                                                                          O ctober 5, 1977


77-57       MEMORANDUM OPINION FOR THE
            ASSOCIATE ATTORNEY GENERAL
            Impact of Panama Canal Zone Treaty on the Filling
            of the Vacancy in the Office of the District Judge
            for the United States District Court for the District
            of the Canal Zone


   I am replying to your inquiry whether and how the current vacancy
in the Office of the District Judge for the United States District Court
for the District of the Canal Zone should be filled in the light of the
proposed Canal Zone Treaty.
  The District Judge for the United States District Court for the Canal
Zone is appointed for a term of 8 years and serves until his successor is
appointed unless the judge is sooner removed by the President for
cause. 3 Canal Zone Code, § 5. Under the proposed Panama Canal
Treaty, Article XI, 1, 5, the courts of the United States in the Canal
Zone will be abolished after the expiration of a period of 30 months
following the entry into force of the Treaty.1 Hence, it is likely that the
U.S. District Court for the Canal Zone will be abolished prior to the
expiration of his statutory term.2 In our opinion, the abolition of the
district court will automatically terminate the tenure of the judge ap-

   1 D uring that transition period, the jurisdiction o f the courts will be diminished because
they will be unable to take any new cases o f a private civil nature; they will, however,
retain full jurisdiction to dispose of cases instituted and pending prior to the entry into
force of the Treaty. Article XI, 6. It also appears that the jurisdiction of the United States
courts in the Canal Zone in criminal cases during the transitional period will be narrower
than it is now. Article XI, 2.
   2 Article X, 7, of the Treaty contains certain provisions designed to protect persons
w ho are displaced as the result o f the discontinuance of United States activities in the
Canal Zone. None of these, however, appears to be applicable. Reemployment by the
United States is limited to persons employed by the Panama Canal Company o r the Canal
Zone Government. The district judge does not come within either category. The Treaty
also provides that persons previously employed in activities for which the Republic of
Panama assumes responsibility as the result o f this Treaty “will be continued in their
employment to the maximum extent feasible by the Republic of Panama.” [Emphasis
added.] It is safe to assume that the Republic o f Panama will not consider it “feasible” to
continue the United States district judge in office when it becomes fully responsible for
the judicial system in the Canal Zone.

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pointed to that court. We believe, however, that it would be preferable
for legislation implementing the Treaty to provide, as in the Alaska and
Hawaii Statehood Acts,3 that the tenure of the district judge shall
terminate upon the abolition of his court.4
    The question whether the tenure of a judge outlasts the existence of
his court is not new. It first became prominent in 1802 at the time of
the repeal of the Circuit Court Act passed toward the end of the
Adams Administration. A t that time Congress took the position that the
abolition of the circuit courts terminated the tenures of the circuit
judges even though they held commissions during good behavior. The
constitutionality of that action, however, was never judicially tested
because at that time the United States had not waived its immunity
from suit in such cases. See Frankfurter and Landis, “The Business of
the Supreme Court,” pp. 26-28, fn. 75. Congress apparently was aware
of the vulnerability of its position. Thereafter courts whose judges had
lifetime tenure were as a rule abolished only while the offices were
vacant.
    The effect of the abolition of a court on the tenure of its judges arose
regularly when a territory became admitted as a State, because the
admission had the effect of abolishing the territorial courts even if the
Act of admission did not expressly so provide. Benner v. Porter, 50 U.S.
(9 How.) 235 (1850). As far as we have been able to determine, only
the Acts admitting Alaska and Hawaii dealt specifically with the prob­
lem here at hand. Those statutes provided expressly for the term of the
territorial courts and that the tenure of the territorial judges should
simultaneously come to an end. We have been informed by the Admin­
istrative Office o f United States Courts that the territorial judges in
those two States did not receive any compensation following the aboli­
tion of the territorial courts, other than their retirement benefits, if any,
which had been specifically preserved by the Acts of admission.5
   The earlier Statehood Acts appear to have been silent on both issues,
i.e., the abolition of territorial courts and the termination of the tenure
of the territorial judges.® We have not been able to discover the actual
practice that prevailed in those situations. The last admissions antedat­
ing those of Alaska and Hawaii occurred in 1912 (Arizona and New
Mexico), and the Administrative Office of United States Courts, estab­
lished only in 1939, has no pertinent records.
   We suspect, but cannot establish definitively, that when, upon the
admission of a new State, the territorial courts located in it were
  5 Section 18 o f the Alaska Statehood Act and §9(a) o f the Hawaii Statehood Act.
  • An appointment of the judge for a period to terminate 30 months after the entry into
force of the Panama Canal Treaty would not solve the problem because the effect of an
officer’s appointment is governed by the statute under which he is appointed and not by
the language of the nomination or of the commission. Quackenbush v. United States, 177
U.S. 20, 27 (1900); 2 Op. A tt’y. Gen. 410, 412 (1831); 16 Op. A tt’y. Gen. 656 (1880).
  ■Alaska Statehood Act, § 12; Hawaii Statehood Act, § 14.
  •T h e Acts o f admission of New Mexico, Oklahoma, and Wyoming contained virtually
identical standard clauses, which were silent on this issue.

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 abolished, the territorial judges simultaneously lost their judicial com­
 missions and their right to compensation. Any claim of a territorial
 judge for his compensation after the termination of his court presum­
 ably would have resulted in his removal.7
    T here are several grounds for rationalizing the limited tenure of
 territorial judges. They are, however, inconclusive on the point here
 involved. Glidden v. Zdanok, 370 U.S. 530, 545-547 (1962), explains
 that the territorial courts were staffed with judges who did not have
 life tenure, because, in view of the temporary nature of the territorial
 status, it would have been impractical to invest the judges of those
 transitional courts with a tenure “which Congress could not put to use
 and that the exigencies o f the territories did not require” (at 547). This
 passage is equivocal on the issue here involved. It might merely mean
 that by giving the territorial judges limited tenure, Congress could
 reduce the Government’s financial burden by having to pay the judges
 after the admission of the State only for the duration o f their unexpired
 terms—until recently usually 4 years—rather than for life.
    M oore’s Federal Practice Vol. I, § 0.4[1], points out (63-64) that
 legislative courts such as territorial courts are exempt from the require­
ments o f Article III, § 1, o f the Constitution that judges shall hold their
offices during good behavior and that their compensation cannot be
diminished while in office. This passage also is silent as to whether the
abolition of a territorial court results in the termination of the judge’s
tenure and o f his right to compensation in the absence of a specific
statutory provision to that effect. It does, however, support the consti­
tutionality o f legislation, similar to the Alaska and Hawaii Statehood
Acts, which provide expressly that upon the abolition of the court the
judge’s tenure should come to an end even if his statutory term had not
expired at that time.
    We therefore conclude that the tenure of a Canal Zone judge termi­
nates when his court is abolished even if his statutory term has not
expired at that time. In order, however, to eliminate any possible doubt
on this issue and to obviate any future dispute or litigation on the issue,
we recommend that a provision to that effect be included in legislation
implementing the Treaty.

                                                    John M . H arm on
                                                 Assistant Attorney General
                                                         Office o f Legal Counsel




  7 McAllister v. United States, 141 U.S. 174 (1891), confirmed the President’s unlimited
pow er to remove territorial judges. That power was questioned only in 1926 (Myers v.
United States, 272 U.S. 52, 157-158), and denied in Humphrey's Executor v. United States,
295 U.S. 602, 626-627, 629 (1935).

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