Warren E. Burger: We will hear arguments next in 76-439, Territory of Guam against Olsen. Mr. Troutman.
Charles H. Troutman, III: Mr. Chief Justice and may it please the Court. The essence of this case is the ability of the Territory of Guam to determine for itself the type of court system it desires for its own local cases. The specific question presented in this case is whether Section 22 of the Organic Act of Guam, which is 48 United States Code 1424, permits the Legislature of the Guam to create an Appellate Division or rather create Supreme Court of Guam and transfer from the Appellate Division of the District Court to the Supreme Court of Guam all appeals from the lower courts of the Territory. A brief history of this litigation I believe is in order. First, in 1974, the Twelfth Guam Legislature decided that it was time to have the local court system in its opinion anyhow as autonomous as the rest of the Government had become. In 1950 the Organic Act created a civil government for the Territory of Guam and created, at that time, a legislator having legislative authority of raw matters of local interest. A Governor of Guam is also created who is an appointed official, appointed by the President, answerable to the Interior Department, and Section 22 of the Organic Act created a Court system similar too but significantly different from that in the other territories, probably most similar to that of the old years on the Territory. Then there were certain significant amendments in 1951 and 1958 which I shall discuss later, and then in 1970 the Elective Governor Act was adopted which gave Guam its first Elected Governor, elected locally. Then, in 1974, the Legislature of Guam and then that the local Codes of Guam which had previously, by the First Guam Legislature, created the Appellate Division of the District Court. It amended these laws to provide for a Supreme Court of Guam and a superior court which was then the Superior Court being the court of local jurisdiction. As soon as a case could go through the process then Superior Court, it came up for appeal before the Supreme Court, this was the Agana Bay versus Dullingham (ph) case, and as soon as the Supreme Court had received it the Agana Bay Company petitioned to the District Court of Guam to issue a writ of prohibition declaring that the Supreme Court of Guam has no authority to hear appeals of any sort of lower court activity. District Court of Guam then granted this writ which was there upon appeal to the Ninth Circuit, and in January 17th, 1976 the Ninth Circuit, a panel three judges reversed the District Court saying that the Supreme Court under the Organic Act did have a right to exist and hear cases on appeal. Meanwhile the respondent in this case also had been convicted in the Superior Court of various crimes burglary, receiving stolen property, and assault with a deadly weapon. He had appealed both to the Supreme Court and the District Court on the generally held belief at that time that no one knew which Court would hear the appeal. As soon as the, Agana Bay decision came down, the District Court then reversed or rather denied the appeal in the Olsen case saying that it had no jurisdiction. This denial was then appealed to the Ninth Circuit Court of Appeals and before the Ninth Circuit could act a petition for certiorari was filed by the respondents in this action which was denied, then the Ninth Circuit en banc without further brief of their argument reversed the opinion in the Agana Bay declaring that the Supreme Court of Guam could not hear and have no jurisdiction to hear appeals, because the Guam Legislature have no power to create one under the Organic Act.
Speaker: Agana Bay and this case are two wholly separate cases, are they not?
Charles H. Troutman, III: They are completely separate, Your Honor except that the issue involved is the same.
Speaker: Just as a matter of curiosity, is the personnel of the new courts established in Guam confined to persons admitted to the Bar of Guam. In other words if judges have to be lawyers.
Charles H. Troutman, III: Oh, yes, except for the Police Court and that only for the incumbent. The current --
Speaker: Just as Grandfather Clause.
Charles H. Troutman, III: Yes, for the one Judge. Actually they were not to the Bar of Guam Your Honor, because the composition of the new court, the Supreme Court of Guam would have been almost identical to that of the Appellate Division of the District Court. In that the Chief Justice was the only Justice appointed and he was the member of the Bar and had to be member of the Bar of Guam, but he would designate two other associate justices from among a group which would include the District Judge with his consent, non involved judges of the Superior Court, or one of the judges of the High Court of the Trust Territory with their consent. It is the same way that the Appellate Division does not constitute it under the Organic Act of Guam Section 22 (a) the second paragraph.
Speaker: When the second paragraph refers then to three judges of the District Court of Guam, it is not talking about three Federal District Judges, I gather.
Charles H. Troutman, III: No, Your Honor, there are no Article III Courts applicable to Guam as original or appellate jurisdiction on the island. The only Article III Court that is involved in Guam cases is the Ninth Circuit Court of Appeals.
Speaker: So, even the District Court of Guam is not an Article III Court.
Charles H. Troutman, III: No, your honor. That is a Legislative Court created by the Organic Act of Guam in 1950.
Speaker: And its decisions are appealable to the Ninth Circuit.
Charles H. Troutman, III: That is correct, yes.
Speaker: But not to Supreme Court of Guam.
Charles H. Troutman, III: That is correct because the Supreme Court did not exist.
Speaker: Well, what federal -- under this plan you would support there would be -- there were many questions that would end up to Supreme Court of Guam subject to no federal review.
Charles H. Troutman, III: Collateral questions, the District Court of Guam Your Honor has exclusive jurisdiction over all cases which arise under the --
Speaker: Well that is the arising under --
Charles H. Troutman, III: Arising under -- and of course the income tax, but other issues, yes.
Speaker: But any federal defenses would never be subject to federal review.
Charles H. Troutman, III: Up to a point Your Honor, not on direct appeal. We believe --
Speaker: Well, what about a federal constitutional defense to a case in a Guam Court?
Charles H. Troutman, III: Well, in a criminal case Your Honor, we would believe that it could be brought on a writ of habeas corpus in the District Court.
Speaker: Well, what about civil cases?
Charles H. Troutman, III: Civil case that presents more of a problem.
Speaker: So, you submissions -- it is not appealable to any Federal Court.
Charles H. Troutman, III: That is correct. At the time the Guam Legislature passed the Act, the Court Reorganization Act, they also passed the resolution requesting Congress to amend the Organic Act to provide the --
Speaker: But until that has done there would be no appeal.
Charles H. Troutman, III: That is correct.
Speaker: 1983 applies to Guam.
Charles H. Troutman, III: It does, yes, completely. I think we need to look at the --
Speaker: May I just assure. I gather if his decision blow stands, there is no such thing as Supreme Court of Guam.
Charles H. Troutman, III: That is correct, and the appeal is now pending --
Speaker: Is this because the statute has been read to mean that there was no authority to create this court, or that there was no authority to give it any jurisdiction to appeals.
Charles H. Troutman, III: No, the authority, I would say would be that there is no authority to create this court.
Speaker: Right.
Speaker: Or no authority to transfer any appellate jurisdiction.
Charles H. Troutman, III: That is correct. That is what I mean, but the original decision actually in Agana Bay said that there was no authority to create the court.
Speaker: General Troutman, following up on Justice White?s question, under your view of the Organic Act, what is have been possible to create a local court to try local matters and have no appellate review whatsoever of that court?s decision?
Charles H. Troutman, III: Yes Your Honor it would be because the Organic Act states that the - to begin with - that the District Court of Guam shall have such appellate jurisdiction as the Legislature of Guam determines. So, that if the Legislature of Guam did not determined any jurisdiction regardless of what else it created, if it did not act to determine there was jurisdiction in the District Court, then it would not have any. This is sort of a question that we are facing with many cases right now because the case below has said that the Legislature cannot transfer jurisdiction from the Appellant Division to a Supreme Court yet, but the Legislature has done this repeal any authorization of jurisdiction to the District Court and has not yet acted to replace it with anything.
Speaker: So, that we merely hold that the Supreme Court of Guam is not properly constituted under the present state of the law, there would be a trial in a Guam Court with no review of the federal question in any court?
Charles H. Troutman, III: In any court, that is unfortunately the case, yes. The Organic Act of Guam is quite different from the Act of the Virgin Islands and other territories. Most of the early western territories, actually expect Arizona, provided a complete court system. They set up a Supreme Court, District Courts, Probate Courts, Justice of the Peace Courts. In Arizona, however, they set up a court which said -- they set up a District Court with such other inferior courts as the legislature may or may not determine. In the Virgin Islands today, the Legislature of the Virgin Islands today only has authority to create inferior courts and also has very limited authority to create exclusive jurisdiction in the courts it does create. But, on Guam the Congress has said no such thing. There is no -- the judicial authority of Guam is rested in not only the District Court, but in such court or courts as the Legislature may create. There is no word anywhere in the judiciary section of the Organic Act which would act to mention the word ?inferior court? or should otherwise limit the Legislature in the type of courts that it would create.
Speaker: Mr. Attorney General, what if any effect on this case does that 1976 legislation, congressional legislation have?
Charles H. Troutman, III: On the Guam Constitution relatively limited I believe Your Honor, for several reasons. The first is that it applies only to Guam Constitution which has not yet been written and the constitutional convention will be called, for later this year, June and under the time table Congress would not receive it until possibly early 1978, but there are presently approximately 40 cases on appeal wherever waiting decision on this case in the courts of Guam. So that there are -- we are talking now about existing law not as what it may be after the Guam Constitution has come about. The second part of that question, Your Honor, from the history of the 1976 Legislation that passed would indicate the reason for Section 2 (b) (7) regarding the courts, was not so much that Congress is trying to interpret the existing Organic Act just because they were at a quandary to know how to interpret the situation in light of this continuing litigation, because at that time, and the time that was inserted the Ninth Circuit decision, en banc decision, had come down but certiorari had not yet been granted. So, they assume that that decision was final and acted accordingly. I think that the congressional intent if you can find any in the original Organic Act is not as respondents would urge that Guam could not barred completely from creating this type of court. Congress originally considered two versions of the Organic Act two or three in which they created in these proposals various forms of a court system similar to a State Court system, in other words they said this is the system and treated it more as a Constitution. However, they rejected all of these versions and came out with what is now 22 (a) of the Organic Act, plus other parts which have since been amended. In fact later in 1951 when they realized how much appellate jurisdiction the legislature had given them, they were forced to amend the judiciary section so that appeals would go from the Appellant Division to the Ninth Circuit as it was desired at that time to the simpler reason that before the 1951 amendment there is a limited right of appeal to the Ninth Circuit in matters and felonies and in excess of $3,000. Now, everything below that was not appealable but these were just the matters that were being appealed to the Appellant Division of the District Court, so there is a desire that they were not embarrass at that time. Then in 1958 it was determined that with the increasing amount of appeals again the former system of assigning judges to the District Court was still found workable chiefly because of the distance they were assigned by the Chief Justice of this Court, and also they came from Article III Courts of the United States. So, it was amended to provide the designation of associate judges for this Appellate Division would be provided by the presiding judge of the Appellate Division from among judges able to sit on the District Court, namely judges who had been designated by either the Chief Justice or the presiding, the Chief Judge of the Ninth Circuit, and also from judges of the High Court of the Trust Territory which incidentally has no judicial jurisdiction over Guam whatsoever. It is also interesting for comparison to note the Government of the Northern Mariana has recently passed also. While there they did provide for the proper route to appeal to an Article III Court, they did that because all of the parties were then knowledgeable that, were then quite aware that the Northern Marianas would probably eventually be creating its own courts. But the language giving jurisdiction to its Appellant Division is very similar to that found in the Organic Act of Guam.
Speaker: Where is that in your brief? I think it is in you brief?
Charles H. Troutman, III: Yes, Your Honor it is. It is on Page 5 of the brief of the petitioners.
Speaker: The language authorizing the creation of other courts is very similar.
Charles H. Troutman, III: No, authorizing the Appellant Division. We are not here talking about the authority of the Guam to create lower courts, in other words courts of general jurisdiction, but Section 402 (c) says that District Court -- and I am referring to the Northern Marianas -- the District Court will have such appellate jurisdiction as the constitutional or laws of the Northern Mariana Islands may provide. Then they go on to save when it sits as an appellate Court, the District Court will consist of three judges, at least one of whom will be a judge of the Court of record of the Northern Mariana Island. So, the first sentence of this is very similar to that in the Organic Act of Guam referring to appeals where it says in Section 22 (a) talking about jurisdiction, the District Court of -- it says, it shall have original jurisdiction and all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other courts established by it, and shall have such appellant jurisdiction as a legislature may determine.
Speaker: If that is right that you say is similar to, it will have such appellant jurisdiction as to constitutional laws that the Northern Mariana Islands may provide. You are making that comparison.
Charles H. Troutman, III: Yes your honor, I am, yes. That is the point of the comparison.
Speaker: General Troutman may I ask one of the question that the language you just read, the transfer of original jurisdiction language, that is broad enough to cover as I would read it I think at least, transfer of cases arising under federal law, do you agree with that?
Charles H. Troutman, III: No, I would not your honor because prior to that statement the full sentence reads that District Court of Guam shall have the jurisdiction of a District Court of the United States and all causes arising under the constitution treaties and laws of the United States regardless of the sum or value of the matter in controversy, shall have original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred. So, that the only thing that can be transferred as other causes is that --
Speaker: What does that do to diversity of the cases?
Charles H. Troutman, III: This, your honor I cannot rightly say because this is currently in litigation at the present time.
Speaker: Yes because it is contradictory, isn?t it about diversity, whether it would be. It cannot -- both have the jurisdiction of a Federal District Court and still be transferable to another court?
Charles H. Troutman, III: That?s correct.
Speaker: You can retire what are mutual.
Charles H. Troutman, III: The issue I believe in diversity is that diversity basically is not a cause arising under the Law of Guam. That is one argument.
Speaker: I know, but it says the jurisdiction of the Federal Court.
Charles H. Troutman, III: That is true. Actually at the present time the District Court of Guam as assumed that it does have diversity jurisdiction.
Speaker: Well then diversity cases are not transferable, are they?
Charles H. Troutman, III: That is correct they are not.
Speaker: So, that somebody even though another court system, the local court system is set up, the suitor have the choice then.
Charles H. Troutman, III: Under the existing law that is correct.
Speaker: I do not understand why diversity case is not transferable. I understand your answer is the cases are rising under federal law but there is nothing in here about diversity cases not being transferable.
Charles H. Troutman, III: Well, that possibly -- that particular question has not been addressed in the Court Reorganization Act because its jurisdictional statement is that, jurisdiction lies in the Superior Court in all cases arising under the Laws of Guam. So, there actually is a gap there of two types of cases which go to the District Court: One type I believe probably would be diversity since Guam has no provisions itself for diversity per se, and also cases that probably arise under, say, another law but I heard on Guam, litigation is going on one of those at the present time, for instance, which arise under the Laws of the Trust Territory but the parties are found in Guam and the case is pursued there. We would further argue that the appeal to a District Court advanced to the Ninth Circuit Court of Appeals is not actually a matter of right that was established by the original Organic Act. Under the original Organic Act there was no right to appeal to the District Courts to begin with. This right had to be made when it was made by the Legislature of Guam. This was done in the First Guam Legislature by a really a Clerk -- separate divisions what they called it an Appellant Division of the District Court, but that was a creature of Guam and not of the Organic Act. Our argument further is that the subsequent amendments do not, in essence, repeal or admit that right of Guam to change its original act in the first place. In other words, the second paragraph of Section 22 of the Organic Act, where it starts appeals to the District Court of Guam shall be heard and determined by an Appellant Division and so forth, this does not state that appeals cannot be heard any place else, but merely provides the system that is developed that should be heard if and assuming the Guam Legislature continuously appeals to the Appellant Division. Guam has progressed far in its ability to Organic Act of Guam and we are not arguing -- our whole argument here is that this is permitted within the Organic Act as it presently exists. In our view the Organic Act of Guam represents maximum flexibility to Guam in determining the form of government for the Territory in a much greater degree than it has been provided by the Organic Acts of the various others territories and possessions. In the Florida case I cited in our brief is the American Ocean Insurance versus 365 Bales of Cottons, court back imply there was territory ruled that the court, that Congress may give to a territory either the jurisdictions it wants to in a court system or permit that territory to give either what is normally federal jurisdiction or local jurisdiction to a court of its choice.
Speaker: What other choice has Congress given to the jurisdiction which you claim, was given here to Guam?
Charles H. Troutman, III: None Your honor. Because very specifically elsewhere at least in recent history it spells out how the courts are to operate. In the Virgin Islands it is very specific that, they state that the local jurisdiction may not, rather it may create only inferior courts and then it actually provides that jurisdiction of the rather appeals may be taken, rather shall be taken from the lower courts created by the jurisdiction but this Virgin Island too the District Court of the Virgin Islands. So, that this is specifically stated in old Hawaii when it was a territory, the Congress actually created the Supreme Court and permitted inferior courts to be created and created certain intermediate courts also, but there again referring to inferior courts as the problems of the Hawaii Legislature. In Puerto Rico under its Organic Act days not under the Commonwealth, of course, there was a Court System created again by the Organic Act but giving inferior powers to the Puerto Rican Legislature. So that actually we are arguing with the Guam Organic Act is different from that of other jurisdictions and this is why Guam claims its power. If we were operating under, let us say, the Virgin Islands, Hawaii or Arizona Organic Act, there is no question that Guam could not do what it is presently doing.
Speaker: Because under those Acts the authority is limited to creating Non-Appellate Courts?
Charles H. Troutman, III: Yes I would --
Speaker: To creating so-called inferior courts.
Charles H. Troutman, III: That is correct Your Honor, it is. It is either specific to limit of that or in some of the older ones the whole set up, the whole court system is established by Congress leaving no authority whatsoever.
Speaker: Well I have interrupted you, may I ask, you do not need to answer it now, but I wonder if you are going to address to yourself to the impact upon this case, if any, of the newly authorized Constitutional Convention the Con-Con Authorization that said, do not forget --
Charles H. Troutman, III: Yes, Your Honor, I do not believe that there is actually going to be that much impact at the moment. I think the reason for this is at what was happened is covered adequately by the Con-Con Act itself, in that number one I cannot forecast what the Con-Con will come up with. I really have no idea at this point. I presume it will come up with something similar but this is not -- I have no way of telling. The history of that Section 2 (b) (7) indicates that the matter of the relationship of whatever court is created will be determined probably at the time that Congress has approved the Guam Constitution and be part of the Joint Resolution. This was the intent by Counselor at the time of the Senate amendment to that. As through the case that are existing now, I do not foresee that it will have any effect whatsoever in as much as these cases, take the criminal cases, were already in the appeal route under existing laws. I do not see how the Guam Con-Con Act will be able to reverse or change what is presently the law?
Speaker: How would a case in the local court get federal review at any direct federal review?
Charles H. Troutman, III: At the present -- under the existing law Your Honor? Under the existing law the review is to the Appellant Division of the District Court, which, being a part for the District Court, you have a right to appeal automatically to the Ninth Circuit Court. This is how this case came before this Court.
Speaker: Under your view of the jurisdiction how would one get to the direct federal review?
Charles H. Troutman, III: In the criminal case such as this, I mention a review would be by habeas corpus in the District Court.
Speaker: Well, that is not direct review?
Charles H. Troutman, III: No. Under the present time, Your Honor, there would be no direct review.
Speaker: If you are correct then?
Charles H. Troutman, III: Yes, that is correct.
Speaker: I mean if you are correct.
Charles H. Troutman, III: If assuming our position.
Speaker: May I ask one more question before you sit down? You indicated there was -- the consideration has been given to the problem of providing direct review from the decision of the Supreme Court of Guam. Is that -- also that review would be in the Ninth Circuit or in this Court, do you know?
Charles H. Troutman, III: Your Honor, there is actually quite a bit of controversy on this point. As the Chief Justice appointed a committee on the pacific territories which held hearings in Guam last August. It seems to me the view of the Bar of Guam that they would like review to be, to the Ninth Circuit, since that this would actually provide more direct, more number of appeals, since the chances of getting a review to this Court are much less. Thank you Your Honor.
Warren E. Burger: Mr. Trapp.
Howard Trapp: Mr. Chief Justice, may it please the Court. Mr. Justice Stevens asked a question, the answer to which being given, I was shocked to hear it because I believe his question was, Well what if the Ninth Circuit?s decisions, upheld under Supreme Court of Guam, remain stricken down at the present time, be any right of appeal in Guam at all, and I believe the General Troutman?s answer was, no. I submit that the answer to that question definitely is yes. Because it is a common canon of statutory construction that if a statute is amended and if for some reason -- and it is obvious that the intent is not to do away with remedy that was given, for example, such a case as this, there was no intension to do these appeals all together, but rather to direct appeals through a different route and to a different court is that repealer, and the substitute law were declared invalid and of course the original law would spring back into being. And under Section 55 of the Guam Court Reorganization Act, it says, every reference in law, rule, or regulation to the Island Court shall be read in mean to Superior Court of Guam. It means we would still have the old law with the change which would not be invalid if changing the old Island Court named the Superior Court, and then the law under the Ninth Circuit?s latest decision would simply read that you can take appeals from the Superior Court of Guam to the Appellant Division of the District Court of Guam.
John Paul Stevens: Mr. Trapp, let me just modify the question a little bit, then supposing that the question is whether the Organic Act would prevent the Guam Legislature from enacting two statutes. In the first statute, they say, we hereby withdraw all appellate jurisdiction from the District Court, and that goes into affect, and I guess they have the power to do that under the Organic Act and then secondly, a year later, they had passed the statute saying, now appeals will be taken to the newly created Guam Supreme Court, and then we knocked out the second statute, I suppose then there would be no appeals.
Howard Trapp: Well, in the first place, I think we have at least raising -- it has had a possible constitutional question as to whether or not Congress -- well, we have the first impression whether Congress intended to do appeals to an Article III Court eventually on federal questions and --
John Paul Stevens: Well, is there anything in the language of the Organic Act that would prevent the Guam Legislature from withdrawing entirely the appellate jurisdiction of the existing District Court.
Howard Trapp: I do not think that there is anything in the language of the Organic Act which prevents that but I think we are not -- the Government seems to take some comfort from the fact that there is no such language but I think that they are not talking about the real world, they are not talking about the world that the Congress expect it would obtain in Guam and that is the say that real world invariably appeals, and a certain number of instances are always allowed by Legislature.
John Paul Stevens: As Judge Kennedy had read the word ?determine? as I understand his opinion to mean that there is at least some category of patty matters, smaller matters as to which there need be no appeal.
Howard Trapp: Of course and the language in the Organic Act does not say, shall provide appeals in all cases. So, ?determine? mean of course to make a rationale decision of some sort to make distinctions between cases those that may be appealed and those that may not be appealed.
John Paul Stevens: You would say that means they can determine that there will be minor matters as to which should be no appeal but they could not determine that there will be no appeals at all.
Howard Trapp: I am not saying that the language does not say that there cannot be no appeals at all; I am simply saying I cannot believe that Congress ever anticipated that situation ever happening.
William H. Rehnquist: Certainly your construction does not fall in what would call the plain meaning of the language that Justice Stevens is asking about, is it?
Howard Trapp: As to the Congress not contemplating never doing away with all appeals?
William H. Rehnquist: No, I mean as to the part of Section 22 (a) on Page 2 of the petitioner?s briefs which describes the original jurisdiction and says the jurisdiction up of the District Court, and then says jurisdiction and appellate jurisdiction which has been transferred by the Legislature to other courts or courts established by it, and shall have such appellate jurisdiction as the Legislature may it determine. Now, that to me sounds like carte blanche. Why isn?t it?
Howard Trapp: Mr. Justice Rehnquist, are you asking me why couldn?t they simply do or not ever provide for appeals?
William H. Rehnquist: Why not read the statute literally and if one does read it literally it sounds to me to give virtually unlimited authority to the Guam Legislature in this particular matter.
Howard Trapp: Oh, I must respectfully disagree. I think that if we analyze that language carefully in the first place, we look at the first sense which says, in what courts the judicial authority shall reside, but it does not say what courts can be created. I mean you look at the second sentence. In the second sentence it says that original jurisdiction can be transferred, appellate jurisdiction can be determined. Now, I think we have to think of this in a chronological and rationale way. There is no appellate jurisdiction unless, first there is some original jurisdiction which has been transferred. So it seems to me that the plain language, if we apply the plain language rule to this second sentence, then what Congress is saying is, well look, we are going to have a District Court of Guam and that District Court of Guam is going to have all jurisdictions and of course, there will be appeals to the Ninth Circuit and to an Article III Court from that District Court of Guam. Now, it may be that the Guam Legislature wants to setup its own courts of original jurisdiction. Alright, they can do that. They can take that jurisdiction which is in the District Court of Guam and they can transfer it. Well, what about appeals them? Well, in that event then an appellate jurisdiction for the District Court can be determined and appeals can then go from these new courts of original jurisdiction, but these cases will nevertheless go up through the District Court which is a creature of statute, the Congress rather.
William H. Rehnquist: Even though the Guam Legislature determines that the District Court shall not have appellate jurisdiction.
Howard Trapp: Yes, but I do not think, I cannot believe that the Congress ever dreamt the Guam Legislature would simply say, well we are going to create courts of original jurisdiction but we will never have appeals from any of the more important types of cases.
Speaker: Which will appeal to the Supreme Court of Guam?
Howard Trapp: Well, we have an appeal to the Supreme Court of Guam now but there is nothing in the language to suggest that that was ever contemplated by the Congress or that Congress ever gave any expressive authority to indicate to the Guam Legislature that it simply wants a let go of the Guam judicial system.
Speaker: Well, I am just saying that when the Congress said, it shall have such appellate jurisdiction as the Legislature may determine, they were saying, it will have some appellate jurisdiction.
Howard Trapp: That the District Court would have some appellate jurisdiction. That is all they were saying.
Speaker: That is what I thought it was.
Howard Trapp: Yes, and that is all they were saying.
Speaker: In other words it is not the grant of power as under Article III of the Federal Constitution to the Congress of the United States. Is that what you are saying?
Howard Trapp: Not at all.
Speaker: But, there is some dispute over what is the scope of the congressional power as to Article III, it has never been finally resolved.
Howard Trapp: That is right.
Thurgood Marshall: Mr. Trapp, help me out, what is this Appellate Division of the District Court?
Howard Trapp: Well Mr. Justice Marshall what the Appellate Division is, is this, originally the Organic Act, as we have just discussed, set in the trans-provincial jurisdiction that the Legislature could determine what appellate jurisdiction the District Court of Guam would have. Now, the Legislature --
Thurgood Marshall: No, I just say, physically what is the appellate division?
Howard Trapp: Alright, the Legislature --
Thurgood Marshall: One judge, three judges or what?
Howard Trapp: It is three judges. In the way it happens to come about to be three judges is that a year after the Organic Act was enacted, the Guam Legislature decided to determine appellate jurisdiction in the District Court, and in doing that it passed Public Law 17 which setup an Appellate Division within the District Court, and it provided that there would be three judges, not just the judge appointed by the President of the United States as the Judge of the Territorial District Court of Guam, but two other judges originally to be designated to set temporary status by the Chief Justice of United States. Now, this was on the books for some years when the Congress apparently decided to recognize what the Guam Legislature has done and enacted an amendment to the Organic Act which, I submit to this Court, shows that the Congress only intended for the District Court of Guam to have appellate jurisdiction, because if the Guam Legislature have the power to simply create appellate courts then you could say well by creating the Appellate Division they have created the Appellate Court. But the Congress felt it was necessary to go a step further and legitimize what they had done with further legislation. Even though, what they had done was formalizing the procedure within the framework of the appellate jurisdiction which Congress had expressly given to the Guam Legislature that is to say the jurisdiction to determine what appellate jurisdiction that the court have.
Speaker: The other two judges, the territorial judges, when they fit in the slot? What slot do they fit in?
Howard Trapp: No, they are now -- they might be judges out of the High Court of the Trust Territory of the Pacific Islands, they might be United States District Court Judges from an actual United States District.
Speaker: Do you mean within Ninth Circuit?
Howard Trapp: Within the Ninth Circuit or it conceivably --
Speaker: It is outside.
Howard Trapp: Conceivably even outside, I believe.
Speaker: In what tribunal this rested the traditional probate jurisdiction, such as we have in the States.
Howard Trapp: The Superior Court probates domestic relations matters. When you say traditional, now everything local has been transferred, but for many years the probate jurisdiction was called the Island Court of Guam which is really no more than the predecessor of the Superior Court which is the Island Court with an enlarged scope of jurisdiction. I might say that this is a very unusual thing that General Troutman is attributing to the Congress to say that in effect to Guam Legislature can make the very highest tribunal in Guam, the highest Appellate Court that is to say, for example, the Guam Supreme Court, the play thing of the Legislature. I think it would be very unusual to have a system of government where the legislature could simply, at any moment, abolish the Guam Supreme Court, change its jurisdiction, respectively fire the judges and have all new judges appointed for whatever political reason they might think fit. And Guam does have a record of, the Guam Legislature does have a record and I am presently a senator of that Legislature but I was not a part of this scheme about just a few years ago whereby they would switch the appointing power back and forth between the Governor and the Legislature depending upon who is in power and how it suited them. So, if the Guam Supreme Court is to be upheld, I think that I can pretty well guarantee to this Court that it will, very definitely, be the play thing of the Legislature. The Constitutional Convention Act definitely has a great deal of effect upon this present case, because the language is different by far then we find in the present Organic Act. It is the first time we find expressed authority to establish a ?system of local courts?. I do not think that we are reading too much into that language ?system of local courts? to think of higher and lower courts. This is the first time we find that expressed language. Congress did not use it before. If Congress wished to delegate to the Guam Legislature in 1950 an authority to establish a system of local courts, one might think that they would have said so. They have said so for the first time in the Constitutional Convention Act. Also we can see that Congress agrees that this matter is certainly not put to rest. Congress has not yet let go the local judiciary, and this is definitely evidenced by the Constitutional Convention Act where Congress says that sometime in the future that Congress is still going to regulate the federal and local relationship.
Speaker: Well, in that sense Congress has not let go the Federal Courts either, has it then?
Howard Trapp: No, it has not. But it has suggested that right now that Congress has already regulated that federal and local relationship by simply saying to Guam -- and this is the petitioner?s position -- saying to Guam, ?Well, go ahead, setup whatever system you want?, but Congress says that that relationship still has to be regulated. Now, in the Agana Bay case decided by the Ninth Circuit, the majority said there is nothing to indicate that Guam is incapable of establishing and operating its own Appellate Court. Well, I take exception to that if I may, and I think it is a consideration. General Troutman has said that a judge or a justice of the -- rather a judge of the Superior Court must be a lawyer. Well, if that is so it must be in Legislation that has come about, I believe, since the Court Reorganization Act. I am not sure that that is so if he has a authority to that. If I would stand correct that was not my understanding. But in any event if a lawyer is appointed to the Supreme Court of Guam that lawyer need only have been admitted to practice six months before his appointment.
Warren E. Burger: One need not to be a lawyer to be appointed to this Court as you probably know.
Speaker: Not even for a day.
Howard Trapp: That might be so, but when the Congress originally considered setting up the Supreme Court of Guam and keeping in mind that the appointing power to this Court is vested in the President of United States as oppose to --
Speaker: Subject to monitoring of the Senate.
Howard Trapp: The advise and consent of the Senate, yes. That in Guam what we are talking about is allowing the Guam Legislature, sometimes they do it themselves allowing the Governors, sometimes he does it with the advice and consent of the Guam Legislature depending what the Legislature wants to do at that time to in effect bring about a situation where justices will be appointed who really have very low or no qualifications.
Speaker: Mr. Trapp, I just wonder should we -- if we were to make a presumptions one way or another as to whether Guam is capable of self-government, which presumptions should we make that it is or that it is not?
Howard Trapp: I think we should make the presumptions that it is capable of self-government, but on the other hand we have the situation where I would agree 100% with the underlying notion of the petitioner?s case that Guam should be entitled for self determination, self determination of the Legislature that the people of the Guam elect their own representatives to make their laws. Self-determinations, the executives, let us elect our own executive officer, after all we have to live with them from day to day and he has very broad powers. But when we get to judiciary and who is actually considered about the judiciary, the people of Guam. I suggest not the people of Guam really generally, but litigants, people who find themselves before the courts. I suggest that really what we need is not self determination necessarily, what we need is learning, what we need is experience, and what we need is impartiality. I can tell you from my experience in practicing in Guam for 16-and-a-half years that if we have a system where the Chief Justice sits on these cases and shares his offices and office space with the trial judges, where two of the trial judges along with the Chief Justice will sit in judgment on their peers as the way it has worked so, far, where you have a very small and tight-knit community of a hundred and some are thousands you are not going to get partiality.
Speaker: That is the way the Appellate Division of the District Court works. Don?t they sit in the panel of three reviewing the decisions of one of the three?
Howard Trapp: It does work that way sometimes but only when they are unable to get a United States District Court Judge, almost invariably they get a judge from the Trust Territory, and they get a United State District Court Judge from Hawaii or the Mainland.
Speaker: But the procedure permits that to happen in the District Court?
Howard Trapp: Yes it does.
Speaker: The very procedure you are criticizing in other --
Howard Trapp: Well, yes it does, but the Guam Supreme Court, if you lack impartiality in the Appellate Division of the District Court, you still get another bite of the apple and that is to say you get off by the Ninth Circuit.
Thurgood Marshall: Is there any of these in the record?
Howard Trapp: As to the representations I am making to the Court, no. It is not because --
Thurgood Marshall: Well, how can I take your word against people of Guam who spoke through their Legislator including you, right? How can I do that?
Howard Trapp: I do not think it is necessary, because I think what I am really saying is really none of us is here today to decided whether the Guam is ready for this step, the ultimate question of this case. Because no evidence is taken at the Trial Court level on this point, the only question of course, is one of statutory construction.
Thurgood Marshall: There is nothing in the statute that prevents it, nothing.
Howard Trapp: There is nothing in the --
Thurgood Marshall: Not one word that I could find.
Howard Trapp: Mr. Justice Marshall the problem is that there is nothing in the statute which authorizes it and it is a uniform rule that the territorial legislature cannot do what is not authorized by the Congress because only what the Congress --
Thurgood Marshall: Where do you get that from? They have given broad authorization, the language of my brother Rehnquist is also broad.
Howard Trapp: Well, I suggest you that you simply say that the Guam Legislature can determine what appellate jurisdiction that District Court will have is not broad authorization to go off and create other courts. I submit to you that it is the suggestion by the Congress that that would be the limit of the power that the legislature would have to create an appellate situation.
Thurgood Marshall: What is specifically in the Constitution gives us authority to tell Guam that they cannot do it? I thought the Constitution gave Congress that right, I do not think it gave us the right.
Howard Trapp: Well, what we are here today to do is to try to decide whether Congress has done that or not. The Constitution tells Congress that it has plenary powers over the territories. It has complete control of the territories and because of that a number of courts have held that the territories have only such powers as expressly delegated by the Congress to the territories.
Thurgood Marshall: Well, if there is any doubt, who should it be in favor of?
Howard Trapp: Oh, it should definitely be in favor of the Congress, the Congress retaining its powers because the delegation has to be an expressed one.
Thurgood Marshall: Well, who speak for the people of Guam?
Howard Trapp: Today before this Court I suppose that the Attorney General is speaking for the people of Guam but --
Thurgood Marshall: What legal argument do you give us that says he is wrong, other than your argument that they will go well within --
Howard Trapp: Well, the legal argument I gave you Mr. Justice Marshall is the argument that I made when I have first bought this up in Agana Bay case without getting involved with these other questions that we are involving today. I simply asked the District Court to read that statute and it is the statute itself that is the basis of our argument, and I care for reading of it, I submit it to you it does not give the Guam Legislature the authority to transfer that jurisdiction or to create other Appellate Courts.
Warren E. Burger: I think you are using your colleague?s time now.
Howard Trapp: I think that is right. Thanks.
Warren E. Burger: Mr. Ferenz.
Walter S. Ferenz: Mr. Chief Justice and may it please the Court. I welcome the opportunity to carry on the discussion that we previously had with Mr. Trapp. When the question was first raised here I was equally shocked as Mr. Trapp that there would be no right of appeal in Guam where this Court to affirm and strike down the Supreme Court of Guam, and I quite agree with Mr. Trapp?s views on the subject matter of that very point. To answer Mr. Justice Marshall I would say this that the Article VI Section 3 provision of the Constitution, which grants plenary power to the Congress to control the Territory of Guam, is the authority that this Court needs. I suggest and it has never been before this Court or any other Court so far as I know, if Congress were to expressly grant to Guam the right to contain its own appeals that that might be construed as an invalid delegation by Congress of its plenary powers.
Speaker: Do you mean that if Congress were to authorize Guam to have appeals to the Supreme Court of Guam and no further appeals to any Article III Court or did I misunderstand?
Walter S. Ferenz: No, I suggest that is an argument that could be scholarly made.
Speaker: How would you reconcile that with the cases which you have cited in your brief on Page 35, where territorial or appeals from territorial courts in the Western State 54;01 to this Court were limited to $2000 or $3000 in amount. Now, if your controversy was not more than $2000 and you are appealing from the Supreme Court of Washington, you could not get to an Article III Court.
Walter S. Ferenz: The only thing that I can answer that is that those provisions may have been invalid under that argument. To develop the argument let us review the Elective Governor Bill of the Guam. Before the Elective Governor Bill, the Governor of Guam was appointed by the President, and at that time the laws of Guam were subject to annulment by Congress after one year or within one year period. Now, since the Elective Governor Bill has been in effect Congress has expressly said, ?we reserve the right to annul any law of Guam. In effect, they have given Guam something but they have taken it back. So when we are talking about self determination for Guam, we are really not talking about self determination in the true political sense. Guam is an unincorporated --
Speaker: Does that suggest that Congress could nullify this very statute?
Walter S. Ferenz: That is correct. The statement is very clear and very precise. Now, Guam was set up in a traditional sense of three equal branches of government and, if we are to say that the Guam judiciary is without the control of congress, that is, congress says, ?You may create your own judiciary and we have no control over it?. But we have recognized that we have to control the laws of Guam on the Executive Branch, then I say that we do not have an equal division of our branches of government.
Speaker: But that is for Congress to decide and determined.
Walter S. Ferenz: That is Correct, and I think that by virtue of the elective governor provision they have determined that self-determination for Guam is still a limited concept.
Speaker: But doesn?t that just mean that no matter how we decide this case, tomorrow Congress can change that decision, whichever way we go?
Walter S. Ferenz: Exactly, and I intended to conclude my remarks by suggesting to the Court that the most reasonable thing to do is to leave matter status quo that is as the Ninth Circuit determined it. We will have a court system that has proven itself over the past. The Ninth circuit has played an important part in the laws of Guam and its progress.
Speaker: Mr. Ferenz, the question is to what is ?status quo? here; the Ninth Circuit has to set the status quo.
Walter S. Ferenz: But by status quo I mean before the Court Reorganization Act -- what I am saying is that if the Court were to affirm, we would have a orderly process for litigants to take appeals in the important cases to the Ninth Circuit. And Congress will have an opportunity as it stated before in the Con-Con Act or in some other later time to seriously consider the basis for Guam?s judiciary and self determination.
Speaker: How far is it geographically from Guam to the West Coast of United States?
Walter S. Ferenz: Well it is about 9000 miles, from the West Coast, 6000.
Speaker: Excuse me, West Coast of the United States is Guam.
Speaker: Well this is the Ninth circuit. I was talking about the Ninth Circuit Court of Appeals.
Walter S. Ferenz: It is about 6000 miles, it is about 14 hours.
Speaker: About 6000 miles. How many lawyers are there in Guam?
Walter S. Ferenz: About 55 or 50 lawyers, private practice plus government attorneys.
Speaker: And the total population again, a hundred??.
Walter S. Ferenz: 100,000 roughly. But bear in mind that the Ninth Circuit sits every year in Hawaii, and they have sat once in Guam, and we understand the indications are they will go back.
Speaker: Well now, I think they would.
Walter S. Ferenz: Well, I think, in conclusion, I can not add anymore, and I think that this Court has taken a proper step in reviewing the matter and should take it to Congress. I have said in the amicus brief that I feel that the language that has been used in unfortunate. It really has not clarified anything for us. I agree with Justice Rehnquist when I first read the statute, when my brother at the Bar first took his attack at it, I was wondering why he was taking on it. It just seemed to me to be so self evident, but if you reread it and consider it with the legislative material that we have at the beginning of Guam?s organic history; then it becomes clear to me that we do not have a mandate from Congress that Guam can do what it wants.
Speaker: Well, perhaps no one over on the other side of the (Inaudible) here read it before they enacted this statute.
Walter S. Ferenz: I think that is entirely possible. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.