[Congressional Record Volume 143, Number 41 (Wednesday, April 9, 1997)]
[Extensions of Remarks]
[Pages E616-E617]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          THE INTRODUCTION OF THE JUDICIAL REFORM ACT OF 1997

                                 ______
                                 

                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                        Wednesday, April 9, 1997

  Mr. HYDE. Mr. Speaker, I am pleased, along with many of my colleagues 
on the Judiciary Committee, to introduce the Judicial Reform Act of 
1997. This necessary legislation addresses one of the most disturbing 
problems facing our constitutional system today--the infrequent but 
intolerable breach of the separation of powers by some members of the 
Federal judiciary.
  The first reform contained in this bill was developed originally by a 
valued member of the committee, Representative Bono of California. 
Recognizing the unjust effect on voting rights created by injunctions 
issued in California by one judge against the will of the people of the 
State as reflected in propositions 187 and 209, this bill provides that 
requests for injunctions in cases challenging the constitutionality of 
measures passed by a State referendum must be heard by a three-judge 
court. Like other Federal voting rights legislation containing a 
provision providing for a hearing by a three-judge court, the Judicial 
Reform Act of 1997 is designed to protect voters in the exercise of 
their vote and to further protect the results of that vote. It requires 
that legislation voted upon and approved directly by the citizens of a 
State be afforded the protection of a three-judge court pursuant to 28 
U.S.C. 2284 where an application for an injunction is brought in 
Federal court to arrest the enforcement of the referendum on the 
premise that the referendum is unconstitutional.
  In effect, where the entire populace of a State democratically 
exercises a direct vote on an issue, one Federal judge will not be able 
to issue an injunction preventing the enforcement of the will of the 
people of that State. Rather, three judges, at the trial level, 
according to procedures already provided by statute, 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 the final 
decision is that the referendum is constitutional. Such an expedited 
procedure is already provided for in other voting rights cases. It 
should be no different in this case, since a State is redistricted

[[Page E617]]

for purposes of a vote on a referendum into one voting block. The 
Congressional Research Service estimates that these 3-judge courts 
would be required less than 10 times in a decade under this bill, 
causing a very insubstantial burden on the Federal judiciary, while 
substantially protecting the rights of the voters of a State.
  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 people.
  The second reform contained in this bill was developed by the 
chairman of the Subcommittee on the Constitution, Representative Canady 
of Florida. 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 appeal that decision immediately to the 
proper court of appeals without delaying the progress of the underlying 
case. This prevents automatic certification of class actions by judges 
whose decisions to certify may go unchallenged because the parties have 
invested too many resources into the case before an appeal is allowed.
  This bill will also prevent abuses by attorneys who bring class 
action suits when they are not warranted, and 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.
  The third reform contained in this bill was developed by another 
valued member of the committee, Representative Bryant of Tennessee. It 
requires that a complaint brought against a Federal judge be sent to a 
circuit other than the one in which the judge who is the object of the 
complaint sits for review. This will provide for a more objective 
review of the complaint and improve the efficacy of the Judicial 
Councils Reform and Judicial Conduct and Disability Act of 1980, 28 
U.S.C. 372--The 1980 Act--which established a mechanism for the filing 
of complaints against Federal judges.
  Under those procedures, a complaint alleging that a Federal judge has 
engaged in conduct prejudicial to the effective and expeditious 
administration of the business of the courts may be filed with the 
clerk of the U.S. Court of Appeals for the circuit in which the Federal 
judge to be complained against sits. Under the act, a special committee 
will report to the judicial council of the circuit, which will decide 
what action, if any, should be taken.
  By requiring that complaints filed under the 1980 act be transferred 
to a circuit other than the circuit in which the alleged wrongdoer 
sits, more objectivity and accountability will exist for litigants who 
find themselves in need of relief from a judge who is not properly 
performing his or her functions.
  The fourth reform contained in this bill prohibits a Federal court 
from imposing taxes, a function reserved to legislative bodies, for the 
purpose of enforcing a legal decision. Mr. Speaker, 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.
  In some cases, judges have designed in specific detail local school 
systems and public housing systems, and then ordered tax increases to 
finance the spending bills disguised in their judicial rulings. 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 must come from the 
House of the people and not from the authority of the bench. The 
judiciary is not equipped nor given the power to make such decisions. 
To allow otherwise is to usurp self-rule and replace it with self-
appointed authority. As four Justices of the U.S. Supreme Court have 
stated, the imposition of taxes by courts ``disregards fundamental 
precepts for the democratic control of public institutions. The power 
of taxation is one that the Federal judiciary does not possess.''

  This bill will restore the proper balance defined in the Constitution 
between the Federal branches and Federal-State relations by prohibiting 
courts from imposing taxes on any community. It retains accountability 
by legislatures to the electorate, and not to judges.
  The fifth reform contained in this bill was also developed by 
Representative 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 by 
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, appointed for life, in any 
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 be given to their case before they bear the costs 
associated with litigating in trial court and will encourage the 
judiciary to be as impartial as required by their charge.
  Mr. Speaker, 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 claims.
  I commend the entire Committee on the Judiciary for their work in 
procuring these reforms to our courts, and look forward to hearings on 
this bill in the middle of May by the Subcommittee on Courts and 
Intellectual Property, chaired by Representative Howard Coble.

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