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A Ninth Circuit U.S. Court of Appeals visit to Guam and the Northern Mariana Islands ended with a rebuke Monday by the U.S. Supreme Court. With a 5-4 vote, the high court vacated an appeal decided by the Ninth Circuit following a 2001 island-hopping visit, during which the court invited federal judges from each territory to help review each others’ decisions. The problem is, territorial judges are not Article III judges. “Construing the relevant statutory provisions together with further aid from historical usage, it is evident that Congress did not contemplate the judges from the Northern Mariana Islands to be ‘district judges’” eligible to participate on appellate court panels, Justice John Paul Stevens wrote. “It necessarily follows that the appointment of one member of the panel deciding petitioners’ appeals was unauthorized.” The Supreme Court unanimously agreed that the Ninth Circuit shouldn’t have invited their participation. The four dissenters wrote separately to argue that the error did not substantially affect the defendants’ rights, especially since they didn’t raise any objections to the panel. The decision also means that judges from other U.S. territories — the U.S. Virgin Islands, for example — cannot sit on panels. It also likely means that other non-Article III judges — bankruptcy judges, for example — won’t be allowed to sit either. Federal district court judges, as well as appellate judges from other circuits, are eligible. During its island trip, the Ninth Circuit heard a total of five cases. U.S. District Judges Alex Munson and John Unpingco traded places as the third members of a panel that included Chief Judge Mary Schroeder and Senior Judge Alfred Goodwin. The underlying drug importation cases in Nguyen v. United States, 03 C.D.O.S. 4845, and a companion case, Phan v. United States, will now go back to the Ninth Circuit for what Stevens called “fresh consideration.” Guam solo practitioner Howard Trapp, who represented Khanh Phuong Nguyen, said he hoped that choice of words means a new panel will be drawn. On the merits, the Ninth Circuit unanimously upheld his client’s conviction. “What we want to do is win the appeal, of course. My client is not a constitutional lawyer and has no interest” in who can sit on the federal appellate courts, Trapp said. The decision caused one of the oddest lineups in recent memory. Stevens’ majority opinion was joined by Justices Sandra Day O’Connor, Anthony Kennedy, David Souter and Clarence Thomas. Chief Justice William Rehnquist wrote the dissent, joined by Antonin Scalia, Ruth Bader Ginsburg and Stephen Breyer.

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