Have you ever thought about whether the judge or judges who are deciding your client's case are authorized to sit on the case? That's a question that lawyers don't normally even think about. But maybe, just maybe, that should be an issue you at least turn your mind to.
Picture this. Your client has been convicted on federal narcotics charges in the District Court of Guam, a United States territorial court. You appeal to the Ninth Circuit and the three judges who hear your appeal affirm the conviction. What do you do? How about punting? How about arguing that the federal district court judge who was appointed to the three-judge panel, was not authorized to hear the appeal? That's what counsel for two petitioners for cert to the U.S. Supreme Court did. And their attorneys had not even raised that issue before they submitted the case for decision by the court of appeal. Moreover, they had not raised the issue in any petition for rehearing.
What did the U.S. Supreme Court do? In a 5-4 opinion, it granted the petition for cert, vacated the judgments of the court of appeals, and remanded the case for further proceedings.
Why the federal district judge was not authorized to sit gets a bit complicated. The very short version is that the district judge who sat was an Article IV territorial-court judge who had been appointed by the President and affirmed by the Senate for a ten-year term. The high court held that the judge was not qualified to sit because that judge was an Article IV and not an Article III judge. Indeed, the Solicitor General conceded in the Supreme Court that the panel was improperly constituted.
But, what about that failure of the defendants to raise the issue below? Could the defendants wait until after they lost their appeal and then raise the issue? The Court held that they could in this case:
"[T]o ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners' part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel."
What makes this out-of-the-box solution even more interesting is that, according to the Government, the improper composition was "an isolated, one-time mistake."
So, this is just one more to perhaps at least think about. One day you might end up with an "isolated" judge who just was not authorized to sit on your client's case. But you probably won't think about that unless you think about that. Nguyen v. United States, No. 01-10873, June 9, 2003.
Posted by ajlevy at July 4, 2003 6:01 PM