Time:    Mon Nov 24 19:44:36 1997
Date:    Mon, 24 Nov 1997 19:33:17 -0800
To:      tim_mccrory@bigfoot.com
From:    Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Article III judges and taxation --
         U.S. v. Woodley 726 F2d 1328 (1983)
Content-Transfer-Encoding: 8bit

The Downes Doctrine!

See pleadings now loaded in 
the Supreme Law Library, e.g.
Gilbertson's OPENING BRIEF 
in chief.

/s/ Paul Mitchell
http://supremelaw.com


At 08:25 PM 11/24/97 -0800, you wrote:
>-- 
>/s/ Timothy I. McCrory
>Web Site - Kay County Patriots
>http://idt.net/~tmccrory/
>
>"As nightfall does not come at once, neither does oppression.
>In both instances there is a twilight when everything remains
>seemingly unchanged. And it is in such twilight that we all
>must be most aware of change in the air - however slight -
>lest we become unwitting victims of the darkness."
>Supreme Court Justice William O. Douglas
>
<snip>
>
>There seems to be a large portion of society believing that an 
>Article III judge can have his salary taxed. If you are familiar with the
cases 
>which address this, you are familiar with Pollock v. Farmers' Loan & 
>Trust Co., Evans v. Gore, Miles v. Graham and O'Malley v. Woodrough.
>
>If you look at the GPO's analysis of the history of the Constitution
(http://www.access.gpo.gov/congress/senate/constitution/scourt.html item #
51) 
>you will see that, according to the GPO (Senate), O'Malley v. Woodrough 
>"overruled" Evans v. Gore and Miles v. Graham.
>
>Well, this is misleading.  The reason I say this can be 
>better illustrated in the following, which reads:
>
>(Now on to the recent decision of U.S. V. Woodley 726 F2d 1328 (1983)
>which discusses the issue of Article III judges and their "essential
attributes.")
>
>NORRIS, Circuit Judge:
>
>"This case presents a question of substantial constitutional importance:
>whether a person lacking the essential attributes of an article III
>judge -- life tenure and protection against diminution of
>compensation -- may nonetheless exercise the judicial power of the
>United States by virtue of a recess appointment made pursuant to
>article II, section 2 of the Constitution.  We are thus called upon to
>address the inherent tension between the so-called recess appointment
>clause, which on its face applies to vacancies in any government office,
>and section 1 of article III which provides that only judges with article
>III protection may exercise the judicial power of the United States. We
>are required to decide, in other words, whether the recess appointment
>power of the President applies to vacancies in the judicial as well as
>the executive branch of government."
>
>Then on to the issue at hand; Norris states:
>
>"The final reason for concluding that the recess appointment clause
>does not permit judges lacking article III protection to exercise
>article III power is that Supreme Court precedent seems to mandate  that
result.
>"The Supreme Court has long emphasized the overriding importance
>of an independent judiciary.  In 1920, the Court considered whether
>application of the federal income tax to the salaries of federal judges
>constituted diminution of income.  Evans v. Gore, 253 U.S. 245, 40
>S. Ct. 550, 64 L. Ed. 887 (1920).  The Court, quoting Washington,
>Hamilton, Marshall, and Wilson at great length, concluded that
>'independence of action and judgment' is essential to the maintenance
>of the guaranties, limitations and pervading principles of the
>Constitution and to the administration of justice without respect
>to persons and with equal concern for the poor and the rich.
>"Id. at 253, 40 S. Ct. at 553.  The Court stressed that, in order to
>ensure the integrity of the judiciary, judges must not only be
>independent of outside influence in fact, but must also be 'above
>even the suspicion of any influence.' Id. at 257, 40 S. Ct. at 554
>(quoting Chief Justice Taney in letter to Secretary of Treasury).
>Thirteen years later, in O'Donoghue v. United States, 289 U.S. 516,
>53 S. Ct. 740, 77 L. Ed. 1356 (1933), the Court stated that
>the acts of each [department should] never be controlled by, or
>subjected, directly or indirectly, to, the coercive influence of either
>of the other departments.  James Wilson, one of the framers of the
>Constitution and a justice of this court, in one of his law
>lectures said that the independence of each department required that
>its proceedings 'should be free from the remotest influence, direct or
>indirect, of either of the other two powers.'"
>
>Isn't it amazing how this decision is so strangely absent even the
>merest mention of the O'Malley v. Woodrough case?  The Woodley case was
>in 1983, over 40 years after the O'Malley case, and we hear no mention
>of O'Malley v. Woodrough in a case addressing the "essential
>attributes" of Article III judges.
>
>Anyone care to speculate as to why the Senate and the Court are not
>together on this very important fact.
>
>References:
>
>Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895)
>http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=157&page=
429
>
>Evans v. Gore 253 U.S. 245 (1920)
>http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=253&page=
245
>
>Miles v. Graham 268 U.S. 501 (1925)
>http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=268&page=
501
>
>O'Malley v. Woodrough 307 U.S. 277 (1939)
>http://www.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=307&page=
277
>
>
>12/08/83 UNITED STATES AMERICA v. JANET WOODLEY
>  [1]       UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
>  [2]       No. 82-1028
>  [3]       1983.C09.920 <http://www.versuslaw.com>, 726 F.2d 1328
>  [4]       December 8, 1983
>  [5]       UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
>            v.
>            JANET WOODLEY, DEFENDANT-APPELLANT
>  [6]       Appeal from the United States District Court for the District
>            of Hawaii.
>  [7]       Canby, Norris and Reinhardt, Circuit Judges.
>  [8]       The opinion of the court was delivered by: Norris
>  [9]       NORRIS, Circuit Judge:
>  [10]      This case presents a question of substantial constitutional
>            importance: whether a person lacking the essential attributes
>            of an article III judge -- life tenure and protection against
>            diminution of compensation -- may nonetheless exercise the
>            judicial power of the United States by virtue of a recess
>            appointment made pursuant to article II, section 2 of the
>            Constitution. *fn1 We are thus called upon to address the
>            inherent tension between the so-called recess appointment
>            clause, which on its face applies to vacancies in any
>            government office, and section 1 of article III which
>            provides that only judges with article III protection may
>            exercise the judicial power of the United States. *fn2 We are
>            required to decide, in other words, whether the recess
>            appointment power of the President applies to vacancies in
>            the judicial as well as the executive branch of government.
>  [11]      I
>  [12]      Appellant Janet Woodley was indicted on September 18, 1981,
>            for importing, intending to distribute, and conspiring to
>            distribute heroin in violation of title 21, sections 841(a)
>            (1), 952(a), and 960(b) (1) of the United States Code.
>            Woodley filed motions to suppress evidence allegedly obtained
>            in violation of the fourth amendment. A hearing was held on
>            Woodley's suppression motions before Judge Walter Heen on
>            November 16, 1981. Judge Heen denied the suppression motions
>            and presided over a bench trial conducted on stipulated facts
>            at which Woodley was found guilty on all three counts. *fn3
>  [13]      The Honorable Judge Heen had been nominated to fill a
>            judicial vacancy in the district of Hawaii on February 28,
>            1980. On September 25, 1980, the Senate Judiciary Committee
>            began confirmation hearings on Heen's nomination. Although
>            testimony and hearings were complete, no vote had been taken
>            when the Senate recessed on December 16, 1980. On December
>            31, 1980, while the Senate was still in recess, President
>            Carter conferred a commission on Heen who then began to sit
>            as a district judge. Less than one month later, on January
>            21, 1981, President Reagan withdrew Heen's nomination. Heen
>            continued to sit as a district judge, however, until December
>            16, 1981, when the First Session of the 97th Congress ended.
>            Thus, at the time he ruled on Woodley's suppression motions
>            and presided over her trial in November and December 1981,
>            Heen sat only by virtue of his recess appointment. During
>            this period, he possessed neither life tenure nor guaranteed
>            compensation -- the essential attributes of an article III
>            judge. On appeal this court raised sua sponte the question
>            whether this fact rendered Heen's appointment, and hence all
>            recess appointments to the judiciary, constitutionally
>            infirm.
>  [14]      Strong arguments can be marshaled both for and against
>            application of the recess appointment clause to the
>            judiciary. On the one hand, if the recess appointment clause
>            applies to judicial vacancies, a person may exercise the
>            judicial power without the institutional protections of
>            article III that the Framers considered essential to judicial
>            independence. A judge receiving his commission under the
>            recess appointment clause may be called upon to make
>            politically charged decisions while his nomination awaits
>            approval by popularly elected officials. Such a judge will
>            scarcely be oblivious to the effect his decision may have on
>            the vote of these officials. Professor Freund aptly
>            summarized the problem when he referred to the recess
>            appointee as a judge sitting "with one eye over his shoulder
>            on Congress." Harvard Law School Record, October 8, 1953, at
>            1.
>  [15]      Questions of governmental efficiency must, however, also be
>            considered. Application of the recess appointment clause to
>            the judiciary arguably ensures that the nation's judicial
>            business is not delayed because of lengthy vacancies in
>            judicial office. In this case, for example, two and one-half
>            years passed before a judge enjoying the protections of
>            article III filled the vacancy temporarily occupied by Judge
>            Heen. A mechanism by which judicial offices may be filled
>            within a reasonable time is obviously of great practical
>            value in assuring the continued smooth operation of the
>            courts.
>  [16]      II
>  [17]      In resolving the conflict between article II and article III
>            we look to the language of the Constitution viewed in light
>            of accepted principles of statutory construction, to the
>            history of both articles, and to the Supreme Court decisions
>            interpreting them. Despite long historical practice to the
>            contrary, see infra at slip op. at 5737, , these
>            considerations persuade us that only those judges enjoying
>            article III protections may exercise the judicial power of
>            the United States.
>  [18]      A
>  [19]      Under familiar principles of statutory construction, the very
>            specific language of article III would, absent a
>            countervailing reason, prevail over the general language of
>            article II. See Busic v. United States, 446 U.S. 398, 406,
>            100 S. Ct. 1747, 1752, 64 L. Ed. 2d 381 (1980); Preiser v.
>            Rodriguez, 411 U.S. 475, 489-90, 93 S. Ct. 1827, 1836-37, 36
>            L. Ed. 2d 439 (1973). Article III states explicitly and
>            unambiguously that the judicial power is to be exercised by
>            those holding "their Offices during good Behavior and . . .
>            at stated Times, receiv for their Services, a Compensation,
>            which shall not be diminished during their Continuance in
>            Office." U.S. Const. art. III,  1. This language is
>            unusually specific. As Justice Frankfurter noted,
>  [20]      no provisions of the Constitution, barring only those that
>            draw on arithmetic, as in prescribing the qualifying age for
>            a President and members of Congress or the length of tenure
>            of office, are more explicit and specific than those
>            pertaining to courts established under Article III. "The
>            judicial power" which is "vested" in these tribunals and the
>            safeguards under which their judges function are enumerated
>            with particularity. Their tenure and compensation, the
>            controversies which may be brought before them, and the
>            distribution of original and appellate jurisdiction among
>            these tribunals are defined and circumscribed, not left at
>            large by vague and elastic phrasing. The precision which
>            characterized these portions of Article III is in striking
>            contrast to the imprecision of so many other provisions of
>            the Constitution. . . .
>  [21]      National Mutual Insurance Co. v. Tidewater Transfer Co.,
>            Inc., 337 U.S. 582, 646, 69 S. Ct. 1173, 1209, 93 L. Ed. 1556
>            (1949) (Frankfurter, J., dissenting).
>  [22]      We cannot disregard such an explicit constitutional
>            requirement, for
>  [23]      when the Constitution . . . gives strict definition of power
>            or specific limitations upon it we cannot extend the
>            definition or remove the translation. Precisely because "it
>            is a constitution we are expounding," M'Culloch v. Maryland,
>            17 U.S. 316, 4 Wheat. 316, 407 [4 L. Ed. 579], we ought not
>            to take liberties with it.
>  [24]      Id. at 646-47, 69 S. Ct. at 1196. Only an even more explicit
>            constitutional provision could justify disregard of article
>            III's command that the judicial power shall be exercised only
>            by those enjoying article III protection.
>  [25]      The recess appointment clause is not such a constitutional
>            provision. The clause does not mention the judicial branch at
>            all. It is phrased in the most general language, stating only
>            that its provisions apply to "all vacancies that may happen
>            during the recess of the Senate," U.S. Const. art. II,  2,
>            cl. 3. This language appears insufficient to overcome the
>            explicit command of article III.
>  [26]      B
>  [27]      Second, a careful examination of the records and writings of
>            the constitutional period leads us to conclude that the
>            Framers did not intend to allow the housekeeping provisions
>            of the recess appointment clause to impinge on their
>            paramount concern for judicial independence.
>  [28]      The experience of the Framers with the colonial judiciary had
>            not been a happy one. Prior to the Glorious Revolution of
>            1688, English judges had been "lions under the throne,"
>            creatures of the King. The Act of Settlement of 1701 had
>            remedied this situation in England by granting English judges
>            life tenure and undiminishable compensation. But the Act had
>            no effect in the colonies. In their lack of independence from
>            the Executive, the colonial judiciaries remained similar to
>            those of the England of Charles I. Courts were constituted by
>            the colonial governors under authority of the crown. Any
>            attempt by the governors or the colonial assemblies to free
>            judges from royal control was rapidly quashed. E. Russell,
>            Review of Colonial Legislation 189 (1915). Colonial history
>            is replete with examples of royal abuse of judicial power.
>            Judges who did not follow the wishes of the King or royal
>            governor were summarily discharged. See Pittman, The
>            Emancipated Judiciary in America: Its Colonial and
>            Constitutional History, 37 A.B.A.J. 485, 488 & n. 5 (1951)
>            (citing 6 North Carolina Colonial Records 591; 9 New Jersey
>            Archives 321; 7 New York Colonial Documents 476; 11 Board of
>            Trade Journal 229-233). The signers of the Declaration of
>            Independence charged that the King
>  [29]      obstructed the administration of justice by refusing his
>            assent to laws for establishing judiciary power. He has made
>            judges dependent on his will alone for the tenure of their
>            office and the amount and payment of their salaries.
>  [30]      The Declaration of Independence para. 13 (U.S. 1776).
>  [31]      In reaction to the excesses of the colonial courts, the
>            Framers emphasized strongly and repeatedly the need for an
>            independent judiciary. Hamilton, for instance, stated:
>  [32]      agree that "there is no liberty, if the power of judging be
>            not separated from the legislative and executive powers." And
>            it proves, in the last place, that as liberty can have
>            nothing to fear from the judiciary alone, but would have
>            every thing to fear from its union with either of the other
>            departments; that as all the effects of such an union must
>            ensue from a dependence of the former on the latter,
>            notwithstanding a nominal and apparent separation; that as
>            from the natural feebleness of the judiciary, it is in
>            continual jeopardy of being overpowered, awed or influenced
>            by its coordinate branches; and that as nothing can
>            contribute so much to its firmness and independence, as
>            permanency in office, this quality may therefore be justly
>            regarded as an indispensable ingredient in its constitution;
>            and in a great measure as the citadel of the public justice
>            and the public security.
>  [33]      The complete independence of the courts of justice is
>            peculiarly essential in a limited Constitution.
>  [34]      The Federalist No. 78, at 523-24 (A. Hamilton) (J.E. Cooke
>            ed. 1961). To translate their concern for judicial
>            independence into practice, the Framers included in article
>            III the requirement that federal judges have life tenure and
>            undiminishable compensation. The Framers recognized that
>            these protections had freed the English judges from royal
>            control. Pittman, (supra) , at 485. The Framers similarly
>            sought to make the federal judges servants not of the
>            Executive but only of their consciences.
>  [35]      Yet the Framers also recognized, in adopting the recess
>            appointment clause, the need to ensure the continued
>            functioning of government when vacancies in office occurred.
>            Article II, section 2 was thus adopted as a housekeeping
>            measure. It provided that the President could fill vacancies
>            in government that occurred during a recess of the Senate by
>            granting a temporary commission which would expire at the end
>            of the next Senate session.
>  [36]      The Framers, however, apparently never explicitly addressed
>            the question whether the recess appointment clause applied to
>            the judicial branch. The clause was proposed just ten days
>            before the end of the Constitutional Convention and adopted
>            without debate. 2 Farrand, Records of the Constitutional
>            Convention, 540 (1937); C. Rossiter, 1787: The Grand
>            Convention 224 (1966). There is no evidence in any of the
>            extant records of the Constitutional Convention or of the
>            various state conventions that the Framers intended the
>            recess appointment clause to apply to the judiciary. See
>            Farrand, (supra) ; J. Strayer, The Delegate from New York
>            (1939) (Constitutional Convention Notes of John Lansing,
>            Jr.); James H. Hutson, "John Dickinson at the Federal
>            Constitutional Convention," 40 William and Mary Quarterly 256
>            (1983); J. Elliot, The Debates in the Several State
>            Conventions on the Adoption of the Federal Constitution, 5
>            vols. (1901). In fact, research into the origins of the
>            clause has uncovered only sparse evidence that the Framers
>            gave any thought to it at all.
>  [37]      The government argues, however, that at least two sources,
>            The Federalist and a letter written after the Constitutional
>            Convention by Edmund Randolph, the governor of Virginia,
>            indicate clearly that the Framers intended that the
>            President's power under the recess appointment clause extend
>            to the judiciary. The government cites The Federalist, Nos.
>            67 and 76, for "Hamilton's view" that "this latter 'auxiliary
>            method of appointment ' relates to 'all vacancies' in offices
>            described in article II's general appointments clause and is
>            'nothing more than a supplement to the other. '" The
>            Federalist, No. 67, however, does not concern the judiciary
>            at all. Rather, Hamilton in No. 67 refuted those
>            Anti-federalists who sought to discredit the Constitution
>            with the claim that the recess appointment clause enabled the
>            President to make interim appointments to the Senate. SEE J.
>            Story, 3 Commentaries on the Constitution of the United
>            States 410 (1833). Hamilton argues only that the scope of the
>            recess appointment clause does not extend beyond the
>            parameters delineated in the clause immediately preceding. He
>            nowhere discusses the different question whether recess
>            appointments may be made to every office mentioned in that
>            clause.
>  [38]      In fact, there is no consideration given in any of The
>            Federalist papers to the relationship between the federal
>            judiciary and the recess appointment power of the President.
>            The government cites The Federalist, No. 76, despite the fact
>            that No. 76 makes no mention of the judicial branch of
>            government or of the recess appointment clause, other than to
>            quote verbatim the clause itself. The Federalist, No. 78,
>            does indeed say that the "mode of appointing the judges . . .
>            is the same" as that "fully discussed in the two last
>            numbers" concerned with the appointment of the other federal
>            officers. Yet "the two last numbers" of The Federalist, Nos.
>            76 and 77, include no reference to the recess appointment
>            clause other than its quotation at the outset of No. 76.
>            Hamilton's silence on this issue lends support to the view
>            that the Framers considered the recess appointment clause a
>            mere housekeeping measure.
>  [39]      The sole reference in the historical record to the Framers'
>            views about the relationship between the federal judiciary
>            and the recess appointment clause comes in Edmund Randolph's
>            letter to the Virginia House of Delegates explaining his
>            reasons for declining to add his signature to the proposed
>            Constitution transmitted to the states by the Constitutional
>            Convention. 3 Farrand, (supra) , at 123, 127. In that letter,
>            Randolph argues that the Constitution had created an
>            excessively powerful Executive, citing as partial evidence
>            for this view his belief that the recess appointment clause
>            gave the President the power of conferring judicial
>            commissions during the recess of the Senate. There is no
>            evidence, however, that Randolph's comments about the recess
>            appointment clause in this letter represented anything other
>            than the temporary position of a volatile political figure
>            whose "gyrations" regarding both the value and meaning of the
>            Constitution are well known to historians. See, J. Main, The
>            Anti-Federalists: Critics of the Constitution, 1781-1788 257
>            (1961). By the time of the Virginia state convention on the
>            Constitution, Randolph had so far banished his earlier doubts
>            regarding the Constitution that he had actually become one of
>            its "staunchest supporters." G. Bancroft, History of the
>            Formation of the Constitution of the United States 427
>            (1885). Contrary to the impression created by his letter,
>            Randolph stated at the Virginia convention that the powers of
>            the President were in all respects carefully circumscribed:
>            "He can do no important act without the concurrence of the
>            Senate." 3 Elliot, (supra) , at 201. He attacked the
>            provisions for the appellate jurisdiction of the federal
>            judiciary, but he maintained that judicial independence had
>            been adequately guaranteed. Id. at 205. Despite the fact that
>            Randolph consistently highlighted the flaws in the
>            Constitution for the benefit of his fellow members of the
>            Virginia state convention, he never mentioned the recess
>            appointment clause, even on the day the clause was read aloud
>            to the Virginia convention. In fact, the Virginia convention
>            did not discuss the clause at all. Id. at 496, 570. As at the
>            other state conventions, the only doubts raised at the
>            Virginia convention about the independence of the judiciary
>            stemmed from the fact that the Constitution did not prohibit
>            augmentation of judicial salaries, not from the recess
>            appointment clause. Id. at 517.
>  [40]      Thus, the sparse legislative history regarding the recess
>            appointment clause teaches us little about the intent of the
>            Framers. We are certainly unpersuaded that the available
>            evidence indicates that the Framers envisioned that judges
>            holding temporary appointments could properly exercise
>            article III powers.
>  [41]      The recess appointment clause was apparently modeled on a
>            similar provision in the South Carolina Constitution of 1778.
>            C. Warren, The Making of the Constitution 530-31 (1929). That
>            constitution provided that South Carolina ordinaries, the
>            equivalent of judges, were to be chosen by a joint vote of
>            the state House and Senate and were to have tenure during
>            good behavior. S.C. Const. art. XXIV (1778). The South
>            Carolina Constitution provided also that the Governor could
>            make a recess appointment to any vacancy in an office to be
>            filled by vote of the state legislature. The appointee would
>            hold office until the next election to the state legislature.
>            S.C. Const. art. XXVI (1778). There is evidence that the
>            South Carolina recess appointment clause was not intended to
>            apply to judicial offices. The South Carolina legislature
>            passed legislation in 1815 authorizing the Governor to make
>            temporary appointments to the office of ordinary. State v.
>            Hutson, 12 S.C.L. (1 McCord) 240 (Const.Ct.1821). Such
>            legislation would have been unnecessary if ordinaries had
>            been covered by the recess appointment clause of the
>            Constitution of 1778.
>  [42]      C
>  [43]      The final reason for concluding that the recess appointment
>            clause does not permit judges lacking article III protection
>            to exercise article III power is that Supreme Court precedent
>            seems to mandate that result.
>  [44]      The Supreme Court has long emphasized the overriding
>            importance of an independent judiciary. In 1920, the Court
>            considered whether application of the federal income tax to
>            the salaries of federal judges constituted diminution of
>            income. Evans v. Gore, 253 U.S. 245, 40 S. Ct. 550, 64 L. Ed.
>            887 (1920). The Court, quoting Washington, Hamilton,
>            Marshall, and Wilson at great length, concluded that
>            "independence of action and judgment"
>  [45]      is essential to the maintenance of the guaranties,
>            limitations and pervading principles of the Constitution and
>            to the administration of justice without respect to persons
>            and with equal concern for the poor and the rich.
>  [46]      Id. at 253, 40 S. Ct. at 553. The Court stressed that, in
>            order to ensure the integrity of the judiciary, judges must
>

===========================================================================
Paul Andrew Mitchell, Sui Juris      : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA;   M.S.: Public Administration, U.C.Irvine 02
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_____________________________________: Law is authority in written words 09
As agents of the Most High, we came here to establish justice.  We shall 10
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