MANDATORY APPEIIATE JURISDICTION OF THE SUPREME COURT—ABOLITION OF CIVIL PRIORITIES—JURORS RIGHTS HEARING BEFORE THE SUBCOMMITTEE ON COUETS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES NINETY-SEVENTH CONGRESS FIRST SESSION ON H.R. 2406, H.R. 4395, and H.R. 4396 MANDATORY APPELLATE JURISDICTION OF THE SUPREME COURT- ABOLITION OF CIVIL PRIORITIES—JURORS RIGHTS JUNE 22, 1982 Serial No. 65 Printed for the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 11-405 0 WASHINGTON : 1983 FILES Bill 77 HO, GX-7% COMMITTEE ON THE JUDICIARY PETER W. RODINO, JR., New Jersey, Chairman JACK BROOKS, Texas ROBERT McCLORY, Illinois ROBERT W. KASTENMEIER, Wisco TOM RAILSBACK, Illinois DON EDWARDS, California HAMILTON FISH, JR., New York JOHN CONYERS, JR., Michigan M. CALDWELL BUTLER, Virginia JOHN F. SEIBERLING, Ohio CARLOS J. MOORHEAD, California ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois WILLIAM J. HUGHES, New Jersey THOMAS N. KINDNESS, Ohio SAM B. HALL, JR., Texas HAROLD S. SAWYER, Michigan MIKE SYNAR, Oklahoma DAN LUNGREN, California PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, JR., BILLY LEE EVANS, Georgia Wisconsin DAN GLICKMAN, Kansas BILL McCOLLUM, Florida HAROLD WASHINGTON, Illinois E. CLAY SHAW, JR., Florida BARNEY FRANK, Massachusetts GEO. W. CROCKETT, JR., Michigan ALAN A. PARKER, General Counsel GARNER J. CLINE, Staff Director FRANKLIN G. POLK, Associate Counsel SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF ROBERT W. KASTENMEIER, Wisconsin, Chairman JACK BROOKS, Texas TOM RAILSBACK, Illinois PATRICIA SCHROEDER, Colorado HAROLD S. SAWYER, Michigan BARNEY FRANK, Massachusetts M. CALDWELL BUTLER, Virginia BRUCE A. LEHMAN, Chief Counsel TIMOTHY A. BOCGS, Professional Staff Member GAIL HIGGINS FOGARTY, Counsel DAVID W. BEIER, Assistant Counsel THOMAS E. MOONEY, Associate Counsel JOSEPH V. WOLFE, Associate Counsel (ID CONTENTS TEXT OF BILLS Page H.R. 2406 2 H.R. 4395 6 H.R. 4396 10 WITNESSES Finn, Timothy J., Deputy Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice 110 Prepared statement 113 Hunter, Hon. Elmo B., U.S. District Judge for the Western District of Missou­ ri 27 Prepared statement 32 Oberman, Michael S., Association of the Bar of the City of New York 66 Remington, Michael, deputy legislative affairs officer, Administrative Office of the U.S. Courts 27 Weller, William, legislative affairs officer, Administrative Office of the U.S. Courts 27 Zelenko, Benjamin L., American Bar Association 66 Prepared statement 68 ADDITIONAL MATERIAL Beck, Leland E., Legislative Attorney, Congressional Research Service, Li­ brary of Congress, letter to Hon. Robert W. Kastenmeier: Dated June 17, 1982 152 Dated June 18, 1982 191 Dated July 19, 1982 258 Burchill, William R., Jr., Deputy General Counsel, Administrative Office of the U.S. Courts, letter dated July 9, 1982, to David Beier 137 Casaus, Jesse, chairman, Clerks Committee on Jury Operations, letter dated July 16, 1982, to Hon. Robert W. Kastenmeier 261 Dole, Hon. Robert, a U.S. Senator from the State of Kansas, letter dated December 18, 1981, to Hon. Robert W. Kastenmeier 265 Foley, William E., Director, Administrative Office of the U.S. Courts, letter dated May 20, 1981, to Hon. Thomas P. O'Neill 131 Friendly, Henry J., presiding judge, Special Court Regional Rail Reorganiza­ tion Act of 1973, letter dated July 12, 1982, to Hon. Robert W. Kasten­ meier 271 Lord, Miles W., Chief Judge, U.S. District Court for the District of Minnesota, letter dated June 24, 1982, to Hon. Peter W. Rodino, Jr 269 "Mandatory Appellate Jurisdiction of the Supreme Court of the United States" (report), Congressional Research Service 192 McCalpin, F. William, secretary, American Bar Association, letter dated August 31, 1982, to Hon. Robert W. Kastenmeier 150 McConnell, Robert A., Assistant Attorney General, Office of Legislative Af­ fairs, Department of Justice, letter dated December 4, 1981, to Hon. Peter W. Rodino, Jr 266 "Priorities in Deciding Cases Before U.S. Courts" (report), Congressional Re­ search Service 153 "Requiem for the Supreme Court's Obligatory Jurisdiction" (article), Ameri­ can Bar Association Journal, September 1979 274 (iii) IV Sledd, Herbert D., secretary, American Bar Association, letter dated March Pase 28, 1979, to Hon. Peter W. Rodino, Jr 149 "The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and the Logistics of Direct Review (report), Washington and Lee Law Review, 1977 360 "The Mandatory Jurisdiction of the Supreme Court—Some Recent Develop­ ments" (report), University of Cincinnati Law Review (1977) 289 "Turning Over the Reins: The Abolition of the Mandatory Appellate Jurisdic­ tion of the Supreme Court" (report), Hastings Constitutional Law Quarter­ ly 314 Weller, William James, Legislative Affairs Officer, Administrative Office of the U.S. Courts, letter dated July 20, 1982, to David Beier 147 Burger, Hon. Warren E., Chief Justice of the Supreme Court of the United States, letter dated June 17, 1982, to Hon. Robert W. Kastenmeier 22 "The Impact of Civil Expediting Provisions on the United States Court of Appeals," the Association of the Bar of the City of New York 81 MANDATORY APPELLATE JURISDICTION OP THE SUPREME COURT—ABOLITION OF CIVIL PRIORITIES—JURORS RIGHTS TUESDAY, JUNE 22, 1982 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE, OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to call, at 10:07 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Schroeder, Railsback, and Sawyer. Staff present: David Beier, Thomas E. Mooney, associate counsel; and Audrey Marcus, clerk. Mr. KASTENMEIER. The committee will come to order. This morning the Subcommittee on Courts, Civil Liberties, and the Administration of Justice is holding a hearing on three bills that are of substantial interest to the Federal judiciary and mem­ bers of the bar. Fortunately, these three bills are not fraught with the type of controversy that surrounds some of the other court- related legislation that is currently before the subcommittee. It is my hope that if after hearing from our distinguished wit­ nesses there is a consensus for supporting these bills, we can pro­ ceed to mark up in the very near future. Before we begin the hearing this morning, let me take this moment to review the issues presented by these bills. The most sig­ nificant bill before us today is H.R. 2406. This bill would alter the mandatory appellate jurisdiction of the Supreme Court. In many senses, this bill represents a logical culmination of reforms begun by the subcommittee in a previous Congress when we virtually eliminated the use of three-judge courts and thereby many direct mandatory appeals to the Supreme Court. [Copies of H.R. 2406, H.R. 4395, and H.R. 4396 follow:] (l) 97TH CONGRESS 1ST SESSION H. R. 2406 To improve the administration of justice by providing greater discretion to the Supreme Court in selecting the cases it will review and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 10, 1981 Mr. KASTENMEIEB introduced the following bill; which was referred to the Committee on the Judiciary A BILL To improve the administration of justice by providing greater discretion to the Supreme Court in selecting the cases it will review and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. Section 1252 of title 28, United States 4 Code, is repealed. 5 SEC. 2. Section 1254 of title 28, United States Code, is 6 amended by deleting subsection (2), by redesignating subsec- 7 tion (3) as subsection (2) and by deleting "appeal;" from the 8 title. 3 1 SEC. 3. Section 1257 of title 28, United States Code, is 2 amended to read as follows: 3 "§ 1257. State courts; certiorari 4 "Final judgments or decrees rendered by the highest 5 court of a State in which a decision could be had, may be 6 reviewed by the Supreme Court by writ of certiorari where 7 the validity of a treaty or statute of the United States is 8 drawn in question or where the validity of a statute of any 9 State is drawn in question on the ground of its being repug- 10 nant to the Constitution, treaties or laws of the United 11 States, or where any title, right, privilege, or immunity is 12 specially set up or claimed under the Constitution, treaties or 13 statutes of, or commission held or authority exercised under, 14 the United States. 15 "For the purposes of this section, the term 'highest 16 court of a State' includes the District of Columbia Court of 17 Appeals.". 18 SEC. 4. Section 1258 of title 28, United States Code, is 19 amended to read as follows: 20 "§ 1258. Supreme Court of Puerto Rico; certiorari 21 "Final judgments or decrees rendered by the Supreme 22 Court of the Commonwealth of Puerto Rico may be reviewed 23 by the Supreme Court by writ of certiorari where the validity 24 of a treaty or statute of the United States is drawn in ques- 25 tion or where the validity of a statute of the Commonwealth 4 1 of Puerto Rico is drawn in question on the ground of its being 2 repugnant to the Constitution, treaties, or laws of the United 3 States, or where any title, right, privilege, or immunity is 4 specially set up or claimed under the Constitution, treaties, 5 or statutes of, or commission held, or authority exercised n 6 under, the United States.". 7 SEC. 5. The analysis at the beginning of chapter 81 of 8 title 28, United States Code, is amended to read as follows: 9 "CHAPTER 81—SUPREME COURT "Sec.