Summary:

All articles in House section

JUDICIAL REFORM ACT OF 1998
(House of Representatives - April 23, 1998)

Text of this article available as: TXT PDF [Pages H2242-H2286] JUDICIAL REFORM ACT OF 1998 Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 408 and ask for its immediate consideration. The Clerk read the resolution, as follows: H. Res. 408 Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act of 1974 are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule. It shall be in order to consider as an original bill for the purpose of amendment under the five-minute rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill, modified by striking section 9 (and redesignating succeeding sections accordingly). Each section of that amendment in the nature of a substitute shall be considered as read. Points of order against that amendment in the nature of a substitute for failure to comply with clause 7 of rule XVI or section 303(a) of the Congressional Budget Act of 1974 are waived. During consideration of the bill for amendment, the Chairman of the Committee of the Whole may accord priority in recognition on the basis of whether the Member offering an amendment has caused it to be printed in the portion of the Congressional Record designated for that purpose in clause 6 of rule XXIII. Amendments so printed shall be considered as read. The chairman of the Committee of the Whole may: (1) postpone until a time during further consideration in the Committee of the Whole a request for a recorded vote on any amendment; and (2) reduce to five minutes the minimum time for electronic voting on any postponed question that follows another electronic vote without intervening business, provided that the minimum time for electronic voting on the first in any series of questions shall be 15 minutes. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. Any Member may demand a separate vote in the House on any amendment adopted in the Committee of the Whole to the bill or to the amendment in the nature of a substitute made in order as original text. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. The SPEAKER pro tempore (Mr. Ewing). The gentleman from Florida (Mr. Goss) is recognized for 1 hour. Mr. GOSS. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to my friend, the distinguished gentleman from Ohio (Mr. Hall), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for purpose of debate on this subject only. Mr. Speaker, House Resolution 408 is an open rule providing for the consideration of H.R. 1252, the Judicial Reform Act of 1998. The rule provides the customary 1 hour of general debate, equally divided between the chairman and ranking minority member of the Committee on the Judiciary. The rule waives points of order against the consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act, which prohibits consideration of legislation providing new budget authority, changes in revenues, or changes in the public debt for a fiscal year until the budget resolution for that year has been agreed to. The purpose of that section of the Budget Act is a sound one that we generally try to adhere to, keeping the budget process moving forward in a commonsense direction, with the budget resolution coming first and then allowing for subsequent consideration of the legislation that implements the provisions of the budget resolution. In this case, however, we are technically required to provide this waiver, but our Committee on Rules has also provided a fix for the Budget Act problem. We have done that by making in order under this rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary, modified by striking section 9 of that amendment which caused the 303(a) problem and redesignating succeeding sections accordingly. Section 9 of the amendment specifically deals with the process by which cost of living adjustments for Federal judges are implemented. The effect of that section would have been to create a new mandatory spending category in the budget, something that we tried not to do outside the normal congressional budget process. Apart from the substance of that issue relating to pay for judges, the Committee on Rules has attempted in this rule to preserve the integrity of the budget process. Mr. Speaker, the rule further provides that each section of the amendment in the nature of a substitute shall be considered as read, and it waives points of order against that amendment for failure to comply with clause 7 of rule XVI prohibiting nongermane amendments, or section 303(a) of the Congressional Budget Act, for the reasons I just explained. The rule accords priority in recognition to Members who have caused their amendments to be preprinted in the Congressional Record, assuming those amendments are in accordance with the standing rules of the House. It further provides that the chairman of the Committee of the Whole may postpone votes during consideration of the bill and reduce the voting time to 5 minutes on a postponed question if the vote follows a 15-minute vote; and, finally, as is the custom, the rule provides for one motion to recommit, with or without instructions. That explains the rule. Now, Mr. Speaker, with the exception of the technical Budget Act fix, this is a very straightforward rule. It is fair, and it is wide open. It allows all Members the chance to offer germane amendments and conduct thoughtful discussion about a very important subject. I strongly support the premise behind this bill, that it is time to control judicial activism, the so-called runaway judges on the Federal bench. This statement alone is usually enough to generate controversy in many circles, and this debate is by no means a simple one, as it involves many of the most basic tenets of our democratic system and the separation of powers. {time} 1030 I think we could all come up with anecdotal evidence that there have been problems within the Federal judiciary with judges exceeding their charter and authority. The Committee on the Judiciary has, in my view, put forth a responsible product that deals with these problems by focusing on specific practices within the Federal courts that together constitute a real threat to the rights of citizens and the prerogatives of this Congress. In my view, this legislation constitutes a measured and carefully justified response to legitimate problems. It is not simply throwing down the gauntlet. It is coming up with responsible solutions, which we will have ample opportunity to debate under an open rule. I applaud the gentleman from Illinois (Mr. Hyde), and the subcommittee [[Page H2243]] chairman, the gentleman from North Carolina (Mr. Coble) for their work on this bill. Still, I know that many Members have concerns about specific provisions of the legislation. Those Members will have their opportunity to air their concerns and propose alterations during the open debate and amendment process established by this rule. I urge support for the rule and the underlying bill. I look forward to a lively and informative debate. Mr. Speaker, I reserve the balance of my time. Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may consume. I want to thank my colleague for yielding me the time. This is an open rule. It will allow for full and fair debate on H.R. 1252, which is the bill that modifies certain procedures of the Federal courts. As my colleague from Florida described, this rule provides for 1 hour of general debate equally divided and controlled by the chairman and the ranking minority member of the Committee on the Judiciary. The rule allows amendments under the 5-minute rule, which is the normal amending process in the House. All Members on both sides of the aisle will have the opportunity to offer amendments. Judicial decisions that force government action by their nature are unpopular. If those actions were popular, then the legislature and the administrations would have already taken them. Some of those unpopular decisions have resulted in the protection of our health, safety and civil rights. In recent years, some judges have assumed broad powers traditionally reserved for the legislative and the executive branches of State and local government. There is merit in some of the criticism of these actions when the result is an antigovernment backlash that weakens support for government. But if this is a real problem, then the answer is really not this bill. I think the bill threatens to undermine the independence of the Federal judiciary and reduce efficiency. The Attorney General will recommend to the President that he veto the bill if it is passed in its current form. Mr. Speaker, even though the bill is flawed, there is nothing wrong with this rule. It is open. It should be supported. I support it. Mr. Speaker, I reserve the balance of my time. Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume. May I inquire of my colleague through the Chair if he has any speakers? We have none, and we would just as soon get on with the debate, and yield the balance of the time, if that fits with the pattern from the other side. Mr. HALL of Ohio. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Ohio. Mr. HALL of Ohio. Mr. Speaker, I had expected two speakers, but they have not shown up. Therefore, I will yield back the balance of my time. Mr. GOSS. Mr. Speaker, I would be very happy to afford the gentleman an extra minute or so if he is aware that those Members are coming. Mr. HALL of Ohio. I am not aware. I was just asked, before we started, they asked to speak on it. They have not arrived. Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill on our side. I think Members will have general debate. There will be an hour of general debate that is not going to be overfilled with requests for time. I think they can be accommodated. Mr. GOSS. Reclaiming my time, if it is my time, I understand, and we have no speakers, and we are going to yield back in about a minute, and call for the question. We are not intending to call for a recorded vote. We believe that it is an open rule, and there is no need to do that. We also agree with the distinguished gentleman from the Commonwealth of Massachusetts that there is ample debate opportunity today because of this very fair open rule that we have crafted. We are certainly looking forward to that debate, and would not want to put any impediment to it. Unfortunately, we are not quite logistically prepared to begin the debate. Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will continue to yield, I thank the gentleman. I thought I would help him because he seems to be in no great hurry. We are not waiting for the Speaker to come back from Florida again, are we, like yesterday? Mr. GOSS. Reclaiming my time, Mr. Speaker, I am delighted that the gentleman brought the Speaker's trip to Florida up. It shows the outreach that we have in this House to go to the important States in our Nation, Florida being the fourth most populace State, and a place where we will all go sooner or later, which we are very proud to represent, those of us who are there now. I believe the Speaker has returned from Florida, and has done brilliant things there. Ms. JACKSON-LEE of Texas. Mr. Speaker, I come before you today to speak to you about an important rule on an important piece of legislation. I am pleased that this rule is an open rule and that both Democrats and Republicans are able to come together on the floor of the House and offer reasonable common sense amendments that improve this bill. However, I am disturbed that the judicial pay raise amendments were not made a part of this rule. The Federal Judges do alot more than just come to work. They interpret the law and preserve justice. Increasing Federal judicial compensation is important because the Federal Judiciary is composed of men and women who give up alot of money to work in the public sector. We all know that they give up alot for this special type of public service and they should be justly compensated for it. I have an amendment that was made in order. This amendment would permit a federal court to enter an order restricting the disclosure of information obtained through discovery or an order restricting access to court records in a civil case only after making a finding of fact that such order would not restrict the disclosure of information which is relevant to the protection of public health and safety. I am glad that this rule includes my amendment but it should have included amendments that improve and increase Federal judicial compensation. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution. The previous question was ordered. The resolution was agreed to. A motion to reconsider was laid on the table. The SPEAKER pro tempore (Mr. Knollenberg). Pursuant to House Resolution 408 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 1252. The Chair designates the gentleman from California (Mr. Riggs) as Chairman of the Committee of the Whole, and requests the gentleman from Illinois (Mr. Ewing) to assume the chair temporarily. {time} 1042 In the Committee of the Whole Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes, with Mr. Ewing (Chairman pro tempore) in the Chair. The Clerk read the title of the bill. The CHAIRMAN pro tempore. Pursuant to the rule, the bill is considered as having been read the first time. Under the rule, the gentleman from North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. Frank), each will control 30 minutes. The Chair recognizes the gentleman from North Carolina (Mr. Coble). Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume. H.R. 1252, the Judicial Reform Act of 1998, is a restrained but purposeful effort to combat specific areas of abuse that exist within the Federal judiciary. The gentleman from Illinois (Mr. Hyde), as he spoke to the Committee on Rules yesterday, said this bill perhaps goes too far for some Members, not far enough for others. But that is not unlike much legislation that we consider in this hall. Before describing what the bill does, however, let me emphasize what it does not do; namely, it will not compromise the independence of the Federal judiciary, which is an indispensable attribute for that branch of the Federal Government, nor is H.R. 1252 an attempt to influence or overturn legal disputes. Above all, we most certainly are not creating a novel, more lenient standard of impeachment to remove particular judges from the Federal [[Page H2244]] bench without cause or to intimidate them with a threat of doing so. That said, the Judiciary Reform Act of 1998 is largely an amalgam of ideas developed by various Members of Congress that will curtail certain abusive practices within our Federal court system. Specifically, the bill consists of six procedural changes in furtherance of this end. In addition, the four other reforms that will improve other matters related to article 3, Federal courts. The six core revisions set forth in the bill concern the following matters: First, a featured component of the bill was initially developed by our colleague and good friend, the late Sonny Bono. It would require three judge panels to hear constitutional challenges of State laws enacted pursuant to voter referenda. Under current law, a single judge possesses the power to invalidate the results of a State-wide referendum. Second, H.R. 1252 would permit interlocutory or interim appeal of class-action certifications championed by the gentleman from Florida (Mr. Canady). This provision would enable litigants to a class-action suit to appeal a decision certifying a national class prior to the conclusion of a trial. Currently, defendants may expend a great deal of financial resources through trial only to find upon appeal that a class was improperly certified at the outset of litigation. Third, the measure infuses greater objectivity in the current process by which citizens may register complaints against Federal judges for misconduct. Present law on the subject is premised on a peer review system by judges from the same circuit. Pursuant to the change set forth in this bill before us, complaints which do not speak to the merits of a decision, or are not otherwise frivolous will be referred to a different circuit. {time} 1045 This means that truly substantive complaints will be more objectively reviewed by judges who have no personal ties to the judge who is the subject of the complaint. The gentleman from Tennessee (Mr. Bryant) and the gentleman from Indiana (Mr. Pease) contributed to this section of the bill. Fourth, H.R. 1252 would inhibit the ability of Federal courts to require States and local municipalities to raise taxes on the affected citizenry to pay for projects that the States and municipalities are unwilling to fund themselves. While a Federal court may possess the technical right under certain conditions to devise such a remedy to redress a constitutional harm, we have carefully crafted some parameters that will constrain the practice of judicial taxation. The gentleman from Illinois (Mr. Manzullo), whose district is home to a city which is subject to a judicial taxation order, contributed to this portion of the bill. Fifth, the gentleman from Florida (Mr. Canady) worked with our former colleague Dan Lungren, who presently serves as Attorney General for California, to create a procedural right for a litigant to request one time only that a different judge be assigned to his or her case. Some judges are so possessed of an injudicious temperament or are otherwise biased as to warrant this revision. Sixth, it is has come to our attention that some Federal judges are unalterably opposed to enforcing the death penalty, even to the point of dragging their feet on expeditious consideration of habeas corpus petitions to forestall execution. Based on comments made by the gentleman from Massachusetts (Mr. Delahunt), this section of the bill would prevent the chief justice of a circuit from reserving all such petitions for one judge on an exclusive basis. Mr. Chairman, there are three other items contained in the Judicial Reform Act that do not otherwise speak to abusive judicial practices but will nonetheless improve the functioning of our Federal courts. They are: One, the permitted practice of televising proceedings in our Federal appellate courts and, for a 3-year period, in our district or trial courts, suggested to at the discretion of the presiding judge; Second, the expedited consolidation of cases pertaining to complex, multi-district disaster litigation; And, third, the allowance of an additional 30 days, or a total of 60 days, for the Office of Personnel Management to appeal adverse personnel decisions consistent with appellate procedure for other Federal agencies. Again, Mr. Chairman, these provisions are straightforward and restrained in their application and will assist in promoting equity for litigants and taxpayers within the Federal court system. I urge all Members to support passage of H.R. 1252. Mr. Chairman, I reserve the balance of my time. Mr. Chairman, I ask unanimous consent that the bill be open for amendment at any point. The CHAIRMAN. That request by the gentleman may be made after general debate has concluded and the Committee begins the 5-minute rule. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Let me say, I appreciate the gentleman making the request. Because even though it cannot be acted on until the 5-minute rule begins, Members who may be interested should know it is our intention to have amendments be in order at any point so they do not have to worry about a section-by-section reading. I do not believe we have a large number of amendments. Mr. Chairman, the Subcommittee on Courts and Intellectual Property, on which I am pleased to serve with the gentleman from North Carolina (Mr. Coble), has a good deal of business which we do in a nonideological way and in a nonpartisan way, and I am very proud of that. The intellectual property jurisdiction we have is an important one, and we have had some judicial reform bills. This bill does not, however, conform to that pattern. This is an exception in that it is one on which I think we have some fairly sharp division, and the reason we have the division I think frankly stems from some frustration on the part of some of those on the other side. There are people particularly in the very conservative wing of the Republican party, which I must say has outgrown wing status. It is now at least a wing and a tail and maybe another wing and a couple of beaks. They do not like some of the things that the courts do. I believe that their problem, however, is not so much with the courts as with the Constitution. And there is not a great deal we can do about the Constitution. We try. We recently have sought on the floor, at least some have sought on the floor, to amend the Constitution with great regularity and with equal lack of success. The Congress has voted down half a dozen or more efforts to change the Constitution. Not being able to change the Constitution, the people in the conservative wing of the Republican party have decided to demonize it instead and to denounce the judges. But there is a great disconnect between the violence of the rhetoric and the actuality of the legislation. I am going to vote against this bill. I am glad that the President plans to veto it if we pass it as-is, although we could make it passable under some aspects of the bill which I think are very useful. But even if it were to pass, it would have virtually no effect on the kinds of things that people complain of. In fact, one of the most interesting facts is that, while people on the conservative side complain about this bill because they say it empowers an inappropriate form of judicial activism, it is very clear if we study this that they simply do not like the results. They simply do not like courts finding that this or that statute might not be permissible under the Constitution. Because if we look at the judges who have been judicial activists, what we find, of course, is that the most conservative justices of the Supreme Court, for example, are also the most judicially active. Justices Scalia and Thomas, the two most conservative justices, strongly supported by the conservatives, have in fact voted to invalidate more statutes, to find more acts of Congress unconstitutional than their more moderate and liberal counterparts. If in fact they think it is a terrible idea for the Supreme Court to strike down statutes, then they would be very critical of Mr. Scalia and Mr. Thomas, the Religious Freedom Restoration Act that they did not like, the Brady Bill, parts of which they did not like. There are a whole series of them. And the conservative justices are in league. [[Page H2245]] One of the most glaring examples of this came recently with regard to a series of decisions in California where judges in California found referenda unconstitutional. Now, in a couple of cases, at least in one case, a district judge found the referendum unconstitutional under affirmative action. That district judge was promptly overruled. No harm was done to the cause of the people who were against it. We went through the regular procedure. And if we listen to my Republican friends, we might get the impression that they do not like the idea of a Federal judge invalidating a popular referendum. But if we got that idea, Mr. Chairman, we would be wrong. Sometimes in an excess of their concern over a particular case, my friends on the other side overstate their allegiance to general principles. Because, in fact, when the people on the Republican Party do not like the result of a referendum, what do they do? Well, in California, they go to court and they ask a single district judge to invalidate it. Indeed, it seems to me clear that, with regard to judicial activism, my friends on the other side have essentially the same position with regards to States' rights. They are against it except when they like it. They are prepared to denounce it when it produces a result they do not like. But when it gets in the way of a result they like, then they ignore it. That is where they are on States' rights, and that is a perfectly valid viewpoint. That is, it is valid to be result-oriented. It is valid to say, I am going to hope for the right decision. What is not intellectually valid, it seems to me, is to assert adherence to a principle to which one does not, in fact, adhere. And when we talk about States' rights but are prepared to disregard States' rights and talk reform and criminal procedure and economic regulation and consumer protection, then we really forfeit our rights to talk about States' rights. And when we denounce judicial activism but Honor Justices Scalia and Thomas, our two most active justices, then it seems to me we undercut our argument. And with regard to the notion that somehow it is a terrible thing for a district court judge to invalidate a popular referendum, let me read a refutation of that view. I am reading from a legal brief. The blanket primary is not valid because it apparently was passed by a majority of Democrats and Republicans who voted in the 1996 election. Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more than can a legislature. Let me read that again correctly. ``Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more anymore than a legislature.'' Let me also now read. ``Even if the electorate could enact statutes to regulate the selection of nominees for partisan offices, it cannot do so in a way that undermines the integrity of the electoral process.'' And then quoting with approval another decision, ``Voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature. There is little significance to the fact that a law was adopted by a popular vote rather than as an act of the State legislature. Indeed, there are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' And that is a quote again from another decision. Now, where do these arguments in favor of allowing a single Federal district judge to invalidate a referendum of the people of California if it was unconstitutional come from? What radical group, what group of anti-public elitists, what sneering left-wingers, unwilling to let the people decide, put this forward? Who says that, in fact, the legislative enactment might even get more deference from a court than the people? Who are these judicial activist encouragers who so sneer at the public? They are the California Republican Party. I am quoting from the brief filed by the California Republican Party, Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. Donna Shalansky. It was filed July 28, 1997. Because the people of California dared to pass a referendum changing the way candidates are nominated for office which the Republican and Democratic Parties of California did not like. So the Republican Party of California went to court with the Democratic Party of California and said, judge, you make those people stop violating my constitutional rights. And they wrote down here that just because the people did it in a referendum does not mean anything. In fact, it may mean it is even less entitled to respect than when the people do it. {time} 1100 Of course, we have a bill on the floor that does exactly the opposite. We have a bill on the floor that says that, if a referendum is involved, we have to have a three-judge court. It just seems to me, Mr. Chairman, that there ought to be some limit to the extent to which a gap is allowed to exist between what people say they truly believe and what they do when it is important to them. So what we have here is a cry of frustration. We have the right wing not liking the fact that the court sometimes enforces constitutional rights. So they talk about all the doctrines which they, it does not seem to me, follow themselves when they are inconvenient. So they come forward with a bill which is mostly a nuisance and interference and a derogation from the efficiency of our Court system. We will be offering some amendments to try to clear that up. And absent the passage of those amendments, I hope the bill is defeated. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Illinois (Mr. Hyde), the Chairman of the House Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.) Mr. HYDE. Mr. Chairman, I will restrain myself from quoting the well- known line about a foolish consistency, because I tend to agree with the gentleman from Massachusetts (Mr. Frank). I think consistency is a virtue, and I do not have the time to point out inconsistencies on the left. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, because my good friend from Illinois and I do not always agree on the definition of virtue, so I am glad we do in this case. Mr. HYDE. Mr. Chairman, that is right, at least in this instance. But I would like to suggest that I think he proves too much when he refers to this bill as somehow hostile to the vibrancy, the vitality, the importance, the significance of the Federal judiciary. Just the opposite; it is an effort to make the Federal judiciary work better. We will have amendments here, and we will debate this issue, but I do not think there is anything in the bill that is hostile at all to the notion of the third branch of government and its very important role in the functioning of our democracy. As to the three-judge panel, somehow the gentleman from Massachusetts views that as a derogation of authority, proper authority that belongs to the courts. I would just simply suggest that the notion of setting aside by injunction a referendum that has passed through a State process where members of the State have voted in the referendum is a topic of some significance and deserves the gravity of a three-judge court rather than just one judge. I say that because we do this in the context of three-judge courts already deciding appeals from voting rights cases and reapportionment cases. I am sure the gentleman from Massachusetts supports enthusiastically the notion that three-judge courts have to hear voting rights cases. They are important. Three-judge courts ought to hear appeals on reapportionment because they are important. [[Page H2246]] We feel a State referendum is equally important. So rather than derogating from the importance of the Federal courts deciding these, we are adding some gravatas to the process by saying where an entire State has voted on an issue, that the setting aside of that should be done by a three-judge court rather than one. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for yielding to me. I would say, as our friend from North Carolina had reminded us, the original reason for a three-judge court in the voting rights case had to do with the unfortunate history of judges in the South, who did not really believe in it. I do not think that there was need for it any further, and I would not insist on maintaining it. I would say with regard to the substance of what the gentleman said, I understand his argument that there is something special about a referendum. But the California Republican Party filed a lawsuit directly contradicting that. I would ask the gentleman, do the California Republicans, who serve on the Committee on the Judiciary, have they talked to the California Republican Party and tried to enlighten them and correct this error, which they have so strongly propagated? Mr. HYDE. Mr. Chairman, I would say to my friend, the gentleman from Massachusetts, that is the one aspect of this controversy I have not researched. But I can also tell him that I will not research it. But, nonetheless, the purpose of the three-judge court is a recognition of the significance of an entire State voting on a referendum, and giving it the added dignity of a three-judge court to set aside the expressed wish of perhaps millions of people; the same as in voting rights appeals and in reapportionment. Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to yield. Mr. HYDE. Mr. Chairman, this is almost amounting to harassment, but I, nonetheless, in the mood of accommodation, yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment. Mr. COBLE. Mr. Chairman, I did not hear what the gentleman said. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment because I am not the gentleman's supervisor. I would say to the gentleman that I appreciate his talking about the relevance of respecting the wishes of millions of California voters in a referendum. I hope when the resolution condemning those same voters for voting for medical marijuana comes up that the respect that the gentleman is now showing for those California voters does not evaporate as rapidly as I fear it might. Mr. HYDE. Mr. Chairman, I yield to the gentleman's superior knowledge on marijuana. I simply would like to say that the rest of this bill deals with improvements in the Federal court system, abuses that can occur in class-action certifications, questions of judicial misconducts. Some of us feel those are better handled by a committee in another circuit rather than the circuit where the judge practices or sits. We deal with questions of courts ordering taxing bodies to raise taxes. We feel that is a violation of separation of powers. We like to help avoid getting stuck, if I may use that inelegant term, with a judge who is inappropriate for a particular party or litigant or lawyer by letting us at least change once, which we can do in every circuit court throughout the country. We deal with cameras in the courtroom handling capital punishment appeals. So this is a good bill. I do not doubt it is controversial. It is not hostile to the courts. We will have a struggle perhaps later on over judicial pay. Some people who just congenitally dislike judges will have their say, but that is for later in the day. Summary of H.R. 1252, the Judiciary Reform Act of 1998 This necessary legislation addresses one of the most disturbing problems facing our constitutional system today-- the infrequent but intolerable breach of the separation of powers by some members of the Federal judiciary. three-judge panels The first reform contained in this bill was developed originally by a valued member of the Committee on the Judiciary, the late Representative Sonny Bono of California. Recognizing the unjust effect on voting rights created by injunctions issued in California by one judge against the will of the people of the State as reflected in Propositions 187 and 209, H.R. 1252 provides that requests for injunctions in cases challenging the constitutionality of measures passed by a state referendum must be heard by a three-judge court. Like other federal voting rights legislation containing a provision providing for a hearing by a three-judge court, the Judicial Reform Act of 1998 is designed to protect voters in the exercise of their vote and to further protect the results of that vote. It requires that legislation voted upon and approved directly by the citizens of a state be afforded the protection of a three-judge court pursuant to 28 U.S.C. Sec. 2284 if an application for an injunction is brought in federal court to arrest the enforcement of the referendum on the premise that the referendum is unconstitutional. This system already applies to Voting Rights Act and reapportionment cases. In effect, where the entire populace of a state democratically exercises a direct vote on an issue, one federal judge will be able to issue an injunction preventing the enforcement of the will of the people of that state. Rather, three judges, at the trial level, according to procedures already provided by statute, will hear the application for an injunction and determine whether the requested injunction should issue. An appeal is taken directly to the Supreme Court, expediting the enforcement of the referendum if the final decision is that the referendum is constitutional. Such an expedited procedure is already provided for in other voting rights cases. It should be no different in this case, since a state is ``redistricted'' for purposes of a vote on a referendum into one voting block. The Congressional Research Service estimates that these three- judge courts would be required less than 10 times in a decade under this bill, causing a very insubstantial burden on the federal judiciary, while substantially protecting the rights of the voters of a state. This bill recognizes that state referenda reflect, more than any other process, the one-person/one-vote system, and seeks to protect a fundamental part of our national foundation. This bill will implement a fair and effective policy that preserves a proper balance in federal-state relations. Interim Appeals of Class Action Certifications The second reform contained in this bill was developed by the Chairman of the Subcommittee on the Constitution, Representative Charles Canady of Florida. It allows immediate (interlocutory) appeals of class action certifications by a federal District judge. When a District judge determines that an action may be maintained as a class action, the provisions contained in the Judicial Reform Act allow a party to that case to appeal that decision immediately to the proper Court of Appeals without delaying the progress of the underlying case. This prevents ``automatic'' certification of class actions by judges whose decisions to certify may go unchallenged because the parties have invested too many resources into the case before an appeal is allowed. This bill will also prevent abuses by attorneys who bring class action suits when they are not warranted, and provides protection to defendants who may be forced to expend unnecessary resources at trial, only to find that a class action was improperly brought against them in the first place. As a practical matter, the outcome of a class-action suit is often determined by whether the judge elects to certify a class since certifications may guarantee that a plaintiff's attorney can extract a favorable settlement, irrespective of whether the certification was proper. Complaints Against Judicial Misconduct The third reform contained in this bill was developed by another member of the Committee on the Judiciary, Representative Ed Bryant of Tennessee. It requires that a complaint brought against a federal judge be sent to a circuit other than the one in which the judge who is the object of the complaint sits for review. This will provide for a more objective review of the complaint and improve the efficacy of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. Sec. 372 (``The 1980 Act''), which established a mechanism for the filing of complaints against federal judges. Under those procedures, a complaint alleging that a federal judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may be filed with the clerk of the U.S. Court of Appeals for the circuit in which the federal judge who is the subject of the complaint sits. Under the Act, a special committee will report to the judicial council of the circuit, which will decide what action, if any, should be taken. By requiring that complaints filed under the 1980 Act be transferred to a circuit other than the circuit in which the alleged wrongdoer sits, more objectivity and accountability will exist for litigants who find themselves in need of relief from a judge who is [[Page H2247]] not properly performing his or her functions. In addition, the bill has been amended to limit out-of-circuit referrals to those cases in which a complaint is not dismissed as being incomplete, frivolous, or directly related to the merits of a decision or procedural ruling. This amendment represents an effort to respond to those critics who assert that the revision to existing complaint procedures will generate unnecessary and trivial administrative expenses for out-of- circuit judges. In other words, only ``substantive'' complaints will be referred out of circuit. judicial taxation The fourth reform contained in this bill prohibits a federal court from ``expressly directing'' or ``necessarily requiring'' that a state or municipality impose taxes on its citizenry, a function reserved to legislative bodies, for the purpose of enforcing a legal decision. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the judiciary have breached this nation's founding principle of separation of powers and undermined the concept of self-rule. In some cases, judges have designed in specific detail local school systems and public housing systems, and then ordered tax increases to finance the spending bills disguised in their judicial rulings. The most conspicuous example illustrating this problem is the ongoing case of Missouri v. Jenkins, in which the Supreme Court has issued three opinions and the court of appeals more than 20. In Jenkins, the Supreme Court ruled that while it was permissible for the lower court in the Kansas City school system to order the state or municipality to raise taxes to remedy a constitutional deprivation, it remanded and reversed the lower court decision based on the fact that the lower court lacks the authority to impose a tax itself; it must order the state or local municipality to do so. The Jenkins litigation also demonstrates that once a federal court seizes such a ``structural reform'' case, it will constantly reevaluate its progress for years until the ``constitutional deprivation'' has been cured. State and federal laws leave budget and spending authority to legislative bodies, because only a body which represents the will of the people can decide properly how to spend the people's taxes. While rulings on due process are important to protect the rights of litigants, and remedy which would force the public to pay more in taxes must come from the House of the people and not from the authority of the bench. The judiciary is neither equipped nor given the power to make such decisions. To allow otherwise is to usurp self-rule and replace it with self-appointed authority. As four justices of the United States Supreme Court have stated, the imposition of taxes by courts ``disregards fundamental precepts for the democratic control of public institutions. The power of taxation is one that the federal judiciary does not possess.'' This bill will restore the proper balance defined in the Constitution between the federal branches and federal-state relations by forbidding any U.S. District court from entering an order or approving a settlement that requires a state or one of its subdivisions to impose, increase, levy, or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law. This reform contains a narrow, multi-part exception to the general prohibition of judicially-imposed taxation. Specifically, a court may not order a state or political subdivision to impose a tax unless the court first determines by clear and convincing evidence that: (1) there are no other means available to remedy the relevant deprivation of rights or laws, and the tax is narrowly tailored and directly related to the specific constitutional deprivation or harm necessitating redress; (2) the tax will not exacerbate the deprivation intended to be remedied; (3) the tax will not result in a revenue loss for the affected subdivision; (4) the tax will not result in a depreciation of property values for the affected taxpayers; (5) plans submitted by state or local authorities will not effectively redress the relevant deprivation; and (6) the interests of state and local authorities in managing their own affairs is not usurped by the proposed tax, consistent with the Constitution. Finally, the bill specifies that the judicial tax provisions will apply to any action or proceeding pending on, or commenced on or after, the date of enactment. This was done at the behest of Representative Don Manzullo of Illinois, whose district is home to Rockford, a city which is subject to a court taxation order that has devastated local communities. Reassignment of Cases The fifth reform contained in this bill was also developed by Representative Canady. It allows all parties on one side of a civil case brought in federal District court to agree, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. Each side of the case may exercise this option only once. Under the provision, a motion to reassign must be made not later than 20 days after the notice of original assignment of the case is given. Because some critics believe the reassignment device might encourage forum-shopping and attendant delay, its application will be limited to the 21 largest federal judicial districts (each containing over 10 judges to allow a random reassignment) over a five-year period, thereby allowing Congress to evaluate its effects and to determine whether it ought to be extended to all districts and perpetuated in the future. This substitution-of-judge, or, as referred to in the bill, ``reassignment-of-case-as-of-right,'' provision mirrors similar state laws and allows litigants on both sides of a case to avoid being subjected to a particular federal judge, appointed for life, in any specific case. It might be used by litigants in a community to avoid ``forum shopping'' by the other side in a case, or to avoid a judge who is known to engage in improper courtroom behavior, who is known to be prejudiced, or who regularly exceeds judicial authority. This provision is not meant to replace appellate review of trial judges' decisions, but rather to complement appellate review by encouraging judges to fairly administer their oaths of office to uphold the Constitution. Many judges face constant reversals on appeal, but still force litigants to bear extraordinary costs before them and further bear the burden of overcoming standards of review on appeal. This provision allows litigants some freedom in ensuring that due process will be given to their case before they bear the costs associated with litigating in trial court and will encourage the judiciary to be as impartial as required by their charge. handling of capital punishment appeals The sixth reform set forth in H.R. 1252 was developed in response to the May 14, 1997, testimony of Charlotte Stout, who participated in an oversight hearing on judicial misconduct, and comments made by Representative William Delahunt of Massachusetts. Ms. Stout's daughter was raped and murdered by a man who sat on death row for 18 years as a result of filing numerous habeas petitions at the state and federal level. His federal petition was handled by a judge who delayed its consideration for four years before ordering a new trial. This same judge handles all habeas petitions in that judicial circuit, and has delayed consideration of all capital cases appealed to that circuit by a minimum of 65 years. All cases on which he has reached a final decision have resulted in an over-turning of a jury verdict to impose execution. In effect, this judge has taken it upon himself to usurp the decision of a jury to impose the death penalty. Pursuant to the bill, the chief judge of a circuit could neither handle all habeas cases by himself or herself, nor delegate the responsibility on an exclusive basis to another judge. cameras in the courtroom A seventh reform would permit a presiding judge, in his or her discretion, to permit the use of cameras during federal appellate proceedings. Based on legislation introduced by Representative Steve Chabot of Ohio, the change mirrors state efforts to provide greater public access to the workings of the judiciary. The Committee on the Judiciary also adopted an amendment offered by Representative Chabot which creates a three-year pilot program allowing televised proceedings in any U.S. District (trial-level) proceeding, subject to the discretion of the presiding judge. judicial pay An eighth reform includes parts of legislation introduced by Representative Henry Hyde of Illinois, Chairman of the Committee on the Judiciary, that would grant federal judges an annual cost-of-living adjustment unless Congress takes action to the contrary. complex disaster litigation With Representative Jim Sensenbrenner of Wisconsin as its chief advocate, a ninth reform consists of language which the House passed in the 101st and 102nd Congress, and which the full Committee on the Judiciary passed in the 103rd Congress. This language is intended to improve the ability of federal courts to handle complex multidistrict litigation arising from a single accident, such as a plane crash. Briefly, these changes would bestow original jurisdiction on federal District courts in civil actions involving minimal diversity jurisdiction among adverse parties based on a single accident where at least 25 persons have either died or sustained injuries exceeding $50,000 per person. The District court in which such cases are consolidated would retain those cases for purposes of determining liability and punitive damages, and would also determine the substantive law that would apply for findings of liability and damage. Returning individual cases to state and federal courts where they were originally filed for a determination of compensatory money damages (and where all relevant records are located) is fair to the plaintiffs or their estates. These changes should reduce litigation costs as well as the likelihood of forum-shopping in airline and other accident cases. An effective one-time determination of punitive damages would eliminate multiple or inconsistent awards arising from multiforum litigation. Agency (OPM) Appeals of Adverse Personnel Decisions The tenth and final reform of H.R. 1252, proposed by Representative Conyers of Michigan, would permit the Office of Personnel Management (OPM) to appeal final decisions of the Merit Systems Protection Board (MSPB) and final arbitral awards dealing with adverse personnel actions to the Federal Circuit within 60 days from the time [[Page H2248]] final notice of a decision is received. Currently, OPM must file its appellate briefs within 30 days, which is half the time allotted to other federal agencies. This bill is limited in scope. It reforms the procedures of the federal courts to ensure fairness in the hearing of cases without stripping jurisdiction, or reclaiming any powers granted by Congress to the lower courts. It does assure that litigants in federal courts will be entitled to fair rules of practice and procedure leading to the due process of claims. Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 5\1/2\ minutes to the distinguished gentleman from Texas (Mr. DeLay), the majority whip for the House. Mr. DeLAY. Mr. Chairman, I thank the Chairman for yielding. I want to commend the chairman of the subcommittee and the chairman of the full committee and the Members of the Committee on the Judiciary for their very hard work and effort in what I consider a much needed piece of legislation. The system of checks and balances so carefully crafted by our Founding Fathers is in serious disrepair and has been for years. This bill takes a very necessary step to bring the courts back into constitutional order. The Founding Fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of the other. I contend, quite frankly, if we read the Constitution as it originally was written and intended, the judiciary branch was supposed to be the weakest branch of the three created by the Constitution. Contrary to the opinion of the liberal legal establishment of this country, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law. They are not to make the law. When judges go further and unilaterally impose legislative remedies, they exceed the legitimate limits of power given to them by the Constitution. When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people. For instance, under the Constitution, only Congress can lay and collect taxes. But that did not stop District Judge Russell Clark from ordering tax increases from the bench. That tax increase, and 2 billion tax dollars, turned the city school district into a spending orgy, complete with editing and animation labs, greenhouses, temperature-controlled art galleries, and a model United Nations that was wired for language translation. If that is not taxation without representation, I do not know what it is. Another example of a judge tossing aside the Constitution and supplanting his own personal biases was the decision of the District Court Judge, Thelton Henderson, prohibiting the State of California from implementing the California Civil Rights Initiative, the CCRI. The CCRI simply removed the opportunity for State officials to judge people by their race and their sex, a practice that I think most Americans consider repugnant. In a ruling that turned common sense and our Constitution on its head, Justice Henderson ruled that by adopting the equal protection clause of the 14th amendment, the voters of the State of California had violated that same 14th amendment. Although judicial taxation and Judge Henderson's circumvention of the Constitution are two extreme examples of judges breaching the separation of powers, there are, of course, many, many others. Judges have created the right to die. Judges have prohibited States from declaring English as an official language. Judges have extended the right of States to withhold taxpayer-funded services from illegal aliens, all without sound constitutional basis. Now, some Federal judges have even made themselves the sovereigns of the cell blocks, micromanaging our State prisons, and forcing changes in prison operations that have resulted in the early release each year of literally hundreds of thousands of violent and/or repeat criminals out on our streets and the streets to plague our families. In 1970, not a single prison system was operating under the sweeping court orders common today. By 1990, some 508 municipalities, and over 1,200 State prisons were operating under some judicial confinement order or some consent decree. In New York City, judges have forced prison officials to require that only licensed barbers cut the hair of the prisoners; that sweetened coffee may never be served at meals for the prisoners; and a court- appointed monitor must be given a city car within one grade of the prison commissioner's car. If it were not so appalling, it would be funny. But if that is not enough, the same activist judges have also imposed prison caps, mandating the release of violent felons and drug dealers before they have even served their time. Later today, the gentleman from Pennsylvania (Mr. Murtha) and I will offer an amendment that will end this travesty of justice caused by overactive judges. Our amendment will prohibit a Federal judge from ever releasing a felon from prison because of claims of prison overcrowding. The prisoners claim of overcrowding has become a get-out-of-jail-free card. And we say no longer. No longer will these prisoners plague our families, and our cities, and in our towns. I urge my colleagues to support the Hyde bill and the DeLay-Murtha amendment. The time has come to reestablish our system of checks and balances and to restore sanity to our criminal justice system. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the ranking member of the full committee. Mr. CONYERS. Mr. Chairman, I thank the gentleman from Massachusetts for yielding to me. Mr. Chairman, I was delighted to hear the majority whip, constitutional expert in his own right, whose opinions I respect very much, and which will become very much in focus today. The gentleman from Texas (Mr. DeLay), majority whip, is the same Member of Congress who claims it is time we impeach judges whose opinions consistently ignore their constitutional role, violate their oath of office, and breach the separation of powers. {time} 1115 That is a quote. Mr. DeLAY. Mr. Chairman, will the gentleman yield? Mr. CONYERS. I yield to the gentleman from Texas. Mr. DeLAY. Does the gentleman believe that a judge should not be impeached that violates his oath of office and violates the Constitution? Mr. CONYERS. I will get to that later. Right now I am making my own present

Major Actions:

All articles in House section

JUDICIAL REFORM ACT OF 1998
(House of Representatives - April 23, 1998)

Text of this article available as: TXT PDF [Pages H2242-H2286] JUDICIAL REFORM ACT OF 1998 Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 408 and ask for its immediate consideration. The Clerk read the resolution, as follows: H. Res. 408 Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act of 1974 are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule. It shall be in order to consider as an original bill for the purpose of amendment under the five-minute rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill, modified by striking section 9 (and redesignating succeeding sections accordingly). Each section of that amendment in the nature of a substitute shall be considered as read. Points of order against that amendment in the nature of a substitute for failure to comply with clause 7 of rule XVI or section 303(a) of the Congressional Budget Act of 1974 are waived. During consideration of the bill for amendment, the Chairman of the Committee of the Whole may accord priority in recognition on the basis of whether the Member offering an amendment has caused it to be printed in the portion of the Congressional Record designated for that purpose in clause 6 of rule XXIII. Amendments so printed shall be considered as read. The chairman of the Committee of the Whole may: (1) postpone until a time during further consideration in the Committee of the Whole a request for a recorded vote on any amendment; and (2) reduce to five minutes the minimum time for electronic voting on any postponed question that follows another electronic vote without intervening business, provided that the minimum time for electronic voting on the first in any series of questions shall be 15 minutes. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. Any Member may demand a separate vote in the House on any amendment adopted in the Committee of the Whole to the bill or to the amendment in the nature of a substitute made in order as original text. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. The SPEAKER pro tempore (Mr. Ewing). The gentleman from Florida (Mr. Goss) is recognized for 1 hour. Mr. GOSS. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to my friend, the distinguished gentleman from Ohio (Mr. Hall), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for purpose of debate on this subject only. Mr. Speaker, House Resolution 408 is an open rule providing for the consideration of H.R. 1252, the Judicial Reform Act of 1998. The rule provides the customary 1 hour of general debate, equally divided between the chairman and ranking minority member of the Committee on the Judiciary. The rule waives points of order against the consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act, which prohibits consideration of legislation providing new budget authority, changes in revenues, or changes in the public debt for a fiscal year until the budget resolution for that year has been agreed to. The purpose of that section of the Budget Act is a sound one that we generally try to adhere to, keeping the budget process moving forward in a commonsense direction, with the budget resolution coming first and then allowing for subsequent consideration of the legislation that implements the provisions of the budget resolution. In this case, however, we are technically required to provide this waiver, but our Committee on Rules has also provided a fix for the Budget Act problem. We have done that by making in order under this rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary, modified by striking section 9 of that amendment which caused the 303(a) problem and redesignating succeeding sections accordingly. Section 9 of the amendment specifically deals with the process by which cost of living adjustments for Federal judges are implemented. The effect of that section would have been to create a new mandatory spending category in the budget, something that we tried not to do outside the normal congressional budget process. Apart from the substance of that issue relating to pay for judges, the Committee on Rules has attempted in this rule to preserve the integrity of the budget process. Mr. Speaker, the rule further provides that each section of the amendment in the nature of a substitute shall be considered as read, and it waives points of order against that amendment for failure to comply with clause 7 of rule XVI prohibiting nongermane amendments, or section 303(a) of the Congressional Budget Act, for the reasons I just explained. The rule accords priority in recognition to Members who have caused their amendments to be preprinted in the Congressional Record, assuming those amendments are in accordance with the standing rules of the House. It further provides that the chairman of the Committee of the Whole may postpone votes during consideration of the bill and reduce the voting time to 5 minutes on a postponed question if the vote follows a 15-minute vote; and, finally, as is the custom, the rule provides for one motion to recommit, with or without instructions. That explains the rule. Now, Mr. Speaker, with the exception of the technical Budget Act fix, this is a very straightforward rule. It is fair, and it is wide open. It allows all Members the chance to offer germane amendments and conduct thoughtful discussion about a very important subject. I strongly support the premise behind this bill, that it is time to control judicial activism, the so-called runaway judges on the Federal bench. This statement alone is usually enough to generate controversy in many circles, and this debate is by no means a simple one, as it involves many of the most basic tenets of our democratic system and the separation of powers. {time} 1030 I think we could all come up with anecdotal evidence that there have been problems within the Federal judiciary with judges exceeding their charter and authority. The Committee on the Judiciary has, in my view, put forth a responsible product that deals with these problems by focusing on specific practices within the Federal courts that together constitute a real threat to the rights of citizens and the prerogatives of this Congress. In my view, this legislation constitutes a measured and carefully justified response to legitimate problems. It is not simply throwing down the gauntlet. It is coming up with responsible solutions, which we will have ample opportunity to debate under an open rule. I applaud the gentleman from Illinois (Mr. Hyde), and the subcommittee [[Page H2243]] chairman, the gentleman from North Carolina (Mr. Coble) for their work on this bill. Still, I know that many Members have concerns about specific provisions of the legislation. Those Members will have their opportunity to air their concerns and propose alterations during the open debate and amendment process established by this rule. I urge support for the rule and the underlying bill. I look forward to a lively and informative debate. Mr. Speaker, I reserve the balance of my time. Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may consume. I want to thank my colleague for yielding me the time. This is an open rule. It will allow for full and fair debate on H.R. 1252, which is the bill that modifies certain procedures of the Federal courts. As my colleague from Florida described, this rule provides for 1 hour of general debate equally divided and controlled by the chairman and the ranking minority member of the Committee on the Judiciary. The rule allows amendments under the 5-minute rule, which is the normal amending process in the House. All Members on both sides of the aisle will have the opportunity to offer amendments. Judicial decisions that force government action by their nature are unpopular. If those actions were popular, then the legislature and the administrations would have already taken them. Some of those unpopular decisions have resulted in the protection of our health, safety and civil rights. In recent years, some judges have assumed broad powers traditionally reserved for the legislative and the executive branches of State and local government. There is merit in some of the criticism of these actions when the result is an antigovernment backlash that weakens support for government. But if this is a real problem, then the answer is really not this bill. I think the bill threatens to undermine the independence of the Federal judiciary and reduce efficiency. The Attorney General will recommend to the President that he veto the bill if it is passed in its current form. Mr. Speaker, even though the bill is flawed, there is nothing wrong with this rule. It is open. It should be supported. I support it. Mr. Speaker, I reserve the balance of my time. Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume. May I inquire of my colleague through the Chair if he has any speakers? We have none, and we would just as soon get on with the debate, and yield the balance of the time, if that fits with the pattern from the other side. Mr. HALL of Ohio. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Ohio. Mr. HALL of Ohio. Mr. Speaker, I had expected two speakers, but they have not shown up. Therefore, I will yield back the balance of my time. Mr. GOSS. Mr. Speaker, I would be very happy to afford the gentleman an extra minute or so if he is aware that those Members are coming. Mr. HALL of Ohio. I am not aware. I was just asked, before we started, they asked to speak on it. They have not arrived. Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill on our side. I think Members will have general debate. There will be an hour of general debate that is not going to be overfilled with requests for time. I think they can be accommodated. Mr. GOSS. Reclaiming my time, if it is my time, I understand, and we have no speakers, and we are going to yield back in about a minute, and call for the question. We are not intending to call for a recorded vote. We believe that it is an open rule, and there is no need to do that. We also agree with the distinguished gentleman from the Commonwealth of Massachusetts that there is ample debate opportunity today because of this very fair open rule that we have crafted. We are certainly looking forward to that debate, and would not want to put any impediment to it. Unfortunately, we are not quite logistically prepared to begin the debate. Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will continue to yield, I thank the gentleman. I thought I would help him because he seems to be in no great hurry. We are not waiting for the Speaker to come back from Florida again, are we, like yesterday? Mr. GOSS. Reclaiming my time, Mr. Speaker, I am delighted that the gentleman brought the Speaker's trip to Florida up. It shows the outreach that we have in this House to go to the important States in our Nation, Florida being the fourth most populace State, and a place where we will all go sooner or later, which we are very proud to represent, those of us who are there now. I believe the Speaker has returned from Florida, and has done brilliant things there. Ms. JACKSON-LEE of Texas. Mr. Speaker, I come before you today to speak to you about an important rule on an important piece of legislation. I am pleased that this rule is an open rule and that both Democrats and Republicans are able to come together on the floor of the House and offer reasonable common sense amendments that improve this bill. However, I am disturbed that the judicial pay raise amendments were not made a part of this rule. The Federal Judges do alot more than just come to work. They interpret the law and preserve justice. Increasing Federal judicial compensation is important because the Federal Judiciary is composed of men and women who give up alot of money to work in the public sector. We all know that they give up alot for this special type of public service and they should be justly compensated for it. I have an amendment that was made in order. This amendment would permit a federal court to enter an order restricting the disclosure of information obtained through discovery or an order restricting access to court records in a civil case only after making a finding of fact that such order would not restrict the disclosure of information which is relevant to the protection of public health and safety. I am glad that this rule includes my amendment but it should have included amendments that improve and increase Federal judicial compensation. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution. The previous question was ordered. The resolution was agreed to. A motion to reconsider was laid on the table. The SPEAKER pro tempore (Mr. Knollenberg). Pursuant to House Resolution 408 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 1252. The Chair designates the gentleman from California (Mr. Riggs) as Chairman of the Committee of the Whole, and requests the gentleman from Illinois (Mr. Ewing) to assume the chair temporarily. {time} 1042 In the Committee of the Whole Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes, with Mr. Ewing (Chairman pro tempore) in the Chair. The Clerk read the title of the bill. The CHAIRMAN pro tempore. Pursuant to the rule, the bill is considered as having been read the first time. Under the rule, the gentleman from North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. Frank), each will control 30 minutes. The Chair recognizes the gentleman from North Carolina (Mr. Coble). Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume. H.R. 1252, the Judicial Reform Act of 1998, is a restrained but purposeful effort to combat specific areas of abuse that exist within the Federal judiciary. The gentleman from Illinois (Mr. Hyde), as he spoke to the Committee on Rules yesterday, said this bill perhaps goes too far for some Members, not far enough for others. But that is not unlike much legislation that we consider in this hall. Before describing what the bill does, however, let me emphasize what it does not do; namely, it will not compromise the independence of the Federal judiciary, which is an indispensable attribute for that branch of the Federal Government, nor is H.R. 1252 an attempt to influence or overturn legal disputes. Above all, we most certainly are not creating a novel, more lenient standard of impeachment to remove particular judges from the Federal [[Page H2244]] bench without cause or to intimidate them with a threat of doing so. That said, the Judiciary Reform Act of 1998 is largely an amalgam of ideas developed by various Members of Congress that will curtail certain abusive practices within our Federal court system. Specifically, the bill consists of six procedural changes in furtherance of this end. In addition, the four other reforms that will improve other matters related to article 3, Federal courts. The six core revisions set forth in the bill concern the following matters: First, a featured component of the bill was initially developed by our colleague and good friend, the late Sonny Bono. It would require three judge panels to hear constitutional challenges of State laws enacted pursuant to voter referenda. Under current law, a single judge possesses the power to invalidate the results of a State-wide referendum. Second, H.R. 1252 would permit interlocutory or interim appeal of class-action certifications championed by the gentleman from Florida (Mr. Canady). This provision would enable litigants to a class-action suit to appeal a decision certifying a national class prior to the conclusion of a trial. Currently, defendants may expend a great deal of financial resources through trial only to find upon appeal that a class was improperly certified at the outset of litigation. Third, the measure infuses greater objectivity in the current process by which citizens may register complaints against Federal judges for misconduct. Present law on the subject is premised on a peer review system by judges from the same circuit. Pursuant to the change set forth in this bill before us, complaints which do not speak to the merits of a decision, or are not otherwise frivolous will be referred to a different circuit. {time} 1045 This means that truly substantive complaints will be more objectively reviewed by judges who have no personal ties to the judge who is the subject of the complaint. The gentleman from Tennessee (Mr. Bryant) and the gentleman from Indiana (Mr. Pease) contributed to this section of the bill. Fourth, H.R. 1252 would inhibit the ability of Federal courts to require States and local municipalities to raise taxes on the affected citizenry to pay for projects that the States and municipalities are unwilling to fund themselves. While a Federal court may possess the technical right under certain conditions to devise such a remedy to redress a constitutional harm, we have carefully crafted some parameters that will constrain the practice of judicial taxation. The gentleman from Illinois (Mr. Manzullo), whose district is home to a city which is subject to a judicial taxation order, contributed to this portion of the bill. Fifth, the gentleman from Florida (Mr. Canady) worked with our former colleague Dan Lungren, who presently serves as Attorney General for California, to create a procedural right for a litigant to request one time only that a different judge be assigned to his or her case. Some judges are so possessed of an injudicious temperament or are otherwise biased as to warrant this revision. Sixth, it is has come to our attention that some Federal judges are unalterably opposed to enforcing the death penalty, even to the point of dragging their feet on expeditious consideration of habeas corpus petitions to forestall execution. Based on comments made by the gentleman from Massachusetts (Mr. Delahunt), this section of the bill would prevent the chief justice of a circuit from reserving all such petitions for one judge on an exclusive basis. Mr. Chairman, there are three other items contained in the Judicial Reform Act that do not otherwise speak to abusive judicial practices but will nonetheless improve the functioning of our Federal courts. They are: One, the permitted practice of televising proceedings in our Federal appellate courts and, for a 3-year period, in our district or trial courts, suggested to at the discretion of the presiding judge; Second, the expedited consolidation of cases pertaining to complex, multi-district disaster litigation; And, third, the allowance of an additional 30 days, or a total of 60 days, for the Office of Personnel Management to appeal adverse personnel decisions consistent with appellate procedure for other Federal agencies. Again, Mr. Chairman, these provisions are straightforward and restrained in their application and will assist in promoting equity for litigants and taxpayers within the Federal court system. I urge all Members to support passage of H.R. 1252. Mr. Chairman, I reserve the balance of my time. Mr. Chairman, I ask unanimous consent that the bill be open for amendment at any point. The CHAIRMAN. That request by the gentleman may be made after general debate has concluded and the Committee begins the 5-minute rule. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Let me say, I appreciate the gentleman making the request. Because even though it cannot be acted on until the 5-minute rule begins, Members who may be interested should know it is our intention to have amendments be in order at any point so they do not have to worry about a section-by-section reading. I do not believe we have a large number of amendments. Mr. Chairman, the Subcommittee on Courts and Intellectual Property, on which I am pleased to serve with the gentleman from North Carolina (Mr. Coble), has a good deal of business which we do in a nonideological way and in a nonpartisan way, and I am very proud of that. The intellectual property jurisdiction we have is an important one, and we have had some judicial reform bills. This bill does not, however, conform to that pattern. This is an exception in that it is one on which I think we have some fairly sharp division, and the reason we have the division I think frankly stems from some frustration on the part of some of those on the other side. There are people particularly in the very conservative wing of the Republican party, which I must say has outgrown wing status. It is now at least a wing and a tail and maybe another wing and a couple of beaks. They do not like some of the things that the courts do. I believe that their problem, however, is not so much with the courts as with the Constitution. And there is not a great deal we can do about the Constitution. We try. We recently have sought on the floor, at least some have sought on the floor, to amend the Constitution with great regularity and with equal lack of success. The Congress has voted down half a dozen or more efforts to change the Constitution. Not being able to change the Constitution, the people in the conservative wing of the Republican party have decided to demonize it instead and to denounce the judges. But there is a great disconnect between the violence of the rhetoric and the actuality of the legislation. I am going to vote against this bill. I am glad that the President plans to veto it if we pass it as-is, although we could make it passable under some aspects of the bill which I think are very useful. But even if it were to pass, it would have virtually no effect on the kinds of things that people complain of. In fact, one of the most interesting facts is that, while people on the conservative side complain about this bill because they say it empowers an inappropriate form of judicial activism, it is very clear if we study this that they simply do not like the results. They simply do not like courts finding that this or that statute might not be permissible under the Constitution. Because if we look at the judges who have been judicial activists, what we find, of course, is that the most conservative justices of the Supreme Court, for example, are also the most judicially active. Justices Scalia and Thomas, the two most conservative justices, strongly supported by the conservatives, have in fact voted to invalidate more statutes, to find more acts of Congress unconstitutional than their more moderate and liberal counterparts. If in fact they think it is a terrible idea for the Supreme Court to strike down statutes, then they would be very critical of Mr. Scalia and Mr. Thomas, the Religious Freedom Restoration Act that they did not like, the Brady Bill, parts of which they did not like. There are a whole series of them. And the conservative justices are in league. [[Page H2245]] One of the most glaring examples of this came recently with regard to a series of decisions in California where judges in California found referenda unconstitutional. Now, in a couple of cases, at least in one case, a district judge found the referendum unconstitutional under affirmative action. That district judge was promptly overruled. No harm was done to the cause of the people who were against it. We went through the regular procedure. And if we listen to my Republican friends, we might get the impression that they do not like the idea of a Federal judge invalidating a popular referendum. But if we got that idea, Mr. Chairman, we would be wrong. Sometimes in an excess of their concern over a particular case, my friends on the other side overstate their allegiance to general principles. Because, in fact, when the people on the Republican Party do not like the result of a referendum, what do they do? Well, in California, they go to court and they ask a single district judge to invalidate it. Indeed, it seems to me clear that, with regard to judicial activism, my friends on the other side have essentially the same position with regards to States' rights. They are against it except when they like it. They are prepared to denounce it when it produces a result they do not like. But when it gets in the way of a result they like, then they ignore it. That is where they are on States' rights, and that is a perfectly valid viewpoint. That is, it is valid to be result-oriented. It is valid to say, I am going to hope for the right decision. What is not intellectually valid, it seems to me, is to assert adherence to a principle to which one does not, in fact, adhere. And when we talk about States' rights but are prepared to disregard States' rights and talk reform and criminal procedure and economic regulation and consumer protection, then we really forfeit our rights to talk about States' rights. And when we denounce judicial activism but Honor Justices Scalia and Thomas, our two most active justices, then it seems to me we undercut our argument. And with regard to the notion that somehow it is a terrible thing for a district court judge to invalidate a popular referendum, let me read a refutation of that view. I am reading from a legal brief. The blanket primary is not valid because it apparently was passed by a majority of Democrats and Republicans who voted in the 1996 election. Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more than can a legislature. Let me read that again correctly. ``Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more anymore than a legislature.'' Let me also now read. ``Even if the electorate could enact statutes to regulate the selection of nominees for partisan offices, it cannot do so in a way that undermines the integrity of the electoral process.'' And then quoting with approval another decision, ``Voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature. There is little significance to the fact that a law was adopted by a popular vote rather than as an act of the State legislature. Indeed, there are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' And that is a quote again from another decision. Now, where do these arguments in favor of allowing a single Federal district judge to invalidate a referendum of the people of California if it was unconstitutional come from? What radical group, what group of anti-public elitists, what sneering left-wingers, unwilling to let the people decide, put this forward? Who says that, in fact, the legislative enactment might even get more deference from a court than the people? Who are these judicial activist encouragers who so sneer at the public? They are the California Republican Party. I am quoting from the brief filed by the California Republican Party, Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. Donna Shalansky. It was filed July 28, 1997. Because the people of California dared to pass a referendum changing the way candidates are nominated for office which the Republican and Democratic Parties of California did not like. So the Republican Party of California went to court with the Democratic Party of California and said, judge, you make those people stop violating my constitutional rights. And they wrote down here that just because the people did it in a referendum does not mean anything. In fact, it may mean it is even less entitled to respect than when the people do it. {time} 1100 Of course, we have a bill on the floor that does exactly the opposite. We have a bill on the floor that says that, if a referendum is involved, we have to have a three-judge court. It just seems to me, Mr. Chairman, that there ought to be some limit to the extent to which a gap is allowed to exist between what people say they truly believe and what they do when it is important to them. So what we have here is a cry of frustration. We have the right wing not liking the fact that the court sometimes enforces constitutional rights. So they talk about all the doctrines which they, it does not seem to me, follow themselves when they are inconvenient. So they come forward with a bill which is mostly a nuisance and interference and a derogation from the efficiency of our Court system. We will be offering some amendments to try to clear that up. And absent the passage of those amendments, I hope the bill is defeated. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Illinois (Mr. Hyde), the Chairman of the House Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.) Mr. HYDE. Mr. Chairman, I will restrain myself from quoting the well- known line about a foolish consistency, because I tend to agree with the gentleman from Massachusetts (Mr. Frank). I think consistency is a virtue, and I do not have the time to point out inconsistencies on the left. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, because my good friend from Illinois and I do not always agree on the definition of virtue, so I am glad we do in this case. Mr. HYDE. Mr. Chairman, that is right, at least in this instance. But I would like to suggest that I think he proves too much when he refers to this bill as somehow hostile to the vibrancy, the vitality, the importance, the significance of the Federal judiciary. Just the opposite; it is an effort to make the Federal judiciary work better. We will have amendments here, and we will debate this issue, but I do not think there is anything in the bill that is hostile at all to the notion of the third branch of government and its very important role in the functioning of our democracy. As to the three-judge panel, somehow the gentleman from Massachusetts views that as a derogation of authority, proper authority that belongs to the courts. I would just simply suggest that the notion of setting aside by injunction a referendum that has passed through a State process where members of the State have voted in the referendum is a topic of some significance and deserves the gravity of a three-judge court rather than just one judge. I say that because we do this in the context of three-judge courts already deciding appeals from voting rights cases and reapportionment cases. I am sure the gentleman from Massachusetts supports enthusiastically the notion that three-judge courts have to hear voting rights cases. They are important. Three-judge courts ought to hear appeals on reapportionment because they are important. [[Page H2246]] We feel a State referendum is equally important. So rather than derogating from the importance of the Federal courts deciding these, we are adding some gravatas to the process by saying where an entire State has voted on an issue, that the setting aside of that should be done by a three-judge court rather than one. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for yielding to me. I would say, as our friend from North Carolina had reminded us, the original reason for a three-judge court in the voting rights case had to do with the unfortunate history of judges in the South, who did not really believe in it. I do not think that there was need for it any further, and I would not insist on maintaining it. I would say with regard to the substance of what the gentleman said, I understand his argument that there is something special about a referendum. But the California Republican Party filed a lawsuit directly contradicting that. I would ask the gentleman, do the California Republicans, who serve on the Committee on the Judiciary, have they talked to the California Republican Party and tried to enlighten them and correct this error, which they have so strongly propagated? Mr. HYDE. Mr. Chairman, I would say to my friend, the gentleman from Massachusetts, that is the one aspect of this controversy I have not researched. But I can also tell him that I will not research it. But, nonetheless, the purpose of the three-judge court is a recognition of the significance of an entire State voting on a referendum, and giving it the added dignity of a three-judge court to set aside the expressed wish of perhaps millions of people; the same as in voting rights appeals and in reapportionment. Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to yield. Mr. HYDE. Mr. Chairman, this is almost amounting to harassment, but I, nonetheless, in the mood of accommodation, yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment. Mr. COBLE. Mr. Chairman, I did not hear what the gentleman said. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment because I am not the gentleman's supervisor. I would say to the gentleman that I appreciate his talking about the relevance of respecting the wishes of millions of California voters in a referendum. I hope when the resolution condemning those same voters for voting for medical marijuana comes up that the respect that the gentleman is now showing for those California voters does not evaporate as rapidly as I fear it might. Mr. HYDE. Mr. Chairman, I yield to the gentleman's superior knowledge on marijuana. I simply would like to say that the rest of this bill deals with improvements in the Federal court system, abuses that can occur in class-action certifications, questions of judicial misconducts. Some of us feel those are better handled by a committee in another circuit rather than the circuit where the judge practices or sits. We deal with questions of courts ordering taxing bodies to raise taxes. We feel that is a violation of separation of powers. We like to help avoid getting stuck, if I may use that inelegant term, with a judge who is inappropriate for a particular party or litigant or lawyer by letting us at least change once, which we can do in every circuit court throughout the country. We deal with cameras in the courtroom handling capital punishment appeals. So this is a good bill. I do not doubt it is controversial. It is not hostile to the courts. We will have a struggle perhaps later on over judicial pay. Some people who just congenitally dislike judges will have their say, but that is for later in the day. Summary of H.R. 1252, the Judiciary Reform Act of 1998 This necessary legislation addresses one of the most disturbing problems facing our constitutional system today-- the infrequent but intolerable breach of the separation of powers by some members of the Federal judiciary. three-judge panels The first reform contained in this bill was developed originally by a valued member of the Committee on the Judiciary, the late Representative Sonny Bono of California. Recognizing the unjust effect on voting rights created by injunctions issued in California by one judge against the will of the people of the State as reflected in Propositions 187 and 209, H.R. 1252 provides that requests for injunctions in cases challenging the constitutionality of measures passed by a state referendum must be heard by a three-judge court. Like other federal voting rights legislation containing a provision providing for a hearing by a three-judge court, the Judicial Reform Act of 1998 is designed to protect voters in the exercise of their vote and to further protect the results of that vote. It requires that legislation voted upon and approved directly by the citizens of a state be afforded the protection of a three-judge court pursuant to 28 U.S.C. Sec. 2284 if an application for an injunction is brought in federal court to arrest the enforcement of the referendum on the premise that the referendum is unconstitutional. This system already applies to Voting Rights Act and reapportionment cases. In effect, where the entire populace of a state democratically exercises a direct vote on an issue, one federal judge will be able to issue an injunction preventing the enforcement of the will of the people of that state. Rather, three judges, at the trial level, according to procedures already provided by statute, will hear the application for an injunction and determine whether the requested injunction should issue. An appeal is taken directly to the Supreme Court, expediting the enforcement of the referendum if the final decision is that the referendum is constitutional. Such an expedited procedure is already provided for in other voting rights cases. It should be no different in this case, since a state is ``redistricted'' for purposes of a vote on a referendum into one voting block. The Congressional Research Service estimates that these three- judge courts would be required less than 10 times in a decade under this bill, causing a very insubstantial burden on the federal judiciary, while substantially protecting the rights of the voters of a state. This bill recognizes that state referenda reflect, more than any other process, the one-person/one-vote system, and seeks to protect a fundamental part of our national foundation. This bill will implement a fair and effective policy that preserves a proper balance in federal-state relations. Interim Appeals of Class Action Certifications The second reform contained in this bill was developed by the Chairman of the Subcommittee on the Constitution, Representative Charles Canady of Florida. It allows immediate (interlocutory) appeals of class action certifications by a federal District judge. When a District judge determines that an action may be maintained as a class action, the provisions contained in the Judicial Reform Act allow a party to that case to appeal that decision immediately to the proper Court of Appeals without delaying the progress of the underlying case. This prevents ``automatic'' certification of class actions by judges whose decisions to certify may go unchallenged because the parties have invested too many resources into the case before an appeal is allowed. This bill will also prevent abuses by attorneys who bring class action suits when they are not warranted, and provides protection to defendants who may be forced to expend unnecessary resources at trial, only to find that a class action was improperly brought against them in the first place. As a practical matter, the outcome of a class-action suit is often determined by whether the judge elects to certify a class since certifications may guarantee that a plaintiff's attorney can extract a favorable settlement, irrespective of whether the certification was proper. Complaints Against Judicial Misconduct The third reform contained in this bill was developed by another member of the Committee on the Judiciary, Representative Ed Bryant of Tennessee. It requires that a complaint brought against a federal judge be sent to a circuit other than the one in which the judge who is the object of the complaint sits for review. This will provide for a more objective review of the complaint and improve the efficacy of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. Sec. 372 (``The 1980 Act''), which established a mechanism for the filing of complaints against federal judges. Under those procedures, a complaint alleging that a federal judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may be filed with the clerk of the U.S. Court of Appeals for the circuit in which the federal judge who is the subject of the complaint sits. Under the Act, a special committee will report to the judicial council of the circuit, which will decide what action, if any, should be taken. By requiring that complaints filed under the 1980 Act be transferred to a circuit other than the circuit in which the alleged wrongdoer sits, more objectivity and accountability will exist for litigants who find themselves in need of relief from a judge who is [[Page H2247]] not properly performing his or her functions. In addition, the bill has been amended to limit out-of-circuit referrals to those cases in which a complaint is not dismissed as being incomplete, frivolous, or directly related to the merits of a decision or procedural ruling. This amendment represents an effort to respond to those critics who assert that the revision to existing complaint procedures will generate unnecessary and trivial administrative expenses for out-of- circuit judges. In other words, only ``substantive'' complaints will be referred out of circuit. judicial taxation The fourth reform contained in this bill prohibits a federal court from ``expressly directing'' or ``necessarily requiring'' that a state or municipality impose taxes on its citizenry, a function reserved to legislative bodies, for the purpose of enforcing a legal decision. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the judiciary have breached this nation's founding principle of separation of powers and undermined the concept of self-rule. In some cases, judges have designed in specific detail local school systems and public housing systems, and then ordered tax increases to finance the spending bills disguised in their judicial rulings. The most conspicuous example illustrating this problem is the ongoing case of Missouri v. Jenkins, in which the Supreme Court has issued three opinions and the court of appeals more than 20. In Jenkins, the Supreme Court ruled that while it was permissible for the lower court in the Kansas City school system to order the state or municipality to raise taxes to remedy a constitutional deprivation, it remanded and reversed the lower court decision based on the fact that the lower court lacks the authority to impose a tax itself; it must order the state or local municipality to do so. The Jenkins litigation also demonstrates that once a federal court seizes such a ``structural reform'' case, it will constantly reevaluate its progress for years until the ``constitutional deprivation'' has been cured. State and federal laws leave budget and spending authority to legislative bodies, because only a body which represents the will of the people can decide properly how to spend the people's taxes. While rulings on due process are important to protect the rights of litigants, and remedy which would force the public to pay more in taxes must come from the House of the people and not from the authority of the bench. The judiciary is neither equipped nor given the power to make such decisions. To allow otherwise is to usurp self-rule and replace it with self-appointed authority. As four justices of the United States Supreme Court have stated, the imposition of taxes by courts ``disregards fundamental precepts for the democratic control of public institutions. The power of taxation is one that the federal judiciary does not possess.'' This bill will restore the proper balance defined in the Constitution between the federal branches and federal-state relations by forbidding any U.S. District court from entering an order or approving a settlement that requires a state or one of its subdivisions to impose, increase, levy, or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law. This reform contains a narrow, multi-part exception to the general prohibition of judicially-imposed taxation. Specifically, a court may not order a state or political subdivision to impose a tax unless the court first determines by clear and convincing evidence that: (1) there are no other means available to remedy the relevant deprivation of rights or laws, and the tax is narrowly tailored and directly related to the specific constitutional deprivation or harm necessitating redress; (2) the tax will not exacerbate the deprivation intended to be remedied; (3) the tax will not result in a revenue loss for the affected subdivision; (4) the tax will not result in a depreciation of property values for the affected taxpayers; (5) plans submitted by state or local authorities will not effectively redress the relevant deprivation; and (6) the interests of state and local authorities in managing their own affairs is not usurped by the proposed tax, consistent with the Constitution. Finally, the bill specifies that the judicial tax provisions will apply to any action or proceeding pending on, or commenced on or after, the date of enactment. This was done at the behest of Representative Don Manzullo of Illinois, whose district is home to Rockford, a city which is subject to a court taxation order that has devastated local communities. Reassignment of Cases The fifth reform contained in this bill was also developed by Representative Canady. It allows all parties on one side of a civil case brought in federal District court to agree, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. Each side of the case may exercise this option only once. Under the provision, a motion to reassign must be made not later than 20 days after the notice of original assignment of the case is given. Because some critics believe the reassignment device might encourage forum-shopping and attendant delay, its application will be limited to the 21 largest federal judicial districts (each containing over 10 judges to allow a random reassignment) over a five-year period, thereby allowing Congress to evaluate its effects and to determine whether it ought to be extended to all districts and perpetuated in the future. This substitution-of-judge, or, as referred to in the bill, ``reassignment-of-case-as-of-right,'' provision mirrors similar state laws and allows litigants on both sides of a case to avoid being subjected to a particular federal judge, appointed for life, in any specific case. It might be used by litigants in a community to avoid ``forum shopping'' by the other side in a case, or to avoid a judge who is known to engage in improper courtroom behavior, who is known to be prejudiced, or who regularly exceeds judicial authority. This provision is not meant to replace appellate review of trial judges' decisions, but rather to complement appellate review by encouraging judges to fairly administer their oaths of office to uphold the Constitution. Many judges face constant reversals on appeal, but still force litigants to bear extraordinary costs before them and further bear the burden of overcoming standards of review on appeal. This provision allows litigants some freedom in ensuring that due process will be given to their case before they bear the costs associated with litigating in trial court and will encourage the judiciary to be as impartial as required by their charge. handling of capital punishment appeals The sixth reform set forth in H.R. 1252 was developed in response to the May 14, 1997, testimony of Charlotte Stout, who participated in an oversight hearing on judicial misconduct, and comments made by Representative William Delahunt of Massachusetts. Ms. Stout's daughter was raped and murdered by a man who sat on death row for 18 years as a result of filing numerous habeas petitions at the state and federal level. His federal petition was handled by a judge who delayed its consideration for four years before ordering a new trial. This same judge handles all habeas petitions in that judicial circuit, and has delayed consideration of all capital cases appealed to that circuit by a minimum of 65 years. All cases on which he has reached a final decision have resulted in an over-turning of a jury verdict to impose execution. In effect, this judge has taken it upon himself to usurp the decision of a jury to impose the death penalty. Pursuant to the bill, the chief judge of a circuit could neither handle all habeas cases by himself or herself, nor delegate the responsibility on an exclusive basis to another judge. cameras in the courtroom A seventh reform would permit a presiding judge, in his or her discretion, to permit the use of cameras during federal appellate proceedings. Based on legislation introduced by Representative Steve Chabot of Ohio, the change mirrors state efforts to provide greater public access to the workings of the judiciary. The Committee on the Judiciary also adopted an amendment offered by Representative Chabot which creates a three-year pilot program allowing televised proceedings in any U.S. District (trial-level) proceeding, subject to the discretion of the presiding judge. judicial pay An eighth reform includes parts of legislation introduced by Representative Henry Hyde of Illinois, Chairman of the Committee on the Judiciary, that would grant federal judges an annual cost-of-living adjustment unless Congress takes action to the contrary. complex disaster litigation With Representative Jim Sensenbrenner of Wisconsin as its chief advocate, a ninth reform consists of language which the House passed in the 101st and 102nd Congress, and which the full Committee on the Judiciary passed in the 103rd Congress. This language is intended to improve the ability of federal courts to handle complex multidistrict litigation arising from a single accident, such as a plane crash. Briefly, these changes would bestow original jurisdiction on federal District courts in civil actions involving minimal diversity jurisdiction among adverse parties based on a single accident where at least 25 persons have either died or sustained injuries exceeding $50,000 per person. The District court in which such cases are consolidated would retain those cases for purposes of determining liability and punitive damages, and would also determine the substantive law that would apply for findings of liability and damage. Returning individual cases to state and federal courts where they were originally filed for a determination of compensatory money damages (and where all relevant records are located) is fair to the plaintiffs or their estates. These changes should reduce litigation costs as well as the likelihood of forum-shopping in airline and other accident cases. An effective one-time determination of punitive damages would eliminate multiple or inconsistent awards arising from multiforum litigation. Agency (OPM) Appeals of Adverse Personnel Decisions The tenth and final reform of H.R. 1252, proposed by Representative Conyers of Michigan, would permit the Office of Personnel Management (OPM) to appeal final decisions of the Merit Systems Protection Board (MSPB) and final arbitral awards dealing with adverse personnel actions to the Federal Circuit within 60 days from the time [[Page H2248]] final notice of a decision is received. Currently, OPM must file its appellate briefs within 30 days, which is half the time allotted to other federal agencies. This bill is limited in scope. It reforms the procedures of the federal courts to ensure fairness in the hearing of cases without stripping jurisdiction, or reclaiming any powers granted by Congress to the lower courts. It does assure that litigants in federal courts will be entitled to fair rules of practice and procedure leading to the due process of claims. Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 5\1/2\ minutes to the distinguished gentleman from Texas (Mr. DeLay), the majority whip for the House. Mr. DeLAY. Mr. Chairman, I thank the Chairman for yielding. I want to commend the chairman of the subcommittee and the chairman of the full committee and the Members of the Committee on the Judiciary for their very hard work and effort in what I consider a much needed piece of legislation. The system of checks and balances so carefully crafted by our Founding Fathers is in serious disrepair and has been for years. This bill takes a very necessary step to bring the courts back into constitutional order. The Founding Fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of the other. I contend, quite frankly, if we read the Constitution as it originally was written and intended, the judiciary branch was supposed to be the weakest branch of the three created by the Constitution. Contrary to the opinion of the liberal legal establishment of this country, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law. They are not to make the law. When judges go further and unilaterally impose legislative remedies, they exceed the legitimate limits of power given to them by the Constitution. When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people. For instance, under the Constitution, only Congress can lay and collect taxes. But that did not stop District Judge Russell Clark from ordering tax increases from the bench. That tax increase, and 2 billion tax dollars, turned the city school district into a spending orgy, complete with editing and animation labs, greenhouses, temperature-controlled art galleries, and a model United Nations that was wired for language translation. If that is not taxation without representation, I do not know what it is. Another example of a judge tossing aside the Constitution and supplanting his own personal biases was the decision of the District Court Judge, Thelton Henderson, prohibiting the State of California from implementing the California Civil Rights Initiative, the CCRI. The CCRI simply removed the opportunity for State officials to judge people by their race and their sex, a practice that I think most Americans consider repugnant. In a ruling that turned common sense and our Constitution on its head, Justice Henderson ruled that by adopting the equal protection clause of the 14th amendment, the voters of the State of California had violated that same 14th amendment. Although judicial taxation and Judge Henderson's circumvention of the Constitution are two extreme examples of judges breaching the separation of powers, there are, of course, many, many others. Judges have created the right to die. Judges have prohibited States from declaring English as an official language. Judges have extended the right of States to withhold taxpayer-funded services from illegal aliens, all without sound constitutional basis. Now, some Federal judges have even made themselves the sovereigns of the cell blocks, micromanaging our State prisons, and forcing changes in prison operations that have resulted in the early release each year of literally hundreds of thousands of violent and/or repeat criminals out on our streets and the streets to plague our families. In 1970, not a single prison system was operating under the sweeping court orders common today. By 1990, some 508 municipalities, and over 1,200 State prisons were operating under some judicial confinement order or some consent decree. In New York City, judges have forced prison officials to require that only licensed barbers cut the hair of the prisoners; that sweetened coffee may never be served at meals for the prisoners; and a court- appointed monitor must be given a city car within one grade of the prison commissioner's car. If it were not so appalling, it would be funny. But if that is not enough, the same activist judges have also imposed prison caps, mandating the release of violent felons and drug dealers before they have even served their time. Later today, the gentleman from Pennsylvania (Mr. Murtha) and I will offer an amendment that will end this travesty of justice caused by overactive judges. Our amendment will prohibit a Federal judge from ever releasing a felon from prison because of claims of prison overcrowding. The prisoners claim of overcrowding has become a get-out-of-jail-free card. And we say no longer. No longer will these prisoners plague our families, and our cities, and in our towns. I urge my colleagues to support the Hyde bill and the DeLay-Murtha amendment. The time has come to reestablish our system of checks and balances and to restore sanity to our criminal justice system. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the ranking member of the full committee. Mr. CONYERS. Mr. Chairman, I thank the gentleman from Massachusetts for yielding to me. Mr. Chairman, I was delighted to hear the majority whip, constitutional expert in his own right, whose opinions I respect very much, and which will become very much in focus today. The gentleman from Texas (Mr. DeLay), majority whip, is the same Member of Congress who claims it is time we impeach judges whose opinions consistently ignore their constitutional role, violate their oath of office, and breach the separation of powers. {time} 1115 That is a quote. Mr. DeLAY. Mr. Chairman, will the gentleman yield? Mr. CONYERS. I yield to the gentleman from Texas. Mr. DeLAY. Does the gentleman believe that a judge should not be impeached that violates his oath of office and violates the Constitution? Mr. CONYERS. I will get to that later. Right now I am making my ow

Summary:

All articles in House section

JUDICIAL REFORM ACT OF 1998
(House of Representatives - April 23, 1998)

Text of this article available as: TXT PDF [Pages H2242-H2286] JUDICIAL REFORM ACT OF 1998 Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 408 and ask for its immediate consideration. The Clerk read the resolution, as follows: H. Res. 408 Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act of 1974 are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule. It shall be in order to consider as an original bill for the purpose of amendment under the five-minute rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill, modified by striking section 9 (and redesignating succeeding sections accordingly). Each section of that amendment in the nature of a substitute shall be considered as read. Points of order against that amendment in the nature of a substitute for failure to comply with clause 7 of rule XVI or section 303(a) of the Congressional Budget Act of 1974 are waived. During consideration of the bill for amendment, the Chairman of the Committee of the Whole may accord priority in recognition on the basis of whether the Member offering an amendment has caused it to be printed in the portion of the Congressional Record designated for that purpose in clause 6 of rule XXIII. Amendments so printed shall be considered as read. The chairman of the Committee of the Whole may: (1) postpone until a time during further consideration in the Committee of the Whole a request for a recorded vote on any amendment; and (2) reduce to five minutes the minimum time for electronic voting on any postponed question that follows another electronic vote without intervening business, provided that the minimum time for electronic voting on the first in any series of questions shall be 15 minutes. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. Any Member may demand a separate vote in the House on any amendment adopted in the Committee of the Whole to the bill or to the amendment in the nature of a substitute made in order as original text. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. The SPEAKER pro tempore (Mr. Ewing). The gentleman from Florida (Mr. Goss) is recognized for 1 hour. Mr. GOSS. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to my friend, the distinguished gentleman from Ohio (Mr. Hall), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for purpose of debate on this subject only. Mr. Speaker, House Resolution 408 is an open rule providing for the consideration of H.R. 1252, the Judicial Reform Act of 1998. The rule provides the customary 1 hour of general debate, equally divided between the chairman and ranking minority member of the Committee on the Judiciary. The rule waives points of order against the consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act, which prohibits consideration of legislation providing new budget authority, changes in revenues, or changes in the public debt for a fiscal year until the budget resolution for that year has been agreed to. The purpose of that section of the Budget Act is a sound one that we generally try to adhere to, keeping the budget process moving forward in a commonsense direction, with the budget resolution coming first and then allowing for subsequent consideration of the legislation that implements the provisions of the budget resolution. In this case, however, we are technically required to provide this waiver, but our Committee on Rules has also provided a fix for the Budget Act problem. We have done that by making in order under this rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary, modified by striking section 9 of that amendment which caused the 303(a) problem and redesignating succeeding sections accordingly. Section 9 of the amendment specifically deals with the process by which cost of living adjustments for Federal judges are implemented. The effect of that section would have been to create a new mandatory spending category in the budget, something that we tried not to do outside the normal congressional budget process. Apart from the substance of that issue relating to pay for judges, the Committee on Rules has attempted in this rule to preserve the integrity of the budget process. Mr. Speaker, the rule further provides that each section of the amendment in the nature of a substitute shall be considered as read, and it waives points of order against that amendment for failure to comply with clause 7 of rule XVI prohibiting nongermane amendments, or section 303(a) of the Congressional Budget Act, for the reasons I just explained. The rule accords priority in recognition to Members who have caused their amendments to be preprinted in the Congressional Record, assuming those amendments are in accordance with the standing rules of the House. It further provides that the chairman of the Committee of the Whole may postpone votes during consideration of the bill and reduce the voting time to 5 minutes on a postponed question if the vote follows a 15-minute vote; and, finally, as is the custom, the rule provides for one motion to recommit, with or without instructions. That explains the rule. Now, Mr. Speaker, with the exception of the technical Budget Act fix, this is a very straightforward rule. It is fair, and it is wide open. It allows all Members the chance to offer germane amendments and conduct thoughtful discussion about a very important subject. I strongly support the premise behind this bill, that it is time to control judicial activism, the so-called runaway judges on the Federal bench. This statement alone is usually enough to generate controversy in many circles, and this debate is by no means a simple one, as it involves many of the most basic tenets of our democratic system and the separation of powers. {time} 1030 I think we could all come up with anecdotal evidence that there have been problems within the Federal judiciary with judges exceeding their charter and authority. The Committee on the Judiciary has, in my view, put forth a responsible product that deals with these problems by focusing on specific practices within the Federal courts that together constitute a real threat to the rights of citizens and the prerogatives of this Congress. In my view, this legislation constitutes a measured and carefully justified response to legitimate problems. It is not simply throwing down the gauntlet. It is coming up with responsible solutions, which we will have ample opportunity to debate under an open rule. I applaud the gentleman from Illinois (Mr. Hyde), and the subcommittee [[Page H2243]] chairman, the gentleman from North Carolina (Mr. Coble) for their work on this bill. Still, I know that many Members have concerns about specific provisions of the legislation. Those Members will have their opportunity to air their concerns and propose alterations during the open debate and amendment process established by this rule. I urge support for the rule and the underlying bill. I look forward to a lively and informative debate. Mr. Speaker, I reserve the balance of my time. Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may consume. I want to thank my colleague for yielding me the time. This is an open rule. It will allow for full and fair debate on H.R. 1252, which is the bill that modifies certain procedures of the Federal courts. As my colleague from Florida described, this rule provides for 1 hour of general debate equally divided and controlled by the chairman and the ranking minority member of the Committee on the Judiciary. The rule allows amendments under the 5-minute rule, which is the normal amending process in the House. All Members on both sides of the aisle will have the opportunity to offer amendments. Judicial decisions that force government action by their nature are unpopular. If those actions were popular, then the legislature and the administrations would have already taken them. Some of those unpopular decisions have resulted in the protection of our health, safety and civil rights. In recent years, some judges have assumed broad powers traditionally reserved for the legislative and the executive branches of State and local government. There is merit in some of the criticism of these actions when the result is an antigovernment backlash that weakens support for government. But if this is a real problem, then the answer is really not this bill. I think the bill threatens to undermine the independence of the Federal judiciary and reduce efficiency. The Attorney General will recommend to the President that he veto the bill if it is passed in its current form. Mr. Speaker, even though the bill is flawed, there is nothing wrong with this rule. It is open. It should be supported. I support it. Mr. Speaker, I reserve the balance of my time. Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume. May I inquire of my colleague through the Chair if he has any speakers? We have none, and we would just as soon get on with the debate, and yield the balance of the time, if that fits with the pattern from the other side. Mr. HALL of Ohio. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Ohio. Mr. HALL of Ohio. Mr. Speaker, I had expected two speakers, but they have not shown up. Therefore, I will yield back the balance of my time. Mr. GOSS. Mr. Speaker, I would be very happy to afford the gentleman an extra minute or so if he is aware that those Members are coming. Mr. HALL of Ohio. I am not aware. I was just asked, before we started, they asked to speak on it. They have not arrived. Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill on our side. I think Members will have general debate. There will be an hour of general debate that is not going to be overfilled with requests for time. I think they can be accommodated. Mr. GOSS. Reclaiming my time, if it is my time, I understand, and we have no speakers, and we are going to yield back in about a minute, and call for the question. We are not intending to call for a recorded vote. We believe that it is an open rule, and there is no need to do that. We also agree with the distinguished gentleman from the Commonwealth of Massachusetts that there is ample debate opportunity today because of this very fair open rule that we have crafted. We are certainly looking forward to that debate, and would not want to put any impediment to it. Unfortunately, we are not quite logistically prepared to begin the debate. Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will continue to yield, I thank the gentleman. I thought I would help him because he seems to be in no great hurry. We are not waiting for the Speaker to come back from Florida again, are we, like yesterday? Mr. GOSS. Reclaiming my time, Mr. Speaker, I am delighted that the gentleman brought the Speaker's trip to Florida up. It shows the outreach that we have in this House to go to the important States in our Nation, Florida being the fourth most populace State, and a place where we will all go sooner or later, which we are very proud to represent, those of us who are there now. I believe the Speaker has returned from Florida, and has done brilliant things there. Ms. JACKSON-LEE of Texas. Mr. Speaker, I come before you today to speak to you about an important rule on an important piece of legislation. I am pleased that this rule is an open rule and that both Democrats and Republicans are able to come together on the floor of the House and offer reasonable common sense amendments that improve this bill. However, I am disturbed that the judicial pay raise amendments were not made a part of this rule. The Federal Judges do alot more than just come to work. They interpret the law and preserve justice. Increasing Federal judicial compensation is important because the Federal Judiciary is composed of men and women who give up alot of money to work in the public sector. We all know that they give up alot for this special type of public service and they should be justly compensated for it. I have an amendment that was made in order. This amendment would permit a federal court to enter an order restricting the disclosure of information obtained through discovery or an order restricting access to court records in a civil case only after making a finding of fact that such order would not restrict the disclosure of information which is relevant to the protection of public health and safety. I am glad that this rule includes my amendment but it should have included amendments that improve and increase Federal judicial compensation. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution. The previous question was ordered. The resolution was agreed to. A motion to reconsider was laid on the table. The SPEAKER pro tempore (Mr. Knollenberg). Pursuant to House Resolution 408 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 1252. The Chair designates the gentleman from California (Mr. Riggs) as Chairman of the Committee of the Whole, and requests the gentleman from Illinois (Mr. Ewing) to assume the chair temporarily. {time} 1042 In the Committee of the Whole Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes, with Mr. Ewing (Chairman pro tempore) in the Chair. The Clerk read the title of the bill. The CHAIRMAN pro tempore. Pursuant to the rule, the bill is considered as having been read the first time. Under the rule, the gentleman from North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. Frank), each will control 30 minutes. The Chair recognizes the gentleman from North Carolina (Mr. Coble). Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume. H.R. 1252, the Judicial Reform Act of 1998, is a restrained but purposeful effort to combat specific areas of abuse that exist within the Federal judiciary. The gentleman from Illinois (Mr. Hyde), as he spoke to the Committee on Rules yesterday, said this bill perhaps goes too far for some Members, not far enough for others. But that is not unlike much legislation that we consider in this hall. Before describing what the bill does, however, let me emphasize what it does not do; namely, it will not compromise the independence of the Federal judiciary, which is an indispensable attribute for that branch of the Federal Government, nor is H.R. 1252 an attempt to influence or overturn legal disputes. Above all, we most certainly are not creating a novel, more lenient standard of impeachment to remove particular judges from the Federal [[Page H2244]] bench without cause or to intimidate them with a threat of doing so. That said, the Judiciary Reform Act of 1998 is largely an amalgam of ideas developed by various Members of Congress that will curtail certain abusive practices within our Federal court system. Specifically, the bill consists of six procedural changes in furtherance of this end. In addition, the four other reforms that will improve other matters related to article 3, Federal courts. The six core revisions set forth in the bill concern the following matters: First, a featured component of the bill was initially developed by our colleague and good friend, the late Sonny Bono. It would require three judge panels to hear constitutional challenges of State laws enacted pursuant to voter referenda. Under current law, a single judge possesses the power to invalidate the results of a State-wide referendum. Second, H.R. 1252 would permit interlocutory or interim appeal of class-action certifications championed by the gentleman from Florida (Mr. Canady). This provision would enable litigants to a class-action suit to appeal a decision certifying a national class prior to the conclusion of a trial. Currently, defendants may expend a great deal of financial resources through trial only to find upon appeal that a class was improperly certified at the outset of litigation. Third, the measure infuses greater objectivity in the current process by which citizens may register complaints against Federal judges for misconduct. Present law on the subject is premised on a peer review system by judges from the same circuit. Pursuant to the change set forth in this bill before us, complaints which do not speak to the merits of a decision, or are not otherwise frivolous will be referred to a different circuit. {time} 1045 This means that truly substantive complaints will be more objectively reviewed by judges who have no personal ties to the judge who is the subject of the complaint. The gentleman from Tennessee (Mr. Bryant) and the gentleman from Indiana (Mr. Pease) contributed to this section of the bill. Fourth, H.R. 1252 would inhibit the ability of Federal courts to require States and local municipalities to raise taxes on the affected citizenry to pay for projects that the States and municipalities are unwilling to fund themselves. While a Federal court may possess the technical right under certain conditions to devise such a remedy to redress a constitutional harm, we have carefully crafted some parameters that will constrain the practice of judicial taxation. The gentleman from Illinois (Mr. Manzullo), whose district is home to a city which is subject to a judicial taxation order, contributed to this portion of the bill. Fifth, the gentleman from Florida (Mr. Canady) worked with our former colleague Dan Lungren, who presently serves as Attorney General for California, to create a procedural right for a litigant to request one time only that a different judge be assigned to his or her case. Some judges are so possessed of an injudicious temperament or are otherwise biased as to warrant this revision. Sixth, it is has come to our attention that some Federal judges are unalterably opposed to enforcing the death penalty, even to the point of dragging their feet on expeditious consideration of habeas corpus petitions to forestall execution. Based on comments made by the gentleman from Massachusetts (Mr. Delahunt), this section of the bill would prevent the chief justice of a circuit from reserving all such petitions for one judge on an exclusive basis. Mr. Chairman, there are three other items contained in the Judicial Reform Act that do not otherwise speak to abusive judicial practices but will nonetheless improve the functioning of our Federal courts. They are: One, the permitted practice of televising proceedings in our Federal appellate courts and, for a 3-year period, in our district or trial courts, suggested to at the discretion of the presiding judge; Second, the expedited consolidation of cases pertaining to complex, multi-district disaster litigation; And, third, the allowance of an additional 30 days, or a total of 60 days, for the Office of Personnel Management to appeal adverse personnel decisions consistent with appellate procedure for other Federal agencies. Again, Mr. Chairman, these provisions are straightforward and restrained in their application and will assist in promoting equity for litigants and taxpayers within the Federal court system. I urge all Members to support passage of H.R. 1252. Mr. Chairman, I reserve the balance of my time. Mr. Chairman, I ask unanimous consent that the bill be open for amendment at any point. The CHAIRMAN. That request by the gentleman may be made after general debate has concluded and the Committee begins the 5-minute rule. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Let me say, I appreciate the gentleman making the request. Because even though it cannot be acted on until the 5-minute rule begins, Members who may be interested should know it is our intention to have amendments be in order at any point so they do not have to worry about a section-by-section reading. I do not believe we have a large number of amendments. Mr. Chairman, the Subcommittee on Courts and Intellectual Property, on which I am pleased to serve with the gentleman from North Carolina (Mr. Coble), has a good deal of business which we do in a nonideological way and in a nonpartisan way, and I am very proud of that. The intellectual property jurisdiction we have is an important one, and we have had some judicial reform bills. This bill does not, however, conform to that pattern. This is an exception in that it is one on which I think we have some fairly sharp division, and the reason we have the division I think frankly stems from some frustration on the part of some of those on the other side. There are people particularly in the very conservative wing of the Republican party, which I must say has outgrown wing status. It is now at least a wing and a tail and maybe another wing and a couple of beaks. They do not like some of the things that the courts do. I believe that their problem, however, is not so much with the courts as with the Constitution. And there is not a great deal we can do about the Constitution. We try. We recently have sought on the floor, at least some have sought on the floor, to amend the Constitution with great regularity and with equal lack of success. The Congress has voted down half a dozen or more efforts to change the Constitution. Not being able to change the Constitution, the people in the conservative wing of the Republican party have decided to demonize it instead and to denounce the judges. But there is a great disconnect between the violence of the rhetoric and the actuality of the legislation. I am going to vote against this bill. I am glad that the President plans to veto it if we pass it as-is, although we could make it passable under some aspects of the bill which I think are very useful. But even if it were to pass, it would have virtually no effect on the kinds of things that people complain of. In fact, one of the most interesting facts is that, while people on the conservative side complain about this bill because they say it empowers an inappropriate form of judicial activism, it is very clear if we study this that they simply do not like the results. They simply do not like courts finding that this or that statute might not be permissible under the Constitution. Because if we look at the judges who have been judicial activists, what we find, of course, is that the most conservative justices of the Supreme Court, for example, are also the most judicially active. Justices Scalia and Thomas, the two most conservative justices, strongly supported by the conservatives, have in fact voted to invalidate more statutes, to find more acts of Congress unconstitutional than their more moderate and liberal counterparts. If in fact they think it is a terrible idea for the Supreme Court to strike down statutes, then they would be very critical of Mr. Scalia and Mr. Thomas, the Religious Freedom Restoration Act that they did not like, the Brady Bill, parts of which they did not like. There are a whole series of them. And the conservative justices are in league. [[Page H2245]] One of the most glaring examples of this came recently with regard to a series of decisions in California where judges in California found referenda unconstitutional. Now, in a couple of cases, at least in one case, a district judge found the referendum unconstitutional under affirmative action. That district judge was promptly overruled. No harm was done to the cause of the people who were against it. We went through the regular procedure. And if we listen to my Republican friends, we might get the impression that they do not like the idea of a Federal judge invalidating a popular referendum. But if we got that idea, Mr. Chairman, we would be wrong. Sometimes in an excess of their concern over a particular case, my friends on the other side overstate their allegiance to general principles. Because, in fact, when the people on the Republican Party do not like the result of a referendum, what do they do? Well, in California, they go to court and they ask a single district judge to invalidate it. Indeed, it seems to me clear that, with regard to judicial activism, my friends on the other side have essentially the same position with regards to States' rights. They are against it except when they like it. They are prepared to denounce it when it produces a result they do not like. But when it gets in the way of a result they like, then they ignore it. That is where they are on States' rights, and that is a perfectly valid viewpoint. That is, it is valid to be result-oriented. It is valid to say, I am going to hope for the right decision. What is not intellectually valid, it seems to me, is to assert adherence to a principle to which one does not, in fact, adhere. And when we talk about States' rights but are prepared to disregard States' rights and talk reform and criminal procedure and economic regulation and consumer protection, then we really forfeit our rights to talk about States' rights. And when we denounce judicial activism but Honor Justices Scalia and Thomas, our two most active justices, then it seems to me we undercut our argument. And with regard to the notion that somehow it is a terrible thing for a district court judge to invalidate a popular referendum, let me read a refutation of that view. I am reading from a legal brief. The blanket primary is not valid because it apparently was passed by a majority of Democrats and Republicans who voted in the 1996 election. Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more than can a legislature. Let me read that again correctly. ``Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more anymore than a legislature.'' Let me also now read. ``Even if the electorate could enact statutes to regulate the selection of nominees for partisan offices, it cannot do so in a way that undermines the integrity of the electoral process.'' And then quoting with approval another decision, ``Voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature. There is little significance to the fact that a law was adopted by a popular vote rather than as an act of the State legislature. Indeed, there are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' And that is a quote again from another decision. Now, where do these arguments in favor of allowing a single Federal district judge to invalidate a referendum of the people of California if it was unconstitutional come from? What radical group, what group of anti-public elitists, what sneering left-wingers, unwilling to let the people decide, put this forward? Who says that, in fact, the legislative enactment might even get more deference from a court than the people? Who are these judicial activist encouragers who so sneer at the public? They are the California Republican Party. I am quoting from the brief filed by the California Republican Party, Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. Donna Shalansky. It was filed July 28, 1997. Because the people of California dared to pass a referendum changing the way candidates are nominated for office which the Republican and Democratic Parties of California did not like. So the Republican Party of California went to court with the Democratic Party of California and said, judge, you make those people stop violating my constitutional rights. And they wrote down here that just because the people did it in a referendum does not mean anything. In fact, it may mean it is even less entitled to respect than when the people do it. {time} 1100 Of course, we have a bill on the floor that does exactly the opposite. We have a bill on the floor that says that, if a referendum is involved, we have to have a three-judge court. It just seems to me, Mr. Chairman, that there ought to be some limit to the extent to which a gap is allowed to exist between what people say they truly believe and what they do when it is important to them. So what we have here is a cry of frustration. We have the right wing not liking the fact that the court sometimes enforces constitutional rights. So they talk about all the doctrines which they, it does not seem to me, follow themselves when they are inconvenient. So they come forward with a bill which is mostly a nuisance and interference and a derogation from the efficiency of our Court system. We will be offering some amendments to try to clear that up. And absent the passage of those amendments, I hope the bill is defeated. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Illinois (Mr. Hyde), the Chairman of the House Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.) Mr. HYDE. Mr. Chairman, I will restrain myself from quoting the well- known line about a foolish consistency, because I tend to agree with the gentleman from Massachusetts (Mr. Frank). I think consistency is a virtue, and I do not have the time to point out inconsistencies on the left. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, because my good friend from Illinois and I do not always agree on the definition of virtue, so I am glad we do in this case. Mr. HYDE. Mr. Chairman, that is right, at least in this instance. But I would like to suggest that I think he proves too much when he refers to this bill as somehow hostile to the vibrancy, the vitality, the importance, the significance of the Federal judiciary. Just the opposite; it is an effort to make the Federal judiciary work better. We will have amendments here, and we will debate this issue, but I do not think there is anything in the bill that is hostile at all to the notion of the third branch of government and its very important role in the functioning of our democracy. As to the three-judge panel, somehow the gentleman from Massachusetts views that as a derogation of authority, proper authority that belongs to the courts. I would just simply suggest that the notion of setting aside by injunction a referendum that has passed through a State process where members of the State have voted in the referendum is a topic of some significance and deserves the gravity of a three-judge court rather than just one judge. I say that because we do this in the context of three-judge courts already deciding appeals from voting rights cases and reapportionment cases. I am sure the gentleman from Massachusetts supports enthusiastically the notion that three-judge courts have to hear voting rights cases. They are important. Three-judge courts ought to hear appeals on reapportionment because they are important. [[Page H2246]] We feel a State referendum is equally important. So rather than derogating from the importance of the Federal courts deciding these, we are adding some gravatas to the process by saying where an entire State has voted on an issue, that the setting aside of that should be done by a three-judge court rather than one. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for yielding to me. I would say, as our friend from North Carolina had reminded us, the original reason for a three-judge court in the voting rights case had to do with the unfortunate history of judges in the South, who did not really believe in it. I do not think that there was need for it any further, and I would not insist on maintaining it. I would say with regard to the substance of what the gentleman said, I understand his argument that there is something special about a referendum. But the California Republican Party filed a lawsuit directly contradicting that. I would ask the gentleman, do the California Republicans, who serve on the Committee on the Judiciary, have they talked to the California Republican Party and tried to enlighten them and correct this error, which they have so strongly propagated? Mr. HYDE. Mr. Chairman, I would say to my friend, the gentleman from Massachusetts, that is the one aspect of this controversy I have not researched. But I can also tell him that I will not research it. But, nonetheless, the purpose of the three-judge court is a recognition of the significance of an entire State voting on a referendum, and giving it the added dignity of a three-judge court to set aside the expressed wish of perhaps millions of people; the same as in voting rights appeals and in reapportionment. Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to yield. Mr. HYDE. Mr. Chairman, this is almost amounting to harassment, but I, nonetheless, in the mood of accommodation, yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment. Mr. COBLE. Mr. Chairman, I did not hear what the gentleman said. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment because I am not the gentleman's supervisor. I would say to the gentleman that I appreciate his talking about the relevance of respecting the wishes of millions of California voters in a referendum. I hope when the resolution condemning those same voters for voting for medical marijuana comes up that the respect that the gentleman is now showing for those California voters does not evaporate as rapidly as I fear it might. Mr. HYDE. Mr. Chairman, I yield to the gentleman's superior knowledge on marijuana. I simply would like to say that the rest of this bill deals with improvements in the Federal court system, abuses that can occur in class-action certifications, questions of judicial misconducts. Some of us feel those are better handled by a committee in another circuit rather than the circuit where the judge practices or sits. We deal with questions of courts ordering taxing bodies to raise taxes. We feel that is a violation of separation of powers. We like to help avoid getting stuck, if I may use that inelegant term, with a judge who is inappropriate for a particular party or litigant or lawyer by letting us at least change once, which we can do in every circuit court throughout the country. We deal with cameras in the courtroom handling capital punishment appeals. So this is a good bill. I do not doubt it is controversial. It is not hostile to the courts. We will have a struggle perhaps later on over judicial pay. Some people who just congenitally dislike judges will have their say, but that is for later in the day. Summary of H.R. 1252, the Judiciary Reform Act of 1998 This necessary legislation addresses one of the most disturbing problems facing our constitutional system today-- the infrequent but intolerable breach of the separation of powers by some members of the Federal judiciary. three-judge panels The first reform contained in this bill was developed originally by a valued member of the Committee on the Judiciary, the late Representative Sonny Bono of California. Recognizing the unjust effect on voting rights created by injunctions issued in California by one judge against the will of the people of the State as reflected in Propositions 187 and 209, H.R. 1252 provides that requests for injunctions in cases challenging the constitutionality of measures passed by a state referendum must be heard by a three-judge court. Like other federal voting rights legislation containing a provision providing for a hearing by a three-judge court, the Judicial Reform Act of 1998 is designed to protect voters in the exercise of their vote and to further protect the results of that vote. It requires that legislation voted upon and approved directly by the citizens of a state be afforded the protection of a three-judge court pursuant to 28 U.S.C. Sec. 2284 if an application for an injunction is brought in federal court to arrest the enforcement of the referendum on the premise that the referendum is unconstitutional. This system already applies to Voting Rights Act and reapportionment cases. In effect, where the entire populace of a state democratically exercises a direct vote on an issue, one federal judge will be able to issue an injunction preventing the enforcement of the will of the people of that state. Rather, three judges, at the trial level, according to procedures already provided by statute, will hear the application for an injunction and determine whether the requested injunction should issue. An appeal is taken directly to the Supreme Court, expediting the enforcement of the referendum if the final decision is that the referendum is constitutional. Such an expedited procedure is already provided for in other voting rights cases. It should be no different in this case, since a state is ``redistricted'' for purposes of a vote on a referendum into one voting block. The Congressional Research Service estimates that these three- judge courts would be required less than 10 times in a decade under this bill, causing a very insubstantial burden on the federal judiciary, while substantially protecting the rights of the voters of a state. This bill recognizes that state referenda reflect, more than any other process, the one-person/one-vote system, and seeks to protect a fundamental part of our national foundation. This bill will implement a fair and effective policy that preserves a proper balance in federal-state relations. Interim Appeals of Class Action Certifications The second reform contained in this bill was developed by the Chairman of the Subcommittee on the Constitution, Representative Charles Canady of Florida. It allows immediate (interlocutory) appeals of class action certifications by a federal District judge. When a District judge determines that an action may be maintained as a class action, the provisions contained in the Judicial Reform Act allow a party to that case to appeal that decision immediately to the proper Court of Appeals without delaying the progress of the underlying case. This prevents ``automatic'' certification of class actions by judges whose decisions to certify may go unchallenged because the parties have invested too many resources into the case before an appeal is allowed. This bill will also prevent abuses by attorneys who bring class action suits when they are not warranted, and provides protection to defendants who may be forced to expend unnecessary resources at trial, only to find that a class action was improperly brought against them in the first place. As a practical matter, the outcome of a class-action suit is often determined by whether the judge elects to certify a class since certifications may guarantee that a plaintiff's attorney can extract a favorable settlement, irrespective of whether the certification was proper. Complaints Against Judicial Misconduct The third reform contained in this bill was developed by another member of the Committee on the Judiciary, Representative Ed Bryant of Tennessee. It requires that a complaint brought against a federal judge be sent to a circuit other than the one in which the judge who is the object of the complaint sits for review. This will provide for a more objective review of the complaint and improve the efficacy of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. Sec. 372 (``The 1980 Act''), which established a mechanism for the filing of complaints against federal judges. Under those procedures, a complaint alleging that a federal judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may be filed with the clerk of the U.S. Court of Appeals for the circuit in which the federal judge who is the subject of the complaint sits. Under the Act, a special committee will report to the judicial council of the circuit, which will decide what action, if any, should be taken. By requiring that complaints filed under the 1980 Act be transferred to a circuit other than the circuit in which the alleged wrongdoer sits, more objectivity and accountability will exist for litigants who find themselves in need of relief from a judge who is [[Page H2247]] not properly performing his or her functions. In addition, the bill has been amended to limit out-of-circuit referrals to those cases in which a complaint is not dismissed as being incomplete, frivolous, or directly related to the merits of a decision or procedural ruling. This amendment represents an effort to respond to those critics who assert that the revision to existing complaint procedures will generate unnecessary and trivial administrative expenses for out-of- circuit judges. In other words, only ``substantive'' complaints will be referred out of circuit. judicial taxation The fourth reform contained in this bill prohibits a federal court from ``expressly directing'' or ``necessarily requiring'' that a state or municipality impose taxes on its citizenry, a function reserved to legislative bodies, for the purpose of enforcing a legal decision. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the judiciary have breached this nation's founding principle of separation of powers and undermined the concept of self-rule. In some cases, judges have designed in specific detail local school systems and public housing systems, and then ordered tax increases to finance the spending bills disguised in their judicial rulings. The most conspicuous example illustrating this problem is the ongoing case of Missouri v. Jenkins, in which the Supreme Court has issued three opinions and the court of appeals more than 20. In Jenkins, the Supreme Court ruled that while it was permissible for the lower court in the Kansas City school system to order the state or municipality to raise taxes to remedy a constitutional deprivation, it remanded and reversed the lower court decision based on the fact that the lower court lacks the authority to impose a tax itself; it must order the state or local municipality to do so. The Jenkins litigation also demonstrates that once a federal court seizes such a ``structural reform'' case, it will constantly reevaluate its progress for years until the ``constitutional deprivation'' has been cured. State and federal laws leave budget and spending authority to legislative bodies, because only a body which represents the will of the people can decide properly how to spend the people's taxes. While rulings on due process are important to protect the rights of litigants, and remedy which would force the public to pay more in taxes must come from the House of the people and not from the authority of the bench. The judiciary is neither equipped nor given the power to make such decisions. To allow otherwise is to usurp self-rule and replace it with self-appointed authority. As four justices of the United States Supreme Court have stated, the imposition of taxes by courts ``disregards fundamental precepts for the democratic control of public institutions. The power of taxation is one that the federal judiciary does not possess.'' This bill will restore the proper balance defined in the Constitution between the federal branches and federal-state relations by forbidding any U.S. District court from entering an order or approving a settlement that requires a state or one of its subdivisions to impose, increase, levy, or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law. This reform contains a narrow, multi-part exception to the general prohibition of judicially-imposed taxation. Specifically, a court may not order a state or political subdivision to impose a tax unless the court first determines by clear and convincing evidence that: (1) there are no other means available to remedy the relevant deprivation of rights or laws, and the tax is narrowly tailored and directly related to the specific constitutional deprivation or harm necessitating redress; (2) the tax will not exacerbate the deprivation intended to be remedied; (3) the tax will not result in a revenue loss for the affected subdivision; (4) the tax will not result in a depreciation of property values for the affected taxpayers; (5) plans submitted by state or local authorities will not effectively redress the relevant deprivation; and (6) the interests of state and local authorities in managing their own affairs is not usurped by the proposed tax, consistent with the Constitution. Finally, the bill specifies that the judicial tax provisions will apply to any action or proceeding pending on, or commenced on or after, the date of enactment. This was done at the behest of Representative Don Manzullo of Illinois, whose district is home to Rockford, a city which is subject to a court taxation order that has devastated local communities. Reassignment of Cases The fifth reform contained in this bill was also developed by Representative Canady. It allows all parties on one side of a civil case brought in federal District court to agree, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. Each side of the case may exercise this option only once. Under the provision, a motion to reassign must be made not later than 20 days after the notice of original assignment of the case is given. Because some critics believe the reassignment device might encourage forum-shopping and attendant delay, its application will be limited to the 21 largest federal judicial districts (each containing over 10 judges to allow a random reassignment) over a five-year period, thereby allowing Congress to evaluate its effects and to determine whether it ought to be extended to all districts and perpetuated in the future. This substitution-of-judge, or, as referred to in the bill, ``reassignment-of-case-as-of-right,'' provision mirrors similar state laws and allows litigants on both sides of a case to avoid being subjected to a particular federal judge, appointed for life, in any specific case. It might be used by litigants in a community to avoid ``forum shopping'' by the other side in a case, or to avoid a judge who is known to engage in improper courtroom behavior, who is known to be prejudiced, or who regularly exceeds judicial authority. This provision is not meant to replace appellate review of trial judges' decisions, but rather to complement appellate review by encouraging judges to fairly administer their oaths of office to uphold the Constitution. Many judges face constant reversals on appeal, but still force litigants to bear extraordinary costs before them and further bear the burden of overcoming standards of review on appeal. This provision allows litigants some freedom in ensuring that due process will be given to their case before they bear the costs associated with litigating in trial court and will encourage the judiciary to be as impartial as required by their charge. handling of capital punishment appeals The sixth reform set forth in H.R. 1252 was developed in response to the May 14, 1997, testimony of Charlotte Stout, who participated in an oversight hearing on judicial misconduct, and comments made by Representative William Delahunt of Massachusetts. Ms. Stout's daughter was raped and murdered by a man who sat on death row for 18 years as a result of filing numerous habeas petitions at the state and federal level. His federal petition was handled by a judge who delayed its consideration for four years before ordering a new trial. This same judge handles all habeas petitions in that judicial circuit, and has delayed consideration of all capital cases appealed to that circuit by a minimum of 65 years. All cases on which he has reached a final decision have resulted in an over-turning of a jury verdict to impose execution. In effect, this judge has taken it upon himself to usurp the decision of a jury to impose the death penalty. Pursuant to the bill, the chief judge of a circuit could neither handle all habeas cases by himself or herself, nor delegate the responsibility on an exclusive basis to another judge. cameras in the courtroom A seventh reform would permit a presiding judge, in his or her discretion, to permit the use of cameras during federal appellate proceedings. Based on legislation introduced by Representative Steve Chabot of Ohio, the change mirrors state efforts to provide greater public access to the workings of the judiciary. The Committee on the Judiciary also adopted an amendment offered by Representative Chabot which creates a three-year pilot program allowing televised proceedings in any U.S. District (trial-level) proceeding, subject to the discretion of the presiding judge. judicial pay An eighth reform includes parts of legislation introduced by Representative Henry Hyde of Illinois, Chairman of the Committee on the Judiciary, that would grant federal judges an annual cost-of-living adjustment unless Congress takes action to the contrary. complex disaster litigation With Representative Jim Sensenbrenner of Wisconsin as its chief advocate, a ninth reform consists of language which the House passed in the 101st and 102nd Congress, and which the full Committee on the Judiciary passed in the 103rd Congress. This language is intended to improve the ability of federal courts to handle complex multidistrict litigation arising from a single accident, such as a plane crash. Briefly, these changes would bestow original jurisdiction on federal District courts in civil actions involving minimal diversity jurisdiction among adverse parties based on a single accident where at least 25 persons have either died or sustained injuries exceeding $50,000 per person. The District court in which such cases are consolidated would retain those cases for purposes of determining liability and punitive damages, and would also determine the substantive law that would apply for findings of liability and damage. Returning individual cases to state and federal courts where they were originally filed for a determination of compensatory money damages (and where all relevant records are located) is fair to the plaintiffs or their estates. These changes should reduce litigation costs as well as the likelihood of forum-shopping in airline and other accident cases. An effective one-time determination of punitive damages would eliminate multiple or inconsistent awards arising from multiforum litigation. Agency (OPM) Appeals of Adverse Personnel Decisions The tenth and final reform of H.R. 1252, proposed by Representative Conyers of Michigan, would permit the Office of Personnel Management (OPM) to appeal final decisions of the Merit Systems Protection Board (MSPB) and final arbitral awards dealing with adverse personnel actions to the Federal Circuit within 60 days from the time [[Page H2248]] final notice of a decision is received. Currently, OPM must file its appellate briefs within 30 days, which is half the time allotted to other federal agencies. This bill is limited in scope. It reforms the procedures of the federal courts to ensure fairness in the hearing of cases without stripping jurisdiction, or reclaiming any powers granted by Congress to the lower courts. It does assure that litigants in federal courts will be entitled to fair rules of practice and procedure leading to the due process of claims. Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 5\1/2\ minutes to the distinguished gentleman from Texas (Mr. DeLay), the majority whip for the House. Mr. DeLAY. Mr. Chairman, I thank the Chairman for yielding. I want to commend the chairman of the subcommittee and the chairman of the full committee and the Members of the Committee on the Judiciary for their very hard work and effort in what I consider a much needed piece of legislation. The system of checks and balances so carefully crafted by our Founding Fathers is in serious disrepair and has been for years. This bill takes a very necessary step to bring the courts back into constitutional order. The Founding Fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of the other. I contend, quite frankly, if we read the Constitution as it originally was written and intended, the judiciary branch was supposed to be the weakest branch of the three created by the Constitution. Contrary to the opinion of the liberal legal establishment of this country, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law. They are not to make the law. When judges go further and unilaterally impose legislative remedies, they exceed the legitimate limits of power given to them by the Constitution. When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people. For instance, under the Constitution, only Congress can lay and collect taxes. But that did not stop District Judge Russell Clark from ordering tax increases from the bench. That tax increase, and 2 billion tax dollars, turned the city school district into a spending orgy, complete with editing and animation labs, greenhouses, temperature-controlled art galleries, and a model United Nations that was wired for language translation. If that is not taxation without representation, I do not know what it is. Another example of a judge tossing aside the Constitution and supplanting his own personal biases was the decision of the District Court Judge, Thelton Henderson, prohibiting the State of California from implementing the California Civil Rights Initiative, the CCRI. The CCRI simply removed the opportunity for State officials to judge people by their race and their sex, a practice that I think most Americans consider repugnant. In a ruling that turned common sense and our Constitution on its head, Justice Henderson ruled that by adopting the equal protection clause of the 14th amendment, the voters of the State of California had violated that same 14th amendment. Although judicial taxation and Judge Henderson's circumvention of the Constitution are two extreme examples of judges breaching the separation of powers, there are, of course, many, many others. Judges have created the right to die. Judges have prohibited States from declaring English as an official language. Judges have extended the right of States to withhold taxpayer-funded services from illegal aliens, all without sound constitutional basis. Now, some Federal judges have even made themselves the sovereigns of the cell blocks, micromanaging our State prisons, and forcing changes in prison operations that have resulted in the early release each year of literally hundreds of thousands of violent and/or repeat criminals out on our streets and the streets to plague our families. In 1970, not a single prison system was operating under the sweeping court orders common today. By 1990, some 508 municipalities, and over 1,200 State prisons were operating under some judicial confinement order or some consent decree. In New York City, judges have forced prison officials to require that only licensed barbers cut the hair of the prisoners; that sweetened coffee may never be served at meals for the prisoners; and a court- appointed monitor must be given a city car within one grade of the prison commissioner's car. If it were not so appalling, it would be funny. But if that is not enough, the same activist judges have also imposed prison caps, mandating the release of violent felons and drug dealers before they have even served their time. Later today, the gentleman from Pennsylvania (Mr. Murtha) and I will offer an amendment that will end this travesty of justice caused by overactive judges. Our amendment will prohibit a Federal judge from ever releasing a felon from prison because of claims of prison overcrowding. The prisoners claim of overcrowding has become a get-out-of-jail-free card. And we say no longer. No longer will these prisoners plague our families, and our cities, and in our towns. I urge my colleagues to support the Hyde bill and the DeLay-Murtha amendment. The time has come to reestablish our system of checks and balances and to restore sanity to our criminal justice system. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the ranking member of the full committee. Mr. CONYERS. Mr. Chairman, I thank the gentleman from Massachusetts for yielding to me. Mr. Chairman, I was delighted to hear the majority whip, constitutional expert in his own right, whose opinions I respect very much, and which will become very much in focus today. The gentleman from Texas (Mr. DeLay), majority whip, is the same Member of Congress who claims it is time we impeach judges whose opinions consistently ignore their constitutional role, violate their oath of office, and breach the separation of powers. {time} 1115 That is a quote. Mr. DeLAY. Mr. Chairman, will the gentleman yield? Mr. CONYERS. I yield to the gentleman from Texas. Mr. DeLAY. Does the gentleman believe that a judge should not be impeached that violates his oath of office and violates the Constitution? Mr. CONYERS. I will get to that later. Right now I am making my own present

Major Actions:

All articles in House section

JUDICIAL REFORM ACT OF 1998
(House of Representatives - April 23, 1998)

Text of this article available as: TXT PDF [Pages H2242-H2286] JUDICIAL REFORM ACT OF 1998 Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 408 and ask for its immediate consideration. The Clerk read the resolution, as follows: H. Res. 408 Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 1(b) of rule XXIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes. The first reading of the bill shall be dispensed with. Points of order against consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act of 1974 are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. After general debate the bill shall be considered for amendment under the five-minute rule. It shall be in order to consider as an original bill for the purpose of amendment under the five-minute rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill, modified by striking section 9 (and redesignating succeeding sections accordingly). Each section of that amendment in the nature of a substitute shall be considered as read. Points of order against that amendment in the nature of a substitute for failure to comply with clause 7 of rule XVI or section 303(a) of the Congressional Budget Act of 1974 are waived. During consideration of the bill for amendment, the Chairman of the Committee of the Whole may accord priority in recognition on the basis of whether the Member offering an amendment has caused it to be printed in the portion of the Congressional Record designated for that purpose in clause 6 of rule XXIII. Amendments so printed shall be considered as read. The chairman of the Committee of the Whole may: (1) postpone until a time during further consideration in the Committee of the Whole a request for a recorded vote on any amendment; and (2) reduce to five minutes the minimum time for electronic voting on any postponed question that follows another electronic vote without intervening business, provided that the minimum time for electronic voting on the first in any series of questions shall be 15 minutes. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. Any Member may demand a separate vote in the House on any amendment adopted in the Committee of the Whole to the bill or to the amendment in the nature of a substitute made in order as original text. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. The SPEAKER pro tempore (Mr. Ewing). The gentleman from Florida (Mr. Goss) is recognized for 1 hour. Mr. GOSS. Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to my friend, the distinguished gentleman from Ohio (Mr. Hall), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for purpose of debate on this subject only. Mr. Speaker, House Resolution 408 is an open rule providing for the consideration of H.R. 1252, the Judicial Reform Act of 1998. The rule provides the customary 1 hour of general debate, equally divided between the chairman and ranking minority member of the Committee on the Judiciary. The rule waives points of order against the consideration of the bill for failure to comply with section 303(a) of the Congressional Budget Act, which prohibits consideration of legislation providing new budget authority, changes in revenues, or changes in the public debt for a fiscal year until the budget resolution for that year has been agreed to. The purpose of that section of the Budget Act is a sound one that we generally try to adhere to, keeping the budget process moving forward in a commonsense direction, with the budget resolution coming first and then allowing for subsequent consideration of the legislation that implements the provisions of the budget resolution. In this case, however, we are technically required to provide this waiver, but our Committee on Rules has also provided a fix for the Budget Act problem. We have done that by making in order under this rule the amendment in the nature of a substitute recommended by the Committee on the Judiciary, modified by striking section 9 of that amendment which caused the 303(a) problem and redesignating succeeding sections accordingly. Section 9 of the amendment specifically deals with the process by which cost of living adjustments for Federal judges are implemented. The effect of that section would have been to create a new mandatory spending category in the budget, something that we tried not to do outside the normal congressional budget process. Apart from the substance of that issue relating to pay for judges, the Committee on Rules has attempted in this rule to preserve the integrity of the budget process. Mr. Speaker, the rule further provides that each section of the amendment in the nature of a substitute shall be considered as read, and it waives points of order against that amendment for failure to comply with clause 7 of rule XVI prohibiting nongermane amendments, or section 303(a) of the Congressional Budget Act, for the reasons I just explained. The rule accords priority in recognition to Members who have caused their amendments to be preprinted in the Congressional Record, assuming those amendments are in accordance with the standing rules of the House. It further provides that the chairman of the Committee of the Whole may postpone votes during consideration of the bill and reduce the voting time to 5 minutes on a postponed question if the vote follows a 15-minute vote; and, finally, as is the custom, the rule provides for one motion to recommit, with or without instructions. That explains the rule. Now, Mr. Speaker, with the exception of the technical Budget Act fix, this is a very straightforward rule. It is fair, and it is wide open. It allows all Members the chance to offer germane amendments and conduct thoughtful discussion about a very important subject. I strongly support the premise behind this bill, that it is time to control judicial activism, the so-called runaway judges on the Federal bench. This statement alone is usually enough to generate controversy in many circles, and this debate is by no means a simple one, as it involves many of the most basic tenets of our democratic system and the separation of powers. {time} 1030 I think we could all come up with anecdotal evidence that there have been problems within the Federal judiciary with judges exceeding their charter and authority. The Committee on the Judiciary has, in my view, put forth a responsible product that deals with these problems by focusing on specific practices within the Federal courts that together constitute a real threat to the rights of citizens and the prerogatives of this Congress. In my view, this legislation constitutes a measured and carefully justified response to legitimate problems. It is not simply throwing down the gauntlet. It is coming up with responsible solutions, which we will have ample opportunity to debate under an open rule. I applaud the gentleman from Illinois (Mr. Hyde), and the subcommittee [[Page H2243]] chairman, the gentleman from North Carolina (Mr. Coble) for their work on this bill. Still, I know that many Members have concerns about specific provisions of the legislation. Those Members will have their opportunity to air their concerns and propose alterations during the open debate and amendment process established by this rule. I urge support for the rule and the underlying bill. I look forward to a lively and informative debate. Mr. Speaker, I reserve the balance of my time. Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may consume. I want to thank my colleague for yielding me the time. This is an open rule. It will allow for full and fair debate on H.R. 1252, which is the bill that modifies certain procedures of the Federal courts. As my colleague from Florida described, this rule provides for 1 hour of general debate equally divided and controlled by the chairman and the ranking minority member of the Committee on the Judiciary. The rule allows amendments under the 5-minute rule, which is the normal amending process in the House. All Members on both sides of the aisle will have the opportunity to offer amendments. Judicial decisions that force government action by their nature are unpopular. If those actions were popular, then the legislature and the administrations would have already taken them. Some of those unpopular decisions have resulted in the protection of our health, safety and civil rights. In recent years, some judges have assumed broad powers traditionally reserved for the legislative and the executive branches of State and local government. There is merit in some of the criticism of these actions when the result is an antigovernment backlash that weakens support for government. But if this is a real problem, then the answer is really not this bill. I think the bill threatens to undermine the independence of the Federal judiciary and reduce efficiency. The Attorney General will recommend to the President that he veto the bill if it is passed in its current form. Mr. Speaker, even though the bill is flawed, there is nothing wrong with this rule. It is open. It should be supported. I support it. Mr. Speaker, I reserve the balance of my time. Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume. May I inquire of my colleague through the Chair if he has any speakers? We have none, and we would just as soon get on with the debate, and yield the balance of the time, if that fits with the pattern from the other side. Mr. HALL of Ohio. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Ohio. Mr. HALL of Ohio. Mr. Speaker, I had expected two speakers, but they have not shown up. Therefore, I will yield back the balance of my time. Mr. GOSS. Mr. Speaker, I would be very happy to afford the gentleman an extra minute or so if he is aware that those Members are coming. Mr. HALL of Ohio. I am not aware. I was just asked, before we started, they asked to speak on it. They have not arrived. Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield? Mr. GOSS. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill on our side. I think Members will have general debate. There will be an hour of general debate that is not going to be overfilled with requests for time. I think they can be accommodated. Mr. GOSS. Reclaiming my time, if it is my time, I understand, and we have no speakers, and we are going to yield back in about a minute, and call for the question. We are not intending to call for a recorded vote. We believe that it is an open rule, and there is no need to do that. We also agree with the distinguished gentleman from the Commonwealth of Massachusetts that there is ample debate opportunity today because of this very fair open rule that we have crafted. We are certainly looking forward to that debate, and would not want to put any impediment to it. Unfortunately, we are not quite logistically prepared to begin the debate. Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will continue to yield, I thank the gentleman. I thought I would help him because he seems to be in no great hurry. We are not waiting for the Speaker to come back from Florida again, are we, like yesterday? Mr. GOSS. Reclaiming my time, Mr. Speaker, I am delighted that the gentleman brought the Speaker's trip to Florida up. It shows the outreach that we have in this House to go to the important States in our Nation, Florida being the fourth most populace State, and a place where we will all go sooner or later, which we are very proud to represent, those of us who are there now. I believe the Speaker has returned from Florida, and has done brilliant things there. Ms. JACKSON-LEE of Texas. Mr. Speaker, I come before you today to speak to you about an important rule on an important piece of legislation. I am pleased that this rule is an open rule and that both Democrats and Republicans are able to come together on the floor of the House and offer reasonable common sense amendments that improve this bill. However, I am disturbed that the judicial pay raise amendments were not made a part of this rule. The Federal Judges do alot more than just come to work. They interpret the law and preserve justice. Increasing Federal judicial compensation is important because the Federal Judiciary is composed of men and women who give up alot of money to work in the public sector. We all know that they give up alot for this special type of public service and they should be justly compensated for it. I have an amendment that was made in order. This amendment would permit a federal court to enter an order restricting the disclosure of information obtained through discovery or an order restricting access to court records in a civil case only after making a finding of fact that such order would not restrict the disclosure of information which is relevant to the protection of public health and safety. I am glad that this rule includes my amendment but it should have included amendments that improve and increase Federal judicial compensation. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution. The previous question was ordered. The resolution was agreed to. A motion to reconsider was laid on the table. The SPEAKER pro tempore (Mr. Knollenberg). Pursuant to House Resolution 408 and rule XXIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the consideration of the bill, H.R. 1252. The Chair designates the gentleman from California (Mr. Riggs) as Chairman of the Committee of the Whole, and requests the gentleman from Illinois (Mr. Ewing) to assume the chair temporarily. {time} 1042 In the Committee of the Whole Accordingly the House resolved itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 1252) to modify the procedures of the Federal courts in certain matters, and for other purposes, with Mr. Ewing (Chairman pro tempore) in the Chair. The Clerk read the title of the bill. The CHAIRMAN pro tempore. Pursuant to the rule, the bill is considered as having been read the first time. Under the rule, the gentleman from North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. Frank), each will control 30 minutes. The Chair recognizes the gentleman from North Carolina (Mr. Coble). Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume. H.R. 1252, the Judicial Reform Act of 1998, is a restrained but purposeful effort to combat specific areas of abuse that exist within the Federal judiciary. The gentleman from Illinois (Mr. Hyde), as he spoke to the Committee on Rules yesterday, said this bill perhaps goes too far for some Members, not far enough for others. But that is not unlike much legislation that we consider in this hall. Before describing what the bill does, however, let me emphasize what it does not do; namely, it will not compromise the independence of the Federal judiciary, which is an indispensable attribute for that branch of the Federal Government, nor is H.R. 1252 an attempt to influence or overturn legal disputes. Above all, we most certainly are not creating a novel, more lenient standard of impeachment to remove particular judges from the Federal [[Page H2244]] bench without cause or to intimidate them with a threat of doing so. That said, the Judiciary Reform Act of 1998 is largely an amalgam of ideas developed by various Members of Congress that will curtail certain abusive practices within our Federal court system. Specifically, the bill consists of six procedural changes in furtherance of this end. In addition, the four other reforms that will improve other matters related to article 3, Federal courts. The six core revisions set forth in the bill concern the following matters: First, a featured component of the bill was initially developed by our colleague and good friend, the late Sonny Bono. It would require three judge panels to hear constitutional challenges of State laws enacted pursuant to voter referenda. Under current law, a single judge possesses the power to invalidate the results of a State-wide referendum. Second, H.R. 1252 would permit interlocutory or interim appeal of class-action certifications championed by the gentleman from Florida (Mr. Canady). This provision would enable litigants to a class-action suit to appeal a decision certifying a national class prior to the conclusion of a trial. Currently, defendants may expend a great deal of financial resources through trial only to find upon appeal that a class was improperly certified at the outset of litigation. Third, the measure infuses greater objectivity in the current process by which citizens may register complaints against Federal judges for misconduct. Present law on the subject is premised on a peer review system by judges from the same circuit. Pursuant to the change set forth in this bill before us, complaints which do not speak to the merits of a decision, or are not otherwise frivolous will be referred to a different circuit. {time} 1045 This means that truly substantive complaints will be more objectively reviewed by judges who have no personal ties to the judge who is the subject of the complaint. The gentleman from Tennessee (Mr. Bryant) and the gentleman from Indiana (Mr. Pease) contributed to this section of the bill. Fourth, H.R. 1252 would inhibit the ability of Federal courts to require States and local municipalities to raise taxes on the affected citizenry to pay for projects that the States and municipalities are unwilling to fund themselves. While a Federal court may possess the technical right under certain conditions to devise such a remedy to redress a constitutional harm, we have carefully crafted some parameters that will constrain the practice of judicial taxation. The gentleman from Illinois (Mr. Manzullo), whose district is home to a city which is subject to a judicial taxation order, contributed to this portion of the bill. Fifth, the gentleman from Florida (Mr. Canady) worked with our former colleague Dan Lungren, who presently serves as Attorney General for California, to create a procedural right for a litigant to request one time only that a different judge be assigned to his or her case. Some judges are so possessed of an injudicious temperament or are otherwise biased as to warrant this revision. Sixth, it is has come to our attention that some Federal judges are unalterably opposed to enforcing the death penalty, even to the point of dragging their feet on expeditious consideration of habeas corpus petitions to forestall execution. Based on comments made by the gentleman from Massachusetts (Mr. Delahunt), this section of the bill would prevent the chief justice of a circuit from reserving all such petitions for one judge on an exclusive basis. Mr. Chairman, there are three other items contained in the Judicial Reform Act that do not otherwise speak to abusive judicial practices but will nonetheless improve the functioning of our Federal courts. They are: One, the permitted practice of televising proceedings in our Federal appellate courts and, for a 3-year period, in our district or trial courts, suggested to at the discretion of the presiding judge; Second, the expedited consolidation of cases pertaining to complex, multi-district disaster litigation; And, third, the allowance of an additional 30 days, or a total of 60 days, for the Office of Personnel Management to appeal adverse personnel decisions consistent with appellate procedure for other Federal agencies. Again, Mr. Chairman, these provisions are straightforward and restrained in their application and will assist in promoting equity for litigants and taxpayers within the Federal court system. I urge all Members to support passage of H.R. 1252. Mr. Chairman, I reserve the balance of my time. Mr. Chairman, I ask unanimous consent that the bill be open for amendment at any point. The CHAIRMAN. That request by the gentleman may be made after general debate has concluded and the Committee begins the 5-minute rule. Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Let me say, I appreciate the gentleman making the request. Because even though it cannot be acted on until the 5-minute rule begins, Members who may be interested should know it is our intention to have amendments be in order at any point so they do not have to worry about a section-by-section reading. I do not believe we have a large number of amendments. Mr. Chairman, the Subcommittee on Courts and Intellectual Property, on which I am pleased to serve with the gentleman from North Carolina (Mr. Coble), has a good deal of business which we do in a nonideological way and in a nonpartisan way, and I am very proud of that. The intellectual property jurisdiction we have is an important one, and we have had some judicial reform bills. This bill does not, however, conform to that pattern. This is an exception in that it is one on which I think we have some fairly sharp division, and the reason we have the division I think frankly stems from some frustration on the part of some of those on the other side. There are people particularly in the very conservative wing of the Republican party, which I must say has outgrown wing status. It is now at least a wing and a tail and maybe another wing and a couple of beaks. They do not like some of the things that the courts do. I believe that their problem, however, is not so much with the courts as with the Constitution. And there is not a great deal we can do about the Constitution. We try. We recently have sought on the floor, at least some have sought on the floor, to amend the Constitution with great regularity and with equal lack of success. The Congress has voted down half a dozen or more efforts to change the Constitution. Not being able to change the Constitution, the people in the conservative wing of the Republican party have decided to demonize it instead and to denounce the judges. But there is a great disconnect between the violence of the rhetoric and the actuality of the legislation. I am going to vote against this bill. I am glad that the President plans to veto it if we pass it as-is, although we could make it passable under some aspects of the bill which I think are very useful. But even if it were to pass, it would have virtually no effect on the kinds of things that people complain of. In fact, one of the most interesting facts is that, while people on the conservative side complain about this bill because they say it empowers an inappropriate form of judicial activism, it is very clear if we study this that they simply do not like the results. They simply do not like courts finding that this or that statute might not be permissible under the Constitution. Because if we look at the judges who have been judicial activists, what we find, of course, is that the most conservative justices of the Supreme Court, for example, are also the most judicially active. Justices Scalia and Thomas, the two most conservative justices, strongly supported by the conservatives, have in fact voted to invalidate more statutes, to find more acts of Congress unconstitutional than their more moderate and liberal counterparts. If in fact they think it is a terrible idea for the Supreme Court to strike down statutes, then they would be very critical of Mr. Scalia and Mr. Thomas, the Religious Freedom Restoration Act that they did not like, the Brady Bill, parts of which they did not like. There are a whole series of them. And the conservative justices are in league. [[Page H2245]] One of the most glaring examples of this came recently with regard to a series of decisions in California where judges in California found referenda unconstitutional. Now, in a couple of cases, at least in one case, a district judge found the referendum unconstitutional under affirmative action. That district judge was promptly overruled. No harm was done to the cause of the people who were against it. We went through the regular procedure. And if we listen to my Republican friends, we might get the impression that they do not like the idea of a Federal judge invalidating a popular referendum. But if we got that idea, Mr. Chairman, we would be wrong. Sometimes in an excess of their concern over a particular case, my friends on the other side overstate their allegiance to general principles. Because, in fact, when the people on the Republican Party do not like the result of a referendum, what do they do? Well, in California, they go to court and they ask a single district judge to invalidate it. Indeed, it seems to me clear that, with regard to judicial activism, my friends on the other side have essentially the same position with regards to States' rights. They are against it except when they like it. They are prepared to denounce it when it produces a result they do not like. But when it gets in the way of a result they like, then they ignore it. That is where they are on States' rights, and that is a perfectly valid viewpoint. That is, it is valid to be result-oriented. It is valid to say, I am going to hope for the right decision. What is not intellectually valid, it seems to me, is to assert adherence to a principle to which one does not, in fact, adhere. And when we talk about States' rights but are prepared to disregard States' rights and talk reform and criminal procedure and economic regulation and consumer protection, then we really forfeit our rights to talk about States' rights. And when we denounce judicial activism but Honor Justices Scalia and Thomas, our two most active justices, then it seems to me we undercut our argument. And with regard to the notion that somehow it is a terrible thing for a district court judge to invalidate a popular referendum, let me read a refutation of that view. I am reading from a legal brief. The blanket primary is not valid because it apparently was passed by a majority of Democrats and Republicans who voted in the 1996 election. Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more than can a legislature. Let me read that again correctly. ``Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more anymore than a legislature.'' Let me also now read. ``Even if the electorate could enact statutes to regulate the selection of nominees for partisan offices, it cannot do so in a way that undermines the integrity of the electoral process.'' And then quoting with approval another decision, ``Voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature. There is little significance to the fact that a law was adopted by a popular vote rather than as an act of the State legislature. Indeed, there are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' And that is a quote again from another decision. Now, where do these arguments in favor of allowing a single Federal district judge to invalidate a referendum of the people of California if it was unconstitutional come from? What radical group, what group of anti-public elitists, what sneering left-wingers, unwilling to let the people decide, put this forward? Who says that, in fact, the legislative enactment might even get more deference from a court than the people? Who are these judicial activist encouragers who so sneer at the public? They are the California Republican Party. I am quoting from the brief filed by the California Republican Party, Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. Donna Shalansky. It was filed July 28, 1997. Because the people of California dared to pass a referendum changing the way candidates are nominated for office which the Republican and Democratic Parties of California did not like. So the Republican Party of California went to court with the Democratic Party of California and said, judge, you make those people stop violating my constitutional rights. And they wrote down here that just because the people did it in a referendum does not mean anything. In fact, it may mean it is even less entitled to respect than when the people do it. {time} 1100 Of course, we have a bill on the floor that does exactly the opposite. We have a bill on the floor that says that, if a referendum is involved, we have to have a three-judge court. It just seems to me, Mr. Chairman, that there ought to be some limit to the extent to which a gap is allowed to exist between what people say they truly believe and what they do when it is important to them. So what we have here is a cry of frustration. We have the right wing not liking the fact that the court sometimes enforces constitutional rights. So they talk about all the doctrines which they, it does not seem to me, follow themselves when they are inconvenient. So they come forward with a bill which is mostly a nuisance and interference and a derogation from the efficiency of our Court system. We will be offering some amendments to try to clear that up. And absent the passage of those amendments, I hope the bill is defeated. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 7 minutes to the distinguished gentleman from Illinois (Mr. Hyde), the Chairman of the House Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.) Mr. HYDE. Mr. Chairman, I will restrain myself from quoting the well- known line about a foolish consistency, because I tend to agree with the gentleman from Massachusetts (Mr. Frank). I think consistency is a virtue, and I do not have the time to point out inconsistencies on the left. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, because my good friend from Illinois and I do not always agree on the definition of virtue, so I am glad we do in this case. Mr. HYDE. Mr. Chairman, that is right, at least in this instance. But I would like to suggest that I think he proves too much when he refers to this bill as somehow hostile to the vibrancy, the vitality, the importance, the significance of the Federal judiciary. Just the opposite; it is an effort to make the Federal judiciary work better. We will have amendments here, and we will debate this issue, but I do not think there is anything in the bill that is hostile at all to the notion of the third branch of government and its very important role in the functioning of our democracy. As to the three-judge panel, somehow the gentleman from Massachusetts views that as a derogation of authority, proper authority that belongs to the courts. I would just simply suggest that the notion of setting aside by injunction a referendum that has passed through a State process where members of the State have voted in the referendum is a topic of some significance and deserves the gravity of a three-judge court rather than just one judge. I say that because we do this in the context of three-judge courts already deciding appeals from voting rights cases and reapportionment cases. I am sure the gentleman from Massachusetts supports enthusiastically the notion that three-judge courts have to hear voting rights cases. They are important. Three-judge courts ought to hear appeals on reapportionment because they are important. [[Page H2246]] We feel a State referendum is equally important. So rather than derogating from the importance of the Federal courts deciding these, we are adding some gravatas to the process by saying where an entire State has voted on an issue, that the setting aside of that should be done by a three-judge court rather than one. Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield? Mr. HYDE. I yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for yielding to me. I would say, as our friend from North Carolina had reminded us, the original reason for a three-judge court in the voting rights case had to do with the unfortunate history of judges in the South, who did not really believe in it. I do not think that there was need for it any further, and I would not insist on maintaining it. I would say with regard to the substance of what the gentleman said, I understand his argument that there is something special about a referendum. But the California Republican Party filed a lawsuit directly contradicting that. I would ask the gentleman, do the California Republicans, who serve on the Committee on the Judiciary, have they talked to the California Republican Party and tried to enlighten them and correct this error, which they have so strongly propagated? Mr. HYDE. Mr. Chairman, I would say to my friend, the gentleman from Massachusetts, that is the one aspect of this controversy I have not researched. But I can also tell him that I will not research it. But, nonetheless, the purpose of the three-judge court is a recognition of the significance of an entire State voting on a referendum, and giving it the added dignity of a three-judge court to set aside the expressed wish of perhaps millions of people; the same as in voting rights appeals and in reapportionment. Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to yield. Mr. HYDE. Mr. Chairman, this is almost amounting to harassment, but I, nonetheless, in the mood of accommodation, yield to the gentleman from Massachusetts. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment. Mr. COBLE. Mr. Chairman, I did not hear what the gentleman said. Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment because I am not the gentleman's supervisor. I would say to the gentleman that I appreciate his talking about the relevance of respecting the wishes of millions of California voters in a referendum. I hope when the resolution condemning those same voters for voting for medical marijuana comes up that the respect that the gentleman is now showing for those California voters does not evaporate as rapidly as I fear it might. Mr. HYDE. Mr. Chairman, I yield to the gentleman's superior knowledge on marijuana. I simply would like to say that the rest of this bill deals with improvements in the Federal court system, abuses that can occur in class-action certifications, questions of judicial misconducts. Some of us feel those are better handled by a committee in another circuit rather than the circuit where the judge practices or sits. We deal with questions of courts ordering taxing bodies to raise taxes. We feel that is a violation of separation of powers. We like to help avoid getting stuck, if I may use that inelegant term, with a judge who is inappropriate for a particular party or litigant or lawyer by letting us at least change once, which we can do in every circuit court throughout the country. We deal with cameras in the courtroom handling capital punishment appeals. So this is a good bill. I do not doubt it is controversial. It is not hostile to the courts. We will have a struggle perhaps later on over judicial pay. Some people who just congenitally dislike judges will have their say, but that is for later in the day. Summary of H.R. 1252, the Judiciary Reform Act of 1998 This necessary legislation addresses one of the most disturbing problems facing our constitutional system today-- the infrequent but intolerable breach of the separation of powers by some members of the Federal judiciary. three-judge panels The first reform contained in this bill was developed originally by a valued member of the Committee on the Judiciary, the late Representative Sonny Bono of California. Recognizing the unjust effect on voting rights created by injunctions issued in California by one judge against the will of the people of the State as reflected in Propositions 187 and 209, H.R. 1252 provides that requests for injunctions in cases challenging the constitutionality of measures passed by a state referendum must be heard by a three-judge court. Like other federal voting rights legislation containing a provision providing for a hearing by a three-judge court, the Judicial Reform Act of 1998 is designed to protect voters in the exercise of their vote and to further protect the results of that vote. It requires that legislation voted upon and approved directly by the citizens of a state be afforded the protection of a three-judge court pursuant to 28 U.S.C. Sec. 2284 if an application for an injunction is brought in federal court to arrest the enforcement of the referendum on the premise that the referendum is unconstitutional. This system already applies to Voting Rights Act and reapportionment cases. In effect, where the entire populace of a state democratically exercises a direct vote on an issue, one federal judge will be able to issue an injunction preventing the enforcement of the will of the people of that state. Rather, three judges, at the trial level, according to procedures already provided by statute, will hear the application for an injunction and determine whether the requested injunction should issue. An appeal is taken directly to the Supreme Court, expediting the enforcement of the referendum if the final decision is that the referendum is constitutional. Such an expedited procedure is already provided for in other voting rights cases. It should be no different in this case, since a state is ``redistricted'' for purposes of a vote on a referendum into one voting block. The Congressional Research Service estimates that these three- judge courts would be required less than 10 times in a decade under this bill, causing a very insubstantial burden on the federal judiciary, while substantially protecting the rights of the voters of a state. This bill recognizes that state referenda reflect, more than any other process, the one-person/one-vote system, and seeks to protect a fundamental part of our national foundation. This bill will implement a fair and effective policy that preserves a proper balance in federal-state relations. Interim Appeals of Class Action Certifications The second reform contained in this bill was developed by the Chairman of the Subcommittee on the Constitution, Representative Charles Canady of Florida. It allows immediate (interlocutory) appeals of class action certifications by a federal District judge. When a District judge determines that an action may be maintained as a class action, the provisions contained in the Judicial Reform Act allow a party to that case to appeal that decision immediately to the proper Court of Appeals without delaying the progress of the underlying case. This prevents ``automatic'' certification of class actions by judges whose decisions to certify may go unchallenged because the parties have invested too many resources into the case before an appeal is allowed. This bill will also prevent abuses by attorneys who bring class action suits when they are not warranted, and provides protection to defendants who may be forced to expend unnecessary resources at trial, only to find that a class action was improperly brought against them in the first place. As a practical matter, the outcome of a class-action suit is often determined by whether the judge elects to certify a class since certifications may guarantee that a plaintiff's attorney can extract a favorable settlement, irrespective of whether the certification was proper. Complaints Against Judicial Misconduct The third reform contained in this bill was developed by another member of the Committee on the Judiciary, Representative Ed Bryant of Tennessee. It requires that a complaint brought against a federal judge be sent to a circuit other than the one in which the judge who is the object of the complaint sits for review. This will provide for a more objective review of the complaint and improve the efficacy of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. Sec. 372 (``The 1980 Act''), which established a mechanism for the filing of complaints against federal judges. Under those procedures, a complaint alleging that a federal judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may be filed with the clerk of the U.S. Court of Appeals for the circuit in which the federal judge who is the subject of the complaint sits. Under the Act, a special committee will report to the judicial council of the circuit, which will decide what action, if any, should be taken. By requiring that complaints filed under the 1980 Act be transferred to a circuit other than the circuit in which the alleged wrongdoer sits, more objectivity and accountability will exist for litigants who find themselves in need of relief from a judge who is [[Page H2247]] not properly performing his or her functions. In addition, the bill has been amended to limit out-of-circuit referrals to those cases in which a complaint is not dismissed as being incomplete, frivolous, or directly related to the merits of a decision or procedural ruling. This amendment represents an effort to respond to those critics who assert that the revision to existing complaint procedures will generate unnecessary and trivial administrative expenses for out-of- circuit judges. In other words, only ``substantive'' complaints will be referred out of circuit. judicial taxation The fourth reform contained in this bill prohibits a federal court from ``expressly directing'' or ``necessarily requiring'' that a state or municipality impose taxes on its citizenry, a function reserved to legislative bodies, for the purpose of enforcing a legal decision. Seizing the power of the public purse by imposing taxes on any community is an egregious example of how some members of the judiciary have breached this nation's founding principle of separation of powers and undermined the concept of self-rule. In some cases, judges have designed in specific detail local school systems and public housing systems, and then ordered tax increases to finance the spending bills disguised in their judicial rulings. The most conspicuous example illustrating this problem is the ongoing case of Missouri v. Jenkins, in which the Supreme Court has issued three opinions and the court of appeals more than 20. In Jenkins, the Supreme Court ruled that while it was permissible for the lower court in the Kansas City school system to order the state or municipality to raise taxes to remedy a constitutional deprivation, it remanded and reversed the lower court decision based on the fact that the lower court lacks the authority to impose a tax itself; it must order the state or local municipality to do so. The Jenkins litigation also demonstrates that once a federal court seizes such a ``structural reform'' case, it will constantly reevaluate its progress for years until the ``constitutional deprivation'' has been cured. State and federal laws leave budget and spending authority to legislative bodies, because only a body which represents the will of the people can decide properly how to spend the people's taxes. While rulings on due process are important to protect the rights of litigants, and remedy which would force the public to pay more in taxes must come from the House of the people and not from the authority of the bench. The judiciary is neither equipped nor given the power to make such decisions. To allow otherwise is to usurp self-rule and replace it with self-appointed authority. As four justices of the United States Supreme Court have stated, the imposition of taxes by courts ``disregards fundamental precepts for the democratic control of public institutions. The power of taxation is one that the federal judiciary does not possess.'' This bill will restore the proper balance defined in the Constitution between the federal branches and federal-state relations by forbidding any U.S. District court from entering an order or approving a settlement that requires a state or one of its subdivisions to impose, increase, levy, or assess any tax for the purpose of enforcing any federal or state common law, statutory, or constitutional right or law. This reform contains a narrow, multi-part exception to the general prohibition of judicially-imposed taxation. Specifically, a court may not order a state or political subdivision to impose a tax unless the court first determines by clear and convincing evidence that: (1) there are no other means available to remedy the relevant deprivation of rights or laws, and the tax is narrowly tailored and directly related to the specific constitutional deprivation or harm necessitating redress; (2) the tax will not exacerbate the deprivation intended to be remedied; (3) the tax will not result in a revenue loss for the affected subdivision; (4) the tax will not result in a depreciation of property values for the affected taxpayers; (5) plans submitted by state or local authorities will not effectively redress the relevant deprivation; and (6) the interests of state and local authorities in managing their own affairs is not usurped by the proposed tax, consistent with the Constitution. Finally, the bill specifies that the judicial tax provisions will apply to any action or proceeding pending on, or commenced on or after, the date of enactment. This was done at the behest of Representative Don Manzullo of Illinois, whose district is home to Rockford, a city which is subject to a court taxation order that has devastated local communities. Reassignment of Cases The fifth reform contained in this bill was also developed by Representative Canady. It allows all parties on one side of a civil case brought in federal District court to agree, after initial assignment to a judge, to bring a motion requiring that the case be reassigned to a different judge. Each side of the case may exercise this option only once. Under the provision, a motion to reassign must be made not later than 20 days after the notice of original assignment of the case is given. Because some critics believe the reassignment device might encourage forum-shopping and attendant delay, its application will be limited to the 21 largest federal judicial districts (each containing over 10 judges to allow a random reassignment) over a five-year period, thereby allowing Congress to evaluate its effects and to determine whether it ought to be extended to all districts and perpetuated in the future. This substitution-of-judge, or, as referred to in the bill, ``reassignment-of-case-as-of-right,'' provision mirrors similar state laws and allows litigants on both sides of a case to avoid being subjected to a particular federal judge, appointed for life, in any specific case. It might be used by litigants in a community to avoid ``forum shopping'' by the other side in a case, or to avoid a judge who is known to engage in improper courtroom behavior, who is known to be prejudiced, or who regularly exceeds judicial authority. This provision is not meant to replace appellate review of trial judges' decisions, but rather to complement appellate review by encouraging judges to fairly administer their oaths of office to uphold the Constitution. Many judges face constant reversals on appeal, but still force litigants to bear extraordinary costs before them and further bear the burden of overcoming standards of review on appeal. This provision allows litigants some freedom in ensuring that due process will be given to their case before they bear the costs associated with litigating in trial court and will encourage the judiciary to be as impartial as required by their charge. handling of capital punishment appeals The sixth reform set forth in H.R. 1252 was developed in response to the May 14, 1997, testimony of Charlotte Stout, who participated in an oversight hearing on judicial misconduct, and comments made by Representative William Delahunt of Massachusetts. Ms. Stout's daughter was raped and murdered by a man who sat on death row for 18 years as a result of filing numerous habeas petitions at the state and federal level. His federal petition was handled by a judge who delayed its consideration for four years before ordering a new trial. This same judge handles all habeas petitions in that judicial circuit, and has delayed consideration of all capital cases appealed to that circuit by a minimum of 65 years. All cases on which he has reached a final decision have resulted in an over-turning of a jury verdict to impose execution. In effect, this judge has taken it upon himself to usurp the decision of a jury to impose the death penalty. Pursuant to the bill, the chief judge of a circuit could neither handle all habeas cases by himself or herself, nor delegate the responsibility on an exclusive basis to another judge. cameras in the courtroom A seventh reform would permit a presiding judge, in his or her discretion, to permit the use of cameras during federal appellate proceedings. Based on legislation introduced by Representative Steve Chabot of Ohio, the change mirrors state efforts to provide greater public access to the workings of the judiciary. The Committee on the Judiciary also adopted an amendment offered by Representative Chabot which creates a three-year pilot program allowing televised proceedings in any U.S. District (trial-level) proceeding, subject to the discretion of the presiding judge. judicial pay An eighth reform includes parts of legislation introduced by Representative Henry Hyde of Illinois, Chairman of the Committee on the Judiciary, that would grant federal judges an annual cost-of-living adjustment unless Congress takes action to the contrary. complex disaster litigation With Representative Jim Sensenbrenner of Wisconsin as its chief advocate, a ninth reform consists of language which the House passed in the 101st and 102nd Congress, and which the full Committee on the Judiciary passed in the 103rd Congress. This language is intended to improve the ability of federal courts to handle complex multidistrict litigation arising from a single accident, such as a plane crash. Briefly, these changes would bestow original jurisdiction on federal District courts in civil actions involving minimal diversity jurisdiction among adverse parties based on a single accident where at least 25 persons have either died or sustained injuries exceeding $50,000 per person. The District court in which such cases are consolidated would retain those cases for purposes of determining liability and punitive damages, and would also determine the substantive law that would apply for findings of liability and damage. Returning individual cases to state and federal courts where they were originally filed for a determination of compensatory money damages (and where all relevant records are located) is fair to the plaintiffs or their estates. These changes should reduce litigation costs as well as the likelihood of forum-shopping in airline and other accident cases. An effective one-time determination of punitive damages would eliminate multiple or inconsistent awards arising from multiforum litigation. Agency (OPM) Appeals of Adverse Personnel Decisions The tenth and final reform of H.R. 1252, proposed by Representative Conyers of Michigan, would permit the Office of Personnel Management (OPM) to appeal final decisions of the Merit Systems Protection Board (MSPB) and final arbitral awards dealing with adverse personnel actions to the Federal Circuit within 60 days from the time [[Page H2248]] final notice of a decision is received. Currently, OPM must file its appellate briefs within 30 days, which is half the time allotted to other federal agencies. This bill is limited in scope. It reforms the procedures of the federal courts to ensure fairness in the hearing of cases without stripping jurisdiction, or reclaiming any powers granted by Congress to the lower courts. It does assure that litigants in federal courts will be entitled to fair rules of practice and procedure leading to the due process of claims. Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my time. Mr. COBLE. Mr. Chairman, I yield 5\1/2\ minutes to the distinguished gentleman from Texas (Mr. DeLay), the majority whip for the House. Mr. DeLAY. Mr. Chairman, I thank the Chairman for yielding. I want to commend the chairman of the subcommittee and the chairman of the full committee and the Members of the Committee on the Judiciary for their very hard work and effort in what I consider a much needed piece of legislation. The system of checks and balances so carefully crafted by our Founding Fathers is in serious disrepair and has been for years. This bill takes a very necessary step to bring the courts back into constitutional order. The Founding Fathers established a system of government in the United States that does not allow one branch to become too powerful at the expense of the other. I contend, quite frankly, if we read the Constitution as it originally was written and intended, the judiciary branch was supposed to be the weakest branch of the three created by the Constitution. Contrary to the opinion of the liberal legal establishment of this country, judicial power is not limitless. Judicial power does not equal legislative power. Judges apply the law. They are not to make the law. When judges go further and unilaterally impose legislative remedies, they exceed the legitimate limits of power given to them by the Constitution. When judges legislate, they usurp the power of Congress. When judges stray beyond the Constitution, they usurp the power of the people. For instance, under the Constitution, only Congress can lay and collect taxes. But that did not stop District Judge Russell Clark from ordering tax increases from the bench. That tax increase, and 2 billion tax dollars, turned the city school district into a spending orgy, complete with editing and animation labs, greenhouses, temperature-controlled art galleries, and a model United Nations that was wired for language translation. If that is not taxation without representation, I do not know what it is. Another example of a judge tossing aside the Constitution and supplanting his own personal biases was the decision of the District Court Judge, Thelton Henderson, prohibiting the State of California from implementing the California Civil Rights Initiative, the CCRI. The CCRI simply removed the opportunity for State officials to judge people by their race and their sex, a practice that I think most Americans consider repugnant. In a ruling that turned common sense and our Constitution on its head, Justice Henderson ruled that by adopting the equal protection clause of the 14th amendment, the voters of the State of California had violated that same 14th amendment. Although judicial taxation and Judge Henderson's circumvention of the Constitution are two extreme examples of judges breaching the separation of powers, there are, of course, many, many others. Judges have created the right to die. Judges have prohibited States from declaring English as an official language. Judges have extended the right of States to withhold taxpayer-funded services from illegal aliens, all without sound constitutional basis. Now, some Federal judges have even made themselves the sovereigns of the cell blocks, micromanaging our State prisons, and forcing changes in prison operations that have resulted in the early release each year of literally hundreds of thousands of violent and/or repeat criminals out on our streets and the streets to plague our families. In 1970, not a single prison system was operating under the sweeping court orders common today. By 1990, some 508 municipalities, and over 1,200 State prisons were operating under some judicial confinement order or some consent decree. In New York City, judges have forced prison officials to require that only licensed barbers cut the hair of the prisoners; that sweetened coffee may never be served at meals for the prisoners; and a court- appointed monitor must be given a city car within one grade of the prison commissioner's car. If it were not so appalling, it would be funny. But if that is not enough, the same activist judges have also imposed prison caps, mandating the release of violent felons and drug dealers before they have even served their time. Later today, the gentleman from Pennsylvania (Mr. Murtha) and I will offer an amendment that will end this travesty of justice caused by overactive judges. Our amendment will prohibit a Federal judge from ever releasing a felon from prison because of claims of prison overcrowding. The prisoners claim of overcrowding has become a get-out-of-jail-free card. And we say no longer. No longer will these prisoners plague our families, and our cities, and in our towns. I urge my colleagues to support the Hyde bill and the DeLay-Murtha amendment. The time has come to reestablish our system of checks and balances and to restore sanity to our criminal justice system. Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the ranking member of the full committee. Mr. CONYERS. Mr. Chairman, I thank the gentleman from Massachusetts for yielding to me. Mr. Chairman, I was delighted to hear the majority whip, constitutional expert in his own right, whose opinions I respect very much, and which will become very much in focus today. The gentleman from Texas (Mr. DeLay), majority whip, is the same Member of Congress who claims it is time we impeach judges whose opinions consistently ignore their constitutional role, violate their oath of office, and breach the separation of powers. {time} 1115 That is a quote. Mr. DeLAY. Mr. Chairman, will the gentleman yield? Mr. CONYERS. I yield to the gentleman from Texas. Mr. DeLAY. Does the gentleman believe that a judge should not be impeached that violates his oath of office and violates the Constitution? Mr. CONYERS. I will get to that later. Right now I am making my ow