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A certificate of division was a source of appellate jurisdiction from the circuit courts to the Supreme Court of the United States from 1802 to 1911. Created by the Judiciary Act of 1802, the certification procedure was available only where the circuit court sat with a full panel of two: both the resident district judge and the circuit riding Supreme Court justice.[1]

In criminal cases, the certificate of division was the only source of appellate jurisdiction from the circuit courts (save original habeas) until 1889. In civil cases, although ordinary writs of error were authorized, the certificate of division remained important becuase it permitted appeals without regard to the amount in controversy and interlocutory appeals. Inasmuch as the certificate of division permitted the Supreme Court some measure of control over its docket, it is a precursor to modern certiorari jurisdiction.

Background

Alexander Dallas suggested a certificate of division procedure in a 1798 case where he acted as both counsel and reporter.

Circuit courts

Under the Judiciary Act of 1789, the United States circuit courts were composed of a stationary United States district court judge and any two Supreme Court justices riding circuit.[2] Following a brief intermezzo with the soon-repealed Midnight Judges Act of 1801 (which briefly abolished circuit riding), under the Judiciary Act of 1802, the circuit courts were composed of a stationary district judge and one Supreme Court justice assigned to the circuit.[3][n 1]

Section 4 of the Judiciary Act of 1789 had provided that two judges or justices would constitute a quorum.[4] The practice of sending a single circuit rider was authorized by the Judiciary Act of 1793,[5]), but was already common before 1793.[4] Under the Judicial Act of 1802, a single judge (either the district judge or the circuit rider) could preside alone.[6]

Early tie-breaking methods

In United States v. Daniel (1821), Chief Justice John Marshall recounted the history of tie-breaking methods on the circuit courts. If one judge or justice disagreed with the other two, the majority prevailed.[7] If only one Supreme Court justice could attend, and a division arose between the district judge and the Supreme Court justice, the practice was to hold the case over until the next term.[7] If a one-to-one division persisted with a different circuit riding justice, the opinion of the previous circuit rider broke the tie.[8] After 1802, in cases where both judges sat, though, one-to-one divisions were less likely to be resolved by continuing the case until the next term because the circuit riding justice would be the same (barring a change in membership on the Court).[9]

Prior to 1802, other than waiting for the following term, there was no way to resolve one-to-one ties on the circuit courts. Alexander Dallas, the Supreme Court reporter (and also the reporter of an ecclectic assortment of cases from state and federal couts in Pennsylvania), noted in United States v. Worrall (C.C.D. Pa. 1798):

The Court being divided in opinion, it became a doubt, whether sentence could be pronounced upon the defendant; and a wish was expressed by the Judges and the Attorney of the District, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the Supreme Court, upon the important principle of the discussion: But the counsel for the prisoner [Dallas himself] did not think themselves authorized to enter into a compromise of that nature.[10]

Worrall involved a criminal prosecution of Robert Worrall for bribing Tench Coxe, the federal Commissioner of Revenue.[10] After Worrall's conviction by jury, Dallas had moved for a judgment of acquittal on the ground that the Judiciary Act of 1789 did not empower the circuit court to try common law crime. (In 1798, there was no federal statute criminalizing the bribery of a federal official.)[10] Despite the divided opinion in the circuit court, Worrall was sentenced to three months imprisonment and fined $200.[10]

Statutory basis

The Judiciary Act of 1802 permitted circuit courts could certify questions of law to the Supreme Court if the judges were divided on that question.[11] Specifically, § 6 provided:

Whenever any question should occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by said court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, that nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, farther proceedings can be had without prejudice to the merits: and provided also, that imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching said imprisonment or punishment.[12]

A 1872 statute modified the certificate of division procedure to require waiting for a final decision in the circuit court case first. In the interim, the opinion of the presiding judge was to prevail.[13] An 1874 statute repealed the 1872 modification as to criminal cases,[14] but left it in place as to civil cases.[15]

History

The Marshall Court heard thirty-one criminal cases arising from a certificates of division. Chief Justice Marshall and Justice Story in particular were known for making use of certificates of division while riding circuit. For example, Justice Marshall was one of the divided judges in United States v. Klintock (1820), United States v. Smith (1820), United States v. Amedy (1826), United States v. Turner (1833), and United States v. Mills (1833); and Justice Story played the role in United States v. Coolidge (1816),[16] United States v. Bevans (1818), United States v. Palmer (1818),[17] United States v. Holmes (1820), and Marchant.

While the statute provided only for the certification of "the point upon which the disagreement shall happen,"[18] the justices sometimes took the liberty of enlarging the question. For example, in United States v. Hudson (1812), the question certified was "whether the Circuit Court of the United States had a common law jurisdiction in cases of libel?" but the question answered was "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases?"[19] And, in United States v. Bevans (1818), the Court noted that "[i]t may be deemed within the scope of the question certified to this court" to inquire whether the murder was cognizable under § 3 of the Crimes Act of 1790, even though the defendant had only been indicted under § 8.[20]

Certificates of division began to fall into disuse as it became increasingly common for the circuit courts to sit with a single judge.[21] The Judiciary Act of 1869 (Circuit Judges Act) reduced the circuit riding duties of the Supreme Court justices and therefore reduced the possibility for certificates of division.[22] As Chief Justice Marshall wrote, he did not have "the privilege of dividing the court when alone."[23]

Despite intervening statutory developments that decreased the likelihood of division in the circuit courts, the Chase Court heard seventeen of its thirty-six criminal cases on certificates of division.

Use by type of case

In criminal cases

Justice Joseph Story wrote than common appeals in criminal cases, via a certificate of division, would result in "manifest obstruction of public justice."

The Judiciary Act of 1802 plainly did contemplate that certificates of division would issue in criminal cases. Section 6 provided that "imprisonment shall not be allowed, nor punishment in any case be inflicted, where judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment."[24] Justice Story—in his opinions for the Court—cautioned against the too frequent use of certificates of division in criminal cases. In United States v. Gooding (1827), for the Court, Justice Story wrote:

We take this opportunity of expressing our anxiety, least, by too great indulgence to the wishes of counsel, questions of this sort should be frequently brought before this Court, and thus, in effect, an appeal in criminal cases become an ordinary proceeding to the manifest obstruction of public justice, and against the plain intendment of the acts of Congress.[25]

Not every question or every criminal case was eligible for a certificate of division. In United States v. Daniel (1821), the Court held that a motion for a new trial—as authorized by the § 17 of the Judiciary Act of 1789[26]—could not be the subject of a certificate of division; rather, the division would operate a rejection of the motion.[27] Similarly, in United States v. Bailey (1835), the Court held that the question of whether the evidence was legally sufficient to support the offense charged could not be certified.[28] In United States v. Briggs (Briggs I) (1847), the Court further limited its jurisdiction to hear criminal certificates of division by holding that the question of whether a demurrer to an indictment should be sustained was to general to be certified.[29]

In United States v. Hamilton (1883), the Court reaffirmed its earlier holdings that certificates could not issue from motions to quash an indictment.[30] But, in United States v. Rosenburgh (1868)[31] and United States v. Avery (1871),[32] the Court held that a motion to quash an indictment could not be so certified, even if the motion calls into question the jurisdiction of the circuit court.

In habeas cases

In Ex parte Tom Tong (1883), the Court held that—under 1872 amendments to the certification procedure, which went into effect during the Chase Court-era—because habeas corpus was a civil proceeding, questions arising in habeas cases could not be certified to the Supreme Court until a final judgment had been entered.[33] In Ex parte Milligan (1866), after the repeal of those amendments, the Court held that habeas petitions in the circuit courts could be a source of certified questions to the Supreme Court.[34]

Abolition

In 1889, Congress created a right of ordinary appeal in capital cases.[35] In 1891, Congress extended this right to serious crimes.[36] The 1891 act did not explicitly repeal the authorization to issue certificates of division, but § 14 provided that prior, inconsistent laws were repealed. In United States v. Hewecker (1896), the last criminal certificate of division case, the Court held that the 1891 act was an implied repeal of the authorization of certificates of division in criminal cases.[37]

Felsenheld v. United States (1902) was the last civil certificate of division case.[38] The possibility of civil certificates of division was not completely abolished until the Judicial Code of 1911 abolished the circuit courts.[39]

Analysis

Several scholars have argued that certificates of division were pro forma, and that the judge and justice would merely agree to disagree, often without writing opposing opinions.[40] For example, with the circuit court decision leading up to United States v. Marchant (1827), the reporter records that "[t]he district judge concurred in this opinion; but as it was a matter of not infrequent occurrence, and important to the practice of the court, the judges afterwards divided in opinion for the purpose of obtaining a solemn decision of the superior court."[41] Similarly, the United States v. Ortega (1826) circuit court opinion notes that the "point was taken to the supreme court upon a proforma certificate of a division of opinion in this court."[42]

White writes that "the certificate of division procedure constituted the principal opportunity by which they could control their docket."[43] It was common for Marshall Court justices, while circuit riding or on vacation, to exchange letters about cases in the circuit courts which might be appropriate for certificates of division.[1]

See also

Footnotes

  1. ^ The justices were to divide the circuits among themselves by agreement; failing that, the President was to assign the justice to circuits. Judiciary Act of 1802, § 5, 2 Stat. 156, 158.

Notes

  1. ^ a b White, 1989, at 21.
  2. ^ Judiciary Act of 1789, § 4 ,1 Stat. 73, 74–75.
  3. ^ Judiciary Act of 1802, § 4, 2 Stat. 156, 157–58.
  4. ^ a b Erwin C. Surrency, A History of Federal Courts, 28 Mo. L. Rev. 214, 219 (1963).
  5. ^ Judiciary Act of 1793, § 1, 1 Stat. 333, 333–34.
  6. ^ Judiciary Act of 1802, § 4 proviso, 2 Stat. 156, 158.
  7. ^ a b United States v. Daniel, 19 U.S. (6 Wheat.) 542, 547 (1821).
  8. ^ Judiciary Act of 1793, § 2, 1 Stat. 333, 334. See Daniel, 19 U.S. at 547.
  9. ^ Daniel, 19 U.S. at 548.
  10. ^ a b c d United States v. Worrall, 28 F. Cas. 774 (C.C.D. Pa. 1798).
  11. ^ White, 1984, at 1, 10–11, 20–30.
  12. ^ Judiciary Act of 1802, § 6, 2 Stat. 156, 159–61.
  13. ^ Act of June 1, 1872, § 1, 17 Stat. 196 (codified at Rev. Stat. 650, 651, 652, 693, and 697).
  14. ^ Rev. Stat. §§ 651, 697.
  15. ^ Rev. Stat. §§ 650, 652, 693.
  16. ^ Rowe, 1992, at 931–34.
  17. ^ John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int'l L. 351, 362 n.64 (2010); White, 1989, at 730–31.
  18. ^ Judiciary Act of 1802, § 6, 2 Stat. 156, 159.
  19. ^ Rowe, 1992, at 930.
  20. ^ United States v. Bevans, 16 U.S. (3 Wheat.) 336, 389 (1818).
  21. ^ Felix Frankfurter & James McCauley Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 31–32, 79–80 (1928); Anthony G. Amsterdam, Search, Seizure, and Section 2255; A Comment, 112 U. Pa. L. Rev. 378, 383 n.24 (1964); Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. Comp. & Int'l L. 1, 7 n.41 (2011).
  22. ^ Judiciary Act of 1869 (Circuit Judges Act), 16 Stat. 44.
  23. ^ Letter from John Marshall to Joseph Story (July 13, 1819), in 8 The Papers of John Marshall 352, 352 (Charles F. Hobson ed., 1995).
  24. ^ Judiciary Act of 1802, § 6, 2 Stat. 156, 161.
  25. ^ United States v. Gooding, 25 U.S. (12 Wheat.) 460, 467–68 (1827).
  26. ^ Judiciary Act of 1789, § 17, 1 Stat. 73, 83.
  27. ^ United States v. Daniel, 19 U.S. (6 Wheat.) 542 (1821).
  28. ^ United States v. Bailey, 34 U.S. (9 Pet.) 267 (1835).
  29. ^ United States v. Briggs (Briggs I), 46 U.S. (5 How.) 208 (1847).
  30. ^ United States v. Hamilton, 109 U.S. 63 (1883).
  31. ^ United States v. Rosenburgh, 74 U.S. (7 Wall.) 580 (1868).
  32. ^ United States v. Avery, 80 U.S. (13 Wall.) 251 (1871).
  33. ^ Ex parte Tom Tong, 108 U.S. 556 (1883).
  34. ^ Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
  35. ^ Act of Feb. 6, 1889, §6, 25 Stat. 655, 656.
  36. ^ Judiciary Act of 1891 (Evarts Act), § 5, 26 Stat. 826, 827.
  37. ^ United States v. Hewecker, 164 U.S. 46 (1896).
  38. ^ Felsenheld v. United States, 186 U.S. 126 (1902).
  39. ^ Judicial Code of 1911, 36 Stat. 1087.
  40. ^ White, 1988, at 164–80; Alison L. LaCroix, Federalists, Federalism, and Federal Jurisdiction, 30 Law & Hist. Rev. 205, 238 n.113 (2012); White, 1989, at 730 n.14; White, 2009, at 321 n.4, 325 n.17.
  41. ^ United States v. White, 28 F. Cas. 580, 584 (C.C.D. Mass. 1826) (No. 16,682).
  42. ^ United States v. Ortega, 27 F. Cas. 359, 362 (C.C.E.D. Pa. 1825) (No. 15,971).
  43. ^ White, 1989, at 20.

References

  • Gary D. Rowe, The Sound of Silence: United States v. Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L.J. 919 (1992).
  • G. Edward White, The Working Life of the Marshall Court, 1815–1835, 70 Va. L. Rev. 1 (1984).
  • G. Edward White, The Marshall Court and Cultural Change, 1815–35 (1988).
  • G. Edward White, The Marshall Court and International Law: The Piracy Cases, 83 Am. J. Int'l L. 727 (1989).
  • G. Edward White, Neglected Justices: Discounting for History, 62 Vand. L. Rev. 319 (2009).

Further reading

  • James William Moore & Allan D. Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1 (1949).
  • Aaron Nielson, The Death of the Supreme Court’s Certified Question Jurisdiction, 59 Cath. U. L. Rev. 483 (2010).
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