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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