Alaska, is not a judge of a court of the United States within the meaning of the exception in § 1768 of the Revised Statutes, relating to the tenure of office of civil officers, and was, prior to its repeal, subject to removal before the expiration of his term of office by the President, in the manner and upon the conditions set forth in that section.
"for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject to the conditions prescribed by law."
He took the required oath of office on the 23d day of August, 1884.
"Edward J. Dawne, of Oregon, to perform the duties of such suspended officer in the meantime, he being a suitable person therefor, subject to all provisions of law applicable thereto."
the same statute, suspended Dawne and designated Lafayette Dawson, of Missouri, to perform the duties of the suspended officer, subject to all the provisions of law applicable thereto. Dawson took the required oath of office December 16, 1885. Having been nominated and, by and with the advice and consent of the Senate, appointed to this position, Dawson was commissioned August 2, 1886, for the term of four years from that date, and until his successor should be appointed and qualified, subject to the provisions prescribed by law. He took the oath of office on the 3d of September, 1886.
Judge McAllister, without resistance, vacated the office on the 28th of August, 1885, and received the salary up to and including that date, after which he did not perform any of the duties or exercise any of the functions of the position. The salary appropriated for the period between August 29, 1885, and March 12, 1886, inclusive, has not been paid to anyone, and remains in the Treasury to the credit of the proper appropriation. Judge Dawson has received the salary since the latter date, except for the period between August 6, 1886, and September 2, 1886, the salary for which has not been paid to anyone, but remains in the Treasury.
The appellant has not instituted proceedings of any kind other than this action to determine his right or title to the office in question since August 28, 1885, on which day he vacated his position.
He claims by his petition in this case, "as due him for said salary from the 29th of August, 1885, to the 6th day of September, 1886, the sum of three thousand and seventy dollars."
to September 3, 1886, when his successor qualified, upon which basis there would be due him $221.91.
Although the determination of the second of these propositions may to some extent involve a decision of the first one, it is proper to remark that no question is distinctly raised by the petition as to the right of the appellant to hold the district judgeship for Alaska for the full term designated in his commission -- namely, four years, and until his successor was appointed and qualified. He sues only for the salary from the 29th of August, 1885, the day succeeding his suspension from office, to the 6th day of September, 1886, a few days after Dawson took the oath of office.
"SEC. 1767. Every person holding any civil office to which he has been or may hereafter be appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he was appointed, unless sooner removed by and with the advice and consent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except as herein otherwise provided."
after the commencement of each session of the Senate, except for any office which in his opinion ought not to be filled, nominate persons to fill all vacancies in office which existed at the meeting of the Senate, whether temporarily filled or not, and also in the place of all officers suspended; and, if the Senate during such session shall refuse to advise and consent to an appointment in the place of any suspended officer, then, and not otherwise, the President shall nominate another person as soon as practicable to the same session of the Senate for the office."
These sections were brought forward from the Act of March 2, 1867, regulating the tenure of certain civil offices, and the Act of April 5, 1869, amendatory thereof. 14 Stat. 430, c. 154; 16 Stat. 6, c. 10. By an Act of Congress approved March 3, 1887, those sections, as well as sections 1769-1772, relating to the same subject, were repealed subject to the condition that the repeal should not affect any officer theretofore suspended or any designation, nomination, or appointment previously made under or by virtue of the repealed sections. 24 Stat. 500, c. 353. As the appointment and suspension of Judge McAllister occurred prior to the passage of the act of 1887, the present case is not controlled by its provisions, but depends upon the effect to be given to the sections of the Revised Statutes above quoted, interpreted in the light of the act establishing the court of which the appellant was made judge in the year 1884. What may be the powers of the President over territorial judges now that section 1768 is repealed is a question we need not now discuss.
said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law, and a district judge shall be appointed for a said district, who shall, during his term of office, reside therein, and hold at least two terms of said court therein in each year -- one at Sitka, beginning on the first Monday in May, and the other at Wrangel, beginning on the first Monday in November. He is also authorized and directed to hold such special sessions as may be necessary for the dispatch of the business of said court at such times and places in said district as he may deem expedient, and may adjourn such special session to any other time previous to a regular session. He shall have authority to employ interpreters, and to make allowances for the necessary expenses of his court."
By the seventh section, the general laws of Oregon then in force were declared to be laws of Alaska so far as the same were applicable, and not in conflict with the provisions of that act or of the laws of the United States. By the same section, writs of error in criminal cases were to go to the District of Alaska from the United States Circuit Court for the District of Oregon in the cases provided in chapter 176 of the Laws of 1879; the jurisdiction by that chapter conferred upon circuit courts of the United States being given to the Circuit Court of Oregon, and the final judgments or decrees of said circuit and district courts being reviewable by this Court as in other cases.
In view of these and other provisions of that act, it is clear that the District Court for Alaska was invested with the powers of a district court and a circuit court of the United States as well as with general jurisdiction to enforce in Alaska the laws of Oregon, so far as they were applicable and were not inconsistent with the act and the Constitution and laws of the United States.
had no authority, by that section, to suspend Judge McAllister, and his claim to salary, up to at least,\ the confirmation by the Senate of the nomination of Dawson, is well founded. If it be not, then the judge of the Alaska court is not of the class excepted by that section, and, being a civil officer appointed by and with the advice and consent of the Senate, was within the very terms of the clause authorizing his suspension by the President during the recess of the Senate.
An affirmative answer to the question just stated could not well be given upon the theory that a territorial court is one of those mentioned in Article III of the Constitution declaring that the judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish, the judges of which hold their offices during good behavior, receiving at stated times for their services a compensation that cannot be diminished during their continuance in office, and are removable only by impeachment. We say this because numerous decisions of this Court are inconsistent with that theory. To these decisions we will now advert.
argued that a Congress cannot vest admiralty jurisdiction in courts created by the territorial legislature. We have only to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sentence declares that 'the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.' The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possess over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a state government."
"they are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of the territories, combining the powers of both the federal and state authorities."
tenure of office before they can become invested with any portion of the judicial power of the union. There is no exception to this rule in the Constitution. The territorial courts therefore were not courts in which the judicial power conferred by the Constitution of the federal government could be deposited. They were incapable of receiving it, as the tenure of the incumbents was but for four years. 1 Pet. 26 U. S. 546. Neither were they organized by Congress under the Constitution, as they were invested with powers and jurisdiction which that body were incapable of conferring upon a court within the limits of a state."
court of the United States, in the sense of the Constitution, in the Territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or the general government. The courts are the legislative courts of the territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the territories belonging to the United States."
"The acts of Congress respecting proceedings in the United States courts are concerned with and confined to those courts considered as parts of the federal system, and as invested with the judicial power of the United States expressly conferred by the Constitution, and to be exercised in correlation with the presence and jurisdiction of the several state courts and governments. They were not intended as exertions of that plenary municipal authority which Congress has over the District of Columbia and the territories of the United States. . . . As before said, these acts have specific application to the courts of the United States, which are courts of a peculiar character and jurisdiction."
states. We have often so decided. . . . They are courts of the territories, invested for some purposes with the powers of the courts of the United States."
"It is competent for Congress to make provision for the exercise of admiralty jurisdiction, either within or outside of the states, and in organizing territories, Congress may establish tribunals for the exercise of such jurisdiction, or they may leave it to the legislature of the territory to create such tribunals. Courts of this kind, whether created by an act of Congress or a territorial statute, are not, in strictness, courts of the United States -- or, in other words, the jurisdiction with which they are invested is not a part of the judicial power defined by the third article of the Constitution, but is conferred by Congress in the execution of the general powers which the legislative department possesses to make all the needful rules and regulations respecting the public territory and other public property."
These cases close all discussion here as to whether territorial courts are of the class defined in the third article of the Constitution. It must be regarded as settled that courts in the territories, created under the plenary municipal authority that Congress possesses over the territories of the United States, are not courts of the United States created under the authority conferred by that article. And there is nothing in conflict with this view in Page v. Burnstine, 102 U. S. 664, where it was held that section 858 of the Revised Statutes of the United States, relating to the competency as witnesses of parties to actions by or against executors, administrators, or guardians, applied to the courts of the District of Columbia as fully as to the circuits and districts of the United States. That conclusion was reached not because the courts of the District of Columbia were adjudged to be of the class in which the judicial power of the United States was vested by the Constitution, but because all the acts relating to the competency of witnesses, when construed together, indicated that that section of the Revised Statutes applied to the courts of the District of Columbia.
words "judges of the courts of the United States," in section 1768, were used with reference to the recognized distinction between courts of the United States and merely territorial or legislative courts.
by the circumstance that Congress, in a few of the acts providing for territorial courts, fixed the terms of the office of the judges of those courts during "good behavior." [Footnote 3] As the courts of the territories were not courts the judges of which were entitled, by virtue of the Constitution, to hold their offices during good behavior, it was competent for Congress to prescribe the tenure of good behavior, as in the acts last referred to or to prescribe as in the other acts above referred to, the tenure of four years and no longer, or four years unless sooner removed, or four years unless sooner removed by the President, or four years unless sooner removed by the President with the consent of the Senate, or four years and until a successor was appointed and qualified. The significance of these enactments, as well as of the acts of 1867 and 1869, and of section 1768 of the Revised Statutes, is in the fact that Congress has uniformly proceeded upon the theory that the judges of territorial courts were merely legislative courts, and were not entitled, by virtue of their appointment and the Constitution of the United States, to hold their offices during good behavior unless it was so declared in the respective acts providing for the organization of such courts. That Congress when providing a government for Alaska so regarded them is apparent from the fact that the Act of May 17, 1884, fixed the tenure of the office of the judge of the District Court of Alaska at four years, and until his successor was appointed and qualified. This provision did not repeal section 1768 of the Revised Statutes, for it was not inconsistent with that section. So that the Alaska act must be taken as qualified by that section which confers upon the President the power of suspension.
entirely unnecessary to introduce them into the statute because, in respect to the judges of the former, the Constitution itself makes the exception. This view is plausible and is not without some force, and yet it is not sufficient to justify the conclusion that Congress regarded judges of territorial courts as upon the same footing with judges of the courts of the United States. The acts of 1867 and 1869 inaugurated a new policy in reference to civil officers appointed by and with the advice and consent of the Senate. The presumption must be that Congress did not overtook the numerous decisions of this Court holding that territorial courts were not courts of the United States, and the words "judges of the courts of the United States" were used in those acts, as well as in section 1768, simply out of abundant caution, and to remove all doubt as to the object of Congress by giving an assurance that there was no attempt to confer upon the President the power of suspension in respect to such judges.
"Doubtless Congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments, but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers than by any express and direct application of its provisions."
It is only necessary in this case to say that those principles and limitations are not violated by a statute prescribing for the office of judge of a territorial court a tenure for a fixed term of years or authorizing his suspension in the mode indicated in section 1768 and his ultimate displacement from office after suspension by the appointment of some one in his place, by and with the advice and consent of the Senate.
"Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed."
[as a justice of the peace in the District of Columbia] was signed by the President, and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights which are protected by laws of his country."
"It [the office of justice of the peace in the District of Columbia] has been created by special act of Congress, and give security, to the person the laws can give security, to the person appointed to fill it, for five years."
2 Stat. 107, c. 15, § 11. Nothing in those observations militates in any degree against the views we have expressed. On the contrary, the Chief Justice asserted the authority of Congress of fix the term of a justice of the peace in the District of Columbia beyond the power of the President to lessen it by his removal, or by withholding his commission after his appointment has been made, pursuant to an act of Congress, by and with the advice and consent of the Senate and after the commission has been signed by the President and sealed by the Secretary of State. So, in the present case, while Congress fixed the term of the office of the District Judge for Alaska at four years and until his successor qualified, it did so without modifying, and therefore in view of, the statute then in force, giving the President power to suspend in his discretion any civil officer (other than judges of the courts of the United States) appointed by him, with the advice and consent of the Senate, until the end of the next session of that body. The decision in the present case is a recognition of the complete authority of Congress over territorial offices, in virtue of "those general powers which that body possesses over the territories of the United States," as Marbury v. Madison was a recognition of the power of Congress over the term of office of a justice of the peace for the District of Columbia.
supposed to be justified by the genius and spirit of our free institutions, and the principles of the common law. This argument fails to give due weight to the fact that, in legislating for the territories, Congress exercises "the combined powers of the general and of a state government." Will it be contended that a state of the union might not provide by its fundamental law, or by legislative enactment not forbidden by that law, for the suspension of one of its judges by its governor until the end of the next session of its legislature? Has Congress, under "the general right of sovereignty" existing in the government of the United States as to all matters committed to its exclusive control, including the making of needful rules and regulations respecting the territories of the United States, any less power over the judges of the territories than a state, if unrestrained by its own organic law, might exercise over judges of its own creation? If Congress may -- and it is conceded that it may -- prescribe a given number of years as the term of office of a territorial judge, we do not perceive why it cannot provide that his appointment shall be subject to the condition that he may be suspended by the President until the end of the next session of the Senate, and displaced altogether by the appointment of some one in his place, by and with the advice and consent of that body. The principles of life tenure and good behavior established for judges of courts in which the Constitution vests the judicial power of the United States, "to be exercised in correlation with the presence and jurisdiction of the several state courts and governments," has no application to courts that are incapable of receiving the judicial power conferred by the Constitution, and which cease to exist as territorial or legislative courts when the territory becomes a state.
salary, but that the salary and the emoluments of the office shall belong to the person performing in his stead the duties of the office. Judge McAllister accepted the office in question subject to the provisions of section 1768, because, not being inconsistent with, it was not repealed by, the Alaska act, and as there is no ground for holding the statute to be invalid, and as his office was not of the class excepted from the operation of its provisions, there is no foundation for his claim to the salary.
It is insisted that the appellant is entitled to claim at least the salary from the end of the session of the Senate, August 7, 1886, until September 3, 1886, on which day Dawson took the oath of office under his commission of date August 2, 1886. This contention rests upon the ground that Dawson's authority to act as judge under his appointment in place of Dawne, suspended, ceased when the Senate closed its session of 1885-86. It is a sufficient answer to this suggestion to say that when the Senate confirmed the nomination of Dawson, which must have been prior to August 2, 1886, and his commission was signed and sealed, the suspension of Judge McAllister became permanent. If the Senate had adjourned without acting upon that nomination, a different question would have been presented.
Orleans (1804), 2 Stat. 284, c. 38, § 5; Iowa (1838), 5 Stat. 238, c. 96, § 9; Minnesota (1849), 9 Stat. 406, c. 121, § 9; New Mexico (1850), 9 Stat. 449, c. 49, § 10; Utah (1850), 9 Stat. 455, c. 51, § 9; Colorado (1861), 12 Stat. 174, c. 59, § 9; Nevada (1861), 12 Stat. 212, c. 83, § 9; Dakota (1861), 12 Stat. 241, c. 86, § 9, and Arizona (1863), 12 Stat. 665, c. 56, § 2.
Missouri (1812), 2 Stat. 746, c. 95, § 10; Arkansas (1819), 3 Stat. 495, c. 49, § 7; Florida (1822), 3 Stat. 657, c. 13, § 8; Oregon (1848), 9 Stat. 326, c. 177, § 9; Washington (1853), 10 Stat. 175, c. 90, § 9; Nebraska (1854), 10 Stat. 280, c. 59, § 9; Kansas (1854), 10 Stat. 286, c. 59, § 27; Idaho (1863), 12 Stat. 811, c. 117, § 9; Montana (1864), 13 Stat. 88, c. 95, § 9; Wyoming (1868), 15 Stat. 180, c. 235, § 9; Oklahoma (1890), 26 Stat. 85, c. 182, § 9.
Northwest Territory (1789), 1 Stat. 51, note a; Mississippi (1798), 1 Stat. 550, c. 28, § 3; Indiana (1800), 2 Stat. 59, c. 41, § 2; Michigan (1805), 2 Stat. 309, c. 5, § 2; Illinois (1809), 2 Stat. 514, c. 13, § 2; Alabama (1817), 3 Stat. 372, c. 59, § 2; Wisconsin (1836), 5 Stat. 13, c. 54, § 9.
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE GRAY and MR. JUSTICE BROWN, dissenting.
I am unable to agree with the majority of the Court in the judgment in this case or in the reasoning upon which that judgment is reached, and I will state briefly the grounds of my conclusion.
to the Constitution and laws of the United States, and to have and hold the said office with all the powers, privileges, and emoluments of the same of right appertaining"
"Washington, D.C. July 21, 1885"
"Sir: You are hereby suspended from the office of District Judge for the District of Alaska in accordance with the terms of section 1768 of the Revised Statutes of the United States, and subject to all provisions of law applicable thereto."
"To the Hon. Ward McAllister, Jr., District Judge for the District of Alaska, Sitka, Alaska."
of it. His will was deemed sufficient, in his estimate of the law, to take a judicial officer charged with the great duties mentioned, a judge of a court of record created by the United States, from the exercise of his judicial functions. On the same day, he proceeded to fill the office by the appointment of Edward J. Dawne, of Oregon, to discharge its duties until the end of the next session of the Senate. There have been several instances where the power to remove a judicial officer of a court of the United States in one of the territories has been exercised by the President, but the legal right to do so has never been brought directly to the test of judicial decision in this Court. The two cases which presented the question are United States v. Guthrie, 17 How. 284, and United States v. Fisher, 109 U. S. 143, but they went off on other grounds. In the first case, the Chief Justice of Minnesota Territory had been removed before his term of office had expired. Two years afterwards, he applied for a mandamus against the Secretary of the Treasury to require him to pay his salary. This was refused, as there had been no appropriation to pay the claim. In the second case, the claimant had been Chief Justice of Wyoming Territory. At the time of appointment, his salary was $3,000 per annum, which was subsequently reduced to $2,600. He brought suit for the difference, but he had accepted the reduced salary in full compensation for his services, and on this ground his suit failed.
the pleasure and will of another. No such doctrine has been maintained in England since the statute of 13 William III. c. 2, "for the further limitation of the crown, and better securing of the rights and liberties of the subject," passed in 1700, one of the great acts which followed the revolution of 1688. Previously to that period, most of the judges of the higher courts held their offices during the pleasure of the Crown. Although in some instances their commissions were issued to them during good behavior, yet it was within the power of the Crown to prescribe the tenure of the office. This power exerted a most baleful influence upon the administration of justice, destructive of private rights and subversive of the liberties of the subject. In political accusations, to use the language of Mr. Justice Story, it must often have produced what the history of the times shows actually occurred -- "the most disgraceful compliances with the wishes of the Crown, and the most humiliating surrender of the rights of the accused." De Lolme, in his History of the English Constitution, states that before the year 1688, subserviency to the Crown was so general in state prosecutions that it ceased almost to attract public indignation.
of the judges as essential to the impartial administration of justice as one of the best securities of the rights and liberties of his subjects, and as most conducive to the honor of the Crown."
2 Story on Const. § 1608.
Since that period, no judge of a court of record in England except the Lord Chancellor (and of this exception we will presently speak) could be removed or suspended from his office by the Crown except upon the address of both houses of Parliament, a limitation upon the exercise of the power which always secures to the accused a notice of the grounds of complaint and a hearing upon their truth and sufficiency. This condition of permanency during good behavior in the office of judges of the courts of record is now a part of the settled public law of England. The great statutes referred to were passed long before our Revolution, and qualified the existing law of the English kingdom and its dependencies as to the conditions upon which the judicial office in courts of record could be held. The law thus modified then constituted a part of the public or common law of this country. Whoever is here clothed with a judicial office, which empowers him to judge in any case affecting the life, liberty, or property of the citizen, cannot be restrained from the fearless exercise of its duties by any apprehension of removal or suspension in case he should come athwart the will or pleasure of the appointing power. I cannot believe that under our Constitution and system of government, any judicial officer invested with these great responsibilities can hold his office subject to such arbitrary conditions. In my judgment, good behavior during the term of his appointment is the only lawful and constitutional condition to the retention of his office.
now a member of his cabinet, and generally retires from office with his associates upon the change in his party's ascendancy. He has both a political and judicial character, participating in the public measures of government and performing judicial functions in the Court of Chancery and in the House of Lords when sitting as a court of appeals. But no interference is ever attempted, or would be tolerated, with his independence as a judicial officer by reason of the political functions which he also discharges. The public sense of the necessity of such independence now prevailing in England is as powerful as the most positive enactment. There is no such union of political and judicial functions in any officer in this country, and the relation of the Chancellor in England to the government in no respect affects the importance of an independent tenure of office by judges of courts of record in this country during the prescribed period of their terms.
"The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."
This provision was only the expression of a principle that had become the established law of all English speaking people.
"The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws."
"The general liberty of the people can never be endangered from that quarter -- I mean so long as the judiciary remains truly distinct from both the legislative and the executive. For I agree that 'there is no liberty if the power of judging be not separated from the legislative and executive powers.' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches, and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its Constitution, and, in a great measure, as the citadel of the public justice and the public security."
"They are not 'constitutional courts,' but are 'legislative courts,' created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States."
from the Constitution, for if they did, they would hold their office during good behavior for life, and the term of it could not be otherwise limited by Congress.
Similar language is also found in other cases, some of which are cited in the opinion of the Court, but this does not show that they are not courts of the United States, though created for the territories. The fact that they exercise a peculiar jurisdiction and are created for the territories does not change their character as courts of the United States.
"The territorial court of appeals was a court of the United States, and the control of its records therefore belongs to the general government, and not to the state authorities, and it rests with Congress to declare to what tribunal these records and proceedings shall be transferred and how these judgments shall be carried into execution or reviewed upon appeal or writ of error."
When a territory becomes a state, the records of the courts of the territory are transferred to the new state courts and to the federal courts, respectively, the judicial proceedings existing in the courts of the territory being continued by federal law in the respective state and federal courts, according to the questions involved and the citizenship of the parties.
is to affirm that he is superior in that respect, and may disregard its enactments at pleasure -- and more, it is to affirm that Congress cannot prescribe the term of an office created by it, which no one would pretend.
"SEC. 1768. During any recess of the Senate the President is authorized, in his discretion, to suspend any civil officer appointed by and with the advice and consent of the Senate, except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed, in his discretion, by the designation of another, to perform the duties of such suspended officer in the meantime, and the person so designated shall take the oath and give the bond required by law to be taken and given by the suspended officer, and shall, during the time he performs the duties of such officer, be entitled to the salary and emoluments of the office, no part of which shall belong to the officer suspended."
I do not understand how the language in this section, "except judges of the courts of the United States," can be construed to apply only to judges of courts created under the Constitution. Why should the exception, if thus limited, have been inserted at all? It is not pretended, and never has been, that such judges could be suspended or removed by the President. It is very plain to me that it was intended to meet the position which had been advanced in some quarters that judges of the courts of the United States in the territories were subject to be removed or suspended by the President equally with other officers. Otherwise there is no assignable cause for its insertion.
the President, and that exception includes all judges of all courts established under the laws of the United States, whether those courts perform their judicial duties within the states or within the territories -- I dissent from the judgment of the majority of the Court in this case.
I am authorized to state that MR. JUSTICE GRAY and MR. JUSTICE BROWN concur in this dissent.


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Many Homeowners defending their Homes from pretender lenders either in State or Federal courts must know how to effectively push the Banks to the corner using litigation proceedings in order to get the Banks to either modify their mortgage loans or pay damages as a result of fraudulent mortgage transactions.
One of the tools that Homeowners and/or their foreclosure Defense Attorneys must be employed to accomplish that task during litigation proceeding is “interrogatory”, which is part of the Discovery process.
permit all parties to identify essential issues necessary to evaluate the case and prepare for depositions and trial. Written discovery usually starts with form interrogatories and special interrogatories.
Unfortunately, all too often, the defense interrogatories are prepared by an inexperienced attorney, generating extra billing hours by propounding useless repetitive questions which are often sent without regard to your client’s privacy rights or the relevant issues in the case. The discovery propounded by defense firms are too often boilerplate forms which have not been tailored to the specific case and may not even have been reviewed by the propounding attorney.
Responding to this discovery can be an arduous and unpleasant task. Huge amounts of time can be consumed in preparing responses to some of the nonsense propounded.
What makes the problem even more challenging is that you must ensure that you accurately and completely respond to valid interrogatories. Failure to provide responsive information to proper interrogatories is both improper and unethical. It can also result in a bar to presenting that evidence at trial. Just as important, significant information about your case must be provided if you expect the defense to engage in meaningful mediation.
Given that backdrop, as to each interrogatory propounded, the first question you must ask yourself is “must I object?” The next thought you should have is “should I object,” followed by what “objections are available?” Once you have completed that analysis and asserted proper objections, the final question you must decide is whether to answer the question once the objection is stated.
While this article will focus on specific objections, the procedure in responding to discovery is important. Code of Civil Procedure section 2030.290 provides that if responses to interrogatories are not timely, all objections are waived, including the work product protection.
practice in written discovery to state all applicable objections in your initial written response.
There are exceptions to waiver. For example, a delayed objection on the grounds of privacy.
Homeowner Attorney’s job is not only to prosecute your client’s case, but also to protect their client’s privacy.
When the defense starts seeking information not related to the issue at bar, or other personal information, it is the Attorney’s job to defend his client’s privacy, even if it might be easier to simply give the defense what they are asking for.
plaintiff’s attorney is to avoid the fight. Pick your battles wisely.
information that will not hurt your case and does not invade your client’s privacy, answer the question.
think you are hiding something important.
will notice and appreciate this kind of consistency.
vague, ambiguous, overbroad, burdensome, oppressive, and not likely to lead to admissible evidence.
Therefore, set forth below are suggested objections to the most common discovery issues.
“Objection. This discovery request as phrased is argumentative. It requires the adoption of an assumption, which is improper.” Any discovery request that requires the adoption of an assumption is argumentative. This is objectionable as to form. The classic example is “When did you stop beating your wife.” This question assumes facts that may not be true, but requires the answer adopt the assumption.
irrespective of the phrasing of the request, it may be grounds for a protective order based upon oppression.
Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10 [66 Cal.Rptr. 280, 283] .
product objection: Mack v. Superior Court of Sacramento County; Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d 829 [148 Cal.Rptr. 39]; Brown v. Superior Court of Butte County, (1963) 218 Cal.App.2d 430 [32 Cal.Rptr. 527]; and Nacht & Lewis Architects v. Superior Court (1996) 47 Cal.App.4th 214 [54 Cal.Rptr.2d 575].
work-product of an attorney’s employees and agents, it includes the opinions of employees and agents.
“Objection. This discovery request is so broad and unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive.
While this is often a valid objection, it is rarely a basis for not providing a response. Before standing on this objection, sincere meet and confer efforts should be made to resolve the issue.
Furthermore, personal financial information is within the “zone of privacy” protected by the California Constitution, Article I, §1. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656 [125 Cal.Rptr. 553, 555]). The Insurance Information Act and Privacy Protection Act, Insurace Code section 793, et seq., limits the disclosure of information in connection with insurance transactions. (Griffith v. State Farm Mutual Auto Ins. Co.
Unless the case involves an exception to the collateral source rule (Civil Code section 3333.1 or Government Code section 985), an objection should be asserted to providing any information about health insurance, health insurance policies or payments made by a health insurance or other insurance company, including an objection to Form Interrogatory No. 4.1. Asserting such an objection is particularly important in today’s climate in which some judges have interpreted Hanif v. Housing Authority of Yolo County (1988) 200 Cal.App.3d 635 [246 Cal.Rptr.
192] to require a post-verdict hearing to reduce plaintiff’s medical bills to the amount actually paid.
An increasing number of bench officers do not agree that the Hanif case gives the defendant a right to such a post-trial hearing or reduction, which effectively abrogates the collateral source rule.
what the insurance company paid on behalf of its insured.
These “standard” objections are a helpful starting point in dealing with interrogatory responses.
your case. On more important issues, it is always worthwhile to check all citations and check for any changes in the law.

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Section 1. Amend § 18-102(3), Chapter 18, Title 6 of the Delaware Code by deleting the word "registered" in all three places where it appears before the words "limited liability partnership".
Section 2. Amend § 18-109(a), Chapter 18, Title 6 of the Delaware Code by deleting from the last sentence thereof the words "subsections (b) and (c)" and by substituting in lieu thereof the words "subsections (b), (c) and (d)" and by deleting from the last sentence thereof the words "to a person who is a member of a limited liability company and who" and by substituting in lieu thereof "to a person, whether or not a member of a limited liability company, who".
Section 3. Amend § 18-109(d), Chapter 18, Title 6 of the Delaware Code by adding the following sentence to the end of subsection (d) thereof: "Except by agreeing to arbitrate any arbitrable matter in a specified jurisdiction or in the State of Delaware, a member who is not a manager may not waive its right to maintain a legal action or proceeding in the courts of the State of Delaware with respect to matters relating to the organization or internal affairs of a limited liability company."
Section 4. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by deleting the words ", or upon the conversion of a domestic limited liability company approved in accordance with § 18-216 of this title" from the first sentence thereof.
Section 5. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by deleting the words "or upon the conversion of a domestic limited liability company approved in accordance with § 18-216 of this title" from the second sentence thereof.
Section 6. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by deleting subsection (5) of the second sentence thereof, by adding the word "and" after the ";" at the end of subsection (4) of the second sentence thereof and by renumbering existing subsection (6) as subsection (5) of the second sentence thereof.
Section 7. Amend § 18-209(a), Chapter 18, Title 6 of the Delaware Code by deleting the word "registered" in both places where it appears before the words "limited liability".
Section 8. Amend § 18-212(a), Chapter 18, Title 6 of the Delaware Code by deleting the word "registered" in both places where it appears before the words "limited liability".
Section 11. Amend § 18-214(a), Chapter 18, Title 6 of the Delaware Code by deleting the word "registered" in both places where it appears before the words "limited liability".
"(i) In connection with a conversion hereunder, rights or securities of, or interests in, the other entity which is to be converted to a domestic limited liability company may be exchanged for or converted into cash, property, rights or securities of, or interests in, such domestic limited liability company or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, another domestic limited liability company or other entity."
Section 14. Amend §18-215(b), Chapter 18, Title 6 of the Delaware Code by inserting the words "(directly or indirectly, including through a nominee or otherwise)" immediately after the word "held".
Section 15. Amend § 18-215(h), Chapter 18, Title 6 of the Delaware Code by deleting the words "; provided that a" immediately after the words "subsection (b) of this section" and by inserting in lieu thereof the words ". A", and by inserting immediately prior to the third to last sentence thereof the following new sentence: "For purposes of the immediately preceding sentence, the term "distribution" shall not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program."
Section 16. Amend §18-215(j), Chapter 18, Title 6 of the Delaware Code by inserting in subsection (3) thereof the words "affirmative vote or" immediately prior to the words "written consent of".
Section 17. Amend §18-215(j), Chapter 18, Title 6 of the Delaware Code by deleting subsection (4) in its entirety, by inserting the word "or" after the ";" at the end of subsection (3), and by renumbering subsection (5) as subsection (4).
Section 18. Amend § 18-215(k), Chapter 18, Title 6 of the Delaware Code by deleting the third sentence thereof in its entirety and by substituting in lieu thereof the following new sentence: "The persons winding up the affairs of a series shall provide for the claims and obligations of the series and distribute the assets of the series as provided in § 18-804 of this title, which section shall apply to the winding up and distribution of assets of a series."
Section 19. Amend § 18-216, Chapter 18, Title 6 of the Delaware Code by deleting the word "registered" in both places where it appears before the words "limited liability" in the first sentence thereof.
Section 21. Amend §18-302(d), Chapter 18, Title 6 of the Delaware Code by deleting the phrase "interests in the liability company" in the first sentence thereof and substituting the word "members" in lieu thereof.
Section 22. Amend §18-404(d), Chapter 18, Title 6 of the Delaware Code by adding the words "at which all managers entitled to vote thereon were present and voted" at the end of the first sentence.
Section 23. Amend § 18-607, Chapter 18, Title 6 of the Delaware Code by adding to the end of subsection (a) thereof a new sentence reading as follows: "For purposes of this subsection (a), the term "distribution" shall not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program."
"18-703 Member's limited liability company interest subject to charging order.
(a) On application by a judgment creditor of a member or of a member's assignee, a court having jurisdiction may charge the limited liability company interest of the judgment debtor to satisfy the judgment. The court may appoint a receiver of the share of the distributions due or to become due to the judgment debtor in respect of the limited liability company which receiver shall have only the rights of an assignee, and the court may make all other orders, directions, accounts and inquiries the judgment debtor might have made or which the circumstances of the case may require.
(b) A charging order constitutes a lien on the judgment debtor's limited liability company interest. The court may order a foreclosure of the limited liability company interest subject to the charging order at any time. The purchaser at the foreclosure sale has only the rights of an assignee.
(3) by the limited liability company with the consent of all of the members whose interests are not so charged.
(d) This chapter does not deprive a member of a right under exemption laws with respect to the member's limited liability company interest.
(e) This section provides the exclusive remedy by which a judgment creditor of a member or member's assignee may satisfy a judgment out of the judgment debtor's limited liability company interest.
(f) No creditor of a member shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the limited liability company."
Section 25. Amend § 18-804, Chapter 18, Title 6 of the Delaware Code by inserting the following new sentence immediately after the first sentence of subsection (c) thereof: "For purposes of the immediately preceding sentence, the term "distribution" shall not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program."
Section 26. Amend § 18-1101(c), Chapter 18, Title 6 of the Delaware Code by adding the words "or to an other person that is a party to or is otherwise bound by a limited liability company agreement" after the words "another member or manager", by deleting the word "a" after the word "under" in subsection (1) thereof and by substituting in lieu thereof the word "the", by adding the words "or to any such other person" after the words "other member or manager" in subsection (1) thereof and by deleting the word "a" after the words "by provisions in" in subsection (2) thereof and by substituting in lieu thereof the word "the".
Section 27. This Act shall become effective August 1, 2000.


The Case: Sherer v. Linginfelter , 29 S.W.3d 451 (Tenn. 2000).
The Basic Facts: Sherer was a passenger in a vehicle driven by Linginfelter. She was injured in a one car accident. She reached a settlement with the defendant and his insurance company. Her underinsured motorist insurance carrier also contributed to the settlement. She filed a products liability suit against the vehicle manufacturer; that case was settled. Her underinsured motorist insurance company then sought subrogation against the products liability suit settlement.
In the event of payment to any person under the coverage required by this part, and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be subrogated to all of the rights of the person to whom such payment has been made, and shall be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury or property damage for which such payment is made, including the proceeds recoverable from the assets of an insolvent insurer."
"Tenn. Code Ann. § 56-7-1204(a) (emphasis added). This statutory provision provides that the insurer who makes a payment under the uninsured motorist coverage 'steps into the shoes' of the person receiving the payment and may recover against any person who occasioned the payment by the insurer." Id.
"Taken together, the language of these statutes: 1) limits the liability of an uninsured motorist carrier to payments for damages caused by the uninsured/underinsured motorist in the ownership, maintenance, or use of the vehicle; and 2) allows the insurer to recover from its insured only those amounts received from the person or entity causing those same damages. USAA argues that 'the subrogation statute provides for broad subrogation rights against any recovery the insured may receive.'" Id.
"In support of its argument, USAA relies upon Erwin v. Rose, 980 S.W.2d 203 (Tenn. Ct. App. 1998), and Thompson v. Parker, 606 S.W.2d 538, 540 (Tenn. Ct. App. 1980). We note that Erwin and Thompson construed Tenn. Code Ann. § 56-7-1205 and did not address § 56-7-1204, the section of the uninsured motorist statute providing for subrogation. We express no opinion as to the holding of those cases, inasmuch as the construction of § 56-7-1205 is not presently before us." Id.
FN1 'Enhanced injuries' represent the portion of the total damages for which the manufacturer is potentially liable. See Whitehead, 897 S.W.2d at 694-95. In this case the claim for 'enhanced injuries' is 'nothing more than a claim for injuries that were actually and proximately caused by the defective product.' See e.g. id."
"In this case, the Court of Appeals correctly construed the statutory language of Tenn. Code Ann. § 56-7-1204 and applied these principles of comparative fault to hold that § 56-7-1204(a) provides that the insurer's subrogation rights are limited to the injuries for which the insurer has made payment. USAA's payments compensated the Sherers for the injuries to Teal Sherer arising from the negligence of Mr. Linginfelter, the uninsured motorist, in the operation of the vehicle. GM's payments, on the other hand, compensated the Sherers for the enhanced or additional injuries to Teal Sherer caused by the vehicle's rear seat belt system." Id.
"We agree with the lower courts that GM's payment to the Sherers compensated them for a different portion of the injuries sustained by Teal Sherer. We hold that under Tenn. Code Ann.§ 56-7-1204(a) USAA may not exercise its subrogation rights against the portion of the Sherers' recovery received from GM." Id.


text:
A plaintiff will receive $7 million in his Middlesex County suit, Plaintiff v. Bank of America, as compensation for injuries he sustained when he slipped and fell in an icy parking lot.
In Tortorella v. Ong, a Middlesex County jury on April 20 awarded a Scotch Plains woman $5 million in damages as a compensation for spinal injuries she sustained when her car was read-ended.
A state Department of Transportation employee allegedly injured when his truck was hit by another accepted $4 million on March 2 to settle his Middlesex County suit, Leonardis v. Allied Oil LLC.
In Gonzalez v. Feldman, a Middlesex County jury awarded $3.6 million on Sept. 21 to a man who was struck by a car while crossing Route 18 in New Brunswick on a bicycle.
Leonard v. J.M.B. Linen Management: Four members of a family who were injured while passengers in a delivery van agreed on July 24 to a settlement worth $3.4 million.
The Plainfield Municipal Utilities Authority agreed on June 4 to pay $2.3 million to a passenger injured in a car rear-ended by a garbage truck.
A homeowner who claimed she developed a chronic pain condition after stepping on a broken glass left behind by a cleaning crew accepted $2 million on June 27 to settle her suit, Mento v. Kean Enterprises.
A Middlesex County jury awarded $2 million on Oct. 24 to a man who required back and neck surgery after he slipped in an icy parking lot. Nicholas J Leonardis of Stathis & Leonardis In Edison NJ was Trial Counsel for Plaintiff. Plaintiff was heading into a restaurant when he slipped on a large patch of ice in the parking lot at The Plaza at Woodbridge on Feb. 7, 2014. He sustained cervical and lumbar disc herniations, and underwent fusion surgeries.
The ice was the result of run-off from a large pile of snow that was melting, causing water to drain toward a nearby storm grate before it re-froze, said Nicholas Leonardis of Stathis & Leonardis in Edison, who represented Plaintiff. The snow removal contractor warned the owner that leaving a pile of snow in that spot was hazardous, but the owner said it could not be left elsewhere because it would cause the loss of parking spaces, Leonardis said.
Attorney Nick Leonardis Recovers $1.9 Million. Our client suffered severe spinal injuries requiring spinal Fusion surgery. The preexisting spinal condition was also made significantly worse as a result of the collision. This recovery will provide a lifetime of security due to these debilitating injuries.
The family of a man who died after having drinks at a bar in Jersey City and then driving his car into the Morris Canal Basin agreed to a $1.75 million settlement in a Middlesex County case, Pych v. Powerhouse Lounge, on May 10.
Callaghan v. Hub Group: A Franklin Township man will receive $1.5 million as compensation for injuries he sustained when the hired car in which he was traveling collided with a guardrail.
A man who sustained multiple fractures in a head-on crash with a drunken driver settled his Middlesex County suit, including a dram shop claim, for $1.465 million on Aug. 12.
A Woodbridge man was awarded $1.35 Million at trial for injuries he suffered as a result of a distracted driver. The plaintiff, was stopped exiting an auto dealer in Woodbridge when his car was struck by a vehicle that went across the roadway, and collided into his stopped car. Superior Court Judge Gelade entered the judgment following a bench trial for according to his lawyer, Nicholas Leonardis of Stathis & Leonardis in Ediston, N.J.
My Leonardis confirmed that “Our client was the unfortunate victim of a distracted driver. We see this way too often in NJ”. Our client suffered a cervical disc herniation, which required fusion surgery to repair. Mr. Leonardis was assisted at trial by associate Sean Mahoney who earned his first Million Dollar Trial recovery.
Vasisht v. Kugel: A Middlesex County jury awarded $1.25 million on Sept. 13 to a woman hurt in an accident she blamed on road rage, but her partial liability reduced recovery to $937,500.
Klinger v. New Jersey Manufacturers: A Middlesex County jury awarded $1.25 million on May 8 to a woman who claimed her existing shoulder condition was made worse after her car was struck in a rear-end accident.
A Carteret will receive $1.25 Million for spinal injuries he suffered in a rear-end collision on Jan 8, 2013. Plaintiff was stopped in traffic on Route 9 in Old Bridge, NJ when his car was struck from behind, according to her lawyer, Nicholas Leonardis of Stathis & Leonardis in Edison, N.J.
Mr. Leonardis confirmed that his client suffered a lumbar disc herniations, which required an anterior lumbar fusion surgery. The parties reached a settlement at trial in Middlesex County prior to jury selection.
Massey v. Jassil: A man visiting a boarding house injured in a fall on the premises settled his Middlesex County suit for $1 million.
Hondo v. Travelers Ins. Co.: A motorist allegedly injured in a rear-end collision recovered $1 million in a Middlesex County suit.
Hutting v. Drazner: A man struck while crossing a street recovered $850,200 on Nov. 13 in arbitration of his Monmouth County suit.
Shapiro v. Vaidhinathan: A Middlesex County woman accepted $850,000 on March 3 for back injuries suffered in a collision while driving a car for her employer, the University of Medicine and Dentistry of New Jersey.
Urugutia v. Supremo Food Market: A Plainfield woman who was injured in a supermarket fall settled her Middlesex County suit for $745,000 on June 15.
Myzie v. Neto: A Piscataway man injured when his motorcycle was struck by a car accepted $700,000 last Tuesday to settle his Middlesex County suit.
Sweeney v. Starbound Talent Competition: A woman who claimed injuries from tripping over a cable wire at a talent show accepted $625,000 on July 19 in her Middlesex County suit.
Stumpe v. Cutler: A driver who claimed permanent back injury caused by a collision accepted a $550,000 settlement on Dec. 23 from the other vehicle’s driver.
Lupo v. Macauley: A Middlesex County jury awarded $545,000 on Feb. 11 for a pedestrian hit by one motorist after an unidentified motorist waved him across the roadway.
Cooper v. North Jersey Auto Services: A tow truck company whose driver allegedly caused a motorist’s knee injury in a collision agreed on May 18 to pay $500,000, the plaintiff’s lawyer says.
Leonardis v. Edison Glen Condominiums, et al.: A Middlesex County jury awarded an Edison woman $500,000 on Nov. 6 for injuries suffered from slipping on a patch of ice at her condominium complex.
Scoppettulo v. Schirripa: A woman who suffered fractures and a head injury in a car crash and claimed it caused psychological problems settled on June 3 for $500,0000 from the other driver’s $1 million policy.
Edwards v. RC Trucking: A trucking company will pay $475,000 to settle a claim that the driver of an 18-wheeler was responsible for a collision that hurt the driver of another vehicle.
Biernacki v. Wawa: A Wawa market agreed on July 9 to pay $450,000 to a patron who fell and tore his knee.

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You have spent countless hours preparing for trial. You have reviewed the evidence, met with your witnesses, anticipated every conceivable argument opposing counsel might make, and even bench-briefed them. But then one of the jurors gets arrested mid-trial.1 Now what?
This article is designed to prepare prosecutors for just such a situation by presenting the possible causes for juror disability and the remedies available at the different stages of the trial proceedings with citations to relevant statutes and caselaw. I hope it is helpful.
I know what dead means, but what about disabled?
The Code of Criminal Procedure does not define the term “disabled.” However, a body of caselaw dealing with juror disability offers an outline of what constitutes a disability.
What happens if a juror is wrongly discharged?
What if you’re in misdemeanor court? The statutory provisions cited above apply to felony cases rather than misdemeanors. This then begs the question, What is to be done when a juror dies or becomes disabled in a misdemeanor case?
Should a prosecutor come across a case wherein a juror dies or becomes disabled, there is a useful body of statutory and caselaw laying out the procedures to be followed. Referencing these materials should provide a sufficient guide for dealing with such situations, but as oftentimes happens, the unpredictable will occur in trial.
1 Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999).
2 Tex. Code Crim. Proc. art. 36.29(a).
3 Id; Tex. Gov’t. Code §62.201; Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002) (en banc).
4 Tex. Code Crim. Proc. art. 36.29(c).
5 Scales v. State, 380 S.W.3d 780, 784 (Tex. Crim. App. 2012).
6 Id at 783 quoting Valdez v. State, 952 S.W.2d 622, 624 (Tex. App.—Houston [14th Dist.] 1997, writ ref’d (other citations omitted).
8 Timmons v. State, 952 S.W.2d 891, 894 (Tex. App.—Dallas 1997, no pet.).
9 Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972) (juror was arrested for driving while intoxicated during the lunch break, and the Court of Criminal Appeals held that the trial court did not abuse its discretion in finding the juror disabled based on his intoxicated state).
10 Owens v. State, 202 S.W.3d 276, 277 (Tex. App.—Amarillo 2006, pet. ref’d).
11 Ricketts v. State, 89 S.W.3d 312, 318 (Tex. App.—Fort Worth 2002, pet. ref’d).
12 Reyes v. State, 30 S.W.3d 409, 412 (Tex. Crim. App. 2000) (en banc).
15 Brooks, 990 S.W.2d at 286 (trial court’s decision to allow juror to continue to sit on case after being arrested for entering the courthouse with a gun was not an abuse of discretion where the juror said the arrest would not affect his ability to act as a juror).
16 Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990) (en banc) (trial court abused its discretion when it excused a juror based on his post-empanelment statement that he could not follow the punishment range).
17 Tex. Code Crim. Proc. art. 33.011(a).
18 Tex. Code Crim. Proc. art. 33.011(b).
19 See Scales, 380 S.W3d at 786 (trial court erred when it replaced a juror who would not deliberate with an alternate without ascertaining why the juror would not deliberate).
20 Hill, 90 S.W.3d at 315-16.
21 See, e.g., Landrum, 788 S.W.2d at 579 (case reversed where trial court found juror’s post-empanelment acknowledgement of bias against the law constituted disability); Solis v. State, 946 S.W.2d 591, 593-94 (Tex. App.—Corpus Christi 1997, no pet.) (case reversed where trial court discharged juror as disabled based on post-voir dire burglary of juror’s home).
22 Ex parte Garza, 337 S.W.3d 903, 912 (Tex. Crim. App. 2011) (listing cases approving the use of fewer than six jurors in a misdemeanor case where the defendant consents).
23 Id. at 915 (approving of this procedure in dicta).
24 See id., addressing trial court’s granting of mistrial in misdemeanor case where trial court did not explore and exhaust all available alternatives); Hill, 90 S.W.3d at 315-16 (capital murder prosecution double jeopardy barred where mistrial granted [apparently] based on juror disability where trial court did not consider possibility of proceeding with 11 jurors).
25 Hill, 90 S.W.3d at 315-16.


Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.
On appeal from his conviction of gross-misdemeanor harassment and first-degree burglary, appellant argues that the evidence was insufficient to support the convictions. In addition, appellant argues that the district court committed plain error in allowing the state to call the victim for the sole purpose of impeaching her with her statements to the 911 operator, the police, and in her affidavit in support of an order for protection (OFP). We affirm.
Appellant Timothy R. Hanson and Elizabeth Sheridan were involved in a romantic relationship and lived together for approximately five months before the relationship ended. Sheridan changed the locks after appellant moved out, but she hid the spare key in the same location. On May 18, 2005, appellant drove to Sheridan’s neighborhood and parked his car on an adjacent street so that it was not visible from Sheridan’s home. Appellant stood on Sheridan’s driveway for several minutes and then opened the garage door. As it grew dark, a neighbor noticed that lights were on in the home, but Sheridan had yet to return. When Sheridan got home, she saw appellant, who appeared to be under the influence of alcohol, coming out of her home. Nonetheless, she invited him back inside.
Soon after the 911 call, Officer Foucault found appellant walking less than a mile away from Sheridan’s home. Officer Lindeen arrived shortly afterward from Sheridan’s home. Appellant smelled of alcohol and was weaving slightly as he walked but otherwise seemed normal. Appellant was charged with first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2004); second-degree burglary under Minn. Stat. § 609.582, subd. 2(a) (2004); domestic assault with intent to cause fear in another of immediate bodily harm under Minn. Stat. § 609.2242, subd. 1(1), (2) (2004); and two counts of harassment and stalking under Minn. Stat. § 609.749, subd. 2(a)(1), (3) (2004).
Two days later, Sheridan went to the Harriet Tubman Alliance and spoke to someone about the incident. She completed an affidavit in support of an order for protection (OFP) against appellant that restated the information that she had told the police. Sheridan’s affidavit also stated that she had tried to lock herself in the bathroom but that appellant had “pushed his way in.” The district court granted the OFP.
Sheridan subsequently wrote a letter to the county attorney and telephoned Officer Clausen to correct what she then stated were inaccuracies in the police report. She stated that she was “hysterical” upon seeing appellant intoxicated in her home but that he is otherwise welcome. Because she was “hysterical,” Sheridan stated that she jumped to the conclusion that appellant had opened her dresser drawers and threw her clothes on the floor. Instead, she reported that only the bathroom rugs were in disarray as a result of appellant. Similarly, she reported that she found the missing $140 beneath furniture in the living room. She noted that appellant “would never, ever steal property, nor do I feel he ‘assaulted’ me. He was so intoxicated he was falling over, and he did bump me as I was hanging onto him.” At trial, Sheridan testified consistently with this later version of events.
The jury found appellant guilty of first-degree and second-degree burglary and gross-misdemeanor harassment but acquitted him on the stalking and domestic-assault charges. At sentencing, the district court vacated the second-degree burglary verdict as a lesser-included offense of first-degree burglary and granted appellant’s motion for a downward dispositional departure based on appellant’s lack of criminal convictions and his general peacefulness. Appellant’s 48-month guidelines sentence for burglary was stayed, and he was placed on probation for 20 years with certain conditions, including a 180-day jail term with work release, a $700 fine, completion of an anger-management and domestic-abuse assessments, and treatment for alcohol abuse. On the harassment conviction, the district court sentenced appellant to 365 days in jail, with all but 180 days suspended, and a fine of $3,000, with all but $700 suspended, concurrent with the burglary sentence. This appeal follows.
Appellant argues that the evidence was insufficient to convict on the first-degree burglary charge because appellant entered the residence with Sheridan’s consent and that the state failed to prove beyond a reasonable doubt that he entered Sheridan’s home with the intent to commit the crime of harassment. The state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.” State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957). In considering a claim of insufficient evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This is especially true when resolution of the matter depends on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
The factfinder has the exclusive function of judging witness credibility and weighing the evidence, Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995), and this court will defer to the factfinder’s credibility determinations. State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
In addition to time and jurisdictional elements, the elements of first-degree burglary are (1) the defendant entered or remained within a building without the consent of the person in lawful possession; (2) “the defendant assaulted a person within the building or on the building’s appurtenant property”; (3) the defendant entered the building with the intent to commit the crime of harassment. 10A Minnesota Practice, CRIMJIG 17.04 (2006). “It is not necessary that the intended crime actually was completed or attempted, but it is necessary that the defendant had the intent to commit that crime at the time that the defendant” either entered or remained in the building. Id. “Whether the defendant intended to commit the crime must be determined from all the circumstances, including,” the manner and time of entry or remaining in the building, “the nature of the building and its contents,” any things the defendant may have had with them, “and all other evidence in the case.” Id.
Consent requires more than mere admittance into the building by its owner. An owner may limit consent to certain times and conditions. State v. Larsen, 442 N.W.2d 840, 843 (Minn. App. 1989) (affirming first-degree burglary because appellant brought a friend whom the owner prohibited from the cabin). Consent may be withdrawn after entry. Minn. Stat. § 609.581, subd. 4(c) (2004) (defining “[e]nters a building without consent” to include “to remain within a building without the consent of the person in lawful possession”).
An assault is “[a]n act done with intent to cause fear in another of immediate bodily harm or death; or . . . [t]he intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2004).
Appellant was convicted of gross-misdemeanor harassment under Minn. Stat. § 609.749 (2004). As the state accurately argues on appeal, when prosecuting under that statutory section, the state does not have to prove a defendant’s specific intent. Minn. Stat. § 609.749, subd. 1a.
Sheridan testified that appellant had been upset with her because she had invited guests, including a male guest, to her house the preceding weekend. Sheridan and appellant had argued about the invitation. She did not want to talk about it then, but she expected that the issue would come up again. Appellant knew that Sheridan did not want to discuss the matter. Nonetheless, appellant drove to Sheridan’s home on May 18 and parked his car about 100 yards away, in a location that Officer Foucault testified was not visible from Sheridan’s home.
Further, Sheridan had established ground rules that appellant visit her only when he was sober. That night, he was not. The presence of alcohol limited Sheridan’s consent to appellant’s presence in her home. And appellant refused to leave after Sheridan asked him to leave.
Moments after being struck by appellant, Sheridan reported that “tonight he smacked me across the face really hard.” Officer Clausen, who responded to the 911 call, saw a red mark on the left side of Sheridan’s face that he later testified was consistent with being slapped from the right hand of a facing aggressor. When Sheridan subsequently sought to correct the police report, she stated that appellant bumped her as he tripped on a coffee table. Sheridan said then that appellant was “very intoxicated.” But Officers Lindeen and Clausen testified that they first saw appellant shortly after the 911 call and that he had only a slightly weaving gait. Viewing the verdict in the most favorable light, there is sufficient evidence in the record for the jury to have convicted appellant of first-degree burglary and gross-misdemeanor harassment.
After failing to object at trial, appellant now argues that the district court committed plain error by allowing the prosecutor to call Sheridan as a witness for the sole purpose of impeachment. “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
When a defendant fails to object to the admission of evidence, our review is for plain error. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740). “An error is plain if it was clear or obvious.” Id. at 688 (quotations omitted). “An error affects substantial rights if the error is prejudicial—that is, if there is a reasonable likelihood that the error substantially affected the verdict.” Id. “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 686 (quotation omitted).
The prosecution may not seek to admit prior inconsistent statements that are inadmissible hearsay through impeachment of its own witness. State v. Dexter, 269 N.W.2d 721, 721 (Minn. 1978). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c).
There are four statements that Sheridan made that are at issue here: (1) the 911 call; (2) her oral statements to Officer Clausen; (3) her handwritten statement to Officer Clausen; and (4) her affidavit in support of the OFP. All four statements are consistent in their description of appellant’s conduct. But Sheridan retracted that account of the incident prior to trial by contacting the county attorney and Officer Clausen approximately two weeks later to advise them that the police report contained inaccuracies. At that time, Sheridan stated that appellant had not slapped her, come by her house at night ringing her doorbell, repeatedly called her in an effort to get back together, taken her money, or rummaged through her bedroom dresser on the night of the incident.
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
Minn. R. Evid. 801(d)(1)(D). Similarly, exceptions to the hearsay prohibition include an excited utterance, which is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Minn. R. Evid. 803(2).
At trial, the prosecution played a recording of the 911 call that Sheridan made. On the tape, Sheridan was crying when reporting that appellant had hit her and was then pounding on the windows of her home to get back in. Sheridan’s emotional state indicated that she was under the stress of a startling event when she was reporting it. Therefore, we conclude that the 911 recording was admissible as an excited utterance.
Appellant also disputes the admissibility of Sheridan’s oral statements to the officers who arrived while Sheridan was on the phone to the 911 operator. But those statements are fairly characterized as descriptions or explanations of an event made while Sheridan was perceiving the event or immediately thereafter. The officer who interviewed Sheridan described her as “scared.” As a result, we conclude that those statements were also admissible as excited utterances.
[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Minn. R. Evid. 803(24). In evaluating whether this catchall exception to the hearsay rule is appropriate, Minnesota appellate courts have relied on four factors: (1) whether “there is no confrontation problem presented by the admission of the statement as substantive evidence, since [the witness] testified, admitted making the prior statement, and was available for cross-examination by defense counsel”; (2) whether “there [is] no real dispute over whether [the witness] made it or over what it contained”; (3) whether “the statement was against [the witness’] penal interest, a fact that increases its reliability”; and (4) whether “the statement was consistent with all the other evidence the state introduced.” State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985).
First, Sheridan admitted writing the statement and testified about it; appellant had the opportunity to cross-examine Sheridan about it. Second, Sheridan’s authentication of the document eliminates any dispute as to whether Sheridan made the statement. Third, although no penal interests are implicated here, Sheridan’s written statement is consistent with the other evidence provided by the state. Therefore, it could be admitted under the catchall exception.
Finally, appellant claims that the affidavit that Sheridan prepared in support of the OFP is inadmissible hearsay. In requesting an OFP, “[a] petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.” Minn. Stat. § 518B.01, subd. 4(b) (2004).
A prior inconsistent statement is not hearsay if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding . . . .” Minn. R. Evid. 801(d)(1)(A). Here, Sheridan testified at trial with opportunity for cross-examination. The affidavit was inconsistent with Sheridan’s trial testimony. As the affidavit is a prior inconsistent statement, given under oath, to which Sheridan was available for cross examination, it is admissible as nonhearsay. We conclude that the district court acted within its discretion in its admission of these statements.
 In 2006, Minn. R. Evid. 802(24) was recodified, along with Minn. R. Evid. 804(b)(5), in new Minn. R. Evid. 807. Minn. R. Evid. 803 2006 comm. cmt. But the substance of the catchall exception remains the same.