I just received a message that Mr. Joe Callaway, a hearing examiner before the Federal Trade Commission, whom some of you might know, passed away at 1:30 today. We could go on and on with this discussion, I am sure, with a lot of profit and benefit, but the record is an exceedingly good one. I surely regret that I have not been able to be here all afternoon. You understand what our situation has been. I do want to thank the members of this panel for your generosity and kindness in coming to grips with these problems, and so without detaining you too long this evening, if you will accommodate us again tomorrow, in order to make it a little bit more general we won't assemble until 10 o'clock. That will help everybody, including us. Again with the thanks of the committee, we will look forward to seeing you tomorrow at 10 o'clock, when we will take up topic III. (Thereupon, at 4:30 p.m., the committee recessed, to reconvene at 10 a.m., Wednesday, June 24, 1959.) MAJOR ADMINISTRATIVE PROCESS PROBLEMS (General Roundup Discussion) WEDNESDAY, JUNE 24, 1959 HOUSE OF REPRESENTATIVES, SPECIAL SUBCOMMITTEE ON LEGISLATIVE OVERSIGHT OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Washington, D.C. The special subcommittee met at 10 a.m., pursuant to recess, in room 1334, New House Office Building. Present: Representatives Harris (presiding), Springer, and Devine. Also present: Robert W. Lishman, counsel to the subcommittee; Beverly M. Coleman, subcommittee attorney, Herman Clay Beasley, subcommittee clerk, and Jack Marshall Stark, minority counsel. The CHAIRMAN. The committee will come to order. At this time I call attention to the fact that I have previously offered for the record a list of the names and addresses of all of the panelists who, in responce to the invitation of the Special Subcommittee on Legislative Oversight, will attend and participate in our discussion meetings. This list, together with the revised outline of proposed panel discussion, containing a schedule of the meetings, which was sent to each of the panelists, will be reproduced at the end of the printed record for ready reference purposes. As we resume this morning I believe Mr. Bond is prepared to open the discussion with a statement on topic III. Mr. Bond. MEMBERS OF THE PANEL DONALD C. BEELAR, ATTORNEY, WASHINGTON, D.C. RICHARD J. CONNOR, PRESIDENT, FEDERAL POWER BAR ASSOCIA- GEOFFREY CREYKE, JR., CHAIRMAN, ADMINISTRATIVE LAW SEC- JUSTIN FELDMAN, CHAIRMAN, ADMINISTRATIVE LAW COMMIT- 685 ROBERT E. MAY, FORMER CHAIRMAN, FEDERAL POWER BAR ASSOCIATION, WASHINGTON, D.C. F. TROWBRIDGE VOM BAUR, FORMER CHAIRMAN, ADMINISTRATIVE LAW COMMITTEE, FEDERAL BAR ASSOCIATION, WASHINGTON. D.C. JOSEPH P. ADAMS, EXECUTIVE DIRECTOR AND GENERAL COUNSEL, ASSOCIATION OF LOCAL TRANSPORT AIRLINES, WASHINGTON, D.C. PETER T. BEARDSLEY, GENERAL COUNSEL, AMERICAN TRUCKING ASSOCIATIONS, WASHINGTON, D.C. LOUIS P. HAFFER, EXECUTIVE VICE PRESIDENT AND COUNSEL, AIR FREIGHT FORWARDING ASSOCIATION, WASHINGTON, D.C. ROBERT E. LEE HALL, GENERAL COUNSEL, NATIONAL COAL ASSOCIATION, AND SECRETARY, FUELS RESEARCH COUNCIL, WASHINGTON, D.C. HAROLD F. HAMMOND, EXECUTIVE VICE PRESIDENT, TRANSPORTATION ASSOCIATION OF AMERICA, WASHINGTON, D.C. T. VERNON HANSEN, SOUTHERN STATES COOPERATIVE (TAA), WASHINGTON, D.C. STANFIELD JOHNSON, ASSOCIATION OF AMERICAN RAILROADS, WASHINGTON, D.C. STUART G. TIPTON, PRESIDENT, AIR TRANSPORT ASSOCIATION, WASHINGTON, D.C. VINCENT T. WASILEWSKI, NATIONAL ASSOCIATION OF BROADCASTERS, WASHINGTON, D.C. MARC WHITE, COUNSEL, NATIONAL ASSOCIATION OF SECURITIES DEALERS, WASHINGTON, D.C. J. D. BOND, FCC; HAROLD P. BOSS, ICC; PAUL N. PFEIFFER, CAB; HENRY SAHM, NLRB; AND JOSEPH ZWERDLING, FPC, PRESIDENT, FTEC, REPRESENTATIVE OF FEDERAL TRIAL EXAMINERS CONFERENCE VALENTINE B. DEALE, ATTORNEY, WASHINGTON, D.C. Mr. BOND. Thank you, Mr. Chairman. I shall try to direct my attention to the portion of my statement which has been filed which has bearing on this subject, and I would begin perhaps on page 2 of the statement as it has been reproduced. I offer no partisan support for the debaters of the question as to whether administrative procedure would be more improved by getting better men or by legislating better processes. It is certain that these are not mutually exclusive alternatives; both objectives are desirable, and both are interdependent. Abler men will improve procedures. and improved legal procedures will attract and retain able men. The hearing examiner is chiefly engaged in conducting adversary proceedings which might usefully be described as formal proceedings before administrative tribunals in which conflicting or competing interests of parties are required to be resolved by decision based on a hearing record. Characteristically, public interest considerations are of ultimately great significance in adversary proceedings, but the basic issues of contention may involve a variety of adversary claims among and between private parties and public agencies and authorities. The object of the proceeding is to decide justly a controversy, be it a contest by two individuals for one available public license or an extremely complex arraignment of competing interests in the big rate or regulatory cases. Manifestly, the size, clarity, and expense of the hearing record depend largely on the capabilities of the presiding officer, the hearing examiner. Undue delay and expense are elements of unfairness which can be minimized by competently conducted hearings. To rule wisely on procedural and evidentiary matters that arise in hearings is to promote justice. The hearing examiner must have, in addition to personal abilities of a judicial character, full authority to control the course and conduct of the hearing. New legislative measures to this end could add much to the hearing examiner's effective management of proceedings before him. Significant improvements in this direction were made by the 1952 amendments to section 409 of the Communications Act, but more could be done. The parallels and precedents of judicial experience suggest the wisdom of endowing administrative proceedings of an adversary character with the environmental attributes of judicial justice. Centuries of growth in our Anglo-Saxon jurisprudence underlie our devotion to the principles of equal justice under law. Safeguarding those fundamental principles is the role of our independent judiciary. Just so, the independent hearing examiner is at the helm guiding to just results the administrative proceedings before him. To the extent that the hearing examiner has not authority to direct effective pretrial and discovery procedures, he lacks tools found most helpful by the court judge. In summary, except for personal powers over criminal and civil contempt, the trial judge's authority over his cases should find counterpart in the hearing examiner's powers to conduct adversary proceedings before him. It is said in criticism of the foregoing principles that we thus would judicialize administrative law proceedings. Judicialization is no stigma; instead it is to be applauded if the result is to improve the government's processes for doing justice to its citizens. In further pursuit of this full justice by judicialization, I advocate firmly circumscribed adherence to the principle that adversary proceedings must be decided, both initially and finally, exclusively on the |