fostering the kind of irregular behavior that has been characteristic of the recently criticized actions or omissions by the Department of Justice. VI. CONCLUSION To tear the Department of Justice away from the Executive Branch simply because of a malfunction elsewhere in the system would be a mistake. The Department of Justice is properly a part of the Executive Branch to promote the better functioning of both. Less drastic and more precise remedies directed at the problem of influence such as those reforms enumerated previously should be considered prior to the more serious measures proposed in S. 2803. DEPARTMENT OF JUSTICE, Washington, D.C., April 12, 1974. HON. SAM J. ERVIN, Chairman, Subcommittee on Separation of Powers of the Senate Judiciary Committee, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: I enjoyed the opportunity to present views on S. 2803, the Department of Justice "independence bill," on March 27, 1974. I send this letter to amplify certain points which were raised in the course of my testimony and interchange with the Committee and the staff. (1) The question of whether a wholly independent Department of Justice could receive Presidential delegations. The prepared statement raised the question in passing, referring to the controversy concerning the Subversive Activities Control Board. In testimony in 1971 Assistant Attorney General William H. Rehnquist supported the constitutionality of the Executive Order delegating to the SACB the function of listing organizations for the information of federal employing agencies. However, in dismissing a suit to enjoin enforcement of the order, District Judge Gesell in a dictum questioned the validity of the delegation. American Servicemen's Union v. Mitchell, 54 F.R.D. 14, 16 (D.D.C. 1972) (2) Judge Gesell's comment in Nader v. Bork on the Special Prosecutor issue. A question was raised during the testimony concerning the weight to be attributed to the "dictum" of Judge Gesell, in Nader v. Bork, in which he opposed judicial appointment of a Special Prosecutor. Although Judge Gesell's statement was a dictum, it is significant to note that Judge Sirica subsequently addressed a letter to Senator James O. Eastland on November 15, 1973 in which he stated: "I am in full agreement with Judge Gesell's statement . I might (also) mention that . . . eight of our judges . . remarked that they disapprove of a procedure that would require this court to appoint a special prosecutor." S. Rep. No. 93–956, 93rd Cong., 1st Sess. (1973), Appendix A. (3) The controversy over the discharge and reinstatement of Ernest Fitzgerald. A question was raised about the discharge and reinstatement by the Civil Service Commission of Ernest Fitzgerald. The Department of the Air Force separated Fitzgerald by reduction-in-force (RIF) from the position of Deputy Management Systems, GS-17 in the Office of the Secretary on January 5, 1970. By Civil Service Commission regulation, a RIF separation may be used only for reasons that are nonpersonal to the employee affected. The Commission1 found that Fitzgerald was separated for personal reasons (but not for testifying about the C-5A cost overruns) and thus held that Fitzgerald was improperly separated through a RIF. 2 Fitzgerald's case did not raise the question of whether his tenure could be protected by statute because his questioned discharge violated governmental regulations analogous to the facts in Nader v. Bork. Nor did it raise the question of whether the President could discharge Fitzgerald without restric 1 The Civil Service Commission decision is reported under the heading: Appeal of A. Ernest Fitzgerald Under Part 351, Subpart I of the Civil Service Regulations. The decision handed down by hearing examiner Herman D. Staiman on September 18, 1973 became the final decision of the Civil Service Commission. 2 The Commission ruled that Fitzgerald was not in the competitive service. Under the Lloyd-La Follette Act employees in the competitive service may be removed only for "such cause as will promote the efficiency of the service." 5 U.S.C. 7501. tion, even if the Secretary of the Air Force could not. Thus, the Fitzgerald case does not provide authority for the proposition that the President's power to discharge purely executive officers may be restricted by statute. It is also worthy of observation that, assuming arguendo, Congress could restrict the President's power to remove an executive employee of Fitzgerald's stature, the President could still maintain policy control over his actions through the unrestricted power to remove his superior-the Secretary of the Air Force. No analogous Presidential policy control would exist over employees of an independent Department of Justice. (4) The controversy over the pay raise bills. Within the past few months there have been controversies over two pay raise issues: one arose under the Federal Pay Comparability Act, 5 U.S.C. 5301 et seq. (1970), and the other under the Federal Salary Act of 1967, 2 U.S.C. 351-361 (1970). The President and Congress played contrasting roles in each of these expenditure controversies. Under the former Act the salaries of federal employees compensated pursuant to General Schedule pay rates are automatically adjusted annually to reflect salary increases in comparable jobs in the private sector. A 5.14% increase due under the Act in October 1972 was postponed by the President until January 1973. One underlying consideration in the President's action was control of inflation, a consideration also underlying certain impoundment actions. The President also claimed authority for the postponement under Section 3 of the Economic Stabilization Act Amendments, Public Law 92-210. In resulting litigation, National Treasury Employees Union v. Nixon, No. 72-1929, (D.C. Cir., January 25, 1974), the Court of Appeals held that the President had erred in not implementing the 5.14% pay raise in October 1972 as mandated by the Federal Pay Comparability Act, and that a President could be sued to perform a ministerial act required by a civil statute when no other defendant would have authority to provide the requested relief. The Treasury Union case does not support the conclusion that inherently executive functions may be removed from the executive branch. In fact, the President himself was given the executive authority to raise pay under the Federal pay Comparability Act. The Treasury Union case merely holds that, unlike cases where executive discretion is involved, a President may be sued to perform a ministerial act in a civil suit. It is important to note that Congress did not take any executive functions away from the executive by enactment of the Federal Pay Comparability Act. The other pay raise issue under the Federal Salary Act of 1967 illustrates the other side of the coin, i.e., Congressional denial of an otherwise authorized pay raise proposed under a regularized adjustment procedure. Pursuant to 2 U.S.C. 357, the Commission on Executive, Legislative, and Judicial Salaries submitted recommendations to the President for revised pay scales, which the President recommended to Congress as provided for in section 358. The Senate voted disapproval of the recommendations on March 6, 1974, which, under section 359, operated to nullify the proposed pay increases. I trust that these comments will be viewed as helpful additions to the record of the hearing on S. 2803, and request that they be printed with my testimony and appropriately identified as an amplification thereof. Sincerely, ROBERT G. DIXON, JR., Assistant Attorney General, Office of Legal Counsel. HON. SAM ERVIN, NEW YORK UNIVERSITY SCHOOL OF LAW, Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: Thank you for your letter of March 8, 1974, requesting my views on S. 2803, which would establish the Department of Justice as an independent agency of government. Please excuse the delay in my response. The improprieties of Justice Department personnel with regard to Watergate and other matters; the Department's violation of First Amendment freedoms of persons opposing government policy and the punitive use of the grand jury and conspiracy laws against such persons; the Department's abuse of the concept of national security and the resulting unconstitutional wiretaps, surveillance, and other violations of individual liberties have all created justifiable doubts in the public mind about the ability of the Department to conduct fairly the federal system of law enforcement. Once again you are to be commended for recognizing the importance of these action as serious threats to our Constitution and democratic values, and for proposing remedial legislation. Nevertheless, I do not believe that a restructuring of the Department, as proposed in S. 2803, would be wise, at least without first trying less drastic alternatives. One concern I have with S. 2803 is created by Article II, Section 3 of the Constitution which requires that the President "take care that the Laws be faithfully executed." S. 2803 would end a President's ability to control the principal federal law enforcement establishment except by power of nomination (which would not be available to every President) and by his power to remove officers for neglect of duty or malfeasance in office. This does not sit comfortably with the constitutional command. A second concern relates to the political accountability of the President. Under the terms of S. 2803 the law enforcement priorities of an incoming administration may well be hamstrung by a hold-over Attorney General with a different set of priorities. I think a President should be politically accountable to the Congress and the people, but this is possible only if he controls the executive establishment. In my opinion, alternatives to S. 2803 exist which could curb the recently exposed abuses without a basic restructuring. The possible alternatives include: 1. The creation of a permanent independent special prosecutor's office, the jurisdiction of which would be limited to crimes of a political nature, for example, election law violations, lobbying offenses, and violations of federal law by present and former government officials. In this regard I would support S. 2978, a Bill to create a commission to study the advisability of establishing such an office. 2. The establishment of a permanently staffed Congressional panel to oversee the Department and the FBI. This might be set up along the lines of the joint Senate/House CIA watchdog committee. 3. An independent commission of citizens representing different segments of the society to protect the rights of individuals from government abuse. The commission might be given the power to order officials found to have violated an individual's rights to pay compensatory damages; to order or recommend disciplinary action against such an official; or merely to investigate and report on allegations of such a denial of rights. 4. Legislation to restrict the collection and dissemination of information on individuals, including a requirement that an individual has the right to know what has been collected or disseminated about him. 5. Legislation to require the disclosure by administrative decision-makers of all outsiders, including elected and appointed officials and lobbists, who contact them about pending cases. 6. Legislation to bar the appointment to high positions in the Department of those who actively participated in political campaigns. 7. Legislation to prevent the use of the grand jury as a weapon of political harassment. I do not think that any of these alternatives would be panaceas, and indeed I would not endorse some of them without further study. But I do believe they represent a better approach to the significant problem you have identified than a structural change in the relationship between the President and the Department of Justice. I hope these views are of assistance to you and the other members of the Subcommittee. Sincerely, 33-875-74 -21 NORMAN DORSEN, ADMINISTERING JUSTICE THROUGH JUDICIARY DISCRETION. (By Gonzalo Fernos) "Where law ends, tyranny begins." William Pitt, (1708-1778). Justinian I, the Byzantine emperor of Rome, in his Digest and throughout his longlasting legislative work—the codification of Roman Law-better known as Corpus Juris Civilis, defined the still valid concept of Justice as the constant and perennial will to give each one his rights. Our modern constitutions, laws and rules are inspired by and aimed at the achievement of that principle set forth fourteen centuries ago. Justice, however, frequently falls short of fulfilling its goal. That is so because, among other things, the more the law leaves to the discretion of the judge, the greater the risk of being defeated the purpose of the law. Of course, one should not get the wrong idea as is often viewed by our legislators that to correct the ineffectiveness of a law, another law is always needed and so on, ad infinitum. Our modern Justinians have often acted as if all social ills could be cured through legislation. Although no one in his senses would deny the need for good laws, the proliferation of them, trivial as they often are, has not proven to be the panacea once thought to be to correct social ills and injustices, mainly speaking: in the administering of courtroom justice. As a result, bookshelves of practicing lawyers stow endless volumes, perhaps a significant percentage containing meaningless laws, dead like frozen corpses pigeonholed in a morgue awaiting the caretaker who never seems to come. As if these judicial maladies were not enough, more misery is added through the disruption of the check and balance system in the separation of powers. There seems to be a flagrant intrusion of each power into its counterpart's domain. The executive into the judicial through political appointees. The Supreme Court through its self-styled untouchable position. And the Legislature by surrending its power to the whims of one and/or both. The separation of powers could be the subject of another paper. Let us concentrate on the particular case of the unfettered enactment of the Supreme Court's self-serving rules granting to itself the power of full discretion to dispose of its work load as the Court sees fit to its prerogative, which often sets aside the law. The enactment of such a preposterouse rule was made possible through the Legislature's surrender of its constitutionally spelled-out power to overseethe promulgation of the Rules of Civil Procedure by the Supreme Court. Although those rules are almost copycat selections of the Federal Rules of Civil Procedure, when it comes to judiciary discretion, its spirit, its letter and its application are unique in the entire national jurisdiction. The Federal Rules follow a sound tradition in the interpretation of judiciary discretion, which is consistent with an almost universal interpretation found at least in English laws, in law dictionaries, treatises and in the U.S. Supreme Court decisions. Those laws, books and decisions tell us that judicial discretion is bound by the law and that by no means should it be used as a substitute for the law. Court discretion is intended restrictively to cope with the complexities of modern justice in circumstances where rules alone are inapplicable to specific cases, or when the law is silent about the matter which has to be judicially resolved. Note 13 in Rule 6 of the Federal Rules of Civil Procedure gives examples of when judicial discretion is inevitable. None of those examples follow the unlimited interpretation of our local Supreme Court. Nor do they refer to the substantial rights bestowed upon the citizen either by the Constitution or by applicable laws. They refer to such cases as permission to plead after allotted time has lapsed, when failure to make a timely demand for jury trial, and generally to avert a miscarriage of justice through rigid fulfillment of pro forma rules. In just plain words: judicial discretion can only be used to prevent the aims of Justice from being defeated by technicalities. When the discretionary power of courts is used as a substitute for the laws, it could result either in equity or tyranny, mostly the latter. The well-known and respected American administrative law expert, Kenneth C. Davis, states boldly in his book Discretionary Justice: "Perhaps nine-tenths of injustice in our legal system flows from discretion and perhaps only one-tenth from rules." History has proven that anarchy-the antithesis of law and order-becomes rampant when the law is consistently broken through the exercise of arbitrary discretion by the powers who supposedly must respect and enforce the law. If such experiences have not become commonplace, it is because of the latent presence of police power of governments to subdue discontent. On the one hand, it has been too obvious to ignore that as a result of injustices, distrust, incredibility and skepticism toward our institutions are finding expressions in terms of crime, drug addiction, riots, strikes and passive resistance to the so-called law and order. Even among lawyers one senses disillusionment and skepticism. On the other hand, one finds politicians forever repeating illusory slogans claiming their election to power will bring about a new order that will institutionalize true justice for all. Public opinion, swayed by this dream, awakes only to realize that such a promise cannot be fulfilled until there is a collective willingness for true justice, and a concensus for corrective action. The late Quentin Reynolds in his book Courtroom captured such ills in judiciary systems in these words: "New York City was a free and easygoing community during the 1920's. It was the era of wonderful nonsense, and the cynical political leaders of New York were putting judicial robes about the shoulders of men whose chief qualities for the judgeship were acquiescence and party regularity." Puerto Rico's judicial system is not an exception. During the decade of 1950-1960, the Bar Association tried in vain to get the Governor committed to name judges from lists of candidates selected by the Bar on their merits. There is no way to tell if the Bar nominations could have been politically influenced, but one thing certainly known is that the Governor's appointments to the judicature on his sole discretion, subject only to confirmation by an inoperative senatorial appointment commission, have fallen short of serving adequately the cause of justice. The lack of a substantial separation of powers in the Government of the Commonwealth of Puerto Rico has aggravated the crisis in our judicature. This assertion compels one to go back to discuss the adoption of the Rules of Civil Procedure whereby judiciary discretion was generously self-granted to the Supreme Court of Puerto Rico. The ex-U.S. Supreme Court Chief Justice Earl Warren once said that "The rules of court are the most important tools of the courtroom lawyer." The importance of clear-cut rules is even recognized by the ordinary layman such as sports players and their fans. They also know that in spite of the rules, the referee, in the use of his discretion, sometimes incurs in injustices and consequently provokes the ire of the discriminated party. Players who become outraged under those circumstances will most likely be suspended for such a spontaneous and abrupt claim for justice. Lawyers, however, act more rationally, burying their frustrations elsewhere. Perhaps lawyers should, like players, be less inhibited so as to contribute to the elimination of the ills which are presently suffered by the administering of justice in Puerto Rico. Furthermore, since most legislators on judiciary commissions are trial lawyers, they may not wish to jeopardize their practice by exercising their constitutional power to oversee the validity of adopted Supreme Court rules of evidence and of civil and criminal procedure, which must be ratified by the Legislature persuant to Article V, Section 6 of our local Constitution. Perhaps these legislators are more concerned with their role as trial lawyers than with fulfilling their constitutional mandate, fearing retaliation if they step on the toes of the Supreme Court in wiping out arbitrariness in its Rules. Whatever the reason for legislative inaction in this respect, the stunning reality is that through such lack of enforcing legislative power, the Supreme Court has attained among other modus-operandi conveniences, the self-serving rule known as Rule 15.1. Without establishing in any rule the limiting circumstances and/or criteria in which discretion is applicable, under Clause (a) said Court reserves the right to issue writs of review on final judgments of the Superior Court in civil cases and writs of certification upon order of the Court, trials de novo. reviews by certiorari. etc., to be issued solely on the basis of its own discretion. Under Clause (g), unless a substantial constitutional controversy is involved, the Supreme Court, at its discretion, may dispose of an appeal as if it were a revision. The granting of revisions and certiorari at the sole discretion of the Supreme Court means that even when the controversy entails a substantial constitutional violation, the Court, without any explanation whatsoever, may refuse to review the lower court judgment or decree, expressing the decision in three infamous words: "NO HA LUGAR," and it has done so. This way the Supreme Court of Puerto Rico has managed to brush aside 52% of the cases resolved during the fiscal year 1972-73 (535 |