House Report 105-478 - JUDICIAL REFORM ACT OF 1998

[House Report 105-478]
[From the U.S. Government Publishing Office]

105th Congress Report
HOUSE OF REPRESENTATIVES

2d Session 105-478
_______________________________________________________________________

JUDICIAL REFORM ACT OF 1998

_______

April 1, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______________________________________________________________________

Mr. Coble, from the Committee on the Judiciary, submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 1252]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 1252) to modify the procedures of the Federal courts in
certain matters, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.

CONTENTS

Page
Purpose and Summary.............................................. 10
Background and Need for Legislation.............................. 10
Hearings......................................................... 11
Committee Consideration.......................................... 11
Vote of the Committee............................................ 11
Committee Oversight Findings..................................... 15
Committee on Government Reform and Oversight Findings............ 15
New Budget Authority and Tax Expenditures........................ 15
Congressional Budget Office Estimate............................. 15
Constitutional Authority Statement............................... 18
Section-by-Section Analysis...................................... 18
Agency Views..................................................... 25
Changes in Existing Law as Made by the Bill, as Reported......... 42
Dissenting Views................................................. 58

The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Judicial Reform Act of 1998''.

SEC. 2. 3-JUDGE COURT FOR ANTICIPATORY RELIEF.

(a) Requirement of 3-Judge Court.--Any application for anticipatory
relief against the enforcement, operation, or execution of a State law
adopted by referendum shall not be granted by a United States district
court or judge thereof upon the ground that the State law is repugnant
to the Constitution, treaties, or laws of the United States unless the
application for anticipatory relief is heard and determined by a court
of 3 judges in accordance with section 2284 of title 28, United States
Code. Any appeal of a determination on such application shall be to the
Supreme Court. In any case to which this section applies, the
additional judges who will serve on the 3-judge court shall be
designated under section 2284(b)(1) of title 28, United States Code, as
soon as practicable, and the court shall expedite the consideration of
the application for anticipatory relief.
(b) Definitions.--As used in this section--
(1) the term ``State'' means each of the several States and
the District of Columbia;
(2) the term ``State law'' means the constitution of a State,
or any statute, rule, regulation, or other measure of a State
that has the force of law, and any amendment thereto;
(3) the term ``referendum'' means the submission to popular
vote, by the voters of the State, of a measure passed upon or
proposed by a legislative body or by popular initiative; and
(4) the term ``anticipatory relief'' means an interlocutory
or permanent injunction or a declaratory judgment.
(c) Effective Date.--This section applies to any application for
anticipatory relief that is filed on or after the date of the enactment
of this Act.

SEC. 3. INTERLOCUTORY APPEALS OF COURT ORDERS RELATING TO CLASS
ACTIONS.

(a) Interlocutory Appeals.--Section 1292(b) of title 28, United
States Code, is amended--
(1) by inserting ``(1)'' after ``(b)''; and
(2) by adding at the end the following:
``(2) A party to an action in which the district court has made a
determination of whether the action may be maintained as a class action
may make application for appeal of that determination to the court of
appeals which would have jurisdiction of an appeal of that action. The
court of appeals may, in its discretion, permit the appeal to be taken
from such determination if the application is made within 10 days after
the entry of the court's determination relating to the class action.
Application for an appeal under this paragraph shall not stay
proceedings in the district court unless the district judge or the
court of appeals or a judge thereof shall so order.''.
(b) Effective Date.--The amendment made by subsection (a) applies to
any action commenced on or after the date of the enactment of this Act.

SEC. 4. PROCEEDINGS ON COMPLAINTS AGAINST JUDICIAL CONDUCT.

(a) Referral of Proceedings to Another Judicial Circuit or Court.--
Section 372(c) of title 28, United States Code, is amended--
(1) in paragraph (1) by adding at the end the following: ``In
the case of a complaint so identified, the chief judge shall
notify the clerk of the court of appeals of the complaint,
together with a brief statement of the facts underlying the
complaint.'';
(2) in paragraph (2) in the second sentence by inserting ``or
statement of facts underlying the complaint (as the case may
be)'' after ``copy of the complaint'';
(3) in paragraph (3)--
(A) by inserting ``(A)'' after ``(3)'';
(B) by striking ``may--'' and all that follows
through the end of subparagraph (B) and inserting the
following: ``may dismiss the complaint if the chief
judge finds it to be--
``(i) not in conformity with paragraph (1);
``(ii) directly related to the merits of a decision or
procedural ruling; or
``(iii) frivolous.''; and
(C) by adding at the end the following:
``(B) If the chief judge does not enter an order under subparagraph
(A), then the complaint or (in the case of a complaint identified under
paragraph (1)) the statement of facts underlying the complaint shall be
referred to the chief judge of another judicial circuit for proceedings
under this subsection (hereafter in this subsection referred to as the
`chief judge'), in accordance with a system established by rule by the
Judicial Conference, which prescribes the circuits to which the
complaints will be referred. The Judicial Conference shall establish
and submit to the Congress the system described in the preceding
sentence not later than 180 days after the date of the enactment of the
Judicial Reform Act of 1998.
``(C) After expeditiously reviewing the complaint, the chief judge
may, by written order explaining the chief judge's reasons, conclude
the proceeding if the chief judge finds that appropriate corrective
action has been taken or that action on the complaint is no longer
necessary because of intervening events.'';
(4) in paragraph (4)--
(A) by striking ``paragraph (3)'' and inserting
``paragraph (3)(C)''; and
(B) in subparagraph (A) by inserting ``(to which the
complaint or statement of facts underlying the
complaint is referred)'' after ``the circuit'';
(5) in paragraph (5)--
(A) in the first sentence by inserting ``to which the
complaint or statement of facts underlying the
complaint is referred'' after ``the circuit''; and
(B) in the second sentence by striking ``the
circuit'' and inserting ``that circuit'';
(6) in the first sentence of paragraph (15) by inserting
before the period at the end the following: ``in which the
complaint was filed or identified under paragraph (1)''; and
(7) by amending paragraph (18) to read as follows:
``(18) The Judicial Conference shall prescribe rules, consistent with
the preceding provisions of this subsection--
``(A) establishing procedures for the filing of complaints
with respect to the conduct of any judge of the United States
Court of Federal Claims, the Court of International Trade, or
the Court of Appeals for the Federal Circuit, and for the
investigation and resolution of such complaints; and
``(B) establishing a system for referring complaints filed
with respect to the conduct of a judge of any such court to any
of the first eleven judicial circuits or to another court for
investigation and resolution.
The Judicial Conference shall establish and submit to the Congress the
system described in subparagraph (B) not later than 180 days after the
date of the enactment of the Judicial Reform Act of 1998.''.
(b) Disclosure of Information.--Section 372(c)(14) of title 28,
United States Code, is amended--
(1) in subparagraph (B) by striking ``or'' after the
semicolon;
(2) in subparagraph (C) by striking the period at the end and
inserting ``; or''; and
(3) by adding after subparagraph (C) the following:
``(D) such disclosure is made to another agency or
instrumentality of any governmental jurisdiction within or
under the control the United States for a civil or criminal law
enforcement activity authorized by law.''.
(c) Effective Date.--The amendments made by subsection (a) apply to
complaints filed on or after the 180th day after the date of the
enactment of this Act.

SEC. 5. LIMITATION ON COURT-IMPOSED TAXES.

(a) Limitation.--Chapter 85 of title 28, United States Code, is
amended by adding at the end the following new section:

``Sec. 1369. Limitation on Federal court remedies

``(a) Limitation on Court-Imposed Taxes.--(1) No district court may
enter any order or approve any settlement that requires any State, or
political subdivision of a State, to impose, increase, levy, or assess
any tax, unless the court finds by clear and convincing evidence,
that--
``(A) there are no other means available to remedy the
deprivation of a right under the Constitution of the United
States;
``(B) the proposed imposition, increase, levying, or
assessment is narrowly tailored to remedy the specific
deprivation at issue so that the remedy imposed is directly
related to the harm caused by the deprivation;
``(C) the tax will not contribute to or exacerbate the
deprivation intended to be remedied;
``(D) plans submitted to the court by State and local
authorities will not effectively redress the deprivations at
issue;
``(E) the interests of State and local authorities in
managing their affairs are not usurped, in violation of the
Constitution, by the proposed imposition, increase, levying, or
assessment; and
``(F) the proposed tax will not result in the loss or
depreciation of property values of the taxpayers who are
affected.
``(2) The limitation contained in paragraph (1) shall apply only to
any order or settlement which--
``(A) expressly directs any State, or political subdivision
of a State, to impose, increase, levy, or assess any tax; or
``(B) will necessarily require a State, or political
subdivision of a State, to impose, increase, levy, or assess
any tax.
``(3) If the court finds that the conditions set forth in paragraph
(1) have been satisfied, it shall enter an order incorporating that
finding, and that order shall be subject to immediate interlocutory de
novo review.
``(4) A remedy permitted under paragraph (1) shall not extend beyond
the case or controversy before the court.
``(5)(A) Notwithstanding any law or rule of procedure, any person or
entity whose tax liability would be directly affected by the imposition
of a tax under paragraph (1) shall have the right to intervene in any
proceeding concerning the imposition of the tax, except that the court
may deny intervention if it finds that the interest of that person or
entity is adequately represented by existing parties.
``(B) A person or entity that intervenes pursuant to subparagraph (A)
shall have the right to--
``(i) present evidence and appear before the court to present
oral and written testimony; and
``(ii) 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.
``(b) Termination of Orders.--Notwithstanding any law or rule of
procedure, any order of, or settlement approved by, a district court
requiring the imposition, increase, levy, or assessment of a tax
pursuant to subsection (a)(1) shall automatically terminate or expire
on the date that is--
``(1) 1 year after the date of the imposition of the tax; or
``(2) an earlier date, if the court determines that the
deprivation of rights that is addressed by the order or
settlement has been cured to the extent practicable.
Any new such order or settlement relating to the same issue is subject
to all the requirements of this section.
``(c) Preemption.--This section shall not be construed to preempt any
law of a State or political subdivision thereof that imposes
limitations on, or otherwise restricts the imposition of, a tax, levy,
or assessment that is imposed in response to a court order or
settlement referred to in subsection (b).
``(d) Additional Restrictions on Court Action.--(1) Except as
provided in paragraph (2), nothing in this section may be construed to
allow a Federal court to, for the purpose of funding the administration
of an order or settlement referred to in subsection (b), use funds
acquired by a State or political subdivision thereof from a tax imposed
by the State or political subdivision thereof.
``(2) Paragraph (1) does not apply to any tax, levy, or assessment
that may, in accordance with applicable State or local law, be used to
fund the actions of a State or political subdivision thereof in meeting
the requirements of an order or settlement referred to in subsection
(b).
``(e) Notice to States.--The court shall provide written notice to a
State or political subdivision thereof subject to an order or
settlement referred to in subsection (b) with respect to any finding
required to be made by the court under subsection (a). Such notice
shall be provided before the beginning of the next fiscal year of that
State or political subdivision occurring after the order or settlement
is issued.
``(f) Special Rules.--For purposes of this section--
``(1) the District of Columbia shall be considered to be a
State; and
``(2) any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the
District of Columbia.''.
(b) Conforming Amendment.--The table of contents for chapter 85 of
title 28, United States Code, is amended by adding after the item
relating to section 1368 the following new item:

``1369. Limitation on Federal court remedies.''.

(c) Statutory Construction.--Nothing contained in this section or the
amendments made by this section shall be construed to make legal,
validate, or approve the imposition of a tax, levy, or assessment by a
United States district court or a spending measure required by a United
States district court.
(d) Effective Date.--This section and the amendments made by this
section shall apply with respect to any action or other proceeding in a
Federal court that is pending on, or commenced on or after, the date of
the enactment of this Act, and the 1-year limitation set forth in
subsection (b) of section 1369 of title 28, United States Code, as
added by this section, shall apply to any court order or settlement
described in subsection (a)(1) of such section 1369, that is in effect
on the date of the enactment of this Act.

SEC. 6. REASSIGNMENT OF CASE AS OF RIGHT.

(a) In General.--Chapter 21 of title 28, United States Code, is
amended by adding at the end the following:

``Sec. 464. Reassignment of cases upon motion by a party

``(a) Upon Motion.--(1) If all parties on one side of a civil case to
be tried in a United States district court described in subsection (e)
bring a motion to reassign the case, the case shall be reassigned to
another appropriate judicial officer. Each side shall be entitled to
one reassignment without cause as a matter of right.
``(2) If any question arises as to which parties should be grouped
together as a side for purposes of this section, the chief judge of the
court of appeals for the circuit in which the case is to be tried, or
another judge of the court of appeals designated by the chief judge,
shall determine that question.
``(b) Requirements for Bringing Motion.--(1) Subject to paragraph
(2), a motion to reassign under this section shall not be entertained
unless it is brought, not later than 20 days after notice of the
original assignment of the case, to the judicial officer to whom the
case is assigned for the purpose of hearing or deciding any matter.
Such motion shall be granted if--
``(A) it is presented before trial or hearing begins and
before the judicial officer to whom it is presented has ruled
on any substantial issue in the case, or
``(B) it is presented by consent of the parties on all sides.
``(2) Notwithstanding paragraph (1)--
``(A) a party joined in a civil action after the initial
filing may, with the concurrence of the other parties on the
same side, bring a motion under this section within 20 days
after the service of the complaint on that party;
``(B) a party served with a supplemental or amended complaint
or a third-party complaint in a civil action may, with the
concurrence of the other parties on the same side, bring a
motion under this section within 20 days after service on that
party of the supplemental, amended, or third-party complaint;
and
``(C) rulings in a case by the judicial officer on any
substantial issue before a party who has not been found in
default enters an appearance in the case shall not be grounds
for denying an otherwise timely and appropriate motion brought
by that party under this section.
``(3) No motion under this section may be brought by the party or
parties on a side in a case if any party or parties on that side have
previously brought a motion to reassign under this section in that
case.
``(c) Costs of Travel to New Location.--(1) If a motion to reassign
brought under this section requires a change in location for purposes
of appearing before a newly assigned judicial officer, the party or
parties bringing the motion shall pay the reasonable costs incurred by
the parties on different sides of the case in travelling to the new
location for all matters associated with the case requiring an
appearance at the new location. In a case in which both sides bring a
motion to reassign under this section that requires a change in
location, the party or parties bringing the motions on both sides shall
split the travelling costs referred to in the preceding sentence.
``(2) For parties financially unable to obtain adequate
representation, the Government shall pay the reasonable costs under
paragraph (1).
``(d) Definition.--As used in this section, the term `appropriate
judicial officer' means--
``(1) a United States magistrate judge in a case referred to
such a magistrate judge; and
``(2) a United States district court judge in any other case
before a United States district court.
``(e) District Courts That May Authorize Reassignment.--The district
courts referred to in subsection (a) are the district courts for the 21
judicial districts for which the President is directed to appoint the
largest numbers of permanent judges.
``(f) 3-Judge Court Cases Excluded.--This section shall not apply to
any civil action required to be heard and determined by a district
court of 3 judges.''.
(b) Clerical Amendment.--The table of contents for chapter 21 of
title 28, United States Code, is amended by adding at the end the
following new item:

``464. Reassignment of cases upon motion by a party.''.

(c) Monitoring.--The Federal Judicial Center shall monitor the use of
the right to bring a motion to reassign a case under section 464 of
title 28, United States Code, as added by subsection (a) of this
section, and shall report annually to the Congress its findings on the
basis of such monitoring.
(d) Sunset.--Effective 5 years after the date of the enactment of
this Act, section 464 of title 28, United States Code, and the item
relating to that section in the table of contents for chapter 21 of
such title, are repealed, except that such repeal shall not affect
civil cases reassigned under such section 464 before the date of
repeal.

SEC. 7. RANDOM ASSIGNMENT OF HABEAS CORPUS CASES.

Section 2241 of title 28, United States Code, is amended by adding at
the end the following:
``(e) Applications for writs of habeas corpus received in or
transferred to a district court shall be randomly assigned to the
judges of that court.''.

SEC. 8. AUTHORITY OF PRESIDING JUDGE TO ALLOW MEDIA COVERAGE OF
APPELLATE COURT PROCEEDINGS.

(a) Authority of Appellate Courts.--Notwithstanding any other
provision of law, the presiding judge of an appellate court of the
United States may, in his or her discretion, permit the photographing,
electronic recording, broadcasting, or televising to the public of
court proceedings over which that judge presides.
(b) Authority of District Courts.--Notwithstanding any other
provision of law, any presiding judge of a district court of the United
States may, in his or her discretion, permit the photographing,
electronic recording, broadcasting, or televising to the public of
court proceedings over which that judge presides.
(c) Advisory Guidelines.--The Judicial Conference of the United
States is authorized to promulgate advisory guidelines to which a
presiding judge, in his or her discretion, may refer in making
decisions with respect to the management and administration of
photographing, recording, broadcasting, or televising described in
subsections (a) and (b).
(d) Definitions.--As used in this section:
(1) Presiding judge.--The term ``presiding judge'' means the
judge presiding over the court proceeding concerned. In
proceedings in which more than one judge participates, the
presiding judge shall be the senior active judge so
participating or, in the case of a circuit court of appeals,
the senior active circuit judge so participating, except that--
(A) in en banc sittings of any United States circuit
court of appeals, the presiding judge shall be the
chief judge of the circuit whenever the chief judge
participates; and
(B) in en banc sittings of the Supreme Court of the
United States, the presiding judge shall be the Chief
Justice whenever the Chief Justice participates.
(2) Appellate court of the united states.--The term
``appellate court of the United States'' means any United
States circuit court of appeals and the Supreme Court of the
United States.
(e) Sunset.--The authority under subsection (b) shall terminate on
the date that is 3 years after the date of the enactment of this Act.

SEC. 9. ADJUSTMENT OF SALARIES OF FEDERAL JUDGES.

(a) Future Adjustments.--Section 461(a) of title 28, United States
Code, is amended to read as follows:
``(a) Effective as of the first day of the applicable pay period
beginning on or after the date on which an adjustment takes effect
under section 5303 of title 5 in the rates of basic pay under the
General Schedule (or under any other provision of law in lieu thereof),
each salary rate which is subject to an adjustment under this section
shall be adjusted by an amount equal to the percentage of the
adjustment under such section 5303, rounded to the nearest multiple of
$100 (or if midway between multiples of $100, to the next higher
multiple of $100).''.
(b) Repeal.--Section 140 of Public Law 97-92 (95 Stat. 1200; 28
U.S.C. 461 note) is repealed.
(c) Pay for Administrative Law Judges.--
(1) In general.--Section 5372 of title 5, United States Code,
is amended--
(A) by redesignating subsection (c) as subsection
(d); and
(B) by inserting after subsection (b) the following:
``(c)(1) Any reference in this section to the rate of basic pay for
level IV of the Executive Schedule shall be considered a reference to
the greater of--
``(A) the rate of basic pay then currently in effect under
section 5315; or
``(B) the rate of basic pay in effect under section 5315 on
the effective date of this subsection, as adjusted under
paragraph (2).
``(2) Each time that rates of pay for the General Schedule are
adjusted, whether under section 5303 or another provision of law in
lieu thereof, the rate under paragraph (1)(B) (as last adjusted under
this paragraph) shall be adjusted by the same percentage, and as of the
same date, as are the rates of pay for the General Schedule.''.
(2) Conforming amendment.--Subsection (a) of section 5372 of
title 5, United States Code, is amended to read as follows:
``(a) For the purposes of this section--
``(1) the term `administrative law judge' means an
administrative law judge appointed under section 3105; and
``(2) the term `the rate of basic pay for level IV of the
Executive Schedule' is used as described in subsection (c).''.

SEC. 10. MULTIPARTY, MULTIFORUM JURISDICTION OF DISTRICT COURTS.

(a) Basis of Jurisdiction.--
(1) In general.--Chapter 85 of title 28, United States Code,
is amended by adding at the end the following new section:

``Sec. 1370. Multiparty, multiforum jurisdiction

``(a) In General.--The district courts shall have original
jurisdiction of any civil action involving minimal diversity between
adverse parties that arises from a single accident, where at least 25
natural persons have either died or incurred injury in the accident at
a discrete location and, in the case of injury, the injury has resulted
in damages which exceed $50,000 per person, exclusive of interest and
costs, if--
``(1) a defendant resides in a State and a substantial part
of the accident took place in another State or other location,
regardless of whether that defendant is also a resident of the
State where a substantial part of the accident took place;
``(2) any two defendants reside in different States,
regardless of whether such defendants are also residents of the
same State or States; or
``(3) substantial parts of the accident took place in
different States.
``(b) Special Rules and Definitions.--For purposes of this section--
``(1) minimal diversity exists between adverse parties if any
party is a citizen of a State and any adverse party is a
citizen of another State, a citizen or subject of a foreign
state, or a foreign state as defined in section 1603(a) of this
title;
``(2) a corporation is deemed to be a citizen of any State,
and a citizen or subject of any foreign state, in which it is
incorporated or has its principal place of business, and is
deemed to be a resident of any State in which it is
incorporated or licensed to do business or is doing business;
``(3) the term `injury' means--
``(A) physical harm to a natural person; and
``(B) physical damage to or destruction of tangible
property, but only if physical harm described in
subparagraph (A) exists;
``(4) the term `accident' means a sudden accident, or a
natural event culminating in an accident, that results in death
or injury incurred at a discrete location by at least 25
natural persons; and
``(5) the term `State' includes the District of Columbia, the
Commonwealth of Puerto Rico, and any territory or possession of
the United States.
``(c) Intervening Parties.--In any action in a district court which
is or could have been brought, in whole or in part, under this section,
any person with a claim arising from the accident described in
subsection (a) shall be permitted to intervene as a party plaintiff in
the action, even if that person could not have brought an action in a
district court as an original matter.
``(d) Notification of Judicial Panel on Multidistrict Litigation.--A
district court in which an action under this section is pending shall
promptly notify the judicial panel on multidistrict litigation of the
pendency of the action.''.
(2) Conforming amendment.--The table of sections at the
beginning of chapter 85 of title 28, United States Code, is
amended by adding at the end the following new item:

``1370. Multiparty, multiforum jurisdiction.''.

(b) Venue.--Section 1391 of title 28, United States Code, is amended
by adding at the end the following:
``(g) A civil action in which jurisdiction of the district court is
based upon section 1370 of this title may be brought in any district in
which any defendant resides or in which a substantial part of the
accident giving rise to the action took place.''.
(c) Multidistrict Litigation.--Section 1407 of title 28, United
States Code, is amended by adding at the end the following:
``(i)(1) In actions transferred under this section when jurisdiction
is or could have been based, in whole or in part, on section 1370 of
this title, the transferee district court may, notwithstanding any
other provision of this section, retain actions so transferred for the
determination of liability and punitive damages. An action retained for
the determination of liability shall be remanded to the district court
from which the action was transferred, or to the State court from which
the action was removed, for the determination of damages, other than
punitive damages, unless the court finds, for the convenience of
parties and witnesses and in the interest of justice, that the action
should be retained for the determination of damages.
``(2) Any remand under paragraph (1) shall not be effective until 60
days after the transferee court has issued an order determining
liability and has certified its intention to remand some or all of the
transferred actions for the determination of damages. An appeal with
respect to the liability determination and the choice of law
determination of the transferee court may be taken during that 60-day
period to the court of appeals with appellate jurisdiction over the
transferee court. In the event a party files such an appeal, the remand
shall not be effective until the appeal has been finally disposed of.
Once the remand has become effective, the liability determination and
the choice of law determination shall not be subject to further review
by appeal or otherwise.
``(3) An appeal with respect to determination of punitive damages by
the transferee court may be taken, during the 60-day period beginning
on the date the order making the determination is issued, to the court
of appeals with jurisdiction over the transferee court.
``(4) Any decision under this subsection concerning remand for the
determination of damages shall not be reviewable by appeal or
otherwise.
``(5) Nothing in this subsection shall restrict the authority of the
transferee court to transfer or dismiss an action on the ground of
inconvenient forum.''.
(d) Removal of Actions.--Section 1441 of title 28, United States
Code, is amended--
(1) in subsection (e) by striking ``(e) The court to which
such civil action is removed'' and inserting ``(f) The court to
which a civil action is removed under this section''; and
(2) by inserting after subsection (d) the following new
subsection:
``(e)(1) Notwithstanding the provisions of subsection (b) of this
section, a defendant in a civil action in a State court may remove the
action to the district court of the United States for the district and
division embracing the place where the action is pending if--
``(A) the action could have been brought in a United States
district court under section 1370 of this title, or
``(B) the defendant is a party to an action which is or could
have been brought, in whole or in part, under section 1370 in a
United States district court and arises from the same accident
as the action in State court, even if the action to be removed
could not have been brought in a district court as an original
matter.
The removal of an action under this subsection shall be made in
accordance with section 1446 of this title, except that a notice of
removal may also be filed before trial of the action in State court
within 30 days after the date on which the defendant first becomes a
party to an action under section 1370 in a United States district court
that arises from the same accident as the action in State court, or at
a later time with leave of the district court.
``(2) Whenever an action is removed under this subsection and the
district court to which it is removed or transferred under section
1407(i) has made a liability determination requiring further
proceedings as to damages, the district court shall remand the action
to the State court from which it had been removed for the determination
of damages, unless the court finds that, for the convenience of parties
and witnesses and in the interest of justice, the action should be
retained for the determination of damages.
``(3) Any remand under paragraph (2) shall not be effective until 60
days after the district court has issued an order determining liability
and has certified its intention to remand the removed action for the
determination of damages. An appeal with respect to the liability
determination and the choice of law determination of the district court
may be taken during that 60-day period to the court of appeals with
appellate jurisdiction over the district court. In the event a party
files such an appeal, the remand shall not be effective until the
appeal has been finally disposed of. Once the remand has become
effective, the liability determination and the choice of law
determination shall not be subject to further review by appeal or
otherwise.
``(4) Any decision under this subsection concerning remand for the
determination of damages shall not be reviewable by appeal or
otherwise.
``(5) An action removed under this subsection shall be deemed to be
an action under section 1370 and an action in which jurisdiction is
based on section 1368 of this title for purposes of this section and
sections 1407, 1660, 1697, and 1785 of this title.
``(6) Nothing in this subsection shall restrict the authority of the
district court to transfer or dismiss an action on the ground of
inconvenient forum.''.
(e) Choice of Law.--
(1) Determination by the court.--Chapter 111 of title 28,
United States Code, is amended by adding at the end the
following new section:

``Sec. 1660. Choice of law in multiparty, multiforum actions

``(a) Factors.--In an action which is or could have been brought, in
whole or in part, under section 1370 of this title, the district court
in which the action is brought or to which it is removed shall
determine the source of the applicable substantive law, except that if
an action is transferred to another district court, the transferee
court shall determine the source of the applicable substantive law. In
making this determination, a district court shall not be bound by the
choice of law rules of any State, and the factors that the court may
consider in choosing the applicable law include--
``(1) the place of the injury;
``(2) the place of the conduct causing the injury;
``(3) the principal places of business or domiciles of the
parties;
``(4) the danger of creating unnecessary incentives for forum
shopping; and
``(5) whether the choice of law would be reasonably
foreseeable to the parties.
The factors set forth in paragraphs (1) through (5) shall be evaluated
according to their relative importance with respect to the particular
action. If good cause is shown in exceptional cases, including
constitutional reasons, the court may allow the law of more than one
State to be applied with respect to a party, claim, or other element of
an action.
``(b) Order Designating Choice of Law.--The district court making the
determination under subsection (a) shall enter an order designating the
single jurisdiction whose substantive law is to be applied in all other
actions under section 1370 arising from the same accident as that
giving rise to the action in which the determination is made. The
substantive law of the designated jurisdiction shall be applied to the
parties and claims in all such actions before the court, and to all
other elements of each action, except where Federal law applies or the
order specifically provides for the application of the law of another
jurisdiction with respect to a party, claim, or other element of an
action.
``(c) Continuation of Choice of Law After Remand.--In an action
remanded to another district court or a State court under section
1407(i)(1) or 1441(e)(2) of this title, the district court's choice of
law under subsection (b) shall continue to apply.''.
(2) Conforming amendment.--The table of sections at the
beginning of chapter 111 of title 28, United States Code, is
amended by adding at the end the following new item:

``1660. Choice of law in multiparty, multiforum actions.''.

(f) Service of Process.--
(1) Other than subpoenas.--(A) Chapter 113 of title 28,
United States Code, is amended by adding at the end the
following new section:

``Sec. 1697. Service in multiparty, multiforum actions

``When the jurisdiction of the district court is based in whole or in
part upon section 1370 of this title, process, other than subpoenas,
may be served at any place within the United States, or anywhere
outside the United States if otherwise permitted by law.''.
(B) The table of sections at the beginning of chapter 113 of
title 28, United States Code, is amended by adding at the end
the following new item:

``1697. Service in multiparty, multiforum actions.''.

(2) Service of subpoenas.--(A) Chapter 117 of title 28,
United States Code, is amended by adding at the end the
following new section:

``Sec. 1785. Subpoenas in multiparty, multiforum actions

``When the jurisdiction of the district court is based in whole or in
part upon section 1370 of this title, a subpoena for attendance at a
hearing or trial may, if authorized by the court upon motion for good
cause shown, and upon such terms and conditions as the court may
impose, be served at any place within the United States, or anywhere
outside the United States if otherwise permitted by law.''.
(B) The table of sections at the beginning of chapter 117 of
title 28, United States Code, is amended by adding at the end
the following new item:

``1785. Subpoenas in multiparty, multiforum actions.''.

(g) Effective Date.--The amendments made by this section shall apply
to a civil action if the accident giving rise to the cause of action
occurred on or after the 90th day after the date of the enactment of
this Act.

SEC. 11. APPEALS OF MERIT SYSTEMS PROTECTION BOARD.

(a) Appeals.--Section 7703 of title 5, United States Code, is
amended--
(1) in subsection (b)(1), by striking ``30'' and inserting
``60''; and
(2) in the first sentence of subsection (d), by inserting
after ``filing'' the following: ``, within 60 days after the
date the Director received notice of the final order or
decision of the Board,''.
(b) Effective Date.--The amendments made by subsection (a) take
effect on the date of the enactment of this Act and apply to any
administrative or judicial proceeding pending on that date or commenced
on or after that date.

Purpose and Summary

The ``Judicial Reform Act of 1997,'' H.R. 1252, constitutes
a restrained legislative response to specific examples of
unfair practices and procedures, many of which violate the
separation-of-powers doctrine, that exist in the federal court
system.

Background and Need for Legislation

Since the late 1950's, a growing legion of critics has
become increasingly vocal about the prevalence of ``judicial
activism'' on the federal bench. As defined by these critics,
an ``activist'' judge is one who reads his or her personal
convictions of a social or political nature into decisions that
are otherwise not supported by case law precedent or the
Constitution. In effect, these judges legislate by judicial
fiat when their professional and constitutional mission is
limited to interpreting the law. Worse still, an activist
federal judge appointed for life cannot be recalled by the
voters as legislators or many state judges can.
Defenders of jurists so accused assert that reasonable men
and women can and do disagree on the meaning of statutes,
ordinances, regulations, and the Constitution. It is not fair
to discipline these judges, they argue, for simply issuing
decisions, oftentimes on controversial matters, that invariably
result in one side winning and the other side losing. Defenders
of the status quo also believe that any effort to compromise
the independence of the federal judiciary will cause far
greater harm than any assortment of ``activist'' judges ever
could.
None of the witnesses at the Subcommittee hearings
articulated a new standard of review by which the House of
Representatives could impeach sitting federal judges for
indulging in extreme ``activism'' or other forms of misconduct.
By favorably reporting H.R. 1252, the Committee does not intend
to interfere with the adjudication of specific disputes or to
prevent the federal courts from interpreting the
constitutionality of state or federal laws. Rather, the
Committee has identified a limited number of practices in the
federal courts that, when invoked, constitute an abuse of power
that compromises the rights of voters, taxpayers, and
litigants, while derogating the authority of Congress to make
public policy. The Committee therefore believes that H.R. 1252
will inhibit activism to the extent that it relates to the
judicial abuse which was the subject of Subcommittee and
Committee consideration.

Hearings

The Committee's Subcommittee on Courts and Intellectual
Property held one day of legislative hearings on H.R. 1252 on
May 14, 1997, and an additional day of oversight hearings on
the related issue of judicial misconduct on May 15, 1997. Over
the two-day period, testimony was received from eight Members
of Congress and 14 other witnesses representing 12
organizations.

Committee Consideration

On June 10, 1997, the Subcommittee on Courts and
Intellectual Property met in open session and ordered favorably
reported the bill H.R. 1252, as amended, by a vote of eight to
seven, a quorum being present. On March 10, 1998, and March 24,
1998, the Committee met in open session and ordered reported
favorably the bill H.R. 1252 with amendment by voice vote, a
quorum being present.

Vote of the Committee

The following rollcalls were taken during Committee
deliberations on H.R. 1252 (March 10 and March 24, 1998).
1. An amendment by Mr. Delahunt to the amendments
considered en bloc offered by Mr. Canady to limit court-imposed
taxes to any order or settlement which ``expressly directs''
(rather than``requires'') any state, or political subdivision
of a state, to impose, increase, levy, or assess a tax. The Delahunt
amendment was defeated by a rollcall vote of 10-12.
AYES NAYS
Mr. Conyers Mr. Gekas
Mr. Frank Mr. Smith of Texas
Mr. Berman Mr. Canady
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Bryant of Tennessee
Mr. Watt Mr. Chabot
Mr. Meehan Mr. Jenkins
Mr. Delahunt Mr. Hutchinson
Mr. Wexler Mr. Pease
Mr. Rothman Mr. Cannon
Mr. Rogan
Mr. Hyde

2. An amendment offered by Mr. Delahunt to the amendments
offered en bloc by Mr. Canady to limit the standing provisions
governing the ability of persons or entities wishing to
intervene in a court-imposed tax proceeding to U.S. citizens,
legal aliens admitted for permanent residence, and U.S.
corporations in which more than 50% of the capital stock is
owned by U.S. citizens, legal aliens admitted for permanent
residence, or U.S. corporations. The Delahunt amendment was
defeated by a rollcall vote of 10-12.
AYES NAYS
Mr. Conyers Mr. Gekas
Mr. Frank Mr. Smith of Texas
Mr. Berman Mr. Canady
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Bryant of Tennessee
Mr. Watt Mr. Chabot
Mr. Meehan Mr. Jenkins
Mr. Delahunt Mr. Hutchinson
Mr. Wexler Mr. Pease
Mr. Rothman Mr. Cannon
Mr. Rogan
Mr. Hyde

3. An amendment offered by Mr. Berman to H.R. 1252 to
strike the three-judge panel section of the bill. The amendment
was defeated by a rollcall vote of 10-14.
AYES NAYS
Mr. Conyers Mr. Gekas
Mr. Frank Mr. Smith of Texas
Mr. Berman Mr. Canady
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Bryant of Tennessee
Mr. Watt Mr. Chabot
Mr. Meehan Mr. Barr
Mr. Delahunt Mr. Jenkins
Mr. Wexler Mr. Hutchinson
Mr. Rothman Mr. Pease
Mr. Cannon
Mr. Rogan
Mr. Graham
Mr. Hyde

4. An amendment offered by Mr. Delahunt to H.R. 1252 to
authorize a Government Accounting Office (GAO) report on the
judicial confirmation process. The amendment was defeated by a
rollcall vote of 10-14.
AYES NAYS
Mr. Conyers Mr. Gekas
Mr. Frank Mr. Smith of Texas
Mr. Nadler Mr. Canady
Mr. Scott Mr. Goodlatte
Mr. Watt Mr. Bryant of Tennessee
Ms. Jackson Lee Mr. Chabot
Mr. Meehan Mr. Barr
Mr. Delahunt Mr. Jenkins
Mr. Wexler Mr. Hutchinson
Mr. Rothman Mr. Pease
Mr. Cannon
Mr. Rogan
Mr. Graham
Mr. Hyde

5. An amendment offered by Mr. Rogan and Mr. Frank to H.R.
1252 to strike the reassignment-of-case-as-of-right section of
the bill. The amendment was defeated by a rollcall vote of 11-
13.
AYES NAYS
Mr. Rogan Mr. Gekas
Mr. Graham Mr. Smith of Texas
Mr. Conyers Mr. Gallegly
Mr. Frank Mr. Canady
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Bryant of Tennessee
Ms. Lofgren Mr. Chabot
Ms. Waters Mr. Barr
Mr. Delahunt Mr. Jenkins
Mr. Wexler Mr. Hutchinson
Mr. Rothman Mr. Pease
Mr. Cannon
Mr. Hyde

6. An amendment offered by Mr. Nadler to the amendment
offered by Mr. Chabot to permit televised proceedings in U.S.
district courts provided that any witness (other than a party)
in a trial proceeding may have his or her voice disguised or
obscured upon request. The amendment was defeated by a rollcall
vote of 9-9.
AYES NAYS
Mr. Gekas Mr. Gallegly
Mr. Coble Mr. Canady
Mr. Smith of Texas Mr. Buyer
Mr. Bryant of Tennessee Mr. Hutchinson
Mr. Chabot Mr. Pease
Mr. Jenkins Mr. Rogan
Mr. Nadler Mr. Frank
Mr. Scott Mr. Watt
Mr. Delahunt Mr. Rothman

7. An amendment offered by Mr. Chabot to H.R. 1252 to
permit televised proceedings, in the discretion of the
presiding judge, in any U.S. district court as part of a three-
year pilot program. The amendment was agreed to by a rollcall
vote of 12-6.
AYES NAYS
Mr. Gekas Mr. Canady
Mr. Coble Mr. Buyer
Mr. Smith of Texas Mr. Hutchinson
Mr. Gallegly Mr. Frank
Mr. Bryant of Tennessee Mr. Scott
Mr. Chabot Mr. Watt
Mr. Jenkins
Mr. Pease
Mr. Rogan
Mr. Nadler
Mr. Delahunt
Mr. Rothman

\1\ Ms. Jackson Lee, who was absent on official business, indicated
that had she been present she would have voted ``aye'' on the Chabot
amendment to H.R. 1252.

8. An amendment offered by Mr. Watt to H.R. 1252 to strike
the pilot program feature of the reassignment of case as of
right section of the bill. The amendment was defeated by a
rollcall vote of 6-12.
AYES NAYS
Mr. Buyer Mr. Gekas
Mr. Frank Mr. Coble
Mr. Nadler Mr. Smith of Texas
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Delahunt Mr. Bryant of Tennessee
Mr. Chabot
Mr. Jenkins
Mr. Hutchinson
Mr. Rogan
Ms. Jackson Lee
Mr. Rothman

9. An amendment offered by Ms. Jackson Lee to H.R. 1252 to
limit the ability of parties to any civil action to negotiate a
private settlement and the authority of any federal judge to
seal sensitive information after final judgment pursuant to
Federal Rule 26(c). The amendment was defeated by a rollcall
vote of 6-16.
AYES NAYS
Mr. Conyers Mr. Gekas
Mr. Frank Mr. Coble
Mr. Nadler Mr. Gallegly
Mr. Scott Mr. Canady
Ms. Jackson Lee Mr. Buyer
Mr. Meehan Mr. Bryant of Tennessee
Mr. Chabot
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Rogan
Mr. Graham
Mr. Watt
Mr. Delahunt
Mr. Rothman
Mr. Hyde

10. An amendment offered by Mr. Conyers to H.R. 1252 to
enhance the ability of any federal court to acquire
jurisdiction over a defendant located outside the United States
in any civil action based on harm sustained in the United
States. The amendment was defeated by a rollcall vote of 8-11.
AYES NAYS
Mr. Chabot Mr. Gekas
Mr. Conyers Mr. Gallegly
Mr. Frank Mr. Canady
Mr. Scott Mr. Buyer
Mr. Watt Mr. Barr
Ms. Jackson Lee Mr. Jenkins
Mr. Meehan Mr. Rogan
Mr. Delahunt Mr. Rothman
Mr. Graham
Mr. Rothman
Mr. Hyde

11. Subcommittee amendment in the nature of a substitute to
H.R. 1252 as amended by the Committee governing the ``Judicial
Reform Act of 1997.'' The amendment in the nature of a
substitute was agreed to by a rollcall vote of 12-8.
AYES NAYS
Mr. Gekas Mr. Conyers
Mr. Gallegly Mr. Frank
Mr. Canady Mr. Scott
Mr. Buyer Mr. Watt
Mr. Bryant of Tennessee Ms. Jackson Lee
Mr. Chabot Mr. Delahunt
Mr. Barr Mr. Wexler
Mr. Jenkins Mr. Rothman
Mr. Hutchinson
Mr. Rogan
Mr. Graham
Mr. Hyde

Committee Oversight Findings

In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

Committee on Government Reform and Oversight Findings

No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.

New Budget Authority and Tax Expenditures

Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 1252, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, April 1, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1252, the Judicial
Reform Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
June E. O'Neill, Director.
Enclosure.

H.R. 1252--Judicial Reform Act of 1997

Summary: H.R. 1252 would make numerous procedural and
administrative changes to the federal court system. In
addition, the bill would change the procedure for granting
cost-of-living adjustments (COLAs) in pay for certain judges.
Currently, such increases require Congressional action. Under
H.R. 1252, the COLA's for Article III justices and judges would
not require legislative approval.
CBO estimates that enacting H.R. 1252 would increase
mandatory spending by $121 million over the 1999-2003 period.
Because H.R. 1252 would effect direct spending, pay-as-you-go
procedures would apply. CBO estimates that implementing H.R.
1252 could affect discretionary spending, but we cannot predict
such effects because they would depend on future Congressional
action with regard to pay raises.
H.R. 1252 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of 1995
(UMRA) and would have no significant impact on the budgets of
state, local, or tribal governments.
Estimated cost to the Federal Government: As shown in the
following table, CBO estimates that implementing H.R. 1252
would increase direct spending by $7 million in 1999 and $121
million over the 1999-2003 period to cover annual COLA's for
Article III justices and judges. The costs of this legislation
fall within budget function 750 (administration of justice).

Cost of living adjustments for judges:
Estimated budget authority............................ 0 7 15 25 33 41
Estimated outlays..................................... 0 7 15 25 33 41
----------------------------------------------------------------------------------------------------------------

Basis of estimate

For purposes of this estimate, CBO assumes that H.R. 1252
would be enacted by October 1, 1998.
Direct spending
Section 9 would repeal a provision that bars annual COLAs
for Article III justices and judges except as specifically
authorized by the Congress. As a result, these judges would
receive automatic annual cost-of-living adjustments. CBO
estimates that the cost of these adjustments would be $7
million in 1999 and $121 million over the next five years.
These payments would be made from the mandatory spending
accounts that fund salaries for these judges. The estimate
assumes pay raises of between 3 percent and 4 percent per year
applied to salaries totaling about $231 million in 1998.
Various other provisions of H.R. 2294 could affect direct
spending by increasing the workload for judges, but CBO expects
that any such effects would not be significant.
Spending subject to appropriation
Section 9 also would enable agencies to provide
Administration Law Judges (ALJs) with annual COLAs by linking
their COLAs to the General Schedule instead of to the Executive
Schedule. Currently, ALJs only receive COLAs from appropriated
funds when the Congress approves such increases for the
Executive Schedule. In fiscal year 1998, the Congress approved
COLAs for the Executive Schedule (and a total of about $3
million was appropriated for COLAs for ALJs). For the previous
four years, however, ALJs did not receive COLAs.
CBO estimates that enacting H.R. 1252 could increase
discretionary spending, but the amount of such increase would
depend on future actions of the Congress regarding COLAs for
the Executive Schedule. If, for one year or several years in
the future, COLAs are not granted for Executive Schedule
positions, but are provided for those on the General Schedule,
H.R. 1252 would result in higher salary costs for ALJs. For
each year in which there is a raise for one schedule and not
for the other, we estimate a difference of $3 million to $5
million in spending for that year and subsequent years,
assuming appropriation of the necessary amounts.
Other sections of H.R. 1252 could affect spending subject
to appropriation, but CBO expects that their budgetary effects
would not be significant.
Pay-as-you-go-considerations: Section 252 of the Balanced
Budget and Emergency Deficit Control Act of 1985 sets up pay-
as-you-go procedures for legislation affecting direct spending
or receipts. The net changes in outlays and governmental
receipts that are subject to pay-as-you-go procedures are shown
in the following table. The bill would affect direct spending
by requiring COLAs for certain judges. For the purposes of
enforcing pay-as-you-go procedures, only the effects in the
current year, the budget year, and the succeeding four years
are counted.

[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
Changes in outlays................. 0 7 15 25 33 41 50 59 68 77 87
Changes in receipts................
(10) Not applicable
----------------------------------------------------------------------------------------------------------------

Intergovernmental and private sector impact: H.R. 1252
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act of 1995 (UMRA) and
would have no significant impact on the budgets of state,
local, or tribal governments.
Estimate prepared by: Susanne S. Mehlman.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.

Constitutional Authority Statement

Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article III, section 1, of the
Constitution.

Section-by-Section Analysis

Section One: Short Title

Section One sets forth the short title of the bill, the
``Judicial Reform Act of 1997.''

Section Two: Three-Judge Court for Anticipatory Relief

Section Two requires that a three-judge panel at the U.S.
District court level shall hear any constitutional challenge to
the validity of a state law adopted by referendum.
Procedurally, the judge receiving a request for such a panel
contacts the chief judge of the relevant circuit, who then
assigns two other judges (one of whom must be a circuit judge)
to hear the challenge. 28 U.S.C. Sec. 2284(b)(1). The bill
explicitly requires that decisions be rendered expeditiously,
and any appeal of a ruling by the panel is made directly to the
U.S. Supreme Court.
The late Representative Bono first introduced the
provisions contained in Section Two as H.R. 1170 in the 104th
Congress. The Subcommittee and Committee favorably reported the
bill, which the House passed on September 28, 1995.
Representative Bono was responding to the actions of a single
District court judge who issued injunctions against the
enforcement of California state laws enacted pursuant to two
referenda (Propositions 187 and 209) approved by statewide
votes.
Congress initially established three-judge panels following
the decision of Ex Parte Young, 209 U.S. 123 (1908), in which
the Supreme Court first ruled that federal courts could enjoin
state officials from enforcing unconstitutional state statutes.
During the mid-1970's, however, Congress began to limit their
statutory application when the federal judiciary complained of
excessive use in many state and administrative cases.
Nonetheless, Congress has historically and consistently
approved the use of three-judge panels for those disputes
pertaining to voting rights and procedures. Like H.R. 1170
before it, H.R. 1252 is specifically limited to state laws
enacted pursuant to a statewide vote, which appropriately
dovetails with those cases involving apportionment and the
Voting Rights Act to which three-judge panels currently apply.
At a time when many states are using referenda as a means
to provide for the expression of collective legislative will,
proponents of the late Representative Bono's approach note that
it is fundamentally unfair and does not accord due process to
allow one judge to thwart that collective will.

Section Three: Interlocutory Appeals of Court Orders Relating to Class
Actions

Section Three permits an immediate interlocutory (interim)
appeal of a class-action certification. In other words, a party
to an action in which a U.S. District judge certifies the
composition of a class of litigants to that same action
(pursuant to criteria established in Rule 23 of the Federal
Rules of Civil Procedure) may appeal the judge's decision
within 10 days to the applicable court of appeals. Proceedings
at the District level are not otherwise halted unless the
District judge or the court of appeals so orders.
Representative Canady introduced the provisions contained
in this section in an effort to dissuade attorneys from
bringing unwarranted class-action suits. It provides protection
to defendants who may be forced to expend unnecessary resources
at trial, only to discover that a class action was improperly
certified at the outset of litigation.
In addition, the language set forth in Section Three has
been approved by the Civil Rules Subcommittee of the Rules of
Practice and Procedure Committee of the Judicial Conference.

Section Four: Proceedings on Complaints Against Judicial Misconduct

Section Four as originally drafted mandates that any
complaint against judicial misconduct be referred to a judicial
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. Representative Bryant of Tennessee
developed this proposal to assure objectivity in Judicial
Discipline Proceedings.
Under the ``Judicial Councils Reform and Judicial Conduct
and Disability Act of 1980,'' 28 U.S.C. Sec. 372(c), a citizen
may bring a formal complaint against a sitting judge by
providing the clerk of the relevant circuit court of appeals
with a written summary of the facts concerning that judge's
alleged misconduct. The clerk then transmits the complaint to
the chief judge of the circuit (or the next most senior circuit
judge if the chief judge is the subject of the complaint). The
chief judge reviews the complaint, and may dismiss it if he or
she finds it to be incomplete, frivolous, or directly related
to the merits of a decision or procedural ruling.
On the other hand, if the chief judge determines that the
complaint is meritorious, he or she then appoints (and joins)
an equal number of circuit and district judges of the circuit
to investigate the complaint further. This group then issues a
report to the judicial council of the circuit, which may
conduct additional investigations and ``* * * take such action
as is appropriate to assure the effective and expeditious
administration of the business of the courts. * * *'' 28 U.S.C.
Sec. 372(c)(6)(B). Such ``action'' runs the spectrum of
severity from reprimand to impeachment (if recommended by the
Judicial Conference based on the judicial council's report).
During the Subcommittee markup, Representative Pease
offered an amendment to Section Four of the Coble substitute
which passed by voice vote. Developed in concert with
Representative Bryant, the Pease amendment would limit out-of-
circuit referrals to those cases in which a complaint is not
dismissed as being incomplete, frivolous, or directly related
to the merits of a decision or procedural ruling. The amendment
represents an effort to respond to those critics of Section
Four who assert that it will generate unnecessary and trivial
administrative expenses for out-of-circuit judges. In other
words, only ``substantive'' complaints will be referred out of
circuit.
The purpose of Section Four is to maximize the level of
objectivity that a chief circuit judge and other judges must
bring to bear when investigating a fellow jurist for
misconduct.

Section Five: Limitation on Court-Imposed Taxes

Section Five as introduced inhibits the ability of federal
courts to impose tax settlements on states or municipalities
which are parties to litigation. More specifically, Section
Five forbids any U.S. District court from entering an order or
approving a settlement that requires a state or one of its
subdivisions 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 amended by the Committee, Section Five contains a
narrow, multi-part exception to this general prohibition of
judicially-imposed taxation. Specifically, a court may not
order a state or political subdivision to impose a tax unless
the court first determines by clear and convincing evidence
that: (1) there are no other means available to remedy the
relevant deprivation of rights or laws, and the tax is both
narrowly tailored and directly related to the specific
constitutional deprivation or harm necessitating redress; (2)
the tax will not exacerbate the deprivation intended to be
remedied; (3) the tax will not result in a revenue loss for the
affected subdivision; (4) the tax will not result in a
depreciation of property values for the affected taxpayers; (5)
plans submitted by state or local authorities will not
effectively redress the relevant deprivation; and (6) the
interests of state and local authorities in managing their own
affairs is not usurped by the proposed tax, consistent with the
Constitution.
The Coble substitute as adopted by the Subcommittee,
however, struck another criterion from this multi-part
exception; namely, that the tax will not conflict with the
applicable laws governing maximum tax rates as determined by
the appropriate state or political subdivision. During the May
14 Subcommittee hearing, it was noted that the Supreme Court
has ruled that a federal court possesses the authority to order
a local government to levy taxes in excess of the limit
established by state statute where there is reason set forth in
the Constitution for not observing the statutory limitation.
Missouri v. Jenkins, 495 U.S. 33, 57 (1990). The substitute
incorporated this criticism by striking Subsection (a)(1)(E)
and by appropriately amending Subsection (a)(1)(A)(i). The
Committee did not amend this change.
In addition, Representative Delahunt offered an amendment
to Section Five of the substitute adopted by the Subcommittee.
The Delahunt amendment struck the third and fourth criteria of
the multi-part exception, supra, while also revising the nature
of the judicial action proscribed. Pursuant to the bill as
drafted and the Coble Subcommittee substitute unamended, no
district court may enter an order or approve a settlement that
``requires'' a state or political subdivision to impose taxes.
The Delahunt language substitutes ``expressly directs'' for
``requires.'' The Committee believes that the term ``expressly
directs'' could allow a judge to circumvent the limitations of
Section Five by simply ordering a state or municipality to
engage in specific construction projects, for example, without
expressly directing how they should be financed. The practical
effect would be to require the state or municipality to still
impose a tax.
Consequently, the en bloc amendments adopted by the
Committee contain a provision which substitutes the word
``requires'' for the term ``expressly directs.'' The issue is
clarified further, as ``requires'' is defined as ``any order or
settlement which expressly directs any [s]tate * * * or
political subdivision to impose * * * a tax''; and any order or
settlement which will ``necessarily require'' a tax. (Italics
added.)
At the same time, under Section 5(a)(2) of the bill, any
finding by a court that this exception applies in a given case
is subject to immediate interlocutory (interim) de novo review
by the appropriate court of appeals. The purpose of this
provision is that any decision which is adverse to the
interests of taxpayers may be quickly reversed. Subsection
(a)(3)(A) also permits any aggrieved corporation,
unincorporated association, political entity, or person
residing in the affected subdivision to intervene in any of the
applicable legal proceedings by presenting evidence (written or
oral) before the District court, and by appealing any finding
that will impose a tax.
The en bloc amendments adopted by the Committee also
contain a change to this portion of Section Five in response to
comments made by the Department of Justice. Since the purpose
of the review provision is to enable taxpayers to appeal an
unfavorable ruling on the issue, the amendment makes clear that
only a finding that the conditions giving rise to a court-
imposed tax have been satisfied is subject to interlocutory de
novo review.
In addition, Subsection (b) mandates that any District
court decision to impose a tax automatically expires one year
after the date of imposition, or earlier, if the court
determines that the deprivation addressed ``* * * has been
cured to the extent practicable.'' Further, and for the most
part, state or local tax revenues may not be used to pay for
the costs of administering a District court order to levy a
tax. Section 5(d)(1).
The standing provision of Section Five was criticized
during the Subcommittee hearing and subsequent markup. As
originally drafted, the bill permitted certain classes of
persons and entities to ``intervene'' in any proceeding
concerning the imposition of a tax. The language as introduced
and as contained in the Subcommittee substitute was too
expansive since it applied to ``any aggrieved'' corporation,
unincorporated association, or person residing or ``present''
within the affected state or political subdivision. In another
sense, the language was also narrow, as there is no mention of
aggrieved parties who reside outside a state or political
subdivision but who own taxable property within the affected
area.
Accordingly, the en bloc amendment adopted by the Committee
applies the intervention right to ``any person or entity whose
tax liability would be directly affected by the imposition of a
tax.'' The term ``directly'' is used to make clear that there
would be no right to intervene simply because someone can
identify a possible chain of events that might ultimately
affect his or her tax liability.
This revision also specifies, however, that the court may
deny intervention if it finds that the interest of a person or
entity is adequately represented by existing parties to the
dispute.
Two other changes to Section Five were adopted by the
Committee. First, the en bloc amendments specify that Section
Five does not validate, legalize, or approve any judicial tax.
The purpose of this provision is to ensure that the bill does
not create a new statutory right of judicial taxation beyond or
in addition to what is allowed under the U.S. Constitution. The
second change, set forth in an amendment offered by Mr. Bryant
of Tennessee, applies Section Five to any action pending on, or
commenced on or after, the date of enactment. The one-year
expiration limit, supra, specifically applies to any court
order or settlement in effect on the date of enactment.
Representative Manzullo and Senator Grassley introduced
measures in previous Congresses to address the problem of
court-imposed taxes; each has been a long-time critic of those
federal judges who enforce their own decisions by appropriating
the authority of legislators when they impose taxes on local
communities. Perhaps the most conspicuous example of this
practice involves the Kansas City public school system. Since
1985, a U.S. District judge for the Eastern District of
Missouri has supervised the spending of more than one-billion
dollars in excess of the normal school budget for that
municipality because, based on his findings, certain minority
schools in the area were insufficiently funded during the past.
As a consequence, this judge has not only ordered the capital
refurbishment of these schools, including such construction
projects as an Olympic-size swimming pool and a model of the UN
General Assembly Hall, he has also mandated that local property
taxes be raised to pay for the additions. Roughly 1,200 other
school districts are federally-supervised nationwide, an
indication that this practice is widespread.
Proponents of the changes set forth in Section Five of the
bill concede that courts are empowered to address due process
concerns. But these same proponents argue that courts are
neither equipped nor empowered to devise such remedies as have
been invoked in the Kansas City example. The messy but
democratic decisions governing municipal, state, and federal
budgets as well as taxation must continue under our
Constitution to be made by legislators who are answerable to
the people whose interests they represent.

Section Six: Reassignment of Case as of Right

Section Six mirrors the civil procedure of many states by
enabling all parties on one side of a civil action to request
reassignment of the case (one time) as a matter of right.
Pursuant to Subsection (b), a motion to reassign must be made
not later than 20 days after the notice of original assignment
of the case is given. The motion must be granted under
Subparagraphs (A) and (B) if: it is made prior to trial or
hearing and before the judicial officer to whom it is presented
has ruled on a substantial issue in the case; and it is
presented by consent of the parties on all sides.
Subsection (b)(2) addresses those instances in which a
motion may be made at later points during litigation. First,
any party joined in a civil action after the initial filing may
request reassignment within 20 days of service of the complaint
if the other parties on the same side agree. Similarly, any
party served with a supplemental or amended or third-party
complaint may offer a motion of reassignment under the same
conditions. Finally, a judge who rules on a substantial issue
before a party who has not been found in default enters an
appearance in the case may not deny that party the right to
otherwise request a reassignment.
Subparagraph (3) further specifies that no party or parties
on a side may bring a motion to reassign if another party or
parties on that same side have previously requested
reassignment. The last relevant provision of the bill also
requires the side offering the motion to pay for the reasonable
costs incurred by all sides in traveling to the new location
for all matters associated with the case.
The Coble substitute as adopted by the Subcommittee limits
the application of this change to pilot or demonstration
programs that will sunset after five years from the date of
enactment. The projects will be based in the 21 largest federal
judicial districts. This revision was included in the
substitute to respond to the criticism that Section Six may
encourage forum-shopping and attendant delay; if so, the pilot
projects will sunset after five years allowing evaluation of
its effects.
Finally, a minor provision set forth in the en bloc
amendments adopted by the Committee states that Section Six has
no application to proceedings before three-judge panels.
Concern over this matter was expressed at both the Subcommittee
hearing and markup, as the bill as introduced and the
Subcommittee substitute as reported would seem to defeat the
purpose of Section Two of H.R. 1252.
Representative Canady is the lead advocate of this
provision of H.R. 1252. Section Six is intended to allow
litigants on either side of a case to avoid forum-shopping by
one side, 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
district court decisions; rather, it is designed to complement
such review by encouraging judges to administer their oaths to
uphold the Constitution. Many judges face constant reversals on
appeal, yet they may still force a litigant to bear both
extraordinary costs and the burden of overcoming standards of
review on appeal.
Section Six of H.R. 1252 simply provides a litigant some
freedom in ensuring that due process will apply to his or her
case before that litigant must also bear the costs associated
at trial. It will also increase efficiency and apply some
internal pressure on the bench and bar to adjudicate more
fairly and without further legislative intervention.

Section Seven: Random Assignment of Habeas Corpus Cases

Section Seven was part of the Coble Subcommittee
substitute. This change was developed in response to the May 14
testimony of Charlotte Stout, who participated in the related
oversight hearing on judicial misconduct, and comments made by
Representative Delahunt. Ms. Stout's daughter was raped and
murdered by a man who has sat on death row for 18 years as a
result of filing numerous habeas petitions, all of which have
been handled by the same judge. The change set forth in the
substitute would prevent the chief judge of a circuit from
handling all habeas cases by himself or herself, or from
delegating the responsibility on an exclusive basis to another
judge.

Section Eight: Cameras in the Courtroom

Section Eight was also added by the Coble Subcommittee
substitute. It would allow a presiding judge, in his or her
discretion, to permit the use of cameras during federal
appellate proceedings. Representative Chabot has introduced a
bill, H.R. 1280, that would grant this authority to a judge in
any federal proceeding. This change mirrors state efforts to
provide greater public access to the workings of the judiciary.
The Committee also adopted an amendment offered by Mr.
Chabot which creates a three-year pilot program allowing
televised proceedings in any U.S. District court proceeding,
subject to the discretion of the presiding judge.

Section Nine: Adjustment of Salaries of Federal Judges

The substitute included parts of H.R. 875, Representative
Hyde's bill that would grant federal judges an increase in base
pay and automatic annual COLAs (cost-of-living adjustments)
without requiring floor votes on these or other future changes
affecting their compensation. Section Nine of the substitute
incorporates all of H.R. 875 with the exception of a
retroactive 9.6% pay adjustment.
The Committee also adopted an amendment offered by
Representative Gekas to apply the compensation provisions of
Section Nine to administrative law judges (ALJs).

Section 10: Multiparty, Multiforum Jurisdiction of Federal Courts

Section 10 of the substitute added legislation which the
House passed in the 101st and 102nd Congresses, and which the
full Committee on the Judiciary passed in the 103rd Congress.
This language is intended to improve the ability of federal
courts to handle complex multidistrict litigation arising from
a single accident, such as a plane crash.
Briefly, this reform would bestow original jurisdiction on
federal district courts in civil actions involving minimal
diversity jurisdiction among adverse parties based on a single
accident where at least 25 persons have either died or
sustained injuries exceeding $50,000 per person. The district
court in which such cases are consolidated would retain those
cases for determination of liability and punitive damages, and
would also determine the substantive law that would apply for
findings of liability and damage.
These changes should reduce litigation costs as well as the
likelihood of forum-shopping in airline accident cases. An
effective one-time determination of punitive damages would
eliminate multiple or inconsistent awards arising from
multiforum litigation. The Judicial Conference and the
Department of Justice have supported this legislation in the
past.

Section 11: Appeals of Merit Systems Protection Board

Under present law, the Office of Personnel Management (OPM)
may appeal final decisions of the Merit Systems Protection
Board (MSPB) and final arbitral awards dealing with certain
adverse personnel actions; however, any petition for judicial
review must be filed with the U.S. Court of Appeals for the
Federal Circuit within 30 days from the time the petitioner
receives notice of the final order of the MSPB.
The Office of Personnel Management argues that the 30-day
limit is half the time allotted to other federal agencies and
employees which appeal decisions of other administrative
bodies. Section 11 of the substitute therefore changes the 30-
day constraint imposed on OPM to 60 days.

Agency Views

U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, March 10, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of Justice regarding the substitute to H.R. 1252,
the ``Judicial Reform Act of 1997,'' and other amendments to
that bill. In our letter of June 10, 1997, to the Chairman of
the Subcommittee on Courts and Intellectual Property (copy
enclosed), we discussed the Department's position on the five
major components of the earlier version of H.R. 1252, and
recommended that the bill not be passed.
We note that the bill upon which we commented has been
replaced and amended, and that it contains five new provisions
upon which we did not comment. These new provisions include:
section 7--random assignment of habeas corpus cases; section
8--authority of a presiding judge to allow media coverage of
appellate court proceedings; section 9--adjustments of salaries
of Federal judges; section 10--multiparty, multiforum
jurisdiction of district courts for certain mass tort
litigation; and section 11--appeals of the Merit Systems
Protection Board decisions.
We address below both the amendments and the new
provisions. Notwithstanding our agreement with some of the new
sections, the amendment adopted during the Subcommittee markup
of this legislation have not alleviated our original concerns.
Therefore, for the reasons stated below and in our June 10,
1997 letter, we strongly oppose the enactment of H.R. 1252. To
the extent that any of the new provisions contain provisions we
support, we urge that they be addressed in separate
legislation. We would be happy to work with the Congress on
these provisions.

Section 2. Three-Judge Court for Certain Injunctions

This section would require review of certain cases by a
three judge panel. It provides for a process that is
cumbersome, confusing, and inefficient, which in all likelihood
will result in fewer judges--not more--having the opportunity
to rule on the constitutionality of voter initiatives and
referenda. As amended, the section would expand the scope of
application even more broadly to anticipatory relief, including
declaratory judgment, and would apply to challenges based upon
``repugnance'' to the Constitution, treaties, or laws of the
United States. In addition, a three-judge panel would be
required to grant anticipatory relief from State referenda
where Federal statutes were intended to preempt the field and
where a State has passed a referendum that is contrary to
Federal law. Such a procedure may affect several preemptive
Federal statutes, including environmental statutes designed to
protect public health and welfare. For the reasons set out here
and in our letters of June 10, 1997 and May 16, 1995, we
continue to oppose this section.

Section 3. Interlocutory Appeals of Court Orders Relating to Class
Actions

Last year, the Judicial Conference transmitted to the
Supreme Court a proposal, largely identical to section 3, to
add Rule 23(f), allowing discretionary interlocutory appeals
within 10 days of a class certification order. The Supreme
Court is due to act on it within a few weeks. Historically, the
Department has supported the use of the judicial rulemaking
process rather than legislation to alter the Federal Rules of
Civil Procedure. We believe that the Rules Enabling Act process
is working effectively to achieve the aim of this section.
Therefore, the Department recommends that section 3 of this
bill be deleted.

Section 4. Proceedings on Complaints Against Judicial Conduct

This section would require that complaints against judicial
conduct be transferred to another circuit for action. While the
amendments to this section appear to be a slight improvement in
that they give to the original circuit the opportunity to
handle frivolous complaints internally, we continue to believe
that the section is unnecessary and reiterate our concurrence
in the testimony offered by representatives of the Judicial
Conference in opposition to this section of the bill.

Section 5. Limitation on Court-Imposed Taxes

Even as amended, this section continues to raise
constitutional concerns because, inter alia, it purports to
restrict the remedial powers of Article III Federal courts to
enforce Federal constitutional rights. The provision broadening
the section to apply to any tax, rather than any tax for the
purpose of enforcing any ``federal or state common law,
statutory, or constitutional right or law,'' does not eliminate
the constitutional concerns previously expressed in our June
10, 1997 letter. Additionally, this section provides the right
to intervene in any proceeding concerning the imposition of a
tax to aggrieved corporations, unincorporated associations, or
persons residing in the political subdivision in which the tax
is imposed. Besides being cumbersome to the courts, such a
procedure may cause substantial delay, and prejudice the
ability of the original litigants to adjudicate their cases.

Section 6. Reassignment of Cases as of Right

This section would give parties in civil cases the right to
seek reassignment of their cases to a different judge. By
effectively enabling parties to exercise peremptory challenges
against Article III judges, this section raises grave concerns.
It threatens to undermine the independence of the Federal
judiciary that Article III of the Constitution is intended to
secure, as well as the public perception of Federal judges as
impartial adjudicators. Although the amended version would
apply only to the 21 largest districts and contains a sunset
provision, this section is no more appealing than its
predecessor. In fact, two-thirds of the 21 largest districts
have smaller divisions, which may have only a few judges; thus,
there still exists a real potential for judge shopping and
significant forum shopping, as well as increased costs and
delay due to relocation.
The Honorable J. Harvie Wilkinson, Chief Judge of the U.S.
Court of Appeals for the Fourth Circuit, opposed enactment of
this provision in a June 13, 1997 editorial in The Washington
Post. He wrote, ``[T]he customary recourse for litigants
dissatisfied with a trial court's decision has been to pursue
an appeal. This legislation replaces the traditional process
with a dangerous alternative.'' Judge Wilkinson explained one
of the dangers of the section as the possible influence of
judges through considerations extrinsic to the merits of the
case. For example, judges may make unsound decisions based on a
fear of being removed. Further, Judge Wilkinson pointed out
that jurists might be removed for racial reasons, creating a
system worse than the systemic racially motivated juror
peremptory strikes dismantled by Batson v. Kentucky. He
concluded that peremptory strikes of judges will add further
delay to the civil litigation system and erode the rule of law.
Judge Wilkinson's concerns echo those which we express about
this provision.
As amendment to this section appears to impose on the
United States an obligation to pay certain costs for parties
with an inability to obtain adequate representation. The
purpose and intent of this amendment are unclear. While it
apparently is meant to apply to circumstances arising from a
transfer to a new location, it is not clearly limited to such
circumstances. Also,as drafted, the Government might be
required to pay costs for parties who are financially unable to obtain
representation as a result of a transfer to another location, even when
the Government is not a party, or when such transfer and judge shopping
may have been caused by other parties. Lastly, the provision for
splitting costs if both sides agree is inadvisable: if both sides
agree, each party should pay its own costs. For all of these reasons,
we oppose this section.

Section 7. Random Assignment of Habeas Corpus Cases

Section 7 of the bill would require the random assignment
to judges of all writs of habeas corpus received in or
transferred to a district court. Habeas corpus petitions
normally are assigned on a random basis. However, following an
initial assignment, it is the general rule that the subsequent
petitions from the same prison inmate are assigned to the same
judge. While each case must be appropriately considered, a
system by which one judge processes all of the filings on one
individual expedites and facilitates judicial administration.
Randomly assigning these cases so that no single judge will
understand previous activity by any petitioner could be an
unintended burden on the court and actually lead to greater
delay in the disposition of habeas proceedings.
Although it is uncommon, certain districts do assign all
death penalty habeas corpus petitions to a single judge. There
has been only one complaint about this practice to our
knowledge and the district in which the complaint arose
abandoned the practice. So this proposal would have no effect
on that district. Therefore, this amendment would force those
districts that have this assignment arrangement to abandon it
for no demonstrable reason.

Section 9. Adjustments of Salaries of Federal Judges

This section would extend to Federal judges and Justices of
the Supreme Court the same annual cost of living salary
increases generally available to Federal employees. It would
also repeal section 140 of Pub. L. No. 97-92, a statute
requiring specific congressional authorization for salary
increases for judges and Justices, which was enacted in
response to the decision of the Supreme Court in United States
v. Will, 449 U.S. 200 (1980) (an attempt by Congress to rescind
a judicial pay raise after it took effect held
unconstitutional).
Federal judges have supported the enactment of a provision
such as section 9 for many years. The Department understands
the judges' concerns regarding judicial pay and we support
appropriate pay for the Federal judiciary. However, as we noted
at the outset of this letter, we believe that matters like
judicial pay should not be addressed in this bill.

Section 10. Multiparty, Multiforum Jurisdiction of District Courts

Section 10 will expand Federal jurisdiction in a very
narrowly defined category of cases--mass tort litigation
arising from a ``single event or occurrence.'' Ordinarily, the
Department of Justice disfavors the expansion of the
jurisdiction of the already-overloaded district courts. We are
continually concerned about the burdens that diversity cases
impose on the Federal courts, diverting their attention from
criminal cases and other Federal matters. Section 10, however,
delineates a unique category of litigation where the exercise
of Federal jurisdiction in the manner specified will markedly
increase the fair, speedy and efficient resolution of mass tort
cases and will avoid time consuming, expensive and repetitive
liability proceedings before duplicative State and Federal
courts. This section resolves the problems presented by suits
arising from the same incident in more than one jurisdiction,
indeed often in many jurisdictions, both State and Federal.
Moreover, it assures litigants that liability will be
determined once and for all in an expeditious manner before a
court specifically designated to consider the litigation.
Accordingly, we would consider supporting such a provision
separate from this legislation.
Although we note that the proposed Sec. 1660 (``choice of
law in Multiparty, Multiforum actions'') includes a list of
factors that the court ``may consider'' when it determines the
applicable law for the proceedings, it is our understanding
that these factors are not exhaustive and are included in the
bill merely to provide a measure of guidance to the district
courts in the exercise of their discretion (which is to be
informed through consideration of all relevant legal principles
and facts bearing on the choice of applicable law). We urge
that this consideration be reflected in the committee report.

Section 11. Appeals of Merit Systems Protection Board and Arbitration
Decisions

This section would increase the amount of time for filing
petitions for review of decisions by the Merit Systems
Protection Board (``MSPB'') and certain arbitral decisions,
from 30 days to 60 days. This change would give the Office of
Personnel Management (``OPM'') and the Department of Justice
the necessary time to devote to case selection and to
coordinate the drafting of the petition for review. It would
also put appeals filed pursuant to 5 U.S.C. 7703 on par with
every other appeal filed in the appellate courts by the
Executive branch of the Government. In addition, this section
would extend the time limit from 30 to 60 days for individual
appellants to appeal an adverse decision. We support this
section and, as we noted at the outset of this letter, we would
work to have it passed separately from this bill.
In addition, we will strongly recommend the inclusion of an
amendment to this stand alone legislation that will eliminate
the Federal Circuit's discretionary review of the Government's
petitions for review in these appeals. This threshold power to
reject the Government's petitions, unique among the Federal
courts of appeal, has generated considerable litigation over
whether the Government's petition meets the ``substantial
impact'' standard in the law. By changing the system to let
stand the OPM Director's findings on substantial impact, the
appeals process would be more efficient and economical for the
court and the parties because a single judicial panel could
decide the merits of important civil service issues in the
Government's petition.
With over 18 years experience in this role, we think the
time is right to revisit this issue. Congress passed this
requirement as part of the Civil Service Reform Act of 1978.
Since then, the Government has asked the court on only 58
occasions to review MSPB or arbitration decisions. During that
same time period, over 22,000 appeals of all types have been
filed in the Federal Circuit. Since 1993, we have asked the
court to review only 24 cases out of approximately 8,000 total
Federal Circuit filings. Yet, while the number of appeals is
small, the percentage of the Government's petitions the court
has rejected is quite large. For example, the court rejected
about 25% of the Government's petitions pursuant to its
discretionary review of these appeals in the last 18 years.
During the last five years, the court's rejection rate was 22%.
Moreover, the statute currently requires that OPM's
Director, who is the chief personnel official for the Executive
branch, must make findings on the substantial impact of any
final decision the Director decides to challenge. In addition,
the Solicitor General of the United States, the Government's
chief litigator, acts as the ultimate gatekeeper to the Federal
Circuit because the Solicitor General must authorize these
appeals in the same way as every other Government appeal. We
believe that this makes the court's discretionary review of the
Government's petitions unnecessary. The parties to these cases
stand to benefit from the court's considered analysis of
important issues in an expedited one-step review of the merits
of the Government's petition for review. This would allow
agencies, managers, employees and their representatives to know
the appropriate legal standards by which actions in the
workpiece will be judged.
Thank you for the opportunity to present our views on this
legislation. Please let me know if we may be of additional
assistance in connection with this or any other matter. The
Office of Management and Budget has advised this Department
that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Andrew Fois,
Assistant Attorney General.
----------

U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 10, 1997.
Hon. Howard Coble,
Chairman, Subcommittee on Courts and Intellectual Property, Committee
on the Judiciary, House of Representatives, Washington, DC
Dear Mr. Chairman: This letter sets forth the views of the
Department of Justice regarding H.R. 1252, the ``Judicial
Reform Act of 1997.'' We understand that this legislation is
scheduled to be marked up by your Subcommittee on June 10,
1997.
The bill has five major components, each of which appears
designed to place limits on the exercise of discretion by
district court judges. For the reasons given below, we oppose
enactment of H.R. 1252.

Section 2. Three-Judge Court for Certain Injunctions

This section would establish a requirement that only a
three-judge court (under 28 U.S.C. Sec. 2284) may entertain an
application for a interlocutory or permanent injunction, based
on grounds of unconstitutionality, that seeks to ``restrain [
] the enforcement, operation, or execution of a State law
adopted by referendum * * *.'' ``Any appeal from a
determination on such application shall be to the Supreme
Court.'' In the past we have recommended against the enactment
of similar legislative provisions. For the reasons stated in
our May 16, 1995, letter to the Chairman of the Subcommittee on
Courts and Intellectual Property (copy enclosed), we continue
to believe that ``three-judge-court requirements [of the kind
envisioned by H.R. 1252] are cumbersome, confusing, and
inefficient.'' We also observe that, as drafted, this provision
would allow for immediate direct appeals to the Supreme Court
even where the three-judge court denies injunctive relief. Such
direct and immediate access to the Supreme Court for denial of
an interlocutory injunctive decree is highly unusual, if not
unprecedented.
We also note that the proposal would have the opposite
effect of what its supporters maintain they want (i.e., a
smaller chance that the will of the majority will be overruled
by the views of one or a small number of judges). Indeed, under
this legislation, fewer, not more, federal judges would have a
chance to rule on the constitutionality of voter initiatives
and referenda. Whereas now a district court, an appeals panel,
an en banc appeals panel, and the Supreme Court could all very
likely pass on a challenge to an initiative, under H.R. 1252 a
maximum of only 12 judges would be involved. If the objective
of section 2 is to avoid perceived problems that result from
the decisions of a single judge, the current system is better
designed than the proposed one. Accordingly, we urge that
section 2 of H.R. 1252 not be enacted.

Section 3. Interlocutory Appeals of Court Orders Relating to Class
Actions

This provision authorizes the exercise of interlocutory
appellate jurisdiction to review a district court's
certification decision in a class action. We support that
concept. Recently, the Advisory Committee on Civil Rules
approved a proposed Rule 23(f) that would read:

(f) Appeals.--A court of appeals may in its
discretion permit an appeal from an order of a district
court granting or denying class action certification
under this rule if application is made to it within ten
days after entry of the order. An appeal does not stay
proceedings in the district court unless the district
court judge or the court of appeals so orders.

This amendment to the Federal Rules through the Rules
Enabling Act process is very similar to section 3 of H.R. 1252,
and in fact embodies the same concept. As this provision has
been approved by the Advisory Committee, the Judicial
Conference will consider the matter shortly. Traditionally, we
have supported the use of the judicial rulemaking process--
rather than the introduction of legislation--to effectuate
changes in Rules of Civil Procedure. In this instance that
process is functioning effectively. Accordingly, while we
support the aim of this provision, we do not believe it is
necessary, because it appears likely the Federal Rules will be
changed to accommodate the concept.

Section 4. Proceedings on Complaints Against Judicial Conduct

This provision includes a number of changes with respect to
the filing and processing of complaints of judicial misconduct,
including a requirement that a complaint filed in one judicial
circuit be referred to another circuit for further proceedings.
This is a matter that does not directly affect the Department
in its capacity as litigator; however, we concur in the
testimony offered by representatives of the Judicial Conference
inopposition to this section of the bill. The administrative
burden and confusion inherent in the proposed system are too great and
are not warranted by any problems evident in the current system. We
believe that federal judges can and must be trusted to police their
colleagues with respect to allegations of misconduct, and that judges
in one circuit are equally--if not better--able to discipline their
colleagues on that circuit as they are to discipline judges in other
circuits.

Section 5. Limitation on Court-Imposed Taxes

In addition to being somewhat ambiguous, this provision
gives rise to constitutional concerns, because it purports to
restrict the remedial power of Article III federal courts to
enforce federal constitutional rights. We recommend against the
enactment of Section 5 of H.R. 1252.
Section 5(a)(1) of the proposed bill would amend chapter 85
of title 28, United States Code, by establishing a new Section
1369, entitled, ``Limitation on Federal court remedies.'' The
new section would restrict the power of federal district courts
to remedy certain legal violations. Specifically, proposed
Section 1369(a)(1) would limit the power of federal district
courts to enter orders or approve settlements for the purpose
of enforcing ``any Federal or State common law, statutory, or
constitutional right or law'' that require state and local
governments to impose, increase, levy, or assess taxes. Under
the new provision, federal district courts would have the power
to provide such relief only upon finding by ``clear and
convincing evidence'' that: (A)(i) no other enforcement
mechanism would provide a remedy, (A)(ii), and the proposed tax
was narrowly tailored to remedy the deprivation at issue; (B)
the proposed tax would not exacerbate the deprivation at issue;
(C) the proposed tax would not result in the loss of revenue of
the political subdivision compelled to levy it; (D) the
proposed tax would not depreciate property values for affected
taxpayers; (E) the proposed tax would not conflict with
applicable state laws fixing the maximum appropriate rate of
taxation; (F) and alternative remedial plans submitted to the
court by State and local governments would not provide
effective redress.\1\ Section 1369(b) would require that orders
imposing taxes entered in conformity with Section 1369(a)(1)
would automatically terminate after one year.
---------------------------------------------------------------------------
\1\ Section 1369(a)(2) provides that ``a finding'' under Section
1369(a)(1) would be subject to immediate interlocutory de novo review.
It is not entirely clear whether ``a finding'' is also meant to include
a determination that the conditions set forth in Section 1369(a)(1)
have not been satisfied.
---------------------------------------------------------------------------
Under current law, federal district courts may compel state
and local governments to levy taxes in excess of their state
law taxing powers when such a remedy would be required to
enforce a federal constitutional right. See Missouri v.
Jenkins, 495 U.S. 33, 56-58 (1990). In addition, federal courts
have long been held to possess the equitable authority to
compel state and local governments to exercise their existing
taxing authority even when the federal Constitution would not
require the imposition of such a remedy. Id. at 55. ``[A] court
order directing a local government body to levy its own taxes
is plainly a judicial act within the power of a federal
court.'' Id. Thus, the proposed restrictions would necessarily
curtail the equitable discretion of federal district courts,
and deprive them of the power to remedy certain constitutional
rights altogether.
Although Congress has broad power to define the
jurisdiction of lower federal courts, the Constitution bars
Congress from exercising that power to prohibit the federal
judiciary from performing its constitutionally assigned
functions. See Commodities Futures Trading Comm'n v. Schor, 478
U.S. 833 (1986); United States v. Klein, 80 U.S. (13 Wall.) 128
(1872). The debate over the nature of this limitation has
centered principally on whether Congress may impose limitations
on the authority of lower federal courts to enforce federal
constitutional rights. Compare, e.g., Laurence H. Tribe,
``Jurisdictional Gerrymandering: Zoning Disfavored Rights Out
of the Federal Courts'', 16 Harv. C.R.-C.L.L. Rev. 129 (1981),
with Henry M. Hart, Jr., ``The Power of Congress to Limit the
Jurisdiction of Federal Courts: An Exercise in Dialectic'', 66
Harv. L. Rev. 1362 (1953); see also Gordon G. Young, ``A
Critical Reassessment of the Case Law Bearing on Congress's
Power to Restrict the Jurisdiction of the Lower Federal
Courts''. 54 Md. L. Rev. 132 (1995) (surveying the caselaw). As
a result, we believe that the proposed bill's restrictions on
the power of federal district courts to enforce federal
constitutional rights would be subject to reasonable
constitutional challenge.\2\
---------------------------------------------------------------------------
\2\ We note, however, that the force of any such challenge might be
mitigated here because the terms of the proposed bill appear to permit
the Supreme Court to provide equivalent relief in the course of
reviewing a state court judgment. See generally Akhil Reed Amar, A Neo-
Federalist View of Article III: Separating the Two Tiers of Federal
Jurisdiction, 65 B.U. L. Rev. 205 (1985) (arguing that Article III
requires only that jurisdiction over federal constitutional claims be
vested in either the Supreme Court or the lower federal courts).
---------------------------------------------------------------------------
By contrast, we believe that it is reasonably clear that no
similar limitation pertains to Congress's power to limit the
ability of federal district courts to remedy non-constitutional
rights. The enforcement of state law rights cannot be said to
be a constitutional duty of the lower federal courts. See e.g.,
Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850) (upholding
statuteprecluding jurisdiction over certain diversity cases); Amar,
supra, at 255, 260 (concluding that Article III courts need not be
available to hear purely state law claims). Similarly, Congress is
generally free to define the remedies that are available for the
statutory rights that it creates. Accordingly, the proposed bill's
restrictions on remedies for violations of state law and federal
statutory law would not appear to prevent federal district courts from
performing their constitutionally assigned functions.\3\
---------------------------------------------------------------------------
\3\ In addition, we do not believe that the prohibition on the use
of consent decrees raises independent constitutional concerns. By its
own terms, that prohibition would not prevent federal district courts
from imposing indirect taxes after a case had been litigated to
judgment, or if the parties stipulated that a constitutional violation
had occurred.
---------------------------------------------------------------------------
Moreover, we note that proposed Section 1369(d) is very
confusing as drafted. It appears that the provision requires
federal courts to use federal funds in administering
permissible orders imposing indirect taxes on state and local
governments unless applicable state or local law makes sate or
local funds available for the administration of such orders.
However, the reference to ``subparagraph (B)'' in Section
1369(d)(1) is ambiguous, as is the reference to the use of
funds ``for the purpose of funding the administration of an
order.''

Section 6. Reassignment of Case as a Right

This section provides that, ``[i]f all parties on one side
of a civil case to be tried in * * * district court bring a
motion to reassign the case, the case shall be reassigned to
another appropriate judicial officer.'' Each side would be
permitted one reassignment, without cause, as a matter of
right. We recommend against the enactment of this provision.
As a general matter, it constitutes an unseemly affront to
the judiciary and to the very concept of evenhanded justice
under neutral laws. As a matter of good government, it is
inappropriate to treat judges like jurors and to allow the
parties to strike them without cause. This provision could
undermine public confidence in judges and threaten their
independence. It could also be used to isolate a judge who is
criticized for a controversial decision, again thereby
undermining pubic confidence and judicial independence, and
perhaps even impairing collegiality among members of the
judiciary. These are serious constitutional policy concerns. By
effectively enabling parties to exercise peremptory challenges
against Article III judges, the provision invites judge-
shopping and thereby threatens to undermine the integrity and
independence of Article III judges.
The provision would also undermine judicial efficiency. For
example, we litigate major land condemnation projects, such as
the current Big Cypress National Park expansion, in the Middle
District of Florida, and the Everglades National Park expansion
in the Southern District of Florida, each involving hundreds of
condemnation cases. A single judge is assigned all the cases in
the particular project, and the judge appoints a three-member
commission pursuant to F.R.C.P. 71A(h) to try the cases. (There
are hundreds of cases in these two projects that will be filed
over the next several years.) the obvious benefits of such an
assignment to a single judge are the judge's familiarity with
the issues and consistency in ruing on issues that tend to
arise repeatedly throughout the years of litigating these
cases. If landowners (after learning of rulings that would be
unfavorable in their cases) obtain reassignment after cases
affecting their property are filed, the benefits of having a
single judge over these cases are lost. Also, the defendant
landowners might persuade the new judge to have their cases
tried by jury rather than by commission, losing the fairness
and evenhandedness benefits of uniform treatment that comes
from the use of a commission. (See Advisory Committee Notes on
Rule 71A(h) as to the benefits of trail by commission.) These
problems would be compounded if the reassignments are to
numerous judges. In projects such as these, the provisions of
this bill would likely lead to a chaotic process and materially
delayed resolutions.
Finally, the provision is unnecessary. There are existing
procedures for dealing with cases of judicial bias. The parties
should not be allowed, without cause, to second-guess the
independence and competence of life-tenured federal judges duly
appointed under the Constitution.

* * * * * * *

Thank you for the opportunity to present our views on this
legislation. If we may be of further assistance in connection
with this or any other matter, we trust that you will not
hesitate to call upon us. The Office of Management and Budget
has advised that there is no objection from the standpoint of
the Administration's program to the presentation of this
report.
Sincerely,
Andrew Fois,
Assistant Attorney General.
----------

U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 16, 1995.
Hon. Carlos Moorhead,
Chairman, Subcommittee on Courts and Intellectual Property, Committee
on the Judiciary, House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of Justice regarding H.R. 1170, a bill to provide
that federal court cases challenging the constitutionality of
measures passed by state referendum be heard by a three-judge
district court, whose decision would be appealable directly to
the Supreme Court. We understand that this bill will be marked
up by your Subcommittee in early May.
Provisions similar to those found in H.R. 1170 once were
commonly found in federal law, but Congress gradually has
eliminated such provisions because of a consensus view that
such three-judge-court requirements are cumbersome, confusing,
and inefficient. Indeed, in 1976, Congress rescinded a
provision of federal law that was almost identical to the
requirement proposed in section 1(b) of H.R. 1170. Former 28
U.S.C. Sec. 2281 provided, in pertinent part, 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 therefor is heard and determined by a
district court of three judges under section 2284 of
this title.

The only material difference between this former statute and
proposed section 1(b) of H.R. 1170 is that the latter is
limited to ``State law adopted by referendum.''
Before its revocation in 1976, both the bar and the bench
expressed sustained and virtually unanimous opposition to
Sec. 2281. Vocal proponents of rescinding that statute included
the United States Judicial Conference, the Chief Justice of the
Supreme Court, the Chief Judges of the Second, Third, Fourth
and Fifth Circuit Courts of Appeals, the Department of Justice,
the American Bar Association, and Professor Charles Alan
Wright, the foremost expert in the area of federal civil
procedure. See S. Rep. No. 204, 94th Cong., 1st Sess. 3 (1975)
[``Senate Report'']; H.R. Rep. No. 1379, 94th Cong., 2d Sess. 4
(1976) [``House Report'']. Repeal of the three-judge-court
requirement also was recommended by the Federal Judicial Center
Study Group on the Caseload of the Supreme Court, popularly
known as the Freud Committee. See Report of the Study Group on
the Caseload of the Supreme Court, 57 F.R.D. 573, 595-605
(1972) [``Freund Committee Report'']
The strong criticism of the three-judge procedure in former
Sec. 2281 was animated by the widely-held view that that
procedure was ``the single worst feature in the Federal
judicial system as we have it today.'' Senate Report at 2.
Accordingly, Congress repealed former Sec. 2281 in 1976. Pub.
L. No. 94-381, Sec. 1, 90 Stat. 1119. The specific reasons
Congress invoked to explain the repeal were threefold.
First, ``the original reasons for the three-judge court
ha[d] been largely dissipated by limiting statutes and
decisions controlling the jurisdiction of the federal courts
collaterally to review State laws.'' Senate Report at 8. As
then-Chief Justice Burger noted, ``[t]he original reasons for
establishing these special courts, whatever their validity at
the time, no longer exist.'' Id. at 3. Because later legal
developments obviated the concerns that originally had given
rise to the three-judge-court requirement, the House concluded
that ``states no longer require this kind of protection from
the arbitrary actions of a single judge.'' House Report at 4.
See also Senate Report at 7 (original rationale for Sec. 2281
``has long been obsolete'').
Second, the procedure ``compounds and confuses rather than
simplifies orderly constitutional decision.'' Senate Report at
8-9. Whether and to what extent a three-judge court must be
convened under particular circumstances, and at certain stages
of litigation, were questions that engendered hopelessly
complex and arcane litigation and decisional law under
Sec. 2281. See generally 12 Moore's Federal Practice para.
421.03[2], at 5-63 to 5-96 (2d ed. 1995) (canvassing and
discussing hundreds of pertinent decisions and distinctions).
Examples of frequent areas of procedural litigation included
whether a three-judge court was required when it was unclear
that the court had jurisdiction (for example, because the
plaintiff lacked standing or the suit was barred by the statute
of limitations or res judicata), and whether a three-judge
court was required when plaintiff's claim was frivolous.
What is more, a second tier of complex litigation was
generated by the ``wasteful and confusing'' channels for
appealing jurisdictional issues relating to three-judge courts
underSec. 2281. According to the Senate, the rules on appellate
review of whether a three-judge court was needed were ``so complex as
to be virtually beyond belief.'' Senate Report at 6. See also Freund
Committee Report, 57 F.R.D. at 598 (``When, where, and how to obtain
appellate review of an order by or relating to a three-judge court is a
hopelessly complicated and confused subject that in itself has produced
much unnecessary litigation,'' and ``review of these matters has become
so mysterious that even specialists in this area may be led astray'').
Examples of this kind of litigation included questions as to which
court had appellate jurisdiction when a three-judge court decided a
case that should have been decided by a single-judge district court, or
when a three-judge district court decided the case, not on the issue
for which a three-judge court was required, but on some other issue,
e.g., lack of standing, lack of personal or subject-matter
jurisdiction, a statute of limitations bar, res judicata, or lack of
merit on an unconstitutional ground.
Third, in addition to the extra, complex litigation
engendered by the three-judge-court requirement of Sec. 2281,
the three-judge procedure in and of itself was, in Justice
Frankfurter's words, a ``serious drain upon the federal
judicial system.'' Phillips v. United States, 312 U.S. 246, 250
(1941). As the Senate concluded, ``the burden placed on the
panels of judges to handle these cases on an expedited basis is
onerous in view of the mounting backlog of cases of no loesser
priority.'' Senate Report at 9. See also id. at 4-5; House
Report at 4 (``The scarce judicial manpower of the nation is
inefficiently used by requiring three judges to convene for
work that could be performed by one.''); Freund Committee
Report, 57 F.R.D. at 598.
Three-judge district courts are administratively
complicated to convene and conduct, especially when, as
frequently occurs, the judges do not reside in the city where
the proceedings take place. Such a court ``is not well adapted
for the trial of factual issues,'' Freund Committee Report, 57
F.R.D. at 599, and accordingly, such courts often resort to
procedural devices to induce stipulated facts or otherwise
pretermit development of the facts at an evidentiary hearing,
id.
Moreover, eliminating court of appeals review and providing
direct appeal to the Supreme Court unnecessarily burdens the
Supreme Court by requiring the Court to resolve cases that
could and should be resolved at the court of appeals level. On
direct appeal from a three-judge court, the Supreme Court often
must decide between reaching decision on an inadequate factual
record or protracting the litigation by remanding for
development of a more helpful record. Id. And, even where the
record is adequate, direct appeal means that he Supreme Court
``does not have the benefit of the preliminary screening and
sharpening of issues that the courts of appeals ordinarily
provide.'' Id. (citing Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 937, 938 (separate opinion of Burton and Frankfurter,
JJ.) (1952)).
In sum, the three-judge requirement of Sec. 2281
``generate[d], rather than lessen[ed], litigation,'' and
Congress accordingly eliminated that requirement in order to
``increase the efficiency of our judicial system to the benefit
of litigants, lawyers, and judges alike.'' Senate Report at 7.
H.R. 1170 would simply reinvite the problems and stresses that
were alleviated by repeal of Sec. 2281. Admittedly, H.R. 1170
might not apply to as many lawsuits as did former Sec. 2281,
because it is limited to state laws ``adopted by referendum.''
Nonetheless, the problems associated with such cases will be
just as pronounced as they were with respect to cases under
Sec. 2281.
Moreover, in one important respect, HL.R. 1170 is broader
in scope than was Sec. 2281. Section 2281 required a three-
judge court only for the issuance of an injunction restraining
the enforcement of a state statute. Section 1(a) of H.R. 1170
would, by contrast, require a three-judge court without respect
to whether injunctive relief is sought. Under that section, a
three-judge court would be required to ``hear [ ] and
determine [ ]'' ``[a]ny action'' in federal court that
``challenges the constitutionality of a State law adopted by
referendum.'' Thus, for example, a three-judge court arguably
would have to be convened if the unconstitutionality of a State
referendum-passed statute were simply interposed as a defense
to a private civil action or to a criminal charge. Indeed, H.R.
1170 seems to contemplate that any action being heard by a
single district judge would have to be transferred to a three-
judge court whenever a question is raised in the litigation as
to the constitutionality of an applicable State statute. Thus,
the problems and complexities that led to the elimination of
Sec. 2281 might even be exacerbated under H.R. 1170
The standard judicial procedure provides for expedited
appellate review in the courts of appeals in appropriate cases.
A decision of a single-judge district court holding
unconstitutional a state law adopted by referendum would be
such a case. H.R. 1170 would provide that only the Supreme
Court, not a court of appeals, could overturn such a decision.
The result in most cases will be to delay, rather than to
expedite, appellate review. For these reasons, H.R. 1170 is
likely to have the opposite result than the one of its sponsors
intend.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of this
report from the standpoint of the Administration's program.
Sincerely,
Kent Markus,
Acting Assistant Attorney General.
----------

Judicial Conference of the United States,
Washington, DC, March 3, 1998.
Hon. Howard Coble,
Chairman, Subcommittee on Courts and Intellectual Property, Committee
on the Judiciary, House of Representatives, Washington, DC.
Dear Mr. Chairman: The Judiciary Committee has scheduled
the ``Judicial Reform Act of 1997,'' H.R. 1252, for
consideration. The Judicial Conference of the United States
opposes the enactment of Sections 2, 3, 4, 5, 6, 7 and 8 of
this bill. The Subcommittee on Courts and Intellectual Property
has not requested nor received the views of the Judicial
Conference on Section 7: Random Assignment of Habeas Corpus
Cases; and Section 8: Authority of Presiding Judge to Allow
Media Coverage of Appellate Court Proceedings. This letter
provides those views. The subcommittee has rejected the
recommendations of the Judicial Conference on the other
enumerated sections. Since the proposals in Section 4:
Proceedings on Complaints Against Judicial Conduct; and Section
6: Reassignment of Case as of Right, are particularly
significant and highly objectionable, I would summarize the
Conference positions on these two sections.

Section 4. Proceedings on Complaints Against Judicial Conduct

This proposal would amend the Judicial Conduct and
Disability Act of 1980, 28 U.S.C. Sec. 372(c) to require that
all complaints of judicial misconduct that are not dismissed as
(1) frivolous, (2) relating to the merits of a decision or
procedural ruling or (3) not in conformity with the statute, be
referred to another circuit for compliant proceedings. This
would fundamentally revise the current system, under which
complaints against judicial conduct are processed by the
circuit in which the complained-against judge serves.
The Judicial Conduct and Disability Act (1980 Act) emerged
in its current form from the House Judiciary Committee and was
enacted with the support of the Judicial Conference. The 1980
Act has operated as the Committee intended since enactment and
has been effective and beneficial to the judiciary.
In 1991, the Judiciary Committee was instrumental in
establishing the National Commission on Judicial Discipline and
Removal. Two former members of this committee served on the
Commission, one as its chair. The 1980 Act was closely reviewed
and evaluated by the Commission. In its 1993 final Report, the
Commission concluded that the 1980 Act ``has yielded
substantial benefits'' to the federal judiciary. No amendments
to the 1980 Act were recommended.
The proposal in Section 4 apparently results from a single
matter: the consideration by the chief judge and by the
Judicial Council of the Sixth Circuit of 12 complaints arising
out of the handling of eight death penalty habeas corpus
petitions by a district judge from the circuit. The complaints
alleged the judge has unreasonably delayed disposing of these
cases. One complaint also alleged the judge had violated the
code of Conduct for United States Judge by accepting a letter
of commendation from a local religious organization which
opposes the death penalty.
The chief judge of the circuit found that the district
judge had unreasonably delayed processing two of the cases.
Before that finding was made, the district judge had disposed
of two of the other cases, and was actively processing all the
others which were not awaiting action in state court. In light
of that, the complaints were dismissed on the ground that
``corrective action'' had been taken as is provided in the 1980
Act, 28 U.S.C. Sec. 372(c)(3)(B). The judicial council affirmed
this decision.
Canon 2A of the Code of Conduct states, in part, that ``[a]
judge should * * * act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary.'' The chief judge found that the district judge had
not violated that canon by accepting a letter of commendation
from the Nashville Ministers Conference ten years earlier. The
judicial council affirmed this decision.
The stated purpose of this amendment is to ensure
objectivity in the operation of the 1980 Act. Nevertheless, the
decisions made in the case in point reasonably appear to be
objective. Since the delay had ceased, dismissing the
complaints of delay on the statutory ground that ``appropriate
corrective action'' had been taken seems reasonable. The
conclusion that the ten-year-past act of accepting a letter of
commendation from a local religious group did not erode
``public confidence'' in the judiciary also seems reasonable.
These two decisions were made by the chief judge of the
circuit, who happens to reside in the same city as the
complained-against district judge. This fact gives rise to the
claim that the decisions were either not made objectively or
had the appearance of a lack of objectivity. However, the
complaints and the decisions dismissing them were reviewed and
unanimously affirmed by 15 other judges who sit on the Judicial
Council of the Sixth Circuit, seven from the Sixth Circuit
Court of Appeals and eight chief district judges, who reside
and sit in the states of Michigan, Ohio, Kentucky, and
Tennessee.
Neither the decision to dismiss these two complaints, nor
the make-up of the complement of 16 judges who took part in
that decision provides any reasonable justification for making
a fundamental change in the operation of the 1980 Act by
transferring complaints against judicial conduct to another
circuit for consideration. Indeed it is likely that 16 judges
from any region of the country would have decided the same as
did the 16 judges from the Sixth Circuit.
Moreover, the proposal ignores the fact that a significant
strength of the 1980 Act lies in promoting solutions to
judicial misconduct or disability problems not only through
formal statutory processes but also through informal activity
which amounts to peer review. As the Commission final Report
explains:

Although the 1980 Act [28 U.S.C. Sec. 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.

* * * * *

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).
Transferring complaints out of the circuit where the
complained-against judge is stationed would seriously cripple
this process, which cannot effectively function from a remote
location. For this reason, this proposal would not toughen
discipline of judges nor would it make judges more accountable.
Rather it would seriously undermine the existing effective
disciplinary process.

Section 6. Reassignment of Case as of Right

This section provides that if all parties on one side of a
civil case bring a motion to reassign the case, the case shall
be reassigned to another judicial officer. Each side would be
permitted one reassignment as a matter of right. No cause for
the reassignment is required.
Under current practice, civil cases, absent special
circumstances, are randomly assigned to judges for resolution.
This system ensures the fact and appearance that the assignment
was impartially made. The assigned judge may then be challenged
on grounds of bias or prejudice. 28 U.S.C. Sec. 144. Also, the
judge must disqualify himself or herself if impartiality
regarding the case might be reasonably questioned. 28 U.S.C.
Sec. 455. This process is designed to ensure that legal
principles are applied in a fair and evenhanded manner in
federal courts.
The proposal in Section 6 is designed to disrupt the random
case assignment process. It condones attempts to influence the
outcome of a federal civil case by considerations which are
outside of the merits of the case. For that reason this
proposal is repugnant to the proper administration of justice.
The parties would be allowed, indeed required, to evaluate the
personal characteristics of the assigned judge to conclude
whether this judge may be favorably or not favorably disposed
to their case. For the first time, the race, gender, age,
religious beliefs or political background of a judge would
become an important and integral part of the federal judicial
system.
Approval of Section 6 threatens to undermine public
confidence in the federal judicial system. Support of this
proposal appears to be based on two assumptions: federal judges
are untrustworthy and current laws and practices designed to
ensure fairness and impartiality in civil litigation are
failing to protect adequately the rights of civil litigants.
There is no justification for either assumption.
This proposal clearly would also delay civil litigation and
increase the costs to parties in routine civil cases. In
complicated cases, such as class actions or mass tort cases
that are consolidated for trial, allowing the removal of judges
for tactical reasons would have a profoundly negative effect on
the administration of justice.

Section 7. Random Assignment of Habeas Corpus Cases

The dismissal of the complaints against the conduct of a
district judge, which gave rise to Section 4 of the bill, also
gave rise to this amendment. In the district in question at the
time of the complaints, the complained-against judge was
assigned all death penalty habeas corpus petitions. That
assignment practice in that district has been discontinued.
The rationale for this proposal is that if a judge were
predisposed to delay prosecution of death penalty habeas corpus
petitions, this provision would ensure that fewer such
petitions would be wrongly handled. For a reason that is not
apparent, the amendment would apply to all habeas corpus
petitions, not just those by death row inmates.
The amendment is objectionable for two reasons. Habeas
corpus petitions are normally assigned on a random basis.
However, following an initial assignment, it is the general
rule that the subsequent petitions from the same prison inmate
are assigned to the same judge. The great majority of these
petitions, especially from ``frequent filers,'' are without
merit. While each case must be appropriately considered, a
system by which one judge processes all of the filings of one
individual expedites and facilitates judicial administration.
Randomly assigning these cases so that no single judge will
understand previous activity by any petitioner will be an
unnecessary and, apparently an unintended burden on the court.
Although it is uncommon, certain districts do assign all
death penalty habeas corpus petitions to a single judge.
Outside of the matter which gave rise to this amendment, there
has not been any complaint about this practice to our
knowledge. Therefore, this amendment would force those
districts that have this assignment arrangement to abandon it
for no demonstrable reason. Conversely, the district that did
have the practice, and that engendered this amendment, has
abandoned it; so this proposal would have no effect on that
district.

Section 8. Authority of Presiding Judge to Allow Media Coverage of
Appellate Court Proceedings

This proposal would authorize a ``presiding'' circuit judge
to permit photographing, electronic recording, broadcasting or
televising any court proceeding over which he or she presides.
The term ``presiding'' means the Chief Justice or Chief Judge
if an entire court is sitting, or the senior active judge on a
three-judge panel. The proposal also authorizes the Judicial
Conference to promulgate advisory guidelines for this activity.
In March 1996, the Judicial Conference authorized each
court of appeals to decide for itself whether to permit
photographs and radio and television coverage of appellate
arguments in civil cases.
On March 27, 1996, the Second Circuit Court of Appeals
approved guidelines pursuant to which media coverage of
appellate arguments in civil cases could occur. On May 24,
1996, the Ninth Circuit Court of Appeals voted to allow
photographs and radio and television coverage of civil case
appellate arguments, except for arguments in extradition
proceedings. Guidelines for this practice were developed
subsequently. Since March of 1996, approximately 30 arguments
have been televised or recorded on videotape in the Second and
Ninth Circuits.
All of the other appellate courts have voted not to allow
this coverage in their appellate courts, with the exception of
the Court of Appeals for the District of Columbia which has not
decided on this matter.
The House Judiciary Courts and Intellectual Property
Subcommittee did not hold a public hearing on the proposal in
Section 8. This is a sensitive and controversial subject that
presents a number of relevant issues that have not been
considered. Since there is a very low level of demand from the
private sector for televised appellate arguments, the question
arises whether the considered judgment of the Judicial
Conference and of the appellate courts should be overridden on
this policy. Both the Second and Ninth Circuits prohibit
photographs, televising, or radio coverage of appeals in
criminal cases because such activities are currently unlawful.
See Federal Rules of Criminal Procedure. Rule 53, 54(a). Would
this section, if enacted, override the federal rules as to the
United States courts of appeals?
Many other issues which surround this proposal have not
been addressed. We respectfully recommend that this matter be
postponed for further consideration, especially since a long-
standing rule of criminal procedure may be amended by
reference.
Thank you for your attention to our concerns with portions
of this significant bill.
Sincerely,
Leonidas Ralph Mecham,
Secretary.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):

TITLE 28, UNITED STATES CODE

* * * * * * *

PART I--ORGANIZATION OF COURTS

* * * * * * *

CHAPTER 17--RESIGNATION AND RETIREMENT OF JUSTICES AND JUDGES

* * * * * * *

Sec. 372. Retirement for disability; substitute judge on failure to
retire; judicial discipline

(a) * * *

* * * * * * *

(c)(1) Any person alleging that a circuit, district, or
bankruptcy judge, or a magistrate, has engaged in conduct
prejudicial to the effective and expeditious administration of
the business of the courts, or alleging that such a judge or
magistrate is unable to discharge all the duties of office by
reason of mental or physical disability, may file with the
clerk of the court of appeals for the circuit a written
complaint containing a brief statement of the facts
constituting such conduct. In the interests of the effective
and expeditious administration of the business of the courts
and on the basis of information available to the chief judge of
the circuit, the chief judge may, by written order stating
reasons therefor, identify a complaint for purposes of this
subsection and thereby dispense with filing of a written
complaint. In the case of a complaint so identified, the chief
judge shall notify the clerk of the court of appeals of the
complaint, together with a brief statement of the facts
underlying the complaint.
(2) Upon receipt of a complaint filed under paragraph (1) of
this subsection, the clerk shall promptly transmit such
complaint to the chief judge of the circuit, or, if the conduct
complained of is that of the chief judge, to that circuit judge
in regular active service next senior in date of commission
(hereafter, for purposes of this subsection only, included in
the term ``chief judge''). The clerk shall simultaneously
transmit a copy of the complaint or statement of facts
underlying the complaint (as the case may be) to the judge or
magistrate whose conduct is the subject of the complaint.
(3)(A) After expeditiously reviewing a complaint, the chief
judge, by written order stating his reasons, [may--
[(A) dismiss the complaint, if he finds it to be (i)
not in conformity with paragraph (1) of this
subsection, (ii) directly related to the merits of a
decision or procedural ruling, or (iii) frivolous; or
[(B) conclude the proceeding if he finds that
appropriate corrective action has been taken or that
action on the complaint is no longer necessary because
of intervening events.]
may dismiss the complaint if the chief judge finds it to be--
(i) not in conformity with paragraph (1);
(ii) directly related to the merits of a decision or
procedural ruling; or
(iii) frivolous.
The chief judge shall transmit copies of his written order to
the complainant and to the judge or magistrate whose conduct is
the subject of the complaint.
(B) If the chief judge does not enter an order under
subparagraph (A), then the complaint or (in the case of a
complaint identified under paragraph (1)) the statement of
facts underlying the complaint shall be referred to the chief
judge of another judicial circuit for proceedings under this
subsection (hereafter in this subsection referred to as the
``chief judge''), in accordance with a system established by
rule by the Judicial Conference, which prescribes the circuits
to which the complaints will be referred. The Judicial
Conference shall establish and submit to the Congress the
system described in the preceding sentence not later than 180
days after the date of the enactment of the Judicial Reform Act
of 1998.
(C) After expeditiously reviewing the complaint, the chief
judge may, by written order explaining the chief judge's
reasons, conclude the proceeding if the chief judge finds that
appropriate corrective action has been taken or that action on
the complaint is no longer necessary because of intervening
events.
(4) If the chief judge does not enter an order under
paragraph (3)(C) of this subsection, such judge shall
promptly--
(A) appoint himself and equal numbers of circuit and
district judges of the circuit (to which the complaint
or statement of facts underlying the complaint is
referred) to a special committee to investigate the
facts and allegations contained in the complaint;

* * * * * * *

(5) Each committee appointed under paragraph (4) of this
subsection shall conduct an investigation as extensive as it
considers necessary, and shall expeditiously file a
comprehensive written report thereon with the judicial council
of the circuit to which the complaint or statement of facts
underlying the complaint is referred. Such report shall present
both the findings of the investigation and the committee's
recommendations for necessary and appropriate action by the
judicial council of [the circuit] that circuit.

* * * * * * *

(14) Except as provided in paragraph (8), all papers,
documents, and records of proceedings related to investigations
conducted under this subsection shall be confidential and shall
not be disclosed by any person in any proceeding except to the
extent that--
(A) * * *
(B) the judicial council of the circuit, the Judicial
Conference of the United States, or the Senate or the
House of Representatives by resolution, releases any
such material which is believed necessary to an
impeachment investigation or trial of a judge under
article I of the Constitution; [or]
(C) such disclosure is authorized in writing by the
judge or magistrate who is the subject of the complaint
and by the chief judge of the circuit, the Chief
Justice, or the chairman of the standing committee
established under section 331 of this title[.]; or
(D) such disclosure is made to another agency or
instrumentality of any governmental jurisdiction within
or under the control of the United States for a civil
or criminal law enforcement activity authorized by law.
(15) Each written order to implement any action under
paragraph (6) (B) of this subsection, which is issued by a
judicial council, the Judicial Conference, or the standing
committee established under section 331 of this title, shall be
made available to the public through the appropriate clerk's
office of the court of appeals for the circuit in which the
complaint was filed or identified under paragraph (1). Unless
contrary to the interests of justice, each such order issued
under this paragraph shall be accompanied by written reasons
therefor.

* * * * * * *

[(18) The United States Court of Federal Claims, the Court of
International Trade, and the Court of Appeals for the Federal
Circuit shall each prescribe rules, consistent with the
foregoing provisions of this subsection, establishing
procedures for the filing of complaints with respect to the
conduct of any judge of such court and for the investigation
and resolution of such complaints. In investigating and taking
action with respect to any such complaint, each such court
shall have the powers granted to a judicial council under this
subsection.]
(18) The Judicial Conference shall prescribe rules,
consistent with the preceding provisions of this subsection--
(A) establishing procedures for the filing of
complaints with respect to the conduct of any judge of
the United States Court of Federal Claims, the Court of
International Trade, or the Court of Appeals for the
Federal Circuit, and for the investigation and
resolution of such complaints; and
(B) establishing a system for referring complaints
filed with respect to the conduct of a judge of any
such court to any of the first eleven judicial circuits
or to another court for investigation and resolution.
The Judicial Conference shall establish and submit to the
Congress the system described in subparagraph (B) not later
than 180 days after the date of the enactment of the Judicial
Reform Act of 1998.

* * * * * * *

CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES

Sec.
451. Definitions.
* * * * * * *
464. Reassignment of cases upon motion by a party.

* * * * * * *

Sec. 461. Adjustments in certain salaries

[(a)(1) Subject to paragraph (2), effective at the beginning
of the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect
under section 5303 of title 5 in the rates of pay under the
General Schedule (except as provided in subsection (b)), each
salary rate which is subject to adjustment under this section
shall be adjusted by an amount, rounded to the nearest multiple
of $100 (or if midway between multiples of $100, to the next
higher multiple of $100) equal to the percentage of such salary
rate which corresponds to the most recent percentage change in
the ECI (relative to the date described in the next sentence),
as determined under section 704(a)(1) of the Ethics Reform Act
of 1989. The appropriate date under this sentence is the first
day of the fiscal year in which such adjustment in the rates of
pay under the General Schedule takes effect.
[(2) In no event shall the percentage adjustment taking
effect under paragraph (1) in any calendar year (before
rounding), in any salary rate, exceed the percentage adjustment
taking effect in such calendar year under section 5303 of title
5 in the rates of pay under the General Schedule.]
(a) Effective as of the first day of the applicable pay
period beginning on or after the date on which an adjustment
takes effect under section 5303 of title 5 in the rates of
basic pay under the General Schedule (or under any other
provision of law in lieu thereof), each salary rate which is
subject to an adjustment under this section shall be adjusted
by an amount equal to the percentage of the adjustment under
such section 5303, rounded to the nearest multiple of $100 (or
if midway between multiples of $100, to the next higher
multiple of $100).

* * * * * * *

Sec. 464. Reassignment of cases upon motion by a party

(a) Upon Motion.--(1) If all parties on one side of a civil
case to be tried in a United States district court described in
subsection (e) bring a motion to reassign the case, the case
shall be reassigned to another appropriate judicial officer.
Each side shall be entitled to one reassignment without cause
as a matter of right.
(2) If any question arises as to which parties should be
grouped together as a side for purposes of this section, the
chief judge of the court of appeals for the circuit in which
the case is to be tried, or another judge of the court of
appeals designated by the chief judge, shall determine that
question.
(b) Requirements for Bringing Motion.--(1) Subject to
paragraph (2), a motion to reassign under this section shall
not be entertained unless it is brought, not later than 20 days
after noticeof the original assignment of the case, to the
judicial officer to whom the case is assigned for the purpose of
hearing or deciding any matter. Such motion shall be granted if--
(A) it is presented before trial or hearing begins
and before the judicial officer to whom it is presented
has ruled on any substantial issue in the case, or
(B) it is presented by consent of the parties on all
sides.
(2) Notwithstanding paragraph (1)--
(A) a party joined in a civil action after the
initial filing may, with the concurrence of the other
parties on the same side, bring a motion under this
section within 20 days after the service of the
complaint on that party;
(B) a party served with a supplemental or amended
complaint or a third-party complaint in a civil action
may, with the concurrence of the other parties on the
same side, bring a motion under this section within 20
days after service on that party of the supplemental,
amended, or third-party complaint; and
(C) rulings in a case by the judicial officer on any
substantial issue before a party who has not been found
in default enters an appearance in the case shall not
be grounds for denying an otherwise timely and
appropriate motion brought by that party under this
section.
(3) No motion under this section may be brought by the party
or parties on a side in a case if any party or parties on that
side have previously brought a motion to reassign under this
section in that case.
(c) Costs of Travel to New Location.--(1) If a motion to
reassign brought under this section requires a change in
location for purposes of appearing before a newly assigned
judicial officer, the party or parties bringing the motion
shall pay the reasonable costs incurred by the parties on
different sides of the case in travelling to the new location
for all matters associated with the case requiring an
appearance at the new location. In a case in which both sides
bring a motion to reassign under this section that requires a
change in location, the party or parties bringing the motions
on both sides shall split the travelling costs referred to in
the preceding sentence.
(2) For parties financially unable to obtain adequate
representation, the Government shall pay the reasonable costs
under paragraph (1).
(d) Definition.--As used in this section, the term
``appropriate judicial officer'' means--
(1) a United States magistrate judge in a case
referred to such a magistrate judge; and
(2) a United States district court judge in any other
case before a United States district court.
(e) District Courts That May Authorize Reassignment.--The
district courts referred to in subsection (a) are the district
courts for the 21 judicial districts for which the President is
directed to appoint the largest numbers of permanent judges.
(f) 3-Judge Court Cases Excluded.--This section shall not
apply to any civil action required to be heard and determined
by a district court of 3 judges.

* * * * * * *

PART IV--JURISDICTION AND VENUE

* * * * * * *

CHAPTER 83--COURTS OF APPEALS

* * * * * * *

Sec. 1292. Interlocutory decisions

(a) * * *
(b)(1) When a district judge, in making in a civil action an
order not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an appeal to be
taken from such order, if application is made to it within ten
days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings
in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.
(2) A party to an action in which the district court has made
a determination of whether the action may be maintained as a
class action may make application for appeal of that
determination to the court of appeals which would have
jurisdiction of an appeal of that action. The court of appeals
may, in its discretion, permit the appeal to be taken from such
determination if the application is made within 10 days after
the entry of the court's determination relating to the class
action. Application for an appeal under this paragraph shall
not stay proceedings in the district court unless the district
judge or the court of appeals or a judge thereof shall so
order.

* * * * * * *

CHAPTER 85--DISTRICT COURTS; JURISDICTION

Sec.
1330. Actions against foreign states.
* * * * * * *
1369. Limitation on Federal court remedies.
1370. Multiparty, multiforum jurisdiction.
* * * * * * *

Sec. 1369. Limitation on Federal court remedies

(a) Limitation on Court-Imposed Taxes.--(1) No district court
may enter any order or approve any settlement that requires any
State, or political subdivision of a State, to impose,
increase, levy, or assess any tax, unless the court finds by
clear and convincing evidence, that--
(A) there are no other means available to remedy the
deprivation of a right under the Constitution of the
United States;
(B) the proposed imposition, increase, levying, or
assessment is narrowly tailored to remedy the specific
deprivation atissue so that the remedy imposed is
directly related to the harm caused by the deprivation;
(C) the tax will not contribute to or exacerbate the
deprivation intended to be remedied;
(D) plans submitted to the court by State and local
authorities will not effectively redress the
deprivations at issue;
(E) the interests of State and local authorities in
managing their affairs are not usurped, in violation of
the Constitution, by the proposed imposition, increase,
levying, or assessment; and
(F) the proposed tax will not result in the loss or
depreciation of property values of the taxpayers who
are affected.
(2) The limitation contained in paragraph (1) shall apply
only to any order or settlement which--
(A) expressly directs any State, or political
subdivision of a State, to impose, increase, levy, or
assess any tax; or
(B) will necessarily require a State, or political
subdivision of a State, to impose, increase, levy, or
assess any tax.
(3) If the court finds that the conditions set forth in
paragraph (1) have been satisfied, it shall enter an order
incorporating that finding, and that order shall be subject to
immediate interlocutory de novo review.
(4) A remedy permitted under paragraph (1) shall not extend
beyond the case or controversy before the court.
(5)(A) Notwithstanding any law or rule of procedure, any
person or entity whose tax liability would be directly affected
by the imposition of a tax under paragraph (1) shall have the
right to intervene in any proceeding concerning the imposition
of the tax, except that the court may deny intervention if it
finds that the interest of that person or entity is adequately
represented by existing parties.
(B) A person or entity that intervenes pursuant to
subparagraph (A) shall have the right to--
(i) present evidence and appear before the court to
present oral and written testimony; and
(ii) 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.
(b) Termination of Orders.--Notwithstanding any law or rule
of procedure, any order of, or settlement approved by, a
district court requiring the imposition, increase, levy, or
assessment of a tax pursuant to subsection (a)(1) shall
automatically terminate or expire on the date that is--
(1) 1 year after the date of the imposition of the
tax; or
(2) an earlier date, if the court determines that the
deprivation of rights that is addressed by the order or
settlement has been cured to the extent practicable.
Any new such order or settlement relating to the same issue is
subject to all the requirements of this section.
(c) Preemption.--This section shall not be construed to
preempt any law of a State or political subdivision thereof
that imposes limitations on, or otherwise restricts the
imposition of, a tax, levy, or assessment that is imposed in
response to a court order or settlement referred to in
subsection (b).
(d) Additional Restrictions on Court Action.--(1) Except as
provided in paragraph (2), nothing in this section may be
construed to allow a Federal court to, for the purpose of
funding the administration of an order or settlement referred
to in subsection (b), use funds acquired by a State or
political subdivision thereof from a tax imposed by the State
or political subdivision thereof.
(2) Paragraph (1) does not apply to any tax, levy, or
assessment that may, in accordance with applicable State or
local law, be used to fund the actions of a State or political
subdivision thereof in meeting the requirements of an order or
settlement referred to in subsection (b).
(e) Notice to States.--The court shall provide written notice
to a State or political subdivision thereof subject to an order
or settlement referred to in subsection (b) with respect to any
finding required to be made by the court under subsection (a).
Such notice shall be provided before the beginning of the next
fiscal year of that State or political subdivision occurring
after the order or settlement is issued.
(f) Special Rules.--For purposes of this section--
(1) the District of Columbia shall be considered to
be a State; and
(2) any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a
statute of the District of Columbia.

Sec. 1370. Multiparty, multiforum jurisdiction

(a) In General.--The district courts shall have original
jurisdiction of any civil action involving minimal diversity
between adverse parties that arises from a single accident,
where at least 25 natural persons have either died or incurred
injury in the accident at a discrete location and, in the case
of injury, the injury has resulted in damages which exceed
$50,000 per person, exclusive of interest and costs, if--
(1) a defendant resides in a State and a substantial
part of the accident took place in another State or
other location, regardless of whether that defendant is
also a resident of the State where a substantial part
of the accident took place;
(2) any two defendants reside in different States,
regardless of whether such defendants are also
residents of the same State or States; or
(3) substantial parts of the accident took place in
different States.
(b) Special Rules and Definitions.--For purposes of this
section--
(1) minimal diversity exists between adverse parties
if any party is a citizen of a State and any adverse
party is a citizen of another State, a citizen or
subject of a foreign state, or a foreign state as
defined in section 1603(a) of this title;
(2) a corporation is deemed to be a citizen of any
State, and a citizen or subject of any foreign state,
in which it is incorporated or has its principal place
of business, and is deemed to be a resident of any
State in which it is incorporated or licensed to do
business or is doing business;
(3) the term ``injury'' means--
(A) physical harm to a natural person; and
(B) physical damage to or destruction of
tangible property, but only if physical harm
described in subparagraph (A) exists;
(4) the term ``accident'' means a sudden accident, or
a natural event culminating in an accident, that
results in death or injury incurred at a discrete
location by at least 25 natural persons; and
(5) the term ``State'' includes the District of
Columbia, the Commonwealth of Puerto Rico, and any
territory or possession of the United States.
(c) Intervening Parties.--In any action in a district court
which is or could have been brought, in whole or in part, under
this section, any person with a claim arising from the accident
described in subsection (a) shall be permitted to intervene as
a party plaintiff in the action, even if that person could not
have brought an action in a district court as an original
matter.
(d) Notification of Judicial Panel on Multidistrict
Litigation.--A district court in which an action under this
section is pending shall promptly notify the judicial panel on
multidistrict litigation of the pendency of the action.

CHAPTER 87--DISTRICT COURTS; VENUE

* * * * * * *

Sec. 1391. Venue generally

(a) * * *

* * * * * * *

(g) A civil action in which jurisdiction of the district
court is based upon section 1370 of this title may be brought
in any district in which any defendant resides or in which a
substantial part of the accident giving rise to the action took
place.

* * * * * * *

Sec. 1407. Multidistrict litigation

(a) * * *

* * * * * * *

(i)(1) In actions transferred under this section when
jurisdiction is or could have been based, in whole or in part,
on section 1370 of this title, the transferee district court
may, notwithstanding any other provision of this section,
retain actions so transferred for the determination of
liability and punitive damages. An action retained for the
determination of liability shall be remanded to the district
court from which the action was transferred, or to the State
court from which the action was removed, for the determination
of damages, other than punitive damages, unless the court
finds, for the convenience of parties and witnesses and in the
interest of justice, that the action should be retained for the
determination of damages.
(2) Any remand under paragraph (1) shall not be effective
until 60 days after the transferee court has issued an order
determiningliability and has certified its intention to remand
some or all of the transferred actions for the determination of
damages. An appeal with respect to the liability determination and the
choice of law determination of the transferee court may be taken during
that 60-day period to the court of appeals with appellate jurisdiction
over the transferee court. In the event a party files such an appeal,
the remand shall not be effective until the appeal has been finally
disposed of. Once the remand has become effective, the liability
determination and the choice of law determination shall not be subject
to further review by appeal or otherwise.
(3) An appeal with respect to determination of punitive
damages by the transferee court may be taken, during the 60-day
period beginning on the date the order making the determination
is issued, to the court of appeals with jurisdiction over the
transferee court.
(4) Any decision under this subsection concerning remand for
the determination of damages shall not be reviewable by appeal
or otherwise.
(5) Nothing in this subsection shall restrict the authority
of the transferee court to transfer or dismiss an action on the
ground of inconvenient forum.

CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

Sec. 1441. Actions removable generally

(a) * * *

* * * * * * *

(e)(1) Notwithstanding the provisions of subsection (b) of
this section, a defendant in a civil action in a State court
may remove the action to the district court of the United
States for the district and division embracing the place where
the action is pending if--
(A) the action could have been brought in a United
States district court under section 1370 of this title,
or
(B) the defendant is a party to an action which is or
could have been brought, in whole or in part, under
section 1370 in a United States district court and
arises from the same accident as the action in State
court, even if the action to be removed could not have
been brought in a district court as an original matter.
The removal of an action under this subsection shall be made in
accordance with section 1446 of this title, except that a
notice of removal may also be filed before trial of the action
in State court within 30 days after the date on which the
defendant first becomes a party to an action under section 1370
in a United States district court that arises from the same
accident as the action in State court, or at a later time with
leave of the district court.
(2) Whenever an action is removed under this subsection and
the district court to which it is removed or transferred under
section 1407(i) has made a liability determination requiring
further proceedings as to damages, the district court shall
remand the action to the State court from which it had been
removed for the determination of damages, unless the court
finds that, for the convenience of parties and witnesses and in
the interest of justice, the action should be retained for the
determination of damages.
(3) Any remand under paragraph (2) shall not be effective
until 60 days after the district court has issued an order
determining liability and has certified its intention to remand
the removed action for the determination of damages. An appeal
with respect to the liability determination and the choice of
law determination of the district court may be taken during
that 60-day period to the court of appeals with appellate
jurisdiction over the district court. In the event a party
files such an appeal, the remand shall not be effective until
the appeal has been finally disposed of. Once the remand has
become effective, the liability determination and the choice of
law determination shall not be subject to further review by
appeal or otherwise.
(4) Any decision under this subsection concerning remand for
the determination of damages shall not be reviewable by appeal
or otherwise.
(5) An action removed under this subsection shall be deemed
to be an action under section 1370 and an action in which
jurisdiction is based on section 1368 of this title for
purposes of this section and sections 1407, 1660, 1697, and
1785 of this title.
(6) Nothing in this subsection shall restrict the authority
of the district court to transfer or dismiss an action on the
ground of inconvenient forum.
[(e) The court to which such civil action is removed] (f) The
court to which a civil action is removed under this section is
not precluded from hearing and determining any claim in such
civil action because the State court from which such civil
action is removed did not have jurisdiction over that claim.

* * * * * * *

PART V--PROCEDURE

* * * * * * *

CHAPTER 111--GENERAL PROVISIONS

Sec.
1651. Writs.
* * * * * * *
1660. Choice of law in multiparty, multiforum actions.
* * * * * * *

Sec. 1660. Choice of law in multiparty, multiforum actions

(a) Factors.--In an action which is or could have been
brought, in whole or in part, under section 1370 of this title,
the district court in which the action is brought or to which
it is removed shall determine the source of the applicable
substantive law, except that if an action is transferred to
another district court, the transferee court shall determine
the source of the applicable substantive law. In making this
determination, a district court shall not be bound by the
choice of law rules of any State, and the factors that the
court may consider in choosing the applicable law include--
(1) the place of the injury;
(2) the place of the conduct causing the injury;
(3) the principal places of business or domiciles of
the parties;
(4) the danger of creating unnecessary incentives for
forum shopping; and
(5) whether the choice of law would be reasonably
foreseeable to the parties.
The factors set forth in paragraphs (1) through (5) shall be
evaluated according to their relative importance with respect
to the particular action. If good cause is shown in exceptional
cases, including constitutional reasons, the court may allow
the law of more than one State to be applied with respect to a
party, claim, or other element of an action.
(b) Order Designating Choice of Law.--The district court
making the determination under subsection (a) shall enter an
order designating the single jurisdiction whose substantive law
is to be applied in all other actions under section 1370
arising from the same accident as that giving rise to the
action in which the determination is made. The substantive law
of the designated jurisdiction shall be applied to the parties
and claims in all such actions before the court, and to all
other elements of each action, except where Federal law applies
or the order specifically provides for the application of the
law of another jurisdiction with respect to a party, claim, or
other element of an action.
(c) Continuation of Choice of Law After Remand.--In an action
remanded to another district court or a State court under
section 1407(i)(1) or 1441(e)(2) of this title, the district
court's choice of law under subsection (b) shall continue to
apply.

CHAPTER 113--PROCESS

Sec.
1691. Seal and teste of process.
* * * * * * *
1697. Service in multiparty, multiforum actions.

* * * * * * *

Sec. 1697. Service in multiparty, multiforum actions

When the jurisdiction of the district court is based in whole
or in part upon section 1370 of this title, process, other than
subpoenas, may be served at any place within the United
States,or anywhere outside the United States if otherwise permitted by
law.

* * * * * * *

CHAPTER 117--EVIDENCE; DEPOSITIONS

Sec.
1781. Transmittal of letter rogatory or request.
* * * * * * *
1785. Subpoenas in multiparty, multiforum actions.
* * * * * * *

Sec. 1785. Subpoenas in multiparty, multiforum actions

When the jurisdiction of the district court is based in whole
or in part upon section 1370 of this title, a subpoena for
attendance at a hearing or trial may, if authorized by the
court upon motion for good cause shown, and upon such terms and
conditions as the court may impose, be served at any place
within the United States, or anywhere outside the United States
if otherwise permitted by law.

* * * * * * *

PART VI--PARTICULAR PROCEEDINGS

* * * * * * *

CHAPTER 153--HABEAS CORPUS

* * * * * * *

Sec. 2241. Power to grant writ

(a) * * *

* * * * * * *

(e) Applications for writs of habeas corpus received in or
transferred to a district court shall be randomly assigned to
the judges of that court.

* * * * * * *

----------

SECTION 140 OF THE ACT OF DECEMBER 15, 1981

Joint Resolution Making further continuing appropriations for the
fiscal year 1982, and for other purposes.

[Sec. 140. Notwithstanding any other provision of law or of
this joint resolution, none of the funds appropriated by this
joint resolution or by any other Act shall be obligated or
expended to increase, after the date of enactment of this joint
resolution, any salary of any Federal judge or Justice of the
Supreme Court, except as may be specifically authorized by Act
of Congress hereafter enacted: Provided, That nothing in this
limitation shall be construed to reduce any salary which may be
in effect at the time of enactment of this joint resolution nor
shall this limitation be construed in any manner to reduce the
salary of any Federal judge or of any Justice of the Supreme
Court.]
----------

TITLE 5, UNITED STATES CODE

* * * * * * *

PART III--EMPLOYEES

* * * * * * *

Subpart D--Pay and Allowances

* * * * * * *

CHAPTER 53--PAY RATES AND SYSTEMS

* * * * * * *

SUBCHAPTER VII--MISCELLANEOUS PROVISIONS

* * * * * * *

Sec. 5372. Administrative law judges

[(a) For the purposes of this section, the term
``administrative law judge'' means an administrative law judge
appointed under section 3105.]
(a) For the purposes of this section--
(1) the term ``administrative law judge'' means an
administrative law judge appointed under section 3105;
and
(2) the term ``the rate of basic pay for level IV of
the Executive Schedule'' is used as described in
subsection (c).

* * * * * * *

(c)(1) Any reference in this section to the rate of basic pay
for level IV of the Executive Schedule shall be considered a
reference to the greater of--
(A) the rate of basic pay then currently in effect
under section 5315; or
(B) the rate of basic pay in effect under section
5315 on the effective date of this subsection, as
adjusted under paragraph (2).
(2) Each time that rates of pay for the General Schedule are
adjusted, whether under section 5303 or another provision of
law in lieu thereof, the rate under paragraph (1)(B) (as last
adjusted under this paragraph) shall be adjusted by the same
percentage, and as of the same date, as are the rates of pay
for the General Schedule.
[(c)] (d) The Office of Personnel Management shall prescribe
regulations necessary to administer this section.

* * * * * * *

Subpart F--Labor-Management and Employee Relations

* * * * * * *

CHAPTER 77--APPEALS

* * * * * * *

Sec. 7703. Judicial review of decisions of the Merit Systems Protection
Board

(a) * * *
(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding any other
provision of law, any petition for review must be filed within
[30] 60 days after the date the petitioner received notice of
the final order or decision of the Board.

* * * * * * *

(d) The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by
filing, within 60 days after the date the Director received
notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for
the Federal Circuit if the Director determines, in his
discretion, that the Board erred in interpreting a civil
service law, rule, or regulation affecting personnel management
and that the Board's decision will have a substantial impact on
a civil service law, rule, regulation, or policy directive. If
the Director did not intervene in a matter before the Board,
the Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall
be at the discretion of the Court of Appeals.

* * * * * * *

DISSENTING VIEWS

We strongly oppose the so-called ``Judicial Reform Act of
1997,'' legislation put forth by the Republicans in an effort
to stem a supposed tide of ``judicial activism.'' H.R. 1252 is
a hodgepodge of ill-considered and largely unnecessary
proposals that would degrade our judiciary and significantly
increase unnecessary costs and delays in litigation.
H.R. 1252 is opposed by the Department of Justice, and an
Administration veto is likely. In addition, H.R. 1252 is
opposed by a wide and diverse coalition of groups that are
concerned about the integrity of our civil and criminal justice
systems. This includes: (1) legal and judicial groups, such as
the American Bar Association, the Judicial Conference of the
United States, and the Alliance for Justice; (2) civil rights
groups such as the Leadership Conference on Civil Rights, the
NAACP, and the Mexican American Legal Defense and Education
Fund; (3) environmental groups, such as the Sierra Club and
Earth Justice; (4) disabilities groups such as the Bazelon
Center for Mental Health Law and the National Association of
Protection and Advocacy Systems; (5) labor groups such as the
Service Employees International Union and Coalition of Labor
Union Women; and (6) women's groups such as the National
Women's Law Center and National Partnership for Women and
Families.
If there is any single idea in the Constitution that has
separated our experiment in democracy from all other nations,
it is the concept of an independent judiciary. It is the
judiciary, more than any other branch of our government, that
has served as the protector of our precious civil rights and
civil liberties over the years. We agree with Alexander
Hamilton that the ``independent spirit in the judges'' enables
them to stand against the ``ill humors of passing political
majorities.'' \1\ And we support the timeless words of the
Massachusetts Constitution that ``[i]t is the right of every
citizen to be tried by judges as free, impartial and
independent as the lot of humanity will admit.'' \2\
---------------------------------------------------------------------------
\1\ ``The Federalists Papers, No. 78'' (1789).
\2\ Mass. Const. art. 29, Declaration of Rights.
---------------------------------------------------------------------------
Recent efforts by Republicans to discredit our judiciary by
painting it with the broad brush of ``judicial activism'' are
both disingenuous and demeaning. Once we parse through the
thick rhetorical fog surrounding this issue, it becomes clear
that Republicans real gripe is with the results, not the
activist nature of judicial decisions. As Roger Pilon, a Cato
Institute Director, acknowledged, ``examples of `judicial
activism' that are cited, turn out, when examined more closely,
not to be cases in which the judge failed to apply the law but
applied the law differently, or applied different law, to reach
a result different than the result thought correct by the
person charging activism.'' \3\
---------------------------------------------------------------------------
\3\ Hearing on H.R. 1252, The Judicial Reform Act of 1997 and
Federal Judicial Term Limits Before the Subcomm. on Courts and
Intellectual Property of the House Comm. On the Judiciary, 105th Cong.
(1997) [hereinafter, 1997 Subcommittee Hearings] (written statement of
Roger Pilon, Director, Center for Constitutional Studies, Cato
Institute).
---------------------------------------------------------------------------
Republican ``conservatives'' are prone to assert that
Supreme Court decisions protecting a woman's right to choose
(Roe v. Wade \4\) and a child's right to attend school without
being subject to compulsory prayer (Engel v. Vitale \5\)
constitute judicial activism. But decisions which limit
Congress' ability to provide affirmative action as a remedy to
respond to racial discrimination (Adarand v. Pena \6\), Ban
guns in schools (U.S. v. Lopez \7\), require background checks
before felons can purchase handguns (Printz v. U.S.\8\), and
limit campaign expenditures (Buckley v. Valeo \9\) are heralded
as landmark examples of the Court restraining undue legislative
power.
---------------------------------------------------------------------------
\4\ 410 U.S. 113 (1973).
\5\ 370 U.S. 421 (1962).
\6\ 515 U.S. 200 (1995).
\7\ 514 U.S. 549 (1995).
\8\ U.S. , 117 S.Ct. 2365 (1997).
\9\ 424 U.S. 1 (1976).
---------------------------------------------------------------------------
Similarly, when a Bush-appointed district judge enjoins an
Oregon ballot initiative allowing for assisted suicide,\10\ or
a Reagan-appointed district judge dismisses a contempt order
for violating the Freedom of Access to Clinic Entrances Act
because the defendants lack the requisite ``willfulness'' on
account of their religious convictions,\11\ we hear scant
criticism from the right wing. But when federal courts in
California have the temerity to suggest that referenda which
deny alien children the right to an education \12\ or prevent
minorities subject to discrimination from benefitting from
action,\13\ we hear storms of protest from the same
conservatives.
---------------------------------------------------------------------------
\10\ Lee v. Oregon, Civil No. 94-6467-HO, 2 (D.Or. 1994).
\11\ U.S. v. Moscinski, 952 F.Supp. 167, 170 (S.D.N.Y. 1997).
\12\ League of United Latin Americans Citizens v. Wilson, 908
F.Supp 755 (C.D. CA, 1995), remanded 131 F.3d 1297 (1997), aff'd 1998
U.S. Dist. Lexis 3418, (March 13, 1998) (holding California Proposition
187 unconstitutional).
\13\ Coalition for Economic Equity v. Wilson, 946 F.Supp. 1480,
rev'd 122 F.3d 718 (1997) (holding California Proposition 209).
---------------------------------------------------------------------------
The truth of the matter is that Republican-appointed judges
are at least as likely as Democratic judges to find that
particular state or federal actions violate the Constitution.
This was confirmed by a recent study by the Institute for
Justice which found that President Clinton's Supreme Court
Justices (Ginsburg and Breyer) are less likely to strike down
laws on account of economic and civil libertarian concerns than
any of their Republican-appointed colleagues.\14\ Indeed we
find that only two Justices voted to invalidate all seven acts
of Congress considered by the Supreme Court during the 1996-97
term--Justices Scalia and Thomas, widely considered to be the
most conservative jurists on the Supreme Court.
---------------------------------------------------------------------------
\14\ Clint Block and Scott G. Bullock, ``State of the Supreme
Court,'' Institute for Justice 1997.
---------------------------------------------------------------------------
The only thing more counterproductive than the phony debate
over judicial activism are proposed ``solutions'' being floated
by the Republican leadership. Efforts to impeach federal judges
who issue unpopular decisions \15\ and limit lifetime judicial
tenure \16\ would shred any semblance of separation of powers
envisioned by the founding fathers. When Speaker Newt Gingrich
(R-GA) states that judges who write opinions he does not agree
with are ``petty dictators'' imposing ``dangerous and wrong''
\17\ decisions and requests that the Judiciary Committee
conduct hearings on ``judicial activism'' \18\ in his opening
speech of the 105th Congress, he initiated a dangerous new line
of attack on federal judges. This was confirmed when Republican
Majority Leader Tom Delay (R-TX) threatened articles of
impeachment on several federal judges \19\ and declared ``the
Judges need to be intimated'' and ``we're going to go after
[judges who don't behave] in a big way.'' \20\ The irony of all
of this judicial bashing is that Republicans are criticizing an
institution--the judiciary--whose public confidence is nearly
three times greater than Congress itself.\21\
---------------------------------------------------------------------------
\15\ See Associated Press, ``The Bar Urges Protection of Judges'
Decisions,'' N.Y. Times, April 7, 1997, at A11.
\16\ See S.J. Res. 26, 105th Cong. (1997) (constitutional amendment
limiting the tenure of all federal judges to ten years); H.J. Res. 63,
105th Cong. (1997) (constitutional amendment limiting the tenure of
federal judges to twelve years); and H.J. Res. 74, 105th Cong. (1997)
(constitutional amendment limiting the tenure of federal judges to
twelve years).
\17\ 143 Cong. Rec. H1023, H1028 (March 17, 1997) (statement of
Speaker Gingrich).
\18\ 143 Cong. Rec. H2 (January 7, 1997) (statement of Speaker
Gingrich).
\19\ Supra note 15.
\20\ Joan Biskupic, ``Hill Republicans Target Judicial Activism;
Conservatives Block Nominees, Threaten Impeachment and Term Limits,''W.
Post, September 14, 1997, at A1.
\21\ The Harris Poll, No. 7, Louis Harris and Associates, Inc.,
February 10, 1997.
---------------------------------------------------------------------------
The actual provisions of H.R. 1252--though scaled back from
the dangerous rhetoric and proposals initially floated by the
Republican leadership--will do far more to undermine the
judiciary's integrity and efficiency than enhance its
accountability. While there are a few provisions in H.R. 1252
which some of us could support in other contexts--such as
efforts to allow increased use of courtroom cameras where
permitted by the court (Sec. 8) and provide federal judges with
cost of living allowances which are not tied to Congressional
pay raises (Sec. 9)--the potential merits of these provisions
are far outweighed by the legislation's other far more
problematic sections. These include:
A. Peremptory Judicial Challenges (Sec. 6)--Granting the
parties to federal civil actions the right to peremptorily
challenge a judge's authority and seek reassignment to another
judge to a slap in the face of every federal judge in this
country. In addition to creating new opportunities for judge
shopping and gamesmanship, section 6 will impose appreciable
new costs on the judiciary (particularly in mass tort cases).
It will also permit prejudicial challenges based on a judge's
race, gender, or other immutable characteristic.
B. Limiting Judicial Discretion Concerning Tax Revenues
(Sec. 5)--Limiting the ability of the federal courts to enter
orders relative to taxes is a classic ``solution in search of a
problem.'' While there was a single isolated case of a district
court trying to increase taxes to remedy an illegal segregation
case several years ago,\22\ the Supreme Court easily found the
lower court had exceeded its authority.\23\ In truth, it is
Congress which has raised the specter of judicially imposed
taxes, by pushing for a balanced budget amendment, thereby
allowing for open-ended court authority to balance the budget
when the legislature is incapable of doing so. The real problem
with section 5 is that by applying to court orders which may
merely have the effect of impacting governmental revenues,
rather than orders which expressly direct tax increases, the
bill could undermine remedial powers relating to a broad range
of laws, including statutes concerning civil rights, the
environment and disabilities, and decimate court authority to
properly interpret and apply the Constitution.
---------------------------------------------------------------------------
\22\ Missouri v. Jenkins, 672 F. Supp 400 (W.D. Mo. 1987), rev'd,
515 U.S. 70 (1995).
\23\ Missouri v. Jenkins, 515 U.S. 70 (1995).
---------------------------------------------------------------------------
C. Three Judge Panels (Sec. 2)--Requiring special three-
judge panels to hear cases concerning the constitutionality of
state referenda will diminish courts ability to make well
reasoned judgment and threaten to tie the legal process up in
knots. This is why Congress--on a bipartisan and consensus
basis--repealed nearly all of the three judge panel provisions
in1976.\24\
---------------------------------------------------------------------------
\24\ See infra note 54.
---------------------------------------------------------------------------
D. Judicial Misconduct (Sec. 4)--Proposals to remove the
evaluation of judicial misconduct complaints fly in the face of
years of study and validation of the current legal response
tothe sensitive and constitutionally difficult problem of judicial
discipline. There has been no showing of need to justify this overhaul,
which would be both cumbersome and expensive.
All of the above described proposals would significantly
increase costs and delays in our judicial system--the precise
opposite of the drafters' intent. At the same time the Majority
is so casually imposing these new burdens on our judiciary,
they have cast a blind eye to the most serious resource issue
facing the federal bench, the Senate Republicans' failure to
fill the record number of vacancies which exist in the
judiciary.\25\ For these and the other reasons set forth
herein, we dissent from H.R. 1252.
---------------------------------------------------------------------------
\25\ Obstructionist tactics by Senate Republicans have created a
nearly 10% vacancy rate and led even Chief Justice William Rehnquist to
demand that the Senate provide for speedier up or down votes on
judicial appointments. At the markup, Mr. Delahunt offered an amendment
which would have required the GAO to study the impact of Senate delays
in judicial confirmations on the federal judiciary which was rejected
by an 11 to 13 vote. Markup of H.R. 1252 by the House Comm. on the
Judiciary 58-62 (March 10, 1998).
---------------------------------------------------------------------------

i. peremptory challenges of federal judges will undermine confidence in
the judiciary

Perhaps the most objectionable section included in H.R.
1252 is section 6's peremptory challenge provision allowing
parties on either side of a civil case to remove the assigned
judge without stating any reason or cause. We oppose this
section for a number of reasons including: (1) its negative
impact on public confidence in the judiciary; (2) its adverse
impact on litigation costs and delays and its corresponding
bias in favor of wealthier parties; and (3) the likelihood it
will result in increased judicial challenges based on racial,
sexual, and other biases. Section 6 also is subject to a
massive loophole allowing peremptory challenges to be made
after a judge has issued major substantive and procedural
orders.
Current law already provides a clear and coherent statutory
regime for removing judges in appropriate circumstances: 28
U.S.C. Sec. 144 allows for disqualification of a judge because
of his or her own bias or prejudice; 28 U.S.C. Sec. 372(c)
establishes a complaint procedure for parties alleging judicial
misconduct; and 28 U.S.C. Sec. 455 requires judges to
disqualify themselves in cases where their impartiality might
reasonably be questioned. However, proposed section 6 goes well
beyond removing judges for cause, and allows parties to remove
judges for no stated reason whatsoever. As such, it calls into
question the integrity of every judge serving in the federal
judiciary.
As the Judicial Conference testified, ``[s]ection 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.'' \26\
These concerns were reiterated by Frederick B. Lacey, a
respected former U.S. Attorney and Federal District judge who
stated, ``[e]very trial lawyer wants to judge shop. The
[peremptory] strike promotes this practice, and I think it
discredits the judicial system [and] poses a threat to proper
and fair case management.'' \27\
---------------------------------------------------------------------------
\26\ 1997 Subcommittee Hearings supra note 3 (written statement of
Chief Circuit Judge Henry A. Politz, U.S. Court of Appeals for the
Fifth Circuit, and Judge Ann Claire Williams, Northern District of
Illinois, U.S. Judicial Conference 20).
\27\ 1997 Subcommittee Hearings supra note 3 (written statement of
Judge Frederick B. Lacy).
---------------------------------------------------------------------------
Peremptory judicial challenges will lead to significant
added costs and delays in our civil justice system. It is
significant to note that a recent RAND Corporation study
completed at Congress' direction found that the most
significant factor in reducing litigation costs stems from pre-
trial delays and failure by judges to assert early control over
a case.\28\ These problems would be significantly aggravated
under section 6. By establishing a right to replace a judge in
the early stages of a case, the legislation discourages judges
from devoting significant time and energy at the front end of a
case. Moreover, ambiguities inherent in section 6--such as the
determination of which ``side'' a party belongs to (a factual
finding to be made by the chief judge of the circuit),\29\
determining the meaning of ``substantial issue'' \30\ and
``notice of the original assignment of the case,'' \31\ and the
uncertainty of the provision's impact on prisoner litigation
and cases before federal magistrates \32\--are likely to lead
to increased litigation and costs.
---------------------------------------------------------------------------
\28\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 22).
\29\ Sec. 6, Proposed 28 U.S.C. Sec. 464(a)(2).
\30\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(2)(C).
\31\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(1).
\32\ Sec. 6, Proposed 28 U.S.C. Sec. 464(d)(1).
---------------------------------------------------------------------------
The potential for delay and gaming of the system in mass
tort cases involving complicated and lengthy pretrial
proceedings is particularly acute. In such cases it is only
after the pretrial period that the matter is formally
transferred back to its original district for trial, typically
to the judge who supervised the pre-trial work. Since section 6
only applies to ``case[s] to be tried'' \33\ it would permit a
reassignment motion to be filed with respect to a judge after
he or she has become intimately familiar with the case. Judge
Paul Niemeyer, writing on behalf of the Judicial Conference,
has stated that under these circumstances ``a preemptive
challenge would be devastating. All the expertise that the
judge acquired regarding the cases, developed over many months,
would be lost. New judges would have to educate themselves
regarding the cases, with attendant delay and expense.'' \34\
The same problem presents itself with respect to class
actions--a judge could be disqualified after going to all the
time and effort to certify a class prior to the actual trial.
---------------------------------------------------------------------------
\33\ Sec. 6, Proposed 28 U.S.C. Sec. 464(a)(1).
\34\ Letter from Judge Paul V. Niemeyer, Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States,
to Barney Frank, Ranking Member, Subcommittee on Courts and
Intellectual Property, U.S. House of Representatives, February 27,
1998.
---------------------------------------------------------------------------
Moreover, in mass tort cases section 6 would work to the
pronounced advantage of wealthy corporate defendants, since the
right to seek reassignment only applies where all the parties
on a side concur in the motion. Judge Niemeyer has written that
``[s]ection 6 appears to unfairly favor the side of a case with
fewest parties, because `all the parties on one side' must
bring the motion to reassign the case. In most mass tort cases,
where there are numerous plaintiffs but only a single or small
number of defendants, the defendants would have a distinct
advantage in obtaining the consents necessary to transfer the
case to a different judge.'' The unfairness could be even worse
with respect to class actions--if ``parties'' is deemed to
include all class members (as opposed to just named class
representatives), plaintiffs' attorneys would face the
impossible task of obtaining consents for thousands, if not
millions, of class members.
Another category of concern that we have with section 6
stems from the opportunity for discriminatory use of peremptory
challenges. Instead of limiting judicial challenges to cases of
actual conflict or bias, section 6 does not require the
exercising party to make any showing or even any allegation of
bias. According to the Alliance for Justice, ``the [strike]
decision is more likely to be based on a judge's race, gender
or experience before taking the bench, instead of a
demonstrated bias for or against a particular party.'' \35\
These concerns were echoed in a recent Washington Post Op-
Ed,\36\ when the Honorable J. Harvie Wilkerson, Chief Judge of
the Fourth Circuit complained that under H.R. 1252 judges could
easily be removed for racial reasons, creating a system worse
than the systemic racially motivated juror peremptory strikes
previously dismantled in Batson v. Kentucky.\37\
---------------------------------------------------------------------------
\35\ Memorandum from the Alliance for Justice, the Alliance for
Justice Opposes H.R. 1252, the ``Judicial Reform Act'' 5 (1998).
\36\ Judge J. Harvie Wilkerson, ``To Strike a Judge,'' W. Post,
June 13, 1997, at A29.
\37\ 471 U.S. 1052 (1985).
---------------------------------------------------------------------------
Proponents' assertions that peremptory challenges should be
incorporated into the federal judicial system based on
supposedly favorable results in the states do not survive
scrutiny. While seventeen states have reassignment provisions,
only ten states currently provide for the moreradical form of
absolute peremptory challenge included in H.R. 1252,\38\ and almost all
of these laws predate today's concerns for judicial management and
efficiency.\39\ Moreover, the procedure in these states is not widely
supported. For example, a former Wisconsin State Supreme Court Justice
described his state peremptory challenge provision as ``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.'' \40\
---------------------------------------------------------------------------
\38\ The other states allow for a ``modified'' peremptory
challenge, by requiring 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.
See 1997 Subcommittee Hearings supra note 3 (written statement of Chief
Circuit Judge Politz and Judge Williams 26).
\39\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 26).
\40\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 26).
---------------------------------------------------------------------------
California's modified peremptory challenge provision has
also caused ``serious case management problems'' according to
the Judicial Conference.\41\ During the Committee markup, Mr.
Rogan (R-CA), a former prosecutor, described his adverse
experiences under California's peremptory challenge procedure.
Mr. Rogan explained that California judges are afraid that a
decision out of step with similar decisions of other judges
might cause them to be permanently challenged by either the
plaintiffs' or defendants' bars in civil cases, or by the
prosecution or defense bars in criminal cases. Accordingly, the
law has the effect of forcing state judges to meet to ensure
that their sentences for particular offenses in criminal cases
and their judgments in civil cases are in line with one
another.\42\ (A bipartisan amendment offered by Mr. Rogan and
Mr. Frank to strike the entire peremptory challenge provision
was defeated by an 11-13 vote.)
---------------------------------------------------------------------------
\41\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 26).
\42\ Markup of H.R. 1252 by the House Comm. on the Judiciary 76,
(March 10, 1998) (statement of Mr. James E. Rogan, R-CA).
---------------------------------------------------------------------------
The fact that section 6 is generally written to apply to
motions brought within 20 days of the original assignment of
the case does not provide a significant limitation on the
opportunity for abuse and gamesmanship. This is because the 20-
day limitation is subject to gaping loopholes that would allow
challenges to be made at later stages of the proceeding. For
example, under section 6 a new opportunity to reassign a case
arises whenever: (1) a new party is added (by intervention,
interpleader, etc.); (2) a supplemental, amended, or third
party complaint is served; or (3) a party enters a belated
appearance.\43\ Such occurrences are fairly common,
particularly in complex trials, and can easily be manipulated
by a party desirous of acquiring a new judge after the party
has lost important substantive rulings in a case.
---------------------------------------------------------------------------
\43\ Sec. 6, Proposed 28 U.S.C. Sec. 464(b)(2).
---------------------------------------------------------------------------
The fact that the peremptory challenge provision was
modified by amendment to only apply to the 21 largest judicial
districts also does not mitigate section 6's infirmities. The
Department of Justice has noted that ``two-thirds of the 21
largest districts have small divisions which may have only a
few judges, thus there still exists a real potential for judge
shopping and significant forum shopping, as well as increased
costs and delay due to relocation.'' \44\ Paradoxically, the 21
district limitation could create greater forum shopping
opportunities, because parties will have an incentive to file
suits in these districts in order to take advantage of the
peremptory challenge procedures. Again, such manipulative
practices would be most affordable for wealthy litigants.\45\
---------------------------------------------------------------------------
\44\ Letter from Andrews Fois, Assistant Attorney General, U.S.
Department of Justice, to Henry Hyde, Chairman, Committee on the
Judiciary, U.S. House of Representatives 3 (March 10, 1998).
\45\ Arguing the principle that if the provision is the right thing
to do, it should be available to litigants everywhere. Mr. Watt offered
an amendment extending the project to all judicial districts. Mr. Watt
pointed out that allowing a judicial peremptory challenge in only 21
districts might even be unconstitutional, creating an inequality among
litigants nationwide. The amendment was defeated by a 6-12 vote. Markup
H.R. 1252 by the House Comm. on the Judiciary 30-35 (March 24, 1998).
---------------------------------------------------------------------------

ii. limiting judicial discretion concerning tax revenues is unnecessary
and unconstitutional

Section 5 prohibits district courts from entering any order
or approving any settlement that ``requires'' any ``state or
political subdivision to impose, increase, levy or assess any
tax'' unless the court finds by clear and convincing evidence
that six enumerated conditions exist.\46\ Taxes that meet the
six conditions automatically end within one year, and no tax
can be imposed if it contravenes state or federal law.
---------------------------------------------------------------------------
\46\ When granting any relief against a government entity, a court
would be required to find by clear and convincing evidence that; a)
there are no other means available to remedy a violation of a
Constitutional right; b) the proposed remedy is narrowly tailored to
remedy a specific deprivation; c) the tax will not exacerbate the
deprivation intended to be remedied; d) plans submitted by the state
and local authorities are insufficient; e) the interests of State and
local authorities in managing its own affairs is not usurped by the
levy; and f) the levy will not result in the loss of depreciation of
affected taxpayers. Sec. 5(a), Proposed 28 U.S.C. Sec. 1369(a)(1).
In the unlikely event that the six conditions can be met and the
court order is permitted, the automatic annual termination of the court
order would create an undue and costly burden for the parties and the
court. This would require parties to appear repeatedly before the court
to provide information on the court order, despite the fact that there
may be no change in circumstances necessitating any new court review.
---------------------------------------------------------------------------
This provision is highly problematic for a number of
reasons. First it is unnecessary. There is simply no outbreak
of judicial taxation cases in this country. Outside the context
of a few nineteenth-century municipal bond cases, the federal
courts have not directly imposed a tax except for a single
school desegregation case--Missouri v. Jenkins.\47\ And even
this isolated case was overturned by the Supreme Court in 1995,
when the Justices unanimously rejected the concept of direct
federal court imposition of taxes.\48\
---------------------------------------------------------------------------
\47\ 672 F. Supp. 400 (W.D. Mo. 1987) (ordering that Kansas City,
Missouri school district increase property tax levies for one year in
order to comply with court's desegregation order.) See also Memorandum
from the Alliance for Justice, supra note 35, 1 (March 26, 1998).
\48\ Missouri v. Jenkins, 515 U.S. 70 (1995).
---------------------------------------------------------------------------
Even more importantly, as section 5 is currently written,
it could apply to virtually any order or settlement requiring
governmental monetary expenditures to conform their
institutions to constitutional or federal legal requirements,
even if the order or settlement does not explicitly impose such
a tax.\49\ It is for this reason that the Judicial Conference
has written that section 5 ``may undermine the very foundation
of judicial power.'' \50\ For example, under section 5 Brown v.
Board of Education \51\ could have been vitiated because it
necessitated expenditures by local governments to desegregate
their local schools. The language could also apply to preempt
suits under the Americans with Disabilities Act seeking access
to government facilities which require funds for renovation, or
an environmental action requiring clean-up of a toxic waste
dump. Moreover, since section 5 applies to pending cases,
orders, and settlements, it could easily undermine numerous
long standing desegregation and environmental orders. It is for
this reason that a broad range of civil rights, environmental,
and disabilities groups oppose section 5.
---------------------------------------------------------------------------
\49\ At committee, Mr. Delahunt offered an amendment which would
have narrowed the bill to court orders which ``expressly direct'' a tax
increase, rather than orders which may indirectly necessitate a revenue
increase (as the subcommittee-reported bill had provided). His
amendment was rejected by a 10 to 12 vote. Markup H.R. 1252 by the
House Comm. on the Judiciary 16-20 (March 10, 1998).
\50\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 19).
\51\ 347 U.S. 483 (1954). In the wake of Brown, a number of school
districts refused to levy taxes to fund their school systems, and court
intervention was necessary to uphold the Constitution. See Griffin v.
Prince Edward's County School Bd., 377 U.S. 218 (1964). In the wake of
Brown, 81 Members of the House signed a resolution condemning as part
of a supposed ``trend in the federal judiciary to legislate, in
derogation of the authority of Congress, and to encroach upon the
reserved rights of the people.'' 1997 Subcommittee Hearings, supra note
3 (written statement of Wade Henderson, Executive Director, Leadership
Conference on Civil Rights, 4).
---------------------------------------------------------------------------
Another serious flaw in section five is that it grants
standing to challenge a court order to ``aggrieved
corporations'' as well as individuals. This grant is written so
broadly that foreign corporations who are not present in the
jurisdiction, but whose tax liability would be ``directly
affected'' \52\ by the imposition are given standing to sue. It
is one thing to give standing to a company that has a real
stake in the life of a community and must live with the social
and political consequences if a court order is overturned, but
it is quite another to confer standing on a foreign entity that
happens to do business here and whose sole interest in American
society is in maximizing its profits. Unfortunately, an
amendment offered by Mr. Delahunt to exclude such foreign
corporations from the scope of the section were rejected by the
Committee by a 10 to 12 vote.
---------------------------------------------------------------------------
\52\ Sec. 5(a), Proposed 28 U.S.C. Sec. 1369(a)(5)(A).
---------------------------------------------------------------------------

iii. three-judge panels will diminish courts ability to make well
reasoned and efficient legal judgments

Section 2 provides for a three-judge district court
procedure in cases challenging the constitutionality of state
laws, with a direct appeal to the Supreme Court. We oppose this
section because of the new and unnecessary costs and delays it
will impose on the federal judiciary. At every step of the
process, the three-judge court requirement is burdensome on the
federal judiciary, and the burden is substantial even if the
number of cases falling within the ambit of the requirement is
small. We do not have to surmise that this is so; when a
substantially similar statute was repealed in 1976,\53\ the
repeal received universal support, and the three-judge panel
provision was described as ``the single worst feature in the
Federal judicial system as we have it today.'' \54\
---------------------------------------------------------------------------
\53\ Former 28 U.S.C. Sec. 2281, repealed by Pub L. No. 94-381,
Sec. 1, 90 Stat. 1119. The primary difference between H.R. 1252 and
Sec. 2281 is that the former applies only to State law adopted by
referendum.
\54\ S. Rep. No. 204, 94th Cong., 1st Sess. 2.
---------------------------------------------------------------------------
It is also spurious to point to district court decisions
holding portions of California have to travel great distances
to convene the three-judge panel, to the substantial detriment
of their existing caseloads. This Committee knows all too well
that the federal judiciary has limited resources and an
overburdened docket; we should not blithely require the
judiciary to triple the time it must devote to a single case
without evidence that an improvement worthy of that added
investment would be forthcoming.
Proponents of the three-judge panel provision argue that
very few cases would be implicated by its provisions, and the
burden would therefore be minimal. This argument is wrong for
several reasons. First, no reliable evidence was introduced
into the record to demonstrate that the number of cases would
be small.\55\ Even if the number is small, the burden is high.
As Chief Judge Harry T. Edwards of the D.C. Circuit Court of
Appeals testified in 1995, even ``a relatively insignificant
number [of three-judge panel cases constitutes] a terribly
burdensome process when we're asked to engage in it.'' \56\
Finally, because the referendum process does not exist in
numerous states, and its use is more heavily concentrated in
others (e.g., California), the burden imposed by H.R. 1252
would not be evenly distributed among the circuits.
---------------------------------------------------------------------------
\55\ Proponents of the legislation argued that only ten cases in
the last decade would have come within the ambit of the three-judge
panel provision. The source of this information, apparently, was a
quick keyword computer search performed by a Library of Congress
employee and reported by telephone. No truly reliable research was
conducted. Our own records easily contradict this conclusion as ten
referenda from California alone have been challenged in federal courts
since 1988. The referenda are Propositions 65 (consumer protection/
warning labels), 73 (campaign finance reform), 103 (insurance reform),
115 (reciprocal discovery in criminal cases), 140 (term limits), 187
(curtailing benefits to immigrants), 198 (open primary), 208 (campaign
finance reform), and 209 (banning affirmative action by state
agencies).
\56\ Hearing on H.R. 1170 Before the Subcomm. on Courts and
Intellectual Property Comm. on Judiciary, 104th, Cong. (April 6, 1995)
(statement of Harry T. Edwards, Chief Circult Judge, U.S. Court of
Appeals for D.C.).
Judge J. Skelly Wright, testifying in 1975, emphasized ``the
problem of ruling on evidence as the swift-moving events of the trial
take place. Three judges cannot act with the same incisiveness as the
single judge in making trial rulings as necessary.'' Hearings before
the Subcommittee on Courts, Civil Liberties, and the Administration of
Justice 94th Cong. (June 20, and July 19, 1975) (statement of Judge J.
Skelly Wright).
---------------------------------------------------------------------------
Fact-finding is a trial court function particularly
difficult for a three-judge panel, and it is clear that many
proceedings under section 2 will involve substantial fact-
finding. As Judge Edwards noted, ``determining the likelihood
of irreparable harm in the weighing of probable evidence in
support of parties' arguments on the merits are fact-finding
matters ill-suited for initial decision by multi-judge
panels.'' \57\ A burden is also imposed on the Supreme Court
since it would be required to dispose of a case on the bare-
bones record developed in an injunctive suit in the district
court, without intermediate consideration by a court of
appeals.\58\
---------------------------------------------------------------------------
\57\ Hearing on H.R. 1170, id. (statement of Harry T. Edwards,
Chief Circult Judge, U.S. Court of Appeals for D.C.)
\58\ The Alliance for Justice explained, ``[u]nder H.R. 1252,
three-judge court cases would come to the Supreme Court without the
filtering of facts and contentions normally applied by the courts of
appeals. Those courts winnow the record, narrow the issues, and sharpen
arguments: without the layer of review, the Supreme Court will be
forced to decide cases on records that are diffuse and imprecise.
Moreover, for laws passed by the legislature, a legislative record has
been developed. This is not true for those laws adopted by referendum,
thus there would be even less material for the Supreme Court to rely on
these situations.'' Alliance for Justice, supra note 35, 2. See also,
Fois, supra, note 44, 2 (the three-judge panel would provide ``for a
process that is cumbersome, confusing, and inefficient. * * *'').
An additional complication under the legislation is that in cases
where preliminary injunctive relief is denied, which include claims for
a permanent injunction and damages, the latter two claims could be
tried before a different set of judges with different procedures for
appeal, since section 2 does not apply to temporary restraining orders.
This is an inefficient and non-sensical result.
---------------------------------------------------------------------------
One of the principal arguments advanced by the proponents
of section 2 is that it will prevent forum-shopping by
plaintiffs who, it is said, may currently file their cases in
the court most likely to favor their position. This argument
ignores the fact that all federal districts have rules that
require the random assignment of cases. Indeed, in the
successful legal challenge to California proposition 187 that
originally motivated this proposal, the case was filed in the
Central District of California, where it was randomly assigned
to one of 25 district court and 7 senior judges.\59\ It is also
spurious to point to district court decisions holding portions
of California Proposition 187 and 209 as unconstitutional as
justifying this intrusive and expensive proposal. The drafters
of proposition 187 recognized that state efforts to deny alien
children public education was constitutionally problematic, and
drafted the initiative in a specific attempt to provoke a
constitutional challenge and overturn Plyler v. Doe.\60\ As for
proposition 209, while this initiative banning state
affirmative action was struck down by the district court, the
decision was quickly overturned by the Ninth Circuit.\61\ A
three-judge panel would have likely only delayed a decision on
the merits.
---------------------------------------------------------------------------
\59\ If anything, H.R. 1252 itself provides an opportunity for
forum shopping that does not now exist. If the legislation is enacted,
plaintiffs seeking to challenge the constitutionality of a state law
can elect to file a case seeking a declaratory judgment; if they like
the judge randomly assigned to the case, they can seek the declaratory
judgment alone, and when that judgment is final, it will be res
judicata and an injunction will have to issue. An end run, in effect,
can occur around the three-judge rule. If, on the other hand, the
plaintiffs perceive the randomly assigned judge to be unfavorable, they
can then file an application for an injunction, which will
automatically give them two more judges, in the hope that the original
judge will be out-voted by the two additional judges. In short,
plaintiffs would have two bites at the apple in terms of getting the
best court possible.
\60\ 457 U.S. 202 (1982) (holding a Texas statute which withholds
from local school districts any state funds for the education of
children who were not ``legally admitted'' into the United States, and
which authorizes local school districts to deny enrollment to such
children, violates the Equal Protection Clause of the Fourteenth
Amendment). See also League of United Latin Americans Citizens v.
Wilson, 908 F.Supp 755 (C.D. CA, 1995), remanded 131 F.3d 1297 (1997),
aff'd 1998 U.S. Dist. Lexis 3418 (March 13, 1997).
\61\ Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480
(N.D.Cal.), rev'd, 122 F.3d 692 (9th Cir. 1997).
---------------------------------------------------------------------------
Finally, we would note that Members of the Majority have
repeatedly attempted to argue that section 2 is justified
because of the continuing applicability of three judge panels
to voting rights cases. We respectfully disagree for two
reasons. First, the original rationale for retaining three-
judge panels in voting rights cases stemmed from legislative
concern regarding the problem of racist judges in the
South.\62\ There has been no comparable suggestion of judicial
bias with respect to state voter initiatives. Secondly, Mr.
Watt stated he believes that the justification for three-judge
panels in voting rights cases does not currently exist to the
same extent it did historically, and that based on his
experience with three-judge panels in his own redistricting
dispute he believes three-judge panels are extremely
inefficient.\63\
---------------------------------------------------------------------------
\62\ See H.R. Rep. No. 94-1379, at 13 (1976) (noting that the civil
rights community argued ``three-judge courts were needed to protect
racial minorities from the local bias and parochialism of some federal
judges'').
\63\ Markup of H.R. 1252 by the House Comm. on the Judiciary, 105th
Cong. 41-42 (March 10, 1998) (statement of Mr. Watt).
---------------------------------------------------------------------------

iv. removal of judicial conduct complaints will harm a system that is
working well

Section 4 of H.R. 1252 alters the current procedure for
handling complaints of misconduct against federal trial judges
to provide for consideration of judicial complaints outside the
relevant circuit.\64\ The proposed changes are unnecessary and
would ultimately be counter-productive. The current system,
which allows for resolution of complaints in the first instance
by the circuit in which the complained against judge resides,
is set forth in the Judicial Conduct and Disability Act.\65\
This law has stood the test of time and was the result of years
of discussion and compromise concerning the constitutionality
and appropriateness of establishing a statutory disciplinary
mechanism for the federal judiciary. The efficacy of the
Judicial Conduct and Disability Act was reiterated as recently
as 1993 by the congressionally created National Commission on
Judicial Discipline, which concluded:
---------------------------------------------------------------------------
\64\ Under the proposed system, a complaint is initially referred
to the chief judge of the circuit where the court in sits. The chief
judge may dismiss the case if she finds that the complaint a) relates
to the merits of the case, b) the complaint was improperly filed, or c)
the complaint is frivolous. If the chief judge finds that the complaint
cannot be disposed of on any of these three grounds, then she shall
forward the complaint to a chief judge of another circuit for his
consideration. That chief judge may dispose of the complaint by written
order if he finds that the problem has been remedied or is now moot, or
conduct proceedings on the merits. Sec. 4(a), Proposed 28 U.S.C.
Sec. 372(c).
\65\ 28 U.S.C. Sec. 1 note.

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 a system of self-regulation within the
judiciary * * * [A] major benefit of the Act's formal
process has been to enhance the attractiveness of
informal resolution.\66\
---------------------------------------------------------------------------
\66\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 10, citing Report of the
National Commission on Judicial Discipline and Removal, at 113 (August
1993)).

The Commission also recognized the cost effectiveness of
peer review of judges, noting that the benefits of timely
resolution of complaints, the proximity of the chief judge to
insure implementation of discipline, the lack of travel cost,
and retaining an administrative instead of adversarial
discipline process would all be lost if internal circuit review
was abandoned.\67\ This view is shared by the American Bar
Association,\68\ and the Department of Justice,\69\ the latter
having written ``federal judges must be trusted to police their
colleagues with respect to allegations of misconduct, and that
judges in one circuit are equally--if not better--able to
discipline their colleagues on that circuit as they are to
discipline judges in other circuits.'' \70\
---------------------------------------------------------------------------
\67\ 1997 Subcommittee Hearings, supra note 3 (written statement of
Chief Circuit Judge Politz and Judge Williams 12-13).
\68\ 1997 Subcommittee Hearing, supra note 3 (statement of Mr. N.
Lee Cooper, President, American Bar Association, 14). Citing the Report
of the National Commission on Judicial Discipline and Removal, supra
note 66, 89-90, the ABA wrote ``[I]n assessing the impact of the 1980
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'.'' Id.
\69\ Letter from Andrew Fois, Assistant Attorney General, United
States Department of Justice, Hon. Howard Coble, Chairman, Subcommittee
on Courts and Intellectual Property, U.S. House of Representatives
(June 10, 1997).
\70\ Id., 2.
---------------------------------------------------------------------------
Notwithstanding the widespread and non-partisan support for
the current legal regime, Republicans would have us completely
overhaul the law as an apparent result of a single matter in
which the Chief Judge and the Judicial Council of the Sixth
Circuit considered and ultimately dismissed--12 complaints
arising out of the handling of eight death penalty habeas
corpus petitions by a district court judge from that
circuit.\71\ After reviewing the details of this case, the
Judicial Conference noted that ``it is likely that 16 judges
from any region of the country would have decided the same as
did the 16 judges from the Sixth Circuit.'' \72\ Moreover, the
core complaint in that dispute is already being dealt with by
another provision in this bill--section 7 providing for the
random reassignment of habeas corpus cases.
---------------------------------------------------------------------------
\71\ Letter from Leonidas Ralph Mecham, Secretary, Judicial
Conference for the United States, to John Conyers, Jr., Ranking Member,
Committee on the Judiciary, U.S. House of Representatives (March 3,
1998).
\72\ Id., 3.
---------------------------------------------------------------------------

conclusion

We would warn the Members of the many dangers that occurs
when elected representatives seek to score easy political
points by criticizing judges and circumscribing court powers
and jurisdiction as H.R. 1252 does.\73\ In his farewell address
to the Nation, then President George Washington warned:
---------------------------------------------------------------------------
\73\ H.R. 1252 is only the most recent effort in a long line of
Republican legislative efforts to substitute their political judgment
for the well-reasoned legal judgment of an independent judiciary. Among
other things, since Republicans took control of Congress, they have:
(1) passed laws which allowed for summary exclusion of aliens seeking
asylum without legal due process and eliminated judicial review of
other administrative decisions effecting aliens [[Illegal Immigration
Reform and Immigrant Responsibility Act of 1995, Pub. L. No. 104-208
(1996)]; (2) directed a variety of intimidating questions and surveys
towards the judiciary; and (3) initiated an unprecedented number of GAO
reviews of the judiciary. At the same time, Republicans have also
unsuccessfully sought legislation to establish a non-judicial authority
to review the courts [S. 1446, 104th Cong. (1995)]; abrogate the Fourth
Amendment exclusionary rule [H.R. 666, 104th Cong. (1995)]; and
circumscribe federal court authority with regard to real property
taking cases [H.R. 1534; H.R. 992, 105th Cong. (1997)].

Let there be no change [in court powers] by
usurpation; for it is through 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.\74\
---------------------------------------------------------------------------
\74\ 1997 Subcommittee Hearings, supra note 3 (written statement of
N. Lee Cooper 17).

Until Congress can devise a better system of checks and
balances than James Madison and the founding fathers, we would
advise the Majority to stop criticizing and micro managing our
judiciary and return to the legislative work the voters sent us
---------------------------------------------------------------------------
to Congress to accomplish.

John Conyers, Jr.
Charles E. Schumer.
Rick Boucher.
Bobby Scott.
Zoe Lofgren.
Maxine Waters.
William D. Delahunt.
Steven R. Rothman.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Marty Meehan.
Robert Wexler.