Re: Does 28 U.S.C. 451 destroy

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Posted by Dave on April 13, 1998 at 20:04:57:

In Reply to: Does 28 U.S.C. 451 destroy posted by Paul Andrew Mitchell, B.A., M.S. on April 12, 1998 at 23:47:18:

: [snip]

: : Most notably, the Advisory Committee
: : Notes for 1972 Proposed Rules, immediately
: : following Rule 1101 in the Federal Rules of
: : Evidence, contain the following amazing
: : paragraph, to wit:

: : These various provisions do not in terms
: : describe the same courts. In congressional
: : usage the phrase "district courts of the
: : United States", without further qualification,
: : traditionally has included the district courts
: : established by Congress in the states under
: : Article III of the Constitution, which are
: : "constitutional" courts, and has not included
: : the territorial courts created under Article IV,
: : Section 3, Clause 2, which are "legislative"
: : courts. Hornbuckle v. Toombs, 85 U.S. 648,
: : 21 L.Ed. 966 (1873) [sic]. [snip]

: Here is the pertinent paragraph from Hornbuckle
: v. Toombs supra, to wit:

: "The acts of Congress respecting proceedings
: in the United States courts [read "DCUS"],
: are concerned with, and confined to, those
: courts, considered as parts of the Federal
: system, and as invested with the judicial power
: of the United States expressly conferred by the
: Constitution, and to be exercised in correlation
: with the presence and jurisdiction of the
: several state courts and governments.

: "They were not intended as exertions of that
: plenary municipal authority which Congress has
: over the district of Columbia and the territories
: of the United States. They do not contain a word
: to indicate any such intent. The fact that they
: require the circuit and district courts to follow
: the practice of the respective state courts in
: cases at law, and that they supply no other rule
: in such cases, shows that they cannot apply to
: the territorial courts. As before said, these
: acts have separate application to the courts
: of the United States [read "DCUS"], which are
: courts of a peculiar character and jurisdiction."

: Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648,
: 21 L.Ed. 966, 967 (1874)

: Sincerely yours,

: /s/ Paul Andrew Mitchell, B.A., M.S.
: Counselor at Law, Federal Witness
: and Private Attorney General


I readily agree that there exist two separate 'types' of federal courts, both judicial and legislative. It is easy to see that is the case based on several Supreme Court decisions. However, the definitive proof of your position as to the classification of these courts eludes me.

: DCUS for Arizona is created by 28 U.S.C. 82;
: USDC for Arizona is created by 28 U.S.C. 132;

It still seems to me that an Article III court for Arizona is 'created' by 28 USC 132, with bounds described in 28 USC 82. While I can find no definite proof of a 'parallel' legislative court for any State of the Union.

I reviewed several Supreme Court Cases on this topic and have found them to be consistent on this point. When discussing district courts, by whatever name, located in a federal territory or possession, they are always classified as a legislative body. Those located within a State of the Union are Article III judicial bodies.

Quoting (American Insurance v. 356 Bales of Cotton - 1828) Chief Justice Marshall's opinion for the court:

"On the 2d of February 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession, contains the following provision- 'The inhabitants of the territories, which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal Constitution; and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.'

This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities, of the citizens of the United States. It is unnecessary to inquire, whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government, till Florida shall become a state. In the mean time, Florida continues to be a territory of the United States; governed by virtue of that clause in the Constitution, which empowers Congress 'to make all needful rules and regulations, respecting the TERRITORY, or other property belonging to the United States.' " [emphasis mine]

So here we can see that at the time of the original trial's appeal, the district court (named a 'Superior Court') of the United States in Florida was within the bounds of a federal territory. This fact apparently places the court into the legislative tribunal class as can be seen from Chief Justice Marshall's further comments on the topic. I believe this incorporates the section you cite in your previous posts.

"The Judges of the Superior Courts of Florida hold their offices for four years. These [Territory of Florida] Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the TERRITORY belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d Article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the TERRITORIES of the United States." [emphasis mine]

Similarly, when discussing the Court of Customs Appeals in EX PARTE BAKELITE (1929) the Supreme Court showed that Congress can create legislative tribunals (where authorized by the Constitution) that fall within their ennumerated powers.

"The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports and to adopt any appropriate means of carrying that power into execution . . .

. . . This summary of the court's province as a special tribunal, of the matters subjected to its revisory authority, and of its relation to the executive administration of the customs laws, shows very plainly that it is a legislative and not a constitutional court. . . ."

Further, a claim was raised as to the naming of the court as a 'United States court' and that such a court would fall under Article III of the Constitution. The Supreme Court also rejected this argument, implying that the name was not the determining factor in classifying the court.

"Another feature to which attention was given is the denomination of the court as a United States court. That the court is a court of the United States is plain; but this is quite consistent with its being a legislative court. "

The Supreme Court in Bakelite also quotes Chief Justice Marshall from the American Insurance opinion above, noting that the court was located in the Territory of Florida.

"The first pronouncement on the subject by this Court was in American Insurance Co. v. Canter, 1 Pet. 511, where the status and jurisdiction of courts created by Congress for the Territory of Florida were drawn in question. Chief Justice Marshall, speaking for the court, said (page 546):

'These [Territory of Florida] Courts, then, are not constitutional Courts… (continue as above)"

Unfortunately my time and resources are limited and I have not been able to review the many other cases referenced besides those above and a few others. I can only state that the flavor I get from the cases I have reviewed is rather consistent and not alltogether in agreement with the entirety of your position. I cannot resolve your FOIA jurisdiction issue per the USDC at this time, given what I've read. Perhaps someone else out there can offer a few tidbits of insight on that score.

As always, I welcome and look forward to your comments and/or rebuttals to my findings and interpretations.


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