U.S. v. Woodley

• Decision Date: 08 March 1984
• Docket Number: No. 82-1028,82-1028
• Citation: 726 F.2d 1328
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janet WOODLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

726 F.2d 1328

UNITED STATES of America, Plaintiff-Appellee, v. Janet WOODLEY, Defendant-Appellant.

No. 82-1028.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 19, 1982.

Decided Dec. 8, 1983.

As Amended March 8, 1984.

Elliot Enoki, Honolulu, Hawaii, for plaintiff-appellee.

Pamela J. Berman, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before CANBY, NORRIS and REINHARDT, Circuit Judges.

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. ¹ 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. ² 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.

I

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. ³

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.

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.

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.

II

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 1335, these considerations persuade us that only those judges enjoying article III protections may exercise the judicial power of the United States.

A

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[ing] for their Services, a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, Sec. 1. This language is unusually specific. As Justice Frankfurter noted,

[n]o 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....

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).

We cannot disregard such an explicit constitutional requirement, for

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, 4 Wheat. 316, 407 , we ought not to take liberties with it.

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.

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, Sec. 2, cl. 3. This language appears insufficient to overcome the explicit command of article III.

B

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.

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

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.

The Declaration of Independence para. 13 (U.S.1776).

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:

[I] 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...