H.R. 1752 Addresses Needs of Federal Court System

Testifying before the House Judiciary Subcommittee on Courts and Intellectual Property on the Federal Courts Improvement Act of 1999 were Magistrate Judge Joel B. Rosen (D. N.J.), Magistrate Judge Robert B. Collings (D. Mass.), and, for the Judicial Conference, Judge Harvey Schlesinger (M.D. Fla.).

A representative of the Judicial Conference appeared before Congress last month to urge passage of a bill that would improve the effectiveness and efficiency of the federal Judiciary. Judge Harvey Schlesinger (M.D. Fla.), chair of the Conference Committee on the Administration of the Magistrate Judges System, testified before the House Judiciary Subcommittee on Courts and Intellectual Property on H.R. 1752, the Federal Courts Improvement Act of 1999. Magistrate Judge Joel B. Rosen (D. N.J.) also testified at the hearing on behalf of the Federal Magistrate Judges Association, of which he is president. He was accompanied by Magistrate Judge Robert B. Collings (D. Mass.).

The bill contains 42 separate provisions and touches upon a wide range of issues including federal court jurisdiction, the authority of judicial officers and judicial branch personnel, and administrative operations. Twenty-nine of the bill’s provisions passed the House last Congress in the bill, H.R. 2294. In the 106th Congress, H.R. 1752 was introduced in the House by subcommittee chair Howard Coble (R-NC) and ranking subcommittee member Howard L. Berman (D-CA).

In his testimony on H.R. 1752, Schlesinger addressed a provision that would provide magistrate judges with summary criminal contempt authority to punish any misbehavior occurring in their presence. “The need for power to immediately vindicate the court’s authority in the face of disruptive behavior,” Schlesinger told the subcommittee, “exists whenever a magistrate judge presides for the district court regardless of litigant consent.”

Rosen testified that the bill limits the penalties imposed by magistrate judges in contempt situation, but provides the authority needed to conduct the business of the district court effectively. The provision was contained in H. R. 2294, which passed the House in the last Congress. The Department of Justice has expressed the view that this exercise of contempt authority could be held unconstitutional, as a power belonging solely to Article III judges.

Schlesinger also testified in favor of a provision that directly relates to the personal safety of federal judicial officers. Because of safety concerns raised by a significant increase over the past 10 years in threats against judges and their families, federal judicial officers may choose to carry firearms. A provision in H.R. 1752 would effectively require judges who carry firearms to successfully participate in a training and safety program. The provision also would provide that federal judges are, in most circumstances, exempted from state and local firearms laws and regulations. “When they cross state lines, the firearms license from their home state loses its effect,” said Schlesinger. “Because of this, judges in travel status often are not able to be armed. Clearly, if a judge is in danger, the fact that he or she is in one state or the other does not eliminate the danger.”

H.R. 1752 also would repeal the automatic excuse from jury service now granted to members of the Armed Forces, members of fire and police departments, and public officials—which even bars from service elected or appointed officials such as school board officials, state legislators, as well as secretaries and clerks appointed by these officials. “These exemptions were established in 1948 on the assumption that it would be a waste of time to include on juries persons whose jobs affect public health, safety, or welfare,” Schlesinger testified. “More recent experience has indicated, however, that many individuals who fall within the scope of these exemptions could easily serve.”

H.R. 1752 also addresses recommendations of the Federal Courts Study Committee; improvements to the judicial process including limitations on the removal to federal court of cases under the Employee Retirement Income Security Act; the elimination of in-state plaintiff diversity jurisdiction; a modification of the “Rule of 80” to allow judges to take senior status at age 60 with 20 years of service; and expanded workers’ compensation coverage for jurors, the elimination of the public drawing requirement for selection of juror wheels, and other modifications to the jury selection process. Title V of the bill would increase the maximum compensation amounts for Criminal Justice Act attorneys by approximately the rate of inflation since 1986 (43.3 percent), the last year case compensation maximums were increased. The section also would change the case compensation maximum applicable to counsel representing non-capital habeas corpus petitioners, as well as the compensation maximums of investigators, experts, and other service providers. It is not anticipated the changes would have a significant budgetary impact because chief judges of the courts of appeals (or their designees) already have the authority to approve compensation in excess of the statutory limits in appropriate cases. The complete text of the Federal Courts Improvement Act of 1999 can be found on the Judiciary’s website at www.uscourts.gov. under “What’s New.”

The subcommittee also heard testimony on H.R. 2112, the “Multidistrict, Multiparty, Multiforum Jurisdiction Act of 1999.” The bill was introduced by Rep-resentative James Sensenbrenner (R-WI), and would amend the multidistrict litigation statute by allowing a transferee court to retain jurisdiction over referred cases for trial, or refer them to other districts. Judge John F. Nangle, chair of the Judicial Panel on Multidistrict Litigation, testified in support of the legislation.

H.R. 1752, the Federal Courts Improvement Act of 1999, contains provisions touching on a wide range of issues, some of which would: Provide that, unless the party files a timely objection to a bankruptcy judge’s proposed findings of fact and conclusions of law, that party will be deemed to have consented to them and they become final. The Department of Justice opposes this provision. Authorize the reimbursement of the Judiciary from the Asset Forfeiture Fund for costs arising from the forfeiture of assets of defendants. DOJ opposes this provision as an inappropriate mechanism. Increase filing fees for certain bankruptcy cases to reflect more accurately the resources required to process the case and to correct inconsistencies. DOJ opposes allowing bankruptcy administrators to place Chapter 11 quarterly fees into a fund to be used by the entire Judiciary. Create certifying officers in the judicial branch to enhance financial accountability and improve utilization of administrative resources. Provide the Judiciary with the authority to set, collect, and retain fees for the use of electronic filing, videoconferencing and electronic evidence presentation devices. DOJ opposes the imposition of these fees on government agencies. Repeal in-state plaintiff diversity jurisdiction. DOJ opposes this provision’s modification of diversity jurisdiction. Provide statutory authority for bankruptcy administrators in Alabama and North Carolina to appoint trustees, examiners, and committee of creditors. DOJ has reservations about the efficacy of this provision. Extend statutory authority for magistrate judge positions to be established in the district courts of Guam and the Northern Mariana Islands. Establish a place of holding court in the Eastern District Of Texas. Reauthorize the federal substance abuse treatment program for fiscal year 1999 and subsequent years. Allow a transferee judge to retain cases for trial or transfer those cases to another judicial district for trial (Multidistrict Trial Jurisdiction Act of 1999). Provide for participation of senior judges as members of the circuit judicial councils, as recommended in the Long Range Plan for the Federal Courts. Modify the “rule of 80” to permit a judge with 20 years in service who has reached age 60 to take senior status, although the minimum age for a judge’s retirement remains age 65 with at least 15 years in service. Permit the U.S. Court of Appeals for the Federal Circuit to appoint a clerk of court/circuit executive. Amend the Jury Selection and Service Act to permit the chief judge to authorize the clerk of the court, under supervision of the court, to determine whether persons are qualified, unqualified, exempt, or excused from jury service. Shorten the number of days that a juror is required to serve before he or she is eligible for the supplemental daily fee. Exempt federal public defender organization officers and employees from the Federal Tort Claims Act for claims related to representational services. Eliminate the mandatory retirement age for the Director of the Federal Judicial Center, now set at 70.