Ninth Circuit Hears Arguments on Tiny Pacific Island Territory

A courthouse on the island of Saipan in the Pacific Ocean, about 6,000 miles from San Francisco, hosted the US’s largest federal appeals court for a special oral argument sitting Wednesday, the first time the court has held arguments in the Pacific territories in over two decades.

Saipan, only 44 square miles, is the capital of the Commonwealth of the Northern Mariana Islands, an unincorporated US territory formed in 1978. The federal district court overseeing the commonwealth is part of a long and complicated history of administering justice in the American territories.

The US Court of Appeals for the Ninth Circuit, which covers around 67 million people across nine states in the American West, has legal jurisdiction over the two federal district courts of the Northern Mariana Islands and the territory of Guam, an island about 130 miles from Saipan.

A panel of three Ninth Circuit judges, including Chief Judge Mary Murguia, heard appeals in a group of federal criminal cases at the Saipan federal courthouse Wednesday. Also on the panel was Judge M. Margaret McKeown, who chairs the Ninth Circuit Pacific Islands Committee which helps with judicial education and policy across the Pacific.

The Ninth Circuit’s trips to the island territories are rare. Among the most recent was a journey to Guam in 2002, said the court’s clerk, Molly Dwyer. It’s unclear if the court has ever heard cases on Saipan.

Two cases on the Wednesday docket involved an alleged criminal conspiracy to smuggle a group of Chinese nationals from Saipan to Guam without the proper immigration authority. The other involved the supervised release of a Guamanian convicted of firearm and drug offenses.

The hearing coincided with the Pacific Judicial Council’s mid-year conference, hosted in Saipan, which convenes judges, attorneys, and legal scholars from jurisdictions across the Pacific and the US mainland for educational sessions and presentations.

The Ninth Circuit, the largest appeals court by geography, population, and number of judges, is one of three circuits that hears appeals from territorial courts.

The Boston-based First Circuit hears appeals from the District Court in Puerto Rico, and the Philadelphia-based Third Circuit hears cases from the federal court in the US Virgin Islands. Judges in both those circuits travel twice a year to territories to hear cases.

Given the time and cost of traveling across the Pacific—a flight to Saipan from the Ninth Circuit’s San Francisco headquarters can take up to 18 hours—the court doesn’t have regular sittings in the island territories. Those cases are often heard when the Ninth Circuit sits in Honolulu, Hawaii.

Dwyer said the court didn’t send any law clerks to Saipan, but did send Circuit Executive Susan Soong along with portable camera equipment to allow the arguments to be live streamed and recorded, as is tradition with all Ninth Circuit hearings.

The court makes a priority to have a presence across the entirety of the Ninth Circuit, Dwyer said. Judges from the Northern Mariana Islands and Guam are invited to Ninth Circuit conferences on the mainland, and the appeals court has sent mediators out to the islands when the courts need help with the case load, she said.

“They’re part of the family,” Dwyer said. “We do the best we can to make sure they feel that.”

The District Court for the Northern Mariana Islands famously hosted WikiLeaks founder Julian Assange last year when he pled guilty to single espionage charge that let him walk free.

Territorial Courts

In many respects, the federal courts overseeing the Northern Mariana Islands and Guam are just like the other 92 district courts around the country. The island courts are referred to as “District Courts” and cases are appealed directly to the Ninth Circuit.

“When you look at what our relationship is with the Ninth Circuit, it’s like any other district court,” said Sean Frink, an attorney for the Marianas Legal Strategy Group LLC on Saipan. “They take good care of us.”

The biggest difference stems from the territorial status of the islands. The courts in the Northern Mariana Islands and Guam aren’t staffed by judges appointed under Article III of the Constitution who have lifetime tenures. They’re overseen by Article IV judges appointed to 10-year terms and can be replaced by the president after their tenure expires.

The same is true for the US Virgin Islands. Puerto Rico, although a territory, has an Article III district court after Congress conferred life tenure on the judges in 1966.

The time-limited tenure has drawn criticism. Although the island judges are asked to address the same kinds of constitutional questions that any district judge would confront, they don’t have the security of a lifetime appointment.

Frances Tydingco-Gatewood, Chief judge of the District Court of Guam, was first appointed in 2006. She has been unable to obtain Senate confirmation for her reappointment since her term expired in 2016. She still decides cases as a holdover judge until she is either reappointed or replaced.

The president “could replace her at any time,” said James Campbell, a constitutional law scholar who’s taught at Yale Law School and written extensively about territorial courts.

The US Supreme Court has affirmed some of the legal differences. In the 2003 case Nguyen v. United States, the Supreme Court ruled that the chief judge for the District Court of for the Northern Mariana Islands could not sit by designation on a three-judge Ninth Circuit panel composed of Article III lifetime tenure judges.

The Northern Mariana Islands Bar Association has for decades advocated for Article III status for the territorial judges. The Ninth Circuit Pacific Islands Committee has also recommended Article III status, but a change must ultimately come from an act of Congress.

“There’s a real question in these courts about their independence and legitimacy in view of their of second class status,” Campbell said.