Rehearing Denied June 11, 1973.
See 412 U.S. 944.
On petition for writ of certiorari to the District of Columbia
Court of Appeals.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice
STEWART, and Mr. Justice MARSHALL concur, dissenting.
Petitioner was convicted of larceny. The District of Columbia
Court of Appeals reversed. 241 A.2d 446. The United States Court of
Appeals reversed the latter court, 133 U.S.APP.D.C. 337,
410 F.2d
1036, and remanded the case to the District of Columbia Court
of Appeals for a ruling on the propriety of the trial court's
instruction. That court held that the instructions had not been
prejudicial and the United States Court of Appeals affirmed.
Thereafter petitioner sought relief by way of coram nobis. The
trial court dismissed the case without prejudice and the District
of Columbia Court of Appeals affirmed. During the time petitioner's
original or direct appeal was being considered by the court Frank
Q. Nebeker was Assistant United States Attorney in charge of the
Appellate Section in the office of the United States Attorney for
the District. One of his duties was to review the appellate briefs
submitted by that office of the appellate courts. His name was on
the brief opposing petitioner on the appeal. He was named to the
District of Columbia Court of Appeals by President Nixon in May of
1969. When the coram nobis action was brought to the District of
Columbia Court of Appeals it was heard by a three-judge panel which
included Nebeker. His prior role in the case was not brought to his
attention and he doubtless was unaware of the fact that this case
had been one of the fact that this he had processed while in the
United States Attorney's office.
Page 411 U.S.
974 , 975
Nonetheless Canon 3C(1)(b) of the recently adopted Code of
Judicial Conduct provides:
'A Judge should disqualify himself in
a proceeding in which his impartiality might reasonably be
questioned, including but not limited to instances where . . . he
served as lawyer in the matter in controversy. . . .'
This Canon, as it applies to this case, is merely a reflection
of the basic concept of due process of law that a person should not
serve as both prosecutor and judge.
The matter might not be considered of any great moment here if
the three judges in the panel had taken part. But one of the three,
Judge Yeagley, did not participate in the decision. Hence in one
view there was only a single qualified judge sitting on the appeal.
That fact makes singularly appropriate the suggestion of the
Solicitor General that it may be just under the circumstances to
vacate the judgment of the Court of Appeals for the District of
Columbia and remand for further proceedings. I would do just
that.
Although this issue may not rise to the level of a
constitutional question and there is no federal statute involved,
we should take this action under our supervisory authority over the
administration of justice in the federal courts. See, e. g.,
Mallory v. United States,
354 U.S. 449, 452-453;
McNabb v. United States,
318 U.S.
332, 341; Nardone v. United States,
308 U.S. 338, 341-342, 84
L. Ed. 307. The District of Columbia Court of Appeals, established
by Congress pursuant to Art. I, 8, Cl. 17, of the Constitution,1
clearly is within the parameters of the federal
Page 411 U.S.
974 , 976
court system. See Embry v. Palmer,
107 U.S.
3, 10; Moss v. United States, 23 App.D.C., 475, 482-483. The
judges of that court are appointed, with the advice and consent of
the Senate, by the President. [
Footnote 2] It is true, of course, that this Court
normally will not review decisions of the courts of the District of
Columbia which involve merely questions of 'local law.' See, e. g.,
General Motors Corp. v. District of Columbia,
380 U.S. 553, 556-557;
Griffin v. United States,
336 U.S. 704, 717-718. To
this extent the courts of the District may be comparable to state
courts. [
Footnote 3]
Nevertheless, we heretofore have exercised jurisdiction where a
decision 'has an impact not confined to the Potomac's shores . .
..' General Motors Corp. v. District of Columbia, supra, 380 U.S.
at 556, 85 S. Ct. 1156. See also Miller v. United States,
357 U.S.
301, 306.
Page 411 U.S.
974 , 977
In this case any appearance of impropriety may reflect adversely
on the federal judiciary as a whole. Canon 1 of the Code of
Judicial Conduct states that '[a]n independent and honorable
judiciary is indispensable to justice in our society.' Canon 2
provides that a judge 'should conduct himself himself at all times
in a manner that promotes public confidence in the integrity and
impartiality of the judiciary,' and the commentary to that Canon
states that he 'must avoid all impropriety and the appearance of
impropriety.' We must bear the ultimate responsibility, within the
limits of our jurisdiction,4 for insuring that the federal
judiciary adheres scrupulously to these principles of impartial
adjudication.
Footnotes
Footnote 1 See District of
Columbia Court Reform and Criminal Procedure Act of 1970,
11-101(2)(A), Pub.L. No. 91-358, 77 Stat. 478. We discussed the
differences between 'legislative,' or Art. I, courts and
'constitutional,' or Art. III, courts in Palmore v. United States,
411 U.S. 389 and
Glidden Co. v. Zdanok,
370 U.S. 530.
Footnote 2 District of
Columbia Court Reform and Criminal Procedure Act of 1970, supra,
11-1501(a).
Footnote 3 The House Report
states that the District of Columbia Court of Appeals will be 'the
highest court in the jurisdiction, similar to a state Supreme
Court,' H.R.Rep.No.91-907, 91st Cong., 2d Sess. 23, and that '[t]
he jurisdictional changes recommended by your Committee will result
in a Federal-State court system in the District of Columbia
analogous to the court systems in the several states.' Id., at
35.
The Senate Report states:
'This constitutional authority for
the creation of a local court system, distinct from the Federal
court system established pursuant to article III, has been
recognized in Keller v. Potomac Electric Power Co.,
261 U.S. 428 (1923);
Federal Radio Commission v. General Electric Co.,
281 U.S. 464 (1930); and
O'Donoghue v. United States,
289 U.S. 516 ( 1933). The
Committee believes that there is nothing in the result reached in
Glidden Co. v. Zdanok,
370 U.S. 530 (1962 ),
which denies the congressional authority to create a local court
system for the District of Columbia which is distinct from the
Federal court system.' S.Rep.No.91-405, 91st Cong. 1st Sess.
18.
The statement that the new D.C. court system is 'distinct from
the Federal court system' obviously relates only to the distinction
between Art. I and Art. III courts. See n. 1, supra.
Footnote 4 This Court has
jurisdiction under 28 U.S.C. 1257(3). See District of Columbia
Court Reform and Criminal Procedure Act of 1970, supra, 11-102.
Under 28 U.S.C. 2106, we may vacate the judgment below and 'require
such further proceedings to be had as may be just under the
circumstances.'
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