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This term, the U.S. Supreme Court will hear a case that comes to them from as far away as any other they’ve heard — Guam. But this one may as well have come out of left field. In Nguyen v. United States, 01-10873, the petition for certiorari raises an issue that was never before the 9th U.S. Circuit Court of Appeals panel that heard the case. That’s because the panel itself is the issue; in particular, whether it was legally constituted. First, some background. For several years the 9th Circuit has been hearing cases in various locales in the circuit, in addition to its normal stops in San Francisco, Seattle and Pasadena. The move was partly in response to criticism that the San Francisco-based court was out of touch with some of its more remote states. In February 2002, the 9th Circuit’s tour reached its two most remote stops — the U.S. territories of Guam and the Northern Mariana Islands. Chief Judge Mary Schroeder and Senior Judge Alfred Goodwin arrived from the mainland. For the third member of each panel, the 9th Circuit tapped the islands’ two federal judges to sit by designation. Guam’s John Unpingco would sit in the Northern Mariana Islands, helping to decide appeals from that island and its judge, Alex Munson. Munson would do the same with Unpingco’s cases in Guam. That’s where the trouble began. It turns out that federal judges in the U.S. territories, including Munson, Unpingco and two from the U.S. Virgin Islands, aren’t judges under Article III of the Constitution. And Guam lawyer Howard Trapp will argue that everyone is entitled to a panel comprising exclusively Article III judges. “The point is they don’t have lifetime tenure and they don’t have guaranteed salary,” Trapp said. That the Supreme Court even took the case is surprising, and may have something to do with Trapp’s name being on the petition. Not many lawyers in Guam can say they’ll be making their third trip to the U.S. Supreme Court this February. His first trip was 25 years ago, when Trapp became one of the few lawyers who can say he overturned a supreme court — not a ruling of a supreme court, but the court itself. With a 5-4 vote in Guam v. Olsen, 431 U.S. 195, Trapp got the U.S. Supreme Court to dissolve the Supreme Court of Guam, newly formed by the island’s legislature. “I shot down a supreme court,” Trapp said. “For 21 or 22 years we didn’t have a supreme court, which the entire bar loved.” Now he has a new challenge, one that will help define the power of non-Article III judges. In almost all respects, territorial district court judges have the same powers as U.S. district court judges. They hear criminal and civil cases, they can appoint magistrates and receive the same retirement benefits. But they don’t have lifetime appointments — federal territorial judges serve 10-year terms. Although it clearly distinguishes them from Article III judges, nowhere in the U.S. Code does it say whether territorial judges can be appointed to the 9th Circuit panel and, theoretically at least, make law that reaches beyond the confines of their respective islands. It doesn’t say they can’t, though. “The Congress has authorized no judge other than an Article III judge,” wrote Howard Trapp in his petition. “The 9th Circuit is designating non-Article III judges. Clearly the practice should cease.” His case has been consolidated with Pham v. United States, 02-5034, which was also argued in tandem at the 9th Circuit. The defendants in both cases were convicted of conspiracy to distribute methamphetamine. When asked to reply by the U.S. Supreme Court, Solicitor General Theodore Olson argued that the defendant, Khanh Phuong Nguyen, waived any right to an Article III-only panel by not objecting. The 9th Circuit didn’t bother to hear oral argument on the case or issue a published opinion, an indication that on the merits, at least, the case is straightforward. Furthermore, the U.S. Supreme Court is hearing fewer cases than it used to, and in doing so is placing greater emphasis on those it does hear. But any ruling in Nguyen will affect a grand total of five cases — those the 9th Circuit heard during its South Pacific swing. The only other court which could possibly be affected by a ruling is the 3rd Circuit, which has appellate authority over the Virgin Islands. But the 3rd Circuit doesn’t use Virgin Island judges on its panels, said a staff attorney there. So is the Supreme Court picking up a question that is almost entirely academic? Yes, said Thomas Goldstein of Washington, D.C.’s Goldstein & Howe, who tracks the Supreme Court closely. “It’s sort of a fundamental question of federal courts. Who can you stick on an appellate panel?” Goldstein said. “It might not happen again for a hundred years, but they’re going to decide the question.” Hastings College of the Law professor Vikram Amar said the question could also affect other federal judges who don’t have Article III status — for example, bankruptcy judges. A Sidley Brown Austin & Wood lawyer helping Trapp write his brief said a ruling could open the door for other non-Article III judges — be they bankruptcy or administrative judges or anyone else who doesn’t have lifetime tenure and is still beholden to certain masters — to begin shaping U.S. jurisprudence. Trapp would be happy to get the Supreme Court to prove the 9th Circuit wrong and get his client out of jail. The circuit court has been on a “frolic in detour when it comes to the Supreme Court,” Trapp said. “And this will continue until they put a stop to it.”

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