Mr. Chairman and Members of the Subcommittee:
Thank you for this opportunity to discuss the suggestion that constitutional challenges to laws enacted by referendum be heard by a three-judge District Court, with an appeal directly to the Supreme Court.
I am a Professor of Law at NYU and served as National Legal Director of the American Civil Liberties Union from 1982-86. More importantly for the purposes of this hearing, I served on the ACLU Legal staff from 1967-74 and participated in numerous three-judge court proceedings. I appear at the invitation of the Committee's minority members.
As the Committee knows, from 1908-1976, constitutional challenges to state statutes were heard by three-judge tribunals similar to the courts envisioned by HR 1170. in 1976, virtually everyone connected with constitutional litigation, regardless of political persuasion, agreed that three-judge courts were an unnecessary waste of scarce judicial resources and a cumbersome and inefficient way to deal with a complex legal proceeding. Accordingly, three-judge courts were virtually abolished by Congress, except in certain voting rights cases and in settings where Congress wished to assure immediate review by the Supreme Court of an important federal statute. Predictably, three-judge courts have continued to perform very badly in those narrow settings where Congress has retained them. In my opinion, three- judge courts simply cannot provide an efficient procedure to test the constitutionality of statutes (state or federal). It would, therefore, be a genuine mistake to extend the use of three-judge courts to cases challenging the constitutionality of state laws enacted by referendum.
1. The Historic Need for Three-Judge Courts-No Longer Exists........
Three-judge courts were initially established to deal with two evils. First, at the turn of the century, federal procedure permitted a judge to issue an ex parte injunction that could paralyze an important state statute without the possibility of a hearing on the merits. Moreover such an ex parte order was often deemed unappealable because it was interlocutory. The net result was the possibility that a single judge, acting ex parte, could freeze state law for extended periods of time with virtually no possibility of appeal. Requiring the concurrence of three judges was seen as a way of assuring that the ex parte power was not abused.
Modern procedure has abolished the ex varte injunction. Before a contemporary judge can issue a preliminary injunction, she must hold a careful public hearing at which the law and the facts can be considered. Moreover, a preliminary injunction issued after such a hearing is now deemed a final order, permitting an immediate appeal to the Circuit by an aggrieved party.
Second, at the turn of the century, litigants could maneuver a case before a friendly judge by the simple expedient of presenting the judge with an application for an ex parte injunction. Requiring a court made up of three judges made it less likely that the litigants had stacked the court.
Today, the procedures in effect in every District require the random selection of judges, making it impossible to use unfair tactics to judge-shop. Thus, the twin evils of unappealable ex parte orders and rampant judge-shopping that gave rise to three- judge courts no longer exist.
2. Three-Judge Courts Waste Valuable Judicial Resources....
A three-judge court wastes valuable judicial resources in two ways. First, it requires three judges (including one Circuit judge) to do the work that is usually done by a single trial judge. In a system that is desperately starved for resources, requiring three-judge trial courts literally triples the judge time needed to process the preliminary aspects of a case (discovery, for example). Moreover, requiring a three-judge tribunal triples the judicial workload associated with fact- finding. Since fact-finding is the most labor intensive part of the litigation process, requiring three-judge courts is the equivalent of removing two/thirds of the judicial resources available to hear the cases in question.
Second, the three-judge court process distorts the review processed of the Supreme Court. In cases handled by a single judge, when a case comes to the Supreme court, it has already undergone trial level fact-finding and one level of appellate review. Three-judge court cases, however, do not undergo any appellate review prior to Supreme Court review. Thus, in three- judge court cases, if any appellate review is to take place, it must occur initially at the level of the Supreme Court. Forcing the Court to function as a first-level review tribunal is, however, an inappropriate imposition on its extremely scarce resources. The Supreme Court hears literally thousands of petitions for review each year. It is wrong to impose upon the Court by turning review petitions in three-judge court cases into requests for an initial appellate hearing.
Proponents of HR 1170 argue that the additional judicial workload engendered by three-judge courts is tolerable in referendum cases because there are so few of them. Such an argument overlooks a number of important points. First, any unnecessary increase in the workload of the federal courts is inappropriate. This Committee is aware that the workload of the federal courts has reached crisis proportion. Every unnecessary increase should be resisted.
Second, proponents overlook the fact that challenges to referenda will be disproportionately centered in particular Circuits. The use of initiative and referendum as a legislative device is more likely to be found in Western states. It is likely that the brunt of the additional workload imposed by HR 1170 will be felt in the 9th and 10th Circuits. If there is one Circuit that simply cannot absorb additional workload, it is the Ninth.
Third, referendum cases are likely to involve complex issues of fact. Often, the issue in a constitutional case turns on the factual need for the law. In non-referendum cases, a legislative record will often have developed much of the factual material needed to test a law's factual necessity. By definition, however, referendum cases lack a formal legislative record. Thus, a referendum case is likely to impose significant fact-finding burdens on the trial court.
Finally, it will prove extremely difficult to require referenda to undergo three-judge court review, while relegating legislation enacted through traditional representative democracy to single- judge courts. In effect, HR 1170 sets up two classes of democratic activity. Referenda are deemed "first class" democratic exercises worthy of three-judge court review. Statutes enacted by legislatures are seen as "second class" exercises in democracy meriting single judge protection. There is, however, no consensus that referenda are superior to ordinary legislation as exercises in democracy. Quite the contrary, the Founders profoundly mistrusted direct democracy because of its capacity to be swayed by passion. Certainly, Congress should not discriminate in favor of referenda and against legislation in setting up procedural. ground-rules. Thus, if Congress resuscitates three judge courts when referenda are at stake, it is only a matter of time until three judge courts are restored across the board.
3. Three Judge Courts Perform Extremely Inefficiently....
My experience with numerous three judge courts in the late 1960's and early 1970's was that they were procedural nightmares. The simple logistical, necessity of assembling the three judges in a single courtroom took enormous energy. In Circuits where the judges are widely separated, the task often bordered on the impossible. Not only was the trip difficult, but the court calendars of the travelling judges had to be suspended white he or she was away. In widely dispersed Circuits like the 10th, the three-judge Court would have to be assembled at enormous cost- both economic and human.
Moreover, once the Court was assembled, it was impossible to keep it in continuous session in order to hold factual hearings. Judges would be required to go back to their courtroom for emergencies. The tension in the courtroom was palpable because the judges understandably wanted the case over so that they could return home. Pre-trial proceedings were a quagmire. Discovery issues consumed enormous resources. Hearings on preliminary or final injunctions became immensely complex. For example, every evidence objection had to be ruled on seriatim by the three judges. The net effect was to force the judges to strain against fact-finding and to attempt to turn every case into a facial exercise in pure law. It is, however, folly to set up procedural mechanisms that inhibit the kind of careful fact-finding that should be the hallmark of judicial review.
My experience is reinforced by the melancholy history of contemporary three judge court proceedings. In FCC v. Turner Broadcasting, 114 S.Ct. 2445 (1994), Congress provided for three- judge court review of the Cable Act of 1992. The procedural results have been a certified disaster. The time of three judges is now being consumed in a fact intensive trial level inquiry that should be the province of a single judge, subject to appropriate review by the Circuit.
I believe, therefore, that three-judge courts should be left to slumber in well-deserved obscurity.