THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 September 20, 1985 David Beier, Esq. House Judiciary Committee 2137B Rayburn House Office Building Washington, D.C. 20315 Dear David: Thank you for sending me a copy of Phillip Brady's letter stating the views of the Department of Justice on H.R. 2633. As you know, I share the Department's reservations about the open meeting provision, although not the concern about procedural challenges, which are addressed in the bill. I am aware, however, that that issue is invested with a substantial political component. As to the Department's views on supersession, a few observations are in order. First, the difficulty arising from, e.g., the Federal Rules of Evidence, is one that you have already noted and that could be dealt with by an amendment to the bill. I address the constitutional problems with such an amendment below. Second, although asserting that "the judicial branch should retain its current flexibility," Mr. Brady nowhere addresses the costs of the current system. One of these costs is the additional pressure that supersession puts on Congress to block proposed Federal Rules. Third, Mr. Brady does not identify the benefits of supersession provisions. Considering the reasons for their inclusion in the enabling acts and the history since that time, including in particular the 1948 revision of the Judicial Code, it is not clear what those benefits are. Finally, I note that the Department has picked up and attempted to run with a line of analysis suggested in my June 6 statement before Representative Kastenmeier's subcommittee ("Does Chadha foreclose Congress from ceding, as part of an otherwise valid delegation, its supremacy in an area of shared power (retaining all the while the power to reassert it)?"). Mr. Brady's letter, however, makes me no more confident of the answer to that question than I was in June. For, it is not clear that he distinguishes judicial power that is inherent in the sense that the courts can act in the absence of legislative authorization and power to act in contravention of legislation. And it is quite clear that he follows many others in failing to distinguish among rulemaking in the context of a case or controversy, local court rulemaking and supervisory court rulemaking. I believe that federal courts have inherent power both to fashion rules of procedure for a case or controversy and to regulate their proceedings prospectively by local court rules. It has never been necessary to test the latter proposition, because there have been federal statutes so authorizing since the beginning of the Republic. This power is not, however, inherent in the sense that its exercise trumps contrary legislation. Federal statutes have long required that local court rules be consistent with federal statutes (see now 28 U.S.C. Section 2071), and to my knowledge the Court has never questioned Congress' power to impose that requirement. Indeed, it has reaffirmed the requirement, notwithstanding its absence in Fed.R.Civ.P. 83. See Colgrove v. Battin, 413 U.S. 149, 161 n.18 (1973). It is harder to maintain that the Supreme Court, whatever its supervisory power in the context of a case or controversy, has inherent power to fashion rules regulating the practice and procedure of the lower federal courts prospectively (supervisory court rules). Again, it has never been necessary to answer the question, because the Court has had statutory authority when it has acted. In any event, I deem it inconceivable that, if the Court does have inherent power in this context, it is power to proceed contrary to legislative direction. See Burbank, "Sanctions in the Proposed Amendments to the Federal Rules of Civil Procedure: Some Questions About Power, " 11 Hofstra L. Rev. 997, 1004-1006; Burbank, "The Rules Enabling Act of 1934," 130 U. Pa. L. Rev. 1015, 1021 n.19, 1115 n.455, 1183 n. 728 (1982). Even assuming the Court's power to prescribe supervisory court rules in . the absence of legislative authorization (inherent power of the weaker type), I think the Department's analysis may be too facile. I am not referring to the debater's point about repeal vs. supersession. Rather, the fact is that Congress does enter the field, according to the requirements of Article I, when it passes statutes. Functionally viewed, general supersession provisions represent not "forbearance or deference...to the judiciary's inherent authority" but a general attempt by Congress to turn power that is inherent in one sense into power that is inherent in another. I am by no means sure that Congress is free to do that. I am somewhat more sanguine about the constitutional validity of specific supersession provisions, such as the authorization to prescribe amendments to the Federal Rules of Evidence (which an amendment to H.R. 2633 might seek to preserve). Let us forget about "inherent power. Does Congress have the power to establish temporary rules in a statute and to provide for their supersession upon the promulgation of rules prescribed by the Supreme Court (or some other delegate) under a delegation that is otherwise valid? I should think so. Moreover, I should think that Congress could provide for supersession retrospectively so long as it identified the rules that, under this analysis, are "temporary." In both cases the repeal could, without too much strain, be attributed to Congress, acting in accordance with Article I. From this persepctive, the problem with general supersession provisions is that, not only did the Congress that passed the statute putatively superseded not focus on the issue, but no Congress has. This distinction emerges from the debate that attended the insertion of the supersession provision in the bill that became the Rules Enabling Act of 1934. See - 2 Burbank, "The Rules Enabling Act of 1934," 130 U. Pa. L. Rev. 1015, 1050-54 (1982). It may not be a sufficient answer that the limits on the delegation in that statute serve much the same purpose as congressional specification, with the result that only "procedural" statutory provisions are superseded. All legal rules represent adjustments of competing policies. Under the current interpretation of the Enabling Act, it is possible for the Court to promulgate a valid Federal Rule that reflects a choice of "procedural" over 'substantive" policies. That Rule supersedes a pre-existing statute with which it is inconsistent even though Congress made precisely the opposite policy choice. This, I take it, is the general problem that led Representative Kastenmeier to state, in connection with proposals to amend Rule 68, "Congress confirmed a substantive right by enacting the Civil Rights Attorney Fee Award Act." 130 Cong. Rec. 4105 n.3 (daily ed. Oct. 1, 1984). Unfortunately, the Court's decisions do not suggest agreement with his view of the Enabling Act's limitations. In light of the Department's failure to address most of the practical considerations relevant to a policy decision about supersession and its failure to dispel constitutional doubts, I would urge that H.R. 2633 not be changed in this aspect. Sincerely, б Stephen B. Burbank SBB/vt The subject of this study is court control of court practice and related matters through court-promulgated rules. Rule making' powers are being exercised increasingly by national, state and local courts. Court rules have much the same form and effect as legislative enactments: they control all litigation falling within their ambit; they are subject to interpretation; and they may be declared invalid if found to be unconstitutional, or in conflict with legislation. In most instances the legislature has power to amend or reject rules adopted by a court.2 In other instances rules adopted by a court or judicial body form an amalgam with statutory provisions adopted by the legislature.3 • This Article is based on a series of lectures delivered at the Law School of Ohio State University in the Spring of 1976. The ground covered in the Article will be developed in more detail in a book by the author to be published by the Ohio University Press in 1977. The author is grateful for the assistance of William Bonvillian of the Connecticut and Washington, D.C., bars. Denise Cote and Keith Secular, both of the New York bar, have assisted in gathering material and have made editorial suggestions. Adjunct Professor, Columbia University School of Law. United States District Judge, Eastern District of New York. B.A., Brooklyn College, 1943; LL.B., Columbia University, 1948. 1. "Rulemaking" is sometimes used to refer to significant reformulation of decisional law. See G. HAZARD, REPRESENTATION IN RULE MAKING IN LAW AND THE AMERICAN FUTURE 85 (M.L. Schwartz ed. 1976). As Professor Hazard uses the term, rulemaking includes -the procedures used by courts and agencies performing adjudicative functions in Id. at 87. The term is not used in that sense in this Article. The problem of administrative rulemaking as opposed to adjudication is not discussed in this Article. For a discussion of this problem see the panel discussion at the Federal Bar Convention described in 45 U.S.L.W. 2159, 2163 (9/28/76): 2. The Federal Rules of Civil and of Criminal Procedure and the Federal Rules of Evidence are typical of this subjugation of court rulemaking to legislative control. New Jersey's highest coun was almost unique in claiming that its power to adopt rules is not subject to legislative control; but that court has been forced to compromise this position. See notes 117-21 and 127-38 and accompanying text infra. 3. The New York Civil Practice Law and Rules, for example, includes provisions adopted and modified by the legislature as well as those adopted by the New York State Judicial Conference subject to legislative veto or change. See N.Y. CIV. PRAC. LAW & R. § 102 (M. Bender Civ. Prac. Ann. 1975); N.Y. JUD. Law § 229(3) (McKinney 1968). Reproduced with the permission of the Directors of the Columbia Law Review Association, Inc. from Columbia Law Review, v. 76, Oct. 1976: 905-964. 906 COLUMBIA LAW REVIEW [Vol. 76:905 Each individual federal court is also generally empowered to adopt rules affecting its own practice. At the local level, court rules have been adopted by each of the federal district courts and by each one of the circuit courts of appeals; state courts have adopted similar local rules." Particularly at the federal level, the process of court rulemaking has worked fairly well: rules of evidence and rules for civil, criminal, bankruptcy and admiralty cases at both trial and appellate levels have been adopted and are generally acknowledged to be sound. The process, however, presents not only advantages but serious dangers. Some disturbing issues have arisen and substantial changes should now be considered. While this Article places primary emphasis on the national court system, considerable attention is given to the experience of the states because in rulemaking, as elsewhere, state courts provide effective laboratories for testing new approaches." The central thesis of this Article is that no pure theoretical source of rulemaking power exists. The taproot of rulemaking power in this country is legislative delegation, though there is also nourishment from the inherent role of a constitutionally independent judiciary. Consequently, when courts exercise rulemaking powers they should do so in general consonance with theories of delegation. After a brief introduction, the Article examines the evolution of judicial independence from the twin theories of separation of powers and judicial review; it then explores the argument that the power of courts to make their own procedural rules is an integral aspect of judicial independence. From both an historical and practical perspective, it is concluded, however, that a delegation theory best achieves the practical balance between the legislative and judicial branches necessary for effective utilization of the rulemaking power. States where this balance has been tipped toward judicial control of rulemaking have ensnarled themselves in unnecessary difficulties and unseemly conflicts bwtween courts and legislatures. 4. FEDERAL LOCAL COURT RULES (H. Fischer & J. Willis eds. 1972) is a collection in loose leaf form of civil and general local rules. There is no national collection of criminal rules. 5. 28 U.S.C.A., UNITED STATES COURTS OF APPEALS RULES (1969). 6. See, e.g., rules for various New York courts collected in 1975-76 Civ. PRAC. ANN. OF N.Y. (M. Bender 1975). 7. For bibliographies on the subject and summaries of rulemaking in United States jurisdictions, see ABA. COMM. ON STANDARDS OF JUDICIAL ADMINISTRATION, STANDARDS RELATING TO COURT ORGANIZATION 76 (1974); F.J. KLEIN, JUDICIAL ADMINISTRATION AND THE LEGAL PROFESSION 290 et seq. (1963) (an invaluable book which will appear in a new edition in 1976); STUDY OF RULE-Making PowER, THIRD PRELIMINARY REPORT OF [N.Y.] ADVISORY COMMITTEE ON PRACTICE AND PROCEDURE (1959); Ashman, Measuring the Judicial Rule-Making Power, 59 J. AM. JUD. SOC'Y 215 (1975) (summary of the excellent studies of the American Judicature Society); Blau & Clark, Sources of Rules of State Courts, 66 LAW LIB. J. 37 (1973); Annot., 158 A.L.R. 705 (1945); Annot., 110 A.L.R. 22 (1937); American Judicature Society. Uses of the Judicial Rule-Making Power (1974) (mimeograph); American Judicature Society. The Judicial Rule-Making Power in State Court Systems (October, 1967) (mimeograph); J.A. Parness & C.A. Korbakes. A Study of the Procedural Rule-Making Power in the United States 68-76 (August, 1973) (mimeograph); C. Sherr, Bibliography-RuleMaking Power of the Courts (1928-1955) (1955) (unpublished bibliography on file at the Columbia Law School Library). |