dissenting:

I respectfully dissent.

The panel is agreed that the jurisdiction of this court to review the decision of the United States District Court for the District of Guam, Appellate Division, which affirmed the order certifying Kingsbury for trial as an adult, exists if at all by virtue of 28 U.S.C. § 1291 . Maj.Op., at 742; See Corn v. Guam Coral Co., 318 F.2d 622, 624 (9th Cir. 1963); accord, Agana Bay Development Co. v. Supreme Court of Guam, 529 F.2d 952 , 960 n.1 (9th Cir. 1976) (Kennedy, J., dissenting). Section 1291 permits appeals only from “final orders” and this circuit has held that the finality determination is a function of federal law. See Corn v. Guam Coral Co., supra, 318 F.2d at 624 .

At least since Cobbledick v. United States, 309 U.S. 323 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940), and as recently as Firestone Tire & Rubber Co. v. Risjord, 449 U.S. -, 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981), the Supreme Court has carefully described the considerations relevant to determining whether a district court’s order is final and reviewable under § 1291. It therefore comes as some surprise that in analyzing appellate jurisdiction in this case, the majority ignores § 1291 and the formidable host of authorities analyzing it and draws instead an analogy to 28 U.S.C. § 1257 — a statute which has nothing to do with the jurisdiction of any circuit court of appeals. 1 As I find this analogy puzzling, unnecessary and irrelevant, and as application of the finality principles of § 1291, and the current law of this circuit, compel the conclusion that an order of the Guam courts certifying a juvenile for trial as an adult simply is not final and therefore not appealable to this court before trial, I respectfully dissent.

A

A final order of a district court for purposes of § 1291 is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 , 98 S.Ct. 2454, 2457 , 57 L.Ed.2d 351 (1978), quoting, Catlin v. United States, 324 U.S. 229, 233 , 65 S.Ct. 631, 633 , 89 L.Ed. 911 (1945). It is final “in the sense of terminating the criminal proceedings in the trial court.” United States v. MacDonald, 435 U.S. 850, 857 , 98 S.Ct. 1547, 1551 , 56 L.Ed.2d 18 (1978).

There is absolutely no doubt that the order committing Kingsbury for trial in the superior court is not final in this sense. Kingsbury remains to be tried and criminal proceedings remain to be conducted. On its face, this order is no different from the panoply of pretrial determinations made before trial from which no interlocutory appeal is permitted.

Where, as here, criminal proceedings against appellant have not terminated, the Supreme Court has said that appellate jurisdiction to review pretrial rulings, such as the certification order before us, exists only *745 if the order falls within the “narrow class” of collateral final orders described in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528 (1949). See Firestone Tire & Rubber Co. v. Risjord, supra, 101 S.Ct. at 674 (if the litigation from which a challenged order arises has not terminated, review is possible under § 1291 only under the Cohen collateral order exception). The majority errs in its failure to apply the principles of Cohen .

B

To qualify as a collateral order, reviewable before proceedings in the trial court have terminated,

Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468 , 98 S.Ct. at 2458 (stating the Cohen test); see also Abney v. United States, 431 U.S. 651, 658 , 97 S.Ct. 2034, 2039 , 52 L.Ed.2d 651 (1977). Assuming, solely for the purposes of this analysis, that the certification order possesses the first two characteristics of a collateral final order in the sense that Kingsbury’s certification for trial as an adult has been conclusively determined by the Guam courts and that certification is a separate determination from the merits of the criminal trial yet to occur, the order still is not subject to interlocutory review by this court because denial of review now will not prevent consideration of the certification order upon appeal to us from final judgment.

C

The third requirement of Cohen is interpreted practically. Even if review of a claim might be possible after a final judgment, it may qualify as a collateral final order if the right asserted in the interlocutory appeal amounts to a right not to have the trial continue. See Abney v. United States, supra, 431 U.S. at 660 , 97 S.Ct. at 2040 . There is no suggestion in this case that if the certification was in error Guam may not prosecute Kingsbury. The certification determines the forum in which criminal proceedings will take place, not whether such proceedings will take place at all. Hence, this is not one of those extraordinary rights which must be vindicated now if it is to be vindicated at all. See also United States v. Layton, 645 F.2d 681 (9th Cir. 1981) (claim of lack of subject matter jurisdiction not appealable as collateral order); United States v. Wilson, 639 F.2d 500, 502 (9th Cir. 1981) (claim of selective prosecution); United States v. Griffin, 617 F.2d 1342, 1344 (9th Cir. 1980) (claim of vindictive prosecution).

An interlocutory appeal will be permitted under § 1291 when denial of such an appeal would render any appellate review of the claim impossible as where review after final judgment is not permitted. See e. g., United States v. Ryan, 402 U.S. 530, 533 , 91 S.Ct. 1580, 1582 , 29 L.Ed.2d 85 (1971). Recent precedent of this circuit makes clear, however, that the propriety of an order certifying a juvenile for trial in the Guam superior court is properly considered by this court after conviction and appeal to the Guam district court.

In Guam v. Lefever, 454 F.2d 270 (9th Cir. 1972) (per curiam), we held that the refusal of the Guam district court to dismiss an indictment based on the appellant’s allegation that he was subject to the exclusive jurisdiction of the Guam juvenile court was not a final appealable order under § 1291 because the order “may be fully reviewed by this court if and when Lefever is convicted and sentenced." Id. at 271. Lefever cannot be meaningfully distinguished. Jurisdiction over a person under 18 years of age may be transferred from the Guam juvenile court to the superior court only by certification pursuant to Guam Civ.Pro. Code § 255. A challenge to the superior court’s jurisdiction, or a claim that the juvenile court is the exclusive forum for trial, is necessarily a challenge to the certification order which causes the transfer.

Because Lefever contemplates post-trial review in this court of alleged defects in the *746 jurisdiction of the Guam superior court over minors, denial of interlocutory review of certification orders would not deprive Kingsbury of his right to later consideration by this court of the propriety of the certification on appeal from final judgment. The third requirement of Cohen is not satisfied, a Guam juvenile court certification order pursuant to § 255 is not a collateral final order and appellate jurisdiction under § 1291 is not available. The appeal should be dismissed.

D

The majority forsakes the clarity of the principles of § 1291 finality and in so doing both adopts an unduly restrictive view of Guam law and unnecessarily raises disturbing questions about the determination of our jurisdiction.

1

The majority concludes that under Guam Civ.Pro.Code § 272, an order of certification transferring a minor to the superior court for trial is reviewable in the district court’s appellate division only by interlocutory appeal before trial and that failure to raise the claim prevents later consideration of it after final judgment.

Nothing in § 272, its history or any court decision is cited to support this narrow interpretation, and indeed no authority for that bare conclusion exists. By its terms, § 272 provides in part:

There is no timing component to § 272 which suggests it will apply only before trial.

In defense of its interpretation, the majority analogizes § 272 to other state statutes and decisions of some state courts limiting review of certification orders to interlocutory appeals. These cases are so wed to local statutes and procedures, many of which are unlike § 272, that the analogy is but an illusion.

To illustrate, in People v. Chi Ko Wong, 18 Cal.3d 698 , 557 P.2d 976 , 135 Cal.Rptr. 392 (1976), the California Supreme Court held that a certification order may be reviewed only before trial and not after. The ruling was based, however, on the fact that in California, the right to appeal in a criminal case is a right conferred by the legislature and it had not been conferred to permit review of certifications. Id. Therefore, the only means of review available was deemed to be by extraordinary writ before trial. Yet, as the majority holds, the Guam legislature confers a right of appeal in § 272. Chi Ko Wong is therefore not only distinguishable but its analysis cannot be used to limit the appeal right in § 272 because the case is peculiarly based on the absence of any right in California. 2

The analogies drawn by the majority fail to persuade that the right to appeal a certification order exists only before trial under § 272.

2

Having restricted the scope of § 272 by its own definition, the majority concludes that this court must review the certification order before trial, if at all, because Guam law does not permit review by the district court after trial. Maj.Op., at 743. This is a disturbing revelation.

The Guam legislature may determine the jurisdiction of the appellate division of the district court over decisions of the Guam territorial courts. 48 U.S.C. § 1424 (a); Territory of Guam v. Olsen, 431 U.S. 195, 200 , *747 97 S.Ct. 1774, 1778 , 52 L.Ed.2d 250 (1977). The essence of the majority’s analysis is that Guam limits appeals under § 272 to before trial, and therefore our review can exist only before trial. Linkage of this court’s jurisdiction to that which the Guam legislature may grant to the district court’s appellate division would mean that the Guam legislature has the power to control the scope of review by this court of cases coming from a district court of the United States. If this were so, Guam could create categories of interlocutory appeals to the Ninth Circuit by permitting only interlocutory appeals to the Guam district court. I do not think that any legislative body, other than Congress, can control the jurisdiction of Article III courts. Control has never been left to territorial legislatures.

In People of the Territory of Guam v. Okada, 642 F.2d 287, 288-89 (9th Cir. 1981), we held that the Guam legislature has no power to determine the jurisdiction of the Ninth Circuit Court of Appeals. The majority’s theory is inconsistent with this principle and the analogy the majority draws to § 1257 and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 , 95 S.Ct. 1029 , 43 L.Ed.2d 328 (1975), reflects an important confusion of our relationship to Guam law and its courts.

The Supreme Court under § 1257 may review “final” decisions of a state’s highest court, but only if those decisions present “federal questions.” As to matters of state law, the Supreme Court is bound to accept the decision of the state’s highest court. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938).

In Cox Broadcasting Corp. v. Cohn, supra, the Court described four exceptions to the finality requirement of § 1257. The majority invokes the third of these, which applies in

Id. at 481, 95 S.Ct. at 1039 (emphasis added).

The reason for the third Cox Broadcasting exception must be understood in light of our federal system. The Court has long held that to preserve a federal question for consideration in the Supreme Court after state proceedings, the federal question must be “seasonably raised in accordance with the requirements of state law. Noncompliance with such local law can thus be an adequate state ground for a decision below.” Edelman v. California, 344 U.S. 357, 358-59 , 73 S.Ct. 293, 294-95 , 97 L.Ed. 387 (1953) (citations omitted). An adequate state ground for decision, such as a procedural rule requiring a claim be raised at the time specified by the state, may preclude Supreme Court review. See North Dakota Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 163-64 , 94 S.Ct. 407, 412-13 , 38 L.Ed.2d 379 (1973) (applying the third Cox Broadcasting exception). Thus, when state procedural rules permit only interlocutory presentation of federal questions, and prevent their later presentation, the Supreme Court may consider the state’s ruling on the only federally reviewable issue — the federal question — final and subject to review under § 1257. Cox Broadcasting Corp. v. Cohn, supra, 420 U.S. at 481 , 95 S.Ct. at 1039 . If the Court does not do so, review may be impossible later because of the state procedural rule.

The majority errs in assuming that determinations of Guam law have a preclusive effect on our jurisdiction, akin to that of state law on the Supreme Court. Unlike Supreme Court review of state decisions, we may review all aspects of a decision of the Guam courts; we are not limited to a consideration of “federal questions.” By granting the Ninth Circuit jurisdiction over the Guam district court pursuant to § 1291, Congress provided for review even of “cases raising only issues of local law. . .. ” which *748 arose originally in territorial courts. Territory of Guam v. Olsen, supra, 431 U.S. at 199 n.6, 97 S.Ct. at 1777. Indeed the majority decides a question of Guam law when it narrowly construes § 272. The underpinnings of the third element of Cox Broadcasting therefore do not apply in the case of Guam. 3 We need not address the “federal issues” now lest otherwise they become lost in impenetrable determinations of Guam law; we may consider those decisions of Guam law as well when federal rather than Guam legal principles call for such review. This is not a situation, as in Cox Broadcasting, where the extent of federal review is limited to “federal questions” and state law determines when those must be presented.

Because Cox Broadcasting is based on entirely different principles which do not apply in the case of Guam, I cannot agree that the jurisdiction of this court under § 1291 to review a decision of a district court hinges upon when the Guam legislature elects to permit the district court to address the question. I am particularly unprepared to do so when the principles of appellate finality under § 1291 and Guam v. Lefever, supra, readily dispose of the jurisdictional question presented in this case. I would dismiss the appeal for the reasons herein set forth.

. There may be cases in which an analogy to § 1257 would be useful in determining whether a final order exists under § 1291. See C. Wright, Law of Federal Courts, § 101, p. 510 (3d ed. 1976). The analogy is unnecessary in this case, however, where the law of § 1291 may be applied so readily.

. Similarly, other state cases cited by the majority in its meandering analogy, such as State v. Stanley, 60 Haw. 527 , 592 P.2d 422, 425-26 , cert. denied, 444 U.S. 871 , 100 S.Ct. 149 , 62 L.Ed.2d 97 (1979), and State v. Briggs, 245 Or. 503 , 420 P.2d 71, 73 (1966), are patently inapposite. Both the statutes which the courts interpreted permitted appellate review of “final orders” of the state trial courts. Unlike § 272, the very terms of the state jurisdictional statutes included an element specifying the time for review — at the point of finality. Section 272 contains no such element.

. As to matters of purely local Guam law, we apply a deferential standard of review. See, e. g., People of the Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1260 (9th Cir. 1981) (per curiam). But the deferential standard is “founded on sound policy” and is designed to assure the orderly development of territorial government in matters of local policy. See Bonet v. Texas Co., 308 U.S. 463, 470-71 , 60 S.Ct. 349, 353-54 , 84 L.Ed. 401 (1940); Diaz v. Gonzalez, 261 U.S. 102, 105-06 , 43 S.Ct. 286, 287-88 , 67 L.Ed 550 (1923). In matters of purely state law, it is the Constitution, not principles of policy, which limits the scope of federal review. See Erie Railroad Co. v. Tompkins, supra, 304 U.S. at 80 , 58 S.Ct. at 823 .