• Abstract and Figures
• Public Full-text

Agenda F8 Rules October 1971 COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES SUPREME COURT BUILDING WASHINGTON 25, D. C. Summary of Report The annexed report recommends: 1. Disnpproval of S.2432, 92d Cong. 2. Approval of change in limiting appropriation proviso. 3. Reactivation of Advisory Committee on Appellate Rules. 4. Approval of addition to Criminal Rule 50(Appendix A). 5. Approval of revised draft of rules of evidence(Appendix B). The report transmits 6. Recommendation of Advisory Committee on Civil Rules that reduction in size of civil juries and peremptory challenges be accomplished by statute. Agenda F8 Rules COMMITTEE ON RULES OF PRACTICE AND PROCEDURE October 1971 OF THE JUDICIAL CONFERENCE OF THE UNITED STATES SUPREME COURT BUILDING WASHINGTON, D. C. 20544 ALrGZRT U. MARIS CHAIRMEN OF ADVISORY COMMITTEES CHAI RMAM ELmERr P. TUTTLE CIVIL RULiS WILLIAM E. FOLEY J. EDWARD LUMUARO SECRIETARY CRIMINAL RULER REPORT PHILLIP FORMAN TAN4KRUPTCY RULES ',ERMV'Tr W. CHRISTENDERRY ..' MIRALTY RULES ALBERT E. JENNER. JR. RULES OF EVIDENCE TO THE JUDICIAL CONFERENCE OF THE UNITED STATES: The standing Committee on Rules of Practice and Procedure met in lWshington on September 30 and October 1, 1971. All the members of the committee were present except Mr. Ford who was ill. S.2432, 92d Cong., to modify the rule-making power of the Supreme Court The Committee on the Judiciary of the United States Sengte has requested the views of the Conference on S.2432, 92d Cong., introduced by Senator McClellan and six other Senators. The bill would modify sections 3771 and 3772 of title 18 and sec- tions 2072 and 2075 of title 28, U.S.C., which confer upon the Supreme Court power to promulgate rules of civil, criminal, appel- lqte and bankruptcy practice and procedure. The principal modifi-_ rptions proposed are three. One is to provide that such rules when promulgated by the Court and reported to the Congress at or after the beginning of a regular session but not later than the first of May, shall not take effect until the close of the session or such later date as the Court may fix. The present law authorizes the Court to make such rilles effective -t the expiration of ninety days Bfter they are reported to Congress. Another major change proposed is to authorize either House of Congress to disapprove, in whole or in part, a rule promulgated by the Court and reported to the Congress, provided only that the rejection takes place during the session at which the rule is so reported. The present law cont-ins no such auth.- ority and as the law now stands Congress in order to reject or postpone the effective date of such a rule must do so by rAct or Joint Resolution passed by both Houses. By the some process Congress not has full powerto repeal or amend such a rule in vhole or in part after the expiration of the three months reriod and even after it has actually gone into effect. The third major change is to introduce into section .-772 of title 18 for the first time the requirement that rules dr-fted by the Supreme Court under the authority of that section must be reported to the Congress and may not take effr'ect until a specified time after such reportinq. This is the sect-on vhich authorizes the Court to prescribe rules of practice -nd procedure in criminal cases after verdict or finding of guilt, for the dis- trict cour-s, the courts of appeals and the Supreme Court. The bill, if enacted would seriously restrict the rule- making power of the Supreme Court. The prohibition -gainst making a rule effective prior to the adjournment of the Con-ress- ional session 't which it is reported, together "iith the reten- ti-in of the requirement that the rule must be reported to Cong- ress on or before MPy Ist, would render it -irtually impossible for the Court to deal with an emergency situ-t'on rerquirin -2- prompt adoption or amendment of rule. For while Congress in theory has set August Ist as its adjournment date, it is the fact that it is seldom able to adjourn until very near the comnencement of its new session in January. Moreover, if the rules adopted are of n novel or controversial character the Co':rt often has delayed the effective date for substantially more th'n ninety dpys, so as to give Congress more time to consider them before they become effective, and doubtless will continue this practice. Finally, it should be remembered th-t Con-ress may now at mny time, after as well 3s before the effective dnte, reperl or modify in whole or in part any rule promulgated by the Court which it disapproves. The provision authorizing a single House of Congress to reject a rule, in whole or in port, without the c)ncurrence of the other House, would make it possible for one House to reject a rule of which the other House approves, thus placing the Court in the difficult position of not being able to meet 'ihat might be an important or, indeed, urgentproblem except by a rule which would likely be rejected by one House or the other. iWe believe th-t in a m-tter as vital to the prpner operat;on of the courts as procedural rulemakinq, the Supreme Court, vehich has been properly given primary responsibility, is entitled to h--e any action by Congress in this field take the form of hindin-, law and not mere negative reaction from a single House. Judicial rulemaking is quite differert in character from a proposal to reorganize an execrative department, since the latter invol;es, essentially, statutory amendments. -3- It is true that in Sibbach v. Wilson & Co, 1941, 312 U.S.1, the Supreme Court stated (pp.9-10) that "Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or Constitution of the United States,. ." This, however, was by way of obiter dictum and it would appear to be somewhat inconsistent with the view widely held from early times by both state and federal courts that the courts possess inherent authority, as part of the judicial power conferred upon them by their constitutions, whether state or federal, to establish rules of judicial pract- ice and procedure. See 20 Am.Jur.2d,Courts §82, and the cases collected in the annotations published in 110 ,^LR 22 and 158 ALR 705. However this may be, it seems clear that judicial rule- making is not wholly analogous to the ordinary processes of leg- islation and that its exercise by the Court should not be con- trolled by the independent action of a single House of Congress. The proposal to subject rules of criminal procedure after verdict and on appeal to the reporting procedure is of les- ser significance. However, since the passage of the Act of Feb- ruary 24, 1933, 47 Stat.904, by which Congress conferred that authority upon the Supreme Court, the power has continuously been recognized as absolute and no requirement has ever been imposed to report such rules to Congress and to defer their effective date until a specified period of time after such reporting. Our commit- tee perceives no reason for imposing these requirements at this time. -4- It is recommended that S.2432, 92d Cnng., be disapproved. Appropriation Proviso Ever since the inception of the rules study program of the Judicial Conference the annual appropriation acts for the judiciary which provide the funds for the study in the appropri- ation item to the Administrative Office have contained the fol- lowing proviso to that particular item: "Provided, That not to exceed $90,000 of the appropriations contained in this title shall be available for the study of rules of practice and procedure." Since the "title" referred to in this proviso can only be "Title IV-The Judiciary" of the appropriation act, which title includes the Administrative Office item, the effect of the proviso is to limit to $90,000 the total amount expended on the rules pro- gram, not only for the expenses paid out of the Administrative Office appropriation but also for the travel expenses of judges and referees in bankruptcy to committee meetings which are paid out of appropriations contained in other items of the title. Although the $90,000 limitation has remained constant the cost of carrying on the program has increased over the years and in recent years it has only been by the most rigid economy and some curtailment of the programs in the latter part of each fiscal year that we have been able to carry on. It has never been possible to make any general increases in the all too modest compensation paid to the reporters to the advisory committees whose distinguished work has been to so great a degree responsible for the excellence of the rules which have been formulated and adopted. -5- During the fiscal year ended June 30, 1970 the amount spent for the travel of judges and referees in connection -with the program was $10,242. If the appropriation proviso were to be modified so as to apply only to the Administrative Office appropriation item, and accordingly did not include judges' and referees' travel, the additional sum of $10,000 would be made available for the work of the program, an increase very badly needed as we look forward to greater activity by the Advisory Committees on Civil and Criminal Rules.

Load more

  193

Copy Link