My conclusion on the topic

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Posted by Dave on April 15, 1998 at 18:38:26:

In Reply to: Does 28 U.S.C. 451 destroy "Karma"? Answer: NO! posted by Paul Andrew Mitchell, B.A., M.S. on April 15, 1998 at 00:58:35:


As our discussion has fragmented into many loose ends, I have endeavored to assemble a summary of my findings and conclusions for the matter. As this will be rather long, I have deleted previous comments from the page and started from scratch.

First I will include a quote from another Supreme Court case which sheds a clearer light on the subject at hand. I came across this further clarification on the extent of jurisdiction for territorial courts in reviewing the Supreme Court opinion from Downes v. Bidwell, 182 U.S. 244 (1901), written by Justice Brown, commenting on Chief Justice Marshall's American Ins. Co. v. 356 Bales of Cotton opinion. His summary is a bit clearer than the original.

"The opinion of Mr. Chief Justice Marshall in this case [American Ins. Co. v. 356 Bales of Cotton] should be read in connection with art. 3, 1 and 2, of the Constitution, vesting 'the judicial power of the United States' 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 behavior,' etc. He held that the court 'should take into view the relation in which Florida stands to the United States;' that territory ceded by treaty 'becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose.' That Florida, upon the conclusion of the treaty, became a territory of the United States and subject to the power of Congress under the territorial clause of the Constitution [Article IV, 3]. The acts providing a territorial government for Florida were examined in detail. He held that the judicial clause of the Constitution, above quoted, did not apply to Florida; that the judges of the superior courts of Florida held their office for four years; that 'these courts are not, then, constitutional courts in which the judicial power conferred by the Constitution on the general government can be deposited;' that 'they are legislative courts, created in virtue of the general right of sovereignty which exists in the government,' or in virtue of the territorial clause of the Constitution; that the jurisdiction with which they are invested is not a part of judicial power of the Constitution, but is conferred by Congress in the exercise of those general powers which that body possesses over the territories of the United States; and that in legislating for them Congress exercises the combined powers of the general and of a state government. The act of the territorial legislature creating the court in question was held not to be 'inconsistent with the laws and Constitution of the United States,' and the decree of the circuit court was affirmed.

As the only judicial power vested in Congress is to create courts whose judges shall hold their offices during good behavior, it necessarily follows that, if Congress authorizes the creation of courts and the appointment of judges for a limited time, it must act independently of the Constitution and upon territory which is not part of the United States [i.e. States united] within the meaning of the Constitution . . . The power to make needful rules and regulations would certainly not authorize anything inconsistent with the Constitution if it applied to the territories. CERTAINLY NO SUCH COURT COULD BE CREATED WITHIN A STATE, EXCEPT UNDER THE RESTRICTIONS OF THE JUDICIAL CLAUSE. It is sufficient to say that this case has ever since been accepted as authority for the proposition that the judicial clause of the Constitution has no application to courts created in the territories, and that with respect to them Congress has a power wholly unrestricted by it." [emphasis mine]

Justice Brown then continues with an examination of Benner v. Porter, which also addressed the Territory of Florida's legislative courts and their jurisdiction after Florida became a State of the Union.

"[American Ins. Co. v. 356 Bales of Cotton] was followed in Benner v. Porter, 9 How. 235, 13 L. ed. 119, in which it was held that THE [legislative] JURISDICTION OF THESE TERRITORIAL COURTS CEASED UPON THE ADMISSION OF FLORIDA INTO THE UNION, Mr. Justice Nelson remarking of them (p. 242, L. ed. p. 122), that 'they are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control. Whether or not there are provisions in that instrument which extend to and act upon these territorial governments, it is not now material to examine. We are speaking here of those provisions that refer particularly to the distinction between Federal and state jurisdiction . . . . (p. 244, L. ed. p. 123). Neither were they [Territory of Florida legislative courts] organized by Congress under [Article III of] the Constitution, as they were invested with powers and jurisdiction which that body [Congress] WERE INCAPABLE OF CONFERRING UPON A COURT WITHIN THE LIMITS OF A STATE.' " [emphasis mine]

So in 1901 anyway, the Supreme Court reasoned that Congress could not create a legislative court within a State of the Union outside the jurisdiction of specifically enumerated powers granted in the Constitution.

Here are the possible 'types' of courts Congress is empowered to create, as I understand it:

1) Article III, 1 authorizes Congress to form judicial courts within the States of the Union.
2) Article I, 8 authorizes Congress to form legislative courts within the District of Columbia.
3) Some Amendments and Article I, 8 authorize Congress to form legislative courts within the States of the Union with jurisdiction extended exclusively to the powers specifically enumerated in the Constitution and to no others. [See Ex Parte Bakelite Corporation, 279 U.S. 438 (1929) regarding the Court of Customs Appeals]
4) Article IV, 3 authorizes Congress to form legislative courts within the territories and possessions of the United States.

These "rules" have been upheld in every Supreme Court case I have reviewed on the topic, without exception. Further, the court always approaches the matter by first looking at the court's location and function in order to place it into one of the above categories, regardless of the name applied to the court.

It is my humble opinion, with which you are free to disagree, that the labels 'United States District Court', 'District Court of the United States', and 'district court of the United States' are not the determining factor in classifiying any particular court. The court's location and/or function is the determining factor.

As for the FOIA issue, here is my reasoning behind the Arizona district court's rejection of an FOIA complaint. It relies upon the reasoning above. My previous statement about not being able to reconcile this issue was intended to mean I had yet to look into the matter, not that I could not understand your reasoning. Sorry if my statement was misleading.

In the 'Karma' article you wrote:

"A United States District Judge in Arizona, in late Spring of 1996, ruled that the United States District Court (USDC) is not the proper forum to litigate a request under the FOIA."

And for completeness, let's include 5 USC 552(a)(4)(B):

"On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."

And finally my reasoning:

A close examination of the statute reveals that a party from whom FOIA requested records are withheld has the option to complain to any one of four courts. Two or more of these options may in fact overlap as the residence/place of business/agency records may be located in the same court district (or even in the District of Columbia). Setting aside the label applied to the courts given jurisdiction for a moment, let's take a close look at the 'type' of courts which might be indicated. The first three listed could be of any type, as there is no specific identifier (but the label) for those. The court identified in the last option however, must be an Article I, 8 court as it is located in the District of Columbia. This makes it a legislative court of general jurisdiction, because the judicial power of the United States does not reach D.C. generally, the sole exception being for a final appeal to the Supreme Court.

Now, the statute explicitly identifies one legislative court as an option for any party to use in complaint, might that also imply that the other courts were intended to be legislative courts as well? The FOIA laws apply to federal agencies who are generally located at the seat of government in the District of Columbia. Wouldn't the laws applying to agencies located in D.C. derive from Article I, 8 as one of Congress' complete powers over the District? Wouldn't the proper 'court' for those laws also derive from Congress' complete authority? One court certainly does, and I suspect that the intent of 5 USC 552(a)(4)(B) places the others in the same category, regardless of the 'labels' utilized in the statute.

If that is the case, then your FOIA complaint filed in the district court in Arizona was indeed outside that court's jurisdiction. Based on its location within a State of the Union, the USDC must either be an Article III judicial court (as it claims), or a court for a specifically enumerated power from Article I, 8 or an Amendment. As reasoned above, the FOIA statutes derive from Article I, 8, specifically from the District of Columbia clause. Congress has no power to form a legislative court of general jurisdiction within a State's boundaries as neither the Article I, 8, District of Columbia clause nor the Article IV, 3 territory clause apply there. See Downes v. Bidwell, supra.

The net result would be that for a party who resides and works within a State of the Union, an FOIA complaint must be filed in either a legislative court of general jurisdiction where the records are maintained (if one exists), or as a last resort, in the legislative court located in the District of Columbia. Granted, this is not terribly convenient for most State residents, but I believe it to be true none-the-less. I believe the USDC of Arizona Judge's ruling is a confirmation of my opinion.

I have no definite proof that this is the case, but I suspect that the district court judge in Arizona reasoned along similar lines.

The weak point in my argument is of course the presumption that the courts listed in 5 USC 552(a)(4)(B) are in fact limited to those of general legislative jurisdiction. If not, does it make sense to 'mix' courts of both judicial and legislative jurisdiction as means for compelling action against government agencies? I am not certain, but I prefer this presumption to the one supposing a widespread unconstitutional action supported by two of the three branches of the federal government. If a court rules otherwise I will be the first to admit I am wrong.

On the other hand, your 'Karma' position requires one of the following to be true in order to avoid conflict with the Constitution's provisions for establishing courts as I understand them:

1) The USDC is either a) an Article I, 8 District of Columbia court or b) an Article IV, 3 territorial court.
2) The USDC is an Article I,8 enumerated power court.

I believe your 'Karma' position reasons along the lines stated in case 1a).

Position 1a) or 1b) would be in direct conflict with Justice Brown's summary of Benner v. Porter, supra, holding that Congress has no power to create a legislative court having general jurisdiction within a State.

Position 2) would imply that the USDC's jurisdictional scope would be severely limited, which proceedings show is not the case.

Alternatively, both Congress and the Judiciary (several thousands of people) have, for at least the last 50 years, conspired in a massive cover-up of unconstitutional acts in violation of previous Supreme Court opinions.

Of course, the final decision is not yours or mine to make. That is for a judge to decide. However, given a choice between believing that the entire Congress and Judiciary are engaged in a conspiracy to cover up an unconstitutional act and believing that your strict interpretation of court labels may be wrong, I find it requires a smaller leap of faith to believe the latter, but that's just me. You are free to believe what you wish.

As for disproving a judge derives his power from Article III, 1 based on the taxation of his pay; for the reasons stated above, I do not agree. I still maintain that an Article III, 1 judge can 'volunteer' to pay taxes. Your counterclaim to that, in arguing for a conflict of interest on that basis, may be useful. If nothing else, it will present quite a dilemma for the courts to reconcile in hearing cases on taxation.

Good luck to you in pursuing this matter and thank you for providing a place and an opportunity for me to join in the discussion.


PS. I would be interested to hear comments from some of the other regular visitors to this site, so long as they can be civil about it. How about it? Common Right Group, Two Cities, Patrick Henry, anyone? Let's hear your ideas and compare notes. After all, a FORUM requires open discussion and debate or it is merely a lecture hall.

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