Palmore v. United States, 5831.

• Decision Date: 28 April 1972
• Docket Number: No. 5831.,5831.
• Citation: 290 A.2d 573
• Parties: Roosevelt F. PALMORE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

290 A.2d 573

Roosevelt F. PALMORE, Appellant, v. UNITED STATES, Appellee.

No. 5831.

District of Columbia Court of Appeals.

Argued October 19, 1971.

Decided April 28, 1972.

Frank F. Flegal, Washington, D. C., for appellant.

James A. Adams, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and Warren R. King, Asst. U. S. Attys., were on the brief, for appellee.

Before KELLY, KERN and NEBEKER, Associate Judges.

KERN, Associate Judge:

Appellant was tried and convicted in the Superior Court of the District of Columbia of a "local" felony, that is, carrying a dangerous weapon (a pistol), after having sustained a prior felony conviction, D.C.Code 1967, § 22-3204.¹ He contests the jurisdiction of the Superior Court to hear his case² because he alleges that only a federal court created under article III of the Constitution has jurisdiction over a felony proscribed by Congress and prosecuted in the name of the United States. Appellant also launches an attack upon the validity of (1) a search of and seizure from his automobile, and (2) a decision by the Government to prosecute him under one statute rather than another. After a review of each of his contentions, which have been ably and vigorously presented in briefs and supplemental memoranda submitted at our request after oral argument, we affirm his conviction.

I.

Appellant bases his formidable challenge to the jurisdiction of the Superior Court and this court upon the language of article III which states that the judicial power of the United States shall extend to all cases arising under the laws of the United States and to which the United States is a party.³ He points out (a) that the sections of the D.C.Code, despite being applicable only to the District of Columbia, constitute the "Laws of the United States," Metropolitan R. R. Co. v. District of Columbia, 132 U.S. 1, 9, 10 S.Ct. 19, 33 L.Ed. 231 (1889) (dictum); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426, 5 L.Ed. 257 (1821) (dictum), and (b) that the United States is a party to any case in which it prosecutes an individual for a violation of the D.C.Code.

Appellant contends that when a case or controversy, such as his, falls within the "judicial Power of the United States," as defined in article III, Congress cannot constitutionally confer jurisdiction over that case upon a non-article III court. He acknowledges that Congress has created under article IV⁴ courts without life tenure for their members to sit in the federal territories and that these courts do have jurisdiction over cases and controversies arising under the laws of the United States and to which the United States is a party. O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 7 L.Ed. 242 (1828); United States v. Montanez, 371 F.2d 79 (2d Cir.), cert. denied, 389 U.S. 884, 88 S.Ct. 147, 19 L.Ed.2d 181 (1967). However, he relies upon the fact that the Supreme Court has emphatically recognized the significant constitutional distinction between territorial courts and the District of Columbia courts. O'Donoghue v. United States, supra, 289 U.S. at 538, 53 S. Ct. 740, 77 L.Ed. 1356.⁵

In further support of his argument,⁶ appellant notes that individuals charged with violations of "local" felonies in the District have been tried by federal courts created under article III, at least since 1863, when the predecessor of the present United States District Court for the District of Columbia was created by Congress.⁷

We believe that neither case law nor history and logic support appellant's argument that Congress must vest jurisdiction over local felonies only in article III courts. We conclude that Congress, in the exercise of its plenary power under article I,⁸ has the constitutional power to proscribe certain criminal conduct only in the District and to select the appropriate court, whether it is created by virtue of article III or article I, to hear and determine these particular criminal cases within the District.

We begin with the established proposition that Congress, at least with respect to courts in the District, is enabled by the District Clause (U.S.Const., art. I, § 8, cl. 17) to confer a "judicial power," wholly separate and apart from its authority under article III to confer judicial power on inferior federal courts. National Mutual Insurance Co. of District of Columbia v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949);⁹ Kendall v. United States, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838); Lurk v. United States, 111 U.S.App.D.C. 238, 296 F.2d 360 (1961), aff'd on different grounds, Glidden Co. v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459, 8 L.Ed.2d 671 (1962); Western Urn Manufacturing Co. v. American Pipe and Steel Corp., 109 U.S.App.D.C. 145, 284 F.2d 279 (1960), sustained, 113 U.S.App. D.C. 378, 308 F.2d 333 (1962); Pang-Tsu Mow v. Republic of China, 91 U.S.App.D. C. 324, 201 F.2d 195 (1952), cert. denied, 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953). Congress has not only utilized the District Clause to vest in article III courts here jurisdiction over cases and controversies not arising under article III, e. g., National Mutual Insurance Co. of District of Columbia v. Tidewater Transfer Co., supra (diversity jurisdiction outside of article III limitations); Kendall v. United States, supra (common law mandamus); Western Urn Manufacturing Co. v. American Pipe and Steel Corp., supra (suits between nonresident corporations); Pang-Tsu Mow v. Republic of China, supra (suits between aliens); but Congress has also employed the District Clause to permit non-article III judges to hear and determine local misdemeanors¹⁰ and local felonies, Lurk v United States, supra,¹¹ Bradford v. Greene, Civil Action No. 3527-70 (D.D.C.1971), aff'd on other grounds, 142 U.S.App.D.C. 237, 440 F.2d 265 (1971). If Congress, within the District, can constitutionally vest a species of judicial power upon District courts free of the limitations contained in article III, then it follows that Congress, in the exercise of its "necessary and proper powers" under U.S.Const., art. I, § 8, cl. 18, is entitled to fashion an entire court system, free of the tenure and salary limitations imposed by article III, to receive this same judicial power over "local" crimes and civil cases.

There may be, of course, substantial and persuasive reasons for creating all courts in the District with lifetime tenure and undiminishable salary for judges so as to be completely free of possible legislative influence. See generally O'Donoghue v. United States, supra, 289 U.S. at 531-533, 53 S.Ct. 740, 77 L.Ed. 1356; Evans v. Gore, 253 U.S. 245, 253, 40 S.Ct. 550, 64 L.Ed. 887 (1920); Legislative and Constitutional Courts, 71 Yale L.J., supra at 1010-11; The Distinction Between Legislative and Constitutional Courts, 62 Colum.L.Rev., supra at 154 n. 149. However, Congress has chosen in its legislative wisdom to follow the example of numerous states ¹² which do not provide for such tenure or salary, and we find this choice to be a legitimate means by which Congress may accomplish the permissible end of creating a "local" court system under the District Clause, United States v. Jacobs, 306 U.S. 363, 371, 59 S.Ct. 551, 83 L.Ed. 763 (1939); Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Neild v. District of Columbia, 71 App.D.C. 306, 312, 110 F. 2d 246, 252 (1940).

We next consider appellant's historical argument: That in the District of Columbia, Congress, at least since 1863,¹³ has conferred jurisdiction over local felonies in article III courts and therefore it cannot now be permitted to withdraw that jurisdiction from these courts and vest it in an article I court system.

First, it is by no means clear that when Congress vested jurisdiction over local felonies in the courts of the District of Columbia, it did so because those cases arose "under the laws of the United States" within the meaning of article III. Of course, these local crimes were violations of laws of the United States, i. e., Acts of Congress, but, were they the types of cases arising under "the Laws of the United States" over which article III directs Congress to vest jurisdiction in inferior federal courts?¹⁴ The historical record is, for all practical purposes, silent as to the particular constitutional power Congress thought it was exercising when it created the first courts in the District and conferred jurisdiction upon them. We must therefore turn to the type of jurisdiction conferred by Congress to determine which article of the Constitution Congress may have relied upon to confer that jurisdiction. See generally Ex parte Bakelite Corp., 279 U.S. 438, 459, 49 S.Ct. 411, 73 L.Ed. 789 (1929).

In 1801, Congress created the first District of Columbia felonies when it reenacted for the District of Columbia the laws which had been applicable to those particular areas of Maryland and Virginia ceded to the United States for the District, 2 Stat. 103, 104 (1801); see Kendall v. United States, supra 37 U.S. at 619, 9 L.Ed. 1181. It seems quite unlikely that Congress intended to transform the offenses committed by the residents of the ceded areas against their local statutes into general federal offenses triable under article III in lower federal courts. To have done so would have been to create a unique form of federal criminal jurisdiction because (i) the conduct proscribed by Congress in the District of Columbia Code, unlike general federal offenses, could have occurred only in one specific geographical area, and (ii) inferior federal courts created under article III to sit throughout the several states have never been capable of exercising article III judicial power over local offense committed in their respective districts.¹⁵

It must be remembered that in 1801, there was a distrust of the general federal judicial power. Indeed, this distrust...