United States. Congress. House. Committee on the D.

D.C. Supreme Court : hearing and markup before the Subcommittee on Judiciary and Education and the Committee on the District of Columbia, House of Representatives, One Hundred Third Congress, first session, on H.R. 1633, to create a Supreme Court for the District of Columbia, April 28, and June 9, 1 online

. (page 1 of 27)
Online LibraryUnited States. Congress. House. Committee on the DD.C. Supreme Court : hearing and markup before the Subcommittee on Judiciary and Education and the Committee on the District of Columbia, House of Representatives, One Hundred Third Congress, first session, on H.R. 1633, to create a Supreme Court for the District of Columbia, April 28, and June 9, 1 → online text (page 1 of 27)
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D.C. SUPREME COURT



Y 4.0 63/1:103-4

D.C. Suprene Court, Serial Ho. 103-.. . MARKUP

BUJ-UKE THE

SUBCOMMITTEE ON JUDICIARY AND EDUCATION

AND THE

COMMITTEE ON

THE DISTRICT OF COLUMBIA

HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION
ON

H.R. 1633

TO CREATE A SUPREME COURT FOR THE DISTRICT OF COLUMBIA



APRIL 28, AND JUNE 9, 1993



Serial No. 103-4



Printed for the use of the
Committee on the District of Columbia




""tflWto*,




Dec






U.S. GOVERNMENT PRINTING OFFICE ^''WPjIIV ^^fr/lft-
68-552ts WASHINGTON : 1993 ^QTiir



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-041649-3



D.C. SUPREME COURT



Y 4.0 63/1:103-4

D.C. Suprene Court, Serial Ho. 103-.. . MARKUP

ttUVUKK THE

SUBCOMMITTEE ON JUDICIARY AND EDUCATION

AND THE

COMMITTEE ON

THE DISTRICT OF COLUMBIA

HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST SESSION
ON

H.R. 1633

TO CREATE A SUPREME COURT FOR THE DISTRICT OF COLUMBIA



APRIL 28, AND JUNE 9, 1993



Serial No. 103-4



Printed for the use of the
Committee on the District of Columbia




U.S. GOVERNMENT PRINTING OFFICE ^""dlfTr ^ftWft ■

68-552*=; WASHINGTON : 1993 "^OTffr-,..

For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office. Washington. DC 20402
ISBN 0-16-041649-3



COMMITTEE ON THE DISTRICT OF COLUMBIA

FORTNEY PETE STARK, California, Chairman
RONALD V. DELLUMS, California THOMAS J. BLILEY, Jr., Virginia

ALAN D. WHEAT, Missouri DANA ROHRABACHER, California

JIM McDERMOTT, Washington JIM SAXTON, New Jersey

ELEANOR HOLMES NORTON, District of CASS BALLENGER, North Carolina

Columbia
JOHN LEWIS, Georgia
WILLIAM J. JEFFERSON, Louisiana

Broderick D. Johnson, Staff Director
Dennis G. Smith, Minority Staff Director



Subcommittee on Judiciary and Education,

ELEANOR HOLMES NORTON, District of Columbia, Chairman
JOHN LEWIS, Georgia DANA ROHRABACHER, California

FORTNEY PETE STARK, California CASS BALLENGER, North Carolina

RONALD V. DELLUMS, California
JIM McDERMOTT, Washington

(ID



CONTENTS



Page

Staff summary of findings and conclusions (v)

H.R. 1633 (by Ms. Norton) to create a Supreme Court for the District of

Columbia 2

HEARING AND MARKUPS

Subcommittee hearing (H.R. 1633), April 28, 1993 1-173

Full committee markup (H.R. 1633), June 9, 1993 175-259

STATEMENTS

Bliley, Hon.Thomas J., Jr 185

Prepared statements to amendments offered 202, 209, 227, 236, 245

Prepared statement H.R. 1633 261

Prepared closing statement H.R. 1633 263

Norton, Eleanor Holmes 37, 49, 176

Payton, John, corporation counsel, District of Columbia, prepared statement... 38

Stark, Hon. Fortney Pete 175

Rogers, Hon. Judith W., chief judge, D.C. Court of Appeals; Hon. Fred B.
Ugast, chief judge, D.C. Superior Court; Hon. John W. Kern III, senior
judge, D.C. Court of Appeals; Alan I. Herman, Esq., former clerk of the
court, D.C. Court of Appeals; and John Payton, corporation counsel:

Herman, Alan I., Esq 152

Kern, Hon. John W. Ill 144

Prepared statement with attachment 147

Rogers, Hon. Judith W 51

Prepared statement with attachments 57

Rohrabacher, Hon. Dana, prepared statement 190

Saxton, Hon. Jim 192

Ugast, Hon. Fred B 93

Prepared statement with attachments 97

MATERIAL SUBMITTED FOR THE RECORD

"A Supremely Silly Court for the District," article from the Washington

Times, April 28, 1993 188

Amendments offered:

Ballenger, substitute (Salaries for judges an justices) 198

Bliley (Substitute for title I; no additional authorization), H.R. 1633 251

(No grandfathering of current judges), H.R. 1633 223

Norton No. 1 to H.R. 1633 196

No. 2 to H.R. 1633 207

No. 3 to H.R. 1633 213

Saxton (Bypass court of appeals for certain cases), H.R. 1633 233

Stark No. 1 to H.R. 1633 221

Republican Amendments — Summary 265

"Stop Stiffing the District's Courts,' article from the Washington Post, March

22, 1993, by Jamie S. Gorelick and Mark Tuohey 186

Subcommittee notice to hold hearing on bill H.R. 1633 with instructions on

preparation for 172

(HI)



IV

Page

COMMUNICATIONS

Jacobs, Andrew, Jr., Representative in Congress from the State of Indiana;
letter to Broderick D. Johnson, staff director, D.C. Subcommittee on Judici-
ary and Education, dated April 22, 1993 171

White House, Howard Paster, Assistant to the President for Legislative Af-
fairs; letter to Hon. Eleanor Holmes Norton, dated June 9, 1993 184

U.S. Court of Veterans Appeals, Frank Q. Nebeker, chief judge; letter to Hon.
Eleanor Holmes Norton, dated April 20, 1993 266

APPENDIX

Salaries of appellate and trial courts of 50 States, District of Columbia and
territories 268

Appellate Practice in the United States, by Robert L. Stern; Bureau of Na-
tional Affairs, Inc., 1989, Chapter 2 The Appellate Explosion 269

Intermediate Appellate Courts: Improving Case Processing (Executive Sum-
mary). National Center for State Courts, 1990 287

Understanding Reversible Error in Criminal Appeals. National Center for
State Courts. 1989 292

D.C. Bar, Study of the D.C. Court of Appeals, report of the Schaller commit-
tee, with minority views. 1989 300

What to Expect in D.C. Small Claims Court— D.C. Superior Court 373

Alternative Dispute Resolution Programs — 1993 379

Index 385



STAFF SUMMARY OF FINDINGS AND
CONCLUSIONS

On June 16, 1993, the committee reported H.R. 1633 to the House
by a vote of 7 yeas to 4 Nays. The committee report is House
Report 103-176. '

This volume includes the transcript of the 1-day hearing on April
28, 1993 by the Subcommittee on Judiciary and Education and the
full committee markup on June 9, 1993, which commences on page
177. An appendix starts on page 269.

The bill, as reported, elevates the present nine members of the
D.C. Court of Appeals to a new D.C. Supreme Court, at no increase
in pay. Through attrition the Supreme Court would eventually
have only seven members.

The President would nominate for confirmation by the Senate
nine new members of the D.C. Court of Appeals from lists supplied
by the D.C. Judicial Nomination Commission under present law.
The District of Columbia would then have the three tier court
system used in 39 States — two appellate courts and one trial court.

The new system will permit one full appellate court to decide im-
portant questions of District of Columbia law and an intermediate
court, often meeting in three-judge panels, to review trial court and
administrative agency decisions for error.

Several issues discussed in markup were considered in proposed
amendments.

An amendment (on page 196) by Congresswoman Eleanor Holmes
Norton held the pay for new justices of the D.C. Supreme Court at
their present level — the rate prescribed by law for judges of the
United States Court of Appeals. The amendment also set the sala-
ries for judges on the D.C. Court of Appeals as midway between the
new D.C. Supreme Court judges and the trial judges of the D.C.
Court of Appeals as midway between the new D.C. Supreme Court
judges and the trial judges of the D.C. Superior Court.

A substitute amendment by Congressman Ballenger (page 198)
would have reduced the salaries for all three courts. Mr. Bal-
lenger's amendment was defeated and Ms. Norton's amendment
was approved.

A second improvement by Congresswoman Norton (page 207)
which removed the authorization for Federal funds was approved
(page 212).

A third amendment by Congresswoman Norton (page 213) adding
a section to change the name of "hearing commissioners" to "judi-
cial magistrates" and expanding their duties was approved (page
220).

An amendment by Congressman Ballenger (page 223) to require
presidential appointment of the first members of the new D.C. Su-

(V)



VI

preme Court rather than elevating the present members of the
D.C. Court of Appeals was defeated (page 232).

An amendment by Congressman Saxton (page 233) creating an
automatic bypass of the intermediate court for serious criminal
cases and cases challenging the validity of a council act was defeat-
ed (page 244).

A substitute amendment by Congressman Bliley (page 251) would
add two judges to the present D.C. Court of Appeals for a 5-year
period. It was defeated (page 258).



H.R. 1633— D.C. SUPREME COURT BILL



Wednesday, April 28, 1993

House of Representatives,
Subcommittee on Judiciary and Education,

Committee on District of Columbia,

Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in room
1310-A, Longworth House Office Building, Hon. Eleanor Holmes
Norton (chairwoman of the subcommittee) presiding.

Members present: Representatives Norton, Stark, McDermott
and Ballenger.

Majority staff present: Broderick D. Johnson, staff director;
Dietra L. Ford, senior legislative associate; Marvin R. Eason, staff
assistant; and Ronald C. Willis, subcommittee staff director.

Minority staff present: David E. Anderson, counsel; Richard T.
Dykema and Matthew Farley, staff assistants.
William G. Wren, GPO publication specialist.
[The text of H.R. 1633 follows:]



(l)



103d CONGRESS
1st Session



H.R.1633



To create a Supreme Court for the District of Columbia, and for other

purposes.



IN THE HOUSE OF REPRESENTATIVES

April 1, 1993

Ms. Norton introduced the following bill; which was referred to the
Committee on the District of Columbia



A BILL

To create a Supreme Court for the District of Columbia,
and for other purposes.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "District of Columbia

5 Judicial Reorganization Act of 1993".



2

i TITLE I— SUPREME COURT OF
2 THE DISTRICT OF COLUMBIA

3 SEC. 101. ESTABLISHMENT OF SUPREME COURT OF THE

4 DISTRICT OF COLUMBIA.

5 Title 1 1 of the District of Columbia Code is amended

6 by adding after chapter 5 the following new chapter 6:

7 "CHAPTER 6. SUPREME COURT OF THE DISTRICT

8 OF COLUMBIA.

"SUBCHAPTER I. ESTABLISHMENT AND ORGANIZATION.

"Sec. •

"11-601. Establishment; court of record; seal.

"11-602. Composition.

"11-603. Justices; service; compensation.

"11-604. Oath of justices.

"11-605. Term; hearings; quorum.

"11-606. Absence, disability, or disqualification of judges; vacancies.

"11-607. Assignment of justices and judges to and from other courts of

the District of Columbia.
"11-608. Clerks and secretaries for justices.
"11-609. Reports.

"SUBCHAPTER II. JURISDICTION.

"11-621. Certification to the Supreme Court of the District of Columbia.
"11-622. Review by the Supreme Court of the District of Columbia.
"11-623. Certification of questions of law.

"SUBCHAPTER HI. MISCELLANEOUS PROVISIONS.

"11-641. Contempt powers.

"11-642. Oaths, affirmations, and acknowledgments.

"11-643. Rules of court.

"11-644. Judicial conference.

9 "SUBCHAPTER I. ESTABLISHMENT AND

10 ORGANIZATION.

11 "§ 11-601. Establishment; court of record; seal.

12 "(a) The Supreme Court of the District of Columbia

13 (hereafter in this chapter referred to as 'the court') is

•HR 1633 IH



3

1 hereby established as a court of record in the District of

2 Columbia.

3 "(b) The court shall have a seal.

4 "§11-602. Composition.

5 The court shall consist of a chief justice and 6 associ-

6 ate justices.

7 "§ 11-603. Justices; service; compensation.

8 "(a) The chief justice and the justices of the court

9 shall serve in accordance with chapter 15 of this title.

10 "(b) Justices of the court shall be compensated at

11 90 percent of the rate prescribed by law for justices of

12 the United States Supreme Court. The chief justice shall

13 receive $3,000 per year in addition to the salary of other

14 justices of the court.

15 "§ 11-604. Oath of justices.

16 "Each justice, when appointed, shall take the oath

17 prescribed forjudges of courts of the United States.

18 "§ 11-605. Term; hearings; quorum.

19 "(a) The court shall sit in one term each year for

20 such period as it may determine.

21 "(b) The court shall sit in banc to hear and determine

22 cases and controversies, except that the court may sit in

23 divisions of 3 justices to hear and determine cases and

24 controversies certified for review under section 11-621 if

25 the court determines that subsection (b)(2) of such section

•HR 1633 IH



4

1 is the exclusive basis for such certification. The court in

2 banc for a hearing shall consist of the justices of the court

3 in regular active service.

4 "(c) A majority of the justices serving shall constitute

5 a quorum.

6 "(d) A rehearing before the court may be ordered by

7 a majority of the justices of the court in regular active

8 service. The court in banc for a rehearing shall consist

9 of the justices of the court in regular active service.

10 "§ 11-606. Absence, disability, or disqualification of

1 1 justices; vacancies.

12 "(a) When the chief justice of the court is absent or

13 disabled, the duties of the chief justice shall devolve upon

14 and be performed by such associate justice as the chief

15 justice may designate in writing. In the event that the

16 chief justice is (1) disqualified or suspended, or (2) unable

17 or fails to make such a designation, such duties shall de-

18 volve upon and be performed by the associate justices of

19 the court according to the seniority of their original com-

20 missions.

21 "(b) A chief justice whose term as chief justice has

22 expired shall continue to serve until redesignated or until

23 a successor has been designated. When there is a vacancy

24 in the position of chief justice the position shall be filled



•HR 1633 IH



5

1 temporarily as provided in the second sentence of sub-

2 section (a).

3 "§ 11-607. Assignment of justices and judges to and

4 from other courts of the District of Co-

5 lumbia.

6 "(a) Upon presentation of a certificate of necessity

7 by the chief judge of the District of Columbia Court of

8 Appeals, the chief justice of the Supreme Court of the Dis-

9 trict of Columbia may designate and assign temporarily

10 one or more justices of the Supreme Court of the District

11 of Columbia or one or more judges of the Superior Court

12 of the District of Columbia to serve on the District of Co-

13 lumbia Court of Appeals or a division thereof whenever

14 the business of the District of Columbia Court of Appeals

15 so requires. Such designations or assignments shall be in

16 conformity with the rules or orders of the District of Co-

17 lumbia Court of Appeals.

18 "(b) Upon presentation of a certificate of necessity

19 by the chief judge of the Superior Court of the District

20 of Columbia, the chief justice of the Supreme Court of

21 the District of Columbia may designate and assign tempo-

22 rarily one or more justices of the Supreme Court of the

23 District of Columbia or one or more judges of the District

24 of Columbia Court of Appeals to serve as a judge of the

25 Superior Court of the District of Columbia.



•HR 1633 IH



6

1 M § 11-608. Clerks and secretaries for justices.

2 "Each justice may appoint and remove a personal

3 secretary. The chief justice may appoint and remove not

4 more than three personal law clerks, and each associate

5 justice may appoint and remove not more than two per-

6 sonal law clerks. In addition, the chief justice may appoint

7 and remove law clerks for the court and law clerks and

8 secretaries for the senior justices. The law clerks ap-

9 pointed for the court shall serve as directed by the chief

10 justice.

11 "§11-609. Reports.

12 "Each justice shall submit to the chief justice such

13 reports and data as the chief justice may request.

14 "SUBCHAPTER II. JURISDICTION.

15 "§11-621. Certification to the Supreme Court of the

16 District of Columbia.

17 "(a) In any case or class of cases in which an appeal

18 has been taken to or filed with the District of Columbia

19 Court of Appeals, the Supreme Court of the District of

20 Columbia, by order of the Supreme Court sua sponte, or,

21 in its discretion, on motion of the District of Columbia

22 Court of Appeals or of any party, may certify the case

23 or class of cases for review by the Supreme Court before

24 it has been determined by the District of Columbia Court

25 of Appeals. The effect of such certification shall be to

26 transfer jurisdiction over the case or class of cases to the

•HR 1633 IH



8



7

1 Supreme Court of the District of Columbia for all pur-

2 poses.

3 "(b) Such certification may be made only if not less

4 than 3 of the justices of the Supreme Court of the District

5 of Columbia determine that —

6 "(1) the case or class of cases involves a ques-

7 tion that is novel or difficult or is of importance in

8 the general public interest or the administration of

9 justice; or

10 "(2) the case or class of cases was pending in

1 1 the District of Columbia Court of Appeals on the ef-

12 fective date of this section and, because the justices

13 of the Supreme Court of the District of Columbia

14 were familiar with the case or class of cases while

15 serving as judges of the District of Columbia Court

16 of Appeals, the sound and efficient administration of

17 justice dictates that the case or class of cases be cer-

18 tified for review by the Supreme Court of the Dis-

19 trict of Columbia.

20 "§ 11-622. Review by the Supreme Court of the Dis-

21 trict of Columbia.

22 "(a) Any party aggrieved by a final decision of the

23 District of Columbia Court of Appeals may petition the

24 Supreme Court of the District of Columbia for an appeal.

25 Such a petition may be granted and appeal be heard by

•HR 1688 IH



8

1 the Supreme Court of the District of Columbia only upon

2 the affirmative vote of not less than 3 of the justices that

3 the matter involves a question that is novel or difficult,

4 is the subject of conflicting authorities within the jurisdic-

5 tion, or is of importance in the general public interest or

6 the administration of justice. The granting of such peti-

7 tions for appeal shall be in the discretion of the Supreme

8 Court of the District of Columbia. The Supreme Court

9 of the District of Columbia shall not be required to state

10 reasons for denial of petitions for appeal.

11 "(b) On hearing an appeal in any case or controversy,

12 the Supreme Court of the District of Columbia shall give

13 judgment after an examination of the record without re-

14 gard to errors or defects which do not affect the substan-

15 tial rights of the parties.

16 M § 11-623. Certification of questions of law.

17 "(a) The Supreme Court of the District of Columbia

18 may answer a question of law of the District of Columbia

19 certified to it by the Supreme Court of the United States,

20 a Court of Appeals of the United States, or the highest

21 appellate court of any State, if —

22 "(1) such question of law may be determinative

23 of the case pending in such a court; and

24 "(2) there is no controlling precedent regarding

25 such question of law in the decisions of the District

•hr less m i



10



9

1 of Columbia Court of Appeals or the Supreme Court

2 of the District of Columbia.

3 "(b) This section may be invoked by an order of any

4 of the courts referred to in subsection (a) upon such

5 court's motion or upon the motion of any party to the

6 case.

7 "(c) A certification order under this section shall —

8 "(1) describe the question of law to be an-

9 swered;

10 "(2) contain a statement of all facts relevant to

11 the question certified and the nature of the con-

12 troversy in which the questions arose; and

13 "(3) upon the request of the Supreme Court of

14 the District of Columbia contain the original or cop-

15 ies of the record of the case in question or of any

16 portion of such record as the Supreme Court of the

17 District of Columbia considers necessary to deter-

18 mine the questions of law which are the subject of

19 the motion.

20 "(d) Fees and costs shall be the same as in appeals

21 docketed before the Supreme Court of the District of Co-

22 lumbia and shall be equally divided between the parties

23 unless precluded by statute or by order of the certifying

24 court.



HR 1633 IH-



11



10

1 "(e) The written opinion of the Supreme Court of the

2 District of Columbia stating the law governing any ques-

3 tions certified under subsection (a) shall be sent by the

4 clerk to the certifying court and to the parties.

5 "(f) The Supreme Court of the District of Columbia,

6 on its own motion, the motion of the District of Columbia

7 Court of Appeals, or the motion of any party to a case

8 pending in the Supreme Court of the District of Columbia

9 or the District of Columbia Court of Appeals, may order

10 certification of a question of law of another State to the

1 1 highest court of such State if, in the view of the Supreme

12 Court of the District of Columbia —

13 "(1) such question of law may be determinative

14 of the case pending in the Supreme Court of the

15 District of Columbia or the District of Columbia

16 Court of Appeals; and

17 "(2) there is no controlling precedent regarding

1 8 such question of law in the decisions of the appellate

19 courts of the State to which the order of certification

20 is directed.

21 "(g) The Supreme Court of the District of Columbia

22 may prescribe the rules of procedure concerning the an-

23 swering and certification of questions of law under this

24 section.



• HR 1633 IH



12



11

1 "SUBCHAPTER HI. MISCELLANEOUS

2 PROVISIONS.

3 "§ 11-641. Contempt powers.

4 "In addition to the powers conferred by section 402

5 of title 18, United States Code, the Supreme Court of the

6 District of Columbia, or a justice thereof, may punish for

7 disobedience of an order or for contempt committed in the

8 presence of the court.

9 "§ 11-642. Oaths, affirmations, and acknowledgments.

10 "Each justice of the Supreme Court of the District

11 of Columbia and each employee of the court authorized

12 by the chief justice may administer oaths and affirmations

13 and take acknowledgments.

14 "§11-643. Rules of court.

15 "The Supreme Court of the District of Columbia

16 shall conduct its business in accordance with such rules

17 and procedures as the court shall adopt.

18 "§ 11-644. Judicial conference.

19 "The chief justice of the Supreme Court of the Dis-

20 trict of Columbia shall summon annually the justices and

21 active judges of the District of Columbia courts to a con-

22 ference at a time and place that the chief justice des-

23 ignates, for the purpose of advising as to means of improv-

24 ing the administration of justice within the District of Co-

25 lumbia. The chief justice shall preside at such conference



•HE 16SS m



13



12

1 which shall be known as the Judicial Conference of the

2 District of Columbia. Each justice and judge summoned,

3 unless excused by the chief justice of the Supreme Court

4 of the District of Columbia, shall attend throughout the

5 conference. The Supreme Court of the District of Colum-

6 bia shall provide by its rules for representation of and ac-

7 tive participation by members of the unified District of

8 Columbia Bar and other persons active in the legal profes-

9 sion at such conference.".

10 SEC. 102. TRANSITION PROVISIONS.

1 1 (a) Elevation of Judges of the District of Co-

12 lumbia Court of Appeals as Justices of the Su-

13 preme Court of the District of Columbia. —

14 (1) Except as provided in paragraph (2), begin-

15 ning on the effective date of this title the chief judge

16 of the District of Columbia Court of Appeals shall

17 serve the remainder of the term to which he or she

18 was appointed as the chief justice of the Supreme

19 Court of the District of Columbia and the associate

20 judges of the District of Columbia Court of Appeals

21 shall serve the remainder of the respective terms to

22 which they were appointed as associate justices of

23 the Supreme Court of the District of Columbia. The

24 Supreme Court of the District of Columbia shall

25 conform to the numerical requirements of section

•HR 1638 IH



14



13

1 11-602 of the D.C. Code through attrition. Vacan-

2 cies in the offices of chief judge and associate judge

3 of the District of Columbia Court of Appeals shall



Online LibraryUnited States. Congress. House. Committee on the DD.C. Supreme Court : hearing and markup before the Subcommittee on Judiciary and Education and the Committee on the District of Columbia, House of Representatives, One Hundred Third Congress, first session, on H.R. 1633, to create a Supreme Court for the District of Columbia, April 28, and June 9, 1 → online text (page 1 of 27)