SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCJUDICIAL REFORM ACT OF 1997
WEDNESDAY, MAY 14, 1997
House of Representatives,
Subcommittee on Courts and
Committee on the Judiciary,
The subcommittee met, pursuant to notice, in room 2237, Rayburn House Office Building, Hon. Howard Coble (chairman of the subcommittee) presiding.
Present: Representatives Howard Coble, F. James Sensenbrenner, Jr., Sonny Bono, Edward A. Pease, Bill McCollum, Charles T. Canady, Barney Frank, John Conyers, Jr., Howard L. Berman, Zoe Lofgren, and William D. Delahunt.
Also present: Mitch Glazier, chief counsel; Blaine Merritt, counsel; Eunice Goldring, staff assistant; Perry Apelbaum, minority chief counsel; Robert Raben, minority counsel; and Stephanie Peters, minority counsel.
OPENING STATEMENT OF CHAIRMAN COBLE
Mr. COBLE. The subcommittee will come to order. It's good to have all of you with us.
Page 2 PREV PAGE TOP OF DOC Before I make my formal opening statement, let me visit with you just for a minute. We have three panels today. We have three panels, plus the Members who are with us here, and we also have a 1:30 markup before the full House Judiciary Committee. So it is my optimistic hope that we will be able to be there for that 1:30 meeting, Mr. Chairman, and if we're not, I think we will have no choice but to have to call a recess for this, for the scheduled hearing for today. So, hopefully, we can shoot for a 1:30 conclusion.
I would ask you all at the table now, and those subsequent witnesses, if you can adhere to our 5-minute rule, and I'll ask the members of the subcommittee to do the same during our line of questioning. Now no one will be keel-hauled if you violate the 5-minute rule, but you'll be doing all of us a favor if you can comply with that. When the red light appears, that is your signal that your five minutes have elapsed. Complete statements, of course, will be entered into the record.
Now having said that, let me give my formal opening statement. Today the subcommittee will conduct a legislative hearing on H.R. 1252, the Judicial Reform Act of 1997, which has been introduced by the distinguished chairman of the Judiciary Committee, Henry Hyde. Before the members of the subcommittee and our witnesses discuss the bill, I want to emphasize what we are not attempting to do; namely, our legislative hearing today and the oversight hearing tomorrow are neither intended to interfere with the adjudication of specific cases, nor to prevent the Court from addressing the constitutionality of the laws they are interpreting.
That said, H.R. 1252 represents a reasoned response to specific instances of judicial abuse that should be corrected. It is an amalgam of five ideas submitted by different Members and Senators, and would accomplish the following:
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First, the bill would create three-judge panels at the district court level to hear constitutional challenges to State referenda. Longstanding injunctions to propositions 187 and 209 in California, each issued by a single judge, compelled Representative Sonny Bono to introduce H.R. 1170 during the 104th Congress. This legislation, which the House passed last term, is incorporated in section 2 of H.R. 1252.
Second, Representative Charles Canady proposes in section 3 of the bill that we permit the interlocutory, or temporary, appeal of any class-action certification by a judge. This will allow a party to appeal such a decision immediately to the court of appeals without delaying the progress of the underlying case. Expenses and time constraints discourage litigants from appealing class-action certifications under present law.
Representative Ed Bryant has proposed in section 4 that a complaint brought against a Federal judge be referred to a circuit other than the circuit in which the judge who is the subject of the complaint sits, pursuant to rules developed by the Judicial Conference. This would ensure that greater objectivity would be brought to bear in cases where the disability or misconduct of a judge warrants punishment.
Representative Don Manzullo and Senator Charles Grassley have both expressed longstanding concerns with judges who usurp the role of legislators by requiring States or municipalities to raise or impose taxes on citizens to pay for the execution of their judgments. Section 5 of the bill would essentially proscribe this act, except where due process demands it, and even so, would limit such impositions to a 1-year period.
Page 4 PREV PAGE TOP OF DOC And, Mr. Manzullo, I believe also that Representative Lipinski from Illinois shares your concern about this, although Bill didn't ask to be a member of the panel.
Finally, and also proposed by Representative Canady, H.R. 1252 would enable all parties on one side of a civil action to request reassignment to that action to a different judge one time as a matter of right. This represents a restrained but effective way to allow the affected litigants to avoid having their case heard by a particular judge who is known to be abusive or who is constantly overturned on appealmaybe ''continually'' may be a better word; I don't know. I'll yield to my friend from Massachusetts on that. It will additionally provide a defense against forum shopping.
In conclusion, I thank Chairman Hyde and the other individuals who have contributed to the authorship of H.R. 1252. I think they have done a good job of addressing a specific procedural flaw in the current systemor flaws. Judicial overreach has been a topical subject for some time, and I think it most appropriate that we review this legislation today. I look forward to the testimony of all involved.
[The bill, H.R. 1252, follows:]
INSERT OFFSET RING FOLIOS 1 TO 14 HERE
Mr. COBLE. And I want to recognize the ranking member now, but, first, Mr. Delahunt, I know you and Ms. Lofgren from California asked to be members of the panel, and at first I thought it might be awkward to have you all testifying before yourselves, since you're both members of this subcommittee, but we've agreed to let Zoe there. And if you'd like to go to the witness table and be a witness as well, that, too, will be in order.
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Mr. DELAHUNT. Mr. Chairman, I respect Representative Lofgren's seniority.
Mr. COBLE. Very well, the gentleman from Massachusetts.
Mr. FRANK. Thank you, Mr. Chairman.
The hearing today, in and of itself, seems to me a perfectly reasonable exercise of this committee's jurisdiction. We have a set of moderate proposals, not all of which I agree with. I'm interested in particularly hearing more about the preemptory challenge and the out-of-district discipline. Taken together, they do not propose any significant change in the conduct of the judiciary, it seems to me. But what's relevant about them is that they are grouped with a hearing tomorrow. In fact, we have kind of reversed the normal sequence. Actually, we get the pitch today and a windup tomorrow, and I understand why the pitch proceeds the windup, because the windup is a fearsome thing, because the windup, if you look at tomorrow's testimony, it is in a reference which only myself and people older than I will remember, including the full committee chairman. It's Ewell Blackwell winding up. It is a fearsome swirl of long arms and legs, and out of this swirl comes a slow pitch softball.
We have, obviously, in this country people who are politically unhappy with the way things are going. One of their unhappinesses is, it seems to me, with the various provisions of the U.S. Constitution as they have been interpreted by Justices appointed by Presidents of both parties over the years. We should again remember that the current nine Justices of the Supreme Courtand I say this because this has become partisan and ideological in the hands of manythe current nine Justices of the Supreme Court include seven appointees of Republican Presidents. Only Justices Breyer and Ginsberg were appointed by Democrats.
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The decisions that have caused great upset among many on the conservative side are almost always joined by Justices appointed by both Presidents: the case striking down the antigay referendum in Colorado, the case allowing flag-burning to go forward without being prosecuted under the first amendmentthese have all been decisions joined in by the appointees of both Republican and Democratic Presidents, and since there are 7 to 2, the Republican Presidential appointees have more often than not been the majority of those making those decisions.
What we have, however, despite that, is a frustration on the part of many on the rightand not despite that, I should say, because of itthey find some aspects of the American Constitution as they have been interpreted annoying. They interfere with things they would like to do. They interfere with values they would like to impose. There are people who believe that the Government ought to be playing a much more active role in inculcating religion among the people. There are those who believe that the Government ought to intervene to shut people up more often when they are being obnoxious, as the Lord knows, to revert to the first principle, people often are.
And so we have the second day of hearings. We have fomentations and threats and denunciations; we have talk about changing the impeachment proceeding; we have talk about getting rid of these judgesnone of which are going to amount to anything at all. And it has been suggested that some judges might be intimidated. I would like to send a message to any sitting member of the Federal judiciary confirmed with his or her life tenure who is worried about his or her independence being impinged by the kind of rhetoric we will hear tomorrow: get over it. You have life tenure. No one's coming after you. No one's going to impeach you. I'm sorry they've hurt your feelings, but I trust you are mature enough and tough enough not to let that interfere with doing your job, even though you will annoy some people who, it seems to me, are very much in need of annoyance.
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And so we will proceed with today's hearing, and we will talk about the substance. Tomorrow we will be in the sound and fury; it will signify nothing. We will do our jobs, those of us on the committee, to talk about it, but I think, again, we ought to be clear: the major problem people have is not with some oppressing degree of activism. I should note, by the way, there's a great sea of activity there. We will hear a lot in these 2 days, I suspect, about the judges who invalidated referenda in two States or a referendum in one State and a law in another which banned assisted suicide. What happens is my friends on the other side have this curious memory problem: every time they talk about the judges who invalidated assisted suicide bans somehow they forgot to mention the judge who invalidated an assisted suicide referendum which allowed it. That is, we have a single judge in the State of Oregon who banned, who outlawed a referendum allowing for this. Somehow that's slipped their minds.
We have a district court judge in New York, Judge Prizo, who acquitted people who clearly violated the law by blocking access to an abortion clinic. That seems to me a horrible decision, but not one worth having congressional hearings over, although if we're going to have hearings, it is going to be relevant to bring it up.
Finally, I would like to say, though, that I do hope some consistency can come out of this. We will hear a great deal about the sanctity of the referendum process, and we will hear deplored the fact, as the circuit judges said in their opinion, the wishes of 4.3 million California voters were disregarded temporarilyvery temporarilywhen a district court judge enjoined the antiaffirmative action referendum. Well, I am all in favor of respecting the wishes of more than 4 million Californians, and I will, therefore, at the close of this hearing recirculate my bill which would give legal force to the California referendum supported by I think 4.5 million Californians to legalize the medical use of marijuana. I would hope that this respect for the voters of California survives today's hearing, and the fact that a majority of the voters of California, a larger majority than voted against affirmative action, voted to validate medical marijuana will, of course, not be disregarded by my majoritarian-minded colleagues.
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I thank you, Mr. Chairman.
Mr. COBLE. My colleague from Massachusetts has placed me into a chronological box from which there is no escape. [Laughter.]
I do remember Ewell Blackwell.
Thank you, Mr. Frank, for your opening statement.
The ranking member of the full Judiciary Committee, Mr. Conyers, the gentleman from Michigan.
Mr. CONYERS. Thank you, Chairman Coble, and good morning to our committee and distinguished witnesses.
Barney Frank, as our resident legal philosopher, has started off by telling us we have little to worry about today and a lot tomorrow. But as he continued on, I started getting more worried about today. I was already worried about tomorrow.
But I think we'd better focus on today because we are now dealing with a Congress that, while not quite out of control, thanks to the good relationship that Chairman Hyde and I are beginning to enjoy in which some of my wisdom rubs off onto some of his wisdom, and we reach sometimes an agreement in midpoint, but we have a committeewe have committees on the Judiciary that areunderlinedout of control. So it's going to be very hard for me to consider this as just a beginning of anything.
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Last week it was taken with great disbelief that we were debating on whether to lock up 13-year-olds charged as adults with offenses that would also mandate that they be incarcerated with adults, as well as getting the penalties of adults. People found that hard to believe, that we spent a number of hours debating that, and we still are. That still hasn't been resolved.
We've had about every constitutional amendment that is totally useless offered up in great seriousness in both bodies of the Congress: tax limitation, term limits, balance the budget, you name itlet's put it in the Constitution, folks. What's wrong with that?
And so for us now to be treated to the wisdom of our former fresh-termer and learned scholar of the law, Sonny Bono, who is now instructing us on the importance of controlling judges who insist on ruling on the constitutionality of referenda, is perfectly consistent with the atmosphere that we find ourselves in.
Now I happen to have a great deal of criticism about the courts in this country, but none of it goes in that direction. As a matter of fact, I happen to have remembered that it was the court that brought us out of an era of legal segregation in America; that it was the Court that declared that every person had a right to have his vote counted; that it was the Court that legitimatized the Voters' Rights Act and the Civil Rights Acts; that it was a Court that determined that the wrongdoing of public officials could not be suppressed by the Government when newspapers sought to publish it; that it was a Court that protected our rights against wiretap and invasion of privacy and unreasonable search and seizure. So we're in some serious kinds of hearings here.
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What on earth is judicial activism? And what judicial misconduct are we, in fact, investigating? I mean, how can any sober legislator tell us that a decision that he or she doesn't like reaches the magnitude of misconduct? What in God's name is going on in the Judiciary Committees of this Government? Well, stay tuned.
And I thank you, Chairman Coble, for allowing this intervention.
Mr. COBLE. You're, indeed, welcome.
I will muzzle no one else, if any otherare there other opening statements? The gentleman from Florida, Mr. Canady.
Mr. CANADY. Thank you, Mr. Chairman. Very briefly, I want to thank you for your leadership on the issues we're addressing today. I also want to thank Mr. Hyde and the other members of the panel who have been advancing the issues that we will be considering today.
I am particularly interested in section 3 and section 6 of the bill, the first one being on interlocutory appeals of court orders relating to class actions, and the second one being on the reassignment of cases as a right in the Federal district courts. I think both of these provisions address important issues.
With respect to the interlocutory appeals in class actions, I think it is well acknowledged that in many cases the decisive decision in the case is whether a class action will be certified or not, and once a class is certified, there is enormous bargaining power on the part of the plaintiff to force the settlement of the case. Now that may be the right thing or it may not be the right thing in an individual case, but I think it's important for the litigants to have an opportunity to seek review of that class-action determination. And the provision in the bill is simply aimed at making that more available. It can be reviewed currently, but it's a cumbersome, difficult process, and the provision in the bill will make it more workable for litigants to seek review of the class-action certification.
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Now on the other issue involving reassignment of cases, this, of course, is controversial, is controversial with the judges in particular, who don't particularly like the prospect of having cases reassigned. But I think that this is an issue which goes to the heart of our goal of ensuring the impartial administration of justice in the Federal courts. And I will say that I think it's something that is balanced. It doesn't benefit defendants or plaintiffs. Either side can benefit from the application of this provision.
I will point out that the bill which I introduced on this subject is different in one significant respect from the provisions of the bill we're considering today, and that is my proposal covered criminal cases as well. I understand there's controversy about that. I believe that if it's good on the civil side, it would also make sense on the criminal side. I understand the Department of Justice has some objections to that, and I'm interested in hearing that, but that's an aspect of the reassignment of cases issue that I think we should consider as well.
Finally, with respect to that point, I want to thank Attorney General Lungren, who will be with us later today, for bringing this issue to my attention.
Again, thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
The gentleman from Massachusetts.
Page 12 PREV PAGE TOP OF DOC Mr. DELAHUNT. Mr. Chairman, I'd only just make one comment, and I would challenge the Chair and the ranking member if they can delve back into their memories and remember the name of the pitch that Ewell Blackwell threw. Mr. Hyde. Mr. Chairman.
Mr. FRANK. Submarine.
Mr. HYDE. He was a sidearmer, and they called him ''the Whip.''
Mr. DELAHUNT. It was the Cephus pitch.
Mr. HYDE. The what?
Mr. DELAHUNT. The Cephus pitch.
Mr. HYDE. Only you would know that, Mr. Delahunt.
Mr. DELAHUNT. That's true. [Laughter.]
I specialize in trivia, Mr. Chairman. I've done that all my life.
Mr. FRANK. I'll tell the chairman that, when I go back to Massachusetts, I'll find out that's really pronounced and come back and tell you, so we can understand what it was. [Laughter.]
Page 13 PREV PAGE TOP OF DOC Mr. COBLE. Well, I hate to say this to the former district attorney from the Bay State, but I would have figured you to be much younger than that; I didn't figure you would remember back that far.
Mr. DELAHUNT. Don't let appearances deceive you, Mr. Chairman. [Laughter.]
Mr. COBLE. The gentleman from Indiana.
Mr. PEASE. Thank you, Mr. Chairman.
I come to this hearing with no agenda about judicial activism or otherwise, but with a sincere interest in addressing the efficient administration of justice in this country. As the Chair knows and we have discussed, I was fortunate to serve as chairman of the judiciary committee in the Indiana Senate for 8 years, and for 3 of those years we undertook a study of the court system and how it might more efficiently and effectively undertake its duties as prescribed under our State constitution. I'm very sensitive to the fact that our system works because of the constitutional separation of powers, but also because it enjoys the confidence of the people. And we were concerned in our State, as I think in others, that some of that confidence had been eroded. And so in an effort to ensure that the public maintained its confidence in the system of government we had established, and in particular the separation of powers within that government, we undertook to study some of the very issues that are on the table today.
I hope that I can be helpful in that review, and I look forward to the hearing.
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Mr. COBLE. I thank the gentleman.
The gentleman from Florida.
Mr. MCCOLLUM. Thank you, Mr. Chairman.
I do come with a little bit of interest especially in this matter, because we've been discussing this issue in an abstract form for many years: what is judicial activism? Is there a way the court system can better police itself to make sure that we expedite resolution of what most of us would consider to be abhorrent decisions and decisions that are not based upon what would be the normal, expected results from looking at the precedents and looking at the law, and so forth, without impinging upon the individual discretion that we want judges to have?
I don't know that there is an easy solution to this or if there is one, but I'm certainly one who would like to hear from the experts, from those who are experienced, from the judges themselves, which we're going to do in the next couple of days, not only about the sections of Mr. Hyde's legislation, but also about the whole question of whether or not there is a way to set up some objective standard, either for the courts to police themselves or for potential impeachment proceedings, if judges stray beyond a certain mark. And is that at all practical? A lot of people have assumed that's not, that it can't be done, that it wouldn't work. I'm not sure whether that's true or not, but I certainly want to hear the next couple of days what witnesses have to say.
I'm looking forward to it. I kind of think that it can't be anything but therapeutic to go through this process, and as the end result of it, we may very well come up with a way to judge someone who is a judge who has gone beyond the pale, who makes decisions that are simply not appropriate and are irrational, although their conduct may not rise to the level of criminality or something you normally would impeach one for.
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So thank you for holding the hearings. I think they can be very constructive, Mr. Coble.
Mr. COBLE. I thank you, and I thank the members for your opening statements.
I will welcome the first panel consisting of our five colleagues: the gentlemanfrom my left to rightthe gentleman from Illinois, the gentleman from North Carolina, the gentlelady from California, the chairman from Illinois, the gentleman from Tennessee. And we will start with the distinguished chairman of the full committee, and I would respectfully and graciously remind my colleagues again to be ever mindful of the ominous, illuminating red light.
The gentleman from Illinois.
STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY
Mr. HYDE. I thank you, Mr. Chairman, and I will speak as quickly as I can, knowing the time constraints we have.
I feel privileged to have heard Barney Frank's opening statement for tomorrow today. [Laughter.]
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And I hope that tomorrow he will give today's opening statement, so we'll have an integrated presentation, because it's always illuminating to hear from Barney.
It was eclectic; he did range from marijuana to a sidearmer with the Cincinnati Reds. I'd like to work Johnny Vandermere in here some way, butyes, perhaps we can do that later.
I detected a little patronization of one of our valuable Members, Sonny Bono, and I would like to say thatno, not by you, Mr. Frank. But I find that Mr. Bono, while a nonlawyer, has made several serious contributions to the well-being of our committee and has done, and is doing, a very useful job.
I am pleased that this committee is holding this hearing. I am pleased that oversight of the Federal judiciary has been assumed as one of the responsibilities and duties of this committee. I do not recall in my previous years with the committee a very serious oversight exercise. We are trying to do that this year, and we are open to all sorts of suggestions. Those who believe the judiciary is perfect and needs no attention from Congress, fine, but those that feel otherwise are entitled to have their concerns heard, and that's what we are doing today and tomorrow.
There are many ideas that have been proposed to address judicial reform, ranging from small changes in current law to restructuring the checks and balances on the judicial branch by amending the Constitution to large-scale impeachments of Federal judges. Many of the proposals currently being advanced are, to say the least, highly controversial. Such a degree of controversy doesn't mean the idea lacks merit, but it does mean further study and a careful and thoughtful review of the proposal are necessary.
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In contrast to those proposals, speaking of the ones you'll be looking at tomorrow, H.R. 1252 is a collection of specific solutions to specific problems. The plan is not to interfere with the adjudication of specific cases, nor to prevent the courts from carrying out their duty to review the constitutionality of our laws. It is important to note the provisions of H.R. 1252 are neither new nor radical. Congressman Bono's proposal to require a three-judge panel to review certain injunction applications passed the House last Congress by a vote of 266 to 159. It wasn't considered by the Senate. Congressman Canady's proposal to provide litigants one reassignment of their case as a right has been enacted and successfully tested in the State courts of more than 17 States.
The three appellate court justices who last month unanimously upheld the constitionality of California's proposition 209 provided a compelling statement in support of this legislation when they noted, and I quote, ''A system which permits one judge to block with the stroke of a pen what 4,736,180 State residents voted to enact as law tests the integrity of our constitutional democracy.''
Section 5 of H.R. 1252 restricts the ability of a Federal court to fashion a remedy that in practical effect imposes taxes. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the bench have breached this Nation's founding principle of separation of powers and undermined the concept of self-rule.
In Missouri v. Jenkins, the Supreme Court unanimously held ''The power of taxation is one that the Federal judiciary does not possess.'' Despite this ban on orders that directly raise taxes, some Federal courts have fashioned remedies or approved settlements that order parties to implement certain expensive programs without reference to how they might be financed. In many cases, the locality has no choice but to raise taxes. So, in practical effect, that judge has raised taxes.
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H.R. 1252 prevents a district court from issuing an order or approving a settlementand I'll just finish this sentencethat requires a State or local government to raise taxes unless stringent safeguards are met. H.R. 1252 upholds the letter and the spirit of the principle that taxation without representation is tyranny and cannot be tolerated.
I ask that my full statement be made a part of the record, and I thank you, Mr. Chairman, for permitting me to testify.
[The prepared statement of Mr. Hyde follows:]
PREPARED STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY
Thank you Chairman Coble and my colleagues on the Subcommittee for this opportunity to testify before you today on H.R. 1252, the ''Judicial Reform Act of 1997.'' Before I get to the heart of my testimony, I would like to thank Congressmen Bono, Canady, Bryant and Manzullo for their contributions to this piece of legislation.
There are many ideas that have been proposed to address judicial reform or judicial activism ranging from small changes in current law to restructuring the checks and balances on the Judicial Branch by amending the Constitution to large scale impeachment of federal judges. Many of the proposals currently being advanced are highly controversial. Such a degree of controversy does not necessarily mean the idea lacks merit, but it does mean that further study and a careful and thoughtful review of the proposal is necessary. Indeed, the Subcommittee will be reviewing a number of broader and more controversial proposals in its hearing tomorrow.
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In contrast to those proposals, H.R. 1252 is a collection of specific solutions to specific problems. The plan is not to interfere with the adjudication of specific cases nor to prevent the courts from carrying out their duty to review the constitutionality of our laws. It is important to note that the provisions in H.R. 1252 are neither new nor radical. Congressman Bono's proposal to require a three-judge panel to review certain injunction applications passed in the House of Representatives last Congress by a vote of 266159. Unfortunately, it was not considered in the Senate. Congressman Canady's proposal to provide litigants one reassignment of their case as of right has been enacted and successfully tested in the state courts of more than 17 states.
Section 2 of H.R. 1252 adopts a provision that was originally developed by Congressman Sonny Bono of California. In recognition of the unjust effects the preliminary decision of a single federal court judge may have on the voting rights of the entire population of a particular state, this section provides that requests for injunctions in cases challenging the constitutionality of measures passed by a State referendum must be heard by a 3-judge panel. Like other federal voting rights legislation that provides for 3-judge panels, the Judicial Reform Act of 1997 is designed to protect voters and the referenda they supported with their vote. It requires that legislation directly voted upon and approved by the citizens of a state be afforded the consideration of a 3-judge court pursuant to 28 U.S.C. 2284 when an application for an injunction is brought in federal court on the grounds that the referendum violates the Constitution.
In effect, where the entire population of a state exercises a direct vote on an issue, a single federal judge will not be able to obstruct the will of the people of that State. Rather, three district court judges, pursuant to procedures already provided in certain voting rights statutes, will hear the application for an injunction and determine whether the requested injunction should issue. An appeal is taken directly to the Supreme Court, expediting the enforcement of the referendum if it is ultimately deemed constitutional. The small additional burden that is placed on the federal judiciary will be more than offset by the substantial protection of the rights of the voters who adopted the referendum.
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The experience we just had with Proposition 209, the California Civil Rights Initiative, illustrates the need for this provision. The day after this Initiative was adopted by a margin of 54% to 46% by the direct vote of California citizens, a group of plaintiffs claimed that it was unconstitutional and applied for an injunction. Within three weeks, a temporary restraining order was issued, and an injunction followed a month later. A single federal court judge struck down an initiative that was approved by the majority of the voters before the law had even been implemented, let alone applied. Last month, an appellate court panel of three judges unanimously overturned the decision and held: ''Assuming all the facts alleged in the complaint and found by the district court to be true, and drawing all reasonable inferences in plaintiffs' favor, we must conclude that, as a matter of law, Proposition 209 does not violate the United States Constitution.'' Coalition for Economic Equality v. Wilson, Nos. 9715030, 9715031, 1997 WL 160667 at *17 (9th Cir. April 8, 1997). In this particular case, our current review process delayed the enforcement of the direct will of the people of California for five months; it could just as easily have been several years.
The three appellate court justices who ruled on this case provided a compelling statement in support of this legislation when they noted:
If, however, the district judge relies on an erroneous legal premise, the decision operates to thwart the will of the people in a most literal sense: What the people of California willed to do is frustrated on the basis of principles that the people of the United States neither ordained nor established. A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.
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This bill recognizes that State referenda reflect, more than any other process, the one-person/one-vote system, and seeks to protect a fundamental part of our national foundation. This bill will implement a fair and effective policy that preserves a proper balance in federal-state relations. I applaud Mr. Bono for his efforts in extending the protection afforded to Voting Rights Act Cases to direct initiatives of the voters.
The second reform in this bill, section three, was developed by Congressman Charles Canady of Florida who is the distinguished Chairman of the Subcommittee on the Constitution. It allows immediate (interlocutory) appeals of class action certifications by a federal district judge.
When a district judge determines that an action may be maintained as a class action, the provisions contained in the Judicial Reform Act allow a party to that case to immediately appeal the decision to the proper court of appeals without delaying the progress of the underlying case. This provision will inhibit abusive practice of attorneys who bring unwarranted class action suits. It also provides protection to defendants who may be forced to expend unnecessary resources at trial, only to find that a class action was improperly brought against them in the first place.
Section Five of H.R. 1252 severely restricts the ability of a federal court to fashion a remedy that in practical effect imposes taxes. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the judiciary have breached this nation's founding principle of separation of powers and undermined the concept of self-rule.
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In Missouri v. Jenkins, the Supreme Court unanimously held:
The power of taxation is one that the Federal Judiciary does not possess. In our system, the legislative department alone has access to the pockets of the people, The Federalist No. 48, p. 334 (J. Madison).
Despite this ban on orders that directly raise taxes, some federal courts have fashioned remedies or approved settlements that order parties to implement certain expensive programs without reference to how they might be financed. In many cases, the locality has no choice but to raise taxes, so in practical effect, that judge has raised taxes. H.R. 1252 prevents a district court from issuing an order or approving a settlement that requires a state or local government to raise taxes, unless the court finds by clear and convincing evidence that: (1) there is no other remedy available, (2) the tax is narrowly tailored to remedy the specific deprivation, (3) the tax will not exacerbate the problem, (4) the tax will not depreciate property values for affected taxpayers, (5) the tax will not conflict with state or local tax ceilings, and (6) the state or local governmental plan will not remedy the problem. In any case, the tax must expire within one year and sooner if the problem is cured.
The Constitution, as well as State and federal laws, leave budget and spending authority to legislative bodies, because only a body which represents the will of the people can decide properly how to spend the people's taxes. While rulings on due process are important to protect the rights of litigants, any remedy which would force the public to pay more in taxes should come from the House of the people and not from the authority of the bench. The judiciary simply lacks the authority to make such decisions. To allow otherwise is to usurp self-rule and replace it with self-appointed authority.
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This bill will restore the proper balance defined in the Constitution between the federal branches and federal-state relations by severely limiting the ability of courts to cause the imposition of taxes on any community. It retains accountability of the legislature to the electorate, rather than to judges.
The sixth and final section of H.R. 1252 was also developed by Congressman Canady. It allows all parties on one side of a civil case brought in federal district court to agree, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. Each side of the case may exercise this option only once.
This substitution of judge, or, as referred to in the bill, reassignment of case as of right provision mirrors similar state laws and allows litigants on both sides of a case to avoid being subjected to a particular federal judge in a specific case. It might be used by litigants in a community to avoid forum shopping by the other side in a case, or to avoid a judge who is known to engage in improper courtroom behavior or who regularly exceeds judicial authority.
This provision is not meant to replace appellate review of trial judges decisions, but rather to complement appellate review by encouraging judges to fairly administer their oaths of office to uphold the Constitution. Many judges face constant reversals on appeal, but still force litigants to bear extraordinary costs before them and further bear the burden of overcoming standards of review on appeal. This provision allows litigants some freedom in ensuring that due process will apply to their case before they bear the costs associated with litigating in trial court. It will also encourage the judiciary to be as impartial as required by their charge. In effect, it applies a quality control standard to federal judges, as determined by the litigants they serve.
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My Colleagues, this bill is limited in scope. It reforms the procedures of the federal courts to ensure fairness in the hearing of cases without stripping jurisdiction, or reclaiming any powers granted by Congress to the lower courts. It does assure that litigants in federal courts will be entitled to fair rules of practice and procedure leading to the due process of their claims.
I know that your consideration of judicial reform and judicial activism will go beyond H.R. 1252. In your oversight hearings tomorrow, you will begin to consider the many options to address judicial activism that are available to the Congress. As the Subcommittee charged with the first and most comprehensive review of this issue, it is incumbent upon you to define the issues, analyze the alternatives and recommend the appropriate course of action. This is no small task. Even the introductory step of defining the term judicial activism requires an in-depth analysis of the intent of the Framers of the Constitution. As you weigh these options that are available, I ask you to keep in mind the intent of our Founding Fathers. However, I am confident that it is a task that you are capable of accomplishing.
The ultimate check that Congress has on the federal judiciary is the power of impeachment; that is not a check that should be exercised lightly. I do not believe that impeachment can or should be based upon a judge's decision on the merits of any particular case or upon the judge's political philosophy. There is no precedence for such an approach, and for good reason. An impeachment under these circumstances would gravely threaten the independence of the Judiciary that our Founding Fathers so skillfully created. Instances of systematic abuse of power and aggressive legislating from the bench must be addressed, possibly by impeachment. However, the remedy for an incorrect decision, no matter how wrong, is not impeachment but an appeal to a higher court or the enactment of legislation.
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I look forward to working with you to enact H.R. 1252, the Judicial Reform Act of 1997 and as the Committee addresses judicial reform generally. Thank you for this opportunity to testify on this important issue.
Mr. COBLE. And we thank you, Mr. Chairman.
Mr. Bryant came to me earlier and said that he is on a short leash this morning. So I think you have another conflicting meeting, Ed. So we'll recognize you next.
Mr. BRYANT. Thank you, Mr. Chairman.
Mr. COBLE. The gentleman from Tennessee.
STATEMENT OF HON. ED BRYANT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Mr. BRYANT. Thank you, Mr. Chairman. I will move rather quickly through this presentation, as I do want to stay within the timeframe. I do want to thank you for holding these hearings and certainly look forward to today's results, as well as tomorrow's.
Someone once said that while our system of government is by no means perfect, it is to date the best system ever conceived. I want to begin with this thought because I believe that it touches the core reason as to why we should be considering judicial reform legislation.
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Our Founding Fathers devised a Federal judiciary in a successful effort to separate and balance the power of government they sought to establish. Inherent in their vision of a balanced government was a firm belief that this branch must be independent, and for the most part, in theory, as well as practice, the great American experiment must be called a success.
Mr. Chairman, the Founding Fathers also recognized that, no matter how ideal this new type of government may appear in theory and on paper, it would ultimately be implemented and administered by men, and knowing of the fallibility of mankind, the Fathers allowed for procedures by which the eventual failings of each branch of government, due to inept or even corrupt administration by some individuals, could be addressed.
And it is out of respect for our Federal system that I'm here today to advocate for certain changes which I believe will ensure that a few rogues in our judiciary do not spoil our Founders' visions. Over the past few decades, a few such judges, through questionable rulings, have caused an alarming number of Americans to begin to question or even hold in contempt the whole of the Federal judiciary.
An April editorial in the Wall Street Journal highlights this point, noting that in the wake of overturning California's proposition 209 and various other cases, such judicial activism ''has infuriated large segments of the population.'' And though the high-profile cases such as proposition 209 or Missouri's federally-imposed tax education stand as national models of such public discontent toward the judiciary, there's an abundance of lesser-known examples as well.
Page 27 PREV PAGE TOP OF DOC In my native State of Tennessee, for example, citizens are distraught with frustration over sluggish procedural delays by Federal Judge John T. Nixon concerning various death penalty cases which have come before his court only to collect dust for years and finally, after being ordered by the sixth circuit to rule under a writ of mandamus, to be overturned and dismissed.
In considering what can be done to limit judicial misconduct, there are a number of possibilities. A good starting point would be to enact a judicial reform act into law. Among its provisions is one which I authored which would require ethical complaints filed against a judge to be adjudicated outside the circuit in which he or she serves.
The complaint process currently works like this, and I'll boil this down very easily: It's adjudicated by judges within the same circuit in which that judge practices. I'll skip through that. I think this is not the best way to handle these types of complaints and certainly raises the specter of at least an appearance of a conflict of interest, when you've got the judges judging themselves within the same circuit.
As I said, the key problem I see with this procedure is the appearance of a lack of impartiality, a lack of fairness, an appearance of possible bias, or, worse, biased review. More to the point, these complaints against a judge are reviewed by his close colleagues. They all serve together in the same circuit, some in the same district court. They work together professionally, meet together at conferences, and interact on a personal and social basis.
Section 3 of this legislation will remedy this situation. My intent is to introduce a greater degree of impartiality and fairness to the process. The section will have the clerk of the circuit in which a complaint originates automatically forward that complaint to another circuit for adjudication. The provision further directs the Judicial Conference of the United States to come up with the mechanics of this particular referral system.
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This legislation builds on the current complaint review process. It calls for the creation of a method by which complaints reviewed against judges and magistrates within one circuit are sent to another circuit for review.
Mr. Chairman, it's evident from several public opinion polls that the American public has lost a great amount of confidence in, and respect for, the Federal Government as a whole. Rebuilding this trust will not be an overnight process. I am confident, however, that the changes outlined in this legislation will correct several problems which have helped to erode public confidence in our judicial system.
Mr. Chairman, I thank you again for holding these hearings and for the opportunity to testify. Thank you.
[The prepared statement of Mr. Bryant follows:]
PREPARED STATEMENT OF HON. ED BRYANT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Thank you Mr. Chairman, before I begin my formal statement, let me first thank you and the members of this subcommittee for holding these important hearings. I know that the information presented over the next few days will be extremely useful in helping me and the other members of the full committee in evaluating the need for change within the federal judiciary. I also want to thank the distinguished chairman of the full committee for allowing me to make a contribution to this legislation.
Page 29 PREV PAGE TOP OF DOC Someone once said that while our system of government is by no means perfect, it is to date the best system ever conceived. I wanted to begin with this thought because I believe that it touches on the core reason as to why we should be considering judicial reform legislation.
Our Founding Fathers devised the federal judiciary in a successful effort to separate and balance the power of the government they sought to establish. Inherent in their vision of a balanced government was a firm belief that this branch must be independent. And for the most part, in theory as well as in practice, the great American experiment must be called a success.
But Mr. Chairman, the Founding Fathers also recognized, that no matter how ideal this new type of government may appear in theory and on paper, it would ultimately be implemented and administered by men. And knowing of the fallibility of mankind, the Fathers allowed for procedures by which the eventual failings of each branch of government due to inept or even corrupt administration by some individuals could be addressed. And it is out of respect for our federal system, that I am here today to advocate for certain changes which I believe will ensure that a few rogue members of the judiciary do not spoil our Founders's vision.
Over the past few decades, a few renegade judges, through questionable rulings, have caused an alarming number of Americans to begin to question or even hold in contempt the whole of the federal judiciary. An April editorial in the Wall Street Journal highlights this point, noting that in the wake of the overturning of California's Proposition 209 and various other cases, such judicial activism ''has infuriated large segments of the population.''
Page 30 PREV PAGE TOP OF DOC And though the high-profile cases such as Prop 209 or Missouri's federally imposed state education tax stand as national models of such public discontent toward the judiciary, there is an abundance of lesser known examples as well. In my native Tennessee, for example, citizens are distraught with frustration over sluggish procedural delays by federal Judge John T. Nixon concerning various death penalty cases which have come before his court, only to collect dust and finally be overturned and dismissed.
In considering what can be done to limit judicial misconduct, there are a number of possibilities. A good starting point would be to enact the Judicial Reform Act into law. Among its provisions is one which I authored that would require ethical complaints filed against a judge to be adjudicated outside the circuit in which he or she serves.
The complaint process currently works like this: The ethical complaint is made in writing to the circuit court clerk. The complaint is accompanied by a brief statement of the facts behind the complaint. Alternatively, the chief judge of the circuit may initiate a complaint if he's aware of a set of facts that warrant review.
The clerk gives the complaint to the chief judge of the circuit. He reviews the complaint and either dismisses it or refers it to a special committee of judges from within that circuit. The special committee examines the facts of the complaint, and gets the judge or magistrate against whom the complaint has been filed to respond to the specific issues raised. The committee rules on the complaint, and the chief judge sends a copy to each party. Either party may ask for the decision to be reviewed by the judicial council of the circuit. After that, either could ask the Judicial Conference of the United States to review the decision. That's the process. Complaints can't be appealed beyond that.
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The key problem I see with this procedure is, at least, the appearance of a lack of impartiality, a lack of fairness, an appearance of possible bias, or at worst, partial, biased review. More to the point, these complaints against a judge are reviewed by his close colleagues. They all serve together in the same circuit, some in the same district court. They work together professionally, meet together at conferences, and interact on a personal and social basis.
Section three of this legislation will remedy this situation. My intent is to introduce a greater degree of impartiality and fairness to this process. This section will have the clerk of the circuit in which a complaint originates automatically forward the complaint to another circuit for adjudication. This provision further directs the Judicial Conference of the United States to come up with the mechanics of the referral system.
This legislation builds on the current complaint review process. It calls for the creation of a method by which complaints received against judges and magistrates within one circuit are sent to another circuit for review. The circuit receiving the forwarded complaint will have its chief judge review the complaint and, if warranted, refer it to the circuit's special committee to adjudicate the case. Its decision will be returned to the originating circuit.
Mr. Chairman, it is evident from several public opinion polls that the American public has lost a certain amount of confidence in and respect for the federal government as a whole. Rebuilding that trust will not be an overnight process. I am confident, however, the changes outlined in this legislation will correct several problems which have helped to erode public confidence in our judicial system.
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And I thank the Chair.
Mr. COBLE. I thank the gentleman.
The gentlewoman from California.
STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Ms. LOFGREN. Thank you, Mr. Chairman.
I am disturbed by the escalation of rhetorical attacks on judges and justices in the Nation, and even more alarmed to note that we appear to be moving beyond rhetorical attacks into concrete legislative proposals to significantly change the independence of article III courts. I should make it clear that I am a lawyer, a Member of Congress, a member of this subcommittee, a former teacher of the law, and a student of jurisprudence, and in each of those capacities I think I'm permitted to criticize particular decisions, and in fact I sometimes do criticize particular decisions. I would never suggest that any citizen does not have the right to criticize a particular ruling or decision. But I think there is a distinction between that type of activity and using very broad and expansive rhetoric to call for drastic changes in article III independence.
In Californiaand I am from Californiamany disagreed with the injunction against proposition 209, an initiative that I actually opposed. I would note, however, that the ninth circuit overturned Judge Henderson's injunction in that case, which is evidence of the carefully-conceived, built-in remedy for when judges overreach, and it worked in this case. The court of appeals remedied an overreaching decision.
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If the proposal to require consideration of State referenda by a three-judge panel is meant as an admonition to district court judges who have ruled in a way you didn't like, then you should also consider it an admonition to courts of appeals may make them feel that they are incapable of doing their jobs, which is to review lower court opinions.
I think too often lately the rhetoric I've heard seems to be ad hoc and really outcome-oriented. Mr. Frank mentioned earlier the district court judge in Oregon who enjoined that State's assisted suicide referendum, which was validly enacted by a majority of the State's voters in Oregon, as violative of the equal protection clause. I have not heard extensive criticism of that injunction. I have, however, heard much criticism of Judge Henderson's ruling. And I think that we ought to caution ourselves, as Judiciary Committee members and as lawmakers, not to look at a result and then seek to change the system, because you may get what you ask for, and it may not be what you want.
I think that we need to look carefully through the various provisions in the bill before us. As other members of the committee have said, I'm willing to sort through them in a very deliberative manner, but I think that we ought to do so outside of the rhetoric of extravagant criticism of our judiciary as lawmakers.
If there is wrongdoing, it ought to be investigated, but I think that since most citizens are, thank God, not lawyers, we have an obligation, as members of the Judiciary Committee, to outline for the public at large what is going on in a particular case. And I'll give you an example that has not yet been discussed today, and that's proposition 187, also a California initiative. That proposition was adopted by the voters of my State, and prior to the election, there was a lot of discussion about the provision of 187 that would prohibit the education of schoolchildren who were not lawfully present in the United States. And as the members of this committee know, the Supreme Court has ruled on that exact question in a case out of Texas a number of years ago, and the Court found that the Government could not so bar those children because it was violative of the equal protection.
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When this issue was raised during the course of the campaign, the proponents of proposition 187 said, ''We're just seeking a rehearing on this issue in the Supreme Court. We understand this is not constitutional. We just want to bring this up to the Supreme Court to see if they still believe that there is an equal protection issue.'' As soon as the measure was adopted, those same individuals began to berate the Federal courts, saying that they had upset the will of the voters, and suddenly it was forgotten, the previous rhetoric that this was a test case. I think that was a disservice to the voters of California because it led them to have a lack of confidence in our Federal judicial system that has served us so well for over 200 years.
As lawmakers, we need to help all of our citizenry appreciate the fact that all of our statutes, including those passed by voters, must be in conformity with our most important document, which is the Constitution of the United States. And, with that, I thank you for listening to me this morning.
[The prepared statement of Ms. Lofgren follows:]
PREPARED STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I am disturbed by an escalation of rhetorical attacks on the judges and justices in this nation, and even more alarmed to note that we appear to be moving beyond rhetorical attacks into concrete legislative proposals to significantly change the independence of Article III Courts.
Page 35 PREV PAGE TOP OF DOC I should begin by making clear that I too am a lawyer, a Member of Congress, a former law professor, and a student of jurisprudence, and in each of these capacities I am permitted to and in fact do criticize particular decisions or rulings in individual cases. I would never interfere or curtail in any way the right of any citizen to criticize a particular ruling or decision.
But there is a distinct and important difference between criticizing decisions, and using distorted criticisms to call for drastic changes in Article III independence. For example, many in California disagreed with the decision of Judge Thelton Henderson enjoining Proposition 209, a ballot initiative that I opposed. I would note, however, that the Ninth Circuit overturned Judge Henderson's injunction. That is, the carefully conceived, built-in remedy for a judge overreaching worked in this case, as it does in so many cases. The Court of Appeals remedied it.
If the proposal to require consideration of State referenda by a three-judge panel is meant as an admonition to a District Court Judge who ruled on a referendum in a way you didn't like, it should also be considered an admonition to Courts of Appeals that they are in some way incapable of doing their jobs, which is to review lower court opinions.
I'm also struck by the ad hoc nature of many of these criticisms. I note that a District Court judge in Oregon, Michael Hogan, enjoined that State's assisted suicide referendum, validly enacted by a majority of Oregon voters, as violative of the Equal Protection Clause. I do not hear those who regularly criticize Judge Henderson including Judge Hogan in their criticism. I'm not sure why that is, but it informs me that it might be a result-oriented phenomenon, in that critics of the Judiciary focus on results they don't approve of, and develop procedural changes to attempt to change those results in the future. I would say, be careful what you ask for. A three-judge panel convened after the enactment of the Oregon referendum may well have upheld the statute, as a panel of the Ninth Circuit did in a similar case, now pending before the Supreme Court. There could very well have been assisted suicides permitted in Oregon in the window between such affirmance and Supreme Court review.
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In short, I caution this Subcommittee, of which I am a Member, to look carefully at how we treat the Federal Judiciary. I would hope that we withstand repeated attacks on particular judges who rule in ways that some of us don't approve of. If there is evidence of wrongdoing, let us investigate that. Short of that, I am convinced that the attacks on the Judiciary demean that great institution, bring about disrespect for it in a degree that far exceeds any error it or a member of it may have committed, and is unworthy of our participation.
Mr. COBLE. Excellent timing, Zoe. Thank you.
The gentleman from North Carolina.
STATEMENT OF HON. MELVIN L. WATT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. WATT. Thank you, Mr. Chairman. I'm honored to be here this morning, in particular, appearing before the chairman and the ranking member, two of my favorite people in Congress and the ones that I respect dearly, and I'm honored to be on the panel with my colleagues, particularly the chairman of our committee.
This is my first time testifying before a congressional committee, and I can tell you that I have come to feel a lot more comfortable on that side than I have come to feel on this side. [Laughter.]
I'd like to limit my comments this morning to the general subject of judicial activism, not to the specifics of the bills before the committee, and take the opportunity to tell two short stories very quickly.
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Many of you have heard me in defense of the Constitution, States rights, separation of powers, the whole range of issues that I have tried over timesometimes with fiery oratory, sometimes with passion, sometimes with pleadingto get my colleagues to focus on, and sometimes people have said, well, he's just saying that because it's convenient for him to do so in a partisan context; were the roles reversed, he would be somewhere else on this issue. And this is my opportunity to talk a little bit about the framework from which I operate.
In 1970, after graduating from law school and spending about eight months at the NAACP Legal Defense Fund in New York, I went back to Charlotte, NC, and joined a small civil rights law firm and studied at the knee of Julius Chambers in a small firm, and Julius Chambers had studied at the knee of the Chief Justice Thurgood Marshall at the Legal Defense Fund. And a lot of the philosophies that I have played out in my lifetime in the practice of law have come from those experiences.
This small law firm, that never grew to over 15 lawyers at any time that I was there, handled a number of cases that went to the U.S. Supreme Court, trials, very serious cases, among those: Swann v. Charlotte Mecklenburg School case, Griggs v. Duke Power, Robinson v. Lorillard, the Wilmington 10 case, Russell v. American Tobacco, Albemarle Paper v. Moody, Moody v. Albemarle Paperit was known as Gingles v. Thornburg most recently. Every single time that we got a decision in these cases somebody was out there, the public was out there, screaming about judicial activismevery single time.
Page 38 PREV PAGE TOP OF DOC And every single time I would hear those protestations from the public, I would always say, well, you know, the real judicial activism took place, I thought, at the trial level, where we had typically lost these cases, in the context of a judge who, in direct violation of the law and direct disregard of the facts, had ruled against us. And then I said to myself, you know, the ultimate act of judicial activism is standing in a courtroom and having a judge look down at you and call you ''nigger'' and tell you that your client's opinions in a case don't mean anything because your client happens to be black, or tell the bailiff not to call you and tell you that your case is coming up for trial and start the trial without you being there, simply because you represent an interest that the judge is out of step with. That is the ultimate act of judicial activismacts which I have seen in my practice of law. So one thing I have come to understand is that judicial activism is much like beauty: it's in the eye of the beholder.
The second story I want to tell you is a story that happened just 2 weeks agoand I'll be brief; I know the red light is over on the Senate side, I was invited to hear a presentation by a gentleman who's an expert on Russia, and he came and he made a powerful presentation about how crime is rampant in Russia and how people are stealing the money and taking it offshore, and the whole range of things that you hear about going on in Russia. And when a time came for the question-and-answer session, I looked at him and I said, ''You know, I often wonder what people would say in another country if they were talking about the status of the United States in that country and making a presentation of this kind in some other country, because when I go to North Carolina, people look at me and say, 'You couldn't possibly walk the streets of the District of Columbia because of the crime there,' and that's what you've just told me about Russia. I see money going offshore from the United States and jobs and the whole range of things; the whole list of things that you've talked about, I have seen in the United States. So what is it that you are saying? Is it an order of magnitude?''
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The response of this gentleman was something that I think I will never forget, and I want to leave this with the committee as you start this discussion of judicial activism. His response to me was, ''The difference is that they have the rule of law. They havethat we have the rule of law in our country; they have no system within which these things can play out and be redressed in their system of government. There's no respect for the courts. There's nothing there like we enjoy in this country.''
And it occurred to me that, despite all of these things that had happened to me in my practice of law, the most important thing that I have got to keep in mind is that we have the rule of law in this country because our system is one not of men, but of law. Do you understand? It's not a system of men, but of law. The men who are making these decisions that we all sometimes characterize as judicial activists, they'll be reversed in our system. They'll go away. But our system itself must be defended, and it's our responsibility in this committee to defend the separation of powers and the rule of law. And I hope that this committee, this subcommittee and our full committee, will keep that in mind as we start to address this whole issue of judicial activism.
I'm sorry I took more time than I was allotted.
Mr. COBLE. I thank the gentleman.
The gentleman from Illinois.
STATEMENT OF HON. DONALD A. MANZULLO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
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Mr. MANZULLO. Thank you very much, Chairman. It's a real pleasure to be here.
I would comment briefly on Mr. Watt's statement that any judge who uses language like that in a courtroom should be impeached by the U.S. Congress and should be disbarred and penalized and barred from the practice of law.
Mr. WATT. He passed on. He's gone. [Laughter.]
Mr. MANZULLO. That was a blessing to this country.
Mr. WATT. He made it; justice is a continuum.
Mr. MANZULLO. But that's a form of judicial activism which brings about impeachment proceedings. I would be the first one to join in a petition like that, as I'm sure that the rest of the members of this committee would be.
It's a real pleasure to be here this afternoon. I have long been a student of the Constitution and a lawyer licensed to practice in the State of Illinois. I wrote a book on the first amendment, and it's one of the few works that examines the debates of the first amendment as they took place in each of the 13 ratifying sessions by the individual States as they ratified and considered the Bill of Rights. So I come to this with a background of knowledge in the area of constitutional law and the history of it.
Page 41 PREV PAGE TOP OF DOC Under the Constitution, it is Congress that has the ultimate authority to determine the remedies and the powers and the jurisdictional limitations of the Federal courts. So when we're talking about judicial activism, we must remember that, if we don't like a decision that the judge has made, chances are it's not the fault of the judgethe judge is following the lawbut it's the fault of the U.S. Congress, which has the ultimate authority to determine jurisdiction.
I introduced a bill last year. The name of it is simply ''a bill to limit the authority of Federal courts to fashion remedies that require local jurisdictions to assess, levy, or collect taxes, and for other purposes.''
I would hope, Mr. Chairman, that at the markup of thisI have a longer version of the bill. The shorter version is included in the parent bill; the longer version answers the questions raised by the Judicial Conference of the United States. I would hope there would be a possibility to substitute that bill for title V of your bill when it comes to the markup, because it would answer all the ambiguities that they have set forth.
I represent the city of Rockford, IL, a city of 150,000 people, which is subject to a court order by a judge who has decided to raise taxes, $48 million to build three schools, taxes that will exceed $100 million over a period of time, to institute a desegregation order based upon a finding that is undisputed of segregation that took place in the city of Rockford in school district 205. The impact of that ruling has been to force the school board, under the pain of imprisonment, at the lips of the Federal magistrate, to raise taxes. And the purpose of the court order is to improve and to alleviate the situation going on in the city of Rockford.
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Instead of that, five things have happened: There have been lower property values; higher taxes; seniors who are suffering because of a 50-percent spike in real estate taxes in the past 4 years, and 15 to 20 percent spike in the next year; seniors living on fixed incomes; the unwillingness of people to move into school district 205, and the inability of people to sell their homes.
What our legislation proposes to do is this: It proposes to give Federal courts the guidelines which they presently do not have before they even think about raising taxes in order to implement a remedy. What happens, as it stands today, is that whenever a court comes down with a remedy, the inability of the municipality to pay for it is deemed irrelevant. What our legislation does, it says, look, you can have whatever fair remedy you want, but it must be within the ability of the community to pay for it. So we set up a standard. And, by the way, this judicial taxation or judicial unfunded mandates is not limited just to school districts because judges have ordered tax increases to build public housing and expand jails. So any State or local government is subject to such rulings from the Federal court.
A court-ordered remedy should be tempered by the community's ability to pay for it without raising taxes. And our legislation says this: We know that we cannot stop the courts from raising taxes because of the doctrine of the structural injunction. That came about when municipalities 100 years ago agreed to build railroads, floated municipal bonds, defaulted on those bonds, and then threw up the doctrine of sovereign immunity, whereby they said, ''We don't have to pay for these bonds. The courts said we could structure an injunction, make you pay for it.''
Page 43 PREV PAGE TOP OF DOC We set up six criteria in order for the courts to raise taxes. First of all, the court must find that there is no conceivable way to remedy the problem without raising taxes. That means the court has to have input from the community. It has to reorder priorities, if necessary, in order to pay for that remedy.
Second of all, that the tax would not contribute or exacerbate the deprivation intended to be remedied. What's happened in Rockford is that the tax is actually destroying the school district, and the purpose of the court order is to improve the school district.
The third thing is the proposed tax will not result in loss of revenue for the affected political subdivision. Over a period of time, because of now decreasing property values and increasing taxes, they reach a point where there will be less taxes actually coming in.
Fourth of all, the property tax would not result in loss or depreciation of property values.
Fifth, the tax would not undermine the taxing authorities set up by the political subdivision.
So, Mr. Chairman, we're making a very positive statement that what we're doing here is pursuant to the powers given to us as Members of Congress, as prescribed by the Constitution. It's guidelines to the court; they're very strict guidelines. It says that judicial taxation should be the exception, and those exceptions are severely proscribed by my legislation.
Page 44 PREV PAGE TOP OF DOC [The prepared statement of Mr. Manzullo follows:]
PREPARED STATEMENT OF HON. DONALD A. MANZULLO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Chairman Coble, Congressman Frank, and distinguished colleagues, thank you for inviting me to appear before you today to discuss the very important issue of judicial taxation and its impact on local communities. It is an honor to be here.
Throughout my tenure in the House of Representatives and before I became a Member of Congress, I have watched with great interest cases in which federal judges issue orders that in one way or another have the effect of increasing, levying or assessing state or local taxes. I find it interesting from a constitutional standpoint because the founding fathers were explicit in delineating that it is the legislative branch of government, not the judicial branch, which has the authority to levy and collect taxes. A focal precept of our Constitution is that taxation without representation is tyrannytherefore it is wrong.
It is apparent that when federal courts exceed the proper boundaries of their limited jurisdiction and authority under the Constitution, that they impermissible expropriate a legislative function by imposing orders which have the effect of raising taxes. This has the devastating consequence of leaving communities in total disarray.
School District 205 in Rockford, Illinoiswhich encompasses several surrounding communitiesis a primary example. Here, a federal judge issued an order having the effect of raising property taxes to pay for past desegregation injustices. The complaints I have received from constituents include the fact that taxpayers are funding millions of dollars for a school master, attorneys' fees, and consultants, among other questionable items, yet they see little money going to educate their children. They have also complained that huge spikes in real estate taxes are making homes in Rockford very difficult to sell. Senior citizens have advised me they can barely pay the taxes on their homes. This situation with the Rockford schools is dividing, if not destroying, the city. The price tag has already reached $80 million dollars with another $25 million dollars already committed to be spent. This is a metropolitan area of 250,000 people. They cannot continue to take on this huge cost, while at the same time pay other state and federal taxes and hope to lead quality lives.
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Rockford is not the only community affected by judicial taxation. The federal judge in Kansas City, Missouri, ordered taxes increased and spent over $1 billion, and there has been little improvement in the school system or with regards to desegregation. Lawyers, special masters and consultants have been the beneficiaries of these court orders while, again, the children's education has seen little improvement.
Judicial taxation is not, however, limited to school districts. Federal judges have ordered tax increases to build public housing and expand jails. Any state or local government is subject to such rulings from the federal courts.
Last Congress I worked with several members and staff of both the House and the Senate to write legislation that addresses this specific problem. I am very honored and pleased that this committee saw fit to include legislative provisions in the Judicial Reform Act of 1997 reflective of our efforts last Congress.
I would like to take a moment and explain the legislation. But first, because my congressional district is experiencing the effects of judicial taxation with regard to desegregation, I want to be clear that this legislation is not about desegregation or any other decision where a federal law has been broken. It is about taxpayers paying for federal court remedies involving the raising of taxes without the permission of the taxpayers. A court-ordered remedy should be tempered by the community's ability to pay for it, without raising taxes.
The organic legislation which I initially sponsored last Congress, H.R. 3100, does not ban judicial taxation. However, it does address the fact that the Supreme Court has found that federal courts may order, in limited circumstances, that taxes be levied.
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I understand the position of members and senators who loath judicial taxation and want it banned outright. My research led me to believe that an outright ban on judicial taxation would not work. Let me explain briefly why.
Municipalities and states enter into legal contracts and bond issues. Businesses, and individuals who enter into such contracts or purchase municipal bonds would have no guarantees that obligations would be met if a judge were unable to enforce these obligations. Thus, courts have been constitutionally allowed by the Supreme Court to enter ''structural injunctions,'' i.e., an order structuring how repayment of the obligations is to be made. This type of judicial order would almost certainly be precluded under an outright ban, and thus an outright ban simply would not work.
The provision with regard to judicial taxation in H.R. 1252, takes an alternative approach which would require that six criteria be met before a federal judge can issue an order, or agree to a settlement, that would have the effect of raising taxes. The six criteria the court would be required to prove under the legislation are:
1) there are not other means available to remedy the deprivation in question;
2) such a tax would not contribute to or exacerbate the deprivation intended to be remedied;
3) the proposed tax will not result in a loss of revenue for the affected political subdivision;
4) the proposed tax will not result in a loss or depreciation of property values;
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5) the tax will not undermine the taxing authority set-up by the political subdivision; and,
6) the plans submitted by the political subdivision will not effectively redress the deprivations at issue.
An additional point to make is that because local taxes are ''extended'' or reworked each year, a judge will have to make these findings annually.
Ultimately, if the school board, municipality, or state government feels that taxes have to be raised to address problems, then it should go to the people and ask for an increase. Political subdivision should and must work within their means. There is no such thing as a ''school district tax dollar'' just as there is no such thing as a ''federal tax dollar.'' The money belongs to the people. Judicial taxation is a back door method to take people's hard earned money without representation. However, since judicial taxation cannot be banned outright, our approach sets up the very strict criteria necessary to restrict it.
There are many people who are willing to make a positive contribution to solving these problems. By relieving the state and local governments of the burden of judicial taxation, the people of a state, city, or school district will be able to step forward and be part of a solution that is best for the community.
The people of Rockford and other communities across our country continue to be placed in situations where the federal courts enter remedies to be paid for with a checkbook that has no limits. Every family and governmental body has to live within its own budgetary restraintsthe federal courts must be held to these same standards.
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On behalf of the taxpayers in Rockford, Illinois, I thank you again for holding this hearing and giving me the opportunity to testify before you here today. It is my hope and desire to see this issue resolved this Congress. I respectfully urge the Members of this committee to move on this legislation as soon as quickly as possible.
Thank you, Mr. Chairman.
Mr. COBLE. I thank you, and I thank the first panel. You all pretty well complied with the 5-minute rule, and for that I thank you.
Let me say this before I dismiss the panel: The purpose of these hearings today and tomorrow is not to dismantle the rule of law. It's because we have the rule of law that we're able to examine other levels of government. And I see nothing at all wrong with examining very close to the judiciary. I see nothing wrong with people examining the legislative branch, if it comes to that. So I find no problem at all with these hearings.
And I thank you all for being with us. I think, in the interest of time, we will forgo questions of the panel, unless anybody has a burning desire. Thank you, ladies and gentlemen, for being with us.
Let methese are rather lengthy, but I think I need to read the biographical sketches of our first panel, so at least those in the audience and those on the subcommittee will know. So if the members of the second panel will work your way to the table, I will begin reading.
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The first witness on the first panel will be the Honorable Henry A. Politz, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit. His honors include: Outstanding Law Graduate, as selected by the members of the Louisiana State University class of 1959; Order of the Coif, and member of the Law Review editorial staff. He was also named Outstanding Young Lawyer in Louisiana in 1971, and selected for the LSU Alumni Hall of Distinction in 1992.
Judge Politz is president of the Louisiana Trial Lawyers Association and president of the Shreveport Bar Association. He served 7 years as a member, including 1 year as chairman, of the Committee on Professional Responsibility of the Louisiana Supreme Court. He's a member of the house of delegates, the board of governors of the Louisiana State Bar Association; a member and chairman of the Shreveport Airport Authority; a member of the Federal Judicial Councils, and a member of the Judicial Conference of the United States and its prestigious executive committee. He served on the Louisiana Judiciary Commission before appointment to the bench and is an assistant bar examiner for the Louisiana Supreme Court.
Our second witness on this panel will be the Honorable Anne Williams, who is the district judge of the U.S. District Court for the Northern District of Illinois. Judge Williams was appointed to a lifetime position on the U.S. District Court of Northern Illinois in June 1985, after she was confirmed by the U.S. Senate.
Since her appointment, Judge Williams has been involved in a number of judicial activities. Judge Williams has served on various national and district committees, including the executive committee for the Northern District of Illinois and the Seventh Circuit Judicial Council. Since 1990, she has taught every class of new Federal district judges case management skills at the Federal Judicial Center. She has been a member of the Court Administration and Case Management Committee of the Judicial Conference of the United States for 7 years and was appointed Chair of the committee by Chief Justice Rehnquist in October 1993. She is the first African-American woman to chair a Judicial Conference committee.
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Judge Williams is currently treasurer and will be president-elect in May 1997, this month, of the Federal Judges Association. The Federal Judges Association has a membership of more than 700 article III Federal judges. Judge Williams is also a member of several legal associations, including the National Association of Women Judges, Federal Bar Association, Illinois State Bar Association, Illinois Judicial Council, Cook County Bar Association, Women's Bar Association of Illinois, and the Black Women Lawyers' Association of Greater Chicago.
In 1970, Judge Williams graduated from Wayne State University with a bachelor of arts degree in elementary education. After graduation, she began teaching vocal music and home room classes in the Detroit public school system. In 1972, she was admitted to the University of Notre Dame Law School and was awarded a tuition scholarship. She received her juris doctorate in 1975.
Judge, I regret to say I am not musically talented, but I am a good listener. So people like you need people like me. [Laughter.]
Judge WILLIAMS. That's right. Would you like me to sing my testimony? [Laughter.]
Mr. COBLE. Well, I particularly like bluegrass music. Can you sing blueif you can sing bluegrass, I would like that.
Judge WILLIAMS. I can do that, too. [Laughter.]
Page 51 PREV PAGE TOP OF DOC Mr. COBLE. Our third witness is Stephen B. Burbank, who is a professor for the administration of justice at the University of Pennsylvania. A graduate of Harvard College and the Harvard Law School, Professor Burbank served as law clerk first to Justice Robert Braucher of the Supreme Judicial Court of Massachusetts, and later to Chief Justice Warren Burger. He was general counsel of the University of Pennsylvania from 1975 to 1980. Professor Burbank is the author of numerous articles on Federal court rulemaking, complex litigation, international civil procedure, and Federal judicial discipline.
Professor Burbank has served as reporter for the Third Circuit's Task Force on Rule 11 and as coreporter of that circuit's judicial council to implement rules on the Judicial Conduct and Disability Act of 1980. A member of the National Commission on Judicial Discipline and Removal from 1991 to 1993, he has also served as a consultant to the Federal Courts Study Committee; as a mediator to the U.S. Trade Representative, and as a special master in Federal asbestos litigation. Professor Burbank is a member of the executive committee of the American Judicature Society.
Our final witness is the Honorable Frederick B. Lacey, who is a senior litigator with the law firm of LeBoeufis that the correct pronunciation, Mr. Lacey?
Mr. LACEY. Yes, sir.
Mr. COBLE. LeBoeuf, Lamb, Greene & MacRae in Newark, NJ, since 1986.
From 1971 to 1986, he was a U.S. district judge in New Jersey. He is an honors graduate of the Cornell University Law School, and a Phi Beta Kappa graduate of Rutgers University. Mr. Lacey is the recipient of numerous honors, including the William Brennan Award, the VFW Americanism Award, and the New Jersey Trial Lawyers Award.
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I apologize, folks, for the delay, but I feel obliged to permit the audience and the members to know of your respective, impressive backgrounds, and that's why I read the complete dossier.
Why don't we start, Judge, with Judge Politz?
It's good to have all of you here, by the way. And if you will, I will remind you of the red light, if you can comply with that.
STATEMENT OF HON. HENRY A POLITZ, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT
Judge POLITZ. Thank you, Mr. Chairman.
Mr. COBLE. Keeping in mind that your entire statements will be made part of the record.
Judge POLITZ. With that understanding, we know about the red lights. We have them in our court, except we have a caution light to tell you that you're 2 minutes away from the red light, at which time the trap door opens and you're gone. [Laughter.]
You've said the things that are important for me to say as a predicate for my comments to you and to the members of the committee.
Page 53 PREV PAGE TOP OF DOC The background: I speakJudge Williams and I will speak about two sections principally in the bill. We'll be glad to answer questions about the others. Judge Williams will speak about section 6, and I will speak about section 4.
Our formal statement, as you said, has been introduced. I will not repeat that.
What I would want to share with the members of the subcommittee is the reality of the world that we live in in dealing with matters under the 1980 act, the act that you're seeking to amend, the Judicial Conduct and Disability Act of 1980, 372(c) in title 28. As a Chief Judge of circuit, which I have been now for 5 years and a few months, I have been, as each Chief Judge is, the one who receives the complaints that come in under section 372(c) under the act. The Chief Judge is the one, the lightning rod, who receives, in addition to those formal complaints that come under the act, the many other ''complaints'' about that which judges in the circuit are doing or are not doing.
My primary concernand I have several, but my primary concern about what you purport to do in section 4, of transferring to another circuit the review of complaints of the judges in our circuit and in each circuit, is the impact that that's going to have in two principal ways. One is we have found that the informal approach to resolving problems works. Peer pressure works. The judgesFederal judges are an independent lot. I was a trial lawyer for 20 years before I went on the bench 18 or so years ago. I know what Federal judges are like; I appeared before them constantly. I know what lawyers talked about, and so on. Federal judges are independent. Federal judges need to be independent. Federal judges sometimes can be just a little too independent. Federal judges do not need to be just a little too independent.
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There needs to be some mechanismyou set that up in 1980 when you adopted the act dealing with judicial conduct and disability, because inherent in that is an opportunity for not only the formal receipt of a complaint against a judge, which must be sent to the judge and is there and is looked at, but the power of the Judicial Council of that circuit to take formal actionanything from there's nothing there, dismiss, to a private reprimand, to a public reprimand, to a referral to the Judicial Conference of the United States saying: This is a matter which warrants looking at as to whether or not it should be forwarded to the Congress, to the committee on which you all serve, to look to see if not, indeed, impeachment is in order. That's the full range.
But in all of thatin part of that is that opportunity for there to be some action by members ofby the Chief Judge and by members of the council of that circuit to deal with a colleague who may have gotten out of line, to deal with a colleague who may be abusive of the parties, of the lawyers in court, to deal with a colleague who may be hitting a bottle a little too hard, to deal with a colleague who is doing something which we say ought not be done. You put the peer pressure into a context that it could be more than just simple peer pressure, because the reality is, under the act you passed, if a majority of the members of the council sign an order in their judgment saying that this judge is disabled, for whatever reason, to properly perform his or her duties and send that to the President, that's a vacancy, and the President appoints someone to take that judge's place. And that judge is in senior status, and that judge will then have the duties, but only the duties, that the Chief Judge and the council decide to give to that judge.
How do I best tell youthat shotgun behind the door is a valuable thing. Now what would this bill do? It would take from my council and from the Chief Judge of each circuit and each council that opportunity to do that, because you transfer that out. I wonder what circuit I would get if we did this, and I would review the complaints from another circuit. I could pick a couple where there would just be very few complaints. I wonder who wants the fifth circuit? Probably not very many people; I've already handled 60 since October 1st of last year, in this fiscal year, I worked my 60th one, day before yesterday.
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I've got a light. I'll be glad to answer any questions that the committee may have, Mr. Chairman. Thank you.
Mr. COBLE. Thank you, Judge. Judge, you and Judge Williams submitted joint statements. So let me recognize Judge Williams next.
STATEMENT OF HON. ANNE CLAIRE WILLIAMS, JUDGE, U.S. DISTRICT COURT OF APPEALS FOR THE FIFTH DISTRICT
Judge WILLIAMS. Thank you, Mr. Chairman, and I appreciate the opportunity to appear on behalf of the Conference and before this distinguished committee, some of whose members I had the pleasure of being with at lunch yesterday.
I also want to make sure that my testimony is supplemented with letters from former Chief Judge Malcolm Lucas, as well as Chief Judge Sheedy of Wisconsin. Those letters were given to you by fax. I got them late in the day. And, in addition, our Chief Judge Marvin AspenI want to supplement the record with his letter, and there will be an additional letter from D. Lowell Jensen, a district court judge in the Northern District of California, who used to be the district attorney in Alameda County.
Mr. COBLE. Without objection, that will be done, Your Honor.
Judge WILLIAMS. Thank you. Thank you, sir.
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[The letters follows:]
Hon. HENRY J. HYDE,
|U.S. District Court,|
|Chicago, IL, May 9, 1997.|
House of Representatives,
Re: House Bill 1252
DEAR CONGRESSMAN HYDE: At the request of United States District Court Judge Ann C. Williams, I am writing to relate my unfavorable experience both as a former state court prosecutor and judge with the Illinois ''substitution of judges'' procedures that are included in House Bill 1252.
Illinois prosecutors uniformly dislike this procedure. The experience of state court judges in both civil and criminal cases with the substitution of judges procedure has also been negative. The problem with the Illinois substitution of judges model is that in multiparty cases the litigants can virtual shop for their own judge. The attendant potential for mischief and corruption is apparent.
I enjoyed my recent opportunity to discuss this subject and other provisions of H.R. 1252 with you at your Washington office. In follow up to your invitation, I look forward to meeting again at a time convenient for you and/or your staff to elaborate further on these views.
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cc: Rep. Howard Coble.
|Marvin E. Aspen,|
Rep. Barney Frank.
Rep. John Conyers.
Hon. ANN C., WILLIAMS,
|Chief Justice Malcolm M. Lucas,|
|Beverly Hills, CA, May 11, 1997.|
Chair, Court Administration and Case Management Committee,
Everett McKinley Dirksen Bldg.,
DEAR JUDGE WILLIAMS: I have been informed by my friend and former colleague, Judge Harry Hupp of the Central District of California, that proposed legislation is pending in Congress that would allow lawyers to peremptorily challenge and dismiss the United States District Court Judge to whom a case has been assigned. (Section 6 of H.R. 1252)
First, I should state my interest. I was a District Court Judge for the Central District of California from 1971 to 1984. In 1984 I was appointed to the California Supreme Court, and in 1987, I became Chief Justice of California, retiring from that position last year. I have been keenly interested in good court management during my entire time on the bench, indeed getting a few awards for my accomplishments in that area.
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I believe this proposed legislation would have a serious negative impact on the Federal Judiciary.
California has a peremptory challenge of Judges system. I was a Superior Court Judge in Los Angeles for 4 years and also the Supervising Judge of the Criminal Division of the Superior Court (supervising 70 trial judges doing felony criminal trials). In these positions I had many opportunities to observe, and to hear of, the extensive abuse of a concept that may originally have had an intended concept of fairness to the lawyers or the litigants.
The peremptory challenge in California is perceived by most Judges as a constant disruption of the efficient management of a court and is believed to be used often for frivolous reason, such as a delaying or disrupting tactic. The present Presiding Judge of the Superior Court of Los Angeles County was recently quoted in the legal newspaper for Los Angeles County, ''... The 170.6s are probably the most misused pleading there is because lawyers ... do it for tactical reasons.'' His name is Robert Parkin. (Italic supplied.)
The misuse of the peremptory challenge in the smaller counties of California would often necessitate the assignment of an out of county Judge by the Chief Justice. Systematic utilization of such a challenge by the Prosecuting authorities or Public Defenders can cripple the usefulness of a Judge. California requires no showing of the existence of actual basis for the exercise of these peremptory challenges. Thus, a Judge perceived strictness in procedures, such as promptly commencing trial, perceived viewpoint, or any other perceived trait, known usually only by rumor to the user of the challenge, can nevertheless result in a challenge being used.
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I agree with the Presiding Judge of the Superior Court of Los Angeles, Robert Parkin, in California the majority of the challenges used are for insubstantial reasons. The use of the challenges clearly cause disruption and difficulties for not only the court, but the party who has not used a peremptory challenge. It is often considered an affront by the Judge involved. It is only acclaimed by the lawyers who use the peremptory challenge, often unfairly, to their advantage.
I could say much more, but I know that a hearing on this bill is imminent.
I urge you to please draw back from this proposed judicial management morass in the interest of retaining a trust and effective Federal judicial system.
Very truly yours,
|Malcolm M. Lucas,|
|Retired, Chief Justice.|
Hon. ANN C. WILLIAMS,
|State of Wisconsin,|
|First Judicial District,|
|Milwaukee, WI, May 13, 1997.|
U.S. District Court,
DEAR JUDGE: I apologize to you for not responding sooner. However, I have been called for jury duty. And as I am the sole authority in this district to excuse people, I did not think it would be proper for me to excuse myself. As a result, I have attended all the courts that I have been called to, although the attorneys have struck me.
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You have inquired about our policy of substitutions in Wisconsin. I believe you use a different term and call them peremptory challenges. Substitutions in Wisconsin are permitted in both criminal and in civil cases. In criminal cases, the defense is allowed one writ of substitution. In civil cases, every party is allowed one substitution. In my district, this is not too much of a problem as we have 45 judges. Throughout the state, where you have single jury circuits and have large distances to travel, it becomes a horrendous problem. Our law provides that ten days after actual notice by the attorneys a substitution can be made. When we rotate judges, this creates a problem; because we do not give actual notice until a matter is called for a pretrial, a status conference, etc. At that time, I believe substitutions can be used as an attorney's tool for getting an adjournment; and it slows down the entire judicial process. We have attempted to limit substitutions. And there is currently a bill in the legislature which proposed to change substitutions as they currently exist for no reason to an affidavit of prejudice which the client must sign. We, at one time, had affidavits of prejudice. While they worked better, they still were a problem. I believe that some type of substitution is permissible. However, our type of substitution where every party in civil cases has the right, it becomes a major problem in judicial administration.
I have asked our supreme court to address this issue. And to date, there has been the problem of what they consider a separation of powers issue. And they believe that this is something perhaps that the legislature should act upon rather than the courts. I disagree with this approach. It think it is a judicial problem. It is not a separation of powers issue. I say that we have mandatory rotation of judges, and we never consult the legislature. We also hire and fire court commissioners without consulting the legislature. And I think the matter of substitution, courtroom assignment and the like are all issues that the judiciary can handle.
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If you are of a mind to broaden substitutions, I would heartily recommend against it. It will delay justice, and as I say, becomes a lawyer's tool; because rarely do the litigants understand the system or know the judges. It becomes a tool for forum shopping, which I heartily disapprove of. In our system, I would suggest that if there is a disagreement, and the judge refuses for what is apparently cause, maybe an appeal should lie to the chief judge of that system. I handle, under supreme court rules, some of these. And it has worked rather well.
I hope this answers your questions.
I wanted to send you the decision in which I was sustained by our court of appeals on an unreported decision wherein the court held that after the first writ of substitution I had the right to make an assignment without going through the lottery system. I, as a method of combating substitution, took judges who had higher substitutions and immediately assigned all substitutions from other judges to them. This had a very quieting effect both in our criminal and civil division, although the supreme court was not too pleased with my approach.
If I may be of other help, please don't hesitate to write or call.
Very truly yours,
|Patrick T. Sheedy,|
Judge WILLIAMS. Section 6 would allow, as you know, either side a right to a preemptory challenge, that is to remove the assigned judge without giving or stating any reason or cause. Parties joined after the initial filing would also have the right to challenge an assigned judge, which means the reassignment could be filed well after the case is begun.
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When this bill was introduced, Chairman Hyde noted that this provision would allow litigants on both sides of the case to avoid being subjected to a particular Federal judge appointed for life in any specific case. It might also be used by litigants in a community to avoid forum shopping by the other side in a case or to avoid a judge who was known to engage in improper courtroom behavior or who regularly exceeds judicial authority.
The Conference understands the chairman's concerns regarding the need to examine these issues from time to time and is respectful of this process. And, I wish I could sit here today and say that our system is perfect, that Federal judges never engage in improper behavior or exceed authority; I know that can occur. However, I have not seen any real evidence to suggest it happens on a regular, continuing basis with many judges. I think this problem is isolated and does not permeate the entire judiciary.
This is important to keep in mind because the proposed provision is a classic example of throwing the baby out with the bath water. As everyone knows, the confirmation process is long and rigorous. It's intended to ensure that nominees for this lifetime post are qualified, competent, and, above all, beholden to the oath of office to judge cases fairly and to the Constitution. That process instills in the public confidence that Federal judges will not be influenced by political or other outside considerations when deciding cases. This provision could substantially undermine this system.
Almost two decades ago, when similar legislation like this was introduced, the Judicial Conference was opposed because of concerns of judicial independence and the promotion of unfair judge shopping by the parties. Those concerns remain the same.
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The ability to challenge an assigned judge for cause ensures that that judge is impartial, if a judge has a bias or prejudice, but allowing judges to be removed for no cause would encourage an unacceptable situation and would lead to lawyers shopping for forums within a forum, in order to get a more favorable judge or to get rid of a judge that they deem unsympathetic, whether there's a real or perceived reason for that.
Section 6, in our view, would encourage legal manipulation and maneuvering, which is contrary to the fair and impartial administration of justice. It would also erode public confidence with no real basis in fact, other than a lawyer's tactical calculations, by fostering the belief that judges are not to be trusted. In cases where judges are removed, the public will ask: Is the judge fair? Why was she taken off the case? It must be that she wasn't fair. There's some real problem with the judge.
Since the Conference and the House last considered this issue, concerns regarding efficient case management and the cost of litigation have reinforced the Conference's opinion that allowing lawyers to remove judges for no reason would be detrimental to the courts, to the litigants, and to the American taxpayer, and I would like to just briefly address those concerns.
First, it's important to remember that a fair trial is supposed to be a trial without regard to gender, age, race, political affiliation, or other irrelevant criteria. Section 6 would affect that objectivity of the current system because there would be no accountability. A person could remove a judge based on race, sex, age, political beliefs, and we don't have under this legislation a protection like we do with preemptory challenges in Batson. I know you're all familiar with that provision that prohibits lawyers from striking jurors on that basis, but in this legislation there's no protection for the judges.
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There are also serious ramifications with respect to delays. My committee recently studied, at your request, the delays and costs in the court, and an important statisticand I'll close with thisan important finding of the Rand Institute was that 95 percent of a trial's expense and 50 percent of a trial's delays are controlled by the lawyers. Although these numbers have been debated vigorously by counsel, active and early involvement of judges is essential to reducing these costs and delays.
In our district, if such legislation were imposed, and if lawyers were allowed to excuseto recuse the judge, both the plaintiff and the defendant, we would no longer be able to remain No. 3 in the country in terms of the filing of casesfrom the filing of cases to the disposition of cases. That's because our judges get actively involved within 60 days of filing the lawsuit. If this kind of provision were enacted, we would not be able to get involved until all the challenges were made by counsel.
There are a number of other reasons that are stated in my testimony, like the problems with small courts, which really hasn't been addressed here. More than 75 percent of our courts are in district divisions with three judges or less. Those judges would have to move cases outside the division in order to accommodate this provision. The costs would be skyrocketing.
The chairman mentioned the State experience, and there are only 17 States that have this kind of legislation. No State has enacted it since 1973. Concerns about how those preemptory challenges have been utilized in the States are indicated in my testimony. We don't think it would work under a Federal system with the number of complex, multiple-party litigation we have.
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Finally, we think it would have a detrimental impact on prisoner litigation, on claims by prisoners in the civil rights area, because now what most courts do is assign those cases to a single judge, so that judge knows the history of that inmate or that litigant, and under this system that would not prevail.
In sum, Mr. Chairman, the Conference feels that this legislation would not be beneficial to the system of justice; would, indeed, cause much case delay; would have spiraling costs, and is really unnecessary under this system. Thank you, Mr. Chairman.
[The prepared statement of Judge Politz and Judge Williams follows:]
PREPARED STATEMENT OF HON. HENRY A. POLITZ, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT, AND HON. ANN CLAIRE WILLIAMS, JUDGE, U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
Mr. Chairman and members of the Subcommittee, I am Henry A. Politz, Chief Judge of the United States Court of Appeals for the Fifth Circuit. I am accompanied by Judge Ann Claire Williams, Judge of the United States District Court for the Northern District of Illinois. H.R. 1252, the Judicial Reform Act of 1997, falls within the jurisdiction of several committees of the Judicial Conference. While the written statement addresses all of the provisions of H.R. 1252, with your permission Mr. Chairman, Judge Williams and I will confine our oral presentations to Sections 6 and 4 of H.R. 1252, respectively.
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Section 4 of H.R. 1252 proposes amendments to the Judicial Conduct and Disability Act which falls within the jurisdiction of the Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders. The Chair of that committee, Judge William J. Bauer, was unable to attend this hearing, and, as a former member of the committee, I am here in his place.
Judge Williams is the Chair of the Judicial Conference Committee on Court Administration and Case Management, which considers issues such as the amendments proposed in Section 6, Reassignment of Case as of Right.
After our oral presentations we will be pleased to attempt to answer any questions you or your colleagues may have on these or the other sections of the bill.
Section 2.Three-Judge Court for Certain Injunctions
Section 2 would require the convening of a district court of three judges to consider applications for interlocutory or permanent injunctions restraining, on the ground of unconstitutionality, the enforcement, operation, or execution of state laws adopted by referendum.
In September 1995, the Judicial Conference considered an identical proposal and reaffirmed its long-standing opposition to three-judge courts generally and the use of such panels for applications for interlocutory or permanent injunctions challenging state laws adopted by referendum. While the Judicial Conference recognizes that this provision is not expected to result in a significant increase in the workload of the federal courts, the Conference considers the concept of three-judge courts to be inconsistent with sound judicial administration.
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In addition, the requirement that the three-judge courts expedite consideration of applications for injunctions is unnecessary. Such priority already exists under 28 U.S.C. 1657, which requires all courts to expedite any actions for temporary or preliminary injunctions, among other specified cases.
Furthermore, Section 2's requirement of direct review by the Supreme Court of such cases Disrupts carefully crafted and well-settled procedures for the consideration of appeals from the district court. Such review bypasses the screening of cases that occurs at the court of appeals level and circumvents the development of legal interpretations through the various circuits.
As noted above, injunctions appealed to a court of appeals already are required to be expedited pursuant to 28 U.S.C. 1657. In addition, under 28 U.S.C. 2101(e), the Supreme Court currently has the authority to grant an application for a writ of certiorari prior to the entry of judgment by the court of appeals when it deems direct review appropriate. Bypassing intermediate appellate review prior to consideration of constitutional issues by the Supreme Court is an extraordinary measure that should be left to the discretion of the Supreme Court in the exercise of its constitutional responsibilities.
The judiciary recognizes that Section 2 is tailored to a specific type of case that occurs infrequently, and that these challenges involve heightened public interest at the state level. Nonetheless, as a matter of policy, the Judicial Conference has concluded that three-judge courts are not an efficient use of judicial resources and the current rules are appropriately responsive to the specific cases which are the subject of this section of the bill.
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Section 3.Interlocutory Appeal of a District Court's Class Action Certification
Section 3 would amend 1292(b) of title 28, United States Code, to authorize a court of appeals to permit, in its discretion, an appeal by either party from a district court's class action certification decision. The appeal would not stay proceedings in the district court unless the district judge or the court of appeals so ordered.
Background of the Committee Work on Class Actions. The Judicial Conference Advisory Committee on Civil Rules is nearing the completion of a five-year comprehensive study of class actions under Rule 23 of the Federal Rules of Civil Procedure. At its May 12, 1997, meeting, the advisory committee approved for submission to the Standing Rules Committee proposed amendments to Rule 23 that would, among other things, provide an opportunity for an interlocutory appeal of a class action certification. The proposal is similar to what is proposed in H.R. 1252 although the bill would amend title 28 of the United States Code. If approved by the Standing Rules Committee at its June 1920, 1997, meeting, the proposed amendments to Rule 23 will be forwarded to the Judicial Conference for consideration at its September 2324, 1997, session. If approved by the Conference, the proposal would be sent to the Supreme Court, according to the provisions of the Rules Enabling Act.
The advisory committee began its study of class actions with a review of changes proposed to Rule 23 in 1986 by the American Bar Association that would have substantially amended the rule. The committee requested the Federal Judicial Center to study all class actions terminated in a two-year period in four metropolitan districts for the purpose of obtaining more empirical data. The committee regularly invited experienced class action practitioners to meet with the advisory committee. The committee organized and participated in conferences at the University of Pennsylvania Law School, Southern Methodist University Law School, and the New York University Law School to thoroughly expose its members to points of view of all interested parties. One general conclusion was that the procedural rules governing review of a class action certification decision by an appellate court were too restrictive.
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In August 1996, the committee published for comment proposed amendments to Civil Rule 23 that, among other things, would permit interlocutory appeal of the certification decision. The public hearings conducted by the committee at Philadelphia, Dallas, and San Francisco were well attended and generated nearly 800 pages of testimony. Written comments constituting hundreds of additional pages were submitted. The strong majority of the comments on the interlocutory appeal provision were favorable. At its May 1997, meeting, the advisory committee decided to forward the interlocutory appeal proposal to the Standing Rules Committee for approval, along with another proposed change to Rule 23. If approved by the Standing Rules Committee, and later, the Judicial Conference and the Supreme Court, the proposed amendments to Rule 23 would be sent to Congress on May 1, 1998, for its review.
The Rules Enabling Act. This section of the bill affects subject matter that is covered by the Federal Rules of Practice and Procedure. The enactment of H.R. 1252 would frustrate the rulemaking process established by Congress under the Rules Enabling Act, 28 U.S.C. 207177. Under the Act, proposed amendments to the federal rules are prescribed by the Supreme Court and presented to Congress only after being subjected to extensive scrutiny by the public, bar, and bench. The rulemaking process is laborious and time-consuming, but the painstaking process ensures a high level of draftsmanship that frequently reduces the potential for future satellite litigation over unforeseen consequences or unclear provisions. It also ensures that all persons who may be affected by a rule change have had an opportunity to express their views on it, including the public. Direct amendment of the federal rules or a statute on the same subject circumvents this careful process established by Congress.
In 1992, Congress underscored its faith in the rulemaking process by enacting a new subsection (e) to section 1292, title 28, United States Code, that authorized the Supreme Court to provide in accordance with the Rules Enabling Act rulemaking process for appeal of an interlocutory decision to the courts of appeals. Under that new statutory provision, the rules committees undertook the amendment of Rule 23 to allow immediate appeal of a class action certification decision. The amendment of Rule 23 is now in the final stages of the rulemaking process.
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Amendment of Rule 23 Preferred to a Statutory Change. The provision for interlocutory appeal of a class action certification is better located in Rule 23 than in an amendment of section 1292 of title 28, United States Code, for several reasons. First, as a matter of general policy, all matters dealing with litigation procedures should be contained in one sourcethe federal rules of practice and procedure to prevent any trap for unwary counsel unaware of a statutory change. Second, amendments to Rule 5 of the Federal Rules of Appellate Procedure, which governs appellate court consideration of interlocutory appeals, are being considered to handle discretionary appeals, including appeals of a class action certification. The amendments to Civil Rule 23 and Appellate Rule 5 have been synchronized to take effect on the same date. Authorizing discretionary interlocutory appeal of a class action certification before the amendment of Appellate Rule 5 would cause confusion. Third, as part of a growing national trend, class actions are being filed in state courts at a faster rate than in federal courts. Many state courts pattern their rules of procedure on the federal rules. Consequently, amendment of Rule 23 would likely have a greater positive impact on state court practices than would a federal statutory change. State courts would more likely change their interlocutory appeal procedures on class action certifications if the change was first prescribed in the federal rules. Finally, the rulemaking process has worked well. Rules prescribed under this process have been well accepted as neutral rules by the public and bar. Although amendment of the rules is a congressional prerogative, every legislative change of the rules weakens the integrity and effectiveness of the rulemaking process.
In sum, we urge you to allow the rulemaking process to proceed as envisioned under the Rules Enabling Act and defer consideration of Section 3 until the Standing Rules Committee, the Judicial Conference, and the Supreme Court have acted on the proposed amendments to Rule 23.
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Section 4.Proceedings on Complaints Against Judicial Conduct
Section 4, would amend the Judicial Conduct and Disability Act to provide that any complaint of judicial misconduct or disability filed under that Act shall be referred to another circuit for complaint proceedings. This procedure would fundamentally revise the current system, under which any such complaint is ordinarily handled, in the first instance, by the circuit in which the complained-against judge serves. Section 4 would confer upon the Judicial Conference of the United States the responsibility to prescribe the circuits to which complaints will be referred, and would call upon the Conference to establish and submit to Congress its system for such referrals not later than 180 days after the date of enactment.
In the view of the federal judiciary, the proposal in Section 4 is seriously deficient The Conference has looked carefully at this legislation and has recently adopted the following resolution:
The Judicial Conference of the United States expresses its strong opposition to any revision of the complaint procedure established by the Judicial Conduct and Disability Act, 28 U.S.C. 372(c), to provide that proceedings on complaints filed under that section shall be conducted by a circuit other than the circuit in which the named judge serves. Such a change would seriously threaten one of the central achievements of the Act: the enhancement of the ability of chief judges and circuit councils to resolve genuine problems of misconduct or disability within their own circuits through corrective actions or informal resolutions. See Report of the National Commission on Judicial Discipline and Removal, at 104, 113, 123, 124 (August 1993). It would also dramatically increase the costs and burdens of the complaint process for the federal judiciary, if every complaint must be considered by judges who are hundreds or thousands of miles away from the complaint's principals. No substantial purpose would be served by such a change, because the current practice of handling complaints within the circuit does not create any perceptible problem of Conflict of interest.
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The purpose of the federal system of judicial discipline is to improve the accountability of judges with life tenure without compromising their decision making independence. Apart from the rare situation where a judge may have committed potentially impeachable offenses, the goal of the judicial discipline system is not merely to punish judges, but to improve their performance and dissuade the recurrence of any misconduct. Experience with the system has shown that the most effective way to do that is by informal pressure and persuasion brought to bear by other judges, not by any formal complaint process. Thus, chief judges have stated that ''the most serious complaints never hit the complaint process,'' and that ''there are more remedial actions taking place outside the complaint process than following formal complaints.'' Barr & Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 25, 131 (1993).
The National Commission on Judicial Discipline and Removal, a Commission created by Congress to investigate and study issues involved in the tenure, discipline and removal of federal judges (Public Law No. 101650, Dec. 1, 1990 (104 Stat. 5122), 410(1)), exhaustively examined the current arrangements for the discipline of federal judges. In its Report, published in 1993, the Commission lauded the existing judicial discipline system precisely because of its effectiveness in promoting informal and behind-the-scenes solutions to genuine problems of judicial misconduct or disability. The Commission stated as follows:
Although the 1980 Act [28 U.S.C. 372(c)] established a formal mechanism for filing complaints, perhaps its major benefit has been the facilitation of informal adjustments of problems of judicial misconduct or disability. In some situations, that has occurred without the filing of a complaint; in others it has followed a chief judge's inquiry in response to a complaint. A chief judge's power under the 1980 Act to conclude a proceeding ''if he finds that appropriate corrective action has been taken'' is a boon to negotiated resolutions.
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The 1980 Act ... has yielded substantial benefits both in those few instances where it was necessary for the judicial councils to take action and, more importantly, in the many instances where the existence of its formal process enabled chief judges to resolve complaints through corrective action and, indeed, to resolve problems before a complaint was filed.
Report of the National Commission on Judicial Discipline and Removal, at 104, 123 (August 1993).
These informal and corrective processesthe very core of any system for the discipline of life-tenured judgescannot function effectively from remote locations. For this reason, Section 4far from toughening discipline and making federal judges more accountable, as is its apparent intentin fact would soften and undermine existing disciplinary processes.
Under the current system, a complaint with some substance goes for determination to judges who are in a position to act knowledgeably and tactfully to seek genuine solutions: a chief judge and/or judicial council within the circuit. The result is often effective action to resolve the problem. A more distant and impersonal authority, ignorant of the personalities involved in the matter and acting at arm's length, would be far less able to bring about such a result. Instead, the complaint process would likely become more formal, less efficient, and less productive.
Just as important, the potential exercise by judges in the same circuit of the formal complaint power provided for under current law strongly facilitates the informal resolution of genuine problems of judicial misconduct or disability without the filing of a formal complaint. The very existence of this power strengthens the judges' hand in working out solutions, since all know that the Act looms in the background as a less favored, but perhaps unavoidable, alternative. If, instead, all knew that the local judges had no ultimate power to act, this informal process so crucial to the effectiveness of the judicial discipline system would be severely weakened.
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Accordingly, the National Commission on Judicial Discipline and Removal concluded:
One of the most important findings of this Commission concerns the continuing importance of informal approaches to judicial misconduct and disability even after the 1980 Act.... Informal approaches remain central to the system of self-regulation within the judiciary.... [A] major benefit of the Act's formal process has been to enhance the attractiveness of informal resolutions. The continuing success of informal approaches is due in large part to the system of decentralized self-regulation that long antedated but was fortified by the Act.
[P]erhaps the greatest benefit of the 1980 Act has been the support it has provided, and the impetus it has given, to informal approaches to problems of federal judicial misconduct and disability. No evaluation of the 1980 Act should neglect its influence in this regard....
National Commission Report, supra, at 113, 124.
The proposed change also would undercut the ability of judges who have taken action to resolve a problem to monitor and follow up on that resolution, in order to ensure that the problem has truly been remedied. Only judges in the same circuit are in a position to do this. Under the proposed new system, conceivably judges in the same circuit as the judge against whom a complaint has been filed could be informed about the matter by the transferee circuit, in order to enable them to monitor results. This procedure, however, would require that two sets of judges in two different circuits become involved in the matter, a wasteful use of judicial resources.
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Thus, the notion that it is somehow desirable for complaints to be determined by far-off authorities, who know less about the judge accused or about local circumstances, overlooks the 45 very point of the current judicial discipline process.
Based on my experience as Chief Judge in handling complaints arising under the existing system, I can tell you that this proposal will mean a host of practical difficulties and concomitant increased costs.
Every complaint will have to be disposed of by judges who are hundreds, perhaps thousands, of miles away from the principals involved in the complaint. Under the current system, a complaint about a judge who serves in the D.C. Circuit here in Washington is handled by a chief judge and circuit council who all work in the same city as the accused judge. In my circuit, the Fifth Circuit, I and my colleagues will handle complaints only against judges who serve in Louisiana, Mississippi, and Texas. The information needed to examine a complaint court documents and people with knowledge relevant to the allegations of the complaint usually will be close at hand.
Under section 4, all of these advantages will be lost as each complaint is transmitted to some other part of the country for cumbersome, long-distance handling. The chief judge of the transferee circuit will routinely need to obtain court documents from the originating circuit, a considerable burden on court personnel. Often the chief judge will be forced to request that the accused judge submit a formal response to the complaint, in a situation where no such response would have been necessary had the matter been handled in the accused judge's own circuit, because the problems of distance will make it too difficult for the chief judge to investigate the allegations of the complaint without a formal response. When a complaint raises allegations that are geographically close at hand, it is much easier for the chief judge to look into the matter, and determine that a complaint is actually groundless, without imposing on the time of the accused judge. The proposed system, therefore, will further consume scarce judicial resources.
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For substantial complaints that must be seriously investigated, costs of travel and lodging and other burdens imposed by distance could be serious indeed. In these matters, it will generally be necessary for the chief judge, a special investigating committee, the circuit council, court staff, and/or a special investigator to hold hearings, probe the facts, interview witnesses, and obtain documents across substantial distances. This will likely inflate the costs of a single special committee investigation by tens of thousands of dollars. Each year, at least several complaints receive a special committee investigation, and many more receive some investigation short of the appointment of a special committee. Although a detailed cost analysis of the effect of Section 4 has not been prepared, there is no doubt that this problem of distance alone will increase the cost to the federal courts of administering judicial discipline by hundreds of thousands of dollars each year.
I understand that the intended purpose of Section 4 is to ensure that complaints of misconduct and disability filed against federal judges are handled fairly and without favoritism. It goes without saying that we in the judicial branch are in full accord with this goal. However, we strongly believe that this goal is currently being achieved under the current law. There is little cause for concern about a ''conflict of interest'' problem of one judge handling a complaint against another judge. Judges are accustomed to disagreeing with one another. Most of the responsibility for administering judicial discipline falls upon the chief judge of the court of appeals, and to a lesser extent upon other court of appeals judges. Circuit judges routinely have occasion to evaluate, supervise, overrule, and, less frequently, criticize judges in the lower courts, against whom the overwhelming majority of complaints are filed. In the period 198091, 91% of the complaints filed under 372(c) against individual judges named a district, magistrate, or bankruptcy judge, rather than a court of appeals judge. Barr & Willging, supra, 142 U. Pa. L. Rev. at 4748.
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It should be borne in mind that the current statute ''should not be read to mandate the utilization of adversary procedures by the judicial councils or the Judicial Conference ...,'' and instead ''creates much more of an 'inquisitorial-administrative' model than an 'accusatorial adversary' one.'' H.R. Rep. No. 961313 (90th Cong., 2nd Sess. 1980), at 14. Accordingly, the familiar concept in traditional adversary adjudication that a judge must carefully remain at arm's length from all parties to the litigation does not, and should not, apply with full force to judges handling complaint proceedings under 372(c). Thus, for example, the fact that a chief judge has discussed the allegations of a complaint with the judge complained against, with an eye to an informal or corrective resolution, does not, and should not, disqualify the chief judge from acting on the complaint. To the contrary, the system encourages such contacts. To be sure, in unusual situations where a judge believes that he or she cannot participate impartially in the disposition of a complaint, judges can, and have, disqualified themselves.
In addition, when serious complaints of judicial misconduct or disability are filed under the current system (i.e., complaints that the chief judge has ordered to be investigated pursuant to section 372(c)(4)), the determinations of chief judges and judicial councils within the circuits are subject to review by the Judicial Conference of the United States, the governing body of the nation's federal judges. 28 U.S.C. 372(c)(10). In these matters the Judicial Conference acts through a standing committee, the Committee to Review Circuit Council Conduct and Disability Orders, on which I served for three years. This committee, which currently has a membership of five judges, includes judges from around the country, with no circuit represented by more than one judge.
Page 78 PREV PAGE TOP OF DOC In sum, Section 4 would transform the entire framework of the judicial discipline process, a process that the National Commission found has been ''working reasonably well.'' National Commission Report, supra, at 123. In doing so it would undercut many of the most important virtues of the present system, and would impose significant cost burdens on the federal judiciary, all in an attempt to address a perceived conflict of interest ''problem,'' which we believe does not exist.
Section 5.Limitation on Court-Imposed Taxes
Section 5 may intrude on an Article III court's ability to fashion an effective remedy for a citizen whose rights have been violated. This section limits court-imposed taxes by barring a district court from ordering or approving any settlement that requires a state or political subdivision of a state to impose, increase, levy, or assess any tax for the purpose of enforcing federal or state common law, statutory, or constitutional right or law unless the court makes certain findings. To issue such an order, the court must find by clear and convincing evidence that:
there are no other means available to remedy the deprivation of rights or laws and the proposed imposition, increase, levying or assessment is narrowly tailored to remedy the specific deprivation at issue;
the tax will not contribute to or exacerbate the deprivation intended to be remedied;
the proposed tax will not result in a loss of revenue for the political subdivision in which it is assessed, levied, or collected;
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the proposed tax will not result in the loss or depreciation of property values of the taxpayers who are affected;
the proposed tax will not conflict with the applicable laws with respect to the maximum rate of taxation as determined by the appropriate state or political subdivision; and
plans submitted to the court by state and local authorities will not effectively redress the deprivations at issue.
The above findings are subject to immediate interlocutory de novo review.
Section 5 raises four important issues which merit further consideration. First, as currently drafted, the scope of Section 5 is ambiguous, particularly the use of the word ''requires.'' It is unclear whether the bill would only limit the ability of courts to expressly direct a governmental body to raise taxes, or if the intention is much broader, reaching those instances where a state or municipality decides to raise taxes to comply with a remedial order or court judgment, i.e. where a court order results in an increase in taxes.(see footnote 1)
An example may help illustrate the problems associated with a broad reading of Section 5. A judge issues a remedial order that is silent on how the ordered relief should be funded. Therefore, the judge would not undertake the analysis required by Section 5 to comply with the six criteria outlined in the bill. However, if the defendant municipality determines that in order to comply with the court's order it must increase taxes, the subsequent action by the municipality may call into question the validity of the court's initial order.
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As another example, Section 5 could possibly implicate cases where a court directs a municipality or state to comply with a congressional enactment, such as the Americans With Disabilities Act or the Clean Air Act, and such compliance necessitates. an increase in taxes. If the bill reaches those cases where a judge's decision only indirectly results in the imposition of taxes, it could place a judge in the impossible position of guessing, when issuing the order, whether it might result in a tax increase.
Second, even if Section 5 is intended only to limit the ability of courts to expressly direct a governmental body to raise taxes, some of the required findings in Section 5 may impermissible infringe on the remedial powers of federal courts by establishing unrealistic standards that a court may never be able to meet or determine fully. For example, one of the six findings requires a court to find that the proposed tax will not result in a loss of revenue for the political subdivision. It is difficult to imagine a situation where it could not be argued that some loss of revenue will result from a tax increase. On the other hand, some of the findings appear to be consistent with Supreme Court precedents. For example, it is reasonable to expect a court to find, before ordering a governmental body to raise taxes, that there are no other means available to remedy the deprivation of rights and to determine that plans submitted by state and local authorities will not effectively redress the deprivation.
Third, the intervention provision raises serious judicial administration concerns because it may significantly interfere with a court's ability to control the conduct of the action. This provision authorizes any aggrieved corporation, unincorporated association, other person residing or present in the political subdivision, or other entity located within that subdivision, ''to intervene in any proceeding concerning the imposition of the tax.'' It may not only permit hundreds of individuals with a tenuous connection to the underlying litigation to utilize limited court time and resources, but could also permit an intervener to object to a settlement agreed to by the parties, thus undermining the court's ability to reach a final resolution of the case.
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The intervention provision raises legal concerns, as well. Individuals would be given the right to present evidence and appear before the court, to present oral or written testimony, and to ''appeal any finding required to be made by this section, or any other related action taken to impose, increase, levy or assess the tax that is the subject of the intervention.'' This provision could allow appeal by an intervener who is not affected by the tax even though none of the parties is appealing. Not all of the potential interveners, however, may be able to meet the standard established by the Supreme Court in Diamond v. Charles, 476 U.S. 54 at 62 (1986): the right to appeal requires the appellant to have incurred some ''actual or threatened injury.''
Finally, the automatic termination provision could create an unreasonable burden for the parties and the court. Section 5 provides that any order of a district court requiring the imposition, increase, levy or assessment of a tax imposed pursuant to the findings set forth above, shall automatically terminate or expire one year after the date of imposition of the tax, or earlier, if the deprivation of rights has been cured ''to the extent practicable.'' This provision is also problematic because it would require the parties to appear repeatedly before the court to provide information on the court's order, even though there may be no change in circumstances necessitating the court's review. Experience has shown that litigation involving some remedial orders can extend over several years, and this automatic termination provision may exacerbate the need for judicial involvement. This provision may interfere with an Article III court's ability to resolve cases and controversies by rendering dispositive judgments, subject to review by other Article III courts.
The Judicial Conference fully understands the legitimate concerns of Members of Congress who wish to preserve for the legislative branch the power to raise taxes. If Section 5 is intended to address only those limited instances where a court expressly directs a governmental body to raise taxes, we would be pleased to provide whatever assistance this Subcommittee may deem appropriate to address some of the legal and practical concerns that have been identified above.
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However, if Section 5 reaches not only those instances where a court directs a state to raise taxes, but also instances where a court's remedial order indirectly results in the raising of taxes by a governmental entity, Section 5 may undermine the very foundation of judicial power. Section 5 may interfere with the ability of federal courts to fulfill their obligation to enforce remedies required by statute and to fashion appropriate remedies for constitutional violations. Because the ambiguity of Section 5 may affect a court's remedial powers, and because of the practical and legal concerns raised by the intervention and automatic termination provisions, the Judicial Conference opposes Section 5.
Section 6.Reassignment of Case as of Right
Section 6 would allow parties on either side of a civil case to remove the assigned judgewithout stating any reason or causeand have the case transferred to ''another appropriate judicial officer.'' Parties that are joined after the initial filing of the case would also have the right to peremptorily challenge the assigned judge when they are added, if the other parties on their side agree to the motion. This means that a mandatory motion for reassignment could be filed well after the case has begun.
Almost two decades ago, then Representative Drinan introduced a similar bill that would have allowed parties to peremptorily challenge the judge assigned to their case. The Judicial Conference opposed that bill, because of concerns about judicial independence and the promotion of unfair ''judge shopping'' by the parties. Challenges to an assigned judge for cause are intended to ensure that a judge is impartial. If a judge is biased or prejudiced, the outcome of a case may be affected by a factor other than the facts of the case and the applicable law, which is a wholly unacceptable result. Allowing judges to be removed for no cause, however, would encourage a similar unacceptable situation. In an effort to affect the outcome of a case, lawyers could engage in what might be called ''forum shopping within a forum,'' to avoid judges whom they perceive to be unsympathetic to their side of the case. Conversely, because Section 6 would allow third parties to also challenge the assigned judge, it could lead to a concerted effort to secure a ''favorable'' judge. The practice proposed in Section 6 would foster legal manipulation and maneuvering, which is contrary to the fair and impartial administration of justice. It would also have a negative impact on public confidence in the judicial system as a whole, by exacerbating the belief that judges are not to be trusted and that the system is irrational.
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Furthermore, by allowing parties to have the case reassigned, with no required basis for the reassignment, this provision would exclude judges that lawyers believe are opposed to their position from ever addressing certain legal issues. The result would be a blanket exclusion of judges in our federal courts. For example, if a plaintiff in a toxic tort case considered Judge Smith to be ''pro big business,'' then Judge Smith would be excluded from hearing that case. And Judge Jones, with no known views on a particular legal issue, would be overwhelmed with cases from which the parties have disqualified other judges. This problem could be further exacerbated by lawyers and entire law firms who once having challenged a particular judge would file a challenge in all subsequent cases before that judge. And, the opinion of one lawyerright or wrongregarding a judge's views in certain matters could lead to the ''Blanket'' of that judge by all lawyers handling that type of case. The constitutional due process guarantee requires an impartial and competent judge, not a specific judge that a party wants or does not want.
Over the past fifteen years, concerns regarding efficient case management and litigation cost and delay have reinforced the Conference's belief that providing parties with the right to remove a judge for no justifiable reason would be detrimental to the courts, litigants, and the American taxpayer. Therefore, the Conference opposes Section 6 as well.
Today I would like to point out some of the ramifications that this proposal could have on federal litigation. However, before I do so, it is important to recognize the merits of our current system of random case assignment. Random case assignment is essential for a fair trial and the litigants' right to due process because it ensures that the judge will be selected impartially, without regard to gender, age, race, political affiliation or other irrelevant criteria. Equally important is the public's expectation that judges are impartial in making their decisions. Section 6 of the proposed bill would significantly impair the objectivity of the current system.
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Several statutory provisions already exist for disqualifying a judge for bias, prejudice, or a conflict of interest. These include: 28 U.S.C. 144, which allows for the disqualification of a judge because of bias or prejudice; 28 U.S.C. 372(c), which establishes a complaint procedure for parties alleging judicial misconduct; and 28 U.S.C. 455, which requires a judge to disqualify him or herself in cases where impartiality might reasonably be questioned or where certain prohibited practices or relationships exist. Rather than removing judges for cause, as do these provisions, Section 6 would allow lawyers to remove judges for no stated reason and indulge in any form of irrational prejudice in striking a judge.
In addition, if this legislation is enacted, it will have serious ramifications that go beyond how a judge is selected in federal litigation. First, Section 6 would create significant costs and delays in cases, thereby thwarting the recent efforts of Congress to make the federal civil litigation process more efficient. Reacting to a nationwide concern that civil cases cost too much and take too long, Congress enacted the Civil Justice Reform Act of 1990 that ordered study of these problems and proposed principles, guidelines, and techniques for reducing cost and delay.
One of the Act's requirements was that a five-year independent evaluation be conducted regarding cost and delay in the federal courts. This study and accompanying report was recently completed by the RAND Corporation's Institute for Civil Justice. One of the report's findings was that 95 percent of a trial's expense and 50 percent of a trial's associated delay are under the control of the lawyers involved. The study also found that the early setting of a firm trial date and the early and active involvement of judges are essential to reducing cost and delay.
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By establishing the right to replace a judge at least two times in the early stages of a case, this bill would increase attorney control of litigation and decrease the potential for effective judicial involvement. Or a defendant, hoping to obtain a more favorable judge after the issuance of an ex-parte temporary restraining order, could obtain reassignment as a matter of right. This would serve to postpone a hearing on the preliminary injunction until a new judge could schedule the case. Faced with these tactical maneuvers, it would be counterproductive for a judge to devote significant time and energy to a case until after the time for disqualifying motions from both sides had passed.
The Northern District of Illinois has one of the fastest disposition rates in the country. We accomplish this because judges get actively involved early on in case management. But under this legislation judges would wait until the statutory time limits have expired so as to avoid working on a case from which there is some probability that they will be removed. This means more expense and delay. And because Section 6 would allow a third party to remove a judge when it is brought into a case, reassignment could occur well into the proceedings. This would mean the dismissal of a judge who had already invested significant time in a case and had become fully familiar with it. Imagine the costs and delays this peremptory challenge could add to a lengthy case that was already well underway as well as the entire court's docket. Litigants and their attorneys could be expected to use this rule for maximum procedural advantage, especially when the stakes are high. Furthermore, attorneys could also be expected to use this rule out of a fear of malpractice suits based on ineffective assistance of counsel if they did not. At the very least, lawyers would be expected to perform additional research regarding the opinions of the Judge. This would increase the cost of litigation.
Page 86 PREV PAGE TOP OF DOC There are other aspects of Section 6 that would result in additional litigation, thereby adding much more delay and expense to many cases. For example, section (a)(2) would require the chief judge of the circuit, in which the case is to be tried, to determine any questions that arise regarding on which ''side'' parties belong. In large federal civil cases this can be a very complicated matter. In complex environmental, antitrust, and patent cases, there may be several additional parties, such as citizen groups, government entities, and industry associations, that have distinct interests and may agree on some, but not all, issues. Requiring the chief judge of the court of appeals to make these determinations could require supplemental briefs, a hearing, and a reasoned decision, during which time the underlying case would be held in abeyance and further delayed. Also, requiring a chief judge of a circuit to make findings of fact, rather than relying on the underlying record of a district court, is unprecedented in the judicial systemand may raise additional and unforeseen problems in the course of the litigation.
In addition to individual claims, this proposal could restrict the ability of district courts to manage related lawsuits, such as mass torts, that are often assigned to one judge for efficient case management. A peremptory challenge could also prevent the consolidation of related cases some encompassing thousands of plaintiffsunder the Multidistrict Litigation Panel. Any party wishing to disrupt the efficiency of this process could simply peremptorily object, thereby requiring many more trials and delaying settlements. In short, this legislation would lengthen litigation, complicate litigation, create additional litigation; and add significantly to the cost of litigation.
Section 6 also has the potential to dramatically complicate and protract prisoner and pro se litigation. As you are well aware Mr. Chairman, a major goal of last year's Prison Litigation Reform Act was to curtail the ability of prisoners to file frivolous pro se cases. But, as with the Civil Justice Reform Act, this proposal has the potential to frustrate the efforts of Congress in this 'area, and actually increase prisoner litigation.
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Post-conviction petitions, such as petitions for habeas corpus under 28 U.S.C. 2254 and 2255, and civil rights claims under 42 U.S.C. 1983 are civil matters. Under Section 6, any prisoner filing a lawsuit, including a capital habeas corpus petition, would have the right to peremptorily disqualify the assigned judge. Many district courts currently assign a prisoner's subsequent pro se petitions to the same judge. This procedure, which Section 6 might well effectively curtail, enables the judge to gain a familiarity with the history of the prisoner's claims and to know what issues have already been ruled upon. The typical pro se plaintiff, on his or her way to becoming a frequent filer, would use the peremptory challenge to avoid judges who are trying to successfully cope with floods of frivolous petitions and judges who have already denied similar petitions. The result would be more prisoner litigation with less court control over it.
The geographical size of federal districts would also make this provision extremely time consuming and expensive. Unlike most state court districts or circuits, federal districts are very large in size, often encompassing an entire state. Most federal districts also have a very small number of judicial officers at any given location. In fact, out of 321 district court locations, 235, or nearly 75 percent, have between one and three district judges. This is especially true in states without many major metropolitan areas. For example, in North Carolina, there are eleven active district judges in eight locations. Of the eight, only three sites have more than a single judge, one with three, and two with two. Thus, there is only one location in North Carolina where federal court is held, where if both sides exercised their peremptory challenge, the case would not have to be moved. Its easy to see how this provision could result in the disqualification of the entire local bench and require trials including parties, witnesses, and attorneys to be moved long distances or even to other districts.
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Finally, as currently drafted, Section 6 presents numerous problems of interpretation. The definition of terms such as ''side'' in subsection (a)(12), ''substantial issue'' in subsection (b)(2)(C), and ''notice of the original assignment of the case'' in subsection (b)(1) are all undefined. The provision regarding magistrate judges in subsection (d)(1) would also present substantial difficulties in interpretation because it is unclear whether it is intended to cover only civil consent cases or all other referrals under the Federal Magistrates Act.
Finally, we should note the experiences of the states that have enacted similar proposals for their courts. Almost all of these statutes date back many years and were instituted before the litigation explosion required more efficient case management by the courts. And, the procedure has been far from an unqualified success.
There are only ten states that provide for the absolute peremptory challenge as envisioned in this proposal. One of these states is Wisconsin, where some judges and members of the bar have long advocated abandoning its statute. This is because it is expensive, time consuming, and frequently abused by attorneys who are unprepared and expect that the substitution process will accomplish another delay. One former Wisconsin State Supreme Court Justice labeled the practice ''a dilatory tactic which causes a great deal of expense and inconvenience to litigants, to witnesses and to the taxpayers who foot the bill for court administration.'' Nonetheless, litigation attorneys fight to retain the provision because it provides them with control over the litigation process.
There are another seven states that allow for a modified peremptory challenge, which requires an affidavit that the motion to reassign was made in good faith and/or an allegation that the movant believes it would be impossible to receive a fair trial before the assigned judge. California has this type of challenge, and it has caused serious case management problems.
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Another judge who serves with me on the Court Administration and Case Management Committee was a Superior Court judge in Los Angeles County for twelve years. He has advised me that under California's provision, attorneys have developed a game playing technique whereby, if a trial is not going well, a third party is added who can be trusted to remove the judge. The exercise of these peremptory challenges can be financially devastating in counties with few judges, because of the added costs to the courts and litigants. The Subcommittee would be well advised to consider the experience of the smaller courts in California before implementing a similar proposal in the federal courts. As discussed earlier, most federal court sites have only one to three judges, which greatly increases the potential for abuse of this procedure in the federal courts.
It would be a grave mistake to take the authority for managing federal litigation away from judges and hand it over to the lawyers involved in the case. This is especially true in light of the RAND Corporation's recent finding, discussed earlier, that 95 percent of a trial's expense and 50 percent of a trial's delay are under the control of the lawyers in a case. And yet this is exactly what Section 6 would do. I urge the Subcommittee to consider some of these practical concerns before endorsing this proposal.
Mr. COBLE. Thank you, Judge.
STATEMENT OF STEVE B. BURBANK, DAVID BERGER PROFESSOR FOR THE ADMINISTRATION OF JUSTICE, UNIVERSITY OF PENNSYLVANIA
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Mr. BURBANK. Thank you, Mr. Chairman. In my prepared statement, I attempt to offer useful comments on all the sections. Obviously, I don't have enough time now. I'd like to concentrate on sections 3, 4, and if time permits, section 6.
Section 3 would provide for interlocutory appeals by a party in the discretion of the court of appeals from class certification decisions. As a policy matter, I support permitting discretionary interlocutory appeals from class certification decisions. In my view, however, it would be highly unfortunate for such a provision to become law through legislation, at least at this time. That is not because Congress is not properly interested in Federal court procedure. It is properly interested, particularly in procedure that has a demonstrable impact on the attainment of Congress' substantive policy goals. Moreover, at one time there might have been a question about the Supreme Court's power to deal with standards for interlocutory appeals by rule.
In light of the addition of 1292(e) to title 28, however, there can be no such question today. Indeed, the Advisory Committee on Civil Rules has approved and forwarded to the Standing Committee a proposed amendment to Federal Rule of Civil Procedure 23 very similar to section 3. There is, thus, likely to be no need for legislation on this subject. Were section 3 to be enacted, it would stand as another sign of repudiation of the treaty we call the Enabling Act, as blatant in that aspect because of recent legislation specifically confirming power in the judiciary, as was the Civil Justice Reform Act of 1990, which came on the heels of legislation, a stated purpose of which was to get Congress out of the business of making procedural law.
Turning to section 4, it would require that proceedings on complaints of judicial misconduct or disability under section 372(c) be conducted in another judicial circuit, according to a system established by the Judicial Conference. As I describe in my statement, Mr. Chairman, I've had rather extraordinary experience with this legislation, having studied it, written rules under it, helped the judges come up with illustrative rules, and most pertinently for these purposes, having served as a member of the National Commission on Judicial Discipline and Removal.
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The National Commission was responsible for the first systematic and methodologically-sound, empirical study of experience under section 372(c), and the Commission took the precaution to retain an independent consultant, lest there be any concern, however unwarranted, of bias in the research that was done. The results of this empirical work, including the conclusions of the independent consultant, have been published, and they are reflected in the National Commission's report.
In light of the work and conclusions of the National Commission, section 4 of H.R. 1252 is objectionable for two fundamental reasons. First, the National Commission's work does not support the notion that there is a serious problem with the system of complaint disposition established by the 1980 act, and certainly no problem serious enough to warrant departure from a basic premise of modern Federal judicial administration dating from 1939; to wit: that each judicial circuit should be responsible for the administration of justice in that circuit.
Second, section 4 would put at risk and almost certainly diminish what the National Commission deemed the major benefit of the system established in the 1980 act; namely, its contribution to the informal resolution of problems of Federal judicial misconduct and disability. That is because in many cases it will be easier for a Chief Judge to persuade one of his other colleagues in the circuit to change his or her ways or to take disability retirement than it would be for someone who, one, does not know, let alone work closely with the judge and his or her colleagues, and, two, has no source of authority or moral suasion other than that which would be provided by section 372(c) under the proposed system.
Page 92 PREV PAGE TOP OF DOC Section 4 is also objectionable, I believe, because, if enacted, it would represent the first legislative action in this area since the National Commission's report was issued in 1993. The Judicial Conference has taken that report very seriously indeed, and has addressed most of the problems perceived by the Commission and most of its recommendations to the judiciary through amendments to the illustrative rules and resolutions advocating action at the circuit level. As a result, there is even less basis for concern about the adequacy of the existing system today than there was before the Commission was established.
To my knowledge, Congress has not acted on, let alone seriously considered, any of the National Commission's recommendations to the legislative branch. Enactment of section 4, which is fundamentally inconsistent with the National Commission's conclusions, would, therefore, constitute not only a repudiation of that careful work funded by the taxpayers; it would thereby invite comparison with that work, a comparison which could not put Congress in a favorable light.
Finally, in connection with section 6, about which Judge Williams just testified, I agree with what she said. I would note the irony that, at a time when seemingly everyone, including most Members of Congress, are deploring the costs and delays of civil litigation and the sharp practices of lawyers and their clients, serious consideration should be given to a provision like section 6 which could only increase cost and delay, and which would send precisely the wrong message about appropriate litigation behavior to the Bar and to the public.
[The prepared statement of Mr. Burbank follows:]
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PREPARED STATEMENT OF STEPHEN B. BURBANK, DAVID BERGER PROFESSOR FOR THE ADMINISTRATION OF JUSTICE, UNIVERSITY OF PENNSYLVANIA
Mr. Chairman and members of the Subcommittee, I appreciate the invitation to testify on H.R. 1252, the Judicial Reform Act of 1997. I regret that the timing of the invitation, together with my previous commitments, have prevented me from preparing a statement as full as I would have liked, but I hope that these comments, as well as my oral testimony, will assist the Subcommittee in its deliberations.
I am the David Berger Professor for the Administration of Justice at the University of Pennsylvania, where I have been a member of the standing faculty since 1979, having previously served as the University's General Counsel. My teaching and scholarship have focused on federal court procedure and judicial administration, with an emphasis on rulemaking under the Rules Enabling Act, 28 U.S.C. 2072 et seq., and judicial discipline, pursuant to both 28 U.S.C. 372(c) and the constitutional provisions for impeachment and removal.
This interest in judicial administration was born during my clerkship with Chief Justice Warren Burger, and it has been enhanced by service as co-reporter for the Third Circuit Judicial Council's rules implementing 372(c), as the reporter of the Third Circuit's Task Force on Federal Rule of Civil Procedure 11, and as a consultant to the Federal Courts Study Committee. I have been invited to testify before this Subcommittee on four previous occasions, twice each in connection with judicial discipline (1985 and 1989) and court rulemaking reform (1985 and 1988). In 1991 the Speaker of the House appointed me a member of the National Commission on Judicial Discipline and Removal, and I was a principal author of the Commission's Report, issued in 1993. I thus believe that both my research and my experience can be helpful to the Subcommittee in connection with a number of the provisions of H.R. 1252.
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By way of preface to my comments on the various provisions of H.R. 1252, and as additional perspective from which to evaluate those comments, it may be helpful to note that I have long been concerned about the relationship between the federal judiciary and the Congress, particularly in connection with responsibility for that part of civil justice reform we call procedural law and in connection with judicial discipline.
I have criticized the judiciary for overreaching under the Enabling Act and overreacting to congressional initiatives. I have criticized the Congress for legislating without an adequate empirical basis, and for doing so in contravention of supposed standards for allocating responsibility. In the early years following the enactment of the Judicial Conduct and Disability Act of 1980 ( 372(c)), I took the judiciary to task for inadequate implementation. More recently, I have expressed concern about inappropriate responses to judicial decisions by members of Congress. I believe, in other words, that I am, and am regarded as, an equal opportunity critic.
Section 2 of the bill would require that applications for injunctive relief (on the ground of unconstitutionality) against a state law adopted by referendum be heard, on an expedited basis, by a court of 3 judges, and it would provide for a direct appeal to the Supreme Court.
There was a time when 3 judge courts presented a serious problem for the federal courts, particularly the Supreme Court, and I was a law clerk at a time (197475) when the Court was doing everything in its power, short of nullification, to diminish the costs of direct appeals. Since then, Congress has eliminated the requirement for all but a few types of cases. See Pub. L. 94381, 3, 90 Stat. 1119 (1976). This proposal to add another category of cases in which the requirement applies raises two questions.
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Assuming that Congress still believes in general, as it presumably believed when it all but abolished 3 judge courts in 1976, that their costs outweigh their benefits, are the cases in which Section 2 would apply fairly comparable to those exceptional cases in which Congress has retained the requirement? Comparable in what sense? One potentially relevant dimension concerns the potential harm that a putatively erroneous decision by a single judge might work before it was reversed on appeal, and this dimension includes both the harm of an uncorrected (and unstayed) decision in the specific case and the more general harm that decisions by federal courts declaring state laws unconstitutional can work in terms of respect for the federal judiciary and the rule of law.
The second general question raised by this provision is whether, if it were enacted, it would invite additional such provisions, with the possible result that before long we would have returned to the situation that the federal judiciary and the Congress both found intolerable twenty years ago.
I do not have the answers to these questions, and the second is probably unanswerable. I would ask the members of the Subcommittee to consider the situation or situations that prompted this proposal and whether, in fact, any single judge decisions thought erroneous caused consequential harm, either because they were not corrected on appeal or because of delay between the district court's decision and appellate reversal.
I would also ask the members to consider, prior to going forward with this proposal, whether standards for imposing such a requirement can be articulated that would rationalize the few situations triggering it in current law and help to prevent a return to the pre-1976 situation.
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I would ask the federal judiciary to consider whether, even if rationalization of the circumstances in which 3 judge courts are required is not possible, the type of challenge targeted in this provision is not one in which a decision invalidating state law is more likely than most to enflame popular sentiment against the federal judiciary, with potentially substantial costs to the institution. Of course, this question is also one that should be considered by Congress, which is equally concerned with the respect and effectiveness of the federal judiciary.
Section 3 would provide for interlocutory appeals by a party, in the discretion of the court of appeals, from class certification decisions.
As a policy matter, I support permitting discretionary interlocutory appeals from class certification decisions. Such a provision responds to the reality that decisions either granting or denying certification can work irreparable harm, on defendants or plaintiffs, and that current law restricting interlocutory appeals confers too much power on district judges and puts too much strain on the extraordinary writ of mandamus.
In my view, however, it would be highly unfortunate for such a provision to become law through legislation, at least at this time. That is not because Congress is not properly interested in federal procedure. It is properly interested, particularly in procedure that has a demonstrable impact on the attainment of Congress' substantive policy goals. Moreover, at one time, there might have been a question about the Supreme Court's power to deal with standards for interlocutory appeals by rule. In light of the addition of 1292(e) to Title 28, however, there can be no such question today. See also 28 U.S.C. 2072(c). Indeed, the Advisory Committee on Civil Rules has approved and forwarded to the Standing Committee a proposed amendment to Federal Rule of Civil Procedure 23 very similar to Section 3.
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There is thus likely to be no need for legislation. Were Section 3 to be enacted, it would stand as another sign of repudiation of the treaty we call the Enabling Act, as blatant in that aspect, because of recent legislation specifically confirming power in the judiciary, as was the Civil Justice Reform Act of 1990, which came on the heels of legislation a stated purpose of which was to get Congress out of the business of making procedural law. See Pub. L. 100702, Title IV, 102 Stat. 4648 (1988).
Section 4 would require that proceedings on complaints of judicial misconduct or disability under 372(c) be conducted in another judicial circuit, according to a system established by the Judicial Conference.
In my considered opinion, enactment of Section 4 would be a serious mistake. Again, I have studied and written about the history and implementation of 372(c) since the early-1980's; I played a major part in writing the Third Circuit's rules under the Act, consulted for the group of chief judges who created the Illustrative Rules and for the Judicial Conference in fashioning revisions to those rules, and participated actively in the evaluation of experience under 372(c) by the National Commission on Judicial Discipline and Removal. Indeed, I was the principal author of Chapter 5 of the Commission's Report, which reflects the results of that evaluation.
I will leave to others comments on specific aspects of the system contemplated by Section 4. I do not believe that the members of the Subcommittee need arrive at that point, however. To my knowledge, there has been no showing of a need for such a system, and the costs that it would entail are clear.
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The National Commission was responsible for the first systematic and methodologically sound empirical study of experience under 372(c), and the Commission took the precaution to retain an independent consultant to monitor the Federal Judicial Center's study, lest there be any concern, however unwarranted, of bias in the research. The results of this empirical work, including the conclusions of the independent consultant, have been published, and they are reflected in the National Commission's Report. They are the principal basis for the following conclusions of the Commission:
The system of formal and informal approaches to problems of misconduct and disability within the federal judicial branch is working reasonably well. It is by no means a perfect system, and the Commission identified numerous areas where it believes improvements could and should be made. It is, however, a system that both in design and execution strives to accommodate core constitutional valuesjudicial independence and accountabilitythat are in tension. Any alternative system proposed for the federal judiciary should be evaluated according to its potential to strike that balance. The Commission is not aware of any that would do it as well.
The 1980 Act, which is the principal formal mechanism within the judicial branch, has yielded substantial benefits both in those few instances where it was necessary for the judicial councils to take action and, more importantly, in the many instances where the existence of its formal process enabled chief judges to resolve complaints through corrective action and, indeed, to resolve problems before a complaint was filed. These benefits have entailed costs, to be sure, but in the Commission's view those costs have been acceptable.
* * * * *
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It would be surprising if a rigorous evaluation
of experience under the 1980 Act had unearthed no instances where those charged with its implementation failed to treat complaints with the seriousness they deserved. The Commission identified such instances, but not many....
[The Commission's] recommendations also reflect the conviction that perhaps the greatest benefit of the 1980 Act has been the support it has provided, and the impetus it has given, to informal approaches to problems of federal judicial misconduct and disability. No evaluation of the 1980 Act should neglect its influence in this regard nor the likely relationship between the continuing importance of informal mechanisms in a decentralized system of self-regulation and the general perception that federal judicial independence is alive and well.
Report of the National Commission on Judicial Discipline and Removal 12324 (1993).
In the light of the work and conclusions of the National Commission, Section 4 of H.R. 1252 is objectionable for two fundamental reasons.
First, the Commission's work does not support the notion that there is a serious problem with the system of complaint disposition established by the 1980 Act, and certainly no problem serious enough to warrant departure from a basic premise of modern federal judicial administration, dating from 1939, to wit, that each judicial circuit should be responsible for the administration of justice in that circuit.
Page 100 PREV PAGE TOP OF DOC Second, Section 4 would put at risk, and almost certainly diminish, what the Commission deemed the major benefit of the system established in the 1980 Act, namely, its contribution to informal resolutions of problems of federal judicial misconduct and disability. That is because, in many cases, it will be easier for a Chief Judge to persuade one of his colleagues in the circuit to change his or her ways (or to take disability retirement) than it would be for someone who (1) does not know, let alone work closely with, the judge and his or her colleagues, and (2) has no source of authority or moral suasion other than that which would be provided by 372(c) under the proposed system.
Section 4 is also objectionable, I believe, because if enacted, it would represent the first legislative action in this area since the National Commission's Report was issued. The Judicial Conference has taken that Report very seriously and has addressed most of the problems perceived by the Commission, and most of its recommendations to the judiciary, through amendments to the Illustrative Rules and resolutions advocating action at the circuit level. As a result, there is even less basis for concern about the adequacy of the existing system today than there was before the Commission was established. To my knowledge, Congress has not acted on, let alone seriously considered, any of the National Commission's recommendations to the legislative branch. Enactment of Section 4, which is fundamentally inconsistent with the National Commission's conclusions, would therefore constitute not only a repudiation of that careful work, funded by the taxpayers. It would thereby invite comparison with that work, a comparison which could not put Congress in a favorable light.
Section 5 would impose strict limits on the power of a district court to enter an order or approve a settlement ''that requires any State, or political subdivision of a state, to impose, increase, levy, or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law.'' As I am not a scholar of constitutional law, I must leave detailed comments to others. I do, however, have a few concerns, both general and specific.
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At a general level, I question whether, in light of Missouri v. Jenkins, 495 U.S. 33 (1990), such a provision is necessary to accomplish the apparent goal, particularly if one considers changes in the composition of the Supreme Court since 1990. That question, in turn, requires consideration of the potential costs of such legislation.
Without reference to any constitutional questions Section 5 may raise, I worry that, in combination with other legislation restricting the remedial discretion of the federal courts, such as the Prison Litigation Reform Act, it might fundamentally and adversely affect the system of checks and balances bequeathed to us by the framers and ratifiers of the Constitution. That risk seems to me particularly serious in the absence of articulated norms or standards against which any such legislative proposal can be tested (a problem akin to that discussed above in connection with 3 judge courts).
As to specifics, if Congress proceeds with this proposal, I am concerned about conditions (a)(1)(C)&(D). Almost any substantial local tax will result in a loss of revenue (through the resultant diminution of business activity) if one disregards the revenues raised by the tax itself, revenues that would be used to pay for the judicially imposed remedy and thus leave no residue for the State's coffers. I assume that what condition (C) means to prohibit are only such tax increases as result in a net loss of revenue, even when full credit is given for the monies brought in by the increased tax, because, for instance, businesses are driven out. That point should be clarified.
Condition (D) seems to me far more troublesome in its potential scope. Almost any local property tax increase, if at all substantial, will have the effect of reducing local property values, either (a) by making property less valuable in relation to other goods, or (b) by making local property less valuable in comparison with property in other, less heavily taxed, localities, or both. A local income or other non-property tax will likewise have effect (b), although not effect (a). A statewide property tax (if there is such a thing) would have effect (a), although not effect (b). I am not sure that there is a cure for this problem, and if not, the condition should be deleted.
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Section 6 would give the parties on each side of a federal civil case one reassignment to a different judge as a matter of right. Again, I leave comment on details, such as how this provision would operate in districts with few judges, to others. In my view, the Subcommittee should never get to that point, because the provision is fundamentally flawed.
It is ironic that, at a time when seemingly everyone in the country, including many members of Congress, are deploring the costs and delays of civil litigation and the sharp practices of lawyers and their clients, serious consideration should be given to a provision like Section 6, which could only increase cost and delay and which would send precisely the wrong message about appropriate litigation behavior.
Any informed observer of federal civil litigation would agree that the great majority of attempts to recuse under 28 U.S.C. 144 and/or 455 are made for purely strategic reasons, and not because a litigant seriously entertains an apprehension of disadvantage as a result of judicial bias or prejudice. I acknowledge that reasonable persons can disagree whether the federal courts were suitably sympathetic to Congress' goals in amending 455 in 1974, but the Supreme Court's decision in Liteky v. United States, 510 U.S. 540 (1994), is helpful in that regard, and my own sense of the landscape is that the Courts of Appeals have usually responded to bona fide requests for relief where bias or prejudice could be substantiated by more than adverse rulings.
Thus, again, I see no crying need for this provision, and its costs are apparent. Apart from expense and delay (particularly as a result of subsection (b)(2)), the section could only confirm the impression that litigation is a game where strategy is more important than the search for truth. That message conflicts with fundamental premises of our system, including the premise that no litigant has a right to a decision by a particular judge, and it is for that and other reasons precisely the wrong message to send to the bar and the public.
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I apologize again that the time available to me did not permit more thorough analysis and discussion of H.R. 1252, but I do hope that these comments are helpful to the Subcommittee. I am at your service if you require additional assistance.
Mr. COBLE. Judge Williams, your two male counterparts have outshined you on beating the clock. I'll award them A's; I'll give you a high B maybe or a low B.
Judge WILLIAMS. All right. [Laughter.]
Mr. COBLE. And don't feel any pressure to that end, Mr. Lacey. I'm now happy to recognize you. [Laughter.]
STATEMENT OF FREDERICK B. LACEY, LE BOEUF, LAMB, GREENE & MAC RAE
Mr. LACEY. All right, sir. I'm Frederick B. Lacey. I'm honored to be here today. I have two distinctions that I think I can claim at least one of which no one else before me can claim, and that is my age. The other distinction is that I am also a baseball fan, and I'm afraid I must correct something that was said earlier. Ewell Blackwell did not throw the Cephus pitch; that was Rip Sewell. Will you acknowledge that, sir?
Mr. DELAHUNT. I will, and thank you for the admonition and the correction. [Laughter.]
Page 104 PREV PAGE TOP OF DOC Mr. LACEY. Thanks very much.
Mr. COBLE. Mr. Lacey, may I put my oars in the water and identify the team for whom he pitched it?
Mr. LACEY. Pittsburgh Pirates.
Mr. COBLE. Pittsburgh Pirates, indeed. [Laughter.]
Mr. LACEY. Thank you for that easy question. [Laughter.]
In addition to the bio that was read by your chairman, I'd like to add a couple of things to that as a background to what I'm going to say. I've had considerable judicial experience. In addition to being the district judge, as has been indicated, contemporaneously I served on two statutory courts. Indeed, I'm told that I'm the only one in this century so far who has at the same time been a member of three courts. I was on the Temporary Emergency Court of Appeals and also in 1979 I became the first member of the newly-formed Foreign Intelligence Surveillance Court.
And since my resignation, I've been close to the bench. I have served as a special master by appointment of the Court of Appeals for the Second Circuit to draft a redistricting plan for the congressional districts in New York, and have served as Attorney General Barr's independent counsel to conduct an investigation into charges by certain legislators that the Department of Justice had corruptly handled the Banca Nacionale de Lavoro investigation. I found the charges were groundless and politically-based, and of course came under considerable criticism from certain Members of this Chamber.
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In 1989, I became the court-appointed general administrator of the International Brotherhood of Teamsters under the consent decree that had resolved the civil RICO suit brought by the Department of Justice against the IBT and its leadership. And since 1992, I have been one of three members of the Independent Review Board that, again, scrutinizes activities of the International Brotherhood of Teamsters.
Since leaving the bench in 1986, in addition to that, I have been doing what I have been doing all my professional nonpublic life: litigating cases.
I was invited to appear today to comment on the proposed Judicial Reform Act, and I'll do so specifically and generally. As a prefatory comment, one would have to live on another planet to be unaware of the recent attacks made upon the Federal judges, and so I'm aware of statements that the power of Federal judges should be curbed.
In dealing with the specific provisions, shifting to a three-judge court or, rather, revival of the three-judge court, nostalgia grows because the first appearance I made before the Supreme Court of the United Statesand the lastwas because a three-judge court had found that my claim that a State statute was unconstitutional was wrong. The three judges unanimously came down against me; we went to the Supreme Court and we reversed them. So I suppose if the theory is that three judges are more likely to be right than one judge, at least I can carve out an exception to that theory.
The only other comment I have goes to 6. I think that the trial bar is wrong, and I'm aware of the strong pressures exerted by segments of the trial bar for this. I think in pressing for the right to peremptorily strike the first judge to whom counsel is assigned, this is a mistake. I can tell you this: that every trial lawyerand you all know this yourselveswill ''judge-shop'' if you permit it, and the strike promotes the practice, and I think it discredits the judicial system. The public depicted here as unhappy with our judicial system is not likely to look with high regard on such a device. And I might also add, as the other speakers said, that it poses a threat to the proper and fair case management system.
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What troubles me in this legislation, although it's moderate in tone, is the undercurrent of criticism by this body of the Federal judiciary. I'm aware that this legislation does not accord recognition to this impeachment phenomena to which reference has been made, but I would like to address this subject nonetheless, and this is because of the harm being done to the judiciary and to our country by the virulent attacks being made upon certain sitting judges and calling for their impeachment. In the submissions here today I have read reference to ''rogue'' judges. One Member of this body is quoted in the press as stating that judges ''are running amuck.'' I hope that this hearing can have the effect of muting the virulence of the comments coming from the legislative branch of our Government. Some of these comments that have been made are certainly not going to generate increased public confidence in the judiciary or, for that matter, in the legislative chambers.
I don't suggest that judges or members of the chambers should be immune from criticism. All should be subject to close scrutiny. No public official, particularly one who serves in Washington, can afford thin skin, and my own personal experience qualifies me in this regard.
The red light is on. I'll stand on my paper. I simply would like to deal with the three judges whose names have been mentioned from time to time.
I read Judge Nixon's opinion. I'm not saying I would have come down the way he did, but I will say this: that if the facts of the defendants' representation of counsel are accurately stated, it would appear that there are ''effective assistance of counsel'' issues. In any event, the sixth circuit is able to handle the matter.
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With respect to Judge Henderson, discussion has been had of his decision. There was an appeal. Your predecessors erected such an appellate structure, and I think that is more than adequate to deal with a judge's decision which is that who is aberrant.
And with respect to Judge Biery's decision, I read that very carefully, and I happen to think that he handled that well.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Lacey follows:]
PREPARED STATEMENT OF FREDERICK B. LACEY, LEBOEUF, LAMB, GREEN, & MacRae
My name is Frederick B. Lacey. I practice law in New Jersey and New York. I was an assistant United States attorney from 1953 to 1955 and United States attorney for New Jersey from 1969 to 1971, when I was appointed a United States district judge for New Jersey. I was recommended for both the positions of U.S. attorney and Federal judge by Republican Senator Clifford Case, appointed by President Nixon, and confirmed by the United States Senate. My period of judicial service15 yearswas enriched by appointment to two statutory courts, the Temporary Emergency Court of Appeals and, in 1979, the newly formed Foreign Intelligence Surveillance Court. Since my resignation from the bench, I have served as a special master by appointment of the Court of Appeals for the Second Circuit to draft a redistricting plan for the congressional district in New York and have served as Attorney General Barr's independent counsel to conduct an investigation into charges by certain legislators that the Department of Justice had corruptly handled the Banca Nacionale De Lavora Investigation. I found the charges were groundless. In 1989 I became the court-appointed general administrator of International Brotherhood of Teamsters under the consent decree that resolved the civil RICO suit brought by the Department of Justice against the IBT and its leadership; and since 1992 I have served as one of three members of the Independent Review Board by appointment initially by Attorney General Barr and in 1996 by appointment by Attorney General Reno.
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Meantime, since leaving the bench in 1986, I have been doing what I have done all my professional non-public life, litigating cases.
I was invited to appear today to comment on the proposed Judicial Reform Act of 1997 and I shall do so, specifically and generally.
One would have to live on another planet to be unaware of the recent attacks made upon judges. And so I am aware of statements that the power of Federal judges should be curbed.
Addressing certain features of the proposed legislation, I have no particular quarrel with moving disciplinary proceedings to another circuit or to revival of the three-judge court. I do suggest that the Trial Bar is wrong, however, in pressing for the right to peremptorily strike the first judge to whom counsel is assigned. Every trial lawyer wants to judge shop. The ''strike'' promotes this practice, and I think it discredits the judicial system. It also poses a threat to proper and fair case management.
I am aware that the proposed legislation does not accord recognition to the impeachment phenomenon, but I would like to address it nonetheless. This is because of the harm being done to the judiciaryand to our countryby the virulent attacks being made upon certain sitting judges and calling for their impeachment.
I do no suggest that judges or Members of this Chamber should be immune from criticism. All should be subject to close scrutiny. No public officialparticularly one who serves in Washingtoncan afford thin skin. My own personal experiences in the arena qualify me in this regard.
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Plainly, the virulence I address has been recently directed at three district judges, Nixon in Tennessee, Biery in Texas, and Henderson in California.
I have read the Nixon, Biery and Henderson opinions. I'm not saying I would have come down the way Judge Nixon did. I will say thisthat, if the facts of the defendants' representation by counsel are accurately stated, it would appear that there are effective assistance of counsel issues. Moreover, Judge Nixon's decision is now before the sixth circuit after argument in April.
I am a Republican and not known as a liberal and was never regarded as an activist judgewhatever that is. Yet I found nothing objectionable in the careful handling of the Texas matter by Judge Biery.
As to Judge Hendersons' decision, he was wrong, as hundreds of other judges have been wrong. Again, your predecessors, aware that trial judges can err, provided an appealnot impeachment. And consistent with our well ordered judicial system, the ninth circuit reversed him.
If there is truth to the charge that the impeachment threat comes from the Republican side, and is directed at Federal judges appointed by a Democrat President, it should be remembered that the political winds shift. to go back in time, President Franklin D. Roosevelt was frustrated by having the so-called ''nine old men'' (including Republicans) of the Supreme Court invalidate his social programs, and I will concede that the dimensions of the current impeachment effort are dwarfed by that monstrous attempt to pack the Supreme Court. President Roosevelt backed off in the face of sound and sober criticism.
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Judges should face the decision-making process without fear that a decision that may be politically unpopular will lead to impeachment proceedings. Federal judges get some hard cases that stir emotions and political ideologues. When United States District Judge Merhige had the school segregation cases before him as he sat in Richmond, Virginia, he was not a popular figure. He had the protection of marshals. Should he have been subject to the impeachment process? A lesser person than Judge Merhige may well have been intimidated by the ready availability to Federal legislators from Virginia of the impeachment device. What about what Judge Frank Johnson faced in Alabama when he was confronted by segregation forces led by Governor Wallace or of Judge Tutle of the court of appeals whose extraordinary judicial service was marked by the court battles over segregation?
And where would it stop: Brown v. Board of Education? Would those who address decisions in the Federal courts in Texas, Tennessee and California have applied impeachment device to that decision?
I can understand the frustration of the California proponents of proposition 209, or those who were elected in Texas or those who believed that the defendants in Rickman, et al. should be executed. But be careful of putting in motion an engine of destruction. It will have a terrible chilling effect on the administration of justice.
There is in our history an example of an attack on our judiciary that reflected anything but credit on the legislative branch. I refer to the failed attempt by legislators of a different party to remove Justice Samuel Chase from the Supreme Court in 1805 because of this political views and unpopular rulings. Chief Justice Rehnquist in this book ''Grant Inquests'' wrote of the significance of that decision. As he saw it, it assured our nation that impeachment would not be used in the future as a method to remove members of the Supreme Court for their judicial opinions. For the same reason, impeachment proceedings should not be used merely to attack rulings by lower Federal judges. As the chief Justice states, ''Impeachment is not a proper weapon for Congress ... to employ in ... confrontation [with the Federal judiciary].'' No matter how angry or frustrated either of the other branches may be, removal of individual judges because of their judicial philosophy is wrong.
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Having said all this, I think that hearings like this serve a useful purpose in our democracy. They air our problems and our fragile system of constitutional democracy.
The separation of powers is the genius of our Constitution. Our Framers drew a separation but then provided checks and balances. The Congress controls the purse strings, the rules of the game, the statutes the judiciary is to apply. And the Framers also saw that the legislative branch had the power to deal with the corrupt judge. But by spelling out the specifics, the Framers excluded impeachment for political reasons or because a judge is of an opposite political party or of a different social, economic or political ideology.
Since 1976 the House of Representatives has impeached 11 Federal judges and seven were convicted and removed by the Senate. Not one federal judge has been removed because of controversial rulings.
I suggest that the independence of the judiciary is the foundationthe ground upon which many of our constitutional freedoms are based. If the independence of the judiciary is destroyed, the foundations of democracy are destroyed.
Mr. COBLE. Thank you, Mr. Lacey. Mr. Lacey, I hope you will stipulate that I did know the answer to the Pittsburgh Pirates. You beat me to the punch, but that was going to be my answer.
Mr. LACEY. That's why you gavethat's why I called it an easy question; I knew you knew the answer to that, Mr. Chairman.
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Mr. COBLE. And my apologies to the gentleman from Massachusetts for having misread it earlier.
Mr. DELAHUNT. Well, that's why you are the chairman, Mr. Coble. [Laughter.]
Mr. COBLE. Thank you, folks.
Now the red light applies to us as well. So we willif you'll active that light, Blaine.
Judgeeither Judge Politz and/or Judge Williamsyou all in your submitted statement, you wrote somewhat critically regarding the referral to another circuit of an impersonal authority ignorant of the personalities involved and acting at arm's length. But don't you all do that from the bench? I mean, you all conduct yourselves impartially; you're at arm's length; you're ignorant of the facts in many instances. Why would it be so harmful in the case at hand?
Judge POLITZ. It's a different thing, Mr. Chairman.
Mr. FRANK. Take the microphone, Judge, partly for the recorder.
Judge POLITZ. It's one thing for us to, as a panelwe work in panels of three; we review district judges. The concept of we ought to send it to another circuit because the appearance of impropriety will not be thereit would be the appearance that, well, these folks will not handle this thing properly, then that applies to every ruling that comes up to us. Are we going to send all of our trials and decisions over to another circuit because of this suggested appearance?
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There's a difference in us looking at a decision, a judicial decision, and us looking at: Is this judge comporting himself or herself properly? You just need to know a whole lot more about the person. You need to know a whole lot more about the ambience of how that happened. You need to know the history of it, and our folks locally do thatdo that. It's a plus, not a minus, in the true application of the 1980 act.
Judge WILLIAMS. I agree.
Mr. COBLE. OK. Well, you all have made compelling arguments, and I think compelling arguments on either side of this issue can be submitted. I can recognize good arguments on either side.
Mr. Lacey, you touched on it, and to use your words, you said you have no quarrel with the three-judge panel provision of section 2. Elaborate a little more in detail.
Mr. LACEY. Well, as I indicated, the theory, I gather, is that three judges are more likely to be right than one, and I gave my personal experience to demonstrate that that theory may not hold water. I don't have any particular quarrel, however, because I just don't see that it creates a grave problem. On the other hand, I do have to recognize that what both Judge Politz and Judge Williams have stated should be carefully considered by those who are going to administer this.
Mr. COBLE. Well, and I don't mean to be trying to pacify everybody, but I guess good arguments can be submitted on both sides of that. I would be inclined to come down on the side of the three-judge panel, for the reasons you gave, and perhaps others.
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Professor Burbank, is it your beliefwell, strike that. Tell me whether it's your belief, whether the current recusal statutes of title 28 work efficiently.
Mr. BURBANK. In my prepared statement, Mr. Chairman, I did observe that I thought reasonable people might disagree about whether the Federal courts were sufficiently sympathetic to the amendments that Congress made to section 455 in 1974. I happen to believe that the Federal courts weren't sufficiently sympathetic to the animating reasons for those amendments.
I do believe, however, that the Court's, the Supreme Court's, decision in the Liteky case in 1994, in which they made clear that, one, the so-called extrajudicial source doctrine is not a doctrine but a factor, and, two, that it doesn't have the power that a number of lower Federal courts had attributed to it, goes a long way to solving the problem.
I also observed that in my capacity as a scholar and somebody who observes the work of the courts quite carefully, it has been my impression that one way or another courts of appeals have managed to deal with serious problems, by which I mean problems of perceived bias or potentially perceived bias that are substantiated by more than just an accumulation of adverse rulings, in a reasonably effective way. And, therefore, I do believe that, by and large, the statutory provisions, section 144 and section 455, are working rather well. And if Congress were to think that they weren't, I would imagine that finely-tuned amendments to those statutes would be preferable to the provision that is part of H.R. 1252.
Page 115 PREV PAGE TOP OF DOC Mr. COBLE. Thank you, sir.
Mr. Lacey, you're a former district judge, as well as a litigator. How about inserting your oars into the water on the referral question of complaints to another circuit. What's your view on that?
Mr. LACEY. I had two experiences sitting as a district judge on panels that were convened by the Chief Judge of the third circuit when I was a district judge. Everything that I saw, everything that I heard, and my participation, the participation of my colleagues, is corroborative of what Judge Politz has said. I didn't see any sign of favoritism. The Chief Judge in one instance was prepared to come down very hard on the district judge who had allegedly strayed. And I can see that the proposed change does cause inconvenience. It's bad enough within a circuit to deal with this; when you stretch out the geography, then I think you're adding expense and certainly adding to the toil of judges in other circuits on matters that really they don't feel that they should be bothered with.
Mr. COBLE. Thank you, sir.
Mr. LACEY. That would be my feeling about that.
Mr. COBLE. Thank you, Professor. My time has expired.
The gentleman from Massachusetts.
Mr. FRANK. Thank you, Mr. Chairman. I appreciate your giving Judge Lacey a chance to put his oar in the water, and I was particularly pleased that he appeared to have both oars in the water, which I'm not sure will be the order of the day tomorrow, as I look at the witness list. [Laughter.]
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The first question I have has to do with the disciplinary situation. Is anyone on the panel aware of a problemthat is, of judges who have gone undisciplined despite behavior that clearly should have led to discipline? You sometimes ask, when a fundamental change is being proposed, why. I think there's an ideological problem. I think there's a disconnect here. I think people have got a political ideological problem which is insoluble, given the Constitution, and, therefore, are kind of generating other things.
But let me ask all of the four of you: are any of you aware of a problem of a lack of discipline now being meted out to judges who should be disciplined? Let me start, Judge Politz, with you.
Judge POLITZ. I live with it every day. My answer to that is no, and an expansion of what you're saying is I listened to the other testimony this morning and the statements; the concern seems to be about certain decisions. Well, that's what the appellate panels are for and 372(c) in the act. One of the bases for the Chief Judgeand it is the product for most of the dismissal orders I signis that if the complaint is of a litigant, and if it directly relates to the merits of a procedural ruling or ruling on the case, it's not to be covered by the act. That's to go to a three-judge panel. So things that I'm hearing are the things that in the act now we say that a three-judge panel will handle, and my experience has been they have.
Mr. FRANK. These are issues of the law rather than of discipline?
Page 117 PREV PAGE TOP OF DOC Judge POLITZ. Issues of the law, yes.
Mr. FRANK. Judge Lacey.
Mr. LACEY. Yes, sir. I recall during my 15 years getting copies of letters that went to the Chief Judge complaining of my treatment in a particular case. Always it had to do with the ruling, and of course the appellate process was there. There are letters that come down, as I think all of you know, that are just bizarre. And when I think of those going into the chain of communication to different circuits around the country, I think this is an added reason to try to deal with these close to home.
Mr. FRANK. Let me say, Judge, we all know that because we get them. We get them about ourselves. I mean, I was asked recentlysomebody was doing a poll whether we were getting a lot of death threats, and I said personally I don't get that many death threats; I get a lot of after-death threats. People threaten me with terrible things in the afterlife. But we also get complaints about judges, and my impression is most of us, if we do anything at all, routinely send them along to people like poor Judge Politz, who then has to deal with them, knowing full well that most of them have absolutely no merit whatsoever. And I would agree that formalizing that process even more would be a waste.
Let me say, I want to get another question. I would assume that neither of you have any evidence of
Judge WILLIAMS. No, no, and I think that the other thing you have to look at is opinions by the circuit court. When a judge engages in improper behavior or makes inappropriate comments, the circuits are not reluctant to address that in opinions. So, in addition to that internal process
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Mr. FRANK. Actually, you saw that, it seemed to me, in the 209 case, where the circuit's opinion quite clearly rebuked the district court judge. It does seem to me that this would be a less efficient form of discipline, and it really is a political solution to a different problem.
Let me now turn to one that's even more disturbing to me, though, and this is this preemptory challenge business, although I suppose I should tread carefully here because I read in the statement of the Judicial Conference that almost two decades agoI can tell you as a matter of fact it must be at least more than 17 years ago; I know that factuallybecause it says, ''Almost two decades ago, then Representative Drinan introduced a similar bill.'' I have his seat, and I didn't know that that came with the job. I will have to call him and see what he had in mind, but, apparently, he filed it nearly 20 years ago, and people opposed it.
It does seem to me, if I get this correctly, for a full trial, is it the case in virtually every district that there's a lottery assignment or a random assignment?
Judge WILLIAMS. It's done by lottery. Judges' names are put on the wheel
Mr. FRANK. So to prevent judge shoppingwe have this situation: I guess you can judge shop to the extent that you pick the district, if you have a potential, but once you have picked the district, the judge assigned to your case is done automatically by lottery. And then this bill would say that each lawyer would have a right to a preemptory challenge. Now, as I understand, you would have a situation where the plaintiff's would peremptorily challenge; a new judge would be assigned. Would the defendant's lawyer under the bill then be also allowed a preemptory challenge to the
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Judge WILLIAMS. Yes.
Mr. FRANK [continuing]. To the other lawyer?
Judge WILLIAMS. Yes. So the complaints
Mr. FRANK. So you get to three judges by this?
Judge WILLIAMS. And then if a third party is sued, that third party could come in and, with 20 days, they could get a new judge. So you could end up with a fourth judge getting the case, and that third party could come in, because often, because of the nature of the litigation we're dealing with and the complexities, lots of discovery has been done; motions have been ruled on, and when that third party comes in, it could move to a fourth judge
Mr. FRANK. So just give me 10 more seconds, Mr. Chairman, and I'll wrap up.
To prevent judge shopping, we transform a situation in which judges are assigned randomly to one in which every sideand there can be more than two sidesgets a preemptory challenge, so that we allow them to do a little, if not judge shoppingI guess you can't judge shop, but you can judge return under this bill. [Laughter.]
You can turn in the judge and get a new one assigned to you. I must say, as I listen to this, that only the enormous respect I haveI mean this quite seriouslyfor my very distinguished, very thoughtful predecessor prevents me from characterizing this bill more colorfully, this piece of it.
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I thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
The gentleman from Florida.
Mr. CANADY. Thank you, Mr. Chairman.
I want to direct our attention to section 3 of the bill. I think Professor Burbank touched on section 3, but Judge Williams and Judge Politzand I don't think Judge Lacey made any reference to that. If I understand, though, your written testimony, the written testimony I've had an opportunity to look at, no one has a substantive problem with the provision in section 3. The problem, as I understand itand I'm going to ask you about this and let you expound on itthe problem that you have with this is that you would prefer that Congress not do this, but that it go through the rules-enabling process and then Congress put its blessing on it, once it has been through that process, which is moving forward now pursuant to the recommendation of the Civil Rules Subcommittee of the Rules of Practice and Procedure Committee of the Judicial Conference. And I understand that if that process moves forward as anticipated, the Judicial Conference approves and the Supreme Court approves, that about a year from now we would receive this recommendation fromor this proposal fromthe Court, along with a variety of other things potentially.
But I want to clarify if anybody has a substantive problem with this particular provision regarding the interlocutory appeals of court orders relating to class actions
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Mr. LACEY. You're right, sir; I did not address it in my remarks. I'm all for it. I think that it has long been needed. My own view is, the faster, the better. So whichever has the better promise of being done quickly, I'm for. I really don't care whether it's legislative or by rule.
Mr. CANADY. OK, thank you.
Judge WILLIAMS. Yes, we care whether it's by legislation or by rule. [Laughter.]
Mr. CANADY. I thought you might.
Judge WILLIAMS. And the reason is a long time was spent coming up with the Rules Enabling Act and that process, so that there would be public hearings, so that all points of view could be listened to when rules that affected the heart of the judiciary and the rights of the public were addressed. And so you're absolutely right; we have no substantive quarrel with your proposal, but we want to see, having given all that time and thought to the rules process, and knowing that we're almost at the end of the roadand, of course, it's a concern of us that it takes so longbut in order to hear those different voices and to review those different positions, it's important. So it is important for us that we not jump the gun and we wait for that process to work.
Page 122 PREV PAGE TOP OF DOC Mr. CANADY. Judge Politz, would you like to comment?
Judge POLITZ. Please, yes. Substantively, no; I liked the idea when it was first presented to us in 1993, and we then toldI guess September 1993told the committees to go forward with proposals to amend our rules, and they've done that. And it is a slow process, and there's a reason for its being slow. The rules are rulesI mean, goshand we have to be awfully careful with them because they cover the whole country. But it's more than just a Federal dimension, and what would happen, your legislation would advance it several months, yes. You do harm to the rules enabling process in the sense that we just skirted around it. If we were overlooking this or ignoring it, you should; we're not; we're moving on it.
But another part of it, we have a large number of States that automatically pick up any change we make in the Federal rules, that do not automatically pick up statutory changes. And when we change this rule, which is a good rulewe ought to be looking at these interlocutory appeals, and we've been asked to do it on my court, I can tell you. It will then be so in many States. Many of the class actionsmost of them, indeedare now being, as I understand it, filed in the State courts. And it would be to the advantage of the whole system that this would be
Mr. CANADY. Judge, let me ask you this: the fact that we pass a statute on this subject would not necessarily prevent the rules process from moving forward, would it?
Judge POLITZ. It would sort of abort it, wouldn't it?
Page 123 PREV PAGE TOP OF DOC Mr. CANADY. Well, I don't know. I mean, notI don't know. Why would it?
Judge POLITZ. Because we've got to come back to you after the Supreme Court
Mr. CANADY. Because there may beI mean, there would be nothingwell, it might simply repeat what has been done, but there's no reasonfor the very reasons you're suggestingthat the rules could not proceed and have this come back to us
Mr. BURBANK. May I add something on that? I actuallyI happen to agree with everything that Judge Politz said except the point about the States. When Congress has enactedin my view, usually regrettablyFederal Rules of Civil Procedure or Evidence, they have been put in the Federal Rules of Civil Procedure or the Federal Rules of Evidence. So they're there, whether they'reI'm thinking about amendments to rule 4 in 1983, for instancethey're there in the rules, and if the States want to pick them up, they can.
But I think it's not just letting the process go through. It is, more importantly, what the relationship between Congress and the Federal courts is going to be for the making of procedural law. The Civil Justice Reform Act, as I indicated both in my prepared statement and in my oral comments, put that very much in question, and there is, I think, legitimate concern about who is going to be responsible for what. It's my view that Congress needs to sit down with the judiciary and the executive branch and work that out, because otherwise you can have chaos.
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This is not a situation like, for instance, that involved with the Private Securities Litigation Reform Act of 1995, where particular procedural provisions were thought important to implementing particular substantive goals. Those procedural provisions would not have been appropriate for the Federal rules, which are general, which cover all cases. This amendment is general; it's transsubstantive, and, in my view, it should come through the Enabling Act process. And since it is coming through the Enabling Act process, there's absolutely no reason for Congress further to becloud that relationship.
Mr. CANADY. My time has expired, and I support the framework established by the Rules Enabling Act. I don't know that it is the exclusive way for addressing issues that need to be addressed, however.
Mr. BURBANK. I happen to agree with you.
Mr. CANADY [presiding]. I think that Congress still has the responsibility to look at problems affecting the administration of justice, and there may be circumstances, perhaps such as the present instance, in which an action outside that process is appropriate.
With that, I'll recognize the gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Chairman.
I'd like to begin by recognizing in the room the presence of a former judiciary colleague of ours, Dan Lungren, who is now the attorney general of the State of California, who will be a witness later. We are always pleased to see him back.
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And, next, I would like to apologize to my colleague, Sonny Bono, who, it was observed that it was considered I was being patronizing when I referred to him as a learned member of this committee in terms of some legislation that he proposed, and so I'm going to remove the term, ask unanimous consent to remove the term, ''learned member of this committee'' and just refer to him as Sonny Bono, who happens to be culturally a very good friend of mine because of our common interest in American music. And so I want to make sure that the record is clear in that regard.
Mr. BONO. Thank you. Thank you very much. Apology totally accepted.
Mr. CONYERS. Now if you were to examine this hearing not in the totality of other things that the American legislature is doing, this could be a perfectly reasonable proceeding. If, however, you examine what is going on in a slightly larger context, I'm afraid you may get a different picture. You see this unbridled attack on the judiciary is part of a larger, conservative, Republican plan engineered by the leader of the Republican Congress, now the Speaker of the House, Newt Gingrich.
And so we can approach this a couple of ways, ladies and gentlemen. We can isolate these pieces of legislation and criticize them constructively or we can see it as part of a colossal, arrogant, unprecedented attack on the Constitution of the United States of America. Well, I've sat here longer than anyone. We have more constitutional amendments before this subcommittee than at any time in our history. Well, the budget is out of balance; put it in the Constitution. Give the same judges that we are now going to allow every lawyer worth his salt to challenge coming in to send this case to another judgegive the judges the role of deciding how to appropriate the tax money in this country, because we are not able to do it. So says this new leadership in Congress.
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People been around here too long? Well, let's have the gentleman from South Carolina, who's been here easily 40, 50 years, let him lead a constitutional amendment for term limitation. How do you like that for logic?
We don't like taxation. Well, let's change the way we vote for a simple majority not by law; let's constitutionalize it. It will take about 10 to 17 years, and nobody will be here that voted for it, but so what? It will go over real bigmaybe.
So what we're talking about here is a form of legislative anarchy, and the only thing that we've got to hold us is Howard Coble, the chairman of this committee, who reassuringly made me understand that the purpose of this hearing is not to dismantle the rule of law. I'm feeling better already, and thank you, Mr. Chairman.
Mr. COBLE. Thank you, Mr. Conyers.
The gentleman from Indiana.
Mr. PEASE. Thank you, Mr. Chairman.
I have a question directed to either or both of the judges dealing with the complaint procedure, the disciplinary procedure. I should tell you that my experience in my home State is one where, because of our structure, these sorts of matters are reviewed by other judges, not those who are most immediately associated with the judge. But I tend to favor a peer review system for a number of reasons that I'll explain shortly, and, therefore, have some concerns about that part of this proposal.
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But because I don't have an experience in peer review in the judicial arenamy experience has been in the higher education arena, where I served as general counsel for a university, and we did have peer review of faculty members by faculty members when there were complaints lodged against them. Generally, I believe that's the better way to do it. They tend to, as the judge has pointed out, know the background, know the situation, know the person, and were able, I think, more effectively and efficiently to resolve concerns.
But I do have a concern in this area, and that is, in the cases where that was not a resolution possible through the peer revieweither the Chair of the committee that was meeting with the individual who had a complaint lodged against him or her and the person who was complained against could not agree that there was behavior that needed to be reformedthen we had what I consider to be there and here a due process concern, because then there was a more formal action taken. We moved out of the informal attempt to solve the problem into a formal one, and because we did not want the same people who had attempted to informally adjudicate the complaint to then be the same ones who heard the formal process, it moved outside the department and elsewhere. And that concern is present for me in this process as well. In those cases where there is not the ability to informally resolve a situation, are there due process concerns that the same circuit in which that person sits, whether directly adjudicating that matter or indirectly merely by being a member of that circuit, are there due process concerns raised in your mind that might judge judges, argue in favor of moving those sorts of matters to another circuit?
Judge POLITZ. That's very legitimate, what you're suggesting. That has been done. We have that problem in front of us right now, and I wish not to speak any further on it because it is before my circuit now.
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Typically nottypically not, because in the informal process you'll be involving yourself as chief judge and maybe one or two of the judges in that locale that know the one that you have the problem with. When the Chief Judge then says, ''This is not one that I can handle on my own dismissal'' or ''I can't have rectification sufficient to where I can say I can dismiss this because this thing has now been rectified,'' you've got to appoint a committeethe statutory provisions are very specific and very directa committee composed of an equal number of trial and appellate judges, and the Chief Judge has to serve on it, but, typically, one of the others chairs it and you're there just to be there and to keep it all going. You will pick members of your Judicial Council who have not been involved in anything else.
Now there has been an instanceand only one case comes to mind so far in the history of this as it unfolds across the circuitswhere the council had been involved in the matters that were now really getting involved in this judge's misconduct charges, and the Supreme Court was asked to select judges from another circuit to come and do it. But that was on a judicial basis. They were looking at the judicial aspect. There, to my knowledge, has not been a situation yet where a judicial council has felt that all of them should recuse themselves on a matter before them in terms of one of their judges, because what they do do, of course, then is subject to review under the statute by the Judicial ConferenceI served for 3 years on the committee that does thatas to what they did was excessive or not excessive, and so on.
So far, it's worked. We really haven't had any real serious problem, and it remains to be seen what happens with the one we've now got before us.
Mr. PEASE. Thank you, Judge.
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Judge WILLIAMS. I don't have any further comment. As a district judge, I haven't been involved in that process; Judge Politz has. I'm not aware of any situations.
Mr. PEASE. OK, thank you, Judge. Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
The gentlewoman from California.
Ms. LOFGREN. I'll be quick because I know we have another panel waiting.
I'd like to direct this to Judge Politz because he's been involved for a long time in our judiciary. And without concurring in this assertion, let me just suggest that there are some in the Congress and in the country who are concerned about the administration of justice based on particular decisions that have recently been made with which they disagree. And if the goal of any of the provisions of this bill were to change outcomes of individual cases, would it be your judgment, just as an observer and experienced person in the administration of justice, that the existence of a three-judge panel would actually affect outcomes in the way that I think proponents suggest they might?
Judge POLITZ. Well, No. 1, individually and on behalf of the Judicial Conference, we welcome this kind of look-see at the judiciary. We ought to be looked at. It just depends on why you're looking at us, you know, but we ought to be looked at.
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You ought to take action when you disagree with us. You have traditionally done so. It has been on more than one occasion when the courts have ruled at the intermediate appellate level, at the Supreme Court level, and said, ''This is the law,'' and you, as the lawmakers, have said, ''Uh-huh, but it ain't going to be law long,'' and you changed it. And you statutorily undid what the court did, and unless it was a constitutional call, this is your responsibility, and you ought to be looking at us.
Disagreeing with a call in the case, that's my livelihood. These folks give me job security. If folks didn't take appeals, I don't know how I'd raise all the ''youngens.'' [Laughter.]
That's what we do, and we do it routinely, and we do it critically sometimes when the judge went too far. Read some of our opinions. Read some of the footnotes, and you ought to read some of the cover notes that we send: ''Just thought I'd send you a copy of this one. We didn't put the following in it, Buster.'' [Laughter.]
We can be critical of our own, and we are critical of our own. And to say that there's a danger that we won't do it properly, I think perhaps is an overstatement; I don't accept it. I thinkI know the contrary.
Ms. LOFGREN. So you're saying that each of the branches of government has their appropriate role to play and it's certainly fine for the Congress to have disagreements, but our remedy is not to monkey around with your independent branch of government, but to do our job by changing a statute, passing a new law?
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Judge POLITZ. Yes, ma'am, you do it, and you do it every day. You decide what we're going to hear. You decide what jurisdiction we have. You decide what cases we're going to have jurisdiction over. You decide what things are Federal crimes. Youmy, you've got some legislation now; you're going to have before you whether you're going to decide that we're going to start pulling the juvenile court duty. I mean, you decide that, and that is your power; the Constitution says it.
But when it comes down to the lick-logcapiche ''lick-log''when you get right down to that lick-log, a constitutional call, that's the court's call; that's the court's call. Whether it's a single judge or three judges, it's the court's call, reviewed ultimately by the Supreme Court down the street, and that's what the Constitution says.
Ms. LOFGREN. I understand that the professor made a distinction between what the Congress did in securities litigation reform last Congress that was substantive, even though it was procedural, because the structure of the procedures were impacting outcomes in a substantive way, and that that same rule could not be put in place with the proposals embodied in this bill. Would that be an accurate statement?
Mr. BURBANK. All I was trying to say is that some of the provisions of that securities litigation act could not be implemented under the Enabling Act process because they are restricted to securities litigation. That's not an appropriate subject for general rules under the Enabling Act, and, therefore, unlike some members of the judiciary and unlike the American Bar Association, I think Congress was perfectly entitled to do that.
Page 132 PREV PAGE TOP OF DOC Ms. LOFGREN. But that was a narrow exception
Mr. BURBANK. This, however, is not confined to one substantive context; it is transsubstantive. It is the bread and butter of the Enabling Act process.
Ms. LOFGREN. Thank you very much. You know, Judge, this isn't the subject of our hearing, but I won't get a chance probably to ask you again. You mentioned the juvenile delinquency measure passed by Congress last week. Do you have any guidance for us on that? What's your view on it?
Judge POLITZ. Please don't do it. Please don't do it. We don't have the people trained. We don't have the facilities. We don't have the judge power. You can make us do it, and we'll do the doggonest we can with it, but please don't do it, unless you've thought through the other things for the resources we need to do it properly, and they're not out there right now.
Ms. LOFGREN. Thank you.
Mr. COBLE. Zoe, I think I owe Judge Politz about 45 seconds anyway. So no damage done. [Laughter.]
The gentleman from California, Mr. Bono.
Mr. BONO. Thank you, Mr. Chairman.
Page 133 PREV PAGE TOP OF DOC Again, I want to say that my friend, I totally respect you for apologizing and I thank you.
And I understand your point of view. I mean, what is Sonny Bono doing on the Judiciary Committee, you know? You should have seen it the first day when I walked in there. I know they were saying, ''Please say he's delivering pizza.'' [Laughter.]
So that puts me in an interesting position. I don't have the knowledge that you all have, I have to just listen and gather data to the best of my ability, and then make an equation based on common sense and logic. I've done that all my life. I can't read or write music either, but I have 10 gold records. You find another way, if you're true inside in your heart. If you seek the truth inside, people will find a way. I think what disqualifies people is if they're biased or just work on a special-interest basis.
One of the things that I did when I came here was promise myself and my constituents that I would try to avoid that at all costs. The Judiciary Committee is the same. I just am looking for the common sense and the logic, and when you look at the Judiciary Committee and listen to what you're talking about, you're talking about justice being doled out to people, and that is an impossible task at best. I mean, it's just never going to happen on 100 percent basis.
However, I think that what we're seeking is getting as close to justice as we can without the special interest and without the bias and without the politics. I always try to avoid those.
Page 134 PREV PAGE TOP OF DOC I have a bill. The bill that I brought forward struck methere seemed to be a tremendous inequity. First of all, I don't understand how so much discussion can go on a subject where the very first word on the subject is ''illegal.'' Whenever we talk about ''illegal immigration,'' it baffles from a logical standpoint that the first word is ''illegal.'' It would appear to me that you would stop at that point, but we've gone on and on and on.
I seek a solution to what is the best way to do this. I think that what we all seek is accountability, and, obviously, the feeling is there is still not accountability from the judicial system. As hard as we try, I think we try to get closer and closer to that.
I just want to say that my efforts and the way I am functioning is just to try to get justice, and I think that justice requires, just like anything else, accountability. If there is no accountabilityand I know there are different bills that do these different things, but it appears to me on a general basis that we don't have an accountability system where a judge has to concern himself about a decision of whether that will pass the accountability test. I think that's a necessary commodity in the judicial system. Unless all of us have to respond to accountability, I think that we will start taking privileges that we don't have.
My point here, and what I'm trying to make as a point, is that we really aren't trying to make anybody less or harm anybody. We feel the public wants more accountability. People who respond to the public, that is what we're attempting. It most certainly is what I'm attempting. That's why I'm here. That's why I have this job, and that's what I will do as long as I'm here.
I apologize since I know it's not a question, but I did want to make that statement. Thank you, Mr. Chairman.
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Mr. COBLE. I thank the gentleman. And you weren't here earlier, Sonny, but that's pretty much what I meant when I said we're not here to dismantle the rule of law.
Before I recognize the gentleman from Massachusetts, Mr. Bono said that some folks were hoping he was here to deliver pizza. Now Bill and Ed won't remember this because they weren't here, but in the 104th Congress one night, John, you recall we were working late of a night, as my grandma used to say, and it was approaching the midnight hour, and all of a sudden there were a couple of dozen pizzas. The gentleman from California didn't deliver them, but he paid the delivery boy for having brought them there, and Democrats and Republicans, conservatives and liberals alike, were all fed pizza that night, thanks to the gentleman from Palm Springs, and that pizza, that pepperoni and hamburger, Sonny, tasted as good as a New York strip did that night.
Mr. BONO. Mr. Chairman, that wasn't benevolence; I was trying to get adjournment. [Laughter.]
Mr. COBLE. The gentleman from Massachusetts.
Mr. DELAHUNT. Yes, thank you, Mr. Chairman.
Let me just pause for one moment and reiterate the sentiments of the ranking member, Mr. Conyers, regarding Mr. Bono. I want him to know that everybody on this side of the panel enjoys his wit, respects his keen intellect, and I, for one, have benefited from serving with him.
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And I also would like to say that, in terms of sincerity, approach, commitment, and good motives, we are, indeed, fortunate on this subcommittee to have Mr. Coble as our chairman, and I would expand that to include, on the full committee, Mr. Hyde. Again, we are on different sides of the issues frequently, but again, I reiterate the sentiments expressed by Mr. Conyers, and I'm sure for all Democrats on this side of the panel.
Mr. CONYERS. Thank you, sir.
Mr. DELAHUNT. Of course, Mr. Conyers and those of us on this side are usually right[Laughter]or left, dependingI just want to ask a few questions and get a response. I notice that none of you referred to section 5, which would inhibit the ability of Federal courts to impose tax settlements on States and municipalities which are parties to litigation. I'd like to hear a quick comment.
I'd like to just pose my questions and then any of you who would like to respond, I would appreciate it.
Section 2 of the bill, the proposal by Mr. Bono, that would require a three-judge panel at the U.S. district court to hear any constitutional challenge to the validity of a State law adopted by referendum, in the memorandum from the chairman, he indicates that, ''The bill explicitly requires that decisions be rendered expeditiously.'' Well, if that is the problem, would the Judicial Council entertain a rule? Is there a rule that exists now that expedites the hearing in the circuit court of appeals, in these particular cases?
Page 137 PREV PAGE TOP OF DOC Let me go to section 3. I understand what the panel said regarding the enabling act. I concur with that belief.
On section 4, which is the section of the bill dealing with judicial misconduct, again, I have no questions on that. I appreciate the testimony. So I'll conclude with that as my questions to the panel.
Judge WILLIAMS. As to section 3, the Conference opposes this legislation because we think there are mechanisms already in place to deal with it. Let's just deal with the example that has been alluded to here in California. From the time that the
Mr. DELAHUNT. Section 2 is whatare you referring to section 2?
Judge WILLIAMS. Yes, the three-judge court provision. Within 4 1/2 months, the court of appeals ruled in that matter. The parties asked for an expedited review. That was done. We think that was done in a very efficient and fast manner.
But this legislation will not, I don't think, enhance that. It went up as quickly as it could. In addition, what this provides for is a bypass of the court of appeals going directly to the Supreme Court, which is very unusual and would be unprecedented. We think the mechanisms that are in place work, and it's not necessary. It would be a use of poor judicial resources, I think, to require
Page 138 PREV PAGE TOP OF DOC Mr. DELAHUNT. So, in your opinion, the problem that's expressed in the memorandum from the subcommittee Chairand it states again, and let me repeat it, ''The bill explicitly requires that decisions be rendered expeditiously.'' So adoption of this particular provision, in your collective opinion, would not in any way reduce the time in which the issue would be disposed of?
Judge WILLIAMS. I don't think it would. The court of appeals would address it. Obviously, if you go directly to the Supreme Court, the court of appeals is cut out of the process, but it is gettingI mean, putting a panel together, a three-judge panel, having that panel review it, then going right to the Supreme Court is not a good use of judicial resources, and I think we have a system in place that works.
Mr. DELAHUNT. Would you all concur with that?
Judge POLITZ. Yes, I would underscore that. Understand, Congressman, that when you do a three-judge
Mr. DELAHUNT. May I have a few more minutes, Mr. Chairman?
Judge POLITZ. When you do a three-judge courtand that kind of catches me in the middle because it goes right on by us; it doesn't go to the court of appeals. Three-judge court appeals, not writ of certiorari applications, go to the Supreme Court, and it's not going to be done in 4 1/2 months, like this was done in California. We know that. The nature of the beast says you're going to expand the time.
Page 139 PREV PAGE TOP OF DOC Mr. DELAHUNT. You're going to expand the time? So, in other words, the problem would be exacerbated if this particular section of the bill were enacted?
Mr. LACEY. I'd like to repeat, just in responding further to your question, I guess the theory is that three judges are more likely to be right than one judge, and if that's the theory, it ''ain't'' necessarily so. It may cosmetically perhaps look better, and it spreads the responsibility a little bit, but when you're talking about accountability, what more accountability can you have than to have the headlights flashing on one judge? That's accountability. You feel a lot of pressure, and I've been there in cases that draw a certain amount of publicity.
Judge POLITZ. Mr. Chairman, may I add a few words to this?
Mr. COBLE. Sure.
Judge POLITZ. I can understand wanting to give a three-judge court because it seems to give more importance to the call, and that's certainly so when you have to tag two more judges, and three judges sit there as a trial judge. But think about it. That which is passed by a plebiscite is very important. And there were over 4 million people who voted for this particular one that is the subject of our discussion, and that's a matter that we should give great weight to, but I don't know of any matter we should give any greater weight to in terms of legislation than that which is done by this Congressthis Congress exercising what it perceives to be its authority, responsibility, and duties. And if you pass legislation, we'll review that single judge, and we'll say it's unconstitutional, and it will go up the line through the court of appeals to the Supreme Court. This Congress' actions is reviewed by one judge; why should a plebiscite be given any greater consideration?
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Mr. BURBANK. May I just say that, as pointed out in my written statement, I believe that reasonable people can disagree on this provision, and that before proceeding with it, the Congress would be well-advised to review the history of three-judge courts, which was a pretty sad history; ask itself whether the few exceptional cases in which three-judge courts with direct appeal to the Supreme Court are required today present the sort of concerns comparable to that thought to be presented by the problem to which this provision is addressed, and ask themselves, finally, whether articulable standards can be forged that would prevent, if this were enacted, a recreation of the system that led Congress to accede to the judiciary's request almost completely to abolish three-judge courts in 1976.
I think, however, that if you talk about the sort of issue that is likely to inflame the populace, and, therefore, due disservice to the Federal judiciary, it's harder to imagine a legal issue that is more likely to do that than this. And from that perspective, it seems to me, the bill could be regarded, the provision could be regarded, as protection to the Federal courts rather than an attack on them.
Mr. DELAHUNT. Mr. Chair, if I may indulge in 2 more minutes, I
Mr. COBLE. The gentleman is recognized for 2 additional minutes.
Mr. DELAHUNT. Yes, again, I wonder if any of you would feel free to comment on what, in my opinion, is the most significant of these sections, which is section 5, inhibiting the ability of the Federal courts to fashion a remedy which would imposewhich would raise levies on political subdivisions.
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Judge POLITZ. I heard something this morning which was very welcome to my ears. In the written submission that we gave you, the Conference's concerns about the bill as we had it before us are detailed, but Mr. Manzullo said that his bill had addressed most, if not all, of those, and I'd be anxious to see if, indeed, the Conference's concerns, which are serious concerns, have, indeed, been dealt with, and I couldn't go beyond that.
Mr. DELAHUNT. Judge Lacey or Judge Williams.
Judge WILLIAMS. The Conference is interested in that revision and, as noted, recognizes that this is a problem and wants to come up with legislationwants to thoroughly discuss this matter and make sure whatever legislation, if any, is passed is clear and precise. A lot of the terminology, as we stated in our position, is very vague and there could be much mischief created if it was passed in its current form.
Mr. DELAHUNT. Thank you, Mr. Chairman.
Mr. COBLE. Thank you.
Mr. Berman, would you indulge me for about 60 seconds before I recognize you?
Mr. BERMAN. I would indulge you for even longer.
Mr. COBLE. Thank you, sir. And the reason I want to do this, it's going to tie-on to what Mr. Delahunt was talking about, the same subject matter. Judge Lacey, you've already said you have no quarrel. Just for my information, I'd like to know from the other three panel members, Do you all support the three-judge panel which currently applies to apportionment and the Voting Rights Act? Do you all approve of that procedure?
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Judge POLITZ. It takes us out of the loop, and I don't want to speak against my intermediate appellate brethren. [Laughter.]
Mr. COBLE. I'm not sure I
Judge POLITZ. Although, Mr. Chairman, I have to appoint the committees, I really don't think they're necessary. I really don't think three judges need to sit up there and take a record and then send it to the Supreme Court. One can do it.
Mr. COBLE. Professor. Professor or Judge Williams.
Judge WILLIAMS. I agree with Judge Politz; I don't think it's necessary. I think that we can rely, and we rely, on a single district judge to decide critical issues of the day, and certainly the issue of reapportionment is a critical issue, but there are other issues that are even more critical that single judges decide, and I don't think it's necessary.
Mr. COBLE. Professor Burbank. I'm just asking for my information.
Mr. BURBANK. No, no, I think I agree with the judges, with the exception that, particularly in this climate, which was so well described by Representative Conyers, I think that the judiciary, as well as the Congress, need to be concerned about the public perception of the judiciary. And if, without great costs, one could deal with a serious problem of public perception in this manner, it wouldn't bother me in the slightest, and I don't think it should bother the judges. But I can't disagree with what was just said.
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Mr. COBLE. Judge Lacey, you still have no quarrel, I guess?
Mr. LACEY. I gave my views. I wasn't really seriously concerned with that issue. I gave my views when we were talking about the three-judge court
Mr. COBLE. Yes, sir.
Mr. LACEY [continuing]. Personal experience. The three judges were wrong, as I demonstrated, in the Supreme Court. So if this is on the theory that three judges are more likely to be right than one, then that is not ample reason to do this.
Mr. COBLE. Would you all recommend that we repeal the present three-judge procedure as to these two areas? Would you go that far, Judge?
Judge POLITZ. I would, sir.
Judge WILLIAMS. I would, too.
Mr. COBLE. Professor.
Mr. BONO. Mr. Chairman.
Mr. BURBANK. I'm not sure.
Page 144 PREV PAGE TOP OF DOC Mr. BONO. This has come up a few times. May I just make one
Mr. COBLE. Yes, go ahead.
Mr. BONO. The idea is not that three judges will give a better answer. I think the idea is that it would kind of enforce more of a fairness on referendums than having one judge that might be totally bias on an issue, which has occurred in our State. The point is not strictly that three judges will give the perfect answer where one judge can't. That wasn't the idea.
Mr. FRANK. Could I have 30 seconds?
Mr. COBLE. Sure, 30 seconds.
Mr. FRANK. Two points: first, I understand your point, Professor Burbank, but it's been my experience that the side that loses is no more mollified if they lost to three judges than if they lost to one. I don't think that that meets it. And as to the abstraction of whether it's three judges or one judge, I don't think most of the public will understand.
But the second question I haveand maybe people can address it lateris: the three-judge court, as I understand it, would be a districtwould be performing the district court judge function. Would all three judges on the three-judge court be subjected to the preemptory challenge rule? Would we have a nine-judge[laughter]I mean, as you read the statute, I'd be interested, but I would assume, since they're then being a district court, that each of the three judges on the three-judge panel would be subjected to preemptory judges, and unless you had at least a nine-judge district panel, you'd have a very hard time filling the requirements. [Laughter.]
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Mr. COBLE. Howard, the 60 seconds I borrowed from you is the longest minute on record. I now recognize the gentleman from California for 5 minutes.
Mr. BERMAN. Thank you very much, Mr. Chairman.
It was never my understanding that the three-judge court created by Congressman Bono's bill, and now section 2 in this legislation, was three district judges. I assumed it was the traditional two district judges, one appellate judge. Let me focus on that provision for a second to ask you just a couple of questions.
First, as I look at that provision, section 2, it deals with voter-approved referenda or initiatives at the local, as well as the State, level. It makes reference to ordinances, and so my assumption is that a voter-approved ordinance put on a city council that down-zoned a certain parcel of property would be covered by this. Is that a correct assumption?
Mr. BURBANK. Would that be done by referendum?
Mr. BERMAN. Voted on by the people. I'm not sure what the''popular vote of a measure passed upon or proposed by a legislative body or by popular initiative.'' Yes, it would be done by a vote of the people. In some it isn't, but in some cases it could be. Would this cover a local ordinance as well as a statewide initiative or referenda, in your opinion?
Page 146 PREV PAGE TOP OF DOC Judge POLITZ. As presently worded.
Mr. BERMAN. As presently worded. That's my conclusion. If no one
Mr. BURBANK. But would it? I mean, none of us drafted this. So I think it's probably better to ask whoever did, but
Mr. BERMAN. Except I thought judges don't get to do that.
Mr. BURBANK. ''Other measure of a State'' suggests to me that it would be a statewide provision.
Mr. BERMAN. Well, my understanding usually of the term ''State'' is frequently it's State or subdivisions thereof.
Mr. BURBANK. It's obviously something that needs to be clarified.
Mr. BERMAN. And the term ''ordinance'' is clearly a reference to a local statutory measure.
But the next question is, How do you think this would work, if it became law, where someone sues in Federal court with 10 or 12 different counts and causes of action, one of which is seeking a permanent injunction based on constitutional grounds? By the way, would a suit based on preemption be considered a constitutional ground, if for example it was a State-enacted initiative that sought to change copyright law as it applied in California, but we know the U.S. Constitution gives that power to the Congress? Is a suit that challenges a State or local law based on preemption a challenge on constitutional grounds? That's subquestion No. 1.
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Question No. 2: you now have to convene this three-judge panel to hear the entire case, 10 causes of action, where no preliminary injunction is being asked for. It's just they're seeking different kinds of relief, one of which is a permanent injunction. There will be substantial issues of fact. There will be an evidentiary trial of considerable length. Is it your reading that section 2, as presently written, would require that the three-judge panel be empaneled to consider the entire case or do you in some fashion envision separating out and having a totally separate trial on that part that raises the constitutional challenge?
Am I clear on this?
Judge POLITZ. Quite clear. Our experience has been occasionally a three-judge court will have another issue besides a three-judge court issue, one or more issues, and we'll single-judge that out. The judge to whom the case originally camewe call him the referring judge in my circuitwill handle those single-judge issues.
Now you raised an interesting question that I'm not aware of the answer to10 issues, one of which is a three-judge court; can we severe it out? And I would be disposed, if I had the power as Chief Judge, because judicial time is the greatest resource we have, and the thing we have the least of, enough judge hours to do all of the workI would not want three judges sitting there listening to a one-judge problem.
Mr. LACEY. If I might add, as a district judge who never sat on the court of appeals except maybe once a year by designation, I would love to be sitting with a court of appeals judge when he was at the trial level.
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Judge POLITZ. They usually preside, you know. [Laughter.]
Mr. BERMAN. Anybody else?
Judge WILLIAMS. My only comment is the statute, as it's drafted, is very vague. So the question that you pose is a good one because it's not clear; it's not addressed here in the legislation. So it would have to be addressed the way it's historically addressed, but multiple countsand I agree with Judge Politz that it would be very difficult to have all those counts before the panel and just a tremendous waste of judicial resources.
Mr. BERMAN. And if the panel chose to sever it, then there might have to be two separate trials about the same case, one simply dealing with the injunction request and the other ones with the other causes of action involving in many cases the same parties, the same witnesses, the same evidentiary matters?
Judge WILLIAMS. Yes.
Mr. BERMAN. What about the other part of the question, though? Is a challenge on Federal preemption a challenge on constitutional grounds, where the Constitution is the basis for assuming there is preemption?
Mr. BURBANK. I would not have thought so myself. I mean, it is because of the Constitutionnamely, article VI of the Constitutionthat State law must yield to Federal law with which it is in conflict, but I do not believe for a number of other purposes that that turns every preemption question into a Federal question. Presumably, it's something that would be subject to interpretation unless it were clarified in the legislation itself, and in doing so, I imagine that the courts would look to analogous questions, like the one that I just referred to.
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Mr. BERMAN. Mr. Chairman, my time is up.
Mr. COBLE. Thank you, Mr. Berman.
Lady and gentlemen, thank you all for being with us. We appreciate that.
Mr. DELAHUNT. Mr. Chairman.
Mr. COBLE. Yes?
Mr. DELAHUNT. One final question: Judge Lacey, you alluded earlier to a Commission reportcould you expand on thatthat has been referredat least it was my understanding it's been referred to Congress, and there's been no response
Mr. LACEY. I don't think it was I. I think it may have been
Mr. DELAHUNT. I apologize. Professor Burbank.
Mr. BURBANK. This is the report of the National Commission on Judicial Discipline and Removal, which was established by statute in 1990 by Congress, three members being appointed by the Speaker, the normal Commission
Page 150 PREV PAGE TOP OF DOC Mr. DELAHUNT. Right.
Mr. BURBANK. The Commission worked long and hard; indeed, was extended by Congress, and it submitted its report in August 1993. That report contains recommendations to each of the three branches of government on ways in which the current system for disciplining Federal judges, including the impeachment system, could be improved.
My point was that in my experience the Judicial Conference has taken the recommendations of the National Commission extremely seriously, and has done a lot in response to those recommendations. To my knowledge, the Congress has done absolutely nothing, which suggests that the work of the National Commission, from that perspective, which of course is funded by taxpayers
Mr. DELAHUNT. Well, I think it's important, and I would hope that the Chair of the full committee and Chairman Coble would acceptwould have staff review this report. We're having an oversight hearing tomorrow; there has been much discussion, as everyone on this subcommittee knows, about impeachment and judicial discipline, and yet Congress, it would appear, has failed to react or to have a hearing such as this dealing with this particular reportis that a fair statement?
Mr. BURBANK. That is a fair statement.
Mr. DELAHUNT. Well, then, shame on Congress.
Mr. COBLE. Again, lady and gentlemen, thank you all for being with us.
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As the second panel comes forward, Dan, let me think aloud to the members of the subcommittee. I think we can be through here in about hour and a half. Does it suit you all to go ahead and work through lunch? I think that might be our best bet, if there's no objection.
Mr. FRANK. I think in consideration of the witnesses who have been here, we ought to work through it, Mr. Chairman
Mr. COBLE. I concur.
Mr. FRANK [continuing]. Especially since you're the one who has to stay.
Mr. COBLE. So let's do that. Let's go ahead and move full ahead here.
Mr. CONYERS. Mr. Chairman.
Mr. COBLE. Yes, sir?
Mr. CONYERS. Is this panel entitled constitutionally to lunch?
Mr. COBLE. I hope so at some point.
Mr. CONYERS. That's a typical judicial response. [Laughter.]
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Mr. COBLE. Dan, good to see you. I understand Mr. Conyers formally recognized you in my absence, and I thank you, John, for doing that. It's good to have you back with us.
Mr. LUNGREN. Thank you.
Mr. COBLE. The second panel, folks, I will begin reading as they prepare. Dan Lungren is known to all of us. He served as a distinguished member of this committee, was elected as California's attorney general in 1990. He's a native of Long Island, was graduated with honors from Notre Dame University in 1968 and received his law degree from Georgetown in 1971; worked with Senators Bill Brock of Tennessee and George Murphy of California. Prior to his election as attorney general, he was a partner with the Sacramento law firmand I cannot pronounce itDiepenbrockDanny, is that right?
Mr. LUNGREN. Diepenbrock.
Mr. COBLE. Diepenbrock, Wulff, Plant & Hannegan.
It's good to have you back, Dan.
Mr. LUNGREN. Thank you, Mr. Chairman.
Mr. COBLE. Senator Mountjoy sits to the attorney general's right, and he was elected to the California General Assembly in 1978, where he served until January 1995. He was elected simultaneously to the assembly and also to the California Senate in a special election in November 1994. Senator Mountjoy is a member of the California Senate Appropriations Committee, Energy, Utilities, and Communications Committee, and Industrial Relations Committee, of which he is vice chair.
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Now, Senator, you were elected simultaneously to two offices. For which one did you opt?
Mr. MOUNTJOY. Well, I originally opted to stay in the assembly. That was an attempt to get a Republican speaker, and then
Mr. COBLE. That's quite an honor for you as an elected
Mr. CONYERS. Did it fail?
Mr. MOUNTJOY. What's that?
Mr. CONYERS. Did it fail?
Mr. MOUNTJOY. Well, it failed originally
Mr. CONYERS. You've answered it.
Mr. MOUNTJOY [continuing]. But we
Mr. CONYERS. I know what the answer is. [Laughter.]
Mr. MOUNTJOY. It failed originally, but we finally achieved our goal later on.
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Mr. COBLE. Well, it's good to have both of you with us, and, Dan, especially good to have you back.
Gentlemen, we don't impose this painfully, but if you can keep your eye on the red light, the red light will let you know when your 5 minutes have expired, and we try to work as closely to the red light ruleDanny, you remember when you were hereas we can, because we are on a short leash.
I'm pleased to recognize the distinguished attorney general from California.
STATEMENT OF HON. DAN LUNGREN, ATTORNEY GENERAL, STATE OF CALIFORNIA
Mr. LUNGREN. Thank you very much, Mr. Chairman. I have submitted to the committee a full statement. As I understand it, the text of that statement is made a part of the record, but I will try and summarize.
I would, first of all, like to thank you and the subcommittee for holding the hearing on judicial reform. It's interesting, during the years I was in the Congress and thereafter, whenever we've talked about issues such as this, there does seem to be a sensitivity among the judicial branch, and if they're sensitive about a question of a simple preemptory challenge, Lord knows what it would be like when you have hearings the next day on other matters. This is about as inoffensive and unobtrusive a suggestion of trying to promote accountability as anything that I can consider. And yet we hear that it will emasculate the Federal bench; it will show them disrespect, and so forth. And, frankly, I think that we all ought to be able to understand that this is a reasonable approach, I would hope.
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Our State and I think 16 other States follow it. And rather than this being an ideological agenda, I recall when I served in the Congress, cosponsors of my bill for preemptory challenge were Ron Mazzoli, and Bill Richardson from New Mexico. The leading lights in the U.S. Senate promoting it were Birch Bayh and Fritz Hollings, and I don't think it's ideological. I think, rather, it is an attempt, a sincere attempt, to deal with a particular concern.
Our courts, it seems to me, must operate in concert with our values as a free society. I don't believe that our Framers adopted Plato's model of philosopher kings for the judiciary. In fact, prior to the creation of the Federal courts, Alexander Hamilton envisioned in Federalist Paper No. 78 that, ''The judiciary is beyond comparison the weakest of the three departments of power.'' Initially, that was thought to be the case. He went on to say, however, that if the judiciary joined in union with either of the other elements of the Federal branch, they would become a concernin fact, a danger to our freedoms.
In assessing the role of the Federal judiciary today vis-a-vis the power of the democratically-elected branches of government, we ought to understand the judiciary is specifically nondemocratic. It is part of our system, but it is the nondemocratic part of our systemfor a particular reason, but there ought to be a real concern over accountability.
We confront a question today which goes to the heart of how we should govern ourselves. At the same time, it ought to be emphasized, as I said, that this is more profound than ideological complexion of the Federal judiciary. Rather, the subcommittee must confront the more fundamental issue of judicial accountability and the rules affecting those who mete out justice. And while much is at stake for the potential litigants in the courtroom, as much, if not more, is at stake with respect to the public at large and the perception of the peoples of this country.
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It was mentioned that perhaps it's because of the perception. Well, don't we always talk about the perception of justice as well as the doing of justice? And if, in fact, we can bring about some reforms which assist in increasing the perception of justice and fairness, then that is a worthy goal.
The existing statutory mechanism for judicial disqualification I believe have proven inadequate to the task of assuring those who practice before the Federal courts of a fair and impartial forum. The point is that those who judge must not themselves be insulated from judgment concerning their own capacity for fairness. Such a predicament undermines the confidence of the parties before them, as well as the stature of the judiciary in the estimation of the public.
I haven't heard anybody talk about what the problem is. Let me give you a specific example which confronted me. We had a law passed in the State of CaliforniaI thought a very reasonable law. It dealt with the question of adult content newspapers being available to youngsters. They were available on the streets to be purchased at news racks. Any simple review of what was happening saw that youngsters were purchasing them, as well as adults. So the legislature decided, how do we deal with this without offending the constitution? They came up with this idea: that, in fact, there should be an adult there at those newsracks, that is, placed in a situation where an adult was; for instance, at an adult bookstore or something of that nature. Or, if, in fact, they were on the street, they ought to be accessed by tokens which could be purchased by people who represented themselves to be over 18 or older from a vendor. It seems to me a reasonable approach to deal with the problem.
Page 157 PREV PAGE TOP OF DOC Well, we went into Federal court because the purveyors of this stuff decided that this was unconstitutional, and of course it went before a Federal judge, who immediately issued an injunction against enforcement of this law for those who were the defendants in the action, which were several DA's and several sheriffs in certain areas of the State of California.
The Federal judge wanted to extend the injunction beyond those jurisdictionsin other words, to jurisdictions that were not before him at the time. So he said, because I was a defendant in the matter, because the California Constitution says I have supervisory responsibility over DA's and sheriffs, I could independently then declare, order, the other DA's and sheriffs in the entire State of California who were not under his jurisdiction not to enforce this lawin other words, to reach beyond his jurisdiction to cover those who were not covered.
And so I looked to the California Constitution to see if I had that authority, and in the only authority that we had in a California court, an appellate court decision said I don't have that authority; I have the authority to overrule sheriffs and DA's if they don't enforce the law, but I can't tell them not to enforce the law. He ordered me to do that.
I sent an order out to other DA's and sheriffs informing them of his intent to hold them, but not saying that I ordered them. He called me before his court. I sent another attorney to the proceeding. He said he would hold me in contempt of court if I didn't do that. We then tried to further go out and instruct others what to do, but I couldn't violate my oath of office as to what I thought were the strictures of my office. So I went to the Court to appear directly.
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I was the sixth person on that calendar. That judge exploded in five of the six cases at litigants. I appeared before him, I said, ''Your Honor, the Brophy case,'' which was the controlling case in California, ''suggests''I couldn't get those words out before he started yelling at me. He said, ''I don't care about the Brophy case. I can read the constitution.'' Now we're talking about the California Constitution, not the U.S. Constitution.
A Federal judge was saying he didn't have to be in any way limited by an interpretation of a State court constitution by a State appellate court because he could read the constitution. He then said, ''You're being ordered by a judge of this court now. That's all the authority you need. You do it or you go to jail, and you can test your authority before the ninth circuit, OK, but you'll go to jail first.'' He said, ''You do it by the 20th. By the 20th, you're to instruct the sheriffs and the district attorneys they're to obey the court's law. You're to direct them to obey the court's order. OK?''
So I said to him, ''Your Honor, is that in the form of an appealable order?'' In other words, would he make it in the form of an appealable order, so that I could appeal before I had to go to jail to appeal?
Here's his response: ''I don't care what it is, but you're to do it by the 20th or you're going to go to jail.'' Then he said, ''I'm not going to let you appeal it now because it doesn't become effective until the 20th, and you can't do it until you go to jail. You can't appeal it.'' And he said, ''You go to jail, and then you can appeal it.''
Page 159 PREV PAGE TOP OF DOC And this is a Federal district court judge talking to the representative of the people of California telling me he doesn't care what a State court appellate court says about the interpretation of our constitution, ordering me to do something which under the interpretation of our courts was not within my authority.
And I heard this panel before saying they take care of matters like this? I issued the order, and I explained I didn't believe in it, but I issued the order because I decided that among the things I wanted to go to jail for, that was not one of them.
Then we went up on a writ to the ninth circuit to ask them to review this. They wouldn't even review it. It's not important enough for the Federal courts to decide whether or not this was beyond what a Federal judge ought to do. Besides, all it dealt with was the comity of the system; all it dealt with was the sovereignty of the State; all it dealt with was us interpreting our own constitution, which had no constitutional implications under the U.S. Constitution.
He then sanctioned me $32,000 for daring to go up to the ninth circuit. Ultimately, this judge ruled in our favor. Ultimately, the ninth circuit upheld him, and the supreme court has denied cert. So we may finally be able to have our law go into effect. That law has not gone into effect for 3 years.
You see, people who are charged with crimes are treated in some ways better than States, because if you're charged with a crime, you're assumed innocent until proven guilty. In case after case after case I can give you, the State of California has been assumed guilty; the State of California has been assumed that it is involved in unconstitutional action from the get-go. They order a stay or an injunction against the enforcement of our law pending the resolution of the matter, and I hear from a panel that we don't need to have some concern about that?
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And I know I have gone over my time. I have a tape here that I hope I'll be able to play later, which is to show you what my deputy attorney general have to deal with in Federal courtsometimes on a daily basisa judge screaming at my DAG, my deputy attorney general, from the moment she walks in the courtroom to the moment he walks off the bench, and we can't get any kind of action on that, and this idea about recusalyou have to go ask the Federal judge, ''Would you recuse yourself, please?'' And they say, ''No, I'm not biased.''
And we're told here that the system that works now is appropriate? The problem is very few Federal judgesvery fewmost attorneys don't go into court. Most attorneys that go into court don't go into Federal court. Most attorneys that go into Federal court don't deal with constitutional issues. They don't realize the problem. My attorneys deal with constitutional issues on a daily basis. I'm here to tell you we need some changes. Preemptory challenge is one of them. Three-judge panel is the other.
And I'd be happy to answer any questions.
[The prepared statement of Mr. Lungren follows:]
PREPARED STATEMENT OF DANIEL E. LUNGREN, ATTORNEY GENERAL, STATE OF CALIFORNIA
Mr. Chairman, I would first of all like to thank you and the subcommittee for holding this hearing on judicial reform. No institution of government should be beyond scrutiny and your consideration of measures to enhance the operation of the federal judiciary is both appropriate and welcome.
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Our courts must operate in concert with our values as a free society. The Framers did not adopt Plato's model of philosopher kings for the judiciary. In fact prior to the creation of the federal courts, Alexander Hamilton envisioned in Federalist 78 that ''the judiciary is beyond comparison the weakest of the three departments of power.''
In assessing the role of the federal judiciary today vis a vis the power of the democratically elected branches of both federal and state governments, we confront a question which goes to the heart of how we will govern ourselves. At the same time it should be emphasized that this issue is more profound than the ideological complexion of the federal judiciary. This subcommittee must confront the more fundamental issue of judicial accountability and the rules affecting those who mete out justice. While much is at stake for potential litigants who may enter the doors of a federal courthouse, we must also consider the larger impact on the perceptions of the American people concerning the fairness and credibility of the judicial system itself.
A central aspect of the need for greater accountability of those who sit on the federal bench concerns the rules relating to judicial disqualification. At common law, Sir Edward Coke once observed that ''no man shall be a judge in his own case.''(see footnote 2) Since that time a body of law has evolved to govern the procedures by which judges are to be disqualified from hearing cases where they have an interest or bias.
On its face 28 U.S.C. 455(a) requires that a judge remove himself or herself from ''any proceeding in which his impartiality might reasonably be questioned.'' Despite revisions to the law in 1974 where a supposedly ''objective standard'' was adopted, judicial decisions have greatly narrowed the scope of the statute.(see footnote 3) Ironically, the challenged judge is the one who hears the motion seeking his or her own disqualification.(see footnote 4) The federal judiciary is thus insulated from the wisdom of the Coke maxim.(see footnote 5) Needless, to say 455(a) has not been an effective vehicle for the removal of judges where reasonable questions about impartiality and fairness have been at issue.
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Another existing statutory provision available to parties before the court is 28 U.S.C. 144 which requires recusal where a district court judge has a personal bias or prejudice for or against a party in a proceeding. It is important to note in the context of the legislation before this subcommittee there is much support for the proposition that Congress intended 144 to provide for the automatic disqualification of a judge upon the filing of an affidavit of prejudice. During the House debates on the legislation in 1911, the sponsor of the bill, Congressman Cullop was asked by Congressman Cox whether the trial judge had any discretion once the affidavit was filed:
Mr. Cullop: ... No, it [the bill] provides that the judge shall proceed no further in the case.'' The filing of the affidavit deprives him of jurisdiction in the case.
Mr. Cox: ... Suppose the affidavit sets out certain reasons which may exist in the mind of the party making the affidavit; suppose the judge to whom the affidavit is submitted says that it is not a statutory reason?
In other words, does it not leave it to the discretion of the judge?
Mr. Cullop: No; it expressly provides that the judge shall proceed no further.(see footnote 6)
Unfortunately, in the decades following its passage, 144 has been so narrowly construed by the federal courts that it would be entirely unrecognizable by its author were he alive today. Suffice it to say that the ability of the judiciary to determine the sufficiency of the affidavit accompanying the motion under 144 has rendered the statute a hollow and meaningless tool as a means of preventing judicial bias.(see footnote 7)
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Another possible vehicle for addressing malfeasance by federal judges can be found in 28 U.S.C. 372. This provision of law was enacted during my first term in the Congress and was intended to provide a mechanism for handling complaints against federal judges. Aside from the questions surrounding the effectiveness of the statute itself, the opportunity to write a letter to the Chief Judge of the circuit after the fact, is little consolation to a litigant who has appeared before a judge perceived to be biased against his or her case. As Russell Iungrich noted at the time of its enactment it ''may be helpful as therapy ... [but] does little to create the appearance of fairness within the federal judicial system.''(see footnote 8) In this regard I would note that Sec. 4 of H.R. 1252 contains language which would refer proceedings under 372(c) of title 28 to another judicial circuit. This effort to effect a more neutral assessment of a complaint filed under this section of the code is a commendable one. However, even with such changes, my concern remains the same as it did in 1980 when this section was crafted. It was my feeling then, and it remains so today that post-facto relief is not directly relevant to the litigant at trial. Thus, despite any salutary effects from proposed Sec. 4 of H.R. 1242, the underlying statute nonetheless remains an inadequate remedy.
Finally, the most obvious disciplinary mechanism to hold judges accountable found in Art. I Sec. 2 of the U.S. Constitution is the power of this Body to impose the sanction of impeachment. In fact this cumbersome process would be entirely ineffective to address problems of judicial bias and temperament with respect to cases which come before a federal court.
The existing statutory mechanisms for judicial disqualification have proven inadequate to the task of assuring those who practice before the federal courts of a fair and impartial forum. As the Chicago Bar Association has noted, the present-day judicial disqualification laws are inadequate and federal district court judges are often unable or unwilling to recognize their partiality.(see footnote 9) The point is that those who judgehuman beings like the rest of us and thus vulnerable to human failingsmust not themselves be insulated from judgment concerning their own capacity for fairness. Such a predicament undermines the confidence of the parties before them as well as the stature of the judiciary in the estimation of the public.(see footnote 10) It is time to bring the rules governing our nation's courts into greater conformity with our values as a free society.
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Fortunately, the problems inherent with the existing statutory scheme and related exegesis by the federal courts themselves, point us towards a possible solution to the present conundrum. The task before this subcommittee is to develop a mechanism which provides greater accountability and is not based solely upon notions of self-policing.
We need look no further than the states themselves in searching for a solution. As many as seventeen states currently provide for peremptory challenges of state court trial judges.(see footnote 11) Hardly a recent legal innovation, some jurisdictions had peremptory challenge statutes as early as the late nineteenth century.(see footnote 12)
In general, the definition of a ''peremptory'' challenge is one ''not requiring any cause to be shown.''(see footnote 13) An analogy is sometimes drawn between this procedure and that followed with respect to the peremptory challenge of jurors. Some of the states which allow peremptory challenges do so by statute, others by court rules and some by both. Overall, it appears that peremptory challenges are used infrequently in the states that have them. Although there is some variation among jurisdictions, the available data seems to suggest that peremptories are exercised less than two percent of the time where there is an opportunity to do so.(see footnote 14) Let me say that in light of the long experience in California with peremptory challenges it is the opportunity itself to offer such a challenge which is perhaps most significant in its effect on judicial conduct. While seldom used, its availability has had a highly salutary impact on the administration of justice in my state.
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On balance this is entirely consistent with the evidence in other peremptory challenge jurisdictions as well. As a 1986 examination of peremptory challenges in the states conducted by the U.S. Department of Justice, Office of Legal Policy concluded ''... the authors of most of the scholarly studies on peremptory challenges also conclude that they are working relatively well in the states as have the authors of this study.''(see footnote 15)
LEGISLATION TO EXTEND PEREMPTORY CHALLENGES TO THE FEDERAL LEVEL
As a member of Congress concern over the need for greater accountability of the judiciary and the importance of impartiality in the courtroom led me to introduce legislation providing for peremptory challenges in the context of the federal judiciary in the 97th, 98th, and 99th Congresses.(see footnote 16) The underlying proposal contained within these bills allowed challenges to be exercised in both criminal and civil cases. All parties on one side had to agree to the challenge and the chief judge of the court of appeals for the circuit was to resolve any disagreement. One challenge on each side was allowed.(see footnote 17)
In this regard, I am most pleased that Congressman Charles Canady has introduced H.R. 520, The Peremptory Challenge Act of 1997. This proposal covers both criminal and civil cases. Each side in a case would be limited to one challenge. Generally it provides that a peremptory challenge must be filed within 20 days after notice of the assignment of the case. Additionally, a joined party or a party served with a supplemental, amended, or third party complaint would have 20 days from the service of the complaint to file an application for a peremptory challenge, but only with the concurrence of all the other parties on the same side.
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It is my view that H.R. 520 would directly address the need for greater accountability within the judiciary and concomitantly assure greater fairness and impartiality within our nation's federal courts. I strongly support Congressman Canady's proposal and feel that it is an absolutely essential element of meaningful judicial reform legislation.
Section 6 of H.R. 1252, The Judicial Reform Act of 1997 also contains language which would provide for the reassignment of federal judges and magistrates. Its inclusion represents a recognition of the importance of the need for greater accountability of the judiciary. However, it is with much regret that I must add that the absence of criminal cases within the scope of 6 is a serious omission in the legislation which should be remedied. There is absolutely no reason whatsoever that those who appear before our nation's federal courts in criminal cases should not have the same opportunity for fair and impartial hearings as those on the civil side of the docket. It is seemingly incongruous to recognize the interests of private litigants while not acknowledging the enormous concerns of the state, criminal defendants, and society with respect to criminal cases. This is one issue where both prosecutors and the defense bar should be able to agree. Impartiality must be a primary, underlying objective of adjudication. In this regard, the only national survey that I am aware of concerning the operation of peremptory challenges within the states concluded that:
... Prosecuting attorneys and public defenders were overwhelmingly in favor of the system. Nearly all of the respondents reported that peremptory challenges are working well in their states.(see footnote 18)
It is also important to understand that the failure to include criminal cases in judicial reform legislation is likely to entail unintended consequences. Although habeas corpus cases are generally purported to be civil in nature, the exceptions essentially swallow the rule. In fact habeas cases are hybrid in nature, involving both aspects of criminal and civil cases. As American Jurisprudence 2d points out:
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It is the prevailing view that habeas corpus is, in nature, civil rather than a criminal proceeding.... However, in some cases, for certain purposes at least, habeas corpus proceedings are looked upon as criminal in nature.(see footnote 19)
Experience in the various judicial circuits confirms this assertion. The U.S. Supreme Court itself has acknowledged that:
It is of course true that habeas corpus proceedings are characterized as ''civil.'' But the label is gross and inexact. Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense.(see footnote 20)
Thus, the effect of only allowing peremptory challenges in civil cases could lead to a potentially huge gap in its coverage affecting the states. Based on our experience with the recently enacted habeas statute, the federal courts will not allow it to be used unless they are expressly required to do so. The only way of accomplishing this objective is to cover both civil and criminal cases.
Finally, the formulation of legislation should not be dominated by consideration of the positive or negative impact that it may or may not have on the federal judiciary. The needs of those who choose public service should not alone dictate the rules of any public institution. Rather, the public interest in fair and impartial deliberations must be the controlling consideration. Perhaps the 1976 ABA standards Relating to Trial Courts summarized the rationale best:
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... Although a party is not entitled to have his case heard by a judge of his selection, he should not be compelled to accept a judge in whose fairness or understanding he lacks confidence if that can be avoided without interfering with administration of the court's work.
... [T]he procedure for peremptory challenge of a judge ... can provide an additional measure of assurance to the parties that their case will be justly determined. Experience in jurisdictions having the peremptory challenge procedure indicates that, when subject to proper controls and limitations it can provide this assurance without burdensome additional cost or complications in trial court administration.
This analysis remains sound in its logic. No party should have to accept the prospect of facing a judge who is unable to provide a fair and impartial forum. At the same time a party should not necessarily be entitled to the judge of his or her choice. A peremptory challenge as allowed under H.R. 520 is not a guarantee that you will obtain the judge you want. It would merely provide an available tool to assure the parties and the public that our nation's courthouses will provide a fair and impartial forum. Although experience indicates that it would be seldom used, its mere availability would have a salutary effect on the conduct of the federal judiciary.
THREE JUDGE COURT FOR CERTAIN INJUNCTIONS
Another significant aspect of judicial impartiality concerns the need for a legal framework which will enhance the rule of law in our society and concomitantly limit the partiality of individual federal judges. This is of particular importance where the issues at stake concern the state and federal relationship. As the U.S. Supreme Court recently observed in another context:
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In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary? When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of that core question.(see footnote 21)
The inherent threat to the balance of federalism posed by federal judicial intervention in the execution of state laws, has been recognized since the beginning of our nation. As early as 1793, Congress provided that no federal injunctions should be granted to stay state court proceedings. Although statutory exceptions have been engrafted on this provision, it is still the general policy of Congress, based on wise principles of federalism, that state courts shall remain free from interference by federal courts.(see footnote 22)
The fundamental principle of the Eleventh Amendment to the Constitution is that state sovereign immunity limits the grant of jurisdiction to federal courts. The States occupy a special and specific position in our constitutional system. As Justice Powell stated in his dissenting opinion in Garcia v. San Antonio Metropolitan Transit Authority,(see footnote 23) ''The constitutionally mandated balance of power between the States and the Federal Government was adopted by the Framers to ensure the protection of our fundamental liberties.''(see footnote 24) And the Supreme Court has subsequently affirmed that ''[b]y guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance....''(see footnote 25)
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In 1908, the Supreme Court decided in Ex parte Young,(see footnote 26) that notwithstanding the prohibitions of the Eleventh Amendment, injunctions could issue against state officers to prevent them from enforcing unconstitutional statutes. The decision sent a shock wave through the federal system. Its effect was, in Justice Harlan's words, ''to enable the subordinate federal courts to supervise and control the official actions of the States as if they were 'dependencies' or provinces.''(see footnote 27) By 1910, Senator Lee Overman of North Carolina, the sponsor of the bill that created the original 3-judge court requirement for injunctions against state statutes (former 28 U.S.C. 2281) could say:
But let ''one little judge'' stand up against the whole State, and you find the people of the State rising up in rebellion. The whole purpose of the proposed statute is for peace and good order among the people of the States.(see footnote 28) There are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney general.(see footnote 29)
Congress acted immediately to increase the level of scrutiny given cases in which injunction were sought against enforcement of state statutes. The impetus for enactment of 2281 was the numerous injunctions issued against progressive legislation enacted by the states in the first decade of this century.(see footnote 30) Sen. Overman identified railroad regulatory legislation in particular as having encountered the most difficulty at the hands of the federal judges, who often issued injunctions against enforcement of those statues ex parte.(see footnote 31) Interestingly, it was also a railroad case that gave rise to the Pullman abstention doctrine, a judicially-created rule of restraint announced for the protection of the states. The case arose from a suit for injunction against enforcement of a railroad commission regulation under old 2281.(see footnote 32)
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Legislation applicable to all state laws, was enacted to require that in every case in which injunctive relief was sought against the enforcement of state statutes on constitutional grounds, a three-judge court must be convened, with a direct appeal to the Supreme Court.(see footnote 33) This was the predecessor of 28 U.S.C. 2281. The statutory protection was subsequently extended to interlocutory injunctions against state administrative orders, and eventually, to cover permanent injunctions as well.(see footnote 34)
Opposition to 2281 within the judiciary arose due to the claim that the 3-judge panel posed an unwarranted claim on judicial resources. Substantive limitations were successively engrafted onto the 3-judge panel requirement. Early on, the United States Supreme Court held there was no requirement of a 3-judge panel if the constitutional claim was ''insubstantial.''(see footnote 35) Also recognized was an exception when the impact of the requested injunction would be merely local, as opposed to statewide.(see footnote 36) Claims of preemption were held to require a 3-judge panel only if the Supremacy Clause was ''immediately'' implicated, as opposed to ''ultimately'' implicated.(see footnote 37) And for some time, some circuits held there was no requirement of a 3-judge court if the constitutionality of the statute was challenged only ''as applied''(see footnote 38) until the United States Supreme Court finally rejected that theory.(see footnote 39)
28 U.S.C. 2281 itself remained in effect until 1976, when Congress abolished it in an apparent response to concerns expressed within the judiciary concerning workload burdens on the courts.(see footnote 40) This should strike most observers as a rather odd rationale for repeal of a federal law. Even after stipulating to the importance of judicial resources it is hard to imagine how such a concern could outweigh the significant state interest in the 3-judge panel within the context of a system of federalism. Effectively giving individual judges the power to suspend state laws indefinitely when they find them offensive is a blow to the comity which should characterize the federal-state relationship.
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Put very simply, in the absence of statutory safeguards on judicial process, any duly-enacted state law may be enjoined on grounds of constitutionality without a full hearing on the merits. Furthermore, in the absence of a stay on appeal, judicial review of a particular judge's order may take years to complete. Such a state of affairs is entirely incompatible with the notion of federalism.
Justice Frankfurter aptly observed that ''As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements.''(see footnote 41) The Founding Fathers wisely adopted the separation of powers doctrine to prevent the abuses of judicial review. They rejected the proposed ''Council of Revision,'' on which judges would sit in review of proposed legislation.(see footnote 42) And Congress in its earliest days spoke out against the principle of a single judge issuing injunctions having the effect of interfering with state judicial proceedings.(see footnote 43)
The reasons for requiring restraint, deference, and caution in reviewing state laws has been characterized by the Supreme Court as ''a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.''(see footnote 44)
Page 173 PREV PAGE TOP OF DOCSECTION 2 OF H.R. 1252
First of all, I would like to commend my friend from California, Congressman Bono for his tireless effort on behalf of our fellow citizens. For, regardless of their position on state ballot measures which gave rise to his proposal, they as well as citizens in other states have much more at stake than any particular outcome in any particular election. Section 2 of H.R. 1252 is essential to such fundamental notions as federalism, and the democratic process itself.
Chief Justice William H. Rehnquist, while an Associate Justice and Circuit Justice for the Ninth Circuit, once observed that ''any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.''(see footnote 45) The year before the Chief Justice expressed this thought, Congress had acted to repeal statutory protection against just such irreparable injury that had been wisely enacted by a prior Congress sixty-six years before.
Sec. 2 of H.R. 1252 provides an opportunity to restore the protection of the states against such ''irreparable injury'' under the limited circumstances where the democratic majority of a state has expressed its will at the ballot box through the processes of the initiative or referendum. It certainly turns the very idea of participatory democracy on its head when those who fail to persuade a majority of their fellow citizens of the wisdom of their point of view can then turn to a single federal judge to invalidate the outcome of the electoral process. This supplanting of reasoned political discourse by raw judicial power is incompatible with our values as a free society. Left to await the ultimate determination of a federal judge as to whether the outcome will receive judicial blessing or legal sanctions leading to ongoing litigation, citizens who do take the time to vote can only wonder if their vote will really count. And the pundits express bewilderment at increasingly high levels of voter apathy and lower levels of participation. It simply defies the logic of the democratic process to substitute ''one judge one vote'' for the wisdom of ''one person one vote.''
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Section 2 of H.R. 1252 is a measured response to a major problem. It does not eliminate the power of federal courts to review the constitutionality of state laws. Nor does it prohibit injunctions against the enforcement of unconstitutional state statutes. What it does is recognize that to maintain the fundamental constitutional balance between the federal government and the states, these provisions must not rise or fall at the whim of a single federal judge.
Section 2 of H.R. 1252 recognizes the role of the states as laboratories within our federal system, their status as sovereigns, and the principle that their governmental processes must not be stopped in their tracks indefinitely on the basis of the limited hearings necessarily given to applications for ex parte or interlocutory relief made to a one-judge court.
Over 90 years ago, Justice Holmes wrote: ''Great constitutional provisions must be administered with caution ... it must be remembered that legislators are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.''(see footnote 46) Those wise words apply with equal and perhaps more vitality to the various state experiments in democracy we call the initiative and referendum process.
Mr. COBLE. Thank you, Mr. Attorney General.
Senator, can you talkcan you do it in 5 minutes?
STATEMENT OF RICHARD L. MOUNTJOY, SENATOR, CALIFORNIA STATE SENATE
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Mr. MOUNTJOY. Oh, absolutely.
Mr. COBLE. We have a vote on now, and after your testimony, we will recess very briefly and come back.
Mr. MOUNTJOY. I can make up some time, so that California doesn't lose a time contest
Mr. COBLE. But I don't want to put a muzzle on you.
Mr. MOUNTJOY. I'm going to go off my prepared statement, Mr. Chairman, if I may.
And I want to start out by saying that the people of California are really proud of our Congressman Sonny Bono. He has a record in Californiaand just let me tell this committee thishe has an approval record in California statewide, 32 million people, of over 60 percentvery, very high approval rating statewide. I believe that's because the people of California recognize that there's a difference between honesty, intelligence, and common sense, and formal education, and he represents all of those three items.
Mr. COBLE. Senator, he's been the beneficiary of several comments; we don't want to give him too big a head this morning. [Laughter.]
Mr. MOUNTJOY. We knew that when he came to Congress he wasn't here to deliver pizza, but some good, sharp comments.
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And that brings me to the point that I want to make, and that is that you'd have to be living in a cave if you didn't recognize that there is a problem with people's trust of government today. I had a person, as I was leaving church just last Sunday morning, who approached me; he had never been involved in politics; he came to me and he said, ''You know, I've never talked to you about politics as long as you've been going to this church, but I have a real concern on my heart. I want to share that with you.'' He talked about the mistrust of government and what kind of a government are we going to turn over to our grandchildren. There's a basic mistrust. He also went on to say something that really shocked me. He said he was beginning to understand the Texas Rangers, the types of people who were out there protesting their Government. That was a shock coming from John Q. Citizen, who has not been involved in the process.
And I think that's what this bill represents. This bill, and especially the Sonny Bono part of this bill, the three-man court, I think restores confidence in our judiciary. That's what's important here. It restores confidence in our Government. There is a loss of confidence in the courts.
Would it change the outcome of a decision? I don't know the answer to that, and I don't believe anyone on any of these panels would know the answer to that. But would it restore the confidence of the people in the judicial system? I believe the answer to that is clearly yes.
One of the ladies here mentioned proposition 187. I was the author, Mr. Chairman, of proposition 187. We put the challenge to Pyler v. Doe in that proposition for one reason: because the Supreme Court never made a decision on that issue. They simply said that there was not a good enough case coming out of Texas to have made a decision on the issue. That's why that was in proposition 187.
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What has happened to proposition 187 I think is a travesty of justice. That proposition has not been released today. We're asking that court just to make a finding, if she will, just make a finding on the unconstitutionality of that amendment by the peoplethat initiative by the people of California, and let us move on to the next court. But she is denying justice by delaying justice.
We asked to be intervenors, Mr. Chairman, in that case as the author, and she summarily dismissed it without a court hearing. She dismissed without any grounds. Subsequently, one opposition to the motion was filed by a man in whichlet me just read you one statement, and I'll show you the kind of statements that were made by this man.
This is what he said about Hal Ezell, who is a former INS Commissioner under Ronald Reagan; ''the former sausage manufacturer, present occupation known as hatemonger, Hal Ezell.'' This whole submission to the court is filled with this kind of language. The court summarily took this language, took this letter of opposition, after she dismissed us from becoming intervenors without a hearing.
He later on in this letter says, ''Well, I guess it's because we don't trust Attorney General Dan Lungren.'' That isn't the reason that you become intervenors. You become intervenors to aid the defense. And so we took exception to that. That is the kind of activity that you're seeing in the judicial system which causes people to mistrust and have a lack of confidence in the judiciary.
I've read each of the items in this
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Mr. COBLE. Senator, pardon me.
Bill and Zoe, we will resume as soon as we vote; we'll come back and pick it up where we are now.
Go ahead, Senator.
Mr. MOUNTJOY. I believe that each one of these provisions within this bill doesn't move away from the rule of law; it strengthens the rule of law. It doesn't take anything from the power of the judiciary; it builds confidence in the judiciary. I think this is a good bill. If it were up to the people, Mr. Chairman, I can tell you that they would go much further. They would ask for a term limit on judges. The people would ask perhaps an 8-year review of judges. They would go much further than what is here. I think this is a good chance to restore public confidence in the judiciary, and I think that's what it's all about.
[The prepared statement of Mr. Mountjoy follows:]
PREPARED STATEMENT OF RICHARD L. MOUNTJOY, SENATOR, CALIFORNIA STATE SENATE
Chairman Coble and Members of the Subcommittee on Courts and Intellectual Property, I am honored to have the opportunity to speak to the members of this Subcommittee on Representative Henry Hyde's H.R. 1252, a measure which will begin the process of restoring the people's faith in their government. Many people's faith has crumbled in large part due to a judiciary which has turned its back on our Constitution and on Americans, a judiciary which instead of interpreting law has wielded its awesome power as an iron hammer over the people. We can and must open our eyes before it is too late and work to assure the judiciary operates only within its constitutional bounds.
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There is a deep and growing mistrust among Californians about their government, a mistrust which stems from a frustration, a frustration which is turning too anger. Californians have watched their government ignore their votes and their voices. They have watched our courts be manipulated and used, not to protect us as our forefathers intended, but to silence us and rob us of our rights and privileges as a free people.
There are feelings that just as Tiananmen Square silenced the voices of the people of China, the federal courts are silencing the voices and the votes of the people of California. Americans of all walks of life, all ethnicity's, urban and rural residents, men and women, young and old, are talking about the courts, about their arrogance, and their tyrannical edicts which are touching their lives with ever increasing frequency.
Many Californians believe the courts are no longer impartial bodies which interpret law. Federal judges are viewed as unelected dictators who make law and who use their lofty position to further their personal agendas. Many believe the protections our Constitution provides are ignored, disregarded and twisted to further the political persuasions of a judiciary which has gone astray, and if left unchecked will destroy our country. The people have noticed and are talking.
The people of California treasure the initiative process, which allows citizens to write an initiative, gather signatures, and take an issue directly to voters. With increasing frequency, initiatives which California voters approve are challenged in the federal courts. Those who lose at the ballot box shop for judges who share their political views. Then they challenge the initiative in court so they can invalidate the people's vote. The frustration this has caused is expressed to me by citizens wherever I go.
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It is no surprise that voters are questioning the need to vote. They have seen the powerful manipulate the judiciary when they lose at the polls. Many consider the voting process a meaningless exercise as their votes are tossed one after another onto the judicial trash heap.
Californians have been upset with the invasion of illegal aliens streaming across California's southern border, not with arms, but with needs, needs which are being paid for by every working man woman in California. Californians resent having to support those who have entered our great nation illegally. The needs of Californians are not being met because so many, many millions of our tax dollars are being spent on illegal aliens. California is helpless ins sealing its southern border as that is a federal responsibility over which the state has no authority. The people are helpless at determining how their tax dollars are spent in this regard because of the actions, or in this case the inaction, of U.S. District Court Judge Mariana Pfaelzer, in whose court Proposition 187 has remained for several years without a decision.
In response to the illegal alien invasion, I introduced legislation, which later became the language of Proposition 187, California's illegal alien control initiative. The initiative was put on the ballot with the grassroots signature gathering of thousands and thousands of concerned Californians, individuals who took their time to attempt to change the direction of their government.
When Proposition 187 was overwhelmingly approved with a 59% vote in November of 1994, it was immediately challenged before Judge Pfaezler. Month after month passed, months which have now turned into years, with no action. Judge Pfaezler has held Proposition 187 in legal limbo, without a decision, without allowing a challenge as time marches on. The people are watching and waiting.
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Not only will Judge Pfaezler not made a decision so the case can move forward in the courts, she has denied those of us who wrote and support Proposition 187 the chance to intervene so our voices can be heard. Judge Pfaelzer canceled a scheduled hearing on our motion to intervene without explanation and without hearing arguments for the motion. Judge Pfaezler allowed many opponents to file briefs, Including one peppered with name calling against a highly respected INS Commissioner, Hal Ezell.
When more than two years elapse without bringing this issue to a conclusion, something is wrong. When proponents are excluded from the proceedings, something is wrong. Justice delayed is justice denied. I assure you the people are watching and are talking. Remember 59% of the people voted for Proposition 187, in spite of a heavily financed campaign against it. Proposition 187 was an overwhelming mandate by the people.
Our forefathers never intended a single judge to stifle the voices of the citizens of our great republic. Judicial tyranny of this magnitude is simply unacceptable and Californians are talking about it.
Another California initiative, Proposition 209, which was supported and approved by 54% of the voters, provides equal treatment for everyone. In this instance, Chief U.S. District Judge Thelton Henderson of San Francisco used his power as chief judge to take the case from the jurist to whom the case had been assigned. Henderson has a long history of civil rights activism and has served on the Board of Directors of the ACLU and the equal Rights Advocates, entities which were representing the plaintiffs attempting to invalidate Proposition 209. Judge Henderson has also served on the board of the Meiklejohn Civil Liberties Institute, an organization he allowed to file a ''friend of the court'' argument in the case. Then Proponents went judge shopping for a friendly 3-judge panel. Judge shopping by both sides, or either side, subverts the process and creates distrust among the people.
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Most recently, Proposition 140, which placed life time term limits on California state legislators, has been ruled unconstitutional by the courts. Time and time again federal judges in the 9th Circuit have eradicated the voices and democratic votes of the people. The people are disheartened.
H.R. 1252's requirement of a 3-judge panel to consider constitutional challenges to referendums or initiatives passed by the people is a huge step in the right direction. No longer would a judge be able to freeze an issue in a glacier of immobility as Judge Pfaezler has done. There is a greater chance for fairness and rulings based on law rather than personal bias with a panel.
H.R. 1252's provisions on attorneys who bring class action lawsuits has merit. I have introduced a bill in the California Legislature, which is being considered today in California to stop attorneys from taking a matter to court when they do not have a client. Representation of''ghost clients'' must stop.
H.R. 1252's impartial review of complaints against judges by judges in another circuit will do much to assure that there is objectivity and impartiality in the review of allegations.
Prohibiting the judiciary from imposing taxes is long overdue. Clearly that is a legislative function. the judiciary is overstepping its constitutional authority when it begins to legislate in this manner. The federal system has three separate, but equal branches. The judiciary must interpret law, not make law. Legislating by the judiciary is a cancer that has grown and spread, with tentacles reaching into every corner of our society. H.R. 1252 offers a positive solution.
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The fifth provision addresses the serious problem of judge shopping, which has become an art in California. This undermines the integrity of our courts. H.R. 1252's provisions to request reassignment to a different judge is a well reasoned and excellent solution to a very serious problem.
Our forefathers had a vision of a democratic republic with judicial decisions based on our carefully crafted Constitution. The courts were designed to interpret the law and to clarify the law. Our forefathers never intended the courts to make law. When the courts are viewed as dictators, with judges forcing their personal views and prejudices on the people, the very fabric of our great nation will begin to unravel. I fear this is beginning to happen in California and across the nation.
There is a difference between interpreting law and what is occurring in our courts today. I urge you to approve H.R. 1252, which I believe will protect our people from a judiciary which if left unchecked will destroy our great nation bit by bit. H.R. 1252 takes a big step in the direction of restoring the peoples faith in the judiciary. An imperial judiciary has no place in America.
Mr. COBLE. Well, I thank you, Senator. Thank you, General.
And we will be back imminently. We will stand in recess until we return. So you all rest easy in the interim.
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Mr. COBLE. OK, folks, I think we're ready to go. We've finished our voting for the moment anyway.
Senator Mountjoy, I believe you said you had finished your testimony?
Mr. MOUNTJOY. Yes, I think that about sums it up, Mr. Chairman. I believe that this legislation goes a long way in restoring public confidence. One of the worst things that this Congress could do is to do nothing. This is something that I believe goes a long ways in the direction of restoring public confidence.
Mr. COBLE. Thank you, sir.
Mr. Attorney General, since I'm the only one here right now, we'll be happy to receive that into evidenceor if you want to play it nowhow long is it?
Mr. LUNGREN. About 3 minutes.
Mr. COBLE. Why don't you go ahead and play it, and those of us who are here can hear it, and then we can have that
Mr. LUNGREN. Let me describe for you what happened. This is one of my DAG's, deputy attorney general, a woman who is about 4 foot 10 inches tall, who would not physically threaten anybody, certainly not a Federal judge, appearing before the judge on a matter involving a habeas corpus petition involving a prisoner on death row. The judge was upset because we could not give him information as to the amount of money given to this defendant under our rules, under our State habeas petitions, for the purpose of investigators. That is not available to us. That is confidential between the court and the defendant. As a matter of fact, that mimics the Federal system. But all of that was of no import to this judge.
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Mr. COBLE. OK, why don't you go ahead and activate that because there may be another vote; I don't think there will be.
Mr. COBLE. I think we've gotten the purport for that, and we'll receive that into evidence.
Mr. LUNGREN. Well, the only point I'm making is that this occurs to my DAG's in that courtroom on a regular basis.
Mr. COBLE. Now was this a U.S. district court?
Mr. LUNGREN. It's a U.S. district court judge in Fresno, CA, and we have no recourse.
Mr. COBLE. Yes.
Mr. LUNGREN. We have no recourse whatsoever. And to say that the disciplinary methods of the current system work flies in the face of what my DAG's see on a daily basis. However, I'm not suggesting every Federal district court judge is like that.
Mr. COBLE. Oh, yes, that really isn't the point.
Page 186 PREV PAGE TOP OF DOC Mr. LUNGREN. What I'm saying is, How do you deal with that? And it seems to me peremptory challenge is the least obtrusive way by which wethat's what we do in California, and it's rarely used. It's only usedthe U.S. Department of Justice funded a study of this back in 1986, and I believe their determination was only 2 percent of the time is it ever used in those States which have it.
Mr. COBLE. All right, let me start the round of questions because we're coming into our final turn and we're going to have to leave here at 1:30 because we have a markup in full committee.
Mr. Attorney General, I know that you wouldwell, strike that. It is my belief that you would like to see section 6 applied to criminal cases as well?
Mr. LUNGREN. Yes, sir.
Mr. COBLE. Now you're familiar, I'm sure, with the criticisms that were propounded by Mr. Allen Chastett in 1981 against the use of peremptory challenge in criminal cases, I assume, are you?
Mr. LUNGREN. Yes, I'm familiar with most of the criticisms that were registered.
Mr. COBLE. Let me ask you to respond, if you will, to his charge that such a change would increase delay, especially when applied to the Speedy Trial Act.
Page 187 PREV PAGE TOP OF DOC Mr. LUNGREN. All I can say is that's not the case in California; it's not the case in the other States in the Union which have speedy trial acts. I believe all but two of those which have peremptory challenges have speedy trial acts, and I believe the other two States use the Federal constitutional standard. It just hasn't proven to be a problem. Now maybe theoretically a law professor could sit down and come up with a problem, but it hasn't been the problem in those States which have used it.
Mr. COBLE. All right. What has been your experience, if any, at the State level in California with motions to reassign as a matter of right (a), and how often are they appealed? No, strike that. How often are they filed?
Mr. LUNGREN. I do not believe they exceed the 2-percent figure that the survey funded by the Justice Department found nationally.
Mr. COBLE. I would think not frequently, but
Mr. LUNGREN. Very infrequently, and there's a couple of reasons for that. No. 1 is you get one challenge. So you don't know who else you're going to get. So you use it very, very carefully.
Secondly, you could come up with that judge another time. I mean, what if you've exercised your challenge on another judge at another time and you come back to this judge and they might remember, and they might not totally appreciate it. So there is a real reluctance to use it, but I think the threat of it being used has a leveling effect on the judges. I was told by an outstanding California superior court judge, interestingly not of my own party, when he was selected, that it was the most effective tool for dealing with the potential for arrogance or inappropriate behavior on the bench. And he said the reason is, if someone getsand the expression used''papered,'' if someone gets papered regularly or more than once or twice, the casework goes to other judges
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Mr. COBLE. Yes.
Mr. LUNGREN [continuing]. And usually at lunchtime or at dinner they have a conversation in which they suggest that perhaps he or she ought to look at what's occurring in their courtroom because the other judges don't appreciate doing all the work.
So he was saying to me that it was an informal way of enforcing a code of conduct which he thought worked better than any other. And if it's an automatic, virtually an automatic thing, there's not an examination of the judge himself or herself, and there's not the spotlight that I heard one of the panelists on the previous panel worry about.
I can't recall, I really can't recall in the public domain anybody, any stories or anybody referring to a judge who has been papered as being a bad judge. I mean, I haven't seen any story whatsoever in the California press on that.
Mr. COBLE. OK.
Mr. LUNGREN. And yet it is used.
Mr. COBLE. All right. Before my 5 minutes expire, I want to ask the senator a question. Senator, do you envision the citizens of your State using referenda to enact legislative change with greater frequency in the future?
Mr. MOUNTJOY. No
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Mr. COBLE. You've had some experience with this.
Mr. MOUNTJOY [continuing]. Not at all. I have had experience in several statewide initiatives. I don't think that it would do that at all.
Mr. COBLE. All right, sir. Thank you.
Mr. MOUNTJOY. There are very few invitations that really pass, you know.
Mr. COBLE. Thank you, sir.
Mr. FRANK. Let me ask the attorney general, Did you prefer any disciplinary charges against the judge? Was that the same judge that you were referring to in your testimony who was then on the tape?
Mr. LUNGREN. No, it's not.
Mr. FRANK. Did you prefer disciplinary charges against either judge through the existing disciplinary mechanism?
Mr. LUNGREN. We did not do it in either of those cases.
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Mr. FRANK. Well, I don't quite understand then how you can conclude that you had no recourse, when you did not take advantage of the recourse available. Sometimes people say that they're afraid to do that and they don't want to kind of anger the judge, but it would seem clear from today's performance that fear of either of those judges is not a great motivating factor in your life, as, knowing you, I would not have expected it to be. So why did you not propose disciplinary action against either of those judges?
Mr. LUNGREN. Well, in the case of my own particular circumstance, we sought a writ to the ninth circuit on the question before them. They sought not to even acknowledge that or they did not even think that was an important issue to be decided.
Mr. FRANK. But there are two separate questions here. One is whether they were right or wrong on the law, because you, yourself, acknowledged the particular judge who you felt was being very abusive to you ultimately agreed with you on the law. The question of inappropriate conduct, of judicial temperament, that's separate from the law. So I still don't understand why, if it was so outrageous, you didn't make a disciplinary charge.
Mr. LUNGREN. I'll give you the same response that I gave to Warren Burger when we had an argument about this 12 years ago, and that is, he said, ''We have a disciplinary procedure that can take care of''and these are his words''take care of the alcoholic judge, take care of the drug-addicted judge.''
And I said, ''Well, I appreciate that and I'm certainly happy you can. I'm talking about judges who, by their demeanor in the courtroom, can affect the outcome of a case in many cases which cannot be picked up just on the trial record.''
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Mr. FRANK. Well, you don't know that, though, General. And the point is this, and I know where you were 12 years ago because we were together
Mr. LUNGREN. Correct.
Mr. FRANK [continuing]. And so you were not then the attorney general and you had not had that experience. So whatever conversation you had with Warren Burger predates these experiences.
And I must say, your discussion of the informal peer pressure that results if a judge is forced to step aside a couple of times sounded very similar to Judge Politz' discussion of how the disciplinary procedure works. I again have to say, having come up to us with two examples where you seem to me to be making the case that the judges lack judicial temperament and were in other ways behaving inappropriately, and then not to have brought any disciplinary charges, and then to have concluded that the disciplinary process doesn't work is really, at the least, a premature judgment, and I would think you would try the process before condemning it.
Mr. LUNGREN. I would say two things. One, it is my understanding that complaints have been raised against both of those judges in the past, which basically resulted in little or no action taken whatsoever. And, No. 2 is the question of before the fact or after the fact. It may make you feel good after the fact that a judge may have been disciplined, but in terms of affecting the outcome of the case you may have had, it seems to me the peremptory challenge is the far more effective means.
Page 192 PREV PAGE TOP OF DOC Mr. FRANK. Well, no, I would say in this case, thoughexcept in both cases the judge gets one bite at the apple. So in either case I assume you might have had the peremptory challenge come later.
And let me lead to the question on the peremptory challenge because I must say, based on your experience, the disciplinary process stands unaccused because it hasn't been tried. But, secondly, on the question of the peremptory challenge, your problemmy problem with your remedy is that it applies to every civil case everywhere. Apparentlyand, as to the criminal, I don't know if you were in the room when I learned that my predecessor, who served with you
Mr. LUNGREN. Sure.
Mr. FRANK [continuing]. On Immigration, I guess on the Immigration Commission, on the Japanese Commission, had filed this for the criminal. So maybehe's at Georgetowngive him a call and you guys can work up a joint effort on this.
But you're doing this potentially for every case everywhere in the United States.
Mr. LUNGREN. Correct.
Mr. FRANK. And your confidence that it wouldn't be abused betrays a respect for the self-restraint of trial bar that members of your party haven't often expressed these days. I mean, are you really confident that the trial bar everywhere in America would refrain from trying to game this system or abuse it or get a little extra delay?
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Mr. LUNGREN. Well, as you know, there is the trial bar and there is the trial bar. I would say the experience
Mr. FRANK. Yes, but both of them get a shot under this bill.
Mr. LUNGREN. The experience in California and the other States of the UnionI think it's 16 Statesis that it's not abused. Now maybe we're aberrant States. Maybe somehow we are so out of the mainstream that we act in a way that is different than the rest of the country, but I've never seen California attacked for being overly conservative or prim and proper in matters, and I doubt that you would have a different experience on the Federal level than you've had at the State level. My confidence is grounded in the experience of this, and if you want to say they're experiments, we've had 17 experiments and they've all proven out with this result.
Mr. FRANK. Well, I would ask to submit for the record, as my time expires, Mr. Chairman, letters from Chief Justice Lucas from California and Chief Judge Sheedy from Wisconsin, in which these two judges stronglytwo State judges, I believestronglytalking about State judge experience, and I guess Judge Lucas is the retired Chief Justice of California.
Mr. LUNGREN. That's true.
Mr. FRANK. And they both were expressing theirlet me, if I could, just for a few seconds, read retired Chief Justice Lucas'and I guess he's not one of those guys that ever harassed you, General.
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Mr. LUNGREN. No.
Mr. FRANK. He's a pretty good guy?
Mr. LUNGREN. In fact, as attorney general, I sit on a panel to confirm appellate court justices and supreme court justices, and I served with him for 6 years in that capacity.
Mr. FRANK. All right, let me just read what he said. ''The peremptory challenge in California is perceived by most judges as a constant disruption of the efficient management of a court, and it is believed to be used often for frivolous reasons such as a delaying or disrupting tactic. The present presiding judge of the superior court of Los Angeles County said, 'The 170.6's' ''this procedure in California
Mr. LUNGREN. Yes.
Mr. FRANK [continuing]. '' 'Are probably the most misused pleading there is because lawyers do it for tactical reasons.' ''
And I would ask that those letters be
Mr. LUNGREN. Who was he referring to there?
Mr. FRANK. He's quoting the present presiding judge of the superior court, Robert Parken.
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Mr. LUNGREN. Who's also a friend of mine. The judge that I referred to told me that this was the best way to deal with it
Mr. FRANK. Well, I understand that.
Mr. LUNGREN [continuing]. Who was the previous presiding justice, our judge
Mr. FRANK. Well, but we do have the retired Chief Justice, so that opinion
Mr. LUNGREN [continuing]. Of the superior court in California
Mr. FRANK. Well, then, let me say, following your bill, we'll submithaving submitted this to a three-judge court, the ruling is two to one against you. And I would ask that these be submitted for the record. [Laughter.]
Mr. COBLE. Without objection.
[See p. 41.]
Mr. FRANK. I have to get to the floor, Mr. Chairman, for a markup.
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Mr. COBLE. All right, sir.
Folks, let me think aloud a minute. As a courtesy to our remaining panelI think we owe them a courtesywe have got to shut this store down at 1:30 because of full markup. So I would askI'm muzzling no one, but I would ask the membersand, Mr. Attorney General, you and the senator, if you all, keeping in mind that we have your complete statements with us, if you all could make your answers as terse and as concise as possible, I will now recognize the gentleman from Florida.
Mr. LUNGREN. Mr. Chairman, we came 3,000 miles to make our answers terse. [Laughter.]
Mr. CANADY. Thank you, Mr. Chairman.
I apologize for being late in returning and missing some of the discussion about the peremptory challenge provision of the bill. I do want to follow up on that subject and ask General Lungren, Why you think including criminal cases is important? I understand that there's been some discussion about whether that would be workable or not, but why is it that you think that it would be a good idea and important from your perspective as the attorney general of the State of California to include criminal cases within the scope of the peremptory challenge provisions in the bill?
Mr. LUNGREN. There are two reasons, Congressman. No. 1, if, in fact, we are doing this for the purposes of both fairness and the appearance of fairness, why would we do it in civil cases and not in criminal cases? Secondly, and most specifically with respect to my office, I have a concern about habeas corpus petitions being considered, and while they are generally considered to be civil, the U.S. Supreme Court and other courts have opined that they are a hybrid, and that while they seem to manifest civil characteristics, they also undeniably manifest some criminal characteristics. And my thought is that, if you allow peremptory challenge only for civil cases, I could see some rulings by Federal court judges that in habeas petitions, if we filed a peremptory challenge, a determination that this was really not a civil action; it was a hybrid or a criminal action.
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Mr. CANADY. OK, thank you very much. I have no further questions.
Mr. COBLE. Thank you, sir.
And, Danny, understand, I'm not cutting you guys short. Don't think I meant that, but we have the complete testimony with us. No one's on a short leash.
The lady from California.
Ms. LOFGREN. Thank you, Mr. Chairman.
I haven't actually reached a conclusion on the issue of peremptory challenges in the Federal system or a number of these other things that I think are worth taking a look at. But I think it's important to identify what the results are likely to be and what they are likely not to be and how we might best restore confidence among the citizenry at large in our systems of government and in our Constitution, in our political bodies, and in our courts. Because if we don't trust a single judge, and we want three, at some point three judges will rule some way that people don't like, and then will we need six-judge panels? I think some of the responsibility falls to us to explore with our fellow citizens the proper role of each branch of government.
I heard my colleague, Mr. Bono, talk about proposition 187 and that since it started with the word ''illegal,'' you know, shouldn't that beI don't want to put words in his moutha reduced level of inquiry? And yet the Constitution, as the supreme law of the land, always needs to be accounted for. Had the measure said let's round up everybody who's illegal and shoot them, that would certainly raise questions about due process that we want a court to look at. And so I think how we categorize this review, as leaders in California and here in Washington, is enormously important in restoring respect and esteem for the institutions of government, even if we don't always admire the individuals who are making decisions and who are flawed and human, who are part of those institutions.
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Mr. MOUNTJOY. Let me just take a real quick shot at that. In the case of 187, this proposition was passed 2 1/22 years, 8 months ago; no decision has been made really, in limbo. We have encouraged the judge to move it through the court system, let us go to the appellate court. We believe that in the final analysis that it will be upheld as constitutional because the Congress itself has passed many of the laws that are incorporated in 187.
The fact that she dismissed us as intervenors, having allowed at least 12 intervenors on the other side. We asked for only one on this sideso those are the kinds of perceptions that the public believes.
Ms. LOFGREN. I understand, but we have heard evidence that the three-judge panel will actually take longer than appellate review.
Mr. MOUNTJOY. Well, it can't take much longer than what she's taken. Let me give Judge Henderson this: we knew that Judge Henderson came with a specific bias, and all of us have biases, but Judge Henderson at least made a decision that was appealed. He made that decision within a matter of months. So when the public sees the courts lagging, when the public sees just a bias there, they become concerned. This billthis bill before
Ms. LOFGREN. If I can reclaim my time, because I want to make a point that really relates to what you're saying and what the attorney general said earlier. He recounted his experience in a Federal court with a judge threatening to haul him into jail and hold him in contempt, and not making a final ruling. And as you were discussing that, I couldn't help but remember my own experience in State court that was so remarkably similar. In 1987, I was a member of the county board of supervisors during a jail overcrowding case. And remember in California we have peremptory challenges; we have judges that serve for a period of years, not lifetime tenure, who are elected. In our case we had a judge who held the entire board of supervisors in contempt of court because the board had failed to do exactly what he wanted in the jail overcrowded case in terms of construction. He postponed the final decision, so we couldn't appeal it. I was supposed to go into jail on Mother's Day for refusing to waste $90 million on a jail construction project, and I didn't think that was a very good situation. I didn't think it was appropriate. I didn't think it was prudent. But the remedy was not to change the entire system of jurisprudence. In fact, California has most of the provisions you're suggesting, and it didn't prevent that miscarriage of justice.
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The remedy is to pursue, through our system, change, and then also to keep an even temper, if we can. I'll never forget that judge shaking with anger, reading an article that my colleague and I had written about the subject, and basing his ruling on ex parte evidence. And yet, the fact that peremptory challenges were available didn't prevent that, and ultimately the appellate courts did act and ultimately justice was done. And I think sometimes we need to, with our fellow citizens, talk about what a wonderful system we have that will get us to justice.
Mr. LUNGREN. Well, Congresswoman, I always talk about what a wonderful system we have, but it has blemishes and we have to deal with those blemishes. And I take very seriously the question of the sovereignty of States, comity of the different levels of government. And, look, there is no branch of government that has the greater potential for abuse than the judicial, and I don't say that because of the people there; I say it because it is a specifically nondemocratic branch of the Federal Government populated by people who have lifetime tenure.
Now it's precisely because they're human beings that they have temptations. It's precisely because they're human beings with that enormous power that there ought to be some restraint placed upon them, and it's not because they're evil or venal people. It's because they're human people. And so you have to try and determine what means are available by which you can at least put some leverage against abuses there.
And one of the problems we have is the tendency to constitutionalize. Now my former colleague from Michigan talked about his fear that Congress wants to constitutionalize too many things. Implicit in what he said was that that's abuse. Well, courts are in a position of being able to do it every single day.
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And as Andrew Kleinfeldt, a member of the ninth circuit, said in dissent in the right-to-die case that came out of the ninth circuit, he said, ''the fact that an issue is important does not mean it is constitutional.'' He said, ''One would not think that our Founding Fathers established this democracy, this democratic republic, so that all questions of importance would be decided by the judiciary with only trivia to be left to the elected officials.'' He said, ''It would seem that they would have thought just the opposite with only a few exceptions.''
And my point is, more and more, we've had a situation in which the exception has become the rule.
Ms. LOFGREN. If I may, without getting into whether we should go back and redo our entire systemand I know you're not really suggesting thatI think that, to some extent, the remedies being proposed here have probably not achieved the goals that you are seeking in the wonderful State of California, our home. When looking at, for example, the jail overcrowding case I mentioned and similar other cases, where localities that have charter governments and have their own authority in some cases within the State of Californiathose remedies didn't prevent very outrageous situations from occurring. Yet, ultimately, over time, we are brought into balance by our system of government.
I justI don't want to do away with it.
Mr. LUNGREN. No, I think we have a disagreement.
Ms. LOFGREN. I may in the end be for peremptories, but it's not going to fix the issue that you've talked about.
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Mr. LUNGREN. I think we have a disagreement, if you believe that we are in balance right now. I believe we have an imbalance that exists with respect to the judiciary vis-a-vis the other branches of government, and the Federal judiciary vis-a-vis the State. And if you don't, then I understand there's no reason to do that.
Ms. LOFGREN. Actually, if I may, I want to make sure that I have been precise with you. What I have said is that we have a system in government that can correct itself over time, and so to the extent that there are issues that may be amissand you and I may agree on some of them, oddly enoughwe have a system that allows for correction.
Mr. LUNGREN. Right. I'm just asking to correct them.
Ms. LOFGREN. Thank you, Mr. Chairman.
Mr. COBLE. I thank the lady.
The gentleman from Indiana.
Mr. PEASE. Thank you, Mr. Chairman. I apologize to this subcommittee and the members of this panel that, though I was present for all the others, legislative duties kept me from yours, and I have your statements; I appreciate that. But having not heard your testimony, I'll waive my opportunity for questions.
Page 202 PREV PAGE TOP OF DOC Mr. COBLE. I thank the gentleman.
The gentleman from Massachusetts.
Mr. DELAHUNT. I'll be very brief, Mr. Chairman.
I know you're a seasoned prosecutor, General. How long have you held
Mr. LUNGREN. Seventhis is my seventh year.
Mr. DELAHUNT. This is your seventh year? You know, I have to disagree with you, respectfully, in terms of the system being out of balance. I also served as a prosecutor in a major jurisdiction in greater Boston, and I'm sure you were a trial lawyer at a point in time in your career?
Mr. LUNGREN. Prior to serving in this body.
Mr. DELAHUNT. Is that right? I mean, I can't think of anything more terrifying to a trial judge than being overturned on appeal. You know, I don't know the law or the court structure in California, but in Massachusetts we have multiple tiers of appellate jurisdiction. Frequentlyfrequentlyin the course of an opinion rendered by an appellate court there is a scathing admonition of trial judges. Again, as a district attorney in a very populous jurisdiction surrounding Boston, I found myself in many tugs, in many confrontations, I hope in a respectful fashion, with members of the trial court. We had an advantage, those of us who served in an executive capacitywe could make our opinions known on a daily basis. These trial judges were restrained by canons of judicial ethics from speaking out.
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I have instances in my mind that are similar to yours, the experience that you related in terms of this Federal judge who apparently was abusive both to you and to the deputy assistant attorney general. If that happened in my jurisdiction, which it did, that judge was challenged forthwithforthwithwith a referral to the judicial conduct committee. I felt the balance was appropriate, and we were threatened, intimidated, on occasion, much like yourself, but I didn't feel there was an imbalance there. I really didn't.
I guess I don't have a question. I'm just making an observation from a different perspective. And, again, maybe those Federal judges in the first circuit are different than those that serve in California. I don't know.
Mr. LUNGREN. Well, I would just say, in response, that we don't feel there's an imbalance with respect to the State system. As a matter of fact, we act as the prosecutors on behalf of the Judicial Council for investigations and disciplinary actions taken against judges, and we do that on a regular basis. I would just say it's my observation that that's far more effective and far more efficient on the State level than we find on the Federal level, and it's our observation, being in Federal and State courts all the timeI have 850 attorneys now; we have 55,000 active cases; we are in both the Federal and the State courts; we probably appear in the Federal courts more than any law firm other than the U.S. Justice Departmentit's our observation that we don't feel there's this imbalance in the State. We do feel there is an imbalance in the Federal leveljust our observation and experience.
Mr. DELAHUNT. Other than that case that you described for the subcommittee earlier, do you have any other specific instances? And if you do, have you referred them to the appropriate disciplinary board?
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Mr. LUNGREN. We have
Mr. DELAHUNT. By the way, I wasn't here, and I apologize. Did you refer this particular incident to
Mr. LUNGREN. Did I refer the incident that I was involved in?
Mr. DELAHUNT. Right.
Mr. LUNGREN. No. What I did was to take it up on a writ, and the ninth circuit said they weren't interested, and then I was sanctioned by $32,000 for even bringing it up on a writ.
Mr. DELAHUNT. But whywith all due respect, I think if I had been in your position, I would have filed that complaint forthwith.
Mr. LUNGREN. I will tell you this: this judge, with all due respect, has a reputation for doing this. People have tried in the past and it has not availed whatsoever.
Mr. DELAHUNT. Never better than a referral
Mr. LUNGREN. Not so ever. Not so ever over the last number of years. Zero.
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And the interesting thing in this case is this Federal judge happened to be a constituent of mine while I was in the Congress. I used to meet with him once a year to try and take care of judges' problems. I dealt with them on dealing on a very difficult matter of Social Security. I dealt with them on the difficult problem of how their pay was treated when they went senior status. I went to bat for them to get them more
Mr. DELAHUNT. That's what I would call an ungrateful constituent.
Mr. LUNGREN. And 9 months before that, he had requested a personal favor of me, and
Mr. DELAHUNT. But, again, let me ask you a question.
Mr. LUNGREN. But in all that, once you put the robe on, you assume a different persona. Now some people may not believe it; you've got to be in the courts and see it on an everyday basis.
Mr. DELAHUNT. But why didn't you file a complaint with the disciplinary board?
Mr. LUNGREN. Because based on our experience, it would have been to no avail.
Page 206 PREV PAGE TOP OF DOC Mr. DELAHUNT. Well, I'll tell you, this is brandnewthis piece of testimony is brandnew to us because everything that we have heard here today, and that we have heard as a subcommittee, would indicate that disciplinary action has been taken against these judges.
Mr. LUNGREN. I discussed these matters and similar matters in 1980, 1982, 1983, 1984, with members of the Federal judicial establishment all the way up to the Chief Justice of the U.S. Supreme Court.
Mr. DELAHUNT. Are you familiar, by the way, with a 1993 report that has been issued by the National Commission on Judicial Discipline and Removal regarding disciplinary proceedings?
Mr. LUNGREN. Yes.
Mr. DELAHUNT. You are familiar with that?
Mr. LUNGREN. Yes, we're familiar with it.
Mr. DELAHUNT. What's your opinion of that report?
Mr. LUNGREN. Oh, my opinion is
Mr. DELAHUNT. You're overI don't mean to press
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Mr. LUNGREN. It's an interesting report. I mean, for what they say, they probably have come to their proper conclusions. The point is, they're talking from the standpoint
Mr. DELAHUNT. I mean, I'm totally unfamiliar with it. I'm not trying to be disingenuous here. I have never even heard of it until very recently.
Mr. LUNGREN. Well, if it's the 1993 report
Mr. DELAHUNT. But do you support it?
Mr. LUNGREN. If it's the 1993 reportI don't know what year the report is
Mr. DELAHUNT. It is the 1993 report.
Mr. LUNGREN [continuing]. It doesn't persuade me against my position, is what I'm saying.
Mr. DELAHUNT. Where does it
Mr. LUNGREN. I'm coming forward with the perspective of those who are on the receiving end and who see the lack of effectiveness of the system.
Page 208 PREV PAGE TOP OF DOC Mr. DELAHUNT. See, we've had a different experience because I've been on the receiving end.
Mr. LUNGREN. I know that, but let me tell you this: 1 1/2 years
Mr. DELAHUNT. I ask the indulgence of the chairman.
Mr. COBLE. OK.
Mr. LUNGREN. A 1 1/2 years ago, I appeared before the Judicial Council of the ninth circuit for the purpose of presenting to them my position on the tough question of inmate litigation, which this Congress acted on last year, and my office helped consult on that legislation. The report done by the ninth circuit Judicial Conference concluded that what we needed, what we needed in the ninth circuit, were States that had better grievance procedures for the prisoners and that would solve the problem. They concluded this based on an analysis that 99.9 percent of the cases were decided in favor of the State and that most of those cases were decided in preliminary matters
Mr. DELAHUNT. I'm sure I have no disagreement with your
Mr. LUNGREN. But all I'm saying is their conclusion
Mr. DELAHUNT. But what I'm talking about
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Mr. LUNGREN. But we ought to do something.
Mr. DELAHUNT. No, but my focusmy focus in terms of this line of questioning is not substantive issues, because I think we get into very dangerous and murky waters, but in terms of judges who act in an abusive fashion toward litigants.
Mr. LUNGREN. I understand that. I was just bringing this up as a serious report, done by the ninth circuit dealing with an issue, and the conclusion they came to was so far from what we saw, even though we could agree on the facts, that it may be a similar question
Mr. DELAHUNT. I see. Then I understand the context. But, again, I guess my final comment and observation would be that next time a Federal judge treats anybody from the department of the attorney general in California in the way that you have described, I'd be knocking on their door and I'd have that complaint, and I think you'd find a different attitude, because that was my experience. We did it in a very public fashion, and I think that in some cases it is appropriate, and I'm not one to go and to seek aggravation, if you will, where it's unnecessary. But there is a process; it's there, and I think if people such as yourself use it, and use it in a high-profile fashion, it will have an extremely therapeutic effect on judges that treat people disrespectfully.
Thank you, Mr. Chairman.
Mr. COBLE. Thank you, Mr. Delahunt.
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General, the other day a friend of mine said something that was not too kind regarding a speech I had made, and I said to him, ''With friends like you, enemies I don't need.'' So with I guess the Federal judge you said was your friend, I guess, in your opinion, you don't need any more enemies as far as that is concerned.
Mr. LUNGREN. I'll still take his phone calls. [Laughter.]
Mr. COBLE. Mr. Bono, the gentleman from California.
Mr. BONO. Yes, I would like to ask Mr. Delahunt one question, if I may. When you brought charges, disciplinary charges, against that judge, what were the results of those charges to him?
Mr. DELAHUNT. He was a district court judge. In Massachusetts we have two trial jurisdictions. One is referred to as the district court, which generally handles misdemeanors and some civil cases. Then there is another trial court where cases are heard. It's called a superior court. As a result of my complaint, he hadhe was a sitting district court judge
Mr. BONO. Yes.
Mr. DELAHUNT [continuing]. And he had filed an application to become a judge on the superior court in Massachusetts. As a result of my complaint, his application was denied. So it resulted in a very, very serious consequence to him.
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Mr. BONO. You caused the denial of his application?
Mr. DELAHUNT. My action caused a denial. And just a little bit of history: he acted in an improper fashion toward an assistant district attorney in my office, accused him of lying without any basis in fact whatsoever, and made a public statement to that effect. And I thought that was intemperate.
Mr. BONO. Well, what's the course of action if, say, he didn't have ahe wasn't seeking something else; he was just a sitting judge? What would be the disciplinary action?
Mr. DELAHUNT. It could vary from censure to public reprimand, censor.
Mr. BONO. Public reprimand?
Mr. DELAHUNT. Public reprimand.
Mr. BONO. From whom?
Mr. DELAHUNT. From the Judicial Conduct Commission, which in Massachusetts, I would suggest, is comparable to the existing mechanism that we have on the Federal level. And, on occasion, judges have been publicly reprimanded and censured.
Page 212 PREV PAGE TOP OF DOC Mr. BONO. Did I understand you correctly to say that after that you werehe continued to intimidate you?
Mr. DELAHUNT. Oh, no. No.
Mr. BONO. Didn't you say
Mr. DELAHUNT. I like to think I never had a judge that intimidated.
Mr. BONO. I'm sure you used the word ''intimidated'' because I wrote it down.
Mr. DELAHUNT. I might have. No, but I think my point was that he had a pattern of intimidation and a pattern of abusing litigants who appeared before him, and it was brought to my attention in this particular case that he had made statements in public while the media were in attendance about a misrepresentation allegedly made by an assistant district attorney in my office that was basedit was totally baseless. And that's when I filed a complaint, made a statement that I
Mr. BONO. Thank you. I must have misunderstood you.
Mr. DELAHUNT. I apologize.
Mr. BONO. I thought I heard you to say, after that process, there was some type of retaliation. I thought the word ''intimidation'' was used. But thank you.
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Mr. Lungren, when a judge is publicly brought beforewhat exactly is the penalty that happens to him if he's not seeking new office or something? What
Mr. LUNGREN. Well, in California, under our system, there can be a public reprimand, a censor, or removal from office in California.
Mr. BONO. Does the removal from office occur often?
Mr. LUNGREN. It seldom happens.
Mr. BONO. Seldom happens?
Mr. LUNGREN. Seldom happens. Most of the time a judge voluntarily resigns before they're actually
Mr. BONO. So, basically, if you file something like that, he gets bawled out?
Mr. LUNGREN. I'm talking about the California systemyes.
Mr. BONO. Yes, in the California system. But there are many occasions you would have to go before this judge again, after this incident. Are there other
Page 214 PREV PAGE TOP OF DOC Mr. LUNGREN. Unless the judge were removed, yes
Mr. BONO. Were removed.
Mr. LUNGREN [continuing]. You'd probably have to go. And, in fact, in our case, since we are the arm of the disciplinary body, sometimes we have to go before a judge that we not only might have filed a complaint on at some other time, but actually we were the prosecutors in the case. So it makes life interesting.
Mr. BONO. Yes. I don't know why that is so hard to understand, that if you bring charges against a judgeI'll use nice wordswouldn't he might be extremely upset at you and
Mr. LUNGREN. Well, I would also say, in response to previous questions, that does cross our minds when we make a decision with respect to Federal court judges, because, as you know, they have lifetime tenure, and short of impeachment, they cannot be removed. So in most circumstances, if they receive discipline, they're still going to be there.
Mr. BONO. Mr. Chairman, can I respectfully ask for 2 more minutes?
Mr. COBLE. Two additional minutes granted to the gentleman from California.
Mr. BONO. Thank you.
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Illegalwhen I brought up the word ''illegal,'' I guess, to my knowledge, that is the only area I know where the word ''illegal'' is used first. And, generally, when we're socially brought up, the word ''illegal'' kind of is comforting because someone will say to you, ''Well, you can't do that because it's against the law.'' And is there any other case where illegal isthat you know ofisor not a case, but a situation where the word ''illegal'' is used again, and then it still gets to be part of the process, even though it is deemed by the very first word as illegal?
Mr. MOUNTJOY. As far as activity, you're talking about?
Mr. BONO. Yes. Either one.
Mr. MOUNTJOY. I don't know. I don't know of any.
Mr. LUNGREN. Well, having dealt with the immigration issue, sitting on this full committee and the subcommittee for 8 years, the complexity of the immigration issue and the illegal immigration issue is second to none. So if you ask me, are there other subjects which have so many nuances and sensitivities, even though the descriptive term may be ''illegal immigration,'' no, I'm not sure there are.
Mr. BONO. And I mean no disrespect when I say the sentence begins with ''illegal,'' but, again, not being a lawyer and not knowing the whole legal rhetoric, that word is comforting to me. Because if I know someone has done something to me illegally, I have recourse. Again, I function from logic and common sense. If something is illegal, I presume it's against the law. Therefore, you can't do it. But for
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Mr. MOUNTJOY. That's probably a good assumption. [Laughter.]
Mr. BONO. Thank you.
Mr. LUNGREN. Well, there's an old vaudeville line, you know, the difference between illegal and unlawful
Mr. BONO. Yes.
Mr. LUNGREN. Unlawful is against the law; ''ill eagle'' is a sick bird, but I won't use that one. [Laughter.]
Mr. BONO. Oh, OK.
I just wanted to make those points clear. And then last is that, you know, we're sitting hereand you brought it up, Mr. Attorney Generalis that we're saying, you know, we wouldmaybe we should have more accountability in the judicial system, which is simple and I think is what we do for a living, is look at situations, civil situations, and if they're out of balance, try to correct them. It seems to be so offensive to say this that I'm awestruck that it is so offensive to say ''accountability.'' I mean, for me, that's what life's all about; that's what I want for my children, my wife, from you as our next Governor. And I don't know why there is such a big issue over that, and me thinks they protest too much. And I think it is our obligation to look at that accountability and see if the accountability is there.
Page 217 PREV PAGE TOP OF DOC While I did say ''last,'' but I want to say one thing beyond that. That tape and that man on that tape that was a judge, his comments were not sane. That was a loss of sanity. As just a street guy it baffles me to have someone not be able to control their sanity and be a judge and make decisions, be a Federal judge and make legal decisions. So I come here and sometimes I get very confused and upset about these types of things. I don't know why we all don't sit here and say, ''What is that guy doing sitting as a judge?''
Mr. LUNGREN. Let me just say one thing in response, and that is this: I don't want any of my comments to be misinterpreted as a slam at the Federal judiciary.
Mr. BONO. Me, neither.
Mr. LUNGREN. Most of the Federal judges I think do comport themselves well. Most of the Federal judges do exercise self-discipline. Most of the Federal judges I think are doing a fine job, even though I may disagree with them on one decision or another.
However, because we are human beings and because of the awesome power that now is found in the Federal judiciary, it is incumbent on the Congress of the United States to review the sense of balance among the three branches
Mr. BONO. Yes.
Page 218 PREV PAGE TOP OF DOC Mr. LUNGREN [continuing]. And to see if there are adequate responses to claims of abuse in the system, without undercutting the independence of the judiciary, and that's a tough challenge.
But I must remark that, to see the vociferous nature of the opposition by some in the judicial establishment for something as simple as a three-judge panel or peremptory challenge is amazing. We're not talking about impeachment. We're not talking about getting rid of lifetime terms. We're talking about something that is so much of a little nibble that in any other enterprise it would be considered a rather modest proposal or series of proposals.
So all I'm saying is we should be careful, those of us who have some criticism, not to have it overly broadly, but we should not shrink from looking at this because some would say, if you have any criticism whatsoever, you somehow are attacking the independence of the judiciary. We can attack the institution or the occupant or the institution of the presidency; we can criticize the Congress, but somehow if we visit the same sort of criticism on the judicial branch, some people think we're trying to undercut their independence, and I don't think we are. I think we ought to understand that.
Ms. LOFGREN. Mr. Attorney General, isn't there a difference, though, because the judiciary is not at liberty really to defend themselves in the way that the President or you, as an elected official, are? The judicial canons do greatly constrain their participation in the public debate.
Mr. LUNGREN. Well, they are restricted from doing that, but they have something none of us havenone of us have; it's called lifetime tenure. You don't have it in any other occupation in America. You don't have it in any other pursuit in which you have such awesome power. And as a result of that awesome power and that independence, it is very important for us to look at those areas in which they may go beyond where they ought to be. That's all I'm saying.
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Mr. BONO. Reclaiming my time, if I may, I just want to say that it's not out of line ever to ask for accountability anywhere in life, and, furthermore, it's our obligation. If we don't do that, we will have anarchy. I am proud of any effort to find accountability. I don't know why someone has to take that kind of abuse and then it's their responsibility to have to put themselves in the liability to deal with the abuse that they have just dealt with, because now they have to make different consideration. Again, I'm not a lawyer, but then that means, do I go before this lawyer again? Do I change my case? It can alter your job considerably, in my view, and I don't know why none of us here understand that or want to correct that.
Thank you, Mr. Chairman.
Mr. MOUNTJOY. Congressman, the real substance of this bill is that it doesn't harm the judiciary, but it goes a long ways in restoring confidence of the people in the judiciary. I think that's a big step forward in this legislation.
Mr. BONO. Thank you.
Mr. COBLE. I'm sure I would not receive passing marks from a strict parliamentarian, but I've been lenient today, but I think this is an important subject; that's why I've been lenient.
Zoe, did you want to be recognized one more time?
Page 220 PREV PAGE TOP OF DOC Ms. LOFGREN. Yes, just very quickly. I think that it's importanteveryone is for accountability, but I think there is a distinction that we need to make as members of this Judiciary Committee between accountability as to the substance of rulings, which is provided for through the appellate review and also through Congress doing its job by passing laws or, indeed, even constitutional amendments, that get to the substance of the issue versus misconduct, for which there are remedies up to and including impeachment. And I know of a few judgesI read everyI guess, like all the lawyers in California, you go immediately to the State bar disciplinary section to see who's been disbarred or what's going on. There are judges who have been removed, but not because people disagreed with their decisions on a case.
Mr. LUNGREN. Right.
Ms. LOFGREN. It was because of misconduct. And I think we need to focus on those remedies. If there are improvementsand, frankly, I didn't know there had been a report in 1993 until this morning, either. I look forward to reading it. But I think we need to make a very clear distinction between the remedies in both cases, not only for ourselves, but for the public, because it's very easy to make that murky, and when we do, I think we go down a slippery slope that really does endanger our constitutional system of government.
Thank you, Mr. Chairman.
Mr. LUNGREN. Congresswoman, I would also commend to you the 1986 U.S. Department of Justice study on the question of peremptory challenges. It was a rather comprehensive review.
Page 221 PREV PAGE TOP OF DOC Mr. COBLE. Mr. Attorney General, you may not have been here this morning, but I pretty wellyou pretty well echoed what I said earlier. Earlier this morning, I made the statement that we are not here to dismantle rule of law. And I agree with you; most Federal judges probably do a good job, but I don't apologize to anyone for our having conducted this hearing today, nor for the hearing tomorrow. I think there's nothingit's very healthy to examine. And, as you point out, the contract is a pretty good one; i.e., for life.
Thank you for being here. Senator, thank you for being here.
Mr. MOUNTJOY. Thank you, Mr. Chairman.
Mr. COBLE. And now I want to welcome our third or fourth and final panel. And, folks, we're going to get this done one way or the other. I may be in hock with somebody, but, Professor Destro, Professor Hellman, let me, first of all, commend you all for having been blessed with the patience of Job. You've sat through this. Let me read very briefly from your dossier.
Professor Destro received his bachelor of arts degree from Miami University in Oxford, OH, and his J.D. degree from the University of California at Berkeley. His areas of expertise or specialization of scholarship or litigation include the first amendment rights of freedom of speech and religion; discrimination on the basis of race, disability, national origin, and religion; comparative constitutional law; private international law; conflict of law, and legal ethics. He is, as well, the coauthor of ''Religious Liberty in a Pluralistic Society,'' the Carolina Academic Press of 1996.
Page 222 PREV PAGE TOP OF DOC Professor Hellman received his B.A. magna cum laude from Harvard College and his J.D. from the Yale School of Law. Before joining the faculty of the University of Pittsburgh, he served as Deputy Executive Director of the Commission on Revision of the Federal Court Appellate System for Hruska. I have never been able, Professor Hellman, to pronounce his surname correctly. Is it Hruska?
Mr. HELLMAN. I think it was Hruska, yes.
Mr. COBLE. That's close enough then?
Professors, it's good to have both of you here, and I commend you all again for your patience. As I say, I have been overly lenient, and I thank the members of the subcommittee as well, but this is important. I didn't want to put a gun to anyone's head to force them to speak too tersely. But if you all will remember the illuminating red light, and if you can comply with that as closely as possibleit makes no difference who wants to go first. Professor Destro, why don't you start off.
STATEMENT OF ROBERT A. DESTRO, PROFESSOR, CATHOLIC UNIVERSITY SCHOOL OF LAW
Mr. DESTRO. Thank you. It is, as always, nice to see the people's business being done, but I had forgotten about how long it takes. So, nonetheless, let me try to be very brief. I have a summary statement. I will leave that in the record.
The reason I agreed to testify at reasonably short notice was my concern about section 5: the limitation on court-imposed taxes. I will just say something very briefly about that section and then turn to the other issues before the committee.
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I think that section 5 of the bill represents a move in the right direction, but I believe that something needs to be added that clearly indicates that judges simply do not have the authority to impose taxes. Whatever one calls judgments against communities for money, they are not taxes. Only legislatures impose taxes, and the Supreme Court made it very clear in Missouri v. Jenkens, that the Federal courts do not possess the power of taxation. In New York v. the United States, the Supreme Court of the United States made it clear that if Congress wants to impose rules and regulations on the States then it should have the moral and political courage to impose them itself. And so, if taxes need to be imposed as a remedy, Congress has more than sufficient authority to impose them itself. I will be happy to answer any questions on that topic.
The last series of witnesses, Attorney General Lungren and Senator Mountjoy, and the discussion you had with them reminded me of a number of bad experiences that I have had in Federal courts. I will not recount them here, but I do teach professional responsibility and will comment from that perspective. I have been very much involved in the attorney discipline process. I want to tell you that, from the perspective of one who is very much involved in the disciplinary process, that the members of the committee who are expressing such concern about judicial independence just ''don't get it.''
The reason I say this is that litigators and their clients have important stories to tell. The discipline system in this countrywhether you're dealing with attorneys or judgesis severely broken down. It simply does not produce results. People are frustrated.
In the last, I think, 2 weeks I have had at least six calls about how to deal with errant attorneysand, in two cases, how to deal with unethical State bar ethics committees. This is a very, very serious problem. People do not have a good sense up here in Congress about how bad it is in the trenches. All one really need do is look at the State bar journals to realize that the kinds of people who are getting disciplined are the ones who are doing the most egregious thingsthe drugs, the alcohol, the taking of bribes. The kind of behavior on display by Judge Price when Attorney General Lungren played the tape is not common, but it is very serious nevertheless.
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I want you to stop and think that the meaning of ''due process of law'' and the meaning of the Code of Judicial Ethics is, at bottom, that litigants get a fair trial before an unbiased judge.
I appeared before a judge in a first amendment case a number of years ago. Before I started my opening statement in the preliminary round of the case, I was informed was that I was going to lose this case. No evidence had been adduced at that point, and my client wondered what was the point of having a hearing in the first place. I would have loved to have had a peremptory challenge to use against the judge. I would have used it in that case. My client was denied due process of law because we could not challenge the judge.
Attorneys don't challenge just because he or she does not like the judge, or because you're afraid of what the judge is going to rule; that's a risk. You roll the dice when you litigate. But it's also true that attorneys know in their bones, just as they do in peremptory challenge cases involving juries, that some people cannot be trusted to render a fair decision. This includes judges.
Batson is not relevant to this. This is not a case where we need to be concerned about having a jury of their peers. The judge is the guarantor of fairness. Basically, all you're doing is asking a judge for whom you have a concern to step aside.
Complaints against judicial misconduct should be viewed in the same way. These are legal ethics issues having severe civil rights implications. I think that a judge who fears that he or she may not be treated well within their circuit should at least have the option of moving the case outside of their circuit. I would not start by moving cases outside the circuit, but I would certainly leave it as an option for any judge who has a concern.
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The three-judge panel provision I'll only address very briefly, and that is simply, I believe that if you adopt this reassignment procedure, you won't need the three-judge panels.
[The prepared statement of Mr. Destro follows:]
PREPARED STATEMENT OF ROBERT A. DESTRO, PROFESSOR, CATHOLIC UNIVERSITY SCHOOL OF LAW
REASSIGNMENT OF A CASE AS A MATTER OF RIGHT
This proposal is a laudable one for three reasons: 1) it fosters confidence in the Judiciary by reassuring litigants who may have nagging doubts about the impartiality of the particular federal district judge assigned to hear their case; 2) it ''promotes public confidence in the integrity and impartiality of the judiciary'' in precisely the manner envisioned by Canons 2 and 3 of the American Bar Association's 1990 Code of Judicial Conduct (1990); and 3) it gives substantive content to the meaning of the Fifth Amendment's guarantee that ''no person shall be deprived of life, liberty, or property without Due Process of Law.'' By adopting this proposal, Congress will follow the example of a number of States, including Arizona, California and Illinois, that spare the litigant the inherently prejudicial risk of challenging the fairness or impartiality of the judge who will hear their case.
COMPLAINTS AGAINST JUDICIAL MISCONDUCT
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This proposal is also laudable and should be enacted. It has two main virtues: 1) it provides an impartial forum for the hearing and resolution of allegations that can have a devastating effect on a judge's reputation and personal life; and 2) it removes, to the great degree, any conflict of interests that may inhere in the intra-circuit relationships. Judges, no less than other individuals, are affected by personal, social and political questions. Canon 2(B) of the ADA Code of Judicial Conduct states that ''[a] judge shall not allow family, social, political or other relationships to influence the judge's official conduct or judgment.'' It provides an additional, process-based level of protection against bias.
LIMITATION ON COURT IMPOSED TAXES
Section 1369 is a laudable attempt to put limits on the usurpation of the power to tax, but, unfortunately. it falls short of what is required: a total ban on judicial attempts to control the taxing power. Taxes have the following general characteristics. 1) they represent a charge or levy imposed by the government on individuals or property; 2) they arc exacted pursuant to legislation; 3) the objective is to generate revenue to be used for the needs of the public, and not a ''charge primarily imposed for the purpose of regulation''; 4) the charge is an enforced contribution, not a debt, donation, or a payment for some special privilege or service rendered, or other voluntary payment; and 5) the charge is enforceable by levy, attachment or imprisonment, or a combination of these remedies. Whatever one may call it, a charge levied under compulsion of a federal court is not a ''tax.''
Moreover, nothing in the Fourteenth Amendment confers power on the federal governmenteither Congress or the Courtsto order States to levy and collect taxes, even if the money generated by the charge is needed to pay the costs of remedial action. The structure and history of the Amendment embodies the separation of powers and federalism principles affirmed by the United States Supreme Court in New York v. United States, 505 U.S. 144 (1992). Taxes cannot be imposed without the ''consent of the governed.'' Congress would be well-advised to affirm that principle in clear and unambiguous terms.
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THREE-JUDGE COURTS TO HEAR PETITIONS FOR INJUNCTIONS AGAINST REFERENDA
The action of the whole ''People'' of a State is, by definition, a sovereign act. By requiring that three, rather than one, federal judges hear and determine whether the act of the People of a State is in accord with the Constitution, Congress affirms both its respect for State sovereignty and the Supremacy of the Constitution.
Mr. COBLE. Thank you, Professor.
STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW
Mr. HELLMAN. Thank you, Mr. Chairman.
Almost 90 years ago, in the landmark case of ex parte Young, the Supreme Court held that Federal courts do have the power to issue injunctions against the enforcement of State laws. Decisions that invoke this power, as we've seen today, are very controversial, and it's understandable why. As people have asked today, How can it be right in a country dedicated to government by the people that a single unelected official can thwart the will of the majority? Well, part of the answer was given a few years ago by then-Justice Rehnquist in an otherwise obscure opinion. What he said is that the remedy the Supreme Court authorized in that case gives life to the supremacy clause. It's needed to vindicate the Federal interest in assuring the supremacy of Federal law.
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That reminds us that review of the constitutionality of State laws by Federal courts continues to play a vital part in the American system of government. But to retain its vitality, judicial review must maintain its legitimacy. Legitimacy means that people who dislike a result are willing to accept it and even to treat it as final because they respect the process. But if that's going to happen, the process has to be fair and it has to be seen to be fair.
As I see H.R. 1252, it's an attempt to enhance both the appearance and the reality of fairness in the process. I'm going to speak here about just one provision, the one that most directly does this, the three-judge court requirement as applied to referendum measures. Referendum measures place a particular strain on the exercise of judicial review, and that's so because of the combination of two circumstances. On the one hand, referendum measures don't benefit from the various filters that you get in the legislative process. That means they may be more vulnerable to constitutional infirmityin other words, more likely to be struck down. At the same time, referendum measures are typically more visible than ordinary legislation. People feel more connected, more personally involved. So that if they are struck down, citizens to feel a personal affront that they don't feel when the laws enacted by their representatives are struck down.
So, in that light, I think Congress would be quite justified in establishing a distinct structure for the adjudication of constitutional challenges to laws adopted by referenda. Further, the requirement of a three-judge district court would seem to fit the problem nicely. If the measure is upheld, the law that's challenged is upheld, this means that at least two judges have said it's OK, and that should reassure people who oppose the measure that the absence of those legislative filters didn't really harm it in the end.
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On the other hand, if a measure is struck down, the fact that at least two judgesand maybe threeagreed with that result will reassure the people who supported the law. It does lend credence to the assertion, which of course we do make, that the invalidation was the product of constitutional compulsion and not of one judge's personal preference. So on that score, the three-judge court seems like a pretty good solution.
There are a couple of problems, though. Twenty years ago, as people have mentioned, Congress pretty much abolished the three-judge court for the general run of challenges to State legislation. And everybody said that was a great idea. So I think you do have to ask, What were the reasons that led Congress to act as it did in 1976, to universal approbation? Do those reasons apply here?
Basically, there were two sets of reasons. One involves the three-judge court itself. It's awkward to get the three judges together. It's awkward for three judges to rule on evidence or hear witnesses. I think that those difficulties can be exaggerated, and I think have been, in connection with referendums. Referendums involve, typically, issues of law, not issues of fact. And certainly the inefficiencies of the three-judge court are trivial when you compare them to Voting Rights Act cases, which, as the chairman pointed out earlier, you retain requiring three-judge courts.
So if the three-judge courts themselves were the only concern, I'd be hard-pressed to sayand, in fact, I would not saythat the system couldn't accommodate another case or two each year. There is, however, another set of problems, and those involve the U.S. Supreme Court. Both under existing law and under the specific provision in H.R. 1252, decisions of the three-judge court fall within the mandatory jurisdiction of the Supreme Court. That means the Court has to take them whichever way the decision goes. And I'll suggest to you that that's unfortunate, especially from the standpoint of those who are sympathetic to the referendum measures, because those referendum measures are novel; they may be badly drafted, and if the Supreme Court strikes down the first case that comes to it because it is a referendum case, and because the Court has to take the case, you will be setting back the prospects for enforcing the same kind of policy judgment through better laws, laws that are constitutional. Instead of having no precedent on point, you'll have an adverse precedent.
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I think there is a solution to this problem. I've outlined it in my written statement, and I'll not go into it here, although I'll be happy to answer questions about that.
I've also suggested another way around this involving changing the standard of appellate review and requiring expedited appeals in a way that doesn't seem to be working today. I won't say anything about that now, either. I will just add, I think there's been some overreaction on both sides. There's been some overreaction to particular decisions, trying to upset the whole system, but there's also overreaction by, as I guess the chairman said, those who seem to regard every modest reform as an intrusion on judicial independence.
This reform will not bethere are particular aspects of it that I think require a little bit of attention, some fine-tuning, but on the whole I think the committee is taking the correct approach to this controversy.
[The prepared statement of Mr. Hellman follows:]
PREPARED STATEMENT OF ARTHUR D. HELLMAN, PROFESSOR, PITTSBURGH UNIVERSITY SCHOOL OF LAW
At the hearing on H.R. 1252, several questions were raised about the scope and operation of the three-judge court requirement in section 2 of the bill. These questions should be addressed and answered at the outset, so that courts and litigants will not have to waste time resolving them through judicial decisions. In this supplemental statement I shall discuss the most important of the questions and, where appropriate, suggest language to clarify the proposed statute.
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I. CHALLENGES BASED ON THE SUPREMACY CLAUSE
H.R. 1252 would require a three-judge court for suits seeking an injunction against state law adopted by referendum when the injunction is sought ''upon the ground of the unconstitutionality of such State law....'' (Emphasis added.) A member of the Subcommittee raised the question: would H.R. 1252 apply when the plaintiff asserts that the state law is preempted by federal law and thus unconstitutional under the Supremacy Clause?
This proved to be a troublesome question under the three-judge court statute that was repealed in 1976. Ultimately the Supreme Court held that a three-judge court did not have to be convened if a state law was challenged on the ground that it conflicted with an Act of Congress or a treaty. See Swift & Co. v. Wickham, 382 U.S. 111, 127 (1965).
If no change is made in H.R. 1252 as currently drafted, courts are likely to adopt the interpretation set forth in the Swift case. For two reasons, I think this would be an undesirable result.
First, as Justice William O. Douglas pointed out in his dissent in Swift, history cuts against the distinction the Court drew in that case. Justice Douglas noted: ''Some of the most heated controversies between State and Nation which this Court has supervised have involved questions whether there was a conflict between a state statute and a federal one or whether a federal Act was so inclusive as to preempt state action in the particular area.'' 382 U.S. at 130 (dissenting opinion). Among the cases he cited was the landmark decision in Cohens v. Virginia, 6 Wheat (19 U.S.) 264 (1821).
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Justice Douglas's rationale applies with particular force to state laws adopted by referendum. One justification for the three-judge court requirement in referendum cases is that the people of a state feel a personal involvement with referendum measures that is not generated by ordinary legislation. Thus, if referendum measures are struck down, citizens are likely to take it as a personal affrontan attack on their own judgment. From this perspective, it is irrelevant whether the referendum measure is held invalid on the basis of preemption or on grounds that directly invoke the Constitution. The sense of affront comes from the invalidation, not the legal doctrine that produces it.
Second, referendum measures may be challenged on both preemption and ''direct'' constitutional grounds. Sometimes the issues will be intertwined, as when a regulation of business is alleged to violate both the dormant Commerce Clause and a specific federal statute. In other cases the Constitution and a federal statute will provide alternate grounds of decision. The relative difficulty of the two grounds may affect the court's determination on both. It would be inefficient for the litigants and a potential source of distortion in the decisional process if the two kinds of challenges were to be considered by different tribunals.
The point is well illustrated by LULAC v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995), the suit challenging California's Proposition 187. The district court enjoined some portions of Proposition 187 on the ground of federal preemption; it enjoined other sections as violative of the Equal Protection Clause. It would have made no sense to allow a single judge to consider the preemption issues while requiring a three-judge court for the constitutional claims.
Page 233 PREV PAGE TOP OF DOC How can Supremacy Clause challenges be brought within the statute? One approach would be to define the term ''unconstitutionality.'' A better way would be to replace the term ''the unconstitutionality of such State law'' with a phrase that clearly embraces Supremacy Clause challenges. I suggest language drawn from 28 U.S.C. 1257: a three-judge court would be required when an injunction is sought on the ground that the state law ''is repugnant to the Constitution, treaties or laws of the United States.''
A thirdand simplerapproach is set forth in Part VI of this statement
II. CHALLENGES TO LOCAL ORDINANCES
A second question raised at the hearing is whether a three-judge court would be required in a suit seeking an injunction against a referendum measure adopted at the local level. As one member of the Subcommittee pointed out, the bill as currently worded strongly suggests an affirmative answer.
In my view, the three-judge court requirement should not apply to suits challenging local ordinances. In reaching this conclusion, I draw upon the analogy to apportionment challenges invoked by the House Report on H.R. 1170 in the 104th Congress.
Under current law, a three-judge court is required for actions ''challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.'' (Emphasis added.) Suits challenging the apportionment of local legislative bodies are heard by a single district judge. I would draw a similar line in H.R. 1252. (As for challenges to congressional redistricting, those implicate the right to vote for the national legislature; thus they fit appropriately with challenges to statewide redistricting.)
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What this means, at the very least, is that the word ''ordinance'' should be deleted from the definition of ''State law'' in subsection (b)(2) of the proposed statute. However, I would go further, and make clear, through affirmative statement, that only statewide measures are covered. Specifically, I would modify both the definition of ''State law'' and the definition of ''referendum.''
Helpful guidance on the first point is found in Ex parte Collins, 277 U.S. 565, 568 (1928), a Supreme Court decision construing the three-judge court requirement as it existed prior to the 1976 repeal. The Court distinguished between suits whose object was ''to restrain the enforcement of a statute of general application'' and suits involving ''matters of interest only to the particular municipality or district involved.'' The latter were excluded from the operation of the statute.
The distinction was further elaborated in Rorick v. Board of Commissioners, 307 U.S. 208, 212 (1939). There the Court noted the ''settled doctrine'' that the three judge court requirement applied only to a suit involving ''a statute of general application'' and not to one affecting a ''particular municipality or district.'' This was so even when the statute itself had been enacted by the legislature of the state.
In this light, subsections 2 and 3 of subsection (b) might be modified to read as follows (new material underlined; deleted material struck through):
"The Official Committee record contains additional material here."
(In subsection 2, I think it is preferable to precede ''any amendment'' with ''or'' rather than ''and.'' Another formulation is suggested in Part VI, infra.)
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It would be possible to refer to ''any statute of Statewide application'' instead of ''any generally applicable statute of a State.'' However, the latter phrase is well established in the caselaw and is probably preferable for that reason.
III. DECLARATORY JUDGMENT ACTIONS
Although the point was not raised at the hearing on H.R. 1252, opponents of the predecessor bill argued in the 104th Congress that the legislation would foster forum shopping by drawing a distinction between suits seeking injunctions and those seeking only declaratory relief. Although the concern may be overstated, there are other good reasons for not limiting the statute to injunctive suits. These reasons were well stated by the American Law Institute when it considered the appropriate scope of the three-judge court requirement nearly 30 years ago:
A state is not likely to seek to enforce a statute that has been solemnly declared unconstitutional. If it should seek to do so, and an injunctive action were then brought before a three-judge court, the declaratory judgment from a single judge might well be given res judicata effect.
AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 323 (1969). The Supreme Court made the same point when it extended the Younger doctrine to declaratory judgment actions in Samuels v. Mackell, 401 U.S. 66 (1971).
Page 236 PREV PAGE TOP OF DOC How might the coverage of H.R. 1252 be extended to declaratory judgment actions? One approach would be to make the change in two steps. The first would be to modify the proposed statute to make it applicable to any ''application for anticipatory relief against the enforcement, operation, or execution of a state law adopted by referendum.'' (The term ''anticipatory relief'' is drawn from the Supreme Court decision in Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1072 73 (1997). See Part II(E) of my prepared statement.) This would then require the addition of a new definitional section, as follows:
(4) The term ''anticipatory relief'' means an interlocutory or permanent injunction or a declaratory judgment.
IV. OTHER ISSUES IN REFERENDUM CASES
A member of the Subcommittee raised the question whether a three-judge court would be required to consider issues in a referendum case not involving the constitutional challenge. This question, of course, also arises in three-judge court cases under existing law. If it is to be addressed at all, it should be addressed in a statute applicable to all three-judge court cases.
In this connection, I note that current law does provide guidance as to the kinds of proceedings that may be conducted by a single judge. See 28 U.S.C. 2284(b)(3). However, the statute does not address the question raised at the hearingwhether issues or claims that do not themselves fall within the three-judge court requirement may be considered solely by the judge to whom the case was initially assigned.
Page 237 PREV PAGE TOP OF DOCV. APPELLATE REVIEW
At the hearing on H.R. 1252, several witnesses pointed out that one consequence of requiring a case to be heard by a three-judge district court is that any appeal from the grant or denial of an injunction must be taken directly to the United States Supreme Court. As I commented in my prepared statement, this procedure is undesirable for two reasons. First, it deprives the Supreme Court of the benefit of ''filtering'' by the court of appeals in the cases that it hears. Second, the Supreme Court may be required to resolve a novel, difficult issue prematurely or in a case that presents an inopportune vehicle.
In my statement, I offered an alternate scheme of review. Drawing on the rules of the Court of Appeals for the Federal Circuit, I suggested that section 2 of the bill be modified as follows:
In subsection (a), delete the sentence, ''Any appeal of a determination on such application shall be to the Supreme Court.''
Renumber subsection (c) as (d), and insert a new subsection (c) as follows:
(c) Notwithstanding any other provision of law, any appeal of a determination on an application within the scope of subsection (a) shall be taken to the court of appeals in accordance with section 1294 of Title 28. Such appeals shall be heard and determined by a court or panel of no fewer than five judges, unless a hearing or rehearing before the court in bane is ordered in accordance with section 46(c) of Title 28.
Page 238 PREV PAGE TOP OF DOC The argument will undoubtedly be made that appellate review by a five-judge panel would make heavy demands on judicial time. The response is twofold.
First, decisions by a five-judge panel are less likely to be reheard en bane than decisions by a panel of three. Particularly if the panel is unanimous or almost so, further review by the court of appeals would be very rare. Thus, overall, the additional expenditure of judge time would be de minimis.
Second, conservation of judicial resources is an important value, but it is not the only one. No function of the judiciary is more vital than maintaining a proper balance between the demands of federal supremacy and the right of the people to govern themselves. The three-judge court provision in H.R. 1252 would enhance the legitimacy of the process and, in the long run, would strengthen the protection of constitutional rights. But a requirement that the Supreme Court hear the appeals would interfere with the Court's ability to carry out its responsibilities in the most effective way. The alternative plan for appellate review set forth above would preserve the benefits at modest cost.
VI. ANOTHER RUN AT DRAFTING THE STATUTE
By way of summary of the points made above, I offer the following substitute for section 2 as it now stands. The substitute is followed by additional comments on technical drafting points.
The statute should be included in Title 28; the logical place is section 2281 (the number of the old three-judge court statute). Section 2281 would read:
Page 239 PREV PAGE TOP OF DOC(a) Any application for anticipatory relief based on Federal law against the enforcement, operation, or execution of a State law adopted by referendum shall be heard and determined by a district court of three judges in accordance with section 2284(b) of this tide.
(b) As used in this sections
(1) the term ''State'' means each of the several States and the District of Columbia;
(2) the term ''anticipatory relief'' means an interlocutory or permanent injunction or a declaratory judgment;
(3) the term ''Federal law'' means the Constitution, treaties, or laws of the United States;
(4) the term ''State law'' means the constitution of a State or any amendment thereto or any generally applicable statute of a State; and
(5) the term ''referendum'' means the submission to popular vote, by the voters of a State, of a measure passed upon or proposed by a legislative body or by popular initiative.
(c) In any case to which this section applies, the additional judges who will serve on the three-judge court shall be designated under section 2284(b)(1) of this title as soon as practicable, and the court shall expedite the consideration of the application.
(d) Notwithstanding any other provision of law, any appeal of a determination on an application within the scope of subsection (a) shall be taken to the court of appeals in accordance with section 1294 of this tide. Such appeals shall be heard and determined by a court or panel of no fewer than five judges, unless a hearing or rehearing before the court in bane is ordered in accordance with section 46(c) of this title.
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The enacting statute would include a section providing for an effective date of the law.
Denial of relief. As introduced, H.R. 1252 provides that an application within its scope ''shall not be granted ... unless the application ... is heard and determined by a court of three-judges.... '' (Emphasis added.) This phrasing introduces some ambiguity as to whether a single judge could deny the application. A literal reading would suggest an affirmative answer, but the Supreme Court, interpreting the identical language in the pre-1976 law, consistently held that when the statutory criteria were otherwise met, a single judge could not decide the merits of the case, ''either by granting or by withholding relief.'' See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962) (per curiam) (emphasis added).
While this construction would probably be followed under a new statute that used the same language, there is no reason to leave the matter to litigation. The substitute draft makes clear that any application within the scope of the statute must be heard and determined by a three-judge court.
Basis of the challenge. It might be possible to omit the reference to ''Federal law'' in section (a) and the corresponding definition in section (b). First, it is hard to imagine a challenge to a state referendum measure that would be based on anything but federal law. Second, anticipatory relief based on state law would probably be barred by the Eleventh Amendment under the Supreme Court decision in Pennhurst State School &, Hospital v. Halderman, 465 U.S. 89 (1984). The Court there held that ''a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when ... the relief sought and ordered has an impact directly on the State itself.'' Id. at 117. Finally, if such a challenge should be launched, the case probably should be subject to the three-judge court requirement anyway.
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Definition of ''referendum.'' Except as indicated in Part II of this statement, I have retained the definition of ''referendum'' in H.R. 1252 as it now stands. However, I must admit that I am not certain what is meant by the phrase ''passed upon.''
For the reasons given in my prepared statement, I continue to believe that it is appropriate to provide special safeguards for federal judicial scrutiny of laws adopted through direct democracy. Further, the requirement of a three-judge district court is a measure reasonably tailored to the concerns that have been voiced. As the Supreme Court said more than 30 years ago, the requirement ''allow[s] a more authoritative determination and less opportunity for individual predilection in sensitive and politically emotional areas.'' Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965). Referendum measures will generally be among the most ''sensitive and politically emotional'' to come before the judiciary. They thus fit squarely within the rationale articulated by the Supreme Court.
At the same time, the proposal embodied in H.R. 1252 raises issues of implementation and detail that may require further attention. I would be happy to offer additional ideas at the drafting stage, but I also call the Subcommittee's attention to the alternate proposal set forth in Part II(D) of my prepared statement.
Mr. COBLE. Professor, that is precisely what I made it clearand I'm doing it for the third time nowthat we're not here to dismantle the system. You know, some folks expressed fear about that at the outset. We're here to examine, and I think to examine thoroughly.
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Professor Destro, I was taking a note when you concluded, and your last statement you said, if we did something, we then would not have to dorepeat that for me.
Mr. DESTRO. Yes. Three-judge courts are not nearly as inconvenient as people say they are, especially in the days of the Internet and fast communications. But I think that they should be seen, and I think that Representative Bono made this point, as symbolic responses to perceive unfairness. Many people simply don't trust the single judge. And it seems to me that if you address the question of trust of district judges, you may solve part of the problem that you're trying to address in with the three-judge panel.
Mr. COBLE. OK, I've got you.
By the way, thank you both for your testimony, and thank you again for your limitless patience for today. But this is the nature of the beast, and it takes time to plow this field.
Professor Destro, your submitted testimony suggests that you believe that section 5 of the bill may not go far enough in limiting the ability of Federal judges to tax. Talk to me a little more about that, in a little more detail.
Mr. DESTRO. Well, again, this is partially
Mr. COBLE. Ed's still here.
Page 243 PREV PAGE TOP OF DOC Mr. DESTRO. This is partially a drafting problem, but the draft appears to be an implicit acceptance of the proposition that judges have the power to tax. It says ''a tax shall not be imposed except when ....'' My point is that taxes should not be imposed by judgescannot be imposed by judgesat all. Now what you may be trying to say is that ''orders having the effect of requiring the raising of taxes should not be entered except when ....'' That's another proposition. I think that the bill ought to be modified to make that clear.
Mr. COBLE. OK.
Mr. DESTRO. You need to consider the impact of settlements in these cases. The most recent high-visibility case that raised this problem is an Ohio case called DeRolphe. The court struck down the Ohio formula school funding process, and can be described as a love feast between the plaintiffs and the defendants. If they had been able to get a judicial decree to raise taxes, they would have done so. Such a tax would not have gone through any of the filters that my colleague, Mr. Hellman, has run through in his testimony with respect to relative priorities are.
So I think that the filters that you have built into this proposed are decent, but they do not really addressed the jurisdictional question: Can judges levy taxes? To which I would say the Constitution says emphatically ''no.''
Mr. COBLE. And that could probably be addressed through drafting, don't you think?
Mr. DESTRO. I think drafting would help, but you will get constitutional litigation over it eventually, if you do not make changes now.
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Mr. COBLE. OK.
Mr. DESTRO. But I think that decrees in which judges have attempted to raise taxes simply aren't constitutional.
Mr. COBLE. Professor Hellman, you've heard it because you've been here all day. There have been concerns expressed that the reassignment provision might not work as well in small districts. Why not? And assuming that's true, why is true? And what would you suggest to remedy the problem?
Mr. HELLMAN. I think it is a legitimate concern. The scenario people have in mind is you have a district of three judges, which many of the districts are. The plaintiff knocks out Judge A. The defendant knocks out Judge B. You're left with Judge C.
Mr. COBLE. The numbers alone would pretty well indicate that it can be problematic?
Mr. HELLMAN. It could be a problem. So I think those concerns are legitimate. I've considered whether there are ways of meeting them. I'll suggest a couple that come to mind. There are probably others.
One possibility would be instead of enacting this bill initially applicable to everybody, start with a pilot or demonstration project that would concentrate on large- and medium-sized districts, but throw in a couple of smaller districts to see if the problems materialize.
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Another possibility would be to allow the smaller districts to opt-out. You've done that, I think, in some parts of the Civil Justice Reform Act. It could be done with this legislation as well.
It also may turn out that the problem may not be quite as serious as people think it is. For one thing, many of the smaller districts will have one or more senior judges who are available for assignment, especially for civil cases. You can't just look at the number of active judgeships. I'll also add that, I think as Mr. Lungren pointed out, the State systems deal with comparable problems, and there may be some lessons there.
Let me just say one additional word about that peremptory challenge proposal. For the reasons outlined in my statement, I think it's a very promising solution if there is a problem, and certainly you've heard some evidence today that there is. But there is enough potential for disruption that I would urge the subcommittee to be reasonably confident that there's a good reason for changing the system, and I think to do that, you ought to hear from more lawyers and judges, just to find out how many recusal motions are there today; what is the extent to which the problem is reflected in motions; how many of those motions are granted, and so forth. There's no published data on that, but I assume the administrative office could get them, if you wanted them.
Mr. COBLE. And, you know, I can't prove this scientifically, but I would think that it would not be that much of a problem numbers-wise, but I don't know; that's just my gut reaction.
Page 246 PREV PAGE TOP OF DOC Mr. HELLMAN. Well, in fact, the only careful, large-scale empirical studyconducted in Oregonshowed that it was not that much of a problem. That's a long time ago, and Oregon has a reputation for being extraordinarily civil.
Mr. COBLE. Yes.
Mr. HELLMAN. So that maybe that wouldn't be replicated elsewhere, but the available evidenceMr. Lungren is right about thatthe available evidence of the experience in the States is on the whole pretty positive.
Mr. COBLE. Thank you, sir.
The gentleman from Indiana, who has also been very patient today, is now recognized.
Mr. PEASE. Thank you, Mr. Chairman. I just want to follow one matter on the disciplinary matter.
And you were both here when I used an analogy, because it's the only one I have, of dealing with faculty in my prior backgroundin my background in higher education. Our experience there was we did try to handle matters informally, for a variety of reasons. We thought it was more efficient, more effective. When we were not able to do that, our decision was that we took it in a formal process outside the department, because even if there wasn't a strict due process question of the individuals that were going to hear the matter, having been involved in the prior discussion, one hopes there's collegiality in a department, as one hopes there's collegiality on the bench. There is, for all practical purposes, lifetimeeven though there are theoretically ways to breaking tenure, there really aren't, as there are theoretically ways of removing judges. It seems to me the parallels were very great in this, and we decided that, even though it wasn't strictly a due process concern, it was due-process-enough-like that we needed to go outside the department when it couldn't be resolved informally.
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How do you react to that and to the proposal here, which doesn't call for an informal? It calls for everything automatically to go out. Do you have thoughts on this general subject, either or both of you?
Mr. HELLMAN. Well, that particular one, I do, because it seems to me you've put your finger on a division which the legislation might well make. That is to say, I thought Judge Politz and the other judges made the point, and all the familiarity that I have with the process that the record supports it, is very strong on this initial informal process; that it works very well; it gets rid of the overwhelming number of possibly problem cases; it also gets rid of the overwhelming number which are frivolous.
Mr. PEASE. Right, right.
Mr. HELLMAN. I mean, it seems to me it would be a tremendous waste of time to send frivolous cases to another circuit. So if you do this, it seems to me the cutoff point ought to be after that informal process has failed, which would either be after the chief judge has ruled on the case or after the review by the circuit council. That's a somewhat more complicated issue, but it's a relativeyou're then down to a very, very small number of cases.
Mr. DESTRO. I would agree with that. I think that one of the problems I've had listening to the comments and a lot of the hearing today is that we're viewing these cases from the top down as opposed to the due process way of viewing them, which would really be from the litigant up. And just like I would like to have a client feel good about the judge in front of whom he or she will be having their case litigated, I would also like to have a judge feel that if there is any problem in the process, that there's some place else to take the matter. I am a civil rights lawyer myself, and watching faculty discipline processesI was the chair of our university's internal grievance committeeI know well that it can be very, very hard to get academics, as well as judges, apply the same rules to themselves that they apply to everybody else without batting an eye. Often, both groups do have a problem applying those rules to themselves. Law and other faculties often have do not understand to that the rules that they teach also apply to them.
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So I think that you just need to have these provisions as ''outs,'' so that people are confident in the system. I think that's what Senator Mountjoy was talking about. People are not confident in the system. Anybody who thinks for 1 minute that that disciplinary system is meeting people's needs should really go look at the literature on the disciplinary system. It is weeding out the most egregious behavior, but it is not dealing at all with the even more corrosive routine unfairness that so often exists, or is perceived to exit, in the day-to-day operation of constitutional litigation.
Mr. PEASE. Thank you very much. Thank you, Mr. Chairman.
Mr. COBLE. I want to thank all the witnesses, specifically Professor Hellman, you and Professor Destro, as you are the only ones left, but I want to thank all the witnesses for their testimony. I think it's been a good hearing, and the subcommittee very much appreciates your contribution.
This concludes the hearing on it. And I appreciate the others in the audience as well for having endured so long.
This concludes the hearing on H.R. 1252. The record will remain open for 1 week.
Thank you for your cooperation, and the subcommittee stands adjourned.
[Whereupon, at 1:43 p.m., the subcommittee adjourned.]
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A P P E N D I X
Material Submitted for the Hearing
Hon. NEWT GINGRICH,
Speaker of the House,
U.S. House of Representatives,
DEAR MR. SPEAKER: We, the undersigned law school deans, write to convey our strong opposition to proposals to initiate impeachment proceedings against federal judges who have rendered politically unpopular decisions in cases or controversies properly before them.
Comments by various members of Congress and views expressed in Impeachment! by David Barton suggest that impeachment is an appropriate mechanism to restrain an ''overactive'' judiciary and that, even though it is unlikely that impeachment will result in conviction, bringing impeachment proceedings against certain federal judges will have a deterrent effect on the substance of their subsequent rulings from the bench. These rationales mischaracterize the purpose of impeachment and only encourage Congress to abuse its extraordinary power to remove a federal judge from office.
Page 250 PREV PAGE TOP OF DOC Our Constitution created three separate but equal branches of government. To avoid tyranny, power was dispersed among the three branches, joint action by two or more branches was often required to accomplish a legitimate governmental objective, and a system of checks and balances was created whereby each branch was given mechanisms to constrain abuses by the other branches. In the Federalist Papers, No. 78, Hamilton wrote, ''For I agree that there is no liberty, if the power of judging be not separated from the legislative and executive powers....[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments....'' Thus, our founding fathers created an independent federal judiciary to interpret the Constitution and protect the civil liberties and fundamental rights of each and every citizen against the tyranny of the majority.
So essential was the concept of an independent judiciary to our constitutional system that our forefathers sought to protect our federal judges from political reprisals for unpopular decisions by giving them life tenure and a guarantee of no diminution in salary during ''good behavior.'' As an ultimate check on judicial independence, Congress was given the power to remove judges from office for ''Treason, Bribery, or other high crimes and misdemeanors,'' the same standard applied to officers of the other two Branches.
Impeachment is an extreme measure and has always been reserved for the most egregious forms of misconduct by a judge. While there is no definitive list of offenses which rise to the level of ''high crimes and misdemeanors,'' the National Commission on Judicial Discipline and Removal, which was established by Congress, stated in its final report issued in 1993 that:
''Congress has removed judges for various forms of official and personal misconduct, but it has not done so because it disagreed with the outcome of cases. The impeachment and acquittal in 1805 of Samuel Chase, the controversial Federalist justice, seems to have inclined Congress and the Country away from regarding impeachment as a general political check on the substantive exercise of judicial power.'' Indeed, over the past two centuries, Congress has only removed seven federal judges from office; and in every instance, the impeachment charges were based on intentional misconduct involving perjury, corruption, tax evasion, bribery or treason, and never because of disagreement over a judicial opinion they rendered.
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In 1986, the chairman of the House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice issued an advisory opinion on the propriety of a citizen-led effort to impeach three judges who outraged some members of the public because they overturned a murder conviction after determining that inflammatory pretrial publicity prevented the defendants from getting a fair trial. The chairman concluded, rightly:
A judicial decision (right or wrong) standing alone, cannot rise to the level of a ''high crime or misdemeanor.'' If this was otherwise, the impeachment remedy would become merely another avenue for judicial review: a sort of legislative referendum on the quality of judicial decision-making. To the contrary, impeachment is a last step and an extraordinary response at that.
Even though judges should not face impeachment charges for specific judicial decisions, they nonetheless are accountable for their decisions. Since judges are required to explain their decisions, decisions are subject to public and professional scrutiny. Furthermore, our elaborate system of appellate review constitutes a fundamental check on judicial decision-making. Likewise, even though impeachment is a remedy reserved for egregious violations of judicial duty, mechanisms exist to discipline judges for other forms of misconduct; for example, judges are subject to disciplinary action by their judicial councils for conduct ''prejudicial to the effective and expeditious administration of the business of the courts, '' and they are also subject to criminal prosecution for criminal violations.
Impeachment was never intended to be usedand never should be usedagainst a judge who issues an opinion with which members of the other branches disagree. We urge you to adhere to the long-standing precedent established by your congressional colleagues over the years to use the extraordinary impeachment remedy only in extraordinary circumstances of judicial misconduct.
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We hope that you will use the influence of your office to end all efforts to impeach federal judges on the basis of unpopular decisions and to preserve the institutional integrity of the federal bench.
Dean Richard L. Aynes, C. Blake McDowell Law Center, University of Akron; Dean Thomas H. Sponsler, Albany Law School, Union University; Dean Joel Seligman, College of Law, University of Arizona; Dean Leonard Strickman, School of Law, University of Arkansas; Dean John Sebert, School of Law, University of Baltimore; Dean Aviom Soifer, Boston College Law School; Dean H. Reese Hansen, J. Reuben Clark Law School, Brigham Young University; Dean Herma Hill Kay, Boalt Hall School of Law, University of California; Dean Richard J. Morgan, College of Law, Arizona State University; Dean William H. Bowen, School of Law, University of Arkansas at Little Rock, Dean Bradley J.B. Toben, Law School, Baylor University; Dean Ronald A. Cass, School of Law, Boston University; Dean Bruce Wolk, School of Law, University of California at Davis, Dean Susan Westerberg Prager, University of California School of Law; Dean Patrick K. Hetrick, Norman Adrian Wiggins School of Law, Campbell University; Dean Steven C. Bahls, Capital University School of Law; Dean Joseph P. Tomain, College of Law, University of Cincinnati; Interim Dean Steven H. Steinglass, Cleveland-Marshall College of Law, Cleveland State University; Dean David W. Leebron, School of Law, Columbia University; Acting Dean Mark C. Weber, College of Law, DePaul University; Dean Michael J. Gerhardt, School of Law, Case Western Reserve University; Interim Dean Stuart Deutsch, Chicago-Kent College of Law, Illinois Institute of Technology; Dean Kristin B. Glen, Law School at Queens College, City University of New York; Dean Hugh C. Macgill, School of Law, University of Connecticut; Dean Lawrence Raful, School of Law, Creighton University, Dean Dennis Lynch, College of Law, University of Denver; Dean Peter G. Glenn, Dickinson School of Law; Dean William Robinson, District of Columbia School of Law; Dean Robert M. Viles, Franklin Pierce Law Center; Dean Richard Matasar, College of Law, University of Florida; Dean Anthony J. Pagano, School of Law, Golden Gate University; Dean Raymond R. Krause, School of Law, Hamline University; Dean Lawrence C. Foster, Williams S. Richardson School of Law, University of Hawaii; Interim Dean Robert C. Hunter, Law School, Drake University; Dean Nicholas P. Cafardi, School of Law, Duquesne University; Dean John D. Feerick, School of Law, Fordham University; Dean Judith C. Areen, Georgetown University Law Center; Dean Edward Spurgeon, School of Law, University of Georgia; Dean Stuart Rabinowitz, School of Law, Hofstra University; Dean Stephen Zamora, Law Center, University of Houston; Interim Dean John A. Miller, College of Law, University of Idaho; Dean Alfred C. Aman, School of Law, Indiana University; Dean Carlos E. Ramos Gonzalez, Inter-American University School of Law; Dean R. Gilbert Johnston, John Marshall Law School; Interim Dean Alice Gresham Bullock, School of Law, Howard University; Dean Thomas Mengler, College of Law, University of Illinois; Dean Norman Lefstein, Indiana University School of Law; Dean N. William Hines, College of Law, University of Iowa; Dean David E. Shipley, College of Law, University of Kentucky; Dean Gerald T. McLauglin, Loyola Law School; Dean Howard Eisenberg, Marquette University School of Law; Dean Donald Gifford, School of Law, University of Maryland; Dean Donald Polden, Cecil C. Humphreys School of Law, University of Memphis; Dean E. Thomas Sullivan, School of Law, University of Minnesota; Interim Dean William Champion, School of Law, University of Mississippi; Dean Harvey Perlman, College of Law, University of Nebraska; Dean Leo Romero, School of Law, University of New Mexico; Dean Judith W. Wegner, School of Law, University of North Carolina; Dean R. Lawrence Dessem, Walter F. George School of Law, Mercer University; Dean Jeffrey S. Lehman, School of Law, University of Michigan; Dean J. Richard Hurt, School of Law, Mississippi College; Dean Timothy J. Heinsz, School of Law, University of Missouri; Dean E. Edwin Eck, School of Law, University of Montana; Dean Harry Wellington, New York Law School; Dean Percey Luney, School of Law, North Carolina Central University; Dean David Hall, School of Law, Northeastern University; Dean David Link, Notre Dame Law School, Dean Victor L. Streib, Pettit College of Law, Ohio Northern University; Dean Andrew M. Coats, College of Law, University of Oklahoma; Dean Colin S. Diver, School of Law, University of Pennsylvania; Dean Peter M. Shane, School of Law, University of Pittsburgh; Dean Neil H. Cogan, School of Law, Quinnipiac College; Dean David E. VanZandt, School of Law, Northwestern University; Dean Rennard Strickland, School of Law, Oklahoma City University; Dean John E. Ryan, School of Law, Roger Williams University; Dean Rudolph C. Hasl, School of Law, St. John's University; Dean Barbara Bader Aldave, School of Law, St. Mary's University; Dean Barry A. Currier, Cumberland School of Law, Samford University; Dean H. Jay Folberg, School of Law, University of San Francisco; Dean John E. Montgomery, School of Law, University of South Carolina; Dean Frank T. Read, South Texas College of Law; Dean C. Paul Rogers, III, School of Law, Southern Methodist University; Dean Roger I. Abrams, Law School/Newark, Rutgers University; Dean Daniel J. Morrissey, School of Law, St. Thomas University; Dean Barry Vickrey, School of Law, University of South Dakota; Chancellor B.K. Agnihotri, Southern University Law School; Dean Richard Wirtz, University of Tennessee College of Law; Interim Dean McKen Carrington, Thurgood Marshall School of Law, Texas Southern University; Dean Howard Glickstein, Jacob D. Fuchsberg Law Center, Touro College; Dean Martin H. Belsky, College of Law, University of Tulsa; Dean Edward M. Gaffney, Jr., School of Law,, Valparaiso University; Dean Barry B. Boyer, University of Buffalo School of Law; Dean M. Michael Sharlot, School of Law, University of Texas; Dean Edward F. Sherman Tulane University School of Law; Acting Dean David F. Partiett, School of Law, Vanderbilt University; Dean Robert E. Scott, School of Law, University of Virginia; Dean James K. Robinson, Law School, Wayne Sate University; Dean Donald J. Dunn, School of Law, Western New England College; Dean Arthur N. Frakt, Widener University School of Law; Dean Robert Ackerman, College of Law, Williamette University; Dean Daniel O. Bernstine, Law School, University of Wisconsin; Dean Robert K. Walsh, School of Law, Wake Forest University; Dean James M. Concannon, School of Law, Washburn University of Topeka; Dean Roland L. Hjorth, School of Law, University of Washington; Dean Teree Foster, College of Law, West Virginia University; Dean John A. FitzRandolph, Whittier Law School; Dean Thomas G. Krattenmaker, Marshall-Wythe School of Law, College of William and Mary; Dean Harry J. Haynsworth, College of Law, William Mitchell; Acting Dean John M. Burman, University of Wyoming College of Law; and Dean Paul R. Verkuil, Benjamin N. Cardozo School of Law, Yeshiva University.
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cc: Members, House of Representatives.
Hon. HENRY J. HYDE,
House of Representatives,
DEAR REPRESENTATIVE HYDE: I write to comment on the proposed legislation to allow a peremptory challenge in certain cases in the federal system. I presently serve as a District Judge in the Northern District of California. I have had considerable experience both in federal courts and in California state courts at a time when a peremptory challenge system was in place. I served as a trial attorney and District Attorney in Alameda County, California, from 1955 to 1981, and later as an Assistant Attorney General in the Criminal Division, and as Deputy Attorney General in the Department of Justice from 1981 to 1986.
Let me point out one aspect of the peremptory challenge system which is troubling to me. It is frequently the case that one of the parties in the litigation is an institutional partythat is, a litigant who appears in many cases over time. The Department of Justice would be one example, but, there are many others covering many areas of the law. In a peremptory challenge system an institutional litigant can effectively remove a specific judge from judicial service, either altogether, or in a specific area of the law, by exercising a peremptory challenge veto whenever a case is assigned to that judge. This is disruptive to the effective administration of a court and can promote considerable ill will. I saw it happen in state courts with that effect. The disruption occurring in the state system was probably less than that which would occur in federal court, as many state systems use a master calendar system where another judge is ready and able to hear the case and can be assigned to hear it as soon as the challenge is interposed, while most federal cases are individually calendared and this would not be possible.
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For this and other reasons which I understand will be presented to the Committee, I would urge the Committee to reject the proposed legislation.
|D. Lowell Jensen,|
|U.S. District Judge.|
PREPARED STATEMENT OF N. LEE COOPER, PRESIDENT, AMERICAN BAR ASSOCIATION, ON BEHALF OF THE AMERICAN BAR ASSOCIATION
Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to submit a statement for the record on behalf of the American Bar Association regarding H.R. 1252, the Judicial Reform Act of 1997, and other proposals before this subcommittee to amend the U.S. Constitution to provide for term limits for federal judges. We are pleased to support some of the proposals before you while at the same time raising a serious alarm about others.
There are few topics this past year which have garnered so much political and public attention as the issue of the independence of the judiciary. The federal judiciary has come under a new wave of attack recently. Not only are there charges that the judiciary as an institution has arrogated to itself the legislative and executive functions of government, but individual judges are being attacked for their decisions in individual cases. These charges are met with equally strong countercharges that Congress is micro-managing the judiciary, stalling the judicial confirmation process, and selectively attacking those judges whose decisions do not comport with the majority party's political agenda.
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While dynamic tension among and within the branches is built into our system of government, and criticism of the judiciary is as old as the judiciary itself, there is reason to be concerned over what is going on today. The organized bar, including the ABA, is alarmed that inflammatory rhetoric about judges being soft on crime or applying the law without regard to precedent diminishes an already weakened public confidence in the courts; and that efforts to impeach judges for particular rulings, and legislative proposals to subject federal judges to term limits directly threaten judicial independencethe sine qua non of a free and democratic society.
In order to discuss our objections to the term limit proposals, it is necessary to reemphasize the purpose of judicial independence and the means by which the founding fathers sought to guarantee it.
The organizing principle for our constitutional system of government is the separation of powers. The founding fathers believed that diffusing different kinds of authority in different branches of the same government would be the best way to protect against abuses. In Federalist 47, Madison wrote:
The accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
To further guard against the concentration of power in any one branch, not only was power dispersed among the three branches, but joint action by two or more branches was often required to accomplish a legitimate governmental goal, and a system of checks and balances was created whereby each branch was given mechanisms to constrain abuses by the other branches.
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In Federalist 78, Hamilton succinctly explained the importance of the federal judiciary as a separate, coequal branch of government:
For I agree, there is no liberty if the power of judging is not separated from the legislative and executive powers ... liberty can have nothing to fear from the judiciary alone; but would have everything to fear from its union with the other branches.
An independent federal judiciary was created for two distinct reasons. First, making the judiciary a third branch of government independent of the legislative and executive would enable the judiciary to check overconcentrations of power in the political brancheshence the need for institutional judicial independence. Second, making the judiciary independent of outside influences, both within and without government, would better enable the judiciary to render impartial decisions in individual caseshence the need for decisional independence. In both cases, the operating assumption was that a judiciary independent of the electorate and its representatives was needed to preserve the democratic values the electorate and its representatives held deara paradox that Alexander Bickel coined the ''counter-majoritarian difficulty'' in his book, The Least Dangerous Branch.
The provisions for judicial tenure ''during good Behavior'' and a compensation that could not be diminished were a part of the proposed Constitution from the very beginning and were considered essential to protect judicial independence. Arguing for life tenure in Federalist 78, Hamilton deftly pointed out:
The inflexible and uniform adherence to the rights of the Constitution and of the individuals, which we perceive to be indispensable in the Courts of Justice, can certainly not be expected from judges who hold their office by a temporary commission. Periodic appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.
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PROPOSED TERM LIMITS FOR FEDERAL JUDGES
Currently, proposals are pending in both Houses of Congress which seek to amend the Constitution by eliminating life tenure for federal judges during good behavior and substituting a set term of years (eight, ten or twelve years, depending on the proposal) subject to reappointment. The Senate proposal, S.J. Res. 26 (Smith, RNH), extends to all federal judges, including justices of the Supreme Court. The House proposalsH.J. Res. 63 (Paxon, RNY), and H.J. Res. 74 (Riggs, RCA)cover inferior federal court judges only.
We are inalterably opposed to all proposals to amend Article 111, Section 1 of the Constitution by limiting the lifetime tenure of Article III judges during good behavior and establishing a term of years, subject to reappointment. Such action would eviscerate the concept and reality of judicial independence.
Proposals for term limits for judges are not new. In fact, Thomas Jefferson proposed that the Constitution be amended to limit the initial term of judges to 6 years with the possibility of reappointment by the President with the consent of both houses of Congress; and in 1982, during the 87th Congress, a bill was introduced which would have subjected federal judges to ''good behavior'' reviews every ten years before a special committee of Congress.
More recently, certain presidential hopefuls last year suggested that judicial term limits should be considered as a way to restrain so called ''judicial activism.'' Interestingly, according to Dennis Shea, former deputy chief of staff to Senator Dole, the Dole campaign considered making term limits for federal judges a centerpiece of its criticism of judges, but ultimately rejected the idea as potentially dangerous to our system of government and ineffective as a vehicle for curbing judicial excesses. In an article on impeachment printed in the May/June issue of Policy Review, Mr. Shea sums up many of the most important arguments against term limits for federal judges. Explaining why the Dole campaign rejected term limit proposals, he said:
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[A]n amendment to impose term limits on federal judges would alter the fundamental structure of our system of government. Anticipating that the judiciary would be the weakest of the three branches, the Framers explicitly granted federal judges lifetime tenure so that they would be able to protect the Constitution against ''legislative encroachments.''
As Alexander Hamilton explains in Federalist No. 78, ''nothing will contribute so much as [lifetime tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.'' Is it smart to monkey with the fundamental mechanics of our constitutional structure? Do we really want to second-guess the Framers?
Perhaps as important, term limits would not drain the batteries of activist judges.... A term limit might prompt activist judges to rush to make their mark on history.
Some argue that term limits should be linked to reappointment: When a federal judge's term expires, he or she would be eligible for reconfirmation by the U.S. Senate. But what would this accomplish? Anxious about reappointment, judges might tack their decisions to the prevailing political winds as the expiration of their terms grow near. Would judges resort to lobbying the Senate for reappointment? What kind of deals would be made? And what about a conservative judge, properly committed to the principle of judicial restraint, who must face reappointment by a hostile Senate controlled by liberals? (Emphasis added.)
While the provision of tenure during good behavior has guaranteed judicial independence for the last two hundred years and has never been shown to be fundamentally flawed, we do have some relevant insight into the dangers of electing judges or requiring them to stand for retention elections after undergoing some form of merit selection.
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Problems abound in many states where judges are elected or are selected by merit and then subject to recall or reconfirmation. The Association's Commission on Separation of Powers and Judicial Independence, which I appointed last August, has heard testimony over the past several months from several witnesses expressing serious concerns over whether state judges can in fact be independent if their rulings will be the basis upon which they get reelected or retained. When state judges lose reelections or face recall elections based on one unpopular decisionand they dowill the public's confidence in that judge's ability to avoid bowing to popular opinion and to remain steadfast and apply the law even-handed be maintained?
State judicial retention and reelection campaigns require financing. Again, some witnesses before the Commission testified that a very substantial amount of money is expended on these campaigns, money that has to be raised from somewhere. What does this do to the public's perception that judges are truly beholden to no one but the law? And finally, will a federal system of judges appointed for terms and subject to reconfirmation escape these types of problems? Surely the answer is no.
One last point: We currently have a staggering number of federal judicial vacancies. Imagine how much more ''judgelock'' there would be if judges had to be reconfirmed every eight, ten, or twelve years. Current problems with the rate of filling judicial vacancies might pale in comparison.
H.R. 1252, THE JUDICIAL REFORM ACT OF 1997
This legislation proposes five procedural changes in laws affecting the federal courts. The Association supports some of these proposals, recommends some modifications, and opposes others . I will address each provision in the bill, seriatim.
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1. Three-Judge District Courts
Section 2 of the bill would require that any application for an interlocutory or permanent injunction against a state law adopted by referendum must be heard by a three-judge district panel on an expedited schedule, with appeals going directly to the Supreme Court. This provision is identical to H.R. 1170, introduced in the 104th Congress by Rep. Bono (RCa).
The Association opposes this provision of the bill. It would reinstate a statutory provision which was repealed over twenty years ago because it proved to be cumbersome, inefficient and confusing. In 1976, Congress rescinded former 28 U.S. 2281, originally enacted in 1910, which provided that,
[a]n interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute ... shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application thereof is heard and determined by a district court of three judges under section 2284 of this title.
This statutory language is, for all intents and purposes, identical to section 2 of H.R. 1252. Prior to its rescission, both the bar and the bench expressed opposition to Section 2281. Indeed the use of three-judge panels in most situations was questioned and criticized for at least a decade prior to any procedural reform.
In his address at the 95th Annual Meeting of the American Bar Association in August, 1972, then Chief Justice Burger recommended the elimination of all three-judge district courts. He said that such courts disrupt district and circuit judges' work, and that direct appeal to the Supreme Court, without the benefit of intermediate review by a court of appeals, seriously eroded the Supreme Court's power to control its workload since at that time, appeals from such three-judge district courts accounted for one in five cases heard by the Supreme Court. The Chief Justice further stated that the original reasons for establishing these special courts, whatever their validity at the time, no longer existed and that adequate means were available to secure an expedited appeal to the Supreme Court if the circumstances genuinely required it.
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While the present proposal is limited to a small class of cases, we do not believe the remedy is necessary and are concerned about the precedent it would establish.
The Historic Need for Three-Judge Courts No Longer Exist
Three-judge courts to review constitutional challenges to state laws were initially established to deal with ''the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. Two practices gave rise to these concerns.
First, at the turn of the century, federal procedure permitted a judge to issue an ex parte injunction that could paralyze an important state statute without the possibility of a hearing on the merits. See Goldstein v. Cox, 806 U.S. 471, 476 (1970). Moreover, such an ex parte order was often deemed unappealable because it was interlocutory. The net result was the possibility that a single judge, acting ex parte, could freeze state law for extended periods of time with virtually no possibility of appeal. Requiring the concurrence of three judges was seen as a way of assuring that the ex parte power was not abused.
Modern procedure has abolished the ex parte injunction (although ex parte temporary restraining orders may still be granted for no longer than ten days upon a showing of immediate and irreparable damage). Before a contemporary judge can issue a preliminary injunction, the judge must hear from the parties so that the relevant law and facts can be considered. Moreover, a preliminary injunction issued after such a hearing is now deemed a final order, permitting an immediate appeal to the circuit by an aggrieved party.
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Second, at the turn of the century, litigants could maneuver a case before a friendly judge by the simple expedient of presenting the judge with an application for an ex parte injunction. Requiring a court made up of three judges made it less likely that the litigants had stacked the court. Today, the procedures in effect in every district require the random selection of judges, making it impossible to use unfair tactics to judge-shop. Thus, the twin evils of unappealable ex parte orders and rampant judge-shopping that gave rise to three-judge courts no longer exist.
THREE-JUDGE DISTRICT COURTS WASTE VALUABLE JUDICIAL RESOURCES
A three-judge district court wastes valuable judicial resources. It requires three judges (including one Circuit judge) to do the work that is usually done by a single trial judge. In a system that is desperately starved for resources, requiring three-judge trial courts literally triples the judge time associated with fact-finding. Since fact-finding is the most labor intensive part of the litigation process, requiring three-judge courts is the equivalent of removing two-thirds of the judicial resources available to do this work.
The three-judge district court process also distorts the review processes of the Supreme Court. When a case handled by a single judge comes to the Supreme Court, it has already undergone trial level fact-finding and one level of appellate review. Three-judge district court cases, however, do not undergo any appellate review prior to Supreme Court review. Thus, in three-judge court cases, if any appellate review is to take place, it must occur initially at the level of the Supreme Court. Forcing the Court to function as a first-level review tribunal is an inappropriate imposition on its extremely scarce resources. The Supreme Court hears literally thousands of petitions for review each year. It is wrong to impose upon the Court by turning review petitions in three-judge court cases into requests for an initial appellate hearing.
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Proponents of three judge district courts argue that the additional judicial workload engendered by three-judge courts is tolerable in referendum cases because there are so few of them. Such an argument overlooks a number of important points.
First, any unnecessary increase in the workload of the federal courts is inappropriate, and every unnecessary increase should be resisted. Second, proponents overlook the fact that challenges to referenda will, in all likelihood, be disproportionately centered in particular circuits. Third, referendum cases are likely to involve complex issues of fact. In non-referendum cases, a legislative record will often have developed much of the required factual material. By definition, however, referendum cases lack a formal legislative record. Thus, a referendum case is likely to impose significant fact-finding burdens on the trial court.
Finally, it will prove extremely difficult to require referenda to undergo three-judge court review, while relegating legislation enacted through traditional representative democracy to single-judge courts. In effect, such a legislative scheme sets up two classes of democratic activity. Referenda are deemed ''first class'' democratic exercises worthy of three-judge court review. Statutes enacted by legislatures are seen as ''second class'' exercises in democracy meriting single judge protection. There is no consensus that referenda are superior to ordinary legislation as exercises in democracy. Quite the contrary, the Founders mistrusted direct democracy because of its capacity to be swayed by passion. Certainly, Congress should not discriminate in favor of referenda and against legislative enactments in setting up procedural groundrules.
2. Interlocutory Appeals of Court Orders Pertaining to Class Actions
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Section 3 of the bill provides for discretionary interlocutory appeal of an order granting or denying class action certification. This bill provision mirrors a proposed amendment to Rule 23 of the Federal Rules of Civil Procedure which was drafted by the Judicial Conference's Advisory Committee on the Rules of Civil Procedure, presented along with other Rule 23 amendments to the public for comment in last summer, and is now before the Judicial Conference Committee on Rules of Practice and Procedure for approval. The proposed rule change will become effective on December 1, 1998, if it is approved by the Standing Committee, the Judicial Conference, and the Supreme Court, and if it is not altered by Congress. The comments to the proposed rule change identified it as one of the least controversial of the proposed changes to Rule 23.
We support the substance of this section of the bill, but oppose revision of the Federal Rules through the legislative process.
We have consistently supported the congressionally enacted, judicial rulemaking process set forth in the Rules Enabling Act of 1934 (28 U.S.C. Sec. 2072) and attendant legislation. This well-settled, congressionally-specified procedure proceeds from separation of powers concerns and is driven by the practical recognition that, among other things:
Rules of procedure are inherently a matter of intimate concern to the judiciary which must apply them on a daily basis;
Each rule forms just one part of a complicated, interlocking whole, rendering due deliberation and public comment essential; else the impact of any rule may be quite different in quality or force that which was intended; and
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The Judicial Conference is in a unique position to draft rules with care in a setting isolated from pressures that may interfere with painstaking consideration and due deliberation.
For the record, the Association supports revision of Rule 23 to allow permissive interlocutory appeals of class action certification decisions by a party to the action as a substantial improvement over current practice and a positive step toward achieving fundamental fairness. We recognize that the class certification decision is often determinative of the actual outcome of the litigation. Denial of class certification can result in plaintiffs incurring grossly disproportionate expenses compared to potential individual recovery; and grants of certification can expose defendants to potentially ruinous recovery. Current practice permits such review only at the discretion of the district judge or by satisfying the rigorous requirements for mandamus.
We nonetheless must oppose this provision of the bill because it circumvents the Rulemaking process. Not only is it imprudent to repudiate the established process, it also is unnecessary to offer legislation since the proposed rule change is well into the review and approval process established by the Rules Enabling Act.
3. Proceedings on Complaints Against Judicial Conduct
Section 4 of the bill requires that complaints of misconduct or disability filed in accordance with Sec. 372(c) of the ''Judicial Councils Reform and Judicial Conduct and Disability Act of 1980'' be referred to a different judicial circuit for resolution. Currently, complaints are filed and resolved by the judicial council of the circuit in which the judge resides. The Association has no policy addressing ''venue'' considerations directly, but we do have policy supporting the Act in principle.
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The 1980 Act was the culmination of years of discussion and compromise over the scope, design, and constitutionality of establishing a statutory disciplinary mechanism for the federal judiciary. The history of the Act makes it clear that Congress passed the Act to provide a credible, formal supplement to the impeachment process for resolving complaints of misconduct or disability against federal judges.
The 1980 Act permits any person to file a complaint alleging that a federal judge (including bankruptcy and Magistrate judges, but not Supreme Court justices who are exempt from coverage) ''has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or ... is unable to discharge all the duties of office by reason of mental or physical disability.'' Since 1990, the Act has also let a chief judge of a circuit dispense with a formal complaint and ''identify a complaint on the basis of available information.''
After considering a complaint, the chief judge may, by written order stating the reasons, dismiss the complaint if it is frivolous, ''directly related to the merits of a decision or procedural ruling,'' or not in conformity with the filing requirements of the Act, or if corrective action has already been taken.
If a chief judge does not dismiss a complaint, he or she must appoint a special committee to investigate the complaint and file a written report which contains both the findings and recommendations with the circuit judicial council. The judicial council may conduct an investigation of its own and is required to ''take such action as is appropriate to assure the effective and expeditious administration of the business of the courts.'' The Act specifies some of the actions a council may take, prohibiting, however, the removal of a judge from office.. Actions include: certifying disability of a judge, requesting that the judge retire, ordering that no more cases be assigned to that judge for a temporary time, and censuring or reprimanding such judge privately or publicly. The judicial council may also dismiss a complaint or refer it to the Judicial Conference for resolution. If the council concludes that the aggrieved behavior of a judge may constitute one or more grounds for impeachment, the case is automatically referred to the Judicial Conference for final action.
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In 1990, Congress established the National Commission on Judicial Discipline and Removal to investigate and study the problems and issues involved in the tenure of Article III judges and to evaluate current and proposed mechanisms for disciplining and removing federal judges. As part of its mission, the Commission undertook a rigorous study of the 1980 Act. The National Commission concluded that perhaps one of the most important benefits of the Act was the impetus it has given to informal resolutions of problems of judicial misconduct and disability. It said that in assessing the impact of the Act, ''it would be a mistake to attend only to complaints that resulted in council action following the appointment and report of a special committee.... [T]he opportunity to resolve complaints and conclude a proceeding on the basis of corrective action is a central feature of the Act. Indeed, 73 complaints ... were resolved on that basis.'' Report of the National Commission on Judicial Discipline and Removal, August, 1993, pp 8990.
The Association concurred with the Commission's overall views regarding the efficacy of the Act, and adopted policy reaffirming its support for the Act, while recommending some procedural modifications. Recognizing the salutary effects of the Act in resolving meritorious complaints and providing a vehicle for informal resolution of a number of performance problems within the judiciary, the ABA policy also supports efforts within the bar and by state and local bars to increase awareness and understanding of the Act.
It is not of insignificant probative value that after assessing the effectiveness of the Act's first thirteen years, both the National Commission and the Association believe that a very significant feature of the Act is its encouragement of informal resolution of problems of misconduct within the circuit. It is not difficult to surmise this benefit of the Act will be lost if complaints are handled outside of council in which the judge resides.
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In order to derive the full benefit of the Act, there is a need to inform the public and the bar of this mechanism and encourage its appropriate use. Widespread knowledge of the Act should enhance confidence in judicial accountability and disciplinary self-regulation and therefore, ultimately, serve the people and serve the judiciary. We hope to undertake such efforts.
4. Limitation on Court-Imposed Taxes
Section 5 of the bill prohibits a district court from entering any order or approving any settlement that requires any state or political subdivision of a state to impose, increase, levy or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law unless the court finds by clear and convincing evidence that seven enumerated conditions are met. In addition, any aggrieved person or corporation within the political subdivision in which the imposition of a tax is contemplated has the right to intervene in any relevant proceeding; any order imposing such a tax automatically terminates in one year or less; and no tax can be levied if imposition contravenes state or local law. It is safe to say that, rather than limiting the use of this remedy, this provision would, for all practical purposes, eliminate its availability.
Rather than commenting on specific aspects of this section, such as interpretation difficulties with the seven conditions which a court has to find by clear and convincing evidence prior to ordering the remedy in question, we suggest that this provision be dropped from the bill because it is unnecessary, constitutionally suspect, and bad precedent.
Page 269 PREV PAGE TOP OF DOC The American Bar Association vehemently opposes legislation which proposes to curtail the jurisdiction of the federal courts or the remedies available to the federal courts in cases involving constitutional rights. While we recognize that this remedy-restricting provision of the bill extends beyond cases involving constitutional rights, we will confine our comments to cases implicating constitutional rights, in accordance with our policy.
One proposed solution to the problem asserted by some today that the federal courts are overstepping their constitutional role is to limit their jurisdiction or curtail their remedial power; ironically, such a solution requires Congress to intrude on the judicial role. While Congress has undefined powers to withdraw jurisdiction from the federal courts under Article 111 of the Constitution, those powers do not stand alone. They are subject to the plan of government created by the Constitution as a whole and to the external limitations imposed on the congress by the Bill of Rights and other amendments.
The Congress, although presented with numerous opportunities to pass court-stripping or remedy-stripping bills in the past, has acted with great caution, and has refrained from testing the outer limits in ways that could strain or impair the unique system of government created by our Constitution. Those who most strongly believe our Constitution needs change should pursue change through the amendment process.
If Congress, by simple majority vote, could rewrite the Constitution, a future Congress could wipe out federal jurisdiction and remedies in all constitutional cases. And if state legislatures followed suit and deprived state courts of constitutional jurisdiction, we would have no judicial review at all in constitutional cases.
Page 270 PREV PAGE TOP OF DOC Some people say that enactment of remedy-restricting provisions will teach the courts a needed lesson. But if the process is begun, where will it stop? George Washington, in his moving Farewell Address to the Nation, issued a clear warning:
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil, any partial or transient benefit which the use can at any time yield.
5. Reassignment of Cases upon Motion by a PartyPeremptory Challenges
Section 6 of H.R. 1252 permits all parties on one side of a case, in a civil action, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. The motion will be automatically granted if it is brought within 20 days of the assignment, prior to any substantial rulings on the case, and with the consent of all the parties on that side. Time extensions are provided for parties who are joined later, but such parties can only exercise this option if it has not already been exercised.
Based on policy adopted in 1980, the ABA supports this provision, provided it is coupled with a provision to repeal 28 U.S.C. Sec. 144, which provides for recusal of a federal judge on the basis of personal bias or prejudice. The policy's accompanying report contains a proposed statute which establishes guidelines similar to the ones proposed here, i.e., that only one peremptory challenge per side should be allowed, that all parties to a side must agree, and that such a motion be made within twenty days of assignment. The proposed statute includes a provision not covered by this bill but which should be added: if there is only one judge in the district, such motions shall be heard by the chief circuit court judge who shall assign another judge to the matter.
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Currently, judicial disqualification is governed by two statutes, 28 U.S.C. Secs. 144 and 455. Section 144 provides that upon filing of an affidavit by a party claiming that a judge has personal bias or prejudice, either against him or in favor of his adversary, the judge shall proceed no further with the case; he is not free to determine the truth of the allegations, but only to adjudge their legal sufficiency procedurally. Section 455 sets forth a broader standard and provides that a federal judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, and also ''where he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.''
The ABA supports the substitution of the peremptory challenge provisions of this section of the bill for Section 144 recusal motions (while leaving Sec. 455 motions in place) because this would avoid the acrimony associated with making a factual showing of prejudice and the appearance of making an assault on the judge's dignity. Second, the proposal requires only a statement that a party desires disqualification, thus preventing delay and diversion of the parties' and courts' attention from the merits of a matter to a contest over the impartiality of a judge, Most important, this approach recognizes that the integrity and dignity of our judicial system goes beyond that of any individual judge, and requires that litigants truly believe in the impartiality of our courts.
The experience of state courts using peremptory disqualification systems has demonstrated that such systems lead neither to overly burdensome or costly administrative difficulties, nor to excessive use of disqualification. We believe that such a system, coupled with repeal of Sec. 144, is the most sound and efficient method to allay litigants' fears of partiality.
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In conclusion, I leave you with a quote from a past ABA President, Jacob M. Dickenson, excerpted from a speech expressing grave concern over the escalating attacks on the independence of the judiciary. The speech was delivered in 1908:
... The people have been led away from the principle that the independence of the judiciary is one of the mainstays of civil liberty under self-government, which is based on mutual self-restraint, and the belief that it is no less important than the principle of representation itself.... The Constitution thus formed has maintained the liberties of all classes for more than a century. We will drift into disregard of the rights of the minority and of the weak if this equilibrium shall ever be destroyed....
Thank you for this opportunity to submit the views of the Association on these important issues.
JUDICIAL REFORM ACT OF 1997
Page 273 PREV PAGE TOP OF DOCCOURTS AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
JUDICIAL REFORM ACT OF 1997
MAY 14, 1997
Serial No. 27
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Page 274 PREV PAGE TOP OF DOCSuperintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
Page 275 PREV PAGE TOP OF DOCBARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Courts and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
SONNY BONO, California
EDWARD A. PEASE, Indiana
Page 276 PREV PAGE TOP OF DOCCHRISTOPHER B. CANNON, Utah
BILL McCOLLUM, Florida
CHARLES T. CANADY, Florida
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
ZOE LOFGREN, California
WILLIAM D. DELAHUNT, Massachusetts
MITCH GLAZIER, Chief Counsel
BLAINE MERRITT, Counsel
VINCE GARLOCK, Counsel
DEBBIE LAMAN, Counsel
ROBERT RABEN, Minority Counsel
C O N T E N T S
May 14, 1997
TEXT OF BILL
Page 277 PREV PAGE TOP OF DOC Coble, Hon. Howard, a Representative in Congress from the State of North Carolina, and chairman, Subcommittee on Courts and Intellectual Property
Bryant, Hon. Ed, a Representative in Congress from the State of Tennessee
Burbank, Steve B., David Berger Professor for the Administration of Justice, University of Pennsylvania
Destro, Robert A., professor, Catholic University School of Law
Hellman, Arthur D., professor, University of Pittsburgh School of Law
Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and chairman, Committee on the Judiciary
Lacey, Frederick B., LeBoeuf, Lamb, Greene & MacRae
Lofgren, Hon. Zoe, a Representative in Congress from the State of California
Lungren, Hon. Dan, attorney general, State of California
Manzullo, Hon. Donald A., a Representative in Congress from the State of Illinois
Mountjoy, Richard L., senator, California State Senate
Politz, Hon. Henry A., chief judge, U.S. Court of Appeals for the Fifth Circuit
Watt, Hon. Melvin L., a Representative in Congress from the State of North Carolina
Williams, Hon. Anne, judge, U.S. District Court of Appeals for the Fifth District
Page 278 PREV PAGE TOP OF DOCLETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bryant, Hon. Ed, a Representative in Congress from the State of Tennessee: Prepared statement
Burbank, Steve B., David Berger Professor for the Administration of Justice, University of Pennsylvania: Prepared statement
Destro, Robert A., professor, Catholic University School of Law: Prepared statement
Hellman, Arthur D., professor, University of Pittsburgh School of Law: Prepared statement
Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and chairman, Committee on the Judiciary: Prepared statement
Lacey, Frederick B., LeBoeuf, Lamb, Greene & MacRae: Prepared statement
Lofgren, Hon. Zoe, a Representative in Congress from the State of California: Prepared statement
Lungren, Hon. Dan, attorney general, State of California: Prepared statement
Manzullo, Hon. Donald A., a Representative in Congress from the State of Illinois: Prepared statement
Mountjoy, Richard L., senator, California State Senate: Prepared statement
Politz, Hon. Henry A., Chief Judge, U.S. Court of Appeals for the Fifth Circuit, and Hon. Ann Claire Williams, judge, U.S. District Court for the Northern District of Illinois, on behalf of the Judicial Conference of the United States: Prepared statement
Williams, Hon. Ann, judge, U.S. District Court of Appeals for the Fifth District:
Sundry letters concerning peremptory challenges
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Material submitted for the hearing
(Footnote 1 return)
Section 5 is similar to legislation introduced in the 104th Congress by Senator Charles Grassley, S. 1817. That bill text was preceded by several congressional ''findings.'' Those findings stated that a federal court exceeds the appropriate exercise of judicial power: (1) when a court imposes or increases taxes; (2) when taxes are imposed by judicial order; (3) when a federal court issues an order that requires or results in the imposition or increase in taxes; or (4) when a court enters an order or approves a settlement that has the effect of imposing or increasing taxes.
(Footnote 2 return)
Dr. Bonham's Case, 77 Eng. Rep. 646, 652 (1609).
(Footnote 3 return)
Susan B. Hoekema, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. 455(a), 60 Temp. L.Q. 697, (Fall, 1987); Adam Safer, The Illegitimacy of the Extrajudicial Source Requirement for Judicial Disqualification Under 28 U.S.C. 455, 15 Cardozo L. Rev. 787 (Dec. 1993).
(Footnote 4 return)
In re Bernard 31 F.3d 842, 843 (9th Cir. 1994).
(Footnote 5 return)
See John Frank, ''Disqualification of Judges,'' Law and Contemporary Problems, 35 (Winter, 1970) 43, 4445.
(Footnote 6 return)
46 Cong. Rec. 2627 (1911); See also, Christopher R. Carton, Disqualifying Federal Judges for Bias: A Consideration of the Extrajudicial Bias Limitation for Disqualification Under 28 U.S.C. 455(a), 24 Seton Hall L. Rev. 2057, at FN 13 (1994).
(Footnote 7 return)
This erosion of 144 began with Berger v. United States, 255 U.S. 22 (1921) which contained language that ''the reasons and facts for the belief the litigant entertains are an essential part of the affidavits, and must give fair support to the charge of a bent mind that may prevent or impede impartiality of judgment.''
(Footnote 8 return)
Russell Iungrich, ''The Time Has Come,'' Los Angeles Lawyer (September, 1980), 16.
(Footnote 9 return)
Chicago Bar Association, Judiciary Committee, Preliminary Report of the Subcommittee on the Peremptory Challenge Act of 1980 Relating to Federal Judges, Oct. 1, 1981.
(Footnote 10 return)
Randall J. Litteneker, Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U. Chicago L. Rev. 236, 267 (1978), ''The primary focus must be upon the need for a judicial system that not only is impartial in fact, but appears to render disinterested justice.''
(Footnote 11 return)
Alaska, Arizona, California, Idaho, Illinois, Indiana, Minnesota, Missouri, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Washington, Wisconsin, Wyoming.
(Footnote 12 return)
Wisconsin in 1853, the Dakota Territory in 1877, the Wyoming territory in 1877; See Judicial Substitution: An Examination of Judicial Peremptory Challenges In the States, The United States Department of Justice, Office of Legal Policy, 48 (March 1986).
(Footnote 13 return)
Black's Law Dictionary, 1023.
(Footnote 14 return)
Judicial Substitution: An Examination of Judicial Peremptory Challenges in the States, U.S. Department of Justice (March 1986), 2.
(Footnote 15 return)
Id. at 352.
(Footnote 16 return)
H.R. 1649, 9th Cong., 1st Sess. (1981); H.R. 3125, 98th Cong., 1st Sess., (1983); and H.R. 1419, 99th Cong., 1st Sess. (1985).
(Footnote 17 return)
When I left Congress in 1988 the following organizations supported extending peremptory challenges to the federal courts: State Bar of Alaska, State Bar of Arizona, State Bar of California, State Bar of New Mexico, State Bar of Nevada, State Bar of South Dakota, State Bar of Wyoming, Los Angeles Co. Bar Assoc., Bar Assoc. of New York, Milwaukee Bar Assoc., Chicago Bar Assoc., The Bar Assoc. of Metropolitan St. Louis, Sacramento Co. Bar Assoc., Maricopa Co. Bar Assoc., Santa Clara Co. Bar Assoc., Denver Bar Assoc., Bar Assoc. of San Francisco, California Trial Lawyers Assoc., American Board of Trial Advocates, San Francisco Trial Lawyers Assoc., Lawyers Club of San Francisco, Los Angeles Trial Lawyers Assoc. Western States Trial Lawyers; See Judicial Substitution supra. at 331.
(Footnote 18 return)
Judicial Substitution: An examination of Judicial Peremptory Challenges in the States, at 270.
(Footnote 19 return)
39 Am Jur 2d., Habeas Corpus, 10.
(Footnote 20 return)
Harris v. Nelson, 394 U.S. 286, 289 (1968).
(Footnote 21 return)
Arizonans for Official English v. Arizona, 117 S.Ct. 1055, 107273 (1977).
(Footnote 22 return)
Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 283, 284 (1970); 5 of the Act of March 2, 1793, 1 stat. 335.
(Footnote 23 return)
469 U.S. 528 (1985)
(Footnote 24 return)
Id., at 572 (Powell, J. dissenting).
(Footnote 25 return)
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985).
(Footnote 26 return)
209 U.S. 123 (1908).
(Footnote 27 return)
Ex parte Young, 209 U.S. at 175 (Harlan, J., dissenting).
(Footnote 28 return)
45 Cong. Rec. 7256.
(Footnote 29 return)
45 Cong. Rec. 7256 (1910), quoted in Hart & Wechsler, The Federal Courts and the Federal System, p.1334 (3rd ed. 1988).
(Footnote 30 return)
''In Chicago, M. & St. P.R. Co. v. Minnesota, 134 U.S. 418, this Court held that the setting of rates not permitting a fair return violated the Due Process Clause of the Fourteenth Amendment. Ex parte Young, 209 U.S. 123, established firmly the corollary that inferior federal courts could enjoin state officials form enforcing such unconstitutional state laws.'' (Swift & Co., Inc. v. Wickham, 382 U.S. 111, 117 (1965).)
(Footnote 31 return)
'Senator Overman noted that ''... nine out of ten of the cases where application for an injunction has been made to test the constitutionality of state statutes have been railroad cases.' 45 Cong. Rec. 7254 (1910).'' (Swift, supra at 117, n. 8.)
(Footnote 32 return)
Pullman Co. v. Railroad Commission of Texas 312 U.S. 497 (1941).
(Footnote 33 return)
36 Stat. 557.
(Footnote 34 return)
Hart & Wechsler, supra, at p. 1334.
(Footnote 35 return)
Ex parte Poresky, 290 U.S. 30 (1933); California Water Service Co. v. City of Redding, 304 U.S. 252 (1938).
(Footnote 36 return)
(Ex parte Collins, 277 U.S. 565 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928).
(Footnote 37 return)
(Kesler v. Department of Public Safety, 369 U.S. 153 (1963).
(Footnote 38 return)
E.g., Griffin v. Board of Supervisors, 339 F.2d 486 (4th Cir. 1964).
(Footnote 39 return)
(Department of Education v. U.S., 385 U.S. 355 (1966). In view of the alacrity with which the federal judiciary seized on the substantial-versus-insubstantial, statewide-versus-local, immediate-versus-ultimate and facial-versus-as-applied, rubrics in establishing exceptions to the 3-judge court requirement, query whether Pullman abstention, rather than being considered as a separately-conceived doctrine of deference based on comity, is not more accurately regarded, in its origins, at least, as yet another stratagem to cut down on 2281 workload.
(Footnote 40 return)
(Footnote 41 return)
A.F.L. v. American Sash Co., 335 U.S. 538, 556 (1949) (concurring opinion).
(Footnote 42 return)
See Berger, Government by Judiciary, pp. 300304 (1977).
(Footnote 43 return)
Towcey v. NY Life Ins. Co. 314 U.S. 118, 129132 (1941); 5 of the Act of March 2, 1793, 1 stat. 335.
(Footnote 44 return)
Younger v. Harris, 401 U.S. 37, 44 (1971).
(Footnote 45 return)
New Motor Vehicle Board of California v. Orrin W. Fox Co. (Opinion of Rehnquist, J., in Chambers), 434 U.S. 1345 (1977).
(Footnote 46 return)
Missouri K. & T. Ry. v. May, 194 U.S. 267, 270 (1904).