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Measures passed by state referendum : hearing before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 1170 ... April 5, 1995 online

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MEASURES PASSED BY STATE REFERENDUM



Y 4. J 89/1:104/17 %^^^^

Heasures Passed by State Referendun. . . /r£g

HEARING " ®5^

BEFORE THE

SUBCOMMITTEE ON
COURTS AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

H.R 1 170

TO PROVIDE THAT CASES CHALLENGING THE CONSTITUTIONAL-
ITY OF MEASURES PASSED BY STATE REFERENDUM BE HEARD BY
A 3-JUDGE COURT



APRIL 5, 1995



Serial No. 17




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
93-122 CC WASHINGTON : 1995

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052059-2



3^ MEASURES PASSED B Y STATE REFERENDUM

' 4. J 89/1 ; 104/17 ^



C-



easures Passed bg State Referendun. . . Pffi 9

HEARING " ®^^

BEFORE THE

SUBCOMMITTEE ON
COURTS AND INTELLECTUAL PROPERTY

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

H.R 1 170

TO PROVIDE THAT CASES CHALLENGING THE CONSTITUTIONAL-
ITY OF MEASURES PASSED BY STATE REFERENDUM BE HEARD BY
A 3-JUDGE COURT



APRIL 5, 1995



Serial No. 17




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
93-422 CC WASHINGTON : 1995

For sale by the U.S. Government Printing Office

Superintendent of Documents. Congressional Sales Office, Washington, DC 20402

ISBN 0-16-052059-2



COMMITTEE ON THE JUDICIARY



HENRY J. HYDE, Illinois. Chairman



CARLOS J. MOORHEAD, California
F. JAMES SENSENBRENNER, JR.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONTVTi' BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia



JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER. Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
JOSE E. SERRANO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas



Alan F. Coffey, Jr., General Counsel /Staff Director
Julian Epstein, Minority Staff Director



Subcommittee on Courts and Intellectual Property

CARLOS J. MOORHEAD, California, Chairman



F. JAMES SENSENBRENNER, JR.,

Wisconsin
HOWARD COBLE, North Carolina
BOB GOODLATTE, Virginia
SONNY BONO, California
GEORGE W. GEKAS, Pennsylvania
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
MARTIN R. HOKE, Ohio



PATRICIA SCHROEDER, Colorado
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
XAVIER BECERRA, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York



Thomas E. Mooney, Chief Counsel
Joseph V. Wolfe, Counsel

Mitch Glazier, Assistant Counsel
BPTTY Wheeler, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

April 5, 1995 1

TEXT OF BILL

H.R. 1170 3

OPENING STATEMENT

Moorhead, Hon. Carlos J., a Representative in Congress from the State of
California, and chairman, Subcommittee on Courts and Intellectual Prop-
erty 1

WITNESSES

Edwards, Hon. Harry T., Chief Judge, U.S. Court of Appeals for the District

of Columbia Circuit 24

Maier, Harold G., professor of law, David Daniels Allen Distinguished Chair

in Law, Vanderbilt University School of Law 16

Neuborne, Burt, John Norton Pomeroy Professor of Law, New York Univer-
sity School of Law 33

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Bono, Hon. Sonny, a Representative in Congress from the State of California
Letter dated April 3, 1995, from former Attorney General William P.

Ban- 54

Prepared statement 9

Edwards, Hon. Harry T., Chief Judge, U.S. Court of Appeals for the District

of Columbia Circuit: Prepared statement 31

Lungren, Daniel E., attorney general. State of California: Prepared state-
ment 13

Maier, Harold G., professor of law, David Daniels Allen Distinguished Chair

in Law, Vanderbilt University School of Law: Prepared statement 18

Mecham, L. Ralph, Secretary, Judicial Conference of the United States: Pre-
pared statement 12

Meese, Edwin, III, Ronald Reagan Fellow in Public Policy, the Heritage

Foundation: Prepared statement 53

Neuborne, Burt, John Norton Pomeroy Professor of Law, New York Univer-
sity School of Law: Prepared statement 35

Schroeder, Hon. Patricia, a Representative in Congress from the State of
Colorado: Prepared statement 7



(III)



MEASURES PASSED BY STATE REFERENDUM



WEDNESDAY, APRIL 5, 1995

House of Representatives,
Subcommittee on Courts and

Intellectual Property,
Committee on the Judicdvry,

Washington, DC.
The subcommittee met, pursuant to notice, at 10:07 a.m., in room
2237, Rayburn House Office Building, Hon. Carlos J. Moorhead
(chairman of the subcommittee) presiding.

Present: Representatives Carlos J. Moorhead, F. James Sensen-
brenner, Jr., Bob Goodlatte, Sonny Bono, George W. Gekas,
Charles T. Canady, Martin R. Hoke, Patricia Schroeder, John Con-
yers, Jr., Howard L. Berman, and Xavier Becerra.

Also present: Thomas E. Mooney, chief counsel; Joseph V. Wolfe,
counsel; Mitch Glazier, assistant counsel; Sheila Wood, clerk; Betty
Wheeler, minority counsel, and Perry Apelbaum, minority chief
counsel.

OPENING STATEMENT OF CHAIRMAN MOORHEAD

Mr. Moorhead. The subcommittee will come to order.

Today the Subcommittee on Courts and Intellectual Property is
conducting a hearing on a bill introduced by my colleague from
California, Mr. Bono, by myself, and by a number of members of
the subcommittee. H.R. 1170 would establish, pursuant to the pro-
cedures established in 28 U.S.C. 2284, three-judge court panels in
actions brought in or removed to Federal district courts which chal-
lenge the constitutionality of State laws passed by popular
referenda. The bill further provides for an expedited consideration
of such actions under 28 U.S.C. 2284(b)(1) and grants the right of
appeal to the Supreme Court in line with 28 U.S.C. 1253.

Unlike other acts which provided for three-judge court panel con-
sideration of constitutional challenges to State laws prior to the
abolition of many such panels in 1976, H.R. 1170 is specifically lim-
ited to State laws which are voted on directly by the entire popu-
lace of a State. This legislation more closely parallels apportion-
ment and Voting Rights Act cases which traditionally have been
granted three-judge court panel consideration by Congress because
of the importance of such cases and because such cases are pre-
sented so rarely they do not present the same burden on the courts
as cases which involve constitutional challenges to general State
laws passed by the State legislative process. A Congressional Re-
search Service survey reveals that over the past 10 years only 10
cases in the Nation would have been eligible for review by the

(1)



three-judge court panels which would be established under H.R.
1170.

Proponents of H.R. 1170 maintain that State laws adopted by
referendum or initiative, reflecting the direct will of the electorate
of a State on a given issue, should be afforded greater reverence
than measures passed generally by representative bodies because
of their importance and their expression of the direct vote of the
populace of a State. The use of a three-judge court panel is impera-
tive to the proper balance of State/Federal relations in cases such
as these where one Federal judge can otherwise impede the direct
will of the people of a State because he or she disagrees with the
constitutionality of the provision passed. A three-judge court panel
will help to provide fairer, less politically-motivated consideration
of cases.

[The bill, H.R. 1170, follows:!



104th COxN'GRESS
1st Session



H.R.1170



To provide that cases challen^ng: the constitutionality of measures passed
by State referendum Im lieard by a 3-judge court.



IN THE HOUSE OF REPRESENTATIVES

March 8, 1995
Mr. Bono (for himself. Mr. H-iDE, Mr. MooRHEAD, Mr. Sensenbrenner,
Mr. Gallegly, Mr. COBLE, Mr. Gekas, Mr. Canady of Florida, Mr.
GOODL.VTTE, Mr. Hoke, Mr. Cox of California, Mr. McCollum, Mr.
Dreier, Mr. Paxon, Mr. RiGGS, Mr. LEWIS of California, Mr.
RoiiR.\J3AciiER, Mr. ScHiFF, Mr. Calvert, Mr. Packard, Mr. Smith
of Te.xas, Mr. Baker of California, Mr. Herger, Mr. Hunter, Mr.

DORNAN, Mr. TH0.\LVS, Mr. HEINEMAX, Mr. CUNNINGHAM. Mr. POMBO,
Mr. I.\(;lis of South Carolina, Mr. McKeon, Mr. DOOLITTLE, Mr. KlM.
Mr. Buyer, Mr. Royce, Mr. Flanagan-, Mr. Barr, .Mr. Horn, Mr.
Bryant of Tennes.see, Mr. Bilbr.\y. Mr. Cilvbot, Mr. Rad.vxo\icii.
and Mrs. Seastr.\nd) introduced the following bill; which was referred
to the Committee on the Judiciar\-



A BILL

To provide that cases challenging- the constitutionality of
measures passed by State referendum be heard by a
3-judge court.

1 Be it enacted by f e Seriate and House of Representa-

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

3 SECTION 1. 3-JUDGE COURT IN CERTAIN ACTIONS.

4 (a) In Gener^vL. — Any action that is brought in or

5 removed to a district court of the United States and that



2

1 challenges the constitutionality of a State law adopted by

2 referendum shall be heard and determined by a court of

3 3 judges in accordance with section 2284 of title 28,

4 United States Code, and any appeal of such action shall

5 be to the Supreme Court. In any such action, the addi-

6 tional judges who \vill serve on the 3-judge court shall be

7 designated under section 2284(b)(1) of title 28, United

8 States Code, as soon as practicable, and the court shall

9 exj3edite the consideration of the action.

10 (b) Injunctions Against Enforcement of State

1 1 LiWV. — An interlocutor^' or permanent injunction restrain-

12 ing the enforcement, operation, or execution of a State law

13 adopted by referendum shall not be granted by a district

1 4 court or judge thereof upon the ground of the unconsti-

1 5 tutionality of such State law unless the application for the

16 injunction is heard and determined by a court of 3 judges

17 convened pursuant to subsection (a). For purposes of sub-

18 section (a), the term "action" includes an application for

19 an injunction described in this subsection.

20 SEC. 2. DEFINrnONS.

21 As used ir this Act —

22 (1) the term "State" means each of the several

23 States and the District of Columbia;

24 (2) the term "State law" means the constitu-

25 tion of a State, or any ordinance, rule, regulation,

•HR 1170 IH



3

1 or other measure of a State that has the force of

2 law, and any amendment thereto; and

3 (3) the term "referendum" means the submis-

4 sion to popular vote of a measure passed upon or

5 proposed by a legislative body or by popular initia-

6 tive.

7 SEC. 3. EFFECTIVE DATE.

8 This Act applies to any action commenced on or after

9 the date of the enactment of this Act.

O



•HR 1170 IH



Mr. MoORHKAD. I would like to yield at this time to the ranking
minority member of the subcommittee, my distinguished colleague,
Mrs. Scnroeder.

Mrs. SCHROEDER. Thank you very much, Mr. Chairman.

I want to begin by thanking Mitch Glazier and Tom Mooney for
the great help that they've been to us in putting this hearing to-
gether.

As I think about this meeting this morning, I guess I would sum
up my concern about the bill in the phrase "been there; done that,"
because the concept of the three-judge district court panel in cases
challenging the constitutionality of State laws with a direct appeal
to the Supreme Court is one that I think has been shown to have
failed in the past. It was resoundingly rejected by the judiciary and
the Congress in 1976, and yet, here we are again. So I hope before
we rush on this act we explore our prior history.

I'd also like to say that, once again, I am sorry we're having this
hearing before the Judicial Conference of the United States has an
opportunity to look at this bill. They're going to be the ones living
with it, and I think it's very important to hear what they have to
say. As you know, they have a meeting in 2 months, and at that
time would be able to give us the benefit of their views. I have
strongly opposed our actions earlier this year when we did the
same thing on rule 11 modifications and rule 702 of the Federal
Rules of Evidence because, again, the way I read the Rules Ena-
bling Act, we should have let the Judicial Conference respond.

This will greatly impact the workload of the Federal judiciary. So
I am very pleasea that we will have Judge Edwards with us today
and will be anxious to hear what he has to say about that. I know
we also have a letter from the Judicial Conference recounting their
past positions on three-judge courts, and it is worthy to note that
in the letter they state, "Since 1970, the Conference has opposed
three-judge courts except for reapportionment cases." The Con-
ference also has had strong opposition in the past to statutory pro-
visions that mandate litigation priority because this messes up the
whole court schedule and says some cases are more important than
others.

I think it's also important to look at unintended consequences.
You know, the law of unintended consequences raises its ugly head
all the time. Right now, many of the cases that challenge the con-
stitutionality of State laws are brought not in the Federal courts,
but in the State court, and I fear that if we pass this bill, we will
find that we're really forcing everything into the Federal court. And
I ask, is that a good idea?

When you look to the legal challenges of proposition 187 in Cali-
fornia, for example, there are lawsuits pending in both the State
and the Federal courts, and the Los Angeles Times reports that
Governor Wilson and the California attorney general have argued
the State courts should be allowed to interpret proposition 187 be-
fore the Federal courts take it up. Now I don't particularly agree
with that because you've got a Supreme Court decision, and I don't
know why proponents of State court review would support this bill,
with expedited review by a three-Federal-judge panel and an ap-
peal to the Supreme Court, bypassing the court of appeals. I think
it just is going to make everybody move the forum from State to



Federal courts because they think it's a faster track to the Supreme
Court.

I'm interested, also, in exploring the premise of the bill which is
that a State law enacted by ballot is somehow more worthy than
a State law enacted by a State legislature. This bill says tnat we
give preferential treatment with respect to Federal review to any-
thing that was passed by the people directly. I don't think we have
any business making that kind of judgment. That's a fairly serious
judgment of which laws are allowed more gravitas in the system.

Ultimately, I think the bottom line was best stated by the UCLA
professor who said, "It ought to make no difference whether it's a
ballot measure, because the people have no greater authority to
transgress the Constitution than their representatives in the State
legislature do." I don't read anywhere in the Constitution that the
people have more of an ability to rip it up than their elected rep-
resentatives do.

The education component of proposition 187 has been specifically
designed to spur a lawsuit to seek to overturn the 1982 Supreme
Court decision, and, therefore, it's not too surprising that the in-
iunction that was issued had to be issued, and probably would have
been issued by any court pending further court review of the mat-
ter. If there's public unhappiness with the process, the fault is not
with the judicial process that results in an injunction when the Su-
preme Court's been very clear on that point, but those who might
wish to politically exploit this public frustration and emotion. I
think we all have some responsibility to give some greater under-
standing to the process of constitutional law because it is such an
important component of what we all believe in.

So I join the chairman in welcoming our witnesses and I look for-
ward to the hearing this morning, Mr. Chairman.

Mr. MOORHEAD. Thank you.

[The prepared statement of Mrs. Schroeder follows:]

Prepared Statement of Ho.n. Patricia Schroeder, a Representative in
Congress From the State of Colorado

Thank you, Mr. Chairman. I want to begin by thanking you and your staff, in par-
ticular Mitch Glazier and Tom Mooney, lor the cooperation afforded to us in plan-
ning today's hearing. We greatly appreciate that.

In thinking about the subject matter of today's hearing, I find that this whole
issue is best summed up by that profound phrase, "been there, done that." The con-
cept of a three-judge district court in cases challenging the constitutionality of state
laws, with a direct appeal to the Supreme Court, is one that has failed the test of
time. It is a concept that was resoundingly rejected by the judiciary and by the Con-
gress in 1976, based on long experience. I hope that we will have ample opportunity
this morning to explore our prior history with respect to three-judge district courts,
so that we will not approve a proposal that has already proved unworkable.

I would also register my disappointment, Mr. Chairman, that we are holding this
hearing before the Judicial Conference of the United States has an opportunity to
take a position on this bill. It is my understanding that the Judicial Conference's
Committee on Federal-State Jurisdiction is meeting in just two months, and would
be able to give us the benefit of their views on this bill after that meeting. As you
will recall, I stronglv opposed our actions earlier this year with respect to modifica-
tions to Rule 11 ofthe Federal Rules of Civil Procedure, and to Rule 702 of the Fed-
eral Rules of Evidence, because we rushed those amendments through without going
through the procedures of the Rules Enabling Act that would have provided us with
the perspectives ofthe Judicial Conference and the Supreme Court as we considered
those rules changes.

Today, we are considering a bill whose most obvious impact would be on the work-
load ofthe federal judiciary. I am pleased that we will be hearing from Chief Judge



8

Edwards this morning, but I do not think there is any reason why we must rush
forward with hearings and markup of this bill without first soliciting the views of
the Judicial Conference. Since that would result in no more than a two-month delay
in our consideration of this bill, that short delay seems to me a small price to pay
for the inclusion of the federal judiciary in our process.

We do have a letter from the Judicial Conference recounting their past positions
on questions involving three judge courts, and it is worthy of note that consistently
since 1970, the Conference has opposed three-judge courts except for reapportion-
ment cases involving congressional redistricting or statewide reapportionment. The
Conference also notes its strong opposition to statutory provisions imposing litiga-
tion priority. 1 hope we will have an opportunity to hear from the Judicial Con-
ference on this specific bill before we move to markup.

It is a sound practice to consider the unintended consequences that may result
from a contemplated action, and I think that is particularly true in this case. Right
now, many cases challenging the constitutionality of state laws are brought, not in
federal court, but in state court. An unintended consequence of this bill could be to
make it much more likely that federal courts, and not state courts, will be the forum
for these cases.

If one looks at the legal challenges to Proposition 187 in California, for example,
there are lawsuits pending both in state and federal courts. The Los Angeles Times
reports that both Governor Wilson and California Attorney General Dan Lungren
have argued that state courts should be allowed to interpret Prop. 187 before federal
courts take it up. I don't particularly agree with that view, but for those who do,
I think you should consider the fact that a bill that requires expedited review by
a three judge federal court, and a direct appeal to the Supreme Court, bypassing
the Court of Appeals, will almost certainly have the consequence of making federal
court a much more appealing forum than state courts in these cases, because of the
faster and more direct track to the Supreme Court. The expedited federal track will
also make it more likely that the federal court process will eclipse any opportunity
for state court review.

I am also interested in exploring the premise of this bill, which is that a state
law enacted by a ballot measure is somehow more worthy than a state law enacted
by a state legislature. What this bill says is that we will give preferential treatment,
with respect to federal review, to referenda and initiatives. What does that say to
the significant number of states that do not have referendum and initiative? That
their form of democracy is of lesser value? I don't think we have any business mak-
ing that kind of judgment. Indeed, a strong argument can be made that the give
and take of the legislative process, with hearings, markup, and debate, is likely to
produce a better product than an initiative process in which voters can vote "yes"
or "no," but have no method to refine the proposal.

Ultimately, however, the bottom line was best stated by UCLA law professor Evan
Caminker, who said, "It ought to make no difference that it is a ballot measure, be-
cause the people have no greater authority to transgress the Constitution than does
the state Legislature." I can't help but think that the impetus for this measure
comes, in large part, from the frustration that many Californians reportedly feel
with the federal court injunction that has been issued with respect to Prop. 187. If
this is true, it is worth noting that an injunction has been issued by a state court
judge, with respect to parts of Prop. 187, as well as by a federal court judge.

Tlie education component of Prop. 187 was specifically designed to spur a lawsuit
to seek to overturn the 1982 Supreme Court decision in Plyler v. Doe. Therefore,
it should not be particularly surprising to anyone that an injunction has issued
pending further court review of the matter. If there is public unhappiness with that
process, the fault is not with a judicial process that results in an injunction when
there is clear Supreme Court law on point, but rather with those who would politi-
cally exploit that public frustration, instead of furthering greater public understand-
ing of the process of constitutional law.

I join the Chairman in welcoming our witnesses today, and look forward to hear-
ing your views.

Mr. MOORHEAD. I recognize at this time the gentleman from
CaHfornia, Mr. Bono.

Mr. Bono. Thank you, Mr. Chairman, and I want to thank all
my cosponsors.

I would like to just submit my written testimony and briefly talk
about why I thought this bill was appropriate.



The bill was introduced, Mr. Chairman, basically, because 5 mil-
lion people voted for a measure and one hand-picked Federal judge
has decided that he will not hear the case until almost a year later.
Simply speaking, not being a lawyer and coming from a point of
just common-sense observation, it appears to me that we have ref-
erendums in California so that the people do have a voice. When
the politicians don't represent their voice, they, themselves, can ini-
tiate a proposition, and if it has the approval of the majority of the
people, it passes. And by that process, it seems to indicate it is the
desire of the public to implement this law, even if it is overlooked
by the legislature, which is a fine system.

However, I think there's a loophole in the system, and the loop-
hole is simply that when a referendum is passed, especially one by
a very large number, that the opposition to that referendum can
simply at the time of its passage take it and shop a judge until
they find a judge that is sympathetic to their position, and that
judge can then use legal maneuvers to sit and sort of bury that
proposition, and it just sits there and then goes through an endless
process that never brings about the will of the people.

Again, I think it's a loophole. And when I saw that acted out on


1 3 4 5 6 7 8 9

Online LibraryUnited States. Congress. House. Committee on the JMeasures passed by state referendum : hearing before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 1170 ... April 5, 1995 → online text (page 1 of 9)