was vested, with a minor exception, id., § 11-502 (3), with exclusive jurisdiction over all criminal cases, including felonies, brought under laws applicable exclusively to the District, id., § 11-923 (b). Its civil jurisdiction reached all civil actions and any other matter at law or in equity, brought in the District of Columbia, except those in which exclusive jurisdiction was vested in the United States District Court. Id., § 11-921. The local appeals court, the District of Columbia Court of Appeals, would ultimately not be subject to review by the United States Court of Appeals, id., § 11-301, and was declared to be the "highest court of the District of Columbia" for purposes of further review by this Court. Id., § 11-102.
In addition to the shift in jurisdiction, the number of local judges was increased, their tenure was lengthened from 10 to 15 years, and their salaries were increased and fixed at a percentage of that of judges of the United States courts. Id., §§ 11-702, 11-703, 11-903. 11-904, and 11-1502; D. C. Code Ann. §§ 11-702, 11-902, 11-1502, 47-2402 (1967). The Reorganization Act established a Commission on Judicial Disabilities and Tenure to deal with suspension, retirement, or removal of local judges, D. C. Code Ann. § 11-1521 et seq. (Supp. V. 1972). It also provided for improved administration of the local courts, id., § 11-1701 et seq., including authorization for an Executive Officer responsible for the administration of the local court system. Id., § 11-1703.
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
"(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
"(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
"(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
"For the purposes of this section, the term `highest court of a State' includes the District of Columbia Court of Appeals."
"SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
"SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; —to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; —to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction. both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
"(A) willful misconduct in office,
"(B) willful and persistent failure to perform judicial duties, or
"(C) any other conduct which is prejudicial to the administration of justice or which brings the judicial office into disrepute." Ibid.
He shall be involuntarily retired if "(1) the Commission determines that the judge suffers from a mental or physical disability (including habitual intemperance) which is or is likely to become permanent and which prevents, or seriously interferes with, the proper performance of his judicial duties, and (2) the Commission files in the District of Columbia Court of Appeals an order of involuntary retirement and the order is affirmed on appeal or the time within which an appeal may be taken from the order has expired." Id., § 11-1526 (b).
The Act also contains elaborate provisions for the suspension of the judge without salary, or with retirement salary, or with salary dependent on the circumstances described in §§ 11-1526 (c) (1), (2), and (3). The Act contains the procedure which the Commission must follow and the notice and hearing to which the judge is entitled. Id., § 11-1527.
James Bryce, writing in 1888, said: "Any one of the three phenomena I have described—popular elections, short terms, and small salaries— would be sufficient to lower the character of the judiciary. Popular elections throw the choice into the hands of political parties, that is to say, of knots of wirepullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which may conceivably become of political importance. Short terms . . . oblige the judge to remember and keep on good terms with those who have made him what he is, and in whose hands his fortunes lie. They induce timidity, they discourage independence." 1 American Commonwealth, c. 42, p. 507 (3d ed. 1905).