September 30, 2018

House Judiciary Committee approves courts bills despite concerns

The House Judiciary Committee approved three of four bills Sept. 13 that ABA President Robert M. Carlson warned include substantive provisions that will “profoundly affect litigants who seek civil redress through our federal and state court systems.”

In a Sept. 13 letter to House Judiciary Committee Chairman Robert W. Goodlatte (R-Va.) and Ranking Member Jerrold Nadler (D-N.Y.), Carlson emphasized that committee members were asked to mark up the bills without an opportunity to thoroughly review them. Three of the bills, he noted, were introduced only a few days before they were considered by the committee.

In his letter, Carlson highlighted some of the major provisions in the bills approved by the committee on which the ABA has policy.

  • H.R. 6755 is a sweeping bill to reorganize the federal judiciary covering a “remarkable range of subjects,” Carlson said. He noted that while the ABA has no policy on most of the bill’s provisions, the association strongly supports Title 1 of the bill, which proposes the creation (or conversion to permanent status) of district court judgeships as recommended by the Judicial Conference of the United States. He also thanked bill sponsor Rep. Darrell Issa (R-Calif.) for holding hearings and supporting the additional district judgeships.

He recommended further review, however, of the numerous other provisions proposed for the first time in the bill, including those that: pertain to specific courthouse construction projects; require the Judicial Conference to issue a Code of Judicial Conduct that would apply to each justice and judge of the United States; require each justice or judge to undergo a periodic medical examination; and govern the Public Access to Court Electronic Records (PACE) system.

  • H.R. 6754, which would restructure the Ninth Circuit into three regionally based divisions, is based on recommendations developed 20 years ago by the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission). The ABA opposed the commission recommendations, which also did not garner widespread support in Congress. Even though multiple bills to split or restructure the Ninth Circuit have been introduced over the years, no action has been taken on the proposals.

The ABA has consistently opposed all subsequent efforts to restructure the circuit based on its belief that there is no compelling evidence that justice is being denied.

  • The ABA has no specific policy on H.R 6730, the third courts bill approved by the committee.  The bill seeks to ban the issuance by district court judges of so-called “national injunctions” in non-class action cases that forbid enforcement of a “statute, regulation, or similar authority” against a non-party.

Concerned by the range of jurisdictional, constitutional, precedential, and policy considerations that were raised during a general hearing on the injunction issue, Carlson recommended that the committee delay consideration of H.R. 6730 so that there can be “thoughtful and dispassionate bipartisan consideration” of the legislation.

The committee did not act on the fourth bill, H.R. 3487, which would replace the current diversity of citizen jurisdiction requirement with a minimal diversity standard requiring that only one plaintiff be diverse from one defendant. This would dramatically alter the long-standing judicially created requirement that diversity of citizenship may only be invoked when there is complete diversity between each and every plaintiff on the one hand and every defendant on the other.

“Enactment of a minimal diversity standard would recalibrate our current system to coordinate federal-state jurisdiction and result in a significant increase of diversity jurisdiction cases being filed in the federal courts,” Carlson said. This, he explained, would result in untenable caseloads that would lead to inefficiencies and delays through the federal court system.