PALMORE v. UNITED STATES

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Argument of Frank F. Flegal

Chief Justice Warren E. Burger: We will hear arguments next in 72-11 Palmore against the United States.

Mr. Flegal.

Mr. Frank F. Flegal: Mr. Chief Justice, may it please the court.

On February the 1st, 1971 the District of Columbia Court Reorganization Act became effective.

Among other things that act created the Superior Court of the District of Columbia, a court and its judges hold office for limited terms and vested jurisdiction in that court to hear and determine certain felony charges brought by the United States of America against persons accused violating acts of congress applicable exclusively to the District of Columbia.

The courts below and the parties have tended to call such acts, local statutes.

On February 23rd of 1971, appellant was indicted in the Superior Court for violation of such a statute.

The crime of carrying a dangerous weapon, in this case, a gun without a permit having been issued in accordance with law.

Since appellant had previously been convicted of another and an unrelated felony and that prior conviction is not an issue here.

The charge against him was a felony charge, if convicted he stood do face imprisonment for up to ten years.

Prior to trial appellant challenged the jurisdiction of the Superior Court.

He claimed that he was entitled to have his case heard and determined by a constitutional court that is of course, a court was then been established in accordance with Article III and presided over by a judge holding office during good behavior.

Justice William J. Brennan: And his claim was based upon the fact that this was a felony charge?

Mr. Frank F. Flegal: Yes sir it was.

Justice William J. Brennan: In other words, he at least implicitly conceded that he could have been charged honest to mere charge?

Mr. Frank F. Flegal: Yes, indeed so sir.

We make a distinction here and let me just briefly elude to it now and then when we get to the argument address it in full.

Historically, as this court is dealt with in the Article III jury trial cases.

There has been a distinction between minor or petty cases.

Historically, as this court pointed out in the Clawans case, 300 United States.

English judges prior to the adoption of the constitution, judges not of the general jurisdiction of England, held and heard and determine minor matters involving up to one year imprisonment.

Congress has always assumed that to be the case in the District of Columbia and indeed nor has magistrates in the several states, non Article III officers hearing such minor matters.

For purposes of our argument we assume that there is a class of matter and we assume although this court has never decided that a misdemeanor and one year is the appropriate constitutional judgement.

There is a historical basis for that.

Justice William J. Brennan: There maybe a difference between a “petty offense” and misdemeanor.

Mr. Frank F. Flegal: Indeed there maybe --

Justice William J. Brennan: Any event, you say that maybe that whatever the--

Mr. Frank F. Flegal: In any event whatever the law and event, a felony is our proposition in this case.

After that motion was overruled, the trial court proceeded to consider appellants motion to suppress evidence which was based upon appellants Fourth Amendment contention that the method by which police officers obtained the evidence in this case, the gun, was a result of an unreasonable seizure of appellants purse.

The court heard evidence and I put aside for the moment the details of that evidence so that it would be freshly at hand when returned to the Fourth Amendment argument, Fourth Amendment position later in the argument and having heard that evidence overruled appellant's objection.

Appellant elected to stand on the legal issue which had been raised and trial by jury having been waived, the trial court found appellant guilty of the charge against it.

He was subsequently sentenced to from 2-6 years in prison.

Execution of the sentence was suspended except for 180 days imprisonment on condition of six years probation.

An appeal was taken to the District of Columbia Court of Appeals and that court affirmed the judgement.

Thereafter appellant review was sought in this court.

We sought review by filing a notice of appeal in the District of Columbia Court of Appeals and docketing a jurisdictional statement in this court.

On October 10, 1972 this court entered an order placing this case on its hearing calendar but postponing the question of jurisdiction until the argument of the case on the merits.

Accordingly I return to that threshold question.

Strictly speaking of course, it is not a question of this courts appellate jurisdiction.

For all parties can see that this court has a jurisdiction to review the judgement of the District of Columbia Court of Appeals in this case.

The question is rather a statutory question.

The mode or the manner by which we should have invoked this court's appellate jurisdiction.

It is our contention that when congress as it has done in the District of Columbia Courts, creates a local court system and vest that local court system with jurisdiction to hear local matters and provides that appeals from the highest local court shall we taken to this court in accordance with the general provision of section 1257 of the Judicial Court.

Locally applicable laws constitute a law of a state within the meaning of 1257 subdivision 2.

For that proposition we place of course, principal reliance on the analogous case of Balzac against Porto Rico, decided 50 years ago where congress provided the judgments of the Supreme Court of Porto Rico would be reviewed in this court, in accordance with 1257 and the issue in Balzac was whether or not a statute applicable exclusively to Porto Rico was there by dimmed to be a statute of a state.

In a unanimous opinion written by Chief Justice Taft, this court held that it was.

Now it's quite as the government points out that the legislature that had enacted the statute in Balzac was a territorial legislature not the United States congress but that fact played no articulable part in this court's opinion.

Rather the Chief Justice focused on the manifesting intent of congress.

A point of course, which this court reiterated just last month in the Canter case, the intent of congress in enacting and providing for such a method of review.

For reason set forth in Balzac and articulated in our opinion, we think this case is properly heard on appeal.

At the outset of course, by the filing right jurisdiction papers and again in our brief we have invoked in the alternative, the certiorari jurisdiction of this court in the even that we are on.

But of course, having the case here whether by certiorari or appeal does not answer the question which was raised and overruled in the trial court.

Was appellant entitled to have his case heard and determined by a constitutional court?

Article III discussions tend frequently to become academic and there are several nuances in Article III issues and the parties have pursued those in their brief.

Justice William J. Brennan: You don't submit or do you that the answer to the first question necessarily controls the answer to the second?

Mr. Frank F. Flegal: Here is nothing to do with the answer of the second.

First question is purely a statutory construction.

Justice William J. Brennan: Whether it's an appeal or –

Mr. Frank F. Flegal: Certiorari –

Justice William J. Brennan: Certiorari here and that's basically a question unrelated to --

Mr. Frank F. Flegal: Completely unrelated, it's the mode of seeking review the statutory mode and it's purely a question of statutory interpretation.

On the merits however, it.

Justice Byron R. White: (Inaudible)

Mr. Frank F. Flegal: For purposes of a statute, Your Honor, not for purposes of Article III section one of the constitution.

Justice Byron R. White: I mean that’s the question.

Mr. Frank F. Flegal: That is the question.

Excuse me, of course, that is the question on the first proposition the appeal as opposed to certiorari.

Justice Byron R. White: (Inaudible) different answer?

Mr. Frank F. Flegal: Indeed I answer.

Indeed I am suggesting.

Justice Byron R. White: You do?

Mr. Frank F. Flegal: I do get different answers and I say that because under the statute the question of course is purely one of statutory construction what did congress intent under Article III of the constitution.

We have of course a constitutional issue what did the framers mean and it is not conceded.

The Government does not oppose the proposition, that went in the meaning of Article III of the constitution and act of congress that will be if one applicable only to the District of Columbia is of course, a law of the United States.

That's the only basis by which this court's appellate jurisdiction from the beginning of the republic with respect to local District of Columbia matters not otherwise involving a constitutional issue can be sustained.

Our preposition is that the article III protection for the independence of the Federal Judge that is the good behavior tenure and the associated constitutional restrictions control of course, important rights on the judge.

But principally an important claim for purposes of this case, they also confer rights and benefits and safeguard on the litigants.

Now that is a preposition which the government contested at the outset of this case.

At the threshold stage, the government suggested that we did not have standing to raise this issue.

They have abandoned that in their brief and I think properly so.

This court has addressed the meaning of the good behavior clause as it effects litigants.

Time and again, and what I don't want to deliver the point, I want to emphasize two cases on which we principally rely and that is of course, the O'Donoghue case where this court trace the meaning of Article III with respect to litigants.

In O'Donoghue this court referred for example, to one of the specific complaints which desires of the declaration had made.

The judges were being limited in their tenure and having their salaries reduced and in O'Donoghue and again in Lark and the court-martial cases.

Parker and O'Callahan.

Justice William H. Rehnquist: O'Donoghue, he is a judge, was he not?

Mr. Frank F. Flegal: O'Donoghue was a judge, Your Honor.

However Toth and O'Callahan were litigants as was Larkin the litigant in the companion case in Glidden v. Zdanok and in Lark, this Court referred to the protection designed in part for the protection of the litigant and that is the protection which we saught.

Justice William J. Brennan: That was Justice Harlan's opinion?

Mr. Frank F. Flegal: That was the plurality opinion, yes, Your Honor.

Justice William J. Brennan: Yes.

Mr. Frank F. Flegal: The plurality opinion by Mr. Justice Harlan.

Justice William J. Brennan: It was not a Court opinion.

Mr. Frank F. Flegal: Not a Court opinion in Lark.

Of course, it is Mr. Justice Black's plurality opinion in part, a Court opinion in O'Callahan, all dealing with litigants and all referring to the right by the contort on the litigant.

Now, of course, there can be no contention here as was the issue in Lark that appellant did receive an Article 3 Judge.

The judge that presided in our trial holds office for 15 years, not good behavior.

He is not subject to protection from diminishment of his salary and he is not answerable only to the other branches of Government through the impeachment process, he is answerable to a commission.

The Commission on Judicial disabilities and tenure which consists of five members, three of them are appointed by the President of the United States.

The fourth by the Mayor Commissioner of the District of Columbia who in turn, of course, is appointed by the President and the fifth, by the Chief Judge of the District Court.

Any four members of that Commission have power after holding appropriate proceedings to remove the judge and if he is removed, if a Commission Order is entered, his salary instantly stops, pending his resort to judicial review and his judicial--

Chief Justice Warren E. Burger: In general, is this statute to somewhat like that of California like in the other states?

Mr. Frank F. Flegal: Somewhat, yes, quite like a state, Your Honor but of course, totally foreign to Article 3.

The review is sought by firing and Notice of Appeal with Your Honor, who is there upon called to designate a special three-judge tribunal consisting on Circuit and/or district judges to finally hear and determine.

So, thanks to the right we claimed.

Justice William H. Rehnquist: Mr. Flegal, you say totally alien to Article 3.

Are you suggesting that the good behavior or language of Article 3 could be implemented only by the process of impeachment?

Mr. Frank F. Flegal: At least with respect to the other two branches of Government, Your Honor.

It is not add issue in this case as to whether within the judicial branch the chamber problems, whether there is within the judicial branch some power of superintendence of the performance of lower court or inferior judges.

Our proposition is that the impeachment clause is the only way the other branches of Government can oversee the performance of judges.

Justice Potter Stewart: That really is basically unanswered question, isn't it?

Mr. Frank F. Flegal: Oh, of course, of course and it is a question which is not raised in that case.

There is no question here that the judicial disabilities and tenure commission is a body of good behavior judges but our proposition turns on the other two branches of Government, not the judiciary, Your Honor.

Justice Potter Stewart: Well, even the first, even these are the ways the other two branches of Government, it is not a wholly established--

Mr. Frank F. Flegal: It is not a wholly established principle, that's right and so--

Justice Potter Stewart: And further, it is conceded that these are not articles three judge --

Mr. Frank F. Flegal: Precisely, Your Honor, precisely and of course, there is no holding --

Justice Potter Stewart: Consensus conceded, there is no need for you to so many time proving that part.

Mr. Frank F. Flegal: Yes, the question then arises, are we entitled to this right?

If Article 3 safeguards and benefits mean anything, if the founders did not accomplish a fruitless act in so far as litigants are concerned, then of course, we contend that the felony class of case has to be included within these protections.

In other words, if anyone is to get these benefits other than perhaps judges, if any litigant is a felony litigant must have them because no other place that we can conceive would rise to greater constitutional dignity.

Perhaps others, perhaps constitutional questions would be similar but nothing would be higher.

Then why, according to the courts below and the Government are we not entitled to this constitutional protection.

The Government suggests that there is no requirement in Article 3 that Congress afford this constitutional right to any litigant and the government supports this proposition by suggesting that with respect to at least any one of the enumerated legislative powers of Congress and this is an argument which is not limited to the District of Columbia, either in the district or in the several states, Congress may create a so-called legislative court, a non-constitutional court and thereby deprive us of the benefits and safeguards to which this Court has repeatedly referred.

Chief Justice Warren E. Burger: Now you emphasize these benefits and safeguards but those are benefits and safeguards that most of the citizens and most of the states do not have.

Mr. Frank F. Flegal: Oh precisely, it is not a Fourteenth Amendment benefit and safeguard at all, Your Honor and we don't contend that it is.

Chief Justice Warren E. Burger: Yeah, that is what made me wonder about your great emphasis on it since most of the 200 million people in the country are subject to it.

Mr. Frank F. Flegal: Right, our contention, of course, is that the original constitution and certain protections in the first Ten Amendments, for example, grand jury indictment Article 3 in Sixth Amendment trial by jury are of course rights which are afforded litigants when the Federal Judicial powers brought to bed, not necessarily required under the Fourteenth Amendment in the States.

We make no contention that there is anything fundamentally unfair in the Fourteenth Amendment sense about having judges with limited tenure.

Our proposition is the framers gave a right in Article 3 beyond that, which Fourteenth Amendment due process would require to be afforded.

Government says that because under the supremacy clause, Congress could argue and though require State courts to hear and determine federal felonies that’s the end of the inquiry.

If they can require this case to be heard in a State court, the Government argues.

Then of course, a State court judge following up on Your Honor's proposition would not hold life tenure and why are we entitled to it?

I suggest the distinction which Your Honor's question focuses is precisely the fallacy of the Government's argument.

In the first place, when a State court hears a case, whether or not that case arises under State law or arises out of an active Congress which the State is enforcing under the supremacy clause, the State is exercising the State's judicial power, not the judicial power of the United States and Article 3 by its terms is a limitation on Federal not State judicial power and taken one step further, the proposition that was addressed by the Chief Justice's question, the Government's position puts Federal Courts on the plain of the Fourteenth Amendment.

The Government's argument carried to its logical extension, create a non-article 3 court because you could create a state, you could require a State court to do it, means that any right that a federal defendant has that a Fourteenth Amendment defendant in the State court does not have could be deprived and I don't think that is the law, I don't think the Congress can deprive a federal litigant of a grand jury enticement, even though a state may not have to provide it or of an Article 3 jury or of an Article 3 judge.

What then does the Government argue beyond that?

The Government relies, of course, on the legislative court cases.

The Government says that there is a judicial power outside of Article 3 which is co-extensive with that conferred in Article 3.

This Court has never so held, this Court has never so held.

In the permanent part of the United States, this Court has always carefully looked at the nature of the matter being adjudicated by the so-called Legislative Court and if that matter was a subject for which the litigant had to right to claim judicial determination, if it was subject to being disposed off by exercise of another power, legislative or executive, then the Court has said, it is permissible to have the matter adjudicated in a Legislative Court.

There has never been even a piece of dicta in one of this Court's legislative court cases which would suggest that a non-article 3 court could hear and determine a felony and impose a felony punishment.

Justice Potter Stewart: Back in the days when-- whether now the interior states of the United States with territories, Utah and so on, the territorial courts out there, of course, trial felonies including capital offenses, were those are Article Three Judges?

Mr. Frank F. Flegal: It is an interesting question on theory, Your Honor.

Justice Harlan and his plurality opinion in Glidden against Zdanok said yes, they were, that they were Article 3 judges exercising Article 3 judicial power but exempt because of the peculiar temporary status of the territories from Article 3 tenure requirement.

Justice Potter Stewart: What’s exactly? [Voice Overlap]

Mr. Frank F. Flegal: I think what it means –

Justice Potter Stewart: I joined that opinion, but what, maybe I knew what it meant when I joined that.

Mr. Frank F. Flegal: I think what it means Your Honor.

I think what Justice Harlan had in mind was the nature of the matters they were determining, where the kind of matters including felonies which could only be adjudicated by an Article 3 court.

Therefore, they had to be exercising the judicial power of Article 3.

Justice Potter Stewart: Is that a circular argument?

Mr. Frank F. Flegal: That is right.

He then said, however, because of the temporary status of the territories, they were exempt from the good behavior clause.

That more recently, this Court in the Carter case and back in O' Donoghue said, they weren’t Article 3 Judges at all.

They were always Article 4 judges exercising the power conferred upon Congress under the territories clause, the acquisition clause outside of and this we think is the important point in this case.

Justice Potter Stewart: How, in fact, were those judges nominated and appointed and what tenure did they have?

Did they not guarantee--?

Mr. Frank F. Flegal: Various proposals had been used in the different territories, Your Honor.

Sometimes, the President appointed and Congress confirmed and other times, local legislatures or the territorial Governor confirmed the territorial judges but they all said, for limited terms of office.

At the present time, we have several kinds of territorial judges.

Those of Puerto Rico are appointed by the President with the advice and consent of the Senate and hold their office during at least statutory good behavior and yet as the government has pointed out in its brief out in Samoa, for example, the President of the United States appoints the officer or official to exercise the judicial power.

But the critical point and why we distinguish the territorial court cases is all of those have dealt with temporary necessity out in non permanent parts of the Federal union.

Argument of Unk

Unk: And like subpoena?

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: I beg your pardon.

Rebuttal of Unk

Unk: Like subpoena?

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: Yes, Your Honor.

Chief Justice Warren E. Burger: From Alaska, when did we buy Alaska from Russia?

Mr. Frank F. Flegal: A way back Your Honor.

Chief Justice Warren E. Burger: And they continued to the temporary status for about a hundred and some years.

Mr. Frank F. Flegal: Right, perhaps I should have prefaced my statement as constitutional temporary status.

In other words, the first three articles of the constitution which include the states and the District of Columbia, that's the permanent union.

Then the territories may or may not join that union either as states or perhaps under some other arrangement.

But until they do, they are not constitutionally permanent.

We can sale the territory, relinquish it, return it to another sovereign and so forth.

Justice William H. Rehnquist: Well, Mr. Flegal if you follow Justice Harlan’s analysis in the Glidden v. Zdanok, the litigants in these territorial courts I mean presumably the sentence is imposed on them are rather permanent, rather than temporary.

Mr. Frank F. Flegal: Indeed so, Your Honor including Capital Punishment, indeed so.

Justice William H. Rehnquist: They were exempt from having no rights enforced in those cases?

Mr. Frank F. Flegal: They indeed were Your Honor.

The litigants in the territorial court cases did not get the constitutional benefit that we seek here.

Now this court has rejected however the territorial court argument whenever it has been made to deprive a District of Columbia litigant of a constitutional right.

I go back for example to Callan v. Wilson.

The first case in this court dealing with the constitutional rights of the citizens of the District of Columbia, that case involved Article III, Section 2 trial by jury and the Sixth Amendment trial by jury and the argument was made.

The District of Columbia is like a territory there is plenary legislative power, you don't get the constitutional right and this court rejected that argument.

It rejected the territorial analogy in holding that Judge O'Donoghue's salary could not be reduced during his tenure in his office and as recently as last month this court distinguished the territorial courts created under Article IV from the District of Columbia courts created under Article 3.

Justice William H. Rehnquist: And was it for purposes of the Civil Rights Act?

Mr. Frank F. Flegal: Yes.

So that the point I am making is whether they were Article 4 courts exercising Article 4 powers and thereby the litigants were not entitled to claim an Article 3 right.

Or whether as Justice Harlan suggested in his plurality opinion in Glidden they were exercising Article III power but exempt from the good behavior tenure.

It does not have controlling bearing on this case.

Now what then is left?

What is left of course, is the plenary legislative power of Congress over the District of Columbia and in the course of discussing the territorial court cases, I have already outlined of course our position on that.

The District of Columbia is permanent, this court has already held that each time a constitutional right was claimed to be denied because to a litigant because the District of Columbia was somehow unique.

This court has rejected that argument.

Justice Byron R. White: Is that with the territory other than the District court of Columbia?

Mr. Frank F. Flegal: No, not that I know off Your Honor.

My point is that the citizens of the District of Columbia before the Federal Courts have all of the rights of the original constitution and the amendments, whether or not the territorial litigants were deprived of the right we seek here by virtue of a Fourth Amendment theory or an article III temporary status theory.

But we don't think its determinative.

Justice Byron R. White: You still have the, I suppose you will demonstrates that the law that you have issued here before the statute is being forced as law in the United States?

Mr. Frank F. Flegal: Yes sir, indeed so because of course that is essential to our proposition.

The government has not argued otherwise but let me just briefly address that right now Your Honor.

The earliest case --

Justice Byron R. White: This shows that you are talking about Article III power.

Mr. Frank F. Flegal: Article III power, of course, because if our case did not arise under Article III we haven't got any way to bring direct --

Justice Byron R. White: So, your case has arisen under law of the United States.

Mr. Frank F. Flegal: That's correct the only power that we seek to invoke here is the law of the United States.

So there was nothing to do with any other of the matters to which the judicial power extends.

It has been repeatedly held, both in the decisions of this court and in decisions of the early District of Columbia courts, going back as early as 1805 an opinion which Chief Justice Marshall participated while sitting on circuit that laws applicable exclusively to the District of Columbia are laws of the United States.

Indeed they must be so or this court could not review a local matter as it has historically done that was not otherwise presented with a constitutional issue.

As recently for example, as 1965 I believe it was this court decided purely on a basis of statutory construction a tax matter arising out of the District of Columbia taxing statutes.

Of course the only power this court would have to construe that statute and it was not a constitutional claim, it was a statutory claim would be if that' statute was a law of the United States.

The first chief Judge of the local courts in the District of Columbia, Chief Judge Crench (ph) who also --

Justice Byron R. White: Why do you say that?

Mr. Frank F. Flegal: Why do I say that this court could not because no other power in Article III would purport to give this court the power to construe a statute that was not a statute of the United States, a law of the United States or --

Justice Byron R. White: What about in diversity cases?

Mr. Frank F. Flegal: Well in Diversity cases of course, then you have a power, if the case arises that diversity of citizenship, the status of the parties confers jurisdiction to deal with the case in controversy and issue between them regardless of the nature of the suit but the District of Columbia against General Motors which is the case I referred to was not a diversity suit.

It came to this court with no other basis for Article III jurisdiction except the construction of the statute.

We have collected in our brief, similar cases which go back through the 19th century and we have cited in our brief from the very first territorial court case incidentally.

American Insurance Company v. Canter the statement of Mr. Justice Johnson who sat on circuit on that case that if law is applicable to exclusively to the District of Columbia are not laws of the United States, this court, the Supreme Court has no power to review them.

And in the course of that argument he rejected that proposition and said, laws applicable exclusively to the District of Columbia are laws of the United States.

The question then finally arises is there something in the plenary legislative power given Congress under Section 17 rather clause 17 of the Article I, Section 8, the so called plenary power over the District of Columbia that somehow relates to the constitutional right at stake here.

We say not, we say not for two reasons.

First, that plenary power is not limited to the District of Columbia.

That's the power that provides not only for exclusive legislation over the seat of government but also of course Federal Enclaves and forts out in several states so that this argument is not strictly limited to the District of Columbia.

Beyond that this court has always held and I think correctly that when you are dealing with the exclusive and the plenary legislative power of congress that may mean congress is free of any other restriction in Article I but it does not exempts Congress from other provision in the body or the bill of rights of the constitution.

Chief Justice Warren E. Burger: But doesn't the constitution, the framers go to some pains to single out the District of Columbia procedure of government in defining the plenary powers that you are talking about?

Mr. Frank F. Flegal: Indeed they do sir.

And the pains that they went through is embodied in of course Clause 17 of Section 8 of Article I and that is the plenary legislative and I underlined that word legislative power given Congress that means --

Chief Justice Warren E. Burger: Well the state has, when we think of a state having legislative power does that not include the power to create courts?

Mr. Frank F. Flegal: Oh!

Clearly, if a state --

Chief Justice Warren E. Burger: The legislative powers if the Congress include the power to create courts and define jurisdictions courts and the tenure of the judges.

Mr. Frank F. Flegal: Now that's where we disagree.

Our proposition is the District of Columbia of course is not a state.

The seat of government was a state at one time and it was Maryland in Virginia.

It was seated to an exclusive federal jurisdiction attached in 1801 under the Session Act.

At that point, Congress is not strictly speaking a state legislature.

This court has already held that Congress is barren by provisions which don't bind a state legislature when dealing with local matters.

I refer again to the Fifth Amendment Grand Jury indictment and the Article III and the Sixth Amendment right to a jury trial.

A state legislature is not bound by those provisions.

Congress when acting and legislating locally for the District of Columbia is --

Chief Justice Warren E. Burger: But what you are arguing now is that the defendant has the same right to an Article III judge on the same constitutional level is the right to be indicted by a grand Jury and then all the others?

Mr. Frank F. Flegal: Indeed sir.

We are claiming the same safeguard that this court referred to in the Court Martial case is starting with Toth, O'Callahan, Lark, O'Donoghue, this is the right of the federal litigant, this is the right we claim.

Indeed we think the Colts case which is 282 United States cited in our brief is directly on point.

In that case, in our local case arising out of the District of Columbia, this Courts squarely held that a local litigant was entitled to the safeguards of Section 2 of Article 3, the jury trial.

There is no reference in the Colts case to the Sixth Amendment, purely Section 2 Article 3.

Justice William H. Rehnquist: Mr. Flegal, under your theory, could Congress vest the appointment of judges in the District of Columbia and other one, anyone other than the President of the United States?

Mr. Frank F. Flegal: Yes, under the constitution, Your Honor, the appointment of officers of the judges can also be vested in the President alone, without conformation or in the head of the department.

Justice William H. Rehnquist: That is if there are inferior officers under that section of the constitution.

Mr. Frank F. Flegal: Yes.

Justice William H. Rehnquist: But what leads you to say that such judges could be treated as inferior officers?

Is that term is used in the brief too?

Mr. Frank F. Flegal: The reason that bids me to say that Your Honor is there is nothing else in the appointing part of Article 2 that distinguishes judges from those inferior officers.

In other words, Article 2 reads that unless Congress shall by law otherwise provide the presidential appoint and the congress shall give their advice in consent but by law congress may vest the appointment of the inferior officers in the present law and order in ahead of a department.

Now the final, of course, question raised by this case is whether or not, we were entitled to have our notion to suppress granted by a constitutional judge or by a non-constitutional judge, that is a separate issue and it's an issue equally dis-positive of this case; for on this record without the evidence we sought to have suppress, there is no evidence to support appellant's conviction.

That requires, of course, written briefly in the facts.

They are not in dispute.

At the trial court, appellant and his witness gave a different version of this encounter than did the police officers.

We have not contained it on appeal and we do not contained here that the trial judge was bound to believe our witness rather our position is on the police officers version of the events.

Appellants right to be free from unreasonable seizures was violated.

What were the facts?

Appellant was driving a car by 8'0 clock in the evening on the 600 Block of T-Street in Downtown Washington.

At that point in time, he had violated no law, no traffic ordinance, he had no apparent equipment defect and there is no contention, there has been no contention in any court below and there is no contention here, that the officers were possessed of any articulable facts to show that he had been, was or was about to be engaged in any criminal conduct.

This was a matter of a specific finding by the Court of Appeals.

Two plain clothes officers assign to the special operations division of the District of Columbia Police Department decided that they would stop appellant for what has been described in this record as a spot-check or a traffic-check or in one place, a rental agreement check.

They turned on their red lights and their siren and they force the appellant to the side of the road.

Appellant produce the driver's license and was asked to return to the car and obtain a copy of his rental agreement form and I interject the officers of plain, that they knew this was a rental agreement car rather a rental car because of the special serial numbers on the license plate.

An officer was thereupon engaged in discussing with appellant, an appellant discrepancy in the exploration date of his rental agreement.

When a fellow officer who had been on the passenger side of the car shining a flashlight into the interior discovered the gun, sees the gun and arrested appellant.

Our contention is at the moment appellant was stopped, at the moment he was stopped for this license at spot-check, his Fourth Amendment rights against unreasonable seizures had been infringed.

It is important to point out that in this case there is no congressional statute which on its face, purports to authorize police officers to stop citizens for purpose of inspecting either driver's licenses or motor vehicle registrations.

The statutes do require that citizens carry both of those documents while they operate a car.

And the driver's license statute does require that a citizen display that license to a police officer but it does not specifically provide that the officer is entitle to stop in order to ask for the display.

Justice William H. Rehnquist: Do you say that a police officer could not spot-check for driver's licenses in the districts?

Mr. Frank F. Flegal: Our position is that a police officer acting without standards set out by somebody either the legislature perhaps the commissioners or the District of Columbia or at least the higher officials in the police department.

He cannot be left to his own discretion to pick anybody else that he wants out for a spot-check and I say that for this reason.

On this record, the officer who made this spot-check said that I have no basis, I have been given no instructions as to how or whom I should stop.

I think it's up to me to pick people out and I pick rental cars because I think a lot of them are overdue.

I want to see if the man can prove that it's not overdue because it's a crime if it is overdue.

He also referred to the fact that on another occasion a fellow officer had found $6,000 with of narcotics in a rental car.

Leaving it to the unfettered and unarticulated standards of the police officer on the corner, simply poses too great and too unreasonable, a restriction with a right of free movement.

We don't see in contemporary urban society any great difference between walking down the street and driving.

Justice William H. Rehnquist: Oh, it's that that you've to be license to drive down the street, you don't have to be licensed to walk down?

Mr. Frank F. Flegal: Oh, clearly, clearly, but I am talking in terms of justifiable expectation of privacy.

You may will have to submit to reasonable and perhaps spot-checks but the question is not is at spot-check, that's what we think the court below made the mistake.

The question is, is this a reasonable spot-check and we say when it is done on an individual basis by a police officer given no standards by anybody, stopping them for his own reasons, that's what makes it unreasonable.

I think I should call to the courts attention, the case which was decided in the Supreme Court of Pennsylvania and we were unable to include it in our brief so that we will shortly do so in a formal amendment.

You know we only get the opinion yesterday, the Supreme Court of Pennsylvania, the case is Commonwealth against Swanger has since squarely so held.

It is simply unreasonable for police officers acting on their own to stop for spot-checks and the Pennsylvania case, if anything there was a much more compelling state requirement because Pennsylvania had a statute, the case is based squarely on the Fourth Amendment, squarely on the principles in (Inaudible).

Justice Potter Stewart: Presumably, excuse me.

Chief Justice Warren E. Burger: Suppose the police department came to the conclusion that there were great many unlicensed drivers, driving unsafe cars and so they have decided to check every 50th car that a policeman could see during his hours when he wasn't otherwise engaged.

Would you think that would be alright?

Mr. Frank F. Flegal: I think that gets to be a closer case to reasonable, Your honor, because now you have had a responsible determination by the police chief or the traffic chief whoever he is, you have given a police officer on the corner a basis to do it.

So he is not doing it because he thinks rental cars are overdue, because there might be narcotics and you have told them how to do it.

Chief Justice Warren E. Burger: But you think a random check is not permitted?

Mr. Frank F. Flegal: Not random -- where the basis for the random selection is left to the individual judgment of the officer that's the narrow point we make on this case.

We have nothing to argue here about what would happen if the police chief said every 50th car or today is yellow cars, or something of that nature, that's the next case but our case is leaving it to the unfettered judgment of the officer on the corner and we think and we think this record shows, that is simply runs too high of a risk.

Chief Justice Warren E. Burger: What if these – what if the department said that check all rental cars because we -- let us assume they had concluded that rental agencies were being very relax about requiring people to produce a drivers license and so they order is to check all rental cars.

Mr. Frank F. Flegal: for driver’s licenses or somewhat?

Chief Justice Warren E. Burger: For everything.

Mr. Frank F. Flegal: Yes, alright that becomes a different case, again, they have got a basis, they have given the officer some standards and perhaps you'd have a different case, I think it's important here to have one other factor and that is that in this case, the only safety matter really is the driver's license.

It was not even set forth as the officer is a basis for the stop, that document was produced at the outset of the stop, returned and appellant was not free to go at that point in time.

In other words, this officer on this record is using his power to make traffic checks to see whether or not you can prove a rental car is overdue and of course, it's the officers also conceded they have a list of overdue in stolen cars and this car was not on that list.

Chief Justice Warren E. Burger: I suppose your position would have to be the same on the search and seizure, if upon stopping the car and trying -- coming closed to it.

They saw a small child bound in gag in the back of the car, they couldn't see is the child and release it, could they?

Mr. Frank F. Flegal: Of course, our proposition in this case, Your Honor, is what they initially did.

We make no contention that if they had a right to stop appellant under the circumstances shown on this record that what they did thereafter made it unreasonable, our contention is they could not under the circumstances of this case stop him at the outset.

Chief Justice Warren E. Burger: Well, how is the gun that they found in the car any different from anything else that might kind of find in the car?

Mr. Frank F. Flegal: I am sorry, perhaps I didn't understand Your Honor's question.

Chief Justice Warren E. Burger: I said that will --

Mr. Frank F. Flegal: Abounding a traffic.

Chief Justice Warren E. Burger: He ran his flashlight, if that's what it was in the backseat, he found that there was a person, a body, and let's say, a body of a dead person all tied up?

Mr. Frank F. Flegal: Right.

Chief Justice Warren E. Burger: On the way to just Big Bear so such thing now.

Do anything about that?

Mr. Frank F. Flegal: Not doing something about, Your Honor, the Fourth Amendment doesn't say they can't do anything about it.

It says that if you infringe the defendant's Fourth Amendment right in getting to the position and stopping the car, then you can introduce that piece of evidence.

It doesn’t mean of course you can release the child.

Chief Justice Warren E. Burger: If they introduce that body to charge this man with --

Mr. Frank F. Flegal: My position would be the same.

My position would be the same.

The admission of the gun or the admission of the body does not make a distinction.

For this reason it is our position that the judgment below should be reversed and with the court belief I will save my remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Flegal.

Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: May it pleases the court.

As Mr. Flegal has indicated, there are three separate questions in this case and I shall discuss them in the same order in which he did.

The first is the question of this court's jurisdiction of the appeal which was taken here.

That I think divides into two parts and I would make it somewhat different answer to Mr. Stewart's question about this than Mr. Flegal did, because I think one of those parts is identical with the constitutional question presented with respect to the District of Columbia court system.

For if it should be concluded as I hope it will not, that criminal cases in the District of Columbia can be heard only by Article 3 Courts, then these tribunals are not courts for they do not meet their requirement of Article 3 particularly as the tenure.

The judges of these courts are appointed for 15 year term; they don't serve during a period of good behavior.

This court has only appellate jurisdiction in cases such as these and if the tribunal below is not validly established.

It's not a court, and this court has no jurisdiction to review its decision.

The remedy in such a case would appear to be by writ of habeas corpus in the District Court of United States for the District of Columbia.

But if the tribunal below is a court then we have left the question which is discussed in the briefs.

Congress has power to regulate the appellate jurisdiction of this court and has done so in Section 1257 of Title 28 of the United States Code.

It is paragraph 2 which provides for appeal to this court to review a decision “rendered by the highest court of the state”.

Where there is “drawn in question the validity of a statute of any state on the ground of it's being repugnant to the Constitution's treaties or laws of the United States and the decision is in favor of its validity”.

Now these words alone would of course not be sufficient to support jurisdiction here for we have neither a decision of the highest court of the state, nor do we have involved the validity of a statute of any state.

Since the court below is one established for the District of Columbia by Congress, and the statute whose validity is question was not enacted by a state, but by Congress.

The first of these matters is taken care of in the statute itself by amendment which was enacted as a part of the District of Columbia court Reorganization Act of 1970 and it is printed on page 4 of our brief at the end of our printing of Section 1257.

It added a paragraph there which provides that for the purposes of this section the term highest court of the state includes the District of Columbia Court of Appeals, so that half of the problem is resolved.

But there still remains the question whether the decision below involves a validity of a statute of any state.

Can those words be construed to apply to a statute which was passed by both houses of Congress, signed by the President and was never considered by the legislature of any state or indeed of any territory.

If Congress meant that, it could have said so.

It knew how to do that in this very act.

For it did provide in Section 172-C1 of the act adding Section 1363 to title 28 of the United States Code that laws applicable exclusively to the District of Columbia should not be considered “laws of the United States” or “Acts of Congress”.

For the purposes of that provision, Congress made no similar provision for a special modification of the plain words, plain meaning of the words statute of any state in Section 1257-2.

Reliance is placed on this court's decision in Balzac against Puerto Rico decided in 1922 in an opinion by Chief Justice Taft, but that decision is clearly distinguishable.

In the first place there was a considerable history to the statutory provision involved there.

It is too complicated to give in detail here, but it is readily apparent from reading the opinion, the interrelation of then Sections 237 and 246 of the judicial code.

The statute with respect to Puerto Rico was linked to the provision with respect to Hawaii and Congress has said that it wanted review here which was comparable to that in cases coming from the states.

On that basis a statute passed by the Legislature of Puerto Rico was held to be a statute of a state for the purpose of what is now Section 1257, taken in the light of other statutory provisions than enforce.

But here we do not have a statute passed by a territorial legislature or any other outside body.

The statute here was passed by Congress itself after extensive consideration there.

Congress has never provided for an appeal from decisions sustaining the validity of its own statutes, and there is no reason for forcing a construction on the statute here to reach that result.

If that were done, defendants in the DC courts could question the validity of every provision in the DC Criminal Code.

And the validity of statutory provision against murder or burglary for example and then when their contentions were denied by the court below, they would have a right of appeal to this court if the validity of the statute was sustained.

The position for which we contend seems to be sustain likewise by this court's recent decision in Fornaris against Ridge Tool Company in 400 US at -- it begins on page 41 and the jurisdictional question is decided in a long footnote on page 42.

There are something’s about that footnote which are not crystal clear to me, but among other things the court did not cite the Balzac case which would seem to had some relevance, but record does make it perfectly plain that for purposes of appeal from the United States Court of Appeals a statute of Puerto Rico is not an act -- is not a statute of the United States.

I should think therefore that the Fornaris case together with the language of the statute itself should lead to the conclusion that this court has no jurisdiction of the appeal.

If there is a court below which can be reviewed here, and I think there is, then the papers should be considered by the court as a petition for certiorari.

And I will turn next to the second and in some way the major question involves here, although all are important.

The question is the constitutional validity of the District of Columbia and Court Reorganization Act.

In approaching this question as other questions, the Constitution should, of course, not be thought of as a mathematical equation or as some kind of computer program.

As it has been said in largest part, the constitution is not a charter liberties but a blueprint for a federal system of government.

And the District of Colombia is in someway is the keystone of the federal system.

Marvelous says it was the work of the founding fathers in Philadelphia in 1787.

There were something that they did not fully foresee or spell out in detail.

And it has been this court's task to work these problems out.

This particular area of the interplay of Article III and Article-I has a sort of academic flavor to it.

And it may be an understatement to say that it has not always received wholly consistent treatment from this court.

Decisions have been made by divided courts.

Sometimes without a majority and statements can be found in the opinions to support almost any position.

I have myself been burned once in this area.

In 1929, this court decide Ex Parte Bakelite Corporation in 279U.S., a unanimous decision with the opinion written by Mr. Justice VAN DEVANTER who was in acknowledge authority on constitutional procedure.

And I would have to differ with Mr. Flegal when he said that there wasn’t even dictum which said there could be article-I courts in the District of Colombia because that opinion discuss the question in extend so and concluded that the courts of the district Colombia where article-I courts.

Now it’s true that the issue in the case was the status of the then court of costumes appeals but and so therefore there is a dictum not a decision but it was clear sort of considered dictum.

These court where there known as the Supreme Court of the District of Colombia and the United States Court of Appeals for the District of Colombia.

The case also considered the court of claims and for clear and cogent regions based long outstanding president the court found all of these tribunals where validly established under article-I of the constitution.

It was only 4 years later that the case of O'Donoghue and of Williams came before this court.

I was then a junior in the department of justice and was one of those who wrote the brief for the United States in these cases.

The question was whether the judges of these courts were protected by the provision in article III which says that the salaries of the judges can not be reduced during their terminals.

Under the circumstances we did not brief the question extensively but relied on the comprehensive treatment in the Bakelite case.

As things worked out, this court's Bakelite decision proved to be a slander read as far is the District of Colombia was concerned.

For Judge O'Donoghue who was held to be entitled to his salary.

Judge Williams was not so fortunate but he was indicated more than 30 years later with the aid of an intervening act of Congress and establishing both the court of claims and the court of-- appeals as article III courts.

The Sams have been shifting in this area but I do no think that they have shifted enough or that they should be shifted enough to invalidate the District of Colombia court reorganization Act.

The approach in this field it seems to me it should be that suggested by Mr. Justice Harlan, in an opinion he wrote, in an analogous case.

The case was read in Culver involving the validity of a trial by court martial of a woman who had murdered her air force husband at an air base in England.

His words which I do not cite as authority but only for their indication of an approach to this case we are directly applicable to trials overseas as applied to this case they would read.

In other words what Ross and the Insular case is hold is that the particular local setting.

The practical necessities and the possible alternatives are relevant to a question of judgment on question such as these.

And he continued.

I think we have above thought is crucial in approaching the case is before us.

Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not apply.

But for me the question is which guarantees of the constitution should apply in view of the particular circumstances, the practical necessities and the possible alternatives which Congress had before it.

The question is one of judgment not of compulsion.

In considering this question of judgment, we note that there is surely no constitutional requirement.

They are all federal cases; all federal criminal prosecutions must be heard by article III courts.

The constitution establishes no inferior federal courts at all but leaves that entirely to Congress.

In Australia, for example there are no federal courts.

All commonwealth criminal prosecutions are conducted in the State Courts.

We might well have had such a system here.

Expect for a period of one year, Congress provided no Federal Courts with federal question jurisdiction until 1875.

Even, today many federal question cases can not be heard in article III courts if they do not meet the jurisdictional amount established by Congress.

That means that these cases must be heard by State Courts almost none of which meet the article III test as to tenure and non-reduction of salary.

From the very earliest days of the republic, Congress provided for the trial of many criminal cases in state courts.

These are listed and cited in the two articles by trials-I which appear on page 29 of our brief and I would like to make a correction here near the bottom of page 29 as cited the Article of Charles Warren in 37 Harvard Law Review, it says page 49 and then on the next line 54, 55.

When I came to look at page 54 and 55, I couldn’t find anything about this and the correct reference should be 70-71.

As recently as Testa against Katt decided shortly after world war II, the court held the states must entertain suites are rising under a federal statue of the Price Control Act.

As long ago as 1828, Chief Justice Marshall recognized the necessity of legislative courts in American Insurance Company against Canter.

That case involves the validity of a judgment rendered by a territorial court in Florida.

The judges of which they are referred to in the opinion as a notary in five jurors but apparently the notary was appointed for 4 years.

The great Chief Justice held that the judgment was valid, saying that the Florida court could not receive article III judicial power.

But that it was legislative court validly established by Congress under its power in Article-I and then Article IV Section III to make laws for the property and territory of the United States.

It was a necessary basis for this decision that the requirements of the article III are not applicable to such courts.

And the intervening years there have been many examples of such courts.

When the territory of Orleans was established in 1804, its judges were given 4 years terms.

And this was generally the case during the whole process of developing the western territories of the United States.

This it true today of the common wealth courts in Porto Rico and of the local courts in Guam and the Virgin Islands.

In American Samoa and trust territory of the Pacific there are today judges for whom the statue simply says that they are designated by the president and he can and he recently has simply changed the designation and put in an another person as the judge in American Samoa.

This Court has many times entertained appeals from these outlined courts without any question as to their valid establishment.

Reynolds against the United States in 98 U.S. was on error to the Supreme Court of the territory of Utah, and the cruel and unusual punishment case, Weems against the United States in 217 U.S., was on a writ of error to the Supreme Court of the Philippine Islands not an Article 3 court.

Justice William J. Brennan: The case in last five or six years ago from the Canal Zone involving destruction of property down there?

Mr. Griswold: Yes, Mr. Justice but the case was here on review of a judgment of the Court of Claims.

Justice William J. Brennan: Now what?

Mr. Griswold: The question arose in the Canal Zone but it was a -- if we were thinking the same case --

Justice William J. Brennan: I think we are.

Mr. Griswold: It was a suit in the Court of Claims to recover from the United States on the ground that the United States had seized the building as part of the defensive zone.

Justice William J. Brennan: And he was doing this sorting down there.

Mr. Griswold: I have looked for cases from the Canal Zone that got to this Court, there are many which have come to the Fifth Circuit Court of Appeals, and there are a good many where petition for certiorari have been filed and denied without not on jurisdictional ground, but I couldn't find one which had been entertained on the merits from the Canal Zone.

Justice William J. Brennan: How are the judges in the Canal Zone?

What is their tenure?

What are the --

Mr. Griswold: All I can tell you is that is not life tenure.

Justice William J. Brennan: They are usually from Kentucky.

Mr. Griswold: Whether it's four years or ten years.

We will now decide the territorial courts; there were for many years councilor courts, held to be validly established in Re Ross in the 140 U.S.

Now very likely the Ross case would not be followed now, because there weren't really judges there, just councilor officers and they acted as prosecutor, judge, and jury, at least foreman.

The objection during Re Ross is essentially one of due process though and not of Article III and this was taken care of the 1906, when there was established, the United States Court for China, with power to review councilor decisions and to handle all of these cases for all of China.

The judge of this court and I can tell you this, Mr. Justice, the judge of this court was appointed for 10 years, and he could be removed by the President for cause, the statute said.

For many years, the judge was a man named Lubinger (ph) and I used to see him from time to time in Washington.

Apparently, he wasn't too busy in China, he did a good deal of legal writing including some about the United States Court for China.

I have not been able to find in any case from that court came to this Court for review, but there is at least one reported review of a criminal case in the United States Court of Appeals for the Ninth Circuit, and this is Biddle against the United States in 156 Federal not F 2nd, 156 Federal.

It was a prosecution for taking money by false pretences.

The defendant was convicted and sentenced to a year in the jail in Shanghai, and on appeal, this was reversed not because of any defect in the court, but because the apparent court concluded that the facts alleged in the charge did not constitute false pretences.

Now these instances are enough to show that federal questions including criminal charges need not be inevitably heard only by courts which are established with Article III guarantees.

State courts do not meet that test.

There were United States criminal prosecutions in State Courts in the very early days of the republic.

Territorial Courts do not meet that test; Councilor Courts don't meet the test.

I might even add that regularly established United States courts do not meet that test.

When a judge sits under a recess appointment then I am unaware of any decision, which says that a judgment rendered in such cases invalid because the Article III guarantees have not been met.

Now it can be said well there is a special constitutional provision about recess appointment, but so as there are special constitutional provision with respect to the territories of the United States and with respect to the District of Columbia.

Justice Byron R. White: Does your position require the overhauling of O'Donoghue or not?

Mr. Griswold: No, not at all.

Justice Byron R. White: Because?

Mr. Griswold: Because we have today the United States District Court and the United States Court of Appeals, in the District of Columbia circuit, which not only are undoubtedly, but as I will show a little later are by expressed statement of Congress Article III courts.

Justice Harry A. Blackmun: But as you say that -- you say these are just different courts and judges that were involved in O'Donoghue?

Mr. Griswold: These judges here of the Superior Court are of a different court and of a different quality of judges than those involved in O'Donoghue.

The O'Donoghue, the district courts of the United States for the District of Columbia, the judges performed essentially the same function that the District Court judges do throughout the country.

Justice Harry A. Blackmun: And you think that these particular court and judges involved here with a pass muster under O'Donoghue?

Even they had been before a court in O'Donoghue?

Mr. Griswold: I feel fairly sure that Mr. Justice although it's a long time ago, and it's a hard feel to be sure of anything that at the time of O'Donoghue was decided, there was either the municipal court at the District of Columbia or the Court of General Sessions.

I don't know when the transition was made that, which had extensive jurisdiction including criminal jurisdiction.

Justice Harry A. Blackmun: Well I think minor cases here?

Mr. Griswold: I think limited to imprisonment for one year, but imprisonment for one year is a number of this Court's decision has hold is taken quite seriously and there was no intimation that those courts were Article III courts were anything but Article I courts.

Justice Harry A. Blackmun: I question doesn’t go so far as Mr. Justice White’s, does your position required, so you think at least to some withdrawal from some of the language you note down in the brief?

Mr. Griswold: No Mr. Justice, I do not think so at all.

I don't think that O'Donoghue was feeling A with inferior courts in the United States and nor with courts which were given solely local jurisdiction.

Now, it is said by Mr. Frankel that this case is different from all the ones I mentioned.

It involves a district within the confines of the United States, now embracing an area which was once within the state of Maryland and subject to all the constitutional guarantees.

Of course there was no guarantee in Maryland that the Judges of the state courts having jurisdiction over the general run of crimes, would have guarantees like those provided by Article III, and except for four states today, are state judges who handle all the ordinary criminal and civil business in the country do not have such guarantees, but the district is in the United States, not outside of it, and therefore it is said the Article III guarantees must apply.

I find it hard to say, why there is any basis for a therefore there, because it's preferably plain if the constitution is, is and always has been applicable to the incorporated territories.

So decided by this Court, and that any provisions of the constitution are applicable to the unincorporated territories as was involved in Weems against the United States.

The insurer in the American insurance case was an American corporation and it lost its (Inaudible) and Reynolds was an American citizen and he was convicted of bigamy by a court which did not have Article III guarantees and that conviction was affirmed by this Court.

With respect to the --

Chief Justice Warren E. Burger: In that case, was bigamy a felony, I assume it was?

Mr. Griswold: Yes, Mr. Chief Justice.

With respect to the District of Columbia, it was for many years thought and generally understood, and I say that without any hesitation, it was for many years thought and generally understood, I think right down to the day O'Donoghue case was decided, that all of the courts here were established under Article I.

It was on that basis that they were given various administrative powers.

It was felt going back to the very earliest decisions of this court that Article III courts could not be assigned non-judicial functions and it was on that basis that it was felt that all of the District of Columbia court must be Article I courts because they pointed members with the school board may have reviewed decisions of the patent office which did not result in final judgments and they did various things which was then understood that Article III judges could not do.

Certainly, this court understood that they were all Article I courts when it decided the Bakelite case in 1929.

Now the Bakelite case is perhaps somewhat under plate here, it's fairly far back in the stream of history on this thing, but the Bakelite case represented an understanding which I think was general over a period of 50 or 75 years.

It was only under the pressure of a salary reduction question which conceivably might have affected the result that this court saw a new light in 1933, and that light was not bright enough then to illuminate the court of claims.

Moreover, from the beginning there have always been Article I courts and judges in the district.

Justices of the peace, police court, municipal court and more recently the court of general session, courts with limited jurisdiction to be sure, but surely exercising judicial power including substantial jurisdiction in criminal cases and if the judicial power of the United States can only be given to Article III courts, those courts and all the acts under them were surely invalid.

It is said that the district is different from the territories because they were transitory while, the district is permanent.

It's not clear why this makes a difference under Article III, Article III doesn't say anything about transitory or permanent.

But as to the transitory nature of the territories, we have had Puerto Rico and Guam and American Samoa now for 75 years and the Virgin Islands now for more than 55 years.

It is said that they are distant, but it takes only a couple of hours to get from here to Washington -- get from Washington to Puerto Rico and the Virgin Islands and there is instant communication with all of these places.

The people there are citizens of United States, no less and no mores then those of the District of Columbia.

Moreover, the government of the district is not changeless.

There is a great deal of current talk about home rule and changes in Congress may mean that this is more likely than it once was.

There is also a talk about statehood.

There would be a considerable problem in achieving changes such as these, if it should be concluded that they should be brought above, if more than 50 judges on the two court's below in this case had to be provided for life and it should not be overlooked that this statute was enacted by the Congress as a result of a clear crises in the District Court of United States for the District of Columbia which was simply overwhelmed by the volume of its criminal business.

Practically all of the judges were sitting on criminal cases all of the time and the ordinary work of the District Courts could not be carried forward and the congress provided this means greatly to expand the number of judges in the District of Columbia assigned to deal with local crimes and civil matters of the same sort that are dealt with by state courts in the states.

It would be a bit bizarre if the District of Columbia became a state to say that the 50 judges of these two courts below must be given life tenure if the state court judges established by the state under statehood trying the same kind of cases would not have to have Article III guarantees.

The congress expressly grants the constitution, expressly grants to Congress in Article I, clause 17, power to exercise exclusive jurisdiction in all cases whatsoever and really what could be more comprehensive, exclusive jurisdiction in all cases whatsoever over the district that is accepted as a seat of government of United States.

This court has said that this is a plenary part, there is no doubt that the district is different from other parts of the country, both legally and practically, until recently changed by constitutional amendment residence of the district did not have that most elemental right in the democracy, the right to vote.

They still have no representation in the senate and no voting representation in the house, though these bodies pass the laws that govern the district and levy the taxes that are applicable here.

Congress has, always had special powers here and has always exercised them.

In this case, it moved expressly under Article I.

The very first section of the District of Columbia Court Reorganization Act, Section 11-101 and this unfortunately is not printed in our brief, I think it should have been and I want to bring it particularly to the court's attention.

The very first section provides as follow:

Rebuttal of Unk

Unk: Well may I have that number again?

Rebuttal of Griswold

Mr. Griswold: Section 11-101.

Rebuttal of Unk

Unk: Thank you.

Rebuttal of Griswold

Mr. Griswold: Of the DC court, that would be of the court Reorganization Act in the DC court.

It provides that the courts of the Districts of Columbia are as follows, established under Article III.

1. The Supreme Court of the United States.

2. The United States Court of Appeals for the District of Columbia Circuit.

3. The District Court of the United States and then continuing quoting the statute.

Established under Article I.

1. The District of Columbia Court of Appeals.

2. The Superior Court of the District of Columbia.

Thus Congress made it explicit that it knew it was acting under Article I that it intended to act under Article I and that Article I was the basis for the authority which it was seeking to exercise in establishing the two courts below in this case.

Chief Justice Warren E. Burger: We'll resume there after lunch, Mr. Solicitor General.

Mr. Solicitor General, you may proceed.

Mr. Griswold: Before resuming the main threat of my argument, I would like to refer to a memorandum which Mr. Flegal has quite property filed with the court, calling attention to a new edition of the Hart and Wechsler's casebook about federal courts in particularly to a paragraph of a note which appears on page 397 of that note.

I would like simply to suggest to the court that they read the entire note and not just that paragraph on page 397.

Among other things Mr. Bator who is the author of this part says in paragraph 1, notice that the line of argument made above does not in itself asserts that congress has unlimited power to assign federal judicial business to federal legislative courts.

It simply asserts that Article III does not rigidly preclude congress from exercising some flexibility in allocating that judicial business and that Congress may make a particular allocation to a non-article III tribunal, if functional considerations of serving a valid legislative purpose justified and if there is adequate provision for judicial review or here there is provision for judicial review in all cases to this court which is of course in Article III court and then I would like to say that nothing in our position requires the court to overrule or to disapprove anything decided in the O'Donoghue case.

The courts there were held to be both Article III and Article I courts but there was nothing there which held that congress could not create courts under article I to deal with local matters only.

Justice William H. Rehnquist: This may be rather subjective inquiry Mr. Solicitor General.

But do you think the majority of the O'Donoghue Court would have decided this case the way the District of Columbia Court of Appeals did?

Mr. Griswold: Mr. Justice if I may put it this way, I think the majority of the court that decided the O'Donoghue case, if it were here in 1973 would decide this case the way that I suggest.

In 1933 when they were deciding it they didn't have the history that had developed.

The courts established the declaration of Congress that it was creating these courts under Article I.

If all of those provisions had been before the Court in 1933 then my answer would be yes, that they would have accepted the – let me -- I mentioned some of the practical problems before Congress and legislating here the difficulty of giving life tenure to 50-60 judges which were needed but there is also another practical problem and that is fazing in the judges under the old system into the new.

The judges of the Court of General Sessions have not been appointed as Article III judges and a means of making a transition was to establish Article I courts.

Then we do not contend that Congress could create courts generally under Article I to sit all over the country.

Though I would refer to the United States Tax Court which again Congress has validly created under Article I without life tenure and it does sit all over the country but it has no criminal jurisdiction.

Congress could not displace the Article III courts in the states by establishing Article I courts with general jurisdiction or by a series of Article I courts under the commerce power and the tax power and other powers.

Our position this simply that Congress has broader powers over governmental organization in the district than it has in the states.

Now let return to the final subject involved in the case, the question of the seizure.

This is one of considerable importance to the government and I hope that I have not left it buried under a mass of technicalities in presenting the other questions involved.

The basic question is whether a policeman may make a selective stop of a motorist for the purpose of checking his driver's license and registration certificates.

The District of Columbia law requires an operator to have these papers in his possession or in the automobile and that must mean something.

It's not just ceremony that he has to have the papers in his position there to be there so that they can be shown on proper occasion unless they can be checked by a police officer.

There is no way to tell whether motor vehicles which are surely dangerous instrumentalities are being validly operated.

Here the check was no whim.

The police officer could tell from the license plate that the car was a rental car.

He knew that many rental cars were held over time which is unlawful or re-stolen.

In this case the whole rental agreement did indeed indicate that the car was overdue, though this was straightened out when inquiry was made.

There is no allegation that the police officer acted improperly, that is in a violent or a vicious manner.

Rebuttal of Unk

Unk: Mr. Solicitor General, Can I just go back a moment, could the judgments of the tax court be reviewed here?

Rebuttal of Griswold

Mr. Griswold: Directly?

Rebuttal of Unk

Unk: Directly.

Rebuttal of Griswold

Mr. Griswold: They could be since 1970 when it was established as a court.

Rebuttal of Unk

Unk: Well it has but before that when it was in Article I court --

Rebuttal of Griswold

Mr. Griswold: Whether it's is Article I court now and they can be reviewed here.

Just as territorial judgments can be reviewed --

Rebuttal of Unk

Unk: Because even though it is not an exercise of Article III judicial power they used as their exercise--

Rebuttal of Griswold

Mr. Griswold: The Court has always held that it is an exercise to judicial power and there is appellate jurisdiction to review the decisions of the territorial courts established under Article I.

Rebuttal of Unk

Unk: So we have a jurisdiction here than over District Of Columbia Court's judgment whether those courts were exercising judicial power or not?

Rebuttal of Griswold

Mr. Griswold: No.

Only if it is exercising a judicial power but regardless of whether it's under Article III or Article I.

Rebuttal of Unk

Unk: Alright.

Alright, whether or not we are exercising in Article III judicial?

Rebuttal of Griswold

Mr. Griswold: That is correct.

Prior to 1971 Mr. Justice, the Tax Court, in first place it was the Board of Tax Appeal, then it was established as the Tax court but because of a curious history, the statute expressly provided that it is an independent agency and the executive branch for the government and that lasted till 1970.

And during that time it was quite clear that this court could not review a decision of the Tax Court.

Indeed there is a case back 30 years ago involving a certificate from a Court of Appeals with respect to a question from the tax court and this is – I may say this court was always very careful.

Never to remand their decision to the tax court, it always remanded it to the Court of Appeals for remand to the tax court.

But here, there was nothing discriminatory and thus stop many citizens would welcome that has evidence that the police where doing their duty.

Incidentally, the statute of the District of Columbia does not say that the policeman may stop the car, but it does say expressly that any individual to whom has been issued a permit to operate a motor vehicle shall add such permit in his immediate possession at all times, when operating a motor vehicle in the District and shall exhibit such permit to any police officer when demand is made therefore.

This case we think is like the Biswell case, where people realizes to deal in firearms and this Court held that they were subject to inspect it, indeed said that it is to be effective in service a credible deterrent unannounced even frequent inspections are essential.

If a motor is chooses to drive pursuant to a license for which he has applied, he does so with a knowledge that he maybe required at any time to establish that he is doing so in unconformity with the law.

Under the circumstances such checks post at most only limited threats to the motorist privacy, and no threat which is not justified by his acceptance of the license and the operation under it.

I note that persons who wish to enter this court room they have to submit themselves to an inspection which includes the opening of parcels, and the opening of ladies handbag, I would not suppose there was any question about that and I see no basis for a question in the light of the District of Columbia statute with respect to the request for licenses in this case.

If the stock was proper, the protective action of Officer Morris had and looking to see if there are any weapons available was clearly proper under the general rationale of Terry against Ohio and the search should be sustained.

If the court reaches the merits of the case, the judgment of the District of Columbia Court of Appeals should be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Flegal, we'll allow you six minutes enlarging your time a little bit.

Rebuttal of Frank F. Flegal

Mr. Frank F. Flegal: I appreciate that Your Honor.

It seems to me that the one central point that is now involved in the case is the positions of the parties have crystallized, is whether or not the citizens of the District of Columbia stand on a different footing insofar as Article 3 Safeguards and Protections are concerned from citizens in the several states.

We think the answer to that dis-positive question is no.

We rely first upon the fact that the constitution required the District of Columbia to be carved out of the several states.

Justice Byron R. White: The citizens do stand on a different basis with respect to the powers of Congress?

Mr. Frank F. Flegal: Oh, clearly Your Honor.

The legislature which enacts the laws for the citizens of the District of Columbia and of course those who come into the District of Columbia is Congress or whatever local legislature it is.

Justice Byron R. White: And it's a question how far that difference can stand?

Mr. Frank F. Flegal: That is a legislative difference and we suggest it has no extension to Article 3 Safeguards and Protections.

As I was indicating the District of Columbia had to be carved out of the several states.

That was a factor which this Court found dis-positive in the O'Donoghue opinion upon which we place heavy reliance and I would respectfully disagree with the Solicitor General that I think if the appellant does not prevail in this case at least some of the language, some of the Article III theory of the rights and the benefits set forth in the O'Donoghue opinion would have to be rejected or retreated from.

Now --

Chief Justice Warren E. Burger: But then as you read Seventeenth Clause of Section 8, Article I, the legislative power of Congress over the district is narrower, is less broad than the legislative power of the state in creating its own ordinance of government.

Mr. Frank F. Flegal: Precisely, Your Honor.

Chief Justice Warren E. Burger: And why?

Mr. Frank F. Flegal: And the difference is the difference between the Fourteenth Amendment which is the State's Federal Constitution restriction on a state legislature and the Bill of Rights and original constitution on Congress.

Justice Byron R. White: Well, how about the extent of it?

You say it's also narrower than the power over territory?

Mr. Frank F. Flegal: Yes indeed so sir, indeed so and I say that because this Court has so held.

Many rights which citizens of a state and which are not, which don't fetter a state legislature's judgment, the Seventh Amendment right to a trial by jury in a civil case, the Sixth Amendment and Article III right to a jury trial in the criminal case and the Fifth Amendment grand jury right are applicable to local offenses in the District of Columbia.

To that extent we submit --

Justice Byron R. White: And in the territory --

Chief Justice Warren E. Burger: And in the territory --

Mr. Frank F. Flegal: And in the territories, Your Honor, depending upon whether or not the territory is been incorporated or not and whether it's being fundamental or not, those are --

Justice Byron R. White: But there is no in respect to territory that you need an Article III Court?

Mr. Frank F. Flegal: It’s been assumed Your Honor, I know of no case in this Court which is ever squarely so held --

Justice Byron R. White: Well, assume it had, it still wouldn't make any difference to you?

Mr. Frank F. Flegal: It would make no difference to me, Your Honor.

We would the submit the citizens before the Federal court in the District of Columbia charged with a felony is entitled to precisely the same.

Constitutional rights and safeguards as a citizen charged for a federal felony before a federal tribunal in one of several states and we think the framers did accomplish something by the good behavior clause of the constitution something benefited to the litigants.

Chief Justice Warren E. Burger: Then you are giving residents of the District of Columbia something more than residents of Maryland?

Mr. Frank F. Flegal: I am giving the residents of the District of Columbia precisely the same as I would give the resident of Maryland and that is the right --

Chief Justice Warren E. Burger: Let me put it to you this way.

There are felonies in the state of Maryland, they are in the State of Virginia, as to which the residents of those states or any person apprehended there, and charged would not give an Articles III Court isn't that true?

Mr. Frank F. Flegal: Correct.

Chief Justice Warren E. Burger: So that in that sense, you are suggesting that the residents of District of Columbia get something that residents of no other state had except --

Mr. Frank F. Flegal: Weren't tried before the state tribunals, and they get a precisely the same --

Chief Justice Warren E. Burger: [Voice Overlap] before the state tribunals, except to the extent that is comparable 10 year in Massachusetts, and several other states.

Mr. Frank F. Flegal: Several other states, but that is a question on which we -- a fact on which we place no reliance for our proposition.

What we are saying is the citizen in the District of Columbia gets rights which the State of Court would not have to afford him sitting in Maryland, the grand jury indictment the jury and we submit the good behavior judge.

Justice Byron R. White: Or even if the State of Court was trying for a federal --

Mr. Frank F. Flegal: That's the arguendo assumption Your Honor, if the governments we think that goes too far and if there are serious problems if Congress ever passed the hypothetical legislation that the government state Court argument rest upon, this Court is confronted some of those problems in the Seventh Amendment context, with the State Courts trying Federal Civil Actions and in some cases the Federal Employer liability acts in so forth, implied as part of the remedy.

Some part of the Seventh Amendment Jury Protection, but that's not our argument.

We assume arguendo with the government that if State Courts could constitutionally try federal clients Fourteenth Amendment Protections would apply.

Our preposition is purely a limitation on exercise of the Federal Judicial power.

If Court has no further questions, we submit that the judgment of the District of Columbia Court of Appeal should be reversed either with directions to remand this case for a new trial before a constitutional Court, or in the alternative to reverse and remand for either a new trial or a judgment of acquittal, excluding the evidence which we challenge.

Thank Your Honor.

Chief Justice Warren E. Burger: Thank Mr. Flegal.

Thank you Mr. Solicitor General.

The case is submitted.