# Petition — Olsen v. Territory of Guam

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 960

## Text

In the

Supreme Court

OF THE

United States

(i

‘roper TERM, 1975

Epomunp J. OLSEN,

Petitions Fe

Vs.

THe Propre ov tHE Terrirory or GuAM,

Respondent.

— — a
wae —— —— --- - —

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals
for tlie Ninth Circuit

—_— OC FO

HowaArpD TRAPP,
Post Office Box 3367

Agana, Guam 96910

Attorney for Petitioner.

PERNAU - WALSH PRINTING CO. -

562 MISSION STREET - SAN FRANCISCO, CA 94105

bl ad
7

)

Subject Index

Page

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ee se ehe cubes enenss ?
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ES Dg bu ain nude dco awheed &6 ; Si eunaninaas 2
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Bempamttem Th Geetrees COMES 2. occ cc cae cccccccccceccs 6

Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme
Court of Guam, No. 75-1059 (9th Cir., Jan. 14, 1976)
(footnotes by court of appeals) ...............00. 7

The question whether the local law creating the
Supreme Court of Guam is consistent with the
Federal Organie Act of Guam is of such impera-
tive public importance as to require immediate
es ee ED Ga no Sbcnecatedetédevars 28
a. The number of appeals pending in the Appellate

Division of the Federal District Court of Guam

IED 5 did td dade ccessrbsondcdavensens 28
b. An additional thirty-nine appeals are pending
in the Supreme Court of Guam .............. 29

e. Only this court can end Guam’s judicial chaos.. 30

d. The petition for rehearing the Agana Bay case
EE 6. d ae bates ccs 6 kedsandsuaeeee< 32

e. The decision in Agana Bay makes prosecuting
the present case in the Court of Appeals an

ee Oe SE bcc cacacebesbhededdenceues 33
f. Review of the Agana Bay ease in this court will
Ee EE 5.0 60 640:06655400005600bbEeb ab K an 33

g. Agana Bay holds that the Guam Legislature has
abolished this court’s jurisdiction to review
I te ok ou be hl ee Eek 34

Pn) i... i eneatecebeei whos seu bkeeeeeeusiéube 34

Table of Authorities Cited

Cases Pages

Agana Bay Dey. Co. (Hong Kong) Ltd. v. Supreme Court

of Guam, No. 75-1059 (9th Cir. Jan. 14, 1976) ....7, 32, 33, 34
Statutes
Guam Code of Civil Procedure:

NONE YEAR See a pA SEN RD, he Dee aE EEE 3
Negara ee bain eae oe ne ery ar yee papa ee 4
a ee eees 4

28 US.C.:
SS ©, eae rr rr sy eo re reer ree 2
ed cs aaa chases enseeeedseneweun 2

48 U.S.C.:
a et ad ee ee cane ene 2
i Rok hd ees at ae ke chee eke 2

| Iu the Supreme Court

OF THE

United States

OcToBER TERM, 1975

No.

EpMUND J. OLSEN,
Petitioner,
Vs.
THE PEOPLE OF THE TERRITORY OF GUAM,
Respondent.

PETITION FOR WRIT OF CERTIORARI
] to the United States Court of Appeals
; for the Ninth Circuit

Petitioner respectfully prays that a writ of certio-
rari issue to review the order of dismissal of the
appellate division of the federal District Court of
Guam entered in this case on March 9, 1976.

OPINIONS BELOW

No opinion has been delivered in any court below.

2

JURISDICTION

An order of dismissal for want of jurisdiction made
by the appellate division of the federal District Court
of Guam was entered on March 9, 1976. On March
10, 1976, petitioner appealed from the order of dis-
missal. On March 17, 1976, his appeal was docketed
in the United States Court of Appeals for the Ninth
Circuit as No. 76-1557, and the clerk filed the record
on appeal on March 18, 1976. No judgment or decree
has vet been rendered in the court of appeals, and
jurisdiction to review this case by writ of certiorari
before judgment is given in the court of appeals is
conferred on this court by 28 U.S.C. $$ 1254(1),
2101(e).

QUESTION
Is the local law creating the Supreme Court of
Guam consistent with the federal Organic Act of

Guam ?

—_—--

STATUTES INVOLVED
48 U.S.C. § 1423a:

The legislative power of Guam shall extend to
all subjects of legislation of local application not
incousistent with the provisions of this Act and
the laws of the United States applicable to Guam.

48 U.S.C. § 1424(a) :
There is hereby created a court of record to be
designated the “District Court of Guam,” and

the judicial authority of Guam shall be vested in

the District Court of Guam and in such court or
courts as may have been or may hereafter be

"
Vv

established by the laws of Guam. The District
Court of Guam shall have the jurisdiction of a
district court of the United States in 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
by the legislature to other court or courts estab-
lished by it, and shall have such appellate juris-
diction as the legislature may determine. The
jurisdiction of and the procedure in the courts
of Guam other than the District Court of Guam
shall be prescribed by the laws of Guam. Appeals
to the District Court of Guam shall be heard and
determined by an appellate division of the court
consisting of three judges, of whom two shall
constitute a quorum. The judge appointed for the
court by the President shall be the presiding
judge of the appellate division and shall preside
therein unless disqualified or otherwise unable to
act. The other judges who are to sit in the appel-
late division at any session shall be designated
by the judges assigned to the court from time to
time pursuant to section 24(a) of this Act. The
concurrence of two judges shall be necessary to
any decision by the District Court of Guam on
the merits of an appeal but the presiding judge
alone may make any appropriate orders with
respect to an appeal for want of jurisdiction or
failure to take or prosecute ii in accordance with
the applicable law or rules of procedure.

Guam Code Civ. P. § 51:
The Courts of justice of the territory of Guam
consist of the Supreme Court and the Superior
Court.

4 5

Guam Code Civ. P. § 62: ns Pe STATEMENT OF CASE
The Supreme Court shall have jurisdiction of Nature of case.
appeals from the judgments, orders, and decrees -¢ a In the Superior Court of Guam
of the Superior Court in criminal cases... and cg Criminal No. 84F-75
in civil causes and proceedings .... The Supreme
Court shall have jurisdiction of ali appeals aris- : . ;
ing from the judgments, final decrees or final The People of the Territory
orders of the Superior Court or any division of Guam,
thereof. Plaintiff,
vs. (
Guam Code Civ. P. § 83: a ph en Edmund J. Olsen,
The Superior Court shall have original juris- Defendant. J
diction in all cases arising under the laws of 7
Guam, civil or criminal, in law or equity, regard- [Filed Oct. 28, 1975]
less of the amount in controversy, except for
causes arising under the Constitution, treaties or NOTICE OF APPEAL
laws of the United States, and any matter involv-
ing the Guam Territorial income tax. Notice is hereby given that defendant hereby
; . appeals to the District Court of Guam and to the
Supreme Court of Guam and to each of them from
the final judgment entered in this proceeding on the
: . 28th day of October, 1975.
Dated at Agana, Guam, this 28th day of October,
1975.

‘s/f Edmund J. Olsen
Edmund J. Olsen

Disposition in district court.
In the District Court of Guam
Appellate Division
Undocketed

The People of the Territory
of Guam,
Plaintiff-Appellee,
vs.

Edmund J. Olsen,
Defendant-A ppellant. J

4

[Filed March 9, 1976]
ORDER

On authority of Agana Bay Development Co. (Hong
Kong) Ltd. v. Supreme Court of Guam, No. 75-1059

(9th Cir., Jan. 14, 1976),

Iv Is Orperep that this appeal be and the same

hereby is dismissed for lack of jurisdiction.

Dated at Agana, Guam, this 9th day of March,

1976.
s/ Cristohal C. Duenas,

Cristobal C. Duenas, Judge,

District Court of Guam

7

Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of
Guam, No. 75-1059 (9th Cir., Jan. 14, 1976) (footnotes by

court of appeals) :
United States Court of Appeals
for the Ninth Cireuit
No. 75-1059

Agana Bay Development Company ’
(Hong Kong) Ltd.,

Petitioner-A ppellee,

Vs.

Supreme Court of Guam, r
Respondent-A ppellant, |

Dillingham Cerporation
of the Pacifie, |
Real Party in Interest. ;

[January 14, 1976]

Appeal from the District Court of Guam
in and for the Territory of Guam

OPINION
Before: Carrer, Goopwin and KENNEDY,
Cireuit Jndges.
JAMES M. Carrer, Circuit Judge.

In this ease we hold that the Territory of Guam is
authorized to eliminate the appellate jurisdiction of
the District Court of Guam, pertaining to local, non-
federal issnes, by transferring that jurisdiction to a
court created by the territorial legislature. The Court

8

Reorganization Act, Guam Public Law 12-85 (Janu-
ary 16, 1974), changes the designation of the prin-
cipal local court created by the Territory from “Is-
land Court” to “Superior Court.” The Act also creates
a Supreme Court of Guam and provides, effective
July 1, 1974, that the supreme court has exclusive
jurisdiction of appeals from the superior court. For-
merly, all appeals from the Island Court had been
taken to an appellate division of the District Court
of Guam.

Agana Bay Development Company, a petitioner in
this action, was the defendant in a prier suit com-
meneced in the superior court, concerning the validity
of certain liens asserted by plaintiff Dillingham Cor-
poration of the Pacific. Partial summary judgment
was granted for the defendant Agana Bay, and
Dillingham appealed to the Supreme Court of Guam.
Agana Bay then filed this action in the District Court
of Guam, seeking a Writ of Prohibition directing the
supreme court to cease all appellate proceedings in
the mechanics lien case. In the district court proceed-
ings the respondent supreme court was represented
by the Attorney General of Guam,

The distriet court issued a peremptory Writ of
Prohibition pursuant te 28° U.S.C. § 1651, perma-
nently restraining the Supreme Court of Guam from
proceeding further on the appeal of the mechanies
lien ense, The court also held invalid those portions
of the Conrt Reoreannization Aet which divested the
district conrt of its arvellate inrisdietion and which
evonted the Srereme Cort of Guam, The resnondent

9

supreme court now appeals to this court, which has
jurisdiction of appeals from all final decisions of the
District Court of Guam. 28 U.S.C. §§ 1291, 1294(4).

As an unincorporated territory of the United
States, Guam is subject to the plenary authority of
Congress to provide for its government under article
LV, section 3 of the United States Constitution. Guam
acquired its present status as an organized territory
in 1950 when Congress enacted the Organie Act of
Guam. Ch. 512, 64 Stat. 384. That statute established
a territorial government with an elected legislature
and a governor appointed by the President. In 1968
the Organic “A«t was amended to provide for local
election of the Governor. Pub. Ll. No, 90-497, 82 Stat.
842. Even in its original form, the Organie Act dele-
gated a large measure of self-government to the people
of Guam. It has functioned as a constitution for
Guam, outlining the scope of the territorial govern-
ment’s authority. And the territorial government of
Guam can act only to the limits of that Organie Act,
just as the national government must observe the lim-
its of the Constitution. Bordenclli v. United States,
233 F.2d 120, 122 (9 Cir. 1956).

The provisions of the Organie Act of 1950 estab-
lished a judicial system for Guam but also gave the
territorial government. significant responsibility for
adapting that system to its changing needs. Section
29 of the Organic Act established the “District Court
of Guam” as a court of record, with original juris-
diction both in cases arising under federal laws and
in all other cases, and appellate jurisdiction as to

10

local, non-federal issues, as determined by the Guam
Legislature. The legislature was also given power to
create other courts and define their procedure and
jurisdiction, and to transfer original jurisdiction
from the district court to these other courts, except
in cases arising under federal law. Section 23 pro-
vided for appeals to the Ninth Circuit and Supreme
Court from certain decisions of the District Court of
Guam. Section 24 provided for the appointment of
the district judge for a limited term and also allowed
the assignment of federal judges to the district court
when necessary for the proper dispatch of its busi-
ness.

Pursuant to the authority delegated in the Organic
Act, the first Guam Legislature in 1951 adopted im-
plementing legislation for the territorial judicial sys-
tem, Public Law 17. The provisions of this act re-
mained substantially unchanged through 1973.’ Basi-
cally, they provided a judicial system with four tiers
of courts. Commissioners’ courts had original juris-
diction over petty criminal cases under local law.
Guam Code Civ. Proc. § 112 (1970). The police court
had original jurisdiction of certain misdemeanor crim-
inal eases under local law, and appellate jurisdiction
for de novo determination of cases decided by the

1See Pub. L. No. 29, 24 Guam Legis., Guam Code wiv. Proe.
§§ 51-278 (1953) (new enactment of civil procedure code) ; Guam
Code Civ. Proce. §§ 51-282 (1970 & Supp. 1973). Major changes
occurring after the adopting of Publie Law 17 inelude: the addition
in 1952 of Title V on the juvenile court, id. §§ 250-82; changes in
ti.e method of appointing and removing territorial judges, id. §§ 81,
90-99: alterations in the police court’s jurisdiction, id. §$ 101-038;
aud changes regarding the Judicial Couneil of Guam, id. §§ 121-23.

°@

11

-

commissioners’ courts. 7d. §§ 102, 104. The Island Court
was a court of record with original jurisdiction, exclu-
sive of the district court, in specified matters arising
under local laws; these causes generally included mis-
demeanor criminal offenses, domestic relations, pro-
bate, and civil cases where less than $5,000 was in
controversy. Jd. § 82. The Island Court also had appel-
late jurisdiction over judgments of the police court
imposing imprisonment or a fine in excess of $25. Id.
§ 83. The District Court of Guam retained its original
jurisdiction over cases arising under local laws except
those over which such jurisdiction was transferred to
the Island Court by section 82. The appellate juris-
diction of the district court was defined to inelude a
broad range of decisions of the Tsland Court in both
civil and criminal eases. Td. § 63.2

At the very outset it appeared Guam did not desire
appeals from local courts to be heard by a single
district judge. Public Law 17 stated that the District
Court of Guam should exercise its appellate jurisdic-
tion in a division consisting of the district judge as
presiding judge and two other judges appointed by
him from among the judges designated pursuant to

2Section 63 refers to other provisions of Guam law to define
specific rights of appeal. See, e.g., Guam Penal Code §§ 1237-38
(rights of appeal in criminal eases; defendant may appeal from
any final judgment of conviction); Guam Code Civ. Proe. § 936
(all others in civil eases are uppealable unless expressly made final
elsewhere). In Bank of America v. Webster, 439 F.2d 691 (9 Cir.
1971), we held that § 63, containing a specifie enumeration of ap-
pealable cases, controlled the more general language of § 936 in
affirming the district court’s refusal of jurisdiction for an attempted
appeal from a writ of execution issued in supplementary proeced-
ings after a default judgment.

12

section 24 of the Organic Act.* This provision was
understood as an implementation of section 22(a) of
the Organic Act. See Liban v. Government of Guan,
115 F.Supp. 519, 520-21 (D. Guam, App. Div. 1953).

Major changes were made in the Guam _ judicial
system when the Court Reorganization Act was
adopted in 1974. The chapter of the Civil Procedure
Code dealing with the District Court of Guam was
repealed. A new chapter was adopted in its place,
establishing a Supreme Court ef Guam with essen-
tially the same appellate jurisdiction as previously
held by the district court over local, non-federal issues.
The Act also created a Superior Court of Guam to
replace the former Island, police, and commissioners’
courts. The superior court was made a court of gen-
eral original jurisdiction in all cases arising under
the laws of Guam, but not for eases arising under
federal law or pertaining to the Guam territorial in-
come tax.*

8Section 24 originally authorized the Chief Justice of the United
States to assign federal judges to the District Court of Guam when
“necessary for the proper dispatch of the business of the court.”
In 1958 this section was amended to authorize the Chief Judge of
the Ninth Circuit. in addition, to designate federal judges from the
Ninth Cireuit and judges of the Island Court of Guam or the High
Court of the Trust Territory of the Pacifie Islands. Pub. L. No.
85-444, 72 Stat. 179.

4Sinee the Court Reorganization Act repealed the former previ-
sions of the Code dealing with the original jurisdiction of the dis-
trict court and the Island Court, Guam Code Civ. Proe. §§ 62, 82
(1970), there is no express prevision that the superior court’s
original jurisdiction is to be exclusive of the distriet court. Tow-
ever, the district court only has original jurisdiction in cases other
than federal questions, if not “transferred” to courts created by
the Guam Legislature. 48 U.S.C. § 1424(a) (1975). It appears that
the Court Reorganization Act intended to transfer exclusive juris-
diction of all loeal matters, ineluding serious crimina! offenses and
civil cases with more than $5,000 in controversy, to the superior

court.

13

The intent of the Court Reorganization Act was
presumably to establish for Guam a local judicial sys-
tem independent of the federal courts. The question
raised on this appeal is whether Congress has author-
ized Guam to undertake such a reorganization, when
the effect is to divest the District Court of Guam of
its appellate jurisdiction as to local, non-federal ques-
tions. The language of section 22 of the Organic Act
is most pertinent to this inquiry:

“There is created a court of record to be desig-
nated the ‘District Court of Gaum,’ and the judi-
cial authority of Guam shall be vested in the
District Court of Guam and in such court or
courts as may have been or may hereafter be
established by the laws of Guam. The District
Court of Guam shall have the jurisdiction of a
district court of the United States in 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
by the legislature to other court or courts estab-
lished by it, and shall have such appellate juris-
diction as the legislature may determine. The
jurisdiction of and the procedure in the courts of
Guam other than the District Court of Guam
shall be prescribed by the laws of Guam.”

The first sentence of section 22 states that the judi-
cial power in Guam shall reside in a “district court”
and in “such court or courts as may have been or may
hereafter be established by the laws of Guam.” The
authority given to the Guam legislature is not limited
to creating inferior courts.

14

The overstuffed sentence which follows has to be
read in light of the power Congress has just given
the Guam legislature to establish its own courts. When
so read, it appears that Congress intended the follow-
ing: First, with respect to federal cases, it tracked
the jurisdiction of the district court to Article Three
of the United States Constitution [The judicial Power
shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United
States, and Treaties made... .” U.S. Consr. art. ITT,
§ 2]. Second, as to local, non-federal cases, it gave the
district court original jurisdiction in all “other causes”
until the Guam Legislature provides otherwise under
the power created in the first sentence. Third, it let
the district court “have” such appellate jurisdiction
as the legislature may determine. This third clause
says that the Legislature can give appellate jurisdic-
tion to the Guam District Court. By the same token
it would seem to follow that what it can give, it can
take away and transfer to its own courts, which courts
it was empowered to create.

It is not significant that section 22 expressly states
that original jurisdiction of non-federal cases may be
transferred to other courts, but the section does not
expressly state that appellate. jurisdiction may also
he transferred. This sentence in section 22 is part of
the Organic Act of 1950, 48 U.S.C. SS 1421-24 (1975),
which established the territorial government for
Guam. At that time Congress apparently presumed
that Guam would subsequently create its own inferior
courts for non-federal matters, but would give

appellate jurisdiction over these inferior courts to the

15

district court. In fact, appellate jurisdiction was
given by the Legislature to the district court for
twenty-three years. The long standing existence of
appellate jurisdiction in the district court compelled
the creation of the procedures in the 1958 amendment
to 48 U.S.C. § 1424(b) (1975).

However, the granting of appellate jurisdiction by
the Guam Legislature to the district court was not
compelled by the statute. To the contrary, the crea-
tion of Guam’s own court svstem was authorized. We
conclude that Guam’s power to transfer appellate
jurisdiction to its own Supreme Court arises from its
power to create appellate courts and its power to de-
termine the appellate jurisdiction of the distriet court
as to local, non-federal questions. We hold that Con-
gress authorized the Legislature to create, for inon-
federal questions, any kind of appellate system it
saw fit.

We also note that no procedure is given for review
or appeal of Guam appellate courts decisions to an
Article Three Court. However, even before the ere-
ation in 1974 of the Guam Supreme Court, the Guam
Legislature had the power to determine the extent of
appellate jurisdiction by the district court over Guam
inferior courts. 48 U.S.C. § 1424(a) (1975). Thus be-
fore 1974 the legislature could extinguish the right to
appeal to an Article Three Court.

Also, it is well established that a right of appellate
review is statutory. did not exist at common law. and
is not required by the United States Constitution.
Francisco Enterprises, Inc. v. Kirby, 482 F.2d 481,

16

484 (9 Cir. 1973), citing Griffin v. Illinois, 351 U.S.
12, 18 (1955). Furthermore, if the hiatus in appel-
late review needs to be filled, Congress can provide
for it; in fact, a bill to that effect has been introduced
in Congress. H.R. 4581, 94th Cong., Ist Sess. (March
10, 1975).

We do not base our opinion on Corn v. Guam Coral
Co., 318 F.2d 622 (9 Cir. 1963). In Corn we ruled that
the 1958 amendments to the Organie Act did not create
a new appellate body, but only formalized the appel-
late procedures already enacted by the Guam Legis-
lature in 1951. Congress recognized that Guam had
validly exercised its powers in creating appellate ju-
risdiction in the district court over local, non-federal,
cases.

However, Corn did not hold that Guam could have
independently created its own appellate courts which
were not subject to review by the district court. Such
an issue was not reached in Corn. Therefore we find
Corn not on point and instead rely on the language in
the Oreanic Act, 48 U.S.C. § 1424(a) (1975).

The lower court in this case relied on “congres-
sional intent” in finding the 1974 legislation establish-
ing a Guam supreme court invalid. It stated that
prior to enacting the Organic Act in 1950, the United
States House of Representatives. considered a_ bill
which would have provided Guam with a sipreme
court whose decisions would have been appealable to
an Article Three Court. See 2 U.S. Cong. Serv. 2840,
9847 (1950). As stated in a letter of May 3, 1949,

from the Seeretary of the Interior to the President

17

of the Senate, “[t]he judicial branch would consist
of a supreme court, with a single justice appointed by
the President, with the advice and consent of the
Senate for a 6-year term and of such inferior courts
as the legislature might create.” [Emphasis added].
See 2 U.S. Code Cong. Serv. 2847 (1950), letter from
J. A. Krug, Secretary of the Interior to the Hon.
Alben W. Barkley, President of the Senate.

This bill was relied upon by the district court for
the proposition that, “Congress intended to supervise
the judicial branch of government in Guam.” How-
ever, when the Organic Act was finally passed by Con-
gress, the provisions relating to a Congressionally cre-
ated supreme court were eliminated.’ The refusal to
enact the bill leads to an interference directly contrary
to that drawn by the district court—that is, Congress
did xot intend to prohibit the creation by Guam of

‘appellate courts nor did Congress intend to retain con-

trol over Guam’s appellate courts with respect to local.
non-federal cases.

A comparison of Guam with other territories shows
that the Guam Organie Act is unique and it delegates
the widest powers of any of the territories to the
legislature for the creation of appeilate courts. For
example, prior to statehood, Alaska had no supreme
court. The judicial authority was vested in district
court. Act of June 6, 1900, ¢. 786 § 4, 31 Stat. 322: 48

usiad «

5When the companion bill to H.R. 7273, S. 1892, came before the
United States Senate, amendments were proposed which abandoned
the concept of a congressionally created Supreme Court of Guam.
The Senate adopted the amendments. Then the House of Repre-
sentatives concurred in the amendments. See 2 U.S. Code Cong
Serv. 2840, 2842 (1950). -

18

U.S.C. § 101 (1952). Alaska could not create courts
which were independent of those created by Congress
and from which there was neither appeal nor super-
vision. In re Munro, 1 Alaska 279, 285 (1909).

For the Territory of Hawaii, the judicial power
was vested in “one supreme court, circuit courts, and
such inferior courts as the legislature may from time
to time establish.” (emphasis added) April 30, 1900,
e. 330, § 81, 31 Stat. 157; 48 U.S.C. ¢ 631 (1952). The
Hawaiian Legislature had no authority to create any
but infevior courts. Territory v. Miguel, 18 Hawaii
402, 404 (1907). Other provisions of the Act of 1900
governed the appointment, tenure, and salaries of the
judges on the supreme court. See 48 U.S.C. §\ 632-34
(1952).°

Under the first organic act of Puerto Rico, a su-
preme court was provided for; the justices were ap-
pointed by the President. Act of April 12, 1900, ¢. 191,
§ 33, 31 Stat. 84.5 <A second organie act created a
United States District Court. The district court did
not have appellate jurisdiction over local courts, but

648 U.S.C. §§ 632 and 633 (1952), relating to the appointment
of the justices by the President, were omitted when Hawaii became
a state. The Constitution of Hawaii, art. V, §3 (1959), provides
for the appointment of the justices by the governor, with the advice
and consent of the Hawaiian Senate.

Sections 634 and 634a of 48 U.S.C. (1952), relating to the sal-
aries of the justices, were expressly repealed by Pub. L. 86-3,
$ 14(e), Mar. 18, 1959, 73 Stat. 10, effective upon the admission of
the state of Hawaii into the Union. Under the Constitution of
Hawaii, art. V, § 3, the compensation is to be preseribed by law.
See 2 U.S. Code Cong. and Admin. News, 86th Cong., Ist Sess.,
1375, 1385 (1959).

78ee 2 U.S. Code Cong. and Admin. News, 1892 (1952). This
section, as amended was repealed by the Act of July 3, 1950, «. 446,
<5(2), 64 Stat. 320, off. July 25, 1952. A Constitution of the Com-

‘
.

19

did have jv risdiction over local matters involving non-
residents. Act of March 2, 1917, ¢. 145, \ 41, 39 Stat.
965, as amended; 48 U.S.C. » 868 (1952). The legisla-
ture of Puerto Rico could not alter the jurisdiction
of the district court. [d., § 40; 48 U.S.C. 8861 (1952).

For the Virgin Islands the judicial power is vested
in a district court and “in such cowrt or courts of
inferior jurisdiction as may have been or may here-
after be established by local law.” 48 U.S.C. § 1611
(1975). The district court was expressly given “ap-
pellate jurisdiction to review the judgments and or-
ders of the inferior courts.” 48 U.S.C. § 1612 (1975).

In contrast is Guam. Congress has not created a
supreme court, nor has it acted to regulate any such
court which Guam may create. In Hawaii and Puerto
Rieo, on the other hand, Congress has regulated the
appointment, tenure, and salaries of supreme court
justices.

Secondly, Guam was given the power to create a
court system and was not limited to creating “in-
ferior” courts. This is in contrast to the Virgin
Tslands and Hawail, which were, or are, so limited.

Thirdly, Guam was expressly given the power to
extinguish the appellate jurisdiction of the district
court over local courts, with respect to loeal, non-
federal, cases. In contrast, no other territory wa:
given such power.

monwealth of Puerto Rieo was ratified by Congress by Joint Reso-
lution. Julv 3, 1952, e. 567, 66 Stat. 327. Under the Constitution
of Puerto Rico, art. V, § 8 (1952), the judges of the supreme court
are appointed by the governor, with the advice and consent of the

senate.

20

We therefore draw the inference that had Congress
intended to prohibit the creation of appellate courts
or to bar the transferring of appellate jurisdiction
from the district court, Congress could have clearly
stated as much or could have patterned Guam after
the other territories.

We believe that the policy of leaving local matters
to courts created by local legislatures is a sound one.
Twenty-five vears have passed since Guam was an
“underdeveloped and isolated possession of the United
States”, as described by the district court. There is
nothing to indicate that Guam is incapable of estab-
lishing and operating its own appellate court with
respect to purely local matters. There is nothing in
the language or legislative history of the Organic Act
requiring the interpretation that the district court
must be the highest and only appellate court in Guam.
Rather, the only language pertaining to appellate
courts grants the Guam Legislature total authority to
transfer appellate jurisdiction over local, non-federal
eases from the district court to Guam courts.

REVERSED.

Kennoepy, Cireuit Judge, Dissenting.

In my view the Organic Act of Guam does not au-
thorize the territorial legislature to transfer the ap-
pellate jurisdiction of the District Court of Guam to a
locally-created court. Thus T would affirm the judg-
ment of the distriet court.

This ense presents 2 difficult anestion of statutory
interpretation, primarily involyine the following con-
voluted sentence in section 22(a) of the Organic Act:

The District Court of Guam shall have the juris-
diction of a district court of the United States in
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 trans-
ferred by the legislature to other court or courts
established by it, and shall have such appellate
jurisdiction as the legislature may determine.

48 U.S.C. § 1424(a). By this language the Act vests
in the district court original jurisdiction of federal
question cases and all local matters in Guam. It also
provides that the territorial legislature can divest the
district court of some or all of its original jurisdic-
tion over local matters by transferring that jurisdic-
tion to locally-created courts, thereby allowing the
local judicial system to expand its capability as liti-
gation increases. The district court would then have
appellate jurisdiction over such cases as determined
by the legislature.

My brothers acknowledged that section 22(a) does
not explicitly authorize Guam to transfer the district
court’s appellate jurisdiction to a local court. How-
ever, they find such a transfer included within the leg-
islature’s power to “determine,” and thus to extin-
guish, the appellate jurisdiction of the district court.
Moreover, section 22(a) literally empowers the terri-
torial government to establish a “eourt or courts” in
addition to the district court and to preseribe the jn-
risdiction and procedure of these other conrts: this
power is not expressly limited to “infevior” courts or
courts of original jurisdiction,

However, the Organic Act must be construed to give
force and effect to all its provisions, and no language
should be taken out of context and construed without
reference to the whole territorial system established
by Congress. Nec Carter vy. Gear, 197 U.S. 348 (1905).
I think Congress would have oe more directly had
it intended to enable the territorial legislature to sub-
stitute a local appellate court for the appellate divi-
sion of the district court. Unlike the majority, I find
it significant that section 22(a) says nothing about the
transfer of appellate jurisdiction to local courts, while
it expressly authorizes such a transfer of the district
court’s original jurisdiction. T would conclude that
such a transfer of appellate jurisdiction was not au-
thorized hy Congress.

T also do not agree with the majority that the power
to “détermine” the appellate jurisdiction of the district
cout necessarily includes the power to abolish it. I
think it was more likely intended to permit the local
legislature to decide what cases were serious enough to
he appealable. This power may be compared to that of
Congress under article TIT to regulete the appell: te
jurisdiction of the Supreme Court, Congress has never
tried wholly to eliminate the Conrt’s appellate juris-
diction, and thus we cannot tell how far this power
extends, Professor Hart has suggested it would not
permit Congress to “destroy the essential role of the
Supreme Court in the constitutional plan.” Hart, The
Power of Covgeoss to Limit the Jurisdiction of-Fed-
cyal Courts: An EBrercise in Dialectic. 66 Wary. 1.

Rev. 1362, 1365 (1953). Similarly, T wenld conclude

23

that the power of Guam to determine the appellate
jurisdiction of the district court would not allow that
jurisdiction to be entirely extinguished. Moreover, for
Guam to abolish all appellate jurisdiction would be a
wholly irresponsible legislative act, raising serious
constitutional questions. It is unlikely that Congress
intended to give the Guam legislatvre the power to
commit such an act, and such intent should not be
assumed in the absence of express language to that
effect. To rest the validity of the Court Reorganiza-.-
tion Act, as the majority does, on the assumption that
such power validly exists, is to place the Act on a most
infirm foundation.

My conclusion that Congress did not intend to au-
thorize such a transfer of jurisdiction is supported
by subsequent legislative history. In 1951, Congress
amended the Organie Act to expand the Ninth Cir-
euit’s appellate jurisdiction to all final decisions of the
district court, rather than the limited categories con-
tained in the original section 23.' In 1958 Congress
added a paragraph to section 22(a) of the Organie
Act, giving explicit anthorization for the three-jndge
appellate court procedure that had heen implemented

1Section 23 of the Organie Act originally provided for appeal to
the Ninth Cireuit from final decisions of the district court involv-
ing federal law, habeas corpus, and civil eases with $5,000 in con-
troversy; direct appeals to the Supreme Court were allowed as in
98 U.S.C. § 1252. The 1951 amendment repealed § 23, and decisions
of the District Court of Guam were made reviewable in precisely
the same manner as those of United States district courts under
28 U.S.C. §§ 1252, 1291-92, & 1294. Ch. 655 § 55-56, 65 Stet.
728-30.

24

»

by Guam Public Law 17.2 These amendments indicate
a congressional purpose to sanction a prescribed sys-
tem for federal court review of local court decisions.
Every word of the second paragraph of the amended
section 22(a) would become supertiuous if Guam could
remove the appellate jurisdiction of the district court.
This pattern of congressional approval and acceptance
‘cannot now be made completely moot by the Court
Reorganization Act.

The Court Reorganization Act makes sweeping
changes in the judicial system developed in Guam over
the previous 25 years. Prior to 1974, virtually all
significant matters were within either the original or
appellate jurisdiction of the district court, and review-
able by this court and the United States Supreme

2The amendment added the following paragraph to section 22(a) :
Appeals to the District Court of Guam shall be heard and
determined by an appellate division of the court consisting of
three judges, of whom two shall constitute a quorum. The
judge appointed for the court by the President shall be the
presiding judge of the appellate division and shall preside
therein unless disqualified or otherwise unable to act. The
other judges who are to sit in the appellate division at any
session shall be designated by the presiding judge from among
the judges assigned to the court from time to time pursuant
to section 1424b(a) of this title. The coneurrence of two judges
shall be necessary to any decision by the District Court of
Guam on the merits of an appeal but the presiding judge alone
may make any appropriate orders with respect te an appeal
prior to the hearing and determination theresf on the merits
and may dismiss an appeal for want of jurisdiction or failure
to take or prosecute it in accordance with the applicable law
or rules of procedure.
Pub. L. No. 85-444, 72 Stat. 178.

This amendment was described as “an additional paragraph rec-
ognizing and making suitable provisions for the appellate division
of the district court as it now exists under the local law.” S. Rep.
No. 1582, 85th Cong., 2d Sess.. 2 U.S. Code Cong. & Ad. News 2623
(1958). It was thought that this addition would “eliminate any
doubt as to the status of the appellate division.” Jd. at 2629.

25

Court. Under the new system, only cases “arising
under” federal law or involving the territorial income
tax remain within the (federal court jurisdiction; as
to other matters there is no appeal bevond the Su-
preme Court of Guam. important federal issues can
be presented in cases which do not “arise under” fed-
eral law. See 13 C. Wricut, A. MiLLer, & E. Coorer,
FreperaL Practice AND Proceptre § 3562 (1975). It
seems unlikely to me that Congress intended to confer
on the territorial legislature the power to eliminate
review in the federal court system of all claims raised
in the territorial courts.*

There is no evidence in the legislative history of the
Organic Act of 1950 that Congress intended section
22(a) to give the territorial legislature the option of
ereating a local supreme court having the power of

8My concern is particularly acute for residents of Guam who are
subject to the personal jurisdiction of the local courts. Persons
born in Guam are United States citizens, 8 U.S.C. § 1407, and may
have important federal claims in defending actions which do not
“orise under” federal law.

The majority opinion seeks to limit its holding to approve the
transfer of appellate jurisdiction only for local, nonfederal cases.
Such a distinction has no support in the language of section 22.
The federal question wording there is a grant of original jurisdic-
tion to the district court, and Guam is authorized to transfer origi-
nal jurisdiction in “other” cases to the local courts. This restriction
does not modify the clause empowering the legislature to “deter-
mine” the district court’s appellate jurisdiction.

Indeed, the majority refuses to limit the potential jurisdiction of
the Guam courts to nonfederal matters transferred from the dis-
trict court's original jurisdiction. Their rationale would thus allow
the legislature to give the local courts coneurrent jurisdiction of
federal questions as well. Such cases could not be removed to the
federal district court, since the local courts of Guam are not state
courts. 28 U.S @. § 1441; ef. id. § 1451 (defining District of Colum-
bia Superior Court as a “state court” for removal purposes) ; 48
U.S.C. § 864 (authorizing removal from courts of Puerto Rico as
if they were state courts). And, as noted, no appeal is possible
from the Supreme Court of Guam.

26

uitimate review. Earlier versions of the Organic Act
included provisions for a congressionally-created su-
preme court for Guam; these were eliminated in favor
of a federal district court. The district court was es-
tablished for the purpose of providing litigants in the
Western Pacific with direct access to the federal court
system.” Because of concern that there would not be
sufficient federal question litigation to justify a sep-
arate district court in Guam, the court was given orig-
inal jurisdiction in loeal matters. It was also envi-
sioned that the district court would serve as an appel-
late hody once local courts were established.® The ap-
parent reason for eliminating the previsions for a
local supreme court was to avoid duplicative judicial
machinery, rather than to allow local authorities to
put certain controversies beyond review by the federal
court system.

A comparison of Guam’s judicial system with those
established in other territories provides no support for
the majority’s view. Although there are many differ-

4The Interior Department’s first proposal for the Guam Organic
Act would have authorized both a supreme court and inferior courts
in the Territory. The decisions of the supreme court would have
been reviewable by the federal district court in Hawaii. See H.
Rep. No. 1577, 81st Cong., 2d Sess., 2 U.S. Code Cong. Serv. 2840,
9847 (1950). H.R. 7273, Sist Cong., 2d Sess. (1950), would have
provided Ninth Cireuit review of decisions by the Supreme Court
of Guam, and the Northern District of California would have been
extended to inelude Guam. See also S. 1892, 81st Cone., 2d Sess.
(companion bill). See generally 96 Cong. Ree. 7576-77, 11078-82
(1950). An earlier bill set up a Distriet Court of Guam and
provided only for additional courts of inferior jurisdiction. S. 185,
Rist Cong., 2d Sess. (1950).

58ee 2 U.S. Code Cong. Serv. 2840, 2843 (1950).

6The text of these amendments was suggested to the Senate Com-
mittee by Judge Albert B. Maris, who acted as judicial advisor to
the Territory of Guam. See id. at 2852-53.

27

ences, there are indications that the system established
in Guam was intended to be similar to those of the
other territories.” Congress assured that there would
be review by article IL] courts of all cases in the
former territories of Hawaii and Alaska and_ still
maintains that policy for the Virgin Islands. Cases in
the local courts of the Virgin tslands may be trans-
ferred or appealed to the District Court of the Virgin
Islands, 48 U.S.C. § 1612, and subsequent review is
authorized by Congress on the same basis as for other
district courts, 28 U.S.C. §§ 1252, 1291, 1292, 1294.
Congress has provided for United States Supreme
Court review of decisions by the Supreme Court of
Puerto Rico on virtually the same terms as for state
court decisions. Compare id. § 1257 with id. § 1258.
T do not think Congress intended to give Guam, of all
its territories, the unchecked power to transfer appel-
late jurisdiction to its local courts and by the same
stroke to deny review by any article TIT tribunal.

For the reasons set forth above T think that the
Guam legislature’s action in setting up the Supreme
Court of Guam was beyond the scone of its powers
under the Organic Act.

a ; :
Accordingly, | respectfully dissent.

7See Letter of Judge Maris, id. at 2852 (analogizing judicial
system for Guam to that adopted for Virgin Islands); Letter of
J. A. Krug, Secretary of the Interior, id. at 2846 (original pro-
posal for Organie Act modeled upon those of the other territories).

28

THE QUESTION WHETHER THE LOCAL LAW CREATING THE
SUPREME COURT OF GUAM IS CONSISTENT WITH THE
FEDERAL ORGANIC ACT OF GUAM IS OF SUCH IMPERA-
TIVE PUBLIC IMPORTANCE AS TO REQUIRE IMMEDIATE
SETTLEMENT IN THIS COURT.

a. The Number of Appeals Pending In The Appellate Division
Of The Federal District Court Of Guam Is Thirty-nine.

District Court of Guam
Office of the Clerk

Agana, Guam
March 11, 1976

Edward L. G. Aguon

Clerk

Mr. Howard G, Trapp

Attorney-at-Law

P. O. Box 3367

Agana, Guam 96910

Dear Mr. Trapp:

Post Office Box DC

After you requested information with regard to the
number of appeals from the Superior Court of Guam
currently pending before the Appellate Division of the
District Court, IT had my staff check the appellate
docket book. As of March 1, 1976, the Appellate Di-
vision of the District Court of Guam has pending be-
fore it 27 civil appeal cases and 12 criminal appeal
cases fromthe Superior Court of Guam.
Of the 12 criminal appeals, nine are appeals from
felony convictions, one is an appeal from a misde-
meanor conviction, one is an appeal by the Government
of Guam on a suppression decision, and one is a juve-
nile court conviction.

Sincerely vours,

s/ Fdward L. G. Aguon
Edward L. G. Aguon
Clerk, District Court of Guam

29

b. An additional Thirty-nine Appeals Are Pending In The
Supreme Court Of Guam.

Supreme Court of Guam

Territory of Guam

Office of the Clerk
Judiciary Building Tel. Nos. 772-6685
P.O. Box CT 772-6206
Agana, Guam 96910

11 March 1976

Mr. Howard G. Trapp
Attorney at law
Agana, Guam 96910
Dear Sir:
As per your request, the number of pending appeals
with the Supreme Court of Guam, are as follows:

CRIMINAL 9
CIVIL 30
TOTAL 39

Sincerely,
/8/ J. Q. Uneangeo
J.Q. Uneangeo

Clerk, Supreme Court

30

c. Only This Court Can End Guam’s Judicial Chaos.
Supreme Court of Guam
Territory of Guam
March 11, 1976
Mr. Howard Trapp, Esq.
Perez Bros. Building
P.O, Box 3367
Agana,Guam 96910
Dear Mr. Trapp:

Receipt of your letter dated March 10, 1976 is ac-
knowledged.

As you are quite aware, it is my opinion that the
Supreme Court of Guam as created by our Guam
Legislature is constitutional. I am perfectly satisfied
that the Legislature by virtue of the Organie Act of
Guam is vested with authority to organize and re-
organize our Judicial system in order to best meet
the need of cur territory as it developes within the
framework of our American system of government.

As I explained to you, it has always been my hope
and desire that the question whether creation of the
Supreme Court of Guam is consistent with the Or-
ganie Act of Guam should and must be finally decided
hy the Supreme Court of the United States otherwise,
the possibility of creating chaos in our Judicial system
will continue to exist.

As vou know, we have quite a number of appea!
cases pending and that the 9th Cirenit had ruled that
the Supreme Court of Guam was legally ereated. Tn
the event that we accent that ruling and the Snyvreme

3l

Court of Guam decides these pending cases and then
in some future date the question of the legality of the
creation of the Supreme Court of Guam was again
challenged and taken all the way to the Supreme Court
of the United States and the Supreme Court of the
United States ruled otherwise, we will then be faced
with a rather serious problem in having those cases
reheard by the proper court, thereby causing us and
everybody concerned including the litigants additional
expenditures of money and time which need not take
place had the question been brought hefore the Su-
preme Court of the United States in the first place.
I hope this answers your letter sufficiently.
Very truly yours,
/s/ Joaquin C. Perez

Joaquin C, Perez
Chief Justice

32

d. The Petition For Rehearing The Agana Bay Case Was Denied.
United States Court of Appeals
for the Ninth Circuit

No. 75-1059
Agana Bay Development Company )
(Hong Kong) Ltd.,
Petitioner-Appellee,

Vs.

Supreme Court of Guam, P
Respondent-Appellant,

Dillingham Corporation of the
Pacifie,
Real Party in Interest.

| Filed March 3, 1976]

ORDER DENYING PETITION FOR
REHEARING AND REJECTING
SUGGESTION FOR REHEARING

EN BANC

Before: Carrer, Goopwinx and KEeNNeEpy, Cireuit
Judges.

The panel in the above entitled matter having
voted to deny the petition for rehearing and Judge
Goodwin having voted to reject the suggestion for re-
hearing en banc, and Judges Carter and Kennedy
having recommended rejection of the suggestion for
rehearing en bane: and copies of the petition for
rehearing en bane having heen cirenlated to all active
judges and no judge having requested a rehearing en

bane,

33

It Is Ordered that the petition for rehearing is de-
nied and the suggestion for rehearing en bane is re-
jected.

e. The Decision In Agana Bay Makes Prosecuting The Present
Case In The Court Of Appea's An Exercise In Futility.

f. Review Of The Agana Bay Case In This Court Will Not Be
Sought.
( Letterhead of
Law Offices
Klemm & Dear
1008 Pacific News Building
P.O. Box AB
Agana, Guam 96910)
March 11, 1976
Mr. Howard G. Trapp
Trapp, Gayle, Teker, Hammer & Lacy
P. O. Box 3367
Agana, Guam 96910

Re: Agana Bay Development Company (Hong Kong),
Ltd. vs. Supreme Court of Guam—Appeal No.
75-1059

Dear Mr. Trapp:

This letter will serve to confirm our conversation
with respect to the above-entitled matter. As T indi-
cated to ven, we do not intend to present the issue to
the Supreme Court. As T understand it, the merits of
ease have, in substance and effect, been settled by the
parties and T anticipated that the original action will
he dismissed pursuant to the settlement.

Very truly vours,
Klemm & Dear

s/ J. Bradley Klemm
J. Bradley Klemm

34

g. Agana Bay Holds That The Guam Legislature Has Abolished
This Court's Jurisdiction To Review Guam Cases.

“Prior to 1974, virtually all significant matters
were within either the original or appellate juris-
diction of the district court, and reviewable by
this court and the United States Supreme Court.
Under the new system, only cases ‘arising under’
federal law or involving the territorial income tax
remain within the federal court jurisdiction; as
to other matters there is no appeal beyond the
Supreme Court of Guam.” Agana Bay Dev. Co.
(Hong Kong) Ltd. v. Supreme Court of Guam,
supra, No. 75-1059 (9th Cir., Jan. 14, 1976) (dis-
senting opinion).

CONCLUSION
In light of the foregoing a writ of certiorari should
issue to review the order of dismissal of the appellate
division of the federal District Court of Guam en-
tered in this case on March 9, 1976.
Dated, Agana, Guam,
March 11, 1976.
Respectfully submitted,
Howarp Trapp,
Attorney for Petitioner.

(Appendices Follow)

APPENDICES

Appendix B

District Court of Guam
Territory of Guam

Civil Case No. 74-177

Agana Bay Development Company !

(Hong Kong) Ltd.,
Petitioner,
vs.

Supreme Court of Guam,
Respondent,

Dillingham Corporation of the Pacific,
Real Party in Interest. J

[Filed Nov. 6, 1974]

OPINION

The Supreme Court of Guam, respondent herein,
was established by Public Law 12-85, (Twelfth Guam
Legislature), effective July 1, 1974.

On July 12, 1974, the Superior Court of Guam en-
tered an order in the case of Dillingham Corpora-
tion of the Pacific v. Agana Bay Development Com-
pany, Civil Case No. 159-74.

The real party in interest, Dillingham Corporation
of the Pacific, filed, on July 19, 1974, a notice of ap-
peal to the Supreme Court of Guam with the Clerk
of the Superior Court. On August 28, 1974, the Clerk

li

of the Superior Court transmitted the documents filed
in Civil Case No. 159-74 to the respondent Supreme
Court of Guam.

Ensuing such transmittal of the record, the Acting
Clerk of the Supreme Court, on August 29, 1974, noti-
fied the attorney of the real party in interest of the
receipt of the record in Civil Case No. 159-74. Su-
preme Court Civil No. 2-74(A) was assigned to the
appeal by the “Supreme Court. An appellant’s brief
was then filed by the real party in interest in the
Supreme Court of Guam on September 20, 1974.

On ptember 25, 1974, petitioner, Agana Bay De-
velopment Company (Hong Kong) Ltd., filed a peti-
tion in this court demanding that an alternative writ
of prohibition issue from this court commanding the
Supreme Court of Guam to desist and refrain from
taking any further action or proceedings with regard
to the appeal taken from the order of partial summary
judgment in Superior Court Civil Case No. 159-74,
and requiring the respondent court to show cause why
a peremptory writ of prohibition should not issue
restraining and prohibiting respondent court abso-
lutely and forever from taking any further proceed-
ings in the aforesaid appeal.

An alternative writ of prohibition was issued from
this court on Septernber 26, 1974, and respondent court
was ordered to show cause before this court, on Oc-
tober 4, 1974, why a peremptory writ of prohibition
as demanded should not issue.

On October 4, 1974. a hearing was held and the
Attorney General of Guam appeared on behalf of the

lil

respondent court. Counsel for the petitioner and the
real party in interest also appeared. The real party
in interest offered no opposition to the petition.
Guam’s status as a territory, its judicial structure,
and the source of its authority are basic factors rele-
vant to a determination of the issue.

The status of Guam, as a territory and its relation-
ship with the national government, is basically cov-
ered by the provisions of Article 4, Section 3, Clause
2, of the Constitutfon of the United States which pro-

vides as follows:

“The Congress shall have power to dispose of
and make all needful Rules and Regulations re-
spectiug the Territory or other property belong-
ing *o the United States; and nothing in this
Cons.itution shall be so construed as to prejudice
any claims of the United States, or of any partic-
ular state.”

This provision of the Constitution had been properly
construed in the foliowing cases:

“The United States possess sovereignty over
the territories of the United States so long as they
exist under territorial government. Territory v.
Burgess, 8 Mon. 57, 19 P. 558. The territories are
merely political subdivisions of the outlying do-
minion of the United States. They bear much the
same relations to the general government that
counties do to the states, and Congress may legis-
late for them as states do for their respective
municipal organizations. Cincinnati Soap Co. v.
United States, 501 U.S. 308, 81 L.Ed. 1122, 57
S.Ct. 764; Talbot v. Silver Bow County, 139 U.S.
438, 35 L.Ed. 210, 11 S.Ct. 594.

iv

Territory when acquired by treaty becomes the
absolute property and domain of the U.S., sub-
ject to such conditions as the government, in its
diplomatic negotiations, may see fit to accept re-
lating to the rights of the people then inhabiting
that territory . . . Congress may administer its
government as it does that of the District of
Columbia; it may organize a local territorial gov-
ernment; it may admit it as a state upon an
equality with other states . . . In short, when
once acquired by treaty, a territory belongs to
the U.S. and is subject to the disposition of
Congress. DeLima v. Bidwell, 182 U.S. 1, 45 L.Ed.
1041, 21 S.Ct. 743.

The convention which framed the Constitution
of the U.S., in view of the territory already pos-
sessed and the possibility of acquiring more, in-
serted in that instrument, in Art. 4, Sec. 3, a
grant of express power to Congress ‘to dispose of
and make all needful rules and regulations re-
specting the territory or other property belong-
ing to the U.S.’ Dorr v. U.S., 195 U.S. 138, 49
L.Ed. 128, 24 S.Ct. 808.

Although its power is not without limits, Con-
gress, in the government of the territories, has
plenary power, Jnter-Island Steam Nav. Co. v.
Hawan, 305 U.S. 306, 83 L.Ed. 187, 59 S.Ct. 202,
that is to say, it has full and complete legisla-
tive authority over the people of the territories
and all the departments of the territorial gov-
ernment. Cincinnati Soap Co. v. U.S., 301 U.S.
308, 81 L.Ed. 1122, 57 S.Ct. 764.

The supreme power of Congress over the terri-
tories and over the acts of the territorial legisla-
tures established therein is generally expressly

Vv

reserved in the organic acts establishing govern-
ments in said territories. Church of Jesus Christ
of L.D.S. v. U.S., 136 U.S. 1, 34 L.Ed. 478, 10

S.Ct. 792.”

“Congress has been empowered by the federal
Constitution to ‘make all needful Rules and Reg-
ulations respecting the Territory * * * belonging
to the United States.’ Therefore, it was competent
for Congress to define the jurisdiction of any
courts so created in a territory or to empower

‘the territorial legislature to define such jurisdic-

tion. But, of course, if Congress did delegate
such authority to the territorial legislature, it was
incumbent upon that body to stay strictly within
the limits of the power granted.” Bordenellt v.
United States, 233 F.2d 120, 122 (9th Cir. 1956)

(footnotes omitted).)

The issue before the court is whether or not the
Legislature of Guam exceeded its authority under the
Organic Act of 1950, as amended, when it enacted
Public Law 12-85 creating the Supreme Court of
Guam.

Guam obtained its present status through the Or-
ganic Act of 1950, 48 U.S.C., §§1421-1424. The Organic
Act provided Guam with a civil government composed
of three branches. Sections 22, 23 and 24 of the Or-
ganic Act established the District Court of Guam.
As originally enacted, the Organic Act read:

“Sec, 22. (a) There is hereby created a court
of record to be designated the ‘District Court of
Guam’, and the judicial authority of Guam shall
be vested in the District Court of Guam and in

such court or courts as may have been or may
hereafter be established by the laws of Guam. The
District Court of Guam shall have, in all causes
arising under the laws of the United States, the
jurisdiction of a district court of the United States
as such court is defined in section 451 of title 28,
United States Code, and shall have original jur-
isdiction in all other causes in Guam, jurisdiction
over which has not been transferred by the legisla-
ture to other court or courts established by it, and
shall have such appellate jurisdiction as the legis-
lature may determine. The jurisdiction of and the
procedure in the courts of Guam other than the
District Court of Guam shall be prescribed by the
laws of Guam.

“(b) The rules heretofore or hereafter promul-
gated and made effective by the Supreme Court
of the United States pursuant to section 2072 of
title 28, United States Code, in civil cases; section
2073 of title 28, United States Code, in admiralty
cases; sections 3771 and 3772 of title 18, United
States Code, criminal cases; and section 30 of the
Bankruptcy Act of July 1, 1898, as amended (title
11, U.S.C., sec. 53), in bankruptcy eases, shall
apply to the District Court of Guam and to appeals
therefrom.”

“Sec. 23. (a) The United States Court of Ap-
peals for the Ninth Circuit shall have jurisdiction
of appeals from all final decisions of the District
Court of Guam in all cases involving the Consti-
tution, laws, or treaties of the United States or any
authority exercised thereunder, in all habeas cor-
pus proceedings, and in all other civil cases where
the value in controversy exceeds $5,000, exclusive
of interest and costs.

vil

“(b) Any party may appeal to the Supreme
Court of the United States from an interlocutory
or final judgment, or order of the District Court
of Guam, holding an Act of Congress unconstitu-
tional in any civil action, suit, or proceeding to
which the United States or any of its agencies
or any officer or employee thereof as such officer
or employee is a party. A party who has received
notice of appeal under this section shall take any
subsequent appeal or cross appeal to the Supreme
Court. Ali appeals or cross appeals taken to other
courts prior to such notice shall be treated as
taken directly to the Supreme Court.”

“Sec. 24. (a) The President shall, by and with
the advice and consent of the Senate, appoint a
judge for the District Court of Guam who shall
hold office for the term of four years and until
his successor is chosen and qualified unless sooner
removed by the President for cause. The judge
shall receive a salary payable by the United States
which shall be the same as the salary of the Gov-
ernor of Guam as provided by section 26(a) of this
Act, and shall be entitled to the benefits of retire-
ment provided in section 373 of title 28, United
States Code. The Chief Justice of the United
States may, with the consent of the judge so as-
signed, assign any United States circuit or dis-
trict judge to serve as a judge in the District
Court of Guain whenever it is made to appear that
such an assignment is necessary for the proper
dispatch of the business of the court.

“(b) The President shall appoint, by and with
the advice and consent of the Senate, a United
States attorney and United States marshal for
Guam to whose offices the provisions of chapters

31 and 33 of title 28, United States Code, respec-
tively, shall apply.

“cc ”

In 1951, Congress repealed Sections 23(a) and 23
(b). Congress amended 28 U.S.C.A., §1257, to include
the District Court of Guam as a court from which di-
rect appeals could be taken to the Supreme Court of
decisions invalidating Acts of Congress. Therefore,
Section 23(b) Was no longer necessary.

Congress also amended Sections 1291 and 1294 of
Title 28 of the United States Code to provide for a
direct appeal from all final decisions of the District
Court of Guam to the United States Court of Apr eals
for the Ninth Circuit. This amendment was necessary
after the First Guam Legislature exercised its author-
ity under Section 22(a) of the Organic Act and enacted
Public Law 17 which gave the Island Court of Guam
original jurisdiction over misdemeanor cases, civil cases
in which the value in controversy did not exceed
$2,000, and divorce and probate cases. This meant that
the District Court had jurisdiction over felonies and
civil cases over $2,000. Since Section 23(a) provided
the Ninth Circuit with jurisdiction over appeals from
only those final decisions of the District Court of Guam
involving habeas corpus proceedings and civil cases
where the value in controversy exceeded $5,000, Public
Law 17, in effect, left the District Court with jurisdic-
tion over felonies and some civil cases from which
there was no appeal. This amendment corrected this
situation.

ix

In 1951, the First Guam Legislature enacted Public
Law 17, which set forth the jurisdiction of the appel-
late division of the District Court.’

In 1958, Congress enacted Public Law 85-444, amend-
ing Sections 22 and 24 of the Organic Act. Through
Public Law 85-444, Congress recognized the existence of
the appellate division of the District Court. By virtue
of this amendment, Congress has officially established
the Appellate Divisfon of the District Court of Guam.

“Sec. 63. Appellate jurisdiction.—The District Court of Guam
shall have jurisdiction of appeals from the judgments, orders and
decrees of the Island Court in criminal causes as provided in the
Penal Code, Part II, Title VIII, and in civil causes and proceed-
ings as provided in the Code of Civil Procedure, Part II, Title
VIII, Chapter VI, Article Il, and Title XII, Chapters I and II,
and Part III, Title I, Chapter V, and Title II, Chapter IV, and
Title VII, Chapter XII, and the Probate Code, Division III, Chap-
ter X XI, Article IV, and Division IV, Chapter XVI.”

“Sec. 65. Appellate division— Appeals from the Island Court
shall be heard and determined by an appellate division of the
District Court, consisting of three judges, of whom two shall con-
stitute a quorum. The appellate division, when requested by the
moving party, shall also hear and determine motions for rehearing
or a new trial made after final decision of the District Court in all
cases tried originally in that court in which such final decision is
not appealable to the United States Court of Appeals for the
Ninth Circuit. The judge appointed for the court by the President
shall be the presiding judge of the appellate division and shall
preside therein unless disqualified or otherwise unable to act. The
other judges who are to sit in the appellate division at any session
shall be designated by the presiding judge from among the judges
assigned to the court from time to time by the Chief Justice of the
United States pursuant to Section 24(a) of the Organic Act of
Guam. The concurrence of two judges of the appellate division
shall be necessary to any decision by the District Court on the
merits of an appeal but the presiding judge alone may make any
appropriate orders with respect to an appeal prior to the hearing
and determination thereof on the merits and may dismiss an ap-
peal for want of jurisdiction, or failure to take or prosecute it in
accordance with the applicable law or rules of procedure.”

x | | xi

This amendment left Sections 22 and 24 of the Or-
ganic Act as they are now found in Sections 1424 and
1424b of Title 48 of the United States Code:

by the presiding judge from among the judges
assigned to the court from time to time pursuant
to section 1424b(a) of this title. The concurrence

“THE J UDICIARY

§1424. District Court of Guam; jurisdiction;
appellate division; rules of procedure

(a) There is created a court of record to be
designated the ‘District Court of Guam’, and the
judicial authority of Guam shall be vested in the
District Court of Guam and in such court or courts
as may have been or may hereafter be established
by the laws of Guam. The District Court of Guam
shall have the jurisdiction of a district court of the
United States in all causes arising under the Con-
stitution, 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 by the legislature to other
court or courts established by it, and shall have
such appellate jurisdiction as the legislature may
determine. The jurisdiction of and the procedure
in the courts of Guam other than the District
Court of Guam shall be prescribed by the laws of
Guam.

Appeals to the District Court of Guam shall be
heard and determined by an appellate division of
the court consisting of three judges, of whom two
shall constitute a quorum. The judge appointed
for the court by the President shall be the presid-
ing judge of the appellate division and shall pre-
side therein unless disqualified or otherwise unable
to act. The other judges who are to sit in the ap-
pellate division at any session shall be designated

of two judges shall be necessary to any decision
by the District Court of Guam on the merits of an
appeal but the presiding judge alone may make
any appropriate orders with respect to an appeal
prior to the hearing and determination thereof
on the merits and may dismiss an appeal for want
of jurisdiction or failure to take or prosecute it
in accordance with the applicable law or rules of
procedure.

(b) ‘The rules heretofore or hereafter promul-
gated and made effective by the Supreme Court of
the United States pursuant to section 2072 of Title
28, in civil cases; section 2073 of Title 28, in ad-
miralty cases; sections 3771 and 3772 of Title 18,
in criminal cases; and section 53 of Title 11, in
bankruptcy cases; shall apply to the District Court
of Guam and to appeals therefrom; except that no
provisions of any such rules which authorize or re-
quire trial by jury or the prosecution of offenses
by indictment by a grand jury instead of«by infor-
mation shall be applicable to the District Court of
Guam unless and until made so applicable by laws
enacted by the Legislature of Guam, and except
further that the terms ‘attorney for the govern-
ment’ and ‘United States attorney’, as used in the
Federal Rules of Criminal Procedure, shall, when
applicable to cases arising under the laws of Guam,
mean the Attorney General of Guam or such other
person or persons as may be authorized by the laws
of Guam to act there’n. As amended Aug. 27, 1954,
ec. 1017, §1, 68 Sta’ 282; June 4, 1958, Pub.L.
85-444, §§1, 2, 72 Stat. 178.”

§1424b. Judge of District Court; appoint-
ment, tenure, and compensation; appointment of
United States attorney and marshal; applicability
of laws

(a) The President shall, by and with the ad-
vice and consent of the Senate, appoint a judge for
the District Court of Guam who shall hold office
for the term of eight years and until his successor
is chosen and qualified unless sooner removed by
the President for cause. The judge shall receive
a salary payable by the United States which shall
be at the rate prescribed for judges of the United
States district courts.

The Chief Judge of the Ninth Judicial Circuit
of the United States may assign a judge of the
Island Court of Guam or a judge of the High
Court of the Trust Territory of the Pacific Islands
or a circuit or district judge of the ninth circuit,
or the Chief Justice of the United States may
assign any other United States circuit or district
judge with the consent of the judge so assigned
and of the chief judge of his circuit, to serve tem-
porarily as a judge in the District Court of Guam
whenever it is made to appear that such an assign-
ment is necessary for the proper dispatch of the
business of the court.

(b) The President shall appoint, by and with
the advice and consent of the Senate, a United
States attorney and United States marshal for
Guam to whose offices the provisions of chapters
31 and 33 of title 28, United States Code [28 §§501-
510, 541-556], respectively, shall apply.

(c) The provisions of chapters 43 and 49 of
title 28, United States Code [28 §§631-639, 751-
756], shall apply to the District Court of Guam.

ee

(Aug. 1, 1950, c. 512, §24, 64 Stat. 390; Oct. 31,
1951, c. 655, §55(a), 65 Stat. 728; June 4, 1958,
P.L. 85-444, §3, 72 Stat. 179.)”

Respondent contends that under the following quoted
portion of Section 1424(a), Title 48, U.S.C., (Organic
Act of Guam), and more specifically the italicized por-
tion, the Guam Legislature was given the authority
to set up the Supreme Court of Guam and to give it
whatever jurisdiction it may determine:

“,.. The District Court of Guam... shall have
original jurisdiction in all other causes in Guam,
jurisdiction over which has not been transferred
by the legislature to other court or courts estab-

kshed by tt, and shall have appellate jurisdiction
as the legislature may determine.”

This, according to respondent, gives the legislature
the authority to determine which decisions of the

courts of Guam will be appealed to the District Court,
if any, and which decisions will be appealed to other
courts created by the legislature.

It is the contention of the petitioner that the legis-
lature could determine what rights of appeal would
exist from the courts of Guam, but that where a
right of appeal existed, that appeal could only be
taken to the appellate division of the District Court
of Guam.

The legislative history of Sections 22, 23 and 24 of
the Organic Act clears up any doubt as to what Con-
gress intended by establishing the District Court of
Guam.

Xiv

The original bill to provide a civil government for
Guam as passed by the House of Representatives, H. R.
1273, provided Guam with a judicial system quite dif-
ferent from the one Guam has actually had since
1950, as retlected in what transpired in the House of
Representatives when H. R. 7273 came up for consid-
eration by said House:

“Mr. Peterson. Mr. Speaker, I call up the hill
(H. R. 7273) to provide a civil government for
Guam, and for other purposes, and ask unanimous

consent that it be considered in the House as in
Committee of the Whole.

“The Clerk read the title of the bill.

“The Speaker pro tempore. Is there objection
to the request of the gentleman from Florida?

“There was no objection.
“The Clerk read the bill, as follows:

ee

* "THE JUDICIARY

“*See, 22. The judicial authority of Guam shall
be vested in one supreme court and in such inferior
colu'ts as may have been or hereafter may be es-
tablished under the laws of Guam. The jurisdic-
tion of such courts and the procedure therein shall
be prescribed in the laws of Guam. The style of all
process in the courts of Guam shall hereafter run
in the name of the government of Guam, and all
prosecutions shall be carried on in the name and by
the authority of the government of Guam. The
Governor shall not sit as a judge in any court.

**Sec, 23. The supreme court shall consist of
a chief justice and twe associate justices who shall

xV

be appointed by the President of the United
States, by and with the advice and consent of the
United States Senate, and who shall hold office for
a term of 6 years and until their successors have
been appointed and qualified, unless sooner re-
moved by the President for cause. No person shall
be appointed a justice of the Supreme Court of
Guam who has not been a member of the bar of the
highest court of a State or Territory of the United
States for at least 5 years.

“Sec. 24. (a) The judicial district known as
the Northern District of California is hereby
extended to include Guam, and the jurisdiction of
the United States District Court for the Northern
District of California as now defined by law shall
extend to the whole of such district.

“‘(b) The laws of the United States relating
to removal of causes as between the courts of the
United States and the courts of the several States
shall govern as between the United States District
Court for the Northern District of California and
the courts of Guam. |

“*(¢) For the purposes of this section, special
terms of the district court shall be held in Guam
at such times as the judges of that court may deem
expedient.

“*(qd) The United States Court of Appeals for
the Ninth Circuit shall have jurisdiction of ap-
peals from all final decisions of the Supreme Court
of Guam in all cases involving the Constitution,
laws, or treaties of the United States or any au-
thority exercised thereunder, in all habeas corpus
proceedings, and in all other civil cases where the
value in controversy exceeds $5,000, exclusive of
interest and costs.

“*ce) Any party may appeal to the Supreme
Court of the United States from an interlocutory
or final judgment, decree, or order of any court of
record of Guam, holding an act of Congress uncon-
stitutional in any civil action, suit, or proceeding
to which the United States or any of its agencies,
or any officer or employee thereof, as such officer
or employee, is a party. A party who has received
notice of appeal under this section shall take any
subsequent appeal or cross appeal to the Supreme
Court. All appeals or cross appeals taken to other
courts prjor to such notice shall be treated as
taken directly to the Supreme Court.

ee 3

6c

“The Speaker pro tempore. The question is on
the engrossment and third reading of the bill.

“The bill was ordered to be engrossed and read
a third time, and was read the third time.

“The Speaker pro tempore. The question is on
the passage of the bill.

“The bill was passed.” 96 Conc. Rec. 7574-77
(1950).

Congress originally intended to provide Guam with
a Supreme Court; however, the Supreme Court as pro-
posed was not a creation of the legislature but rather a
creation of Congress accompanied by numerous checks
and controls. As originally proposed, the Organic Act
created the Supreme Court of Guam and empowered
the legislature to establish inferior courts. Federal
control was maintained over the judicial system in
Guam in several important respects. One, the three

es

judges of the Supreme Court of Guam were all to be
appointed by the President of the United States, by and
with the advice and consent of the United States
Senate. Two, a person could not be appointed to’ the
Supreme Court of Guam, unless he had been a member
of the bar of the highest court of a State or Territory
of the United States for at least five years. Three,
a direct appeal was made available from the Supreme
Court of Guam to the United States Court of Appeals
for the Ninth Circuit in habeas corpus proceedings ©
and civil cases arising under the laws of Guam in
which the value in controversy exceeded $5,000. More-
over, appeals of all final decisions of the Supreme
Court of Guam in cases involving the Constitution,
laws, or treaties of the United States went not to the
Supreme Court of the United States on a petition for
certiorari, but rather went automatically to the U. S.
Court of Appeals for the Ninth Circuit. The original
Act shows that Congress intended to supervise the ju-
dicial branch of government in Guam both through the
appointment of judges to the highest court in the terri-
tory and the automatic appeal provisions to the U. S.
Court of Appeals for the Ninth Circuit.

When the companion bill to H. R. 7273, S. 1892,
came before the United States Senate, amendments,
drafted with the help of the Honorable Albert B.
Maris, Chairman of the Chief Justices’ Judicial Con-
ference Committee, were proposed to Sections 22, 23
and 24. These amendments abandoned the concept of a
Supreme Court of Guam and established instead the

- ~_ District Court of Guam:

“THE AMENDMENTS

“Hearings were held in the winter or spring
by the Senate committee on S. 1892, a companion
bill to H.R. 7273, as introduced. Based upon mat-
ters brought out at those hearings, amendments
were made to the bill, in the discussion and draft-
ing of which the members of the Guam Congress
and the Attorney General and the Governor of
Guam took full part.

“The principal amendments are as follows:

‘“
xree

“Sections 22, 23, and 24 provide for the creation
of the District Court of Guam. This amendment
has been discussed above. Its language was worked
out with the Administrative Office of the United
States Courts, and with the Honorable Albert B.
Maris, chairman of the Chief Justice’s Judicial
Conference Committee.

“cr
‘REPORTS OF EXECUTIVE AGENCIES

“[T]he comments of the chairman of the Chief
Justice’s Judicial Conference Committee are set
forth in full.
“TINTED StaTes Court oF APPEALS

FOR THE THIRD CIRCUIT
“Philadelphia 7, Pa., July 6, 1950.

“Hon. Joseph C. O’Mahoney, —

United States Senate, Washington, D. C.

“Dear Senator O’Mahoney: I am grateful to
you for your courtesy in sending me the commit-
tee print of S. 1892, the Guam Organic Act, with

xix

the proposed amendments, submitted by the sub-
committee. I am, of course, primarily interested
in the provisions relating to the judiciary and I
have two definite comments to make with respect
to these provisions in the bill as proposed by the
subcommittee.

“May I say preliminarily that I observe that it
is proposed to create a district court in Guam to
have Federal jurisdiction and also such local jur-
isdicton as may he assigned to it by the local legis-
lature rather than to other local courts. I gather
that this is being done somewhat upon the pattern
of the District Court of the Virgin Islands created
by section 25 of the Organic Act of the Virgin Is-
lands (48 U. S. C. A., sec. 1405x). Under that
act the district court has jurisdiction over both
Federal and local cases but the local legislature is
authorized to provide for the organization of a su-
perior court to which jurisdiction over all non-
Federal cases may be transferred. It happens that
the Virgin Islands are in our circuit and that I
have had occasion to observe the business which
comes hefore the district court there. The fact is
that the Federal business coming into the court
is comparatively small, the bulk of the court’s busi-
ness involving local cases and the whole amount of
business, both Federal and local, not providing an
excessive workload for one judge.

“I would assume that the situation in Guam
would he roughly analogous to that in the Virgin
Islands and that the case load, both Federal and
local, would not likely be much greater. If that is
so the creation of a district court to consider Fed-
eral cases alone would be quite unjustified and it
would be much more appropriate to confer upon

the district court jurisdiction over local cases gen-
erally or over such local cases as are not assigned
by the Guam Legislature to some other court cre-
ated by it.

“Turning to proposed section 22(a) of the bill
I note that the District Court of Guam is described
as a ‘United States district court.” I question
whether this is an appropriate description since
the court is not being created under the judiciary
article of the Constitution, article III, section 1,
but rather under article IV, section 3 which gives
Congress power to regulate the territory of the
United States. Moreover, if, as seems to me inev-
itable, the major business of the court will be to
consider and dispose of local cases the designation
is hardly apt. Furthermore, I suggest that the
sounder legislative approach to the jurisdictional
questions involved in this section would be to con-
fer upon the district court original jurisdiction
in all Federal causes and in all other causes in
Guam except such as the legislature may assign to
other courts. I would, therefore, suggest that sec-
tion 22(a) read as follows:

“*See. 22. (a) There is hereby created a
[ United States district] court of record to be desig-
nated the “District Court of Guam”, and the judi-
cial authority of Guam shall be vested in the
District Court of Guam and 1m such court or courts
[other than the District Court of Guam] as may
have been or may hereafter be established by the
laws of Guam. The District Court of Guam shall
have, in all causes arising under the laws of the
United States, the jurisdiction of a district court
of the United States as such court is defined in
section 451 of title 28, United States Code, and

xxi

shall have original juiisdiction in all other causes
in Guam jurisdiction over which has not been
transferred by the legislature to other court or
courts established by it, and shall have such [orig-
inal or] appellate jurisdiction as the legislature
may determine. The jurisdiction of and the proce-
dure in the courts of Guam other than the District
Court of Guam shall be prescribed by the laws of
Guam.’
“cs

“T trust that these suggestions may be useful.
“With kind regards, I am,
“Sincerely yours,
“Albert B. Maris.”

S. Rep. No. 2109, 81st Cong., 2d Sess. 5-13 (1950)
(brackets, indicating deletions, and italics, indicat-
ing additions, by Maris, J.).

“The amendments of a bill in committee are fertile
sources of interpretation.” Sec. and Exch. Comm’n v.
Robert Collier and Co., 76 F.2d 939, 941 (2d Cir. 1935)
(Learned Hand, J.).

The Senate adopted the proposed amendments to

Sections 22, 23 and 24 and passed Senate Bill 1892.”

2“Cryi GOVERNMENT FOR GUAM

“The Senate proceeded to consider the bill (H.R. 7273) to pro-
vide a civil government for Guam, and for other purposes, which
had been reported from the Committee on Interior and Insular
Affairs with amendments .. . on page 18, after line 12, to strike
out:

“ «Sec. 22. The judicial authority of Guam shall be vested in one
supreme court and in such inferior courts as may have been or
hereafter may be established under the laws of Guam. The juris-
diction of such courts and the procedure therein shall be as pre-
scribed in the laws of Guam. The style of all process in the courts
of Guam shall hereafter run in the name of the government of

xxii
The House of Representatives considered H. R. 7273

Guam, and all prosecutions shall be carried on in the name and
by authority of the government of Guam. The Governor shall not
sit as a judge in any court.

“ ‘Sec. 23. The supreme court shall consist of a chief justice and
two associate justices who shall be appointed by the President of
the United States by and with the advice and consent of the United
States Senate, and who shall hold office for a term of 6 years and
until their successors have been appointed and qualified, unless
sooner removed by the President for cause. No person shall be
appointed a justice of the Supreme Court of Guam who has not
been a member of,the bar of the highest court of a State or Terri-
tory of the United States for at least 5 years.

“ «Sec. 24. (a) The judicial district known as the northern dis-
trict of California is hereby extended to include Guam, and the
jurisdiction of the United States District Court for the Northern
District of California as now defined by law shall extend to the
whole of such district.

“*(b) The laws of the United States relating to removal of
causes as between the courts of the United States and the courts
of the several States shall govern as between the United States
District Court for the Northern District of California and the
courts of Guam.

“‘(e) For the purposes of this section, special terms of the
district court shall be held in Guam at such times as the judges
of that court may deem expedient.

“*(d) The United States Court of Appeals for the Ninth Circuit
shall have jurisdiction of appeals from- all final decisions of the
Supreme Court of Guam in all cases involving the Constitution,
laws, or treaties of the United States or any authority exercised
thereunder, in all habeas corpus proceedings, and in all other
civil cases where the value in controversy exceeds $5,000, exclusive
of interest and costs.

“*(e) Any party may appeal to the Supreme Court of the
United States from an interlocutory or final judgment, decree, or
order of any court of record of Guam, holding an act of Congress
unconstitutional in any civil action, suit, or proceeding to which
the United States or any of its agencies, or any officer or employee
thereof, as such officer or employee, is a party. A party who has
received notice of appeal under this section shall take any subse-
quent appeal or cross appeal to the Supreme Court. All appeals
or cross appeals taken to other courts prior to such notice shall be
treated as taken directly to the Supreme Court.’

“And in lieu thereof to insert:

“ ‘See. 22. (a) There is hereby created a court of record to be
designated the ‘‘ District Court of Guam,’’ and the judicial author-
ity of Guam shall be vested in the District Court of Guam and in
such court or courts as may have been or may hereafter be estab-
lished by the laws of Guam. The District Court of Guam shall have,
in all causes arising under the laws of the United States, the juris-

eer

after it had been amended by the Senate and passed

diction of a district court of the United States as such court is de-
fined in section 451 of title 28, United States Code, and shall have
original jurisdiction in all other causes in Guam, jurisdiction over
which has not been transferred by the legislature to other court or
courts established by it, and shall have such appellate jurisdiction
as the legislature may determine. The jurisdiction of and the pro-
cedure in the courts of Guam other than the District Court of
Guam shall be prescribed by the laws of Guam.

“*(b) The rules heretofore or hereafter promulgated and made
effective by the Supreme Court of the United States pursuant to
section 2072 of title 28, United States Code, in civil cases; section
2073 of title 28, United States Code, in admiralty cases; sections
3771 and 3772 of title 18, United States Code, in criminal cases;
and section 30 of the Bankruptcy Act of July 1, 1898, as amended
(title 11, U.S. C., see. 53), in bankruptcy cases, shall apply to
the District Court of Guam and to appeals therefrom.

“ ‘Sec. 23. (a) The United States Court of Appeals for the
Ninth Circuit shall have jurisdiction of appeals from all final deci-
sions of the District Court of Guam in all cases involving the
Constitution, laws, or treaties of the United States or any authority
exercised thereunder in all habeas corpus proceedings, and in all
other civil cases where the value in controversy exceeds $5,000,
exclusive of interest and costs.

“*(b) Any party may appeal to the Supreme Court of the
United States from an interlocutory or final judgment, or order
of the District Court of Guam, holding an act of Congress uncon-
stitutional in any civil action, suit, or proceeding to which the
United States or any of its agencies or any officer or employee
thereof, as such officer or employee, is a party. A party who has
received notice of appeal under this section shall take any subse-
quent appeal or cross appeal to the Supreme Court. All appeals
or cross appeals taken to other courts prior to such notice shall be
treated as taken directly to the Supreme Court.

“ ‘See. 24. (a) The President shall, by and with the advice and
consent of the Senate, appoint a judge for the District Court of
Guam who shall hold office for the term of 4 years and until his
successor is chosen and qualified unless sooner removed by the
President for cause. The judge shall receive a salary payable by
the United States which shall be the same as the salary of the
Governor of Guam as provided br section 26(a) of this act, and
shall be entitled to the benefits of retirement provided in section
373 of title 28, United States Code. The Chief Justice of the United
States may, with the consent of the judge so assigned, assign any
United States circuit or district judge to serve as a judge in the
District Court of Guam whenever it is made to appear that such
an assignment is necessary for the proper dispatch of the business
of the court.

““(b) The President shall appoint, by and with the advice and
consent of the Senate, a United States attorney and United States

XXxiv

it complete with amendments.*

marshal for Guam to whose offices the provisions of chapters 31
and 33 of title 28, United States Code, respectively, shall apply.

“*(e) The provisions of chapters 21, 41, 43, 49, and 57 of title
28, United States Code, shall apply to the District Court of Guam.’

“The amendments were agreed to.

“The Presiding Officer. The question is on the engrossment of
the amendments and third reading of the bill.

“The amendments were ordered to be engrossed and the bill to
be read a third time.

“The bill was read the third time and passed.” 96 CONG. REC.
11078-82 (1950).

8“Orvm, GOVERNMENT ror GuaM

“On Motion of Mr. Peterson, by unanimous consent, the bill
(H.R. 7273) to provide a civil government for Guam, and for
other purposes, together with the following amendments of the
Senate thereto, was taken from the Speaker’s table:

“Page 17, strike out all after line 8 over to and including line 9
on page 19 and insert:

“Sec. 22. (a) There is hereby created a court of record to be
designated the ‘District Court of Guam,’ and the judicial authority
of Guam shall be vested in the District Court of Guam and in such
court or courts as may have been or may hereafter be established
by the laws of Guam. The District Court of Guam shall have, in all
causes arising under the laws of the United States, the jurisdiction
of a district court of the United States as such court is defined
in section 451 of title 28, United States Code, and shall have orig-
inal jurisdiction in all other causes in Guam, jurisdiction over
which has not been transferred by the legislature to other court or
courts established by it, and shall have such appellate jurisdiction
as the legislature may determine. The jurisdiction of and the
procedure in the courts of Guam other than the District Court of
Guam shall be prescribed by the laws of Guam.

“(b) The rules heretofore or hereafter promulgated and made
effective by the Supreme Court of the United States pursuant to
section 2072 of title 28, United States Code, in civil cases; section
°073 of title 28, United States Code, in admiralty cases; sections
3771 and 3772 of title 18, United States Code, criminal cases; and
section 30 of the Bankruptey Act of July 1, 1898, as amended
(title 11, U. S. C., see. 53), in bankruptcy cases; shall apply to
the District Court of Guam and to appeals therefrom.

“See. 23. (a) The United States Court of Appeals for the Ninth
Circuit shall have jurisdiction of appeals from all final decisions
of the District Court of Guam in all cases involving the Constitu-
tion, laws, or treaties of the United States or any authority exer-
cised thereunder. in all habeas corpus proceedings, and in all other

xxv

What has led to some confusion as to the status of
the District Court of Guam was the failure of Congress
in 1950 to include any structure for the appellate divi-
sion. Perhaps, such was not necessary until 1951 when
the First Guam Legislature expressed to Judge Maris,
their desire to have appeals heard by a panel of three
judges rather than simply the judge appointed by the
President to the District Court of Guam. Consequently,
the First Guam Legislature, with the advice of Judge

civil cases where the value in controversy exceeds $5,000, exclusive
of interest and costs.

“(b) Any party may appeal to the Supreme Court of the United
States from an interlocutory or final judgment, or order of the
District Court of Guam, holding an Act of Congress unconstitu-
tional in any civil action, suit, or proceeding to which the United
States or any of its agencies or any officer or employee thereof as
such officer or employee is a party. A party who has received notice
of appeal under this section shall take any subsequent appeal or
cross appeal to the Supreme Court. All appeals or cross ap
taken to other courts prior to such notice shall be treated as taken
directly to the Supreme Court. :

“Sec. 24. (a) The President shall, by and with the advice and
consent of the Senate, appoint a judge for the District Court of
Guam who shall hold office for the term of four years and until
his successor is chosen and qualified unless sooner removed by the
President for cause. The judge shall receive a salary payable by
the United States which shall be the same as the salary of the
Governor of Guam as provided by section 26(a) of this Act, and»
shall be entitled to the benefits of retirement provided in section
373 of title 28, United States Code. The Chief Justice of the
United States may, with the consent of the judge so assigned,
assign any United States circuit or district judge to serve as a
judge in the District Court of Guam whenever it is made to appear
that such an assignment is necessary for the proper dispatch of the
business of the court.

“(b) The President shall appoint, by and with the advice and
consent of the Senate, a United States attorney and United States
marshal for “uam to whose offices the provisions of chapters 31
and 33 of title 28, United States Code, respectively, shall apply.

“(e) The provisions of chapters 21, 41, 43, 49, and 57 of title 28,
United States Code, shall apply to the District Court of Guam.

“When, on motion of Mr. Peterson, said Senate amendments
were concurred in.” H. R. Jour., 81st Cong. 2d Sess. 683-84
(1950).

xxvi

Manis, who acted as judicial advisor to the territory,
was compelled to develop a structure and procedure
for the appellate division of the District Court. The
legislature enacted Public Law 17.

However, Congress acted to legitimize the structure
and improve the procedure of the appellate division in
1958. See 28 U. S. C. A., §1424 and §1424b. The com-
ments of Judge Maris, addressed to the Chairman of
the Committee on Interior and Insular Affairs, are very
enlightening.

“UNITED STaTES CouRT oF APPEALS
FOR THE THIRD CreculT

Philadelphia, Pa., March 14, 1957.
“Hon. Clair Engle, :

Chairman, Committee on Interior
and Insular Affairs, House of
Representatives,

Washington, D. C.

“Dear Congressman Engle: May I write you
in support of H.R. 4215, the bill to amend sections
22 and 24 of the Organic Act of Guam with respect
to the district court of that Territory. Having
spent 7 weeks on Guam in 1951 as a judicial ad-
viser to the Territorial government in the study
and revision of the local laws relating to the ju-
diciary, I acquired a firsthand knowledge of judi-
cial problems and procedure of the island. The
knowledge thus gained I have endeavored to keep
up to date by contacts and correspondence, and I
am happy to submit the following comments on the
bill in the light of that knowledge and experience.

“ce
.

ef

“Section 22(a) of the Organic Act of Guam also
provides that the district court shall have such ap-
pellate jurisdiction as the legislature may deter-
mine. The local judiciary act, Public Law 17, First
Guam Legislature, 1951, which was passed when I

- Was out there, conferred upon the district court

broad appellate jurisdiction to review the decisions
of the island court of Guam, an inferior court es-
tablished under the prior naval rule which was
continued by that act with municipal, domestic
relations, and probate-court jurisdiction. In line
with the Guamanian request for a procedure in
which appeals would be considered by a court of
3 judges, which as they pointed out is the tradi-
tional American method, the local act provided for
an appeliate division of 3 judges, the regular judge
of the court and 2 other judges to be assigned to the
court by the Chief Justice of the United States
under section 24(a) of the organic act. This appel-
late division has functioned heretofore through the
assignment to it by the Chief Justice of the two
district judges from Hawaii. See Eiban v. Gov-
ernment of Guam (115 F.Supp. 519).

“Section 2 of the bill would incorporate into sec-
tion 22(a) of the organic act an additional para-
graph recognizing and making suitable procedural
provisions for the appellate division of the district
court as it now exists under the local law. This will
eliminate any doubt as to the status of the appellate
division and will make it available to be designated
hereafter as the appellate court for the Trust Ter-
ritory of the Pacific Islands, a course which would
seem logical and u: the public interest since Guam
is centrally located in the trust territory area.
Congress undoubtedly intended the District Court

eer

of Guam to be a judicial bastion of American law
and justice in the western Pacific area. The appel-
late division of the court admirably serves that
purpose by providing in that area an appellate
tribunal of the accepted American type conven-
iently accessible to litigants.

“
.

“Sincerely yours,
“Albert B. Maris.”

S. Rep. No. 1582, 85th Cong. 2d Sess. (1958), 1958
U.S. Code & Admin. News 2628-30 (emphasis
added). |

In Judge Maris’ opinion, Congress undoubtedly in-
tended the District Court of Guam to be a judicial
bastion of American law and justice in the Western
Pacific area.

Congress intended to replace their original concept
of a Supreme Court of Guam with the District Court
of Guam and let the District Court be the appellate
court for all other courts established by the legislature.
It was never Congress’ intention that a court, other
than one established by itself, would be the highest
court in the Territory of Guam.

What caused Congress to abandon the proposal for
the Supreme Court of Guam and to pattern Guam’s
judicial system after that of the Virgin Islands was
probably a matter of practicality. In the original pro-
posal, Guam would have been placed in the Northern
District of California. To expect parties to litigate
Federal cases in a forum more than 5,000 miles from
their situs would have been impractical if not grossly

xxix

unreasonable. Moreover, one of the principal purposes
of the Organic Act was to provide American business
enterprise in the area with a center and a court which
would provide the full protection of American laws
and legal procedure. The District Court in Hawaii
was too distant to serve this purpose.*

Yet, as pointed out by Judge Maris in his letter of
July 6, 1950, addressed to the Honorable Joseph C.
O’Mahoney, a Federal gourt in Guam would have very
little business. Consequently, Congress devised the plan —
to establish a court which would have combined local
and Federal jurisdiction but with the provision that
the Legislature of Guam would determine the extent of
the District Court’s local jurisdiction.

The respondent contends that the Legislature has
the authority to vest the appellate jurisdiction of the
District Court in another court, a court of its own

“A detailed sectional analysis of H.R. 7273 is set forth in the
appendix. Three points, however, may require further explanation.

Another section to which the Senate committee devoted consider-
able time and thought was that concerning the establishment of a
court system on Guam.

Given a period of peace, the growth of Guam as a rtation
and commercial center for American interests in the Far East
seems almost a foregone conclusion. American business enterprise
in the area will want, and need, a center in which it can have the
full protection of American laws and legal procedure.

Formerly this need was supplied by the United States Court for
China, which had its headquarters in Shanghai, but that court
was abolished by the treaty with China ending extraterritoriality.
The nearest American court to far eastern economic centers is
that in Hawaii, which is 12 or more hours away from Guam by
air. If Guam is to afford American business enterprise the pro-
tection and stability needed, a court in Guam which will have on-
the-spot jurisdiction in matters involving admiralty and business
reorganization is clearly indicated .. . .” U.S. Code Congressional
Service, 81st Congress, Second Session, 1950, P. 2843.

xxx

creation. If one accepts respondent’s argument then it
must necessarily follow that since its inception under
the Organic Act, the legislature has had the authority
to vest appellate jurisdiction in a court of its own
creation, such as the respondent court, determine the
appointment process of the judges of such court, and
fix the qualifications of the judges of such court. Such
a result is not logical given the fact that Sections 22,
23 and 24 of the Organic Act as originally introduced
and passed by the House of Representatives established
a Supreme Court of Guam with three justices, ap-
pointed by the President of the United States with the
advice and consent of the U. 8S. Senate. Furthermore,
the House set minimum qualifications for the justices.
Even in the draft of a proposed Organic Act prepared
by the Department of the Interior in 1949, Guam was
given a Supreme Court consisting of one judge, ap-
pointed by the President with the advice and consent of
the United States Senate. It is also interesting to note
that the United States District Court for the District
of Hawaii had appellate jurisdiction over final judg-
ments of the Supreme Court of Guam in certain classes
of cases.°

5“ DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington 25, D.C., May 3, 1949.
Hon. Alben W. Barkley,
President of the Senate.

The judicial branch would consist of a supreme court, with a
single justice appointed by the President, with the advice and
consent of the Senate for a 6-year term, and of such inferior courts
as the legislature might create. The judicial district of Hawaii
would be extended to include Guam so that the United States
District Court for the District of Hawaii would have jurisdiction

xxxi

Moreover, until 1950, Guam had not developed to the
level that it could maintain a civil government. The
Organic Act provided Guam with its first civil govern-
ment. A Governor, appointed to‘serve a four-year term
by the President with the advice and consent of the
Senate of the United States, served as the executive.
In case of a vacancy in the Office of Governor, the
Secretary of Guam, also appointed by the President,
assumed the powers and duties of the Governor.

All bills enacted by the legislature were subject to
the Governor’s veto. However, the Governor’s veto
could be overridden by a 24 majority vote of the legis-
lature. If a bill were so overridden, it was then sent
to the President who had complete veto power over the
bill.®

In short, in 1950, Guam was an underdeveloped and
isolated possession of the United States which had
been ravaged by four years of war, including almost

over certain cases arising in Guam. It would review final judg-
ments of the Supreme Court of Guam in certain classes of cases.
Sincerely yours,
J. A. Krug,
Secretary of the Interior.”
6§1423i1. Approval of bills.

.... When a bill is returned by the Governor to the legislature
with his objections, the legislature shall enter his objections at
large on its journal and proceed to reconsider it. If after such
reconsideration, two-thirds of the legislature agree to pass it,
it shall be sent to the Governor. If he then approves it, he shall
sign it; if not, he shall within ten days transmit it to the Presi-
dent of the United States. If the President of the United States
approves it, he shall sign it. If he shall not approve it, he shall
return it to the Governor so stating, and it shall not be a law
If he neither approves it nor disapproves it within ninety days
from the date of transmittal to him by the Governor, it sbali
be a law in like manner as if he had signed it... .” Aug. 1, 1950,
c. 512, §19, 64 Stat. 389.

se

three years of enemy occupation. The Organic Act
gave Guam a measure of self-government but that mea-
sure of self-government did not include the power to
create a Supreme Court of Guam and to vest it with ap-
pellate jurisdiction, thus destroying the right to take
a direct appeal from Guam to the U. S. Court of Ap-
peals for the Ninth Circuit. The Organic Act estab-
lished an executive branch of government and a
legislative branch of government, both subject to the
President througlt his appointment power and his veto
power. Congress has never delegated to the legislature
the authority to establish an independent judiciary.

If the respondent’s contention is accepted, then Con-
gress must have intended in 1950 to give the legislature
the power to establish a Supreme Court, the decisions
of which could not be appealed to the Supreme Court
of the United States. 28 U. S. C. A., $1257, provides
the method and procedure of appealing from the final
judgments or decrees rendered by the highest court of
a State to the Supreme Court. At the time of the en-
actment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970, Congress amended
§1257 to include the District of Columbia Court of
Appeals within the term “highest court of a State.”
In 1961, Congress added §1258 of Title 28 to the
United States Code to provide a method and proce-
dure for appeals from the decisions of the Supreme
Court of Puerto Rico to the Supreme Court of the

United States.

As created by the legislature, the Supreme Court
of Guam is a court which will hear appeals cn all

eee

final decisions involving actions arising under the
laws of Guam, yet the decisions of the Supreme Court
will not be reviewable by any other court. It is illogical
to assume that Congress intended such a result when
it created a civil government for Guam, ie., that party
litigants in Guam should have their rights of judicial
review sharply curtailed rather than strengthened.

The Organic Act of Guam was modeled after the
organic act of other territories.

“DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington 25, D.C., May 3, 1949.

Hon. Alben W. Barkley,
President of the Senate.

In accordance with that recommendation, the
enclosed draft of organic legislation for Guam
has been prepared, in consultation with the De-
partinent of the Navy. The bill is modeled upon
the organic acts of the other Territories. It would
provide for a local government consisting of the
traditional three branches, executive, legislative,
and judicial, to be under the supervision of such
civilian department or agency as the President
may direct.

Sincerely yours,

J. A. Krug, .
Secretary of the Interior.”

Other territories have had Supreme Courts, but
those courts have been created by Congress and ac-
compained by numerous limitations.

xXXxiv

Congress established a supreme court and circuit
courts for the Territory of Hawaii in 1900. The ap-
pointment of the justices and judges of such courts
was made by the President with the advice and con-
sent of the U. S. Senate. 48 U. S. C. A., §631. Until
1948, appellate jurisdiction for the courts of Hawaii
rested with the U. S. Court of Appeals for the Ninth
Circuit. 48 U.S. C. A., $645.

Alaska did not obtain a Supreme Court until state-
hood. Prior to that, the judicial authority in the Ter-
ritory of Alaska lay in the District Court for the
District of Alaska, 48 U.S. C. A., $101.

When the United States acquired Puerto Rico in
1898, the territory already had a viable civil govern-
ment. The court system as it existed was adopted
including the Supreme Court of Puerto Rico. How-
ever, the President of the United States appointed
the chief justice and the associate justices of the
supreme court. 48 U. S. C. A., §861. After Puerto
Rico becaine a commonwealth in 1952, a right of
appeal existed from the Supreme Court of the Com-
monwealth of Puerto Rico to the Court of Appeals
of the First Circuit. At the time, the Court of Ap-
peals had jurisdiction to review cases which presented
Federal or non-Federal question: In practice, how-
ever, in cases involving non-Federal questions, the
Court of Appeals would not reverse the Supreme
Court of the Commonwealth of Puerto Rico upon a
point of local law unless the decision was “inescapably
wrong or patently erroneous.” In 1961, Congress
eliminated this limitation on the Supreme Court of
the Commonwealth of Puerto Rico with enactment of

xxxXV

Public Law 87-189, which gave the Supreme Court
the same status as the highest court of any State of
the United States. U. 8. Code Congressional and Ad-
niinistrative News, 87th Congress, First Session, 1961,
pages 2448-2451.

The judicial system for the Territory of the Virgin
Islands was established by Congress before the enact-
ment of the Organic Act of Guam. According to Judge
Maris in his letter of July 6, 1950, addressed to
Senator Joseph C. O’Mahoney, the District Court of
Guam was patterned somewhat upon the District
Court of the Virgin Islands. Under the Organic Act
of the Virgin Islands, the District Court is superior
to all other courts established or hereafter established
by loca] law. 48 U.S. C. A., §1405x.

For almost all important matters, jurisdiction lies
solely in the District Court, 48 U. S. C. A., §1406.
The courts created by local law have only concurrent
jurisdiction with the District Court with regard to
certain misdemeanors and very minor civil cases. In
effect, the Virgin Islands has less authority to alter
its judicial system than does Guam. A movement has
been underway in the Virgin Islands to influence Con-
gress to amend the Organic Act of the Virgin Islands
and provide the territory with a judicial system sim-
ilar to that provided Guam in its Organic Act. This
plant has been formulated with the participation of
Senior United States Cireuit Judge Albert Branson
Maris.*

7Court Modernization in the Virgin Islands by John B. Marsh,
JupicattrRe, VoL. 58, No. 2, August-September 1974, P. 86.

xxxvi

Nowhere in the history of the various territories
of the United States has the respondent shown that
Congress has granted a territory the power to estab-
lish a Supreme Court or to deny the people of that
territory recourse to the Supreme Court of the United
States. In no known instance has a Supreme Court
of a territory been established other than by an Act
of Congress. |

In light of the legislative history of the Organic
Act of Guam and the Organic Acts of the various
other territories, the phrase “and shall have such
appellate jurisdiction as the legislature may determ-
ine” must be interpreted to mean that the legislature
has the power to determine from which decisions of
the territorial courts a right of appeal exists. How-
ever, if the legislature creates a right of appeal, such
appeal must lie with the District Court of Guam,
and from there to the U. 8. Court of Appeals for
the Ninth Circuit and on to the Supreme Court of
the United States.

The Organic Act serves as a Constitution for Guam.
As such, it creates the appellate court for the territory
but gives the legislature the power to determine what
decisions are appealable, the appellate powers of the
District Court, and the procedure for taking appeals.
The legislature has so provided in Sections 63-67 of
the Guam Code of Civil Procedure.

It is not the position of this court that Congress
is against the establishment of a Supreme Court.
Congress may at this time favor the creation of a

XXxXvii

supreme court, but it is incumbent upon the legisla-
ture and the people of Guam to seek the approval
of Congress through an amendment to the Organic
Act.

It is the finding of this court that all sections of
Public Law 12-85, pertaining to the Supreme Court
of Guam or the Chief Justice or Associate Justices
of the Supreme Court, or which divest in any way
the appellate jurisdietion of this court including, but
not limited to, Section 2; Section 3, with the exception
of those provisions which are added to the Code of
Civil Procedure in Sections 64, 66, 67 and 68; Section
12 with regard to the inclusion of the Chief Justice
in the Judicial Council; Section 14, with regard to
the reference to the Chief Justice; Sections 17, 26,
27, 28, 29, 32, 34, 35, 36, 37, 38, 41, 42, 43, and 44; the
references to the justices of the Supreme Court in
Section 46; and the sentence referring to the Supreme
Court in Section 55 are nuli and void.

During the pendency of the expected appeal on this
decision, final decisions and decrees of the Superior
Court of Guam shall be appealed to the District Court
in accordance with the rules of appellate procedure
promulgated by the Judicial Council on June 1, 1962.

Petitioner is hereby granted his relief.
Let Judgment issue.
Dated this 4th dar of November, 1974.

/s/ Cristobal C. Duenas
Cristobal C. Duenas,
Judge, District Court of Guam

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1895%3A1. Public record. Not legal advice.