By virtue of its power ``to ordain and establish'' courts, Congress has occasionally created courts under Article III to exercise a specialized jurisdiction. These tribunals are like other Article III courts in that they exercise ``the judicial power of the United States,'' and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann- Elkins Act of 1910,\37\ which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment, of cases brought to enjoin, annul, or set aside orders of the Commission, of cases brought under the act of 1903 to prevent unjust discriminations, and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above.

NOTE:

Another court of specialized jurisdiction, but created for a limited time only, was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942.\38\ By the terms of the statute, this court consisted of three or more judges designated by the Chief Justice from the judges of the Untied States district courts and circuit courts of appeal. The Court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding, but the court was tightly constrained in its treatment of regulations. There was interplay with the district courts, which were charged with authority to enforce orders issued under the Act, although only the Emergency Court had jurisdiction to determine the validity of such orders.\39\

NOTES:

\39\In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.
      A similar court was created to be utilized in the enforcement of the economic controls imposed by President Nixon in 1971. P.L. 92-210, 85 Stat. 743, 211(b). Although controls ended in 1974, see 12 U.S.C. Sec. 1904 note, Congress continued the Temporary Emergency Court of Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act of 1973, P.L. 93-159, 87 Stat. 633, 15 U.S.C. Sec. 754, incorporating judicial review provisions of the Economic Stabilization Act. The Court was abolished, effective March 29, 1993, by P. L. 102-572, 106 Stat. 4506.
      Another similar specialized court was created by Sec. 209 of the Regional Rail Reorganization Act, P. L. 93-226, 87 Stat. 999, 45 U.S.C. Sec. 719, to review the final system plan under the Act. Regional Rail Reorganization Act Cases(Blanchette v. Connecticut Gen. Ins. Corp.), 419 U.S. 102 (1974).

Other specialized courts are the Court of Appeals for the Federal Circuit, which is in many respects like the geographic circuits. Created in 1982,\40\ this court has exclusive jurisdiction to hear appeals from the United States Court of Federal Claims, from the Federal Merit System Protection Board, the Court of International Trade, the Patent Office in patent and trademark cases, and in various contract and tort cases. The Court of International Trade, which began life as the Board of General Appraisers, became the United States Customs Court in 1926, and was declared an Article III court in 1956, came to its present form and name in 1980.\41\ The Judicial Panel on Multidistrict Litigation, staffed by federal judges from other courts, is authorized to transfer actions pending in different districts to a single district for trial.\42\

NOTES:

\41\Act of Oct. 10, 1980, 94 Stat. 1727.

\42\28 U.S.C. Sec. 1407.

To facilitate the gathering of foreign intelligence information, through electronic surveillance, search and seizure, as well as other means, Congress authorized in 1978 a special court, composed of seven regular federal judges appointed by the Chief Justice, to receive applications from the United States and to issue warrants for intelligence activities.\43\

NOTE:

Even greater specialization is provided by the special court created by the Ethics in Government Act;\44\ the court is charged, upon the request of the Attorney General, with appointing an independent counsel to investigate and prosecute charges of illegality in the Executive Branch. The court also has certain supervisory powers over the independent counsel.

NOTE:

Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary.\45\ The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter,\46\ which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: ``These 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 3rd 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.''\47\ The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III but that the same limitation does not apply to the territorial courts, for in legislating for them ``Congress exercises the combined powers of the general, and of a state government.''\48\

NOTES:

\45\In Freytag v. CIR, 501 U.S. 868 (1991), a controverted decision held Article I courts to be ``Courts of Law'' for purposes of the appointments clause. Art. II, Sec. 2, cl. 2. See id., 888-892 (majority opinion), and 901-914 (Justice Scalia dissenting).

\46\1 Pet. (26 U.S.) 511 (1828).

\47\Id., 546.

\48\In Glidden Co. v. Zdanok, 370 U.S. 530, 544-545 (1962), Justice Harlan asserted that Chief Justice Marshall in the Canter case ``did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. . . . All the Chief Justice meant . . . is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article. . . .''

Canter postulated a simple proposition: ``Constitutional courts exercise the judicial power described in Art. III of the Constitution; legislative courts do not and cannot.''\49\ A two-fold difficulty attended this proposition, however. Admiralty jurisdiction is included within the ``judicial power of the United States'' specifically in Article III, requiring an explanation how this territorial court could receive and exercise it. Second, if territorial courts could not exercise Article III power, how might their decisions be subjected to appellate review in the Supreme Court, or indeed in other Article III courts, which could exercise only Article III judicial power?\50\ Moreover, if in fact some ``judicial power'' may be devolved upon courts not having the constitutional security of tenure and salary, what prevents Congress from undermining those values intended to be protected by Article III's guarantees by giving jurisdiction to nonprotected entities that, being subjected to influence, would be bent to the popular will?

NOTES:

\50\That the Supreme Court could review the judgments of territorial courts was established in Durousseau v. United States, 6 Cr. (10 U.S.) 307 (1810). See also Benner v. Porter, 9 How. (50 U.S.) 235, 243 (1850); Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434 (1872); Balzac v. Porto Rico, 258 U.S. 298, 312-313 (1922).

Attempts to explain or to rationalize the predicament or to provide a principled limiting point have from Canter to the present resulted in ``frequently arcane distinctions and confusing precedents'' spelled out in cases comprising ``landmarks on a judicial `darkling plain' where ignorant armies have clashed by night''.\51\ Nonetheless, Article I courts are quite usual entities in our judicial system.\52\

NOTES:

\52\In addition to the local courts of the District of Columbia, the bankruptcy courts, and the U. S. Court of Federal Claims, considered infra, these include the United States Tax Court, formerly an independent agency in the Treasury Department, but by the Tax Reform Act of 1969, Sec. 951, 83 Stat. 730, 26 U.S.C. Sec. 7441, made an Article I court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 102 Stat. 4105, 38 U.S.C. Sec. 4051, and the courts of the territories of the United States. Magistrate judges are adjuncts of the District Courts, see infra, n. 105, and perform a large number of functions, usually requiring the consent of the litigants. See Gomez v. United States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 (1991). The U. S. Court of Military Appeals, strictly speaking, is not part of the judiciary but is a military tribunal, 10 U.S.C. Sec. 867, although Congress designated it an Article I tribunal and has recently given the Supreme Court certiorari jurisdiction over its decisions.

Power of Congress Over Legislative Courts. -- In creating legislative courts, Congress is not limited by the restrictions imposed in Article III concerning tenure during good behavior and the prohibition against diminution of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court, and it may subject the judges of legislative courts to removal by the President,\53\ or it may reduce their salaries during their terms.\54\ Similarly, it follows that Congress can vest in legislative courts nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus, in Gordon v. United States,\55\ there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise, in United States v. Ferreira,\56\ the Court sustained the act conferring powers on the Florida territorial court to examine claims rising under the Spanish treaty and to report its decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. ``A power of this description,'' it was said, ``may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.''\57\

NOTES:

\54\United States v. Fisher, 109 U.S. 143 (1883); Williams v. United States, 289 U.S. 553 (1933).

\55\2 Wall. (69 U.S.) 561 (1864).

\56\13 How. (54 U.S.) 40 (1852).

\57\Id., 48.

Review of Legislative Courts by Supreme Court. -- Chief Justice Taney's view, that would have been expressed in Gordon,\58\ that the judgments of legislative courts could never be reviewed by the Supreme Court, was tacitly rejected in DeGroot v. United States,\59\ in which the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision in this case, the authority of the Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts but rather upon the nature of the proceeding before the lower court and the finality of its judgment. The Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such a body.\60\ But in proceedings before a legislative court which are judicial in nature, admit of a final judgment, and involve the performance of judicial functions and therefore the exercise of judicial power, the Court may be vested with appellate jurisdiction.\61\

NOTES:

\59\5 Wall. (72 U.S.) 419 (1867). See also United States v. Jones, 119 U.S. 477 (1886).

\60\E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577-579 (1962).

\61\Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The ``Public Rights'' Distinction. -- A major delineation of the distinction between Article I courts and Article III courts was attempted in Murray's Lessee v. Hoboken Land & Improvement Co.\62\ In this case was challenged a summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its customs collectors. It was objected that the assessment and collection was a judicial act carried out by nonjudicial officers and thus invalid under Article III. Accepting that the acts complained of were judicial, the Court nonetheless sustained the act by distinguishing between any act, ``which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty,'' which, in other words, is inherently judicial, and other acts which Congress may vest in courts or in other agencies. ``[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.''\63\ The distinction was between those acts which historically had been determined by courts and those which historically had been resolved by executive or legislative acts and comprehended those matters that arose between the government and others. Thus, Article I courts ``may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control.''\64\

NOTES:

\63\Id., 284.

\64\Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).

Among the matters susceptible of judicial determination, but not requiring it, are claims against the United States,\65\ the disposal of public lands and claims arising therefrom,\66\ questions concerning membership in the Indian tribes,\67\ and questions arising out of the administration of the customs and internal revenue laws.\68\ Other courts similar to territorial courts, such as consular courts and military courts martial, may be justified on like grounds.\69\

NOTES:

\66\United States v. Coe, 155 U.S. 76 (1894) (Court of Private Land Claims).

\67\Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).

\68\Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte Bakelite Corp., 279 U.S. 438 (1929).

\69\See In re Ross, 140 U.S. 453 (1891) (consular courts in foreign countries). Military courts may, on the other hand, be a separate entity of the military having no connection to Article III. Dynes v. Hoover, 20 How. (61 U.S.) 65, 79 (1857).

The ``public rights'' distinction appears today to be a description without a significant distinction. Thus, in Crowell v. Benson,\70\ the Court approved an administrative scheme for determination, subject to judicial review, of maritime employee compensation claims, although it acknowledged that the case involved ``one of private right, that is, of the liability of one individual to another under the law as defined.''\71\ This scheme was permissible, the Court said, because in cases arising out of congressional statutes, an administrative tribunal could make findings of fact and render an initial decision of legal and constitutional questions, as long as there is adequate review in a constitutional court.\72\ The ``essential attributes'' of decision must remain in an Article III court, but so long as it does, Congress may utilize administrative decisionmakers in those private rights cases that arise in the context of a comprehensive federal statutory scheme.\73\ That the ``public rights'' distinction marked a dividing line between those matters that could be assigned to legislative courts and to administrative agencies and those matters ``of private right'' that could not be was reasserted in Marathon, but there was much the Court plurality did not explain.\74\

NOTES:

\71\Id. 51. On the constitutional problems of assignment to an administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).

\72\Id., 51-65.

\73\Id., 50, 51, 58-63. Thus, Article III concerns were satisfied by a review of the agency fact finding upon the administrative record. Id., 63-65. The plurality opinion denied the validity of this approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n. 39 (1982), although Justice white in dissent accepted it. Id., 115. The plurality, rather, rationalized Crowell and subsequent cases on an analysis seeking to ascertain whether agencies or Article I tribunals were ``adjuncts'' of Article III courts, that is, whether Article III courts were sufficiently in charge to protect constitutional values. Id., 76-87.

\74\Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67-70 (1982) (plurality opinion). Thus, Justice Brennan states that at a minimum a matter of public right must arise ```between the government and others''' but that the presence of the United States as a proper party to the proceeding is a necessary but not sufficient means to distinguish ``private rights.'' Id., 69 & n. 23. Crowell v. Benson, however, remained an embarrassing presence.

The Court continued to waver with respect to the importance to decision-making of the public rights/private rights distinction. In two cases following Marathon, it rejected the distinction as ``a bright line test,'' and instead focused on ``substance''--i.e., on the extent to which the particular grant of jurisdiction to an Article I court threatened judicial integrity and separation of powers principles.\75\ Nonetheless, the Court indicated that the distinction may be an appropriate starting point for analysis. Thus, the fact that private rights traditionally at the core of Article III jurisdiction are at stake leads the Court to ``searching'' inquiry as to whether Congress is encroaching inordinately on judicial functions, while the concern is not so great where ``public'' rights are involved.\76\

NOTES:

However, in a subsequent case, the distinction was pronounced determinative not only of the issue whether a matter could be referred to a non-Article III tribunal but whether Congress could dispense with civil jury trials.\77\ In so doing, however, the Court vitiated much of the core content of ``private'' rights as a concept and left resolution of the central issue to a balancing test. That is, ``public'' rights are, strictly speaking, those in which the cause of action inheres in or lies against the Federal Government in its sovereign capacity, the understanding since Murray's Lessee. However, to accommodate Crowell v. Benson, Atlas Roofing, and similar cases, seemingly private causes of action between private parties will also be deemed ``public'' rights, when Congress, acting for a valid legislative purpose pursuant to its Article I powers, fashions a cause of action that is analogous to a common-law claim and so closely integrates it into a public regulatory scheme that it becomes a matter appropriate for agency resolution with limited involvement by the Article III judiciary.\78\ Nonetheless, despite its fixing by Congress as a ``core proceeding'' suitable for an Article I bankruptcy court adjudication, the Court held the particular cause of action at issue was a private issue as to which the parties were entitled to a civil jury trial (and necessarily which Congress could not commit to an Article I tribunal, save perhaps through the consent of the parties).\79\

NOTES:

\78\Id., 52-54. The Court reiterated that the Government need not be a party as a prerequisite to a matter being of ``public right.'' Id., 54. Concurring, Justice Scalia argued that public rights historically were and should remain only those matters to which the Federal Government is a party. Id, 65.

\79\Id., 55-64. The Court reserved the question whether, a jury trial being required, a non-Article III bankruptcy judge could oversee such a jury trial. Id., 64. That question remains unresolved, both as a matter, first, of whether there is statutory authorization for bankruptcy judges to conduct jury trials, and, second, if there is, whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023, vacated and remanded for consideration of a jurisdictional issue, 498 U.S. 964 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. den., 500 U.S. 928 (1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).

Constitutional Status of the Court of Claims and the Courts of Customs and Patent Appeals. -- Though the Supreme Court for a long while accepted the Court of Claims as an Article III court,\80\ it later ruled that court to be an Article I court and its judges without constitutional protection of tenure and salary.\81\ Then, in the 1950s, Congress statutorily declared that the Court of Claims, the Customs Court, and the Court of Customs and Patent Appeals were Article III courts,\82\ a questionable act under the standards the Court had utilized to determine whether courts were legislative or constitutional.\83\ But in Glidden Co. v. Zdanok,\84\ five of seven participating Justices united to find that indeed the Court of Claims and the Court of Customs and Patent Appeals, at least, were constitutional courts and their judges eligible to participate in judicial business in other constitutional courts. Three Justices would have overruled Bakelite and Williams and would have held that the courts in question were constitutional courts.\85\ Whether a court is an Article III tribunal depends largely upon whether legislation establishing it is in harmony with the limitations of that Article, specifically, ``whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite.'' When a court is created ``to carry into effect [federal] powers . . . over subject matter . . . and not over localities,'' a presumption arises that the status of such a tribunal is constitutional rather than legislative.\86\ The other four Justices expressly declared that Bakelite and Williams should not be overruled,\87\ but two of them thought the two courts had attained constitutional status by virtue of the clear manifestation of congressional intent expressed in the legislation.\88\ Two Justices maintained that both courts remained legislative tribunals.\89\ While the result is clear, no standard for pronouncing a court legislative rather than constitutional has obtained the adherence of a majority of the Court.\90\

NOTES:

\81\Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte Bakelite Corp., 279 U.S. 438, 450-455 (1929).

\82\67 Stat. 226, Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims); 70 Stat. 532. Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848, Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).

\83\In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), Justice Van Devanter refused to give any weight to the fact that Congress had bestowed life tenure on the judges of the Court of Customs Appeals because that line of thought ``mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.''

\84\370 U.S. 530 (1962).

\85\Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices Harlan, Brennan, and Stewart).

\86\Id., 548, 552.

\87\Id., 585 (Justice Clark and Chief Justice Warren concurring); 589 (Justices Douglas and Black dissenting).

\88\Id., 585 (Justice Clark and Chief Justice Warren).

\89\Id., 589 (Justices Douglas and Black). The concurrence thought that the rationale of Bakelite and Williams was based on a significant advisory and reference business of the two courts, which the two Justices now thought insignificant, but what there was of it they thought nonjudicial and the courts should not entertain it. Justice Harlan left that question open. Id., 583.

\90\Aside from doctrinal matters, in 1982, Congress created the United States Court of Appeals for the Federal Circuit, giving it, inter alia, the appellate jurisdiction of the Court of Claims and the Court of Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. Sec. 41. At the same time Congress, created the United States Claims Court, now the United States Court of Federal Claims, as an Article I tribunal, with the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as amended, Sec. 902(a)(1), 106 Stat. 4516, 28 U.S.C. Sec. Sec. 171-180.

Status of Courts of the District of Columbia. -- Through a long course of decisions, the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe,\91\ the Court sustained an act of Congress which conferred revisory powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisory powers in the same court over rates fixed by a public utilities commission.\92\ Not long after this, the same rule was applied to the revisory powers of the District Supreme Court over orders of the Federal Radio Commission.\93\ These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In dictum in Ex parte Bakelite Corp.,\94\ while reviewing the history and analyzing the nature of the legislative courts, the Court stated that the courts of the District were legislative courts.

NOTES:

\92\Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).

\93\Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 (1930).

\94\279 U.S. 438, 450-455 (1929).

In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States,\95\ with the result that it assumed the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, Article III, Sec. 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, ``Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts.''\96\

NOTES:

\96\Id., 535-546. Chief Justice Hughes in dissent argued that Congress' power over the District was complete in itself and the power to create courts there did not derive at all from Article III. Id., 551. See the discussion of this point of O'Donoghue in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967) (three-judge court).

In 1970, Congress formally recognized two sets of courts in the District, federal courts, district courts and a Court of Appeals for the District of Columbia, created pursuant to Article III, and courts equivalent to state and territorial courts, created pursuant to Article I.\97\ Congress' action was sustained in Palmore v. United States.\98\ When legislating for the District, the Court held, Congress has the power of a local legislature and may, pursuant to Article I, Sec. 8, cl. 17, vest jurisdiction to hear matters of local law and local concerns in courts not having Article III characteristics. The defendant's claim that he was denied his constitutional right to be tried before an Article III judge was denied on the basis that it was not absolutely necessary that every proceeding in which a charge, claim, or defense based on an act of Congress or a law made under its authority need be conducted in an Article III court. State courts, after all, could hear cases involving federal law as could territorial and military courts. ``[T]he requirements of Article III, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment.''\99\

NOTES:

\98\411 U.S. 389 (1973)

\99\Id., 407-408. See also Pernell v. Southall Realty Co., 416 U.S. 363, 365-365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. Doyle, 434 U.S. 59 (1978). Under Swain, provision for hearing of motions for postjudgment relief by convicted persons in the District, the present equivalent of habeas for federal convicts, is placed in Article I courts. That there are limits to Congress' discretion is asserted in dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977).

Bankruptcy Courts. -- After extended and lengthy debate, Congress in 1978 revised the bankruptcy act and created as an ``adjunct'' of the district courts a bankruptcy court composed of judges, vested with practically all the judicial power of the United States, serving for 14 year terms, subject to removal for cause by the judicial councils of the circuits, and with salaries subject to statutory change.\100\ The bankruptcy courts were given jurisdiction over all civil proceedings arising under the bankruptcy code or arising in or related to bankruptcy cases, with review in Article III courts under a clearly erroneous standard. In a case in which a claim was made against a company for breaches of contract and warranty, purely state law claims, the Court held unconstitutional the conferral upon judges not having the Article III security of tenure and compensation of jurisdiction to hear state law claims of traditional common law actions of the kind existing at the time of the drafting of the Constitution.\101\ While the holding was extremely narrow, a plurality of the Court sought to rationalize and limit the Court's jurisprudence of Article I courts. According to the plurality, as a fundamental principle of separation of powers, the judicial power of the United States must be exercised by courts having the attributes prescribed in Article III. Congress may not evade the constitutional order by allocating this judicial power to courts whose judges lack security of tenure and compensation. Only in three narrowly circumscribed instances may judicial power be distributed outside the Article III framework: in territories and the District of Columbia, that is, geographical areas in which no State operated as sovereign and Congress exercised the general powers of government; courts martial, that is, the establishment of courts under a constitutional grant of power historically understood as giving the political branches extraordinary control over the precise subject matter; and the adjudication of ``public rights,'' that is, the litigation of certain matters that historically were reserved to the political branches of government and that were between the government and the individual.\102\ In bankruptcy legislation and litigation not involving any of these exceptions, the plurality would have held, the judicial power to process bankruptcy cases could not be assigned to the tribunals created by the act.\103\

NOTES:

\101\The statement of the holding is that of the two concurring Justices, id., 89 (Justices Rehnquist and O'Connor), with which the plurality agreed ``at the least,'' while desiring to go further. Id., 87 n. 40.

\102\Id., 63-76 (Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens).

\103\The plurality also rejected an alternative basis, a contention that as ``adjuncts'' of the district courts, the bankruptcy courts were like United States magistrates or like those agencies approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be assigned factfinding functions subject to review in Article III courts, the fount of the administrative agency system. Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-86 (1982). According to the plurality, the act vested too much judicial power in the bankruptcy courts to treat them like agencies, and it limited the review of Article III courts too much.

The dissent argued that, while on its face Article III provided for exclusivity in assigning judicial power to Article III entities, the history since Canter belied that simplicity. Rather, the precedents clearly indicated that there is no difference in principle between the work that Congress may assign to an Article I court and that which must be given to an Article III court. Despite this, the dissent contended that Congress did not possess plenary discretion in choosing between the two systems; rather, in evaluating whether jurisdiction was properly reposed in an Article I court, the Supreme Court must balance the values of Article III against both the strength of the interest Congress sought to further by its Article I investiture and the extent to which Article III values were undermined by the congressional action. This balancing would afford the Court, the dissent believed, the power to prevent Congress, were it moved to do so, from transferring jurisdiction in order to emasculate the constitutional courts of the United States.\104\

NOTE:

Again, no majority could be marshaled behind a principled discussion of the reasons for and the limitation upon the creation of legislative courts, not that a majority opinion, or even a unanimous one, would necessarily presage the settling of the law.\105\ But the breadth of the various opinions left unclear not only the degree of discretion left in Congress to restructure the bankruptcy courts, but placed in issue the constitutionality of other legislative efforts to establish adjudicative systems outside a scheme involving the creation of life-tenured judges.\106\

NOTES:

\106\In particular, the Federal Magistrates Act of 1968, under which judges may refer certain pretrial motions and the trial of certain matters to persons appointed to a specific term, was threatened. P.L. 90-578, 82 Stat. 1108, as amended, 28 U.S.C. Sec. Sec. 631-639. See United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423 U.S. 261 (1976).

Congress responded to Marathon by enactment of the Bankruptcy Amendments and Federal Judgeship Act of 1984.\107\ Bankruptcy courts were maintained as Article I entities, and overall their powers as courts were not notably diminished. However, Congress did establish a division between ``core proceedings,'' which bankruptcy courts could hear and determine, subject to lenient review, and other proceedings, which, though the bankruptcy courts could initially hear and decide, any party could have de novo review in the district court, unless the parties consented to bankruptcy-court jurisdiction in the same manner as core proceedings. A safety valve was included, permitting the district court to withdraw any proceeding from the bankruptcy court on cause shown.\108\ Notice that in Granfinanciera, S.A. v. Nordberg,\109\ the Court found that a cause of action founded on state law, though denominated a core proceeding, was a private right.

NOTES:

\108\See 28 U.S.C. Sec. 157.

\109\492 U.S. 33 (1989).

Agency Adjudication. -- The Court in two decisions following Marathon involving legislative courts clearly suggested that the majority was now closer to the balancing approach of the Marathon dissenters than to the position of the Marathon plurality that Congress may confer judicial power on legislative courts in only very limited circumstances. Subsequently, however, Granfinanciera, S.A. v. Nordberg,\110\ a reversion to the fundamentality of Marathon, with an opinion by the same author, Justice Brennan, cast some doubt on this proposition. In Thomas v. Union Carbide Agric. Products Co.,\111\ the Court upheld a provision of the pesticide law requiring binding arbitration, with limited judicial review, of compensation due one registrant by another for mandatory sharing of registration information, the right arising from federal statutory law. And in CFTC v. Schor,\112\ the Court upheld conferral on the agency of authority, in a reparations adjudication under the Act, also to adjudicate ``counterclaims'' arising out of the same transaction, including those arising under state common law. Neither the fact that the pesticide case involved a dispute between two private parties nor the fact that the CFTC was empowered to decide claims traditionally adjudicated under state law proved decisive to the Court's analysis.

NOTES:

\111\473 U.S. 568 (1985).

\112\478 U.S. 833 (1986).

In rejecting a ``formalistic'' approach and analyzing the ``substance'' of the provision at issue in Union Carbide, Justice O'Connor`s opinion for the Court pointed to several considerations.\113\ The right to compensation was not a purely private right, but ``bears many of the characteristics of a `public' right,'' since Congress was ``authoriz[ing] an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program.''\114\ Also important was not ``unduly constrict[ing] Congress in its ability to take needed and innovative action pursuant to its Article I powers;''\115\ arbitration was ``a pragmatic solution to [a] difficult problem.'' The limited nature of judicial review was seen as a plus in the sense that ``no unwilling defendant is subjected to judicial enforcement power;'' on the other hand, availability of limited judicial review of the arbitrator's findings and determination for fraud, misconduct, or misrepresentation, and for due process violations, preserved the ```appropriate exercise of the judicial function.'''\116\ Thus, the Court concluded, Congress in exercise of Article I powers ``may create a seemingly `private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.''\117\

NOTES:

\114\Id., 473 U.S., 589.

\115\CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas rule).

\116\Thomas, supra, 473 U.S., 591, 592(quoting Crowell v. Benson, 285 U.S. 22, 54 (1932)).

\117\473 U.S., 594.

In Schor, the Court described Art. III, Sec. 1, as serving a dual purpose: to protect the role of an independent judiciary and to safeguard the right of litigants to have claims decided by judges free from potential domination by the other branches of government. A litigant's Article III right is not absolute, the Court determined, but may be waived. This the litigant had done by submitting to the administrative law judge's jurisdiction rather than independently seeking relief as he was entitled to and then objecting only after adverse rulings on the merits. But the institutional integrity claim, not being personal, could not be waived and the Court reached the merits. The threat to institutional independence was ``weighed'' by reference to ``a number of factors.'' The conferral on the CFTC of pendent jurisdiction over common law counterclaims was seen as more narrowly confined than was the grant to bankruptcy courts at issue in Marathon, and as more closely resembling the ``model'' approved in Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy courts, was said to be confined to ``a particularized area of the law;'' the agency's orders were enforceable only by order of a district court,\118\ and reviewable under a less deferential standard, with legal rulings being subject to de novo review; and the agency was not empowered, as had been the bankruptcy courts, to exercise ``all ordinary powers of district courts.''

NOTE:

Granfinanciera followed analysis different from that in Schor, although it preserved Union Carbide through its concept of ``public rights.'' State law and other legal claims founded on private rights could not be remitted to non-Article III tribunals for adjudication unless Congress in creating an integrated public regulatory scheme has so taken up the right as to transform it. It may not simply relabel a private right and place it into the regulatory scheme. The Court is hazy with respect to whether the right must be itself a creature of federal statutory action. The general descriptive language suggests that, but in its determination whether the right at issue in the case, the recovery of preferential or fraudulent transfers in the context of a bankruptcy proceeding, the Court seemingly goes beyond this point. Though a statutory interest, the actions were identical to state-law contract claims brought by a bankrupt corporation to augment the estate.\119\ Schor was distinguished solely on the waiver part of the decision, relating to the individual interest, without considering the part of the opinion deciding the institutional interest on the merits and utilizing a balancing test.\120\

NOTES:

\120\Id., 59 n. 14.

Thus, while the Court has made some progress in reconciling its growing line of disparate cases, doctrinal harmony has not yet been achieved.

Passing on the constitutionality of the establishment of the Sentencing Commission as an ``independent'' body in the judicial branch, the Court acknowledged that the Commission is not a court and does not exercise judicial power. Rather, its function is to promulgate binding sentencing guidelines for federal courts. It acts, therefore, legislatively, and its membership of seven is composed of three judges and three nonjudges. But the standard of constitutionality, the Court held, is whether the entity exercises powers that are more appropriately performed by another branch or that undermine the integrity of the judiciary. Because the imposition of sentences is a function traditionally exercised within congressionally prescribed limits by federal judges, the Court found the functions of the Commission could be located in the judicial branch. Nor did performance of its functions contribute to a weakening of the judiciary, or an aggrandizement of power either, in any meaningful way, the Court observed.\121\

NOTE:

Judicial power is the power ``of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.''\122\ It is ``the right to determine actual controversies arising between diverse litigants, duly instituted in courts of proper jurisdiction.''\123\ Although the terms ``judicial power'' and ``jurisdiction'' are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit\124\ or as the ``power to entertain the suit, consider the merits and render a binding decision thereon,''\125\ the cases and commentary support, indeed require, a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.\126\ Included within the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,\127\ to issue writs in aid of jurisdiction when authorized by statute,\128\ to make rules governing their process in the absence of statutory authorizations or prohibitions,\129\ to order their own process so as to prevent abuse, oppression, and injustice and to protect their own jurisdiction and officers in the protection of property in custody of law,\130\ to appoint masters in chancery, referees, auditors, and other investigators,\131\ and to admit and disbar attorneys.\132\

NOTES:

\123\Muskrat v. United States, 219 U.S. 346, 361 (1911).

\124\United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832).

\125\General Investment Co. v. New York Central R. Co., 271 U.S. 228, 230 (1926).

\126\William v. United States, 289 U.S. 553, 566 (1933) ; Yakus v. United States, 321 U.S. 414, 467-468 (1944) (Justice Rutledge dissenting).

\127\Michaelson v. United States, 266 U.S. 42 (1924).

\128\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).

\129\Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825).

\130\Gumble v. Pitkin, 124 U.S. 131 (1888).

\131\Ex parte Peterson, 253 U.S. 300 (1920).

\132\Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867).

``Shall Be Vested.'' -- The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words ``shall be vested'' in Sec. 1. Whereas all the judicial power of the United States is vested in the Supreme Court and the inferior federal courts created by Congress, neither has ever been vested with all the jurisdiction which could be granted and, Justice Story to the contrary,\133\ the Constitution has not been read to mandate Congress to confer the entire jurisdiction it might.\134\ Thus, except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution, two prerequisites to jurisdiction must be present: first, the Constitution must have given the courts the capacity to receive it,\135\ and, second, an act of Congress must have conferred it.\136\ The fact that federal courts are of limited jurisdiction means that litigants in them must affirmatively establish that jurisdiction exists and may not confer nonexistent jurisdiction by consent or conduct.\137\

NOTES:

\134\See, e.g., Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to resurrect the core of Justice Story's argument is Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully infra, Professor Amar argues, in part, from the text of Article III, Sec. 2, cl. 1, that the use of the word ``all'' in each of federal question, admiralty, and public ambassador subclauses means that Congress must confer the entire judicial power to cases involving those issues, whereas it has more discretion in the other six categories.

\135\Which was, of course, the point of Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803), once the power of the Court to hold legislation unconstitutional was established.

\136\The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868); Cary v. Curtis, 3 How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49 U.S.) 441 (1850); United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It should be noted, however, that some judges have expressed the opinion that Congress' authority is limited to some degree by the Constitution, such as by the due process clause, so that a limitation on jurisdiction which denied a litigant access to any remedy might be unconstitutional. Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949), revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 (1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700. 703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688. 694- 695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the question.

\137\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799); Bingham v. Cabot, 3 Dall. (3 U.S.) 382 (1798); Jackson v. Ashton, 8 Pet. (33 U.S.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).

Since 1792, the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In that year, Congress authorized Revolutionary War veterans to file pension claims in circuit courts of the United States, directed the judges to certify to the Secretary of War the degree of a claimant's disability and their opinion with regard to the proper percentage of monthly pay to be awarded, and empowered the Secretary to withhold judicially certified claimants from the pension list if he suspected ``imposition or mistake.''\138\ The Justices then on circuit almost immediately forwarded objections to the President, contending that the statute was unconstitutional because the judicial power was constitutionally committed to a separate department and the duties imposed by the act were not judicial and because the subjection of a court's opinions to revision or control by an officer of the executive or the legislature was not authorized by the Constitution.\139\ Attorney General Randolph, upon the refusal of the circuit courts to act under the new statute, filed a motion for mandamus in the Supreme Court to direct the Circuit Court in Pennsylvania to proceed on a petition filed by one Hayburn seeking a pension. Although the Court heard argument, it put off decision until the next term, presumably because Congress was already acting to delete the objectionable features of the act, and upon enactment of a new law the Court dismissed the action.\140\

NOTES:

\139\1 American State Papers: Miscellaneous Documents, Legislative and Executive, of the Congress of the United States (Washington : 1832), 49, 51, 52. President Washington transmitted the remonstrances to Congress. 1 J. Richardson, (comp.), Messages and Papers of the Presidents (Washington : 1897), 123, 133. The objections are also appended to the order of the Court in Hayburn's Case, 2 Dall. (2 U.S.) 409, 410 (1792). Note that some of the Justices declared their willingness to perform under the act as commissioners rather than as judges. Cf. United States v. Ferreira, 13 How. (54 U.S.) 40, 52-53 (1852). The assumption by judges that they could act in some positions as individuals while remaining judges, an assumption many times acted upon, was approved in Mistretta v. United States, 488 U.S. 361, 397-408 (1989).

\140\Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792). The new pension law was the Act of February 28, 1793, 1 Stat. 324. The reason for the Court's inaction may, on the other hand, have been doubt about the proper role of the Attorney General in the matter, an issue raised in the opinion. See Marcus & Teir, Hayburn's Case: A Misinterpretation of Precedent, 1988 Wis. L. Rev. 4; Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism, 1989 Duke L. J. 561, 590-618.

Hayburn's Case has been since followed, so that the Court has rejected all efforts to give it and the lower federal courts jurisdiction over cases in which judgment would have been subject to executive or legislative revision.\141\ Thus, in a 1948 case, the Court held that an order of the Civil Aeronautics Board denying to one citizen air carrier and granting to another a certificate of convenience and necessity for an overseas and foreign air route was not reviewable. Such an order was subject to review and confirmance or revision by the President, and the Court decided it could not review the discretion exercised by him in that situation; the lower court had thought the matter could be handled by permitting presidential review of the order after judicial review, but this the Court rejected. ``[I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government,''\142\ More recently, the Court avoided a similar situation by a close construction of a statute.\143\

NOTES:

\142\Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).

\143\Connor v. Johnson, 402 U.S. 690 (1971). Under Sec. 5 of the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. Sec. 1973e, no State may ``enact or seek to administer'' any change in election law or practice different from that in effect on a particular date without obtaining the approval of the Attorney General or the district court in the District of Columbia, a requirement interpreted to reach reapportionment and redistricting. Allen v. State Board of Elections, 393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue in Connor was whether a districting plan drawn up and ordered into effect by a federal district court, after it had rejected a legislatively-drawn plan, must be submitted for approval. Unanimously, on the papers without oral argument, the Court ruled that, despite the statute's inclusive language, it did not apply to court-drawn plans.

Award of Execution. -- The adherence of the Court to this proposition, however, has not extended to a rigid rule formulated by Chief Justice Taney, given its fullest expression in a posthumously- published opinion.\144\ In Gordon v. United States,\145\ the Court refused to hear an appeal from a decision of the Court of Claims; the act establishing the Court of Claims provided for appeals to the Supreme Court, after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for payment of private claims. But the act also provided that no funds should be paid out of the Treasury for any claims ``till after an appropriation therefor shall be estimated by the Secretary of the Treasury.''\146\ The opinion of the Court merely stated that the implication of power in the executive officer and in Congress to revise all decisions of the Court of Claims requiring payment of money denied that court the judicial power from the exercise of which ``alone'' appeals could be taken to the Supreme Court.\147\

NOTES:

\145\2 Wall. (69 U.S.) 561 (1865).

\146\Act of February 24, 1855, 10 Stat. 612, as amended, Act of March 3, 1963, 12 Stat. 737.

\147\Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865). Following congressional repeal of the objectionable section, Act of March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States, 5 Wall. (72 U.S.) 419 (1867). But note that execution of the judgments was still dependent upon congressional appropriations. On the effect of the requirement for appropriations at a time when appropriations had to be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S. 530, 568-571 (1962). Cf. Regional Rail Reorganization Act Cases (Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102, 148-149 & n. 35 (1974).

In his posthumously-published opinion, Chief Justice Taney, because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary and of Congress, regarded any such judgment as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress could not therefore authorize appeals to the Supreme Court in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. Taney then proceeded to enunciate a rule which was rigorously applied until 1933: the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers and no decision was a legal judgment without an award of execution.\148\ The rule was most significant in barring the lower federal courts from hearing proceedings for declaratory judgments\149\ and in denying appellate jurisdiction in the Supreme Court from declaratory proceedings in state courts.\150\

NOTES:

\149\Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).

\150\Liberty Warehouse Co. v. Burley Tobacco Growers' Coop. Marketing Assn., 276 U.S. 71 (1928).

But, in 1927, the Court began backing away from its absolute insistence upon an award of execution. Unanimously holding that a declaratory judgment in a state court was res judicata in a subsequent proceeding in federal court, the Court admitted that ``[w]hile ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function.''\151\ Then, in 1933, the Court interred the award-of- execution rule in its rigid form and accepted an appeal from a state court in a declaratory proceeding.\152\ Finality of judgment, however, remains the rule in determination of what is judicial power without regard to the demise of Chief Justice Taney's formulation.

NOTES:

\152\Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). The decisions in Swope and Wallace removed all constitutional doubts previously shrouding a proposed federal declaratory judgment act, which was enacted in 1934, 48 Stat. 955, 28 U.S.C. Sec. Sec. 2201-2202, and unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

Categories of Contempt. -- Crucial to an understanding of the history of the law governing the courts' powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions,\153\ the Court has consistently distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt.\154\ In the case of Shillitani v. United States,\155\ the defendants were sentenced by their respective District Courts for two years imprisonment for contempt of court; the sentence contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury.

NOTES:

\154\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W. B. Conkey Co., 194 U.S. 324, 327-328 (1904).

\155\384 U.S. 364 (1966).

Upon appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court primarily seeks to accomplish by imposing sentence.\156\ Here, the purpose was to obtain answers to the questions for the grand jury and the court provided for the defendants' release upon compliance; whereas, ``a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterrence.''\157\ The issue of whether a certain contempt is either civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman,\158\ in which Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, noted that he may not pardon a civil contempt. Notwithstanding the importance of distinguishing between the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.\159\

NOTES:

\157\Id., n. 6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim).

\158\267 U.S. 87, 119-120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michalson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65-66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968).

\159\See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).

A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt--albeit civil or criminal in nature. Direct contempt results when the contumacious act is committed ``in the presence of the Court or so near thereto as to obstruct the administration of justice;''\160\ indirect contempt is behavior which the Court did not itself witness.\161\ The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor