UNITED STATES COURT OF APPEALS, ELMORE WHITEHURST, Esq.. House of Representatives, Washington, D. C. DEAR MR. WHITEHURST: Your letter to me of March 14th was written also to Mr. Holtzoff, and he has shown me his reply. His answers to the first 12 questions I adopt, subject only to the few following comments: Question 3. Additional cost: This question will, of course, depend upon the number of men in addition to the administrative officer and his assistant who will be required for field work, and my own opinion is that the number will not exceed 15. Undoubtedly there are several circuits in which 1 man can keep in constant touch with the dockets of the courts and the conduct generally by the courts of their business, so that the expenses of travel and the salary of 15 men, plus the salaries of the administrative officer and his assistant, would seem to me to approximate the difference between the present cost and the new cost, and this is only necessary because under the new set-up important work will be done which is not done now. Question 9. There, of course, is no objection to amending the bill to provide for the transfer from the Department of Justice to the new agency of the present personnel employed in the court work. Question 10. Some office space will have to be provided for the administrative officer and his assistant and the men transferred from the Department of Justice who handle the finances, and it may be that room in the Supreme Court Building will be available for this purpose. Certainly it will not be required to provide any new office building or new equipment. Question 13. This question is answered by Mr. Holtzoff correctly. If it is thought that the traveling expenses of the judges outside the country in attendance on the conferences are too great, the bill can be amended to confine the conference entirely to judges within the continental United States. Question 14. Would the bill entail travel of inspectors to Hawaii and China at Government expense? This question should in my opinion be answered "No." The administrative officer would certainly provide for inspection of matters in China and Hawaii through some other means than sending out inspectors from continental United States, except when the service was essentially required. There is no objection on my part to an amendment of the bill to carry this stated idea into effect. Question 15. This question raises an interesting constitutional question. In my opinion the proposed administrative officer is an inferior officer in the same respect as is the clerk of a court or a United States commissioner; and it may be that the constitutional provision will be met by vesting his appointment in the Chief Justice as the presiding officer of the Judicial Conference, for the proposed officer is not an officer of the Supreme Court but is an officer of the Judicial Conference. The Judicial Conference is a statutory body comprising the 11 senior judges of the circuit courts of appeals, and the Chief Justice is its presiding officer. But, since I am unable to find any case which throws any light upon the question, I would like to postpone my answer until the Chief Justice is sufficiently recovered and I can consult with him. The present provision in the bill was inserted with his full approval. Obviously the constitutional provision would be met by vesting the appointment in the Supreme Court. With your permission, I shall write you again on this subject within the next 3 or 4 days. Question 16. With relation to participation in the conference by the public: This seems to me to be without merit. The general public in my opinion is not sufficiently informed as to the technical matters dealt with by conferences of judges and lawyers to be of help in making suggestions as to the administration of justice. On the other hand, the participation of the bar will bring to the conference all that is needed in the line of public participation. Question 17. Rotation in responsibility: My experience is that power and responsibility should be centered in one person, preferably the senior judge. Rotation would inevitably tend toward laxness of administration. Experience teaches that the courts which have a permanent presiding officer are better administered than those with a revolving chief justiceship. Concentration of administrative authority in the senior judges, district and circuit, has been long settled in the Federal system, and I have never heard any good reason to disturb it. Question 18. Exchange of views between conferences: A conference composed of all the judges of the country would be unwieldy. I think sufficient provision for the interchange of views is provided in the Conference of Senior Circuit Judges. Under the bill that body will have before it all of the quarterly reports submitted to each circuit, and its duty will be to act where action is necessary and, since it is composed of a judge from each circuit, I think the point in mind is amply covered. Question 19. Substitution of the word "word" for "term": The answer to this question is "No", as what is dealt with is not a word but a term or expression embracing three words. If the answers furnished by Mr. Holtzoff and by me are not sufficiently responsive, I shall be very grateful to you if you will let me know what more is desired by the committee. I am sure that the committee and the judges and the bar share a common desire to have the bill as nearly perfect as possible. With kind regards. D. LAWRENCE GRONER. UNITED STATES COURT OF APPEALS, ELMORE WHItehurst, Esq., Clerk, Committee on the Judiciary, House of Representatives, Washington, D. C. DEAR MR. WHITEHURST: I promised you I would later advise you my more considered opinion in answer to the committee's question whether the provisions of article II, section 2, of the Constitution would permit vesting the appointment of the Director in the Chief Justice. I had hoped to find some authority on the subject, but there is none. In its absence, my opinion is that, if the question should ever be raised, it would be held by the court that the vesting of the appointment in the Chief Justice is a sufficient compliance with the provision authorizing the vesting in the courts of law. I also think it not unlikely that it would be held that the words "heads of departments" embraced the Chief Justice as the head of the judicial department, since at the time of the adoption of the Constitution there were no other departments than the three mentioned in the Constitution-legislative, executive, and judicial. But I wish you would say to the committee that I do not desire to press this agrument if there is a feeling on the part of the committee that it would be safer or wiser to vest the appointment in the Supreme Court. I have no doubt that in actual practice the latter would delegate the authority to the Chief Justice, so that as a practical matter the change is not of very great consequence. There is one other change in the bill as now written which I should like to have made. On page 3, line 12, subsection (3) of the duties of the Director should be rewritten as follows: "(3) The disbursement, directly and through the several United States marshals as now provided by law, of the moneys appropriated for the maintenance, support, and operation of the courts." The statutes of the United States (title 28, U. S. C., secs. 224, 374, 505, 544, 564, 565, 566, 586, 592, and 608; and R. S., sec. 846) make the marshal the disbursing officer of practically all the moneys used by the courts except that expended for the purchase of supplies, law books, and the payment of rentals. He pays the jurors, the witnesses, the salaries of the judges and of the court officials, and it is, of course, desirable that this practice should continue under the control of the Director rather than as now under the control of the Department of Justice. In other words, instead of transferring this duty to some new employee of the Director, under the rewritten provision as above the duties would be performed as now, without additional cost or the employment of additional men and to the very great convenience of all concerned. I think, too, it would be well to strike out of the bill any provision in relation to the Supreme Court and Circuit Court of Hawaii, as the expenses of those courts are borne by the Territorial legislature. And I think it would be desirable, in order to avoid the travel expenses of judges from outside the United States to change section 306, page 6, line 4, by inserting after the words "district judges" "residing within the continental United States," and also to change section 304, page 3, subsection (2), by adding the words "but inspections of the dockets of the courts outside the continental United States shall be made through officials of the United States Government residing within the jurisdiction, respectively, of the several courts". This would avoid any question of sending inspectors to China and elsewhere and at the same time would enable the Director to keep a statistical chart of the business of these courts. With these changes, I think the bill is as nearly satisfactory to everyone as it can be made, and I shall be glad if you will bring these matters to the attention of the committee as soon as possible. With kind regards to you and best wishes, I am D. LAWRENCE Groner. DEPARTMENT OF JUSTICE, Washington, D. C., March 23, 1939. ELMORE WHITEHURST, Esq., Clerk, Committee on the Judiciary, House of Representatives, Washington, D. C. Mr. DEAR MR. WHITEHURST: This is submitted in response to your oral query in regard to the bill (H. R. 2973) to establish an administrative office for United States courts, etc. Your specific inquiry is whether or not the bill would, if enacted, in any manner affect the existing power of the Comptroller General over the expenditures of the judicial branch of the Government. My answer to that question is in the negative. Under the present system the disbursements in behalf of the courts are made by the United States marshals and are audited by the Department of Justive. This audit is then transmitted to the Comptroller General, who makes a final audit. If the bill becomes law, the administrative audit will be made by the Director of the Administrative Office, who would then transmit the accounts to the Comptroller General for a final audit. This results from the provisions of United States Code, title 31, section 71, which confers on the office of the Comptroller General general authority over the settlement and adjustment of all accounts in which the Government of the United States is concerned; and from the provisions of United States Code, title 31, section 72, paragraph 8, which provides that the office of the Comptroller General shall receive and examine all accounts relating to the United States courts, among other items. With best regards, Sincerely yours, ALEXANDER HOLTZOFF, Special Assistant to the Attorney General. Mr. CHANDLER. In connection with the suggested elimination of the Supreme Court of Hawaii and the circuit courts of that Territory from the provisions of the bill, I think it advisable to place in the record the letter of Associate Justice Kemp, of the Supreme Court of Hawaii, to Chairman Sumners, dated March 2, 1939; the letter from Hon. Samuel W. King, Delegate from Hawaii, to Chairman Sumners, dated March 16, 1939; and the letter from Mr. Holtzoff to Mr. Whitehurst, dated March 27, 1939: Hon. HATTON W. SUMNERS, TERRITORY OF HAWAII, Aliiolani Hale, Honolulu, March 2. 1939. Congressman From Texas, House Office Building, Washington, D. C. DEAR SIR: The Honorable Samuel Wilder King, Delegate from Hawaii, has sent me a copy of your bill, H. R. 2973, which you introduced in the Congress on January 20, 1939, and which provides for an amendment to the judicial code by adding thereto a new chapter entitled, "The Administration of the United States Courts." Chief Justice Coke and I have examined the bill and in the absence of Associate Justice Peters have decided to call you attention to some of the provisions of said bill which we believe would add very materially to the work of our clerical staff, as well as to the clerical staffs of the circuit courts of the Territory and would be of no practical benefit to the Director. The Supreme Court of the Territory of Hawaii and the circuit courts of the Territory of Hawaii are included within the terms of your bill by section 307 thereof. All of the expenses of these courts except the salaries of the judges, which are now paid by the United States through the local marshal, are appropriated by the Territorial legislature and an annual report of the expenditure of said money is now required by Territorial law to be made to the Governor, and every 2 years to the Territorial legislature. It seems to us that under the provisions of section 304 of your bill the Director would necessarily call upon the clerk and other clerical administrative personnel to furnish him with information necessary to enable him to carry out the duties imposed upon him and that no good purpose would be served thereby for the reason that we have no right to call upon the United States Government for assistance, financial or otherwise, in the conducting of the business of the court. If you care to have us comment further upon the desirability of including the Territorial courts in your bill we shall be very glad to hear from you, setting forth what further information you may desire. Chief Justice Coke has read and approves the contents of this letter. We are taking the liberty of sending Delegate King a copy of this letter for his information. Yours very truly. S. B. KEMP, CONGRESS OF THE UNITED STATES, Hon. HATTON W. SUMNERS, Chairman, Committee on the Judiciary, HOUSE OF REPRESENTATIVES, House of Representatives, Washington, D. C. DEAR JUDGE SUMNERS: I am in receipt of a letter from Associate Justice Samuel B. Kemp, of the Supreme Court of the Territory of Hawaii, together with a copy of his letter to you commenting on your bill (H. R. 2937) to provide for the administration of the United States courts, and for other purposes. Judging from this correspondence and a reading of the bill, the Territorial judiciary would come under the jurisdiction of the director of the proposed administration of United States courts. As our Territorial courts exercise solely Territorial jurisdiction, it might seem that there would be no necessity for placing them under the new office. Although the judges of our Territorial courts are appointed by the President of the United States, confirmed by the United States Senate, and paid by the Federal Government, their position is in effect that of State judges. In this regard Hawaii differs from Alaska where, I understand, the judges exercise both Federal and local jurisdiction. In view of Justice Kemp's recommendation, may I suggest that the Territorial courts be excluded from the provision of your bill. If you desire, I shall be very happy to discuss this with you further. With warmest personal regards, I am ELMORE WHitehurst, Esq., Clerk, Committee on the Judiciary, S. W. KING. Department of Justice, Washington, D. C., March 27, 1939. House of Representatives, Washington, D. C. DEAR MR. WHITEHURST: In compliance with your request of March 24, I have examined the enclosed letter from Associate Justice Kemp, of the Supreme Court of the Territory of Hawaii, in which he recommends that the Supreme Court of Hawaii and the circuit courts of Hawaii, be excluded from the provisions of the bill to create an administrative office for the United States courts. Justice Kemp correctly points out that while the appropriations for the salaries of the justices of those tribunals are made by the Congress, and the payment of salaries is made by the United States marshal, all other expenses of the courts are borne by the Territorial legislature. While in drafting the bill it seemed to us logical to include within its scope all courts for which any appropriations at all are made by the Federal Government, nevertheless, in view of the attitude of the justices of the above-mentioned courts, no objection is perceived to excluding them from the scope of the legislation, if the committee feels it advisable to do so. With kind regards, ALEXANDER HOLTZOFF. Mr. CHANDLER. Three reports have come in from committees appointed by local bar associations in Chicago and New York to study Federal legislation, and those reports should be placed in the record. These associations often furnish the committee valuable opinions and suggestions regarding bills pending before us, and we appreciate that cooperation. REPORT OF THE COMMITTEE ON FEDERAL LEGISLATION TO THE BOARD OF MANAGERS OF THE CHICAGO BAR ASSOCIATION UPON THE SUBJECT OF HOUSE OF REPRESENTATIVES BILL 2973, SEVENTY-SIXTH CONGRESS, ESTABLISHING AN ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MARCH 7, 1939 Approximately a year ago this committee submitted its report and recommendation of Senate bill 3212, introduced by Senator Ashurst on January 5, 1938, in the Seventy-fifth Congress, providing for the establishment of an Administrative Office of the United States courts. A very similar bill, House of Representatives bill 2973, is now pending before the Seventy-sixth Congress. (Senate bill 188 is identical with this bill.) The bill provides, as before, for the appointment of a director and an assistant director. They would hold office at the pleasure of and be subject to removal by the Chief Justice of the United States or by the Conference of Senior Circuit Judges. The director would be the administrative officer of the United States courts and have charge, under the supervision and direction of the Conference of Senior Circuit Judges, of (1) All administration matters relating to the offices of the clerks and other clerical and administrative personnel of the courts; (2) Examining the state of the court dockets and preparing statistical data, and securing information as to where assistance might be needed, such information to be transmitted in quarterly reports; (3) The disbursement of moneys appropriated for the courts; (4) Equipment and supplies; (5) The examination and audit of vouchers and accounts of employees; (6) The provision of accommodations for the use of the courts and employees; (7) Such other matters as might be assigned by the Conference of Senior Circuit Judges. The director would also prepare and submit to the Bureau of the Budget, annually, estimates of the expenditures and appropriations necessary for the maintenance and operation of the courts. Before being submitted the estimates would have to be approved by the Conference of Senior Circuit Judges, as to the district and circuit courts; and by the judges of the Court of Customs and Patent Appeals, the Court of Claims and the United States Customs Court, as to such courts. Provision is made for the submission of annual reports, by the director, to the Conference of Senior Circuit Judges, on the activities of the Administrative Office. The bill has a very important feature which was not present in last year's bill, namely, the setting up of a council for each circuit, composed of the circuit judges of each circuit, respectively. The senior circuit judge, who would preside, would convene the council at least twice in each year. He would submit the quarterly reports of the director for such action to be taken thereon as might appear to the council to be necessary. It would be the duty of the district judges promptly to carry out the directions of the council as to the administration of the business of their respective courts. An annual meeting is prescribed to be attended by the circuit and district judges, with participation by members of the bar, under rules, for the purpose of considering the state of the business of the courts and advising ways and means of improving the administration of justice within the circuit. Provision is made for the transfer of pertinent records, documents, and papers, together with the employees engaged in working on same, from the Department of Justice to the Administrative Office. |