Posted by Paul Andrew Mitchell, B.A., M.S. on September 30, 1998 at 00:03:23:
In Reply to: LEGISLATIVE COURT, from "Encyclopedia of the American Constitution" posted by Paul Andrew Mitchell, B.A., M.S. on September 29, 1998 at 16:02:49:
SUBJECT: USDC v. DCUS
DATE: Tuesday, 29 Sept. 1998
FROM: Dan Meador
TO: Paul Andrew Mitchell
Dear Paul & Interested Readers:
First, thank you for information sent through the weekend and yesterday.
You and others are jumping into the fray to build the synergistic
information pooling necessary to crack the nut of Cooperative Federalism
& outlaw courts, among other things. I'm sorry that I haven't had time
to respond to everything, but I thought that I would take part of this
morning to address the matter of the Article III district court of the
United States v. the United States District Court.
Conclusions concerning these courts are reasonably simple to arrive at,
once a few sections from Titles 18 & 28 of the United States Code, and
from Federal Rules of Criminal Procedure, are laid out. The area where
there seems to be a "missing link" for most people engaged in this
discovery process is that the legitimate United States District Court is
a territorial court, created under Congress' authority to create courts
specified at Article I, Sec. 8, cl. 9: "[The Congress shall have Power]
To constitute Tribunals inferior to the supreme Court …."
Also, Article I, Sec. 8, cl. 18, is important for those who are not familiar
with
constitutional delegations of authority and limitations to understand:
"[The Congress shall have Power] To make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof."
Executive and judicial branches do not have legislative power. They
cannot create new entities, save as are necessary within the department
or agency Congress has legislatively created, nor can they exercise
powers which the Constitution does not specifically prescribe or
Congress enact via statutory authority. In short, if Congress hasn't
created or ordained a department or agency, whether in the executive or
judicial branch of government, it doesn't exist.
This is the central issue, where United States District Courts are
concerned. There are two varieties: the legitimate territorial court,
which exercises authority under the territorial clause (Art. IV, Sec. 3,
cl. 2), is a legislative court, construed to be created under Congress'
delegated authority at Art. I, Sec. 8, cl. 9, cited above. United States
District Courts situated in the several States are not territorial
courts, nor are they Article III district courts of the United States.
They were not created by Congress. Therefore, they are private courts,
created by what amounts to an "outlaw" coalition, or consortium, of
Federal judges; the fraudulent, de facto system was more or less formally
institutionalized in the year 1948.
Congress preserved the integrity of its legislative power at 4 U.S.C. Secs.
71 & 72: Sec. 71 stipulates that the seat of government is within the
present borders of the District of Columbia; then, Sec. 72 specifically
states that no department of government may operate outside the seat of
government without specific statutory authority. So, let's hunt statutory
authority, as evidenced in Titles 18 & 28 of the United States Code.
We'll begin with three definitions at 28 U.S.C. Sec. 451:
[begin quote]
[1] The term "court of the United States" includes the Supreme Court of
the United States, courts of appeals, district courts constituted by
chapter 5 of this title, including the Court of International Trade and
any court created by Act of Congress the judges of which are entitled to
hold office during good behavior.
[2] The terms "district court" and "district court of the United States"
mean the courts constituted by chapter 5 of this title.
[3] The term "district" and "judicial district" mean the districts
enumerated in Chapter 5 of this title.
[end quote]
The only problematic term in the above definitions might be "Act of
Congress". The term is found in applications at Rule 54(c), Federal
Rules of Criminal Procedure:
[begin quote]
(c) As used in these rules the following terms have the designated
meanings.
"Act of Congress" includes any act of Congress locally applicable to and
in force in the District of Columbia, in Puerto Rico, in a territory or
in an insular possession.
[end quote]
We are forced into accepting this definition of "Act of Congress" as
being applicable only in territory of the United States, as Congress
effectively delegated "repeal" authority to the Supreme Court at 28
U.S.C. Sec. 2072(b):
[begin quote]
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
[end quote]
Nowhere does the Constitution grant authority for Congress to delegate
legislative authority to executive or judicial branches of government,
but, since the power was delegated to the Supreme Court via 28 U.S.C. Sec.
2072(b), we need to accept the delegated authority at face value. The
Separation of Powers Doctrine is applicable so far as general powers are
concerned, but may not be applicable in the framework of Congress'
"special plenary power" in territory of the United States (Art. IV.,
Sec. 3, cl. 2). Consequently, we see that "court of the United States"
includes the Article III courts, including district courts of the United
States, circuit courts of appeal, and the Supreme Court, the Court of
International Trade, and territorial courts, created by Act of Congress,
which were defined as United States District Courts in Balzac v. Porto
Rico (1922).
Part of the problem with legislation prior to about 1938, when the
Supreme Court defined the "District Court of the United States"
(district court of the United States) in Mookini v. United States, is
inconsistency in terminology. Some of the older legislation which
mentions United States district courts, district courts, district courts
of the United States, etc., had to be determined from context, rather
than precise phrasing. I've seen this problem in legislation from as
early as 1792, up through and including the Judiciary Act of March 3,
1911. However, it appears that terminology was finally worked out prior
to special events which institutionalized the private United States
District Courts in 1948.
One example of what appeared to be confusion is this: in the 1934 edition
of
the United States Code, the reviser of statutes seemed to be struggling
with sections in Title 28 which preserved the requirement that evidence
in suits at common law be presented by testimony in open court, the
provision that suits in equity may be maintained only where there is not
a clear simple remedy at common law, etc. The "one form of action"
terminology was already in place, which would appear to make these
sections obsolete. Consequently, there were major changes in 1948 that
seemed to straighten out intent, that was "wallowed around" prior to that.
When rules of civil procedure were implemented by the Supreme Court
Order of December 20, 1937, the Order issued as follows: "It is ordered
that Rules of Procedure for the District Courts of the United States be
adopted pursuant to Section 2 of the Act of June 19, 1934, Chapter 651
(48 Stat. 1064) ...."
Evidently, the Mookini decision was intended as a shot across the bow for
Congress: "Say what you mean ...." Mookini was in the territorial court
of
Hawaii, an Article I court, and the Supreme Court held Congress' feet to
the fire. So, we go forward to the Supreme Court Order of December 29,
1948: "1. That the title `Rules of Civil Procedure for the District
Courts of the United States' be amended to read `Rules of Civil
Procedure for the United States District Courts'."
There are corresponding orders for criminal rules of procedure, etc. But,
what was it Congress said? We can go to 28 U.S.C. Sec. 2072, which now
incorporates civil and criminal rules, to find out:
[begin quote]
(a) The Supreme Court shall have the power to prescribe general rules of
practice and procedure and rules of evidence for cases in the United
States district courts ..
[end quote]
Certainly we wouldn't want to dispute whether or not Congress and
justices of the Supreme Court, respectively, are saying what they mean
in statutory and decision language. Heaven forbid that we take them at
anything less than face value. So, if Congress started down the path to
authorize the Supreme Court to promulgate rules under the "one form of
action" notion in district courts of the United States, but in June 1948
decided to correct some previous error or provision, so be it.
The opinion of the United States District Court judge in Eastern Metals
Corporation v. Martin, 191 F.Supp. 245 (1960) was right on target, and
is consistent with Balzac v. Porto Rico and Mookini v. United States.
Thank you for the research and quote, by the way:
[Begin quote]
A United States District Court is an "inferior" court,
i.e., inferior to the United States Supreme Court. The District Court is
a tribunal created by Congress under the power given to Congress by
Article I, Section 8, Clause 9, of the United States Constitution, which
provides that Congress shall have power "to constitute Tribunals
inferior to the supreme Court". Romero v. International Terminal
Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed. 368 [1959]. The
creation and composition of the United States District Courts is
presently set forth in Title 28 U.S.C. Sec. 132. A United States
District Court has only such jurisdiction as the Congress confers upon
the court.
The general jurisdiction of United States District Courts is set forth
in Title 28 U.S.C. Chap. 85 (Secs. 1331 to 1360). Other statutes, not
pertinent, confer jurisdiction on the District Courts in certain types
of actions. On this motion we are concerned with Section 1332 of Title
28 U.S.C. -- the Diversity of Citizenship section, in particular with
subdivision (a)(1) of that section, relating to actions between citizens
of different states.
[End quote]
To verify the good judge, we should examine the section in question, 28
U.S.C. Sec. 1332(a)(1), to wit:
[begin quote]
Sec. 1332. Diversity of citizenship; amount in controversy; costs
(a) The district courts shall have original jurisdiction of all
civil
actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between -
(1) citizens of different States;
[(a)(2) through (c) omitted]
(d) The word "States", as used in this section, includes the
Territories, the District of Columbia, and the Commonwealth of Puerto
Rico.
[end quote]
Darlin', someone has egg on his face for sure: 28 U.S.C. Sec. 1332 isn't
applicable in the Article III district court of the United States; it is
solely a remedy in territorial courts, per the special definition of the
term "States" in subsection (d). Therefore, only courts created by Act
of Congress, as defined at Rule 54(c), F.R.Crim.P., are empowered to
hear diversity cases, etc., under the section. Therefore, the United
States District Court judge who wrote the Eastern Metals Corporation v.
Martin decision was right on target. However, what he omitted from the
decision is this: United States District Courts situated in the several
States were not created by Act of Congress. If you will read notes
following 28 U.S.C. Sec. 132, then follow them up following Sec. 91, you will
find that the section was applicable to the United States District Court
in Hawaii before Hawaii became a State of the Union -- the provision
applied to the now-abolished territorial court. In other words, 132 is
obsolete; it has simply been left in Title 28 as a decoy.
In order to reinforce this conclusion, let's examine appeal authority
for circuit courts of appeals, at 28 U.S.C. Sec. 1291:
[begin quote]
Sec. 1291. Final decisions of district courts.
The courts of appeals (other than the United States Court of
Appeals
for the Federal Circuit) shall have jurisdiction of appeals from all
final decisions of the district courts of the United States, the United
States District Court for the District of the Canal Zone, the District
Court of Guam, and the District Court of the Virgin Islands, except
where a direct review may be had in the Supreme Court. The jurisdiction
described in sections 1292(c) and (d) and 1295 of this title.
[end quote]
In Historic and Statutory Notes for the section, the last entry,
"Termination of United States District Court for the District of the
Canal Zone", it is found that the United States District Court of the
Canal Zone was abolished, effective midnight March 31, 1982, thus leaving
the territorial courts of Guam and the Virgin Islands as the remaining
Article I legislative courts entitled to appeals via circuit courts of
appeals. The United States District Court of the Northern Mariana
Islands was added sometime later, and appeals through the Ninth Circuit
with the District Court of Guam; the District Court of the Virgin
Islands appeals via the Third Circuit.
Criminal jurisdiction and venue of the United States is vested in the
Article III district courts of the United States, per 18 U.S.C. Sec. 3231:
[begin quote]
Sec. 3231. District courts
The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States. [second paragraph omitted]
[end quote]
There is no mention of a "United States District Court" having any
jurisdiction whatever. However, if you will consult Title 48 of the
United States Code, you will find that the United States District Courts
of the Virgin Islands, Guam, etc., are vested with jurisdiction of
district courts of the United States, and at 18 U.S.C. Sec. 3241, you will
find
that the District Court of the Virgin Islands has concurrent maritime
jurisdiction with district courts of the United States.
At Rule 54(a), F.R.Crim.P., you find essentially the same list of
territorial courts as at 28 U.S.C. Sec. 1291:
[begin quote]
Rule 54. Application and Exception
(a) Courts. These rules apply to all criminal proceedings in the
United
States District Courts; in the District of Guam; in the District Court
for the Northern Mariana Islands, except as otherwise provided in
articles IV and V of the covenant provided by the Act of March 24, 1976
(90 Stat. 263); in the District Court of the Virgin Islands; and (except
as otherwise provided in the Canal Zone) in the United States District
Court for the District of the Canal Zone; in the United States Courts of
Appeals; and in the Supreme Court of the United States; except that the
prosecution of offenses in the District Court of the Virgin Islands
shall be by indictment or information as otherwise provided by law.
[end quote]
Remember, they say what they mean -- statutes, and rules, must be
narrowly constructed. And, we have a certain amount of authority
concerning what happens to territorial courts when any territory is
admitted as a State of the Union at Sections 62-64 of the Judiciary Act
of March 3, 1911, 36 Stat. 1104:
[begin quote]
Sec. 62. When any Territory is admitted as a State, and a district
court is established therein, all the records of the proceedings in the
several cases pending in the highest court of said Territory at the time
of such admission, and all records of the proceedings in the several
cases in which judgments or decrees had been rendered in said
territorial court before that time, and from which writs of error could
have been sued out or appeals could have been taken, or from which writs
of error had been sued out or appeals had been taken and prosecuted in
the Supreme Court or to the circuit court of appeals, shall be
transferred to and deposited in the district court for the said State.
Sec. 63. It shall be the duty of the district judge, in the case
provided in the preceding section, to demand of the clerk, or other
person having possession or custody of the records therein mentioned,
the delivery thereof, to be deposited in said district court; and in
case of the refusal of such clerk or person to comply with such demand,
the said district judge shall compel the delivery of such records by
attachment or otherwise, according to law.
Sec. 64. When any Territory is admitted as a State, and a district
court is established therein, the said district court shall take
cognizance of all cases which were pending and undermined in the trial
courts of such Territory, from the judgments or decrees to be rendered
in which writs of error could have been sued out or appeals taken to the
Supreme Court or to the circuit court of appeals, and shall proceed to
hear and determine the same.
[end quote]
The sections above demonstrate that district courts of the United States
and United States District Courts (the latter being Article I
legislative-territorial courts) are mutually exclusive. That is, once a
territory of the United States ceases being a territory, by virtue of
admission to the Union of several States party to the Constitution, a
district court of the United States is established, and the territorial
court, a/k/a United States District Court, is abolished. You caught a
drift of this via Sec. 248 of the same Act:
[begin quote]
Sec. 248. The Supreme Court of the United States shall have
jurisdiction to review, revise, reverse, modify, or affirm the final
judgments and decrees of the supreme court of the Philippine Islands ...
and such final judgments or decrees may and can be reviewed, revised,
reversed, modified, or affirmed by said Supreme Court on appeal or writ
of error by the party aggrieved, within the same time, in the same
manner, under the same regulations, and by the same procedure, as far as
applicable, as the final judgments and decrees of the district courts of
the United States.
[end quote]
The United States District Court of the Philippines, which became an
independent commonwealth in 1946, was a territorial court vested with
jurisdiction of a district court of the United States. But, as we learned
from American Insurance Co. v. 356 Bales of Cotton (1828), a/k/a Am.
Ins. Co. v. Cantor, the territorial court is not, and cannot be, vested
with Article III judicial authority of the United States. Chief Justice
John Marshall described them as Article IV, Sec. 3, Clause 2, courts; the
Supreme Court has since decided that they are Article I legislative
courts.
Congress may vest authority in Article I legislative courts only in
three narrow areas: in territories and the District of Columbia, which
geographically are outside borders of any given State of the Union;
in courts martial, which is an area where the Constitution gives political
branches of government extraordinary control over the precise subject
matter; and, the adjudication of "public rights", which is litigation of
certain matters that historically were reserved to the political
branches of government, and that were between the government and the
individual. The latter is generally administrative in nature. Much of
this has come out in relation to bankruptcy cases.
The first stop on the tour will be at 28 U.S.C. Sec. 610, with is the
definition of "courts" for the Administrative Office of United States
Courts:
[begin quote]
Sec. 610. Courts defined
As used in this chapter the word "courts" includes the courts of
appeals and district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of
Guam, the District Court of the Virgin Islands, the United States Court
of Federal Claims, and the Court of International Trade.
[end quote]
The next stop is at 28 U.S.C. Sec. 753, relating to employment of court
reporters:
[begin quote]
Sec. 753. Reporters
(a) Each district court of the United States, the United States
District Court for the District of the Canal Zone, the District Court of
Guam, and the District Court of the Virgin Islands shall appoint one or
more court reporters.
[end quote]
Next, we will go to general provisions applicable to court officers and
employees, chapter 57, to the definition of courts at 28 U.S.C. Sec. 963:
[begin quote]
Sec. 963. Courts defined
As used in this chapter, unless the context indicates otherwise,
the
words "court" and "courts" include the Supreme Court of the United
States and the courts enumerated in section 610 of this title.
[end quote]
We already have Sec. 610 above, and it says nothing about United
States
District Courts situated in the Union of several States party to the
Constitution. It doesn't appear that they are defined as courts of the
United States, as we saw from the definition at 28 U.S.C. Sec. 451, and are
nowhere authorized to appoint clerks, reporters, etc. But, so we don't
miss essentials, let's consider 28 U.S.C. Sec. 1861, which is declaration
of policy relating to grand and petit juries:
[begin quote]
Sec. 1861. Declaration of policy
It is the policy of the United States that all litigants in
Federal
courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in
the district or division wherein the court convenes. It is further the
policy of the United States that all citizens shall have the opportunity
to be considered for service on grand and petit juries in the district
courts of the United States, and shall have an obligation to serve as
jurors when summoned for that purpose.
[end quote]
Note that Sec. 1861 vests authority in "district courts of the United
States," which, as we've seen, are exclusive of United States District
Courts. The definition of "district court of the United States" is
expanded at 28 U.S.C. Sec. 1869(f):
[begin quote]
(f) "district court of the United States', "district court", and
"court" shall mean any district court established by chapter 5 of this
title, and any court which is created by Act of Congress in a territory
and is invested with any jurisdiction of a district court established by
chapter 5 of this title ..
[end quote]
The final authority is at 18 U.S.C. Sec. 23, which is the most current
listing of territorial courts, a/k/a United States District Courts,
which are defined as courts of the United States. This is 1994
legislation, added by Pub.L. 103-322, Title XXXII, 320914(a),
September 13, 1994, 108 Stat. 2128:
[begin quote]
Sec. 23. Court of the United States defined
As used in this title, except where otherwise expressly provided
the
term "court of the United States" includes the District Court of Guam,
the District Court for the Northern Mariana Islands, and the District
Court of the Virgin Islands.
[end quote]
We've made the tour: the Judiciary Act of March 3, 1911, clearly
stipulates that, when a territory is admitted as a State of the Union,
the territorial court, a/k/a United States District Court, is replaced
by an Article III district court of the United States. Territorial
courts established by Act of Congress, and vested with "jurisdiction" of
district courts of the United States, are construed and defined as
"courts of the United States" for administrative and appellate purposes,
but are not vested with Article III judicial authority of the United
States. United States District Courts situated in the Union of several
States were not created by statute promulgated by Congress in accordance
with Article III Sec. 1, Article I Sec. 8.9, Article I Sec. 8.18, or Article I
Sec. 7
of the Constitution, and in accordance with 4 U.S.C. Sec. 72. United States
District Courts are not defined as "courts of the United States" at 28
U.S.C. Secs. 451 & 610; are not authorized to employ reporters at 28 U.S.C.
Sec. 753; are not defined as courts authorized to employ or regulate other
personnel at 28 U.S.C. Sec. 963; are not authorized to convene grand and
petit juries at 28 U.S.C. Secs. 1861 & 1869(f); are not defined as courts
of the United States at 18 U.S.C. Sec. 23; and are not authorized to
proceed under Federal Rules of Criminal Procedure, per Rule 54(a).
Since United States District Courts in the Union of several States were
not established and empowered by law, they must be "outlaw" -- they were
privately established, therefore they are private courts. They do not
exercise Article I legislative authority or Article III judicial
authority of the United States, and do not meet the narrow criteria for
Article I courts established by the Supreme Court of the United States.
I'm not certain how much more evidence would be needed to prove the
conclusion that United States District Courts situated in the Union of
several States have usurped authority of Article III district courts of
the United States, and are engaged in piracy and plunder. If anyone has
any objection, or can demonstrate lawful authority of these outlaw
courts, speak now or forever hold his peace.
Dan Meador