In Re Application of the President's Commission on Organized Crime. Subpoena of Lorenzo Scaduto

RONEY, Circuit Judge,

special concurrence:

I concur with Judge Fay’s decision to affirm the district court’s enforcement of the subpoena here in question. Although I agree that even if the Commission on Organized Crime is unconstitutionally constituted, its actions can be given de facto validity and the subpoena enforced, I disagree with the decision of Judges Fay and Johnson on the constitutional issue. In my judgment, the President’s Commission on Organized Crime is not unconstitutionally constituted. The facts, legal proceedings and issues presented to this Court are carefully set out in the opinion of Judges Fay and Johnson, and need not be repeated here. Because I agree with their decision on the other arguments made by appellant to defeat the enforcement of this subpoena, I need only discuss the constitutionality of the Commission under the separation of powers concept.

The separation of powers doctrine, implicit in our tripartite form of Government, is not explicitly articulated in the Constitution. Nor are there any judicial decisions which have comprehensively dealt with the doctrine in the context here presented. Thus there are no well-defined principles to guide this separation of powers challenge.

The most that can be cited for authority is the discussion of the principles involved, only some of which is in judicial opinions. The great majority of that discussion, however, would clearly indicate the separation of powers principle does not inhibit Article III judges from undertaking nonjudicial governmental functions, even though that activity might well disqualify them from performing certain judicial duties.

Since the beginning of the Republic to modern times, Article III judges of stature have sometimes served the country in executive positions. John Jay served simultaneously as Chief Justice and as Ambassador to England. Oliver Ellsworth similarly served as Chief Justice and Minister to France. For a brief period in 1801, John Marshall served as Chief Justice and Secretary of State. Justice Roberts chaired the Commission investigating the Pearl Harbor disaster. Justice Jackson was Chief Counsel for the United States in the Nuremberg prosecution of Nazi war criminals. Chief Justice Warren headed the Commission appointed by the President to investigate President Kennedy’s assassination. Slonim, Extrajudicial Activities and the Principle of the Separation of Powers, 47 Conn.B.J. 391 (1975). Since none of these assignments were challenged in court on constitutional grounds, no controlling precedent flows from them.

A specific proposal to prevent judges from performing extrajudicial activities was considered, however, and rejected at the Constitutional Convention. Charles Pinckney, a delegate from South Carolina, introduced a specific proposal barring “Judge[s] of the Supreme Court” from holding outside offices. His proposal was referred to the Commission of Detail and nothing more was heard of it. Slonim, 49 Conn.BJ. at 401.

Indeed, several statutes passed by Congress provide that the Chief Justice or other Article III judges serve governmental entities in a nonjudicial capacity. See, e.g., 20 U.S.C.A. § 42 (Chief Justice member of Board of Regents of Smithsonian Institution); 20 U.S.C.A. § 72 (Chief Justice a Trustee of the National Gallery of Art); 20 U.S.C.A. § 76cc(b) (Chief Justice a Trustee of the Joseph H. Hirshhorn Museum and Sculpture Garden); 44 U.S.C.A. § 2501 (Chief Justice appoints member of judiciary *1203 to National Historical Publications Commission).

In the only modern case to consider the problem of federal judges performing nonjudicial tasks the court said:

There is no constitutional principle that federal judges may not engage officially in nonjudicial duties. There is the constitutional principle that Article III courts may not engage in adjudicatory or decisional functions except in those “cases” and “controversies” referred to in Article III. The first Chief Justice of the United States illustrated the distinction. He led the Court in declining to give advisory opinions to President Washington; but a few years later when still Chief Justice he saw no constitutional objection to becoming the American negotiator with England of the important Jay treaty which bears his name. This was not without controversy, albeit in good part politically motivated. The Jay experience is mentioned simply as an outstanding illustration of the difference between functions which may not be required of Article III courts or their judges and functions of a nonjudicial character which are not barred by the Constitution.

Hobson v. Hansen, 265 F.Supp. 902, 915 (D.D.C.1967) (three judge court).

The two most often cited cases in any discussion of separation of powers are Hayburn’s Case, 2 U.S. (2 Dall.) 408 , 1 L.Ed. 436 (1792), and United States v. Ferreira, 54 U.S. (13 How.) 39 , 14 L.Ed. 42 (1852). Haybum’s Case involved the 1792 Pensions Act which gave the courts of appeals authority to rule on the pension claims of disabled veterans, but subject to review by the Secretary of War. Congress amended the Act prior to judgment, rendering it moot, so the Supreme Court never ruled on the Act’s constitutionality. But the reporter of the case included in a footnote the three circuit court opinions which found the Act unconstitutional.

The holdings in those opinions were that the separation of powers principle was violated by Congress’ assigning to the “Court” nonjudicial functions. They disagreed on whether the judges could have performed the Pension Act duties as individual Commissioners. The members of the New York district thought they could, while those from North Carolina thought they could not. 2 U.S. at 411-12 .

Chief Justice Taney alluded to this point in the course of deciding United States v. Ferreira. Ferreira dealt with a statute directing the district judge of the Northern District of Florida to examine the claims of Spanish citizens arising out of the 1819 peace treaty between the United States and Spain, subject to review by the Secretary of the Treasury. The Court held it did not have jurisdiction over the case as an appeal from the district court because “[t]he decision is not the judgment of a court of justice. It is the award of a commissioner.” 54 U.S. at 47. The action of the district judge as a Commissioner was not invalidated nor did the Court expressly address that issue. Referring to Hayburn’s Case, Taney said:

the only question upon which there appears to have been any difference of opinion, was whether it might not be construed as conferring the power on the judges personally as commissioners. And if it would bear that construction, there seems to have been no doubt, at that time, but that they might constitutionally exercise it, and the Secretary constitutionally revise their decisions.

Ferreira, 54 U.S. (13 How.) at 49 .

A note following the decision indicates Taney’s approval of an unreported Supreme Court decision decided in 1794 entitled United States v. Yale Todd, which indicates such action would be valid.

The central argument in the case at issue is framed as a question of whether the Commission activity of the judicial members interferes with their ability to perform their constitutionally-required duties in the judicial branch. There is no suggestion that the judges involved would be completely disabled from their judicial duties, but only that they would be disqualified from handling cases involving the scope of the Commission activity. We need not decide precisely what disqualification, if any, *1204 would in fact be appropriate to discern that this argument cannot control the decision. The well-known fact that judges frequently are disqualified from handling certain cases and that the judicial branch suffers no power dimunition therefrom simply supports a decision that the disqualifying action of an individual judge in an executive position does not create a separation of powers problem. The question is whether the powers of the executive, legislative, or the judicial branch of Government are in any way compromised by the composition and activities of this Commission. No argument has been made that they are diminished in any way. The structure of the judicial branch particularly, with its easy cross-assignability of judges of equal power undergirds the notion that the loss of one or two judges on particular cases does not infringe the constitutionally-required duty of the judiciary. 28 U.S.C.A. §§ 291 , 292, 294.

Appellant argues that this Commission is an improper merging of the branches of Government. That assertion is made principally on the ground that members of the three branches are on the Commission. The short answer to this argument is that the congressional members of the Commission exercise no powers of Congress, and the judicial members no powers of the judiciary, in service on the Commission. Simply put: the judges do not wear their robes in the Commission room. This point is crisply made by the provision that to enforce subpoenas, the Commission must go to court. President’s Commission on Organized Crime; Subpoena Power, P.L. 98-368, § 2(b)(1), 98 Stat. 490 (1984). It is reinforced by the provision that the judges’ expenses are not paid from the judicial budget. Exec. Order 12435, Section 3(b), 48 Fed.Reg. 34, 723 (1983).

This analysis reveals the inappropriateness of attempting to adapt the functional standard of Nixon v. Administrator of General Services, 433 U.S. 425 , 97 S.Ct. 2777 , 53 L.Ed.2d 867 (1977) to this case. See United States v. Nixon, 418 U.S. 683 (1974), 94 S.Ct. 3090 , 41 L.Ed.2d 1039 . The Nixon cases involved the issue of whether the exercise of judicial power encroached on the separate power of the executive. Since no judicial power is here exercised, except by the court that enforces this subpoena, the Nixon cases are inapposite.

The decision here does not detract from the dictum in Buckley v. Valeo, 424 U.S. 1, 123 , 96 S.Ct. 612, 684 , 46 L.Ed.2d 659 (1975) that:

The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. Ill of the Constitution. United States v. Ferreira, 13 How. 40 [ 14 L.Ed. 42 ] (1852); Hayburn’s Case, 2 Dall. 409 [ 1 L.Ed. 436 ] (1792).

The issue is not whether the President or Congress could require the judicial and congressional officers here to serve on the Commission. There is nothing in this record to suggest that the members did not voluntarily accept the appointment. There is nothing in this decision to suggest that they could not have declined appointment, had they chosen to do so.

Although no assertion of the Buckley principle has been judicially tested, Presidents in recent years have frequently appointed both members of the Federal judiciary and members of Congress to commissions established to advise them on important issues of public policy. See, e.g., Exec. Order 11412, 3 C.F.R. 726 (1966-1970 Comp.) (Presidential appointment of Judge A. Leon Higginbotham, Senators Philip A. Hart and Roman Hruska, and Representatives Hale Boggs and William M. McCulloch as members of National Commission on Causes and Prevention of Violence); Exec. Order 11236, 3 C.F.R. 329 (1964-1965 Comp.) (Presidential establishment of President’s Commission on Law Enforcement and Administration of Justice, which included Judges James B. Parsons and Luther W. Youngdahl as members); Exec. Order 11130, 3 C.F.R. 795 (1959-1963 Comp.).

The general thrust of the argument as to unconstitutionality is that this Commission is a law enforcement agency engaged in *1205 activities in which federal judges simply should not be involved. To point out the appellant’s perception in this regard, the following portion of his brief is quoted:

The Commission is not a mere study or reading group, or even an intellectual think tank. It is not studying a precise problem solely for the purpose of advising the public. It is a powerful investigative body whose actions impact greatly upon the three branches. Its powers are substantial and have the force of law. At its core, the Commission’s stated goal and role is to fight crime. To succeed in its purpose, its members are classified as “investigative or law enforcement officers” (P.L. 98-368 6(a)(1)) for the purposes of access to records and information. The Commission has apparent authority to compel testimony and even require the production of witnesses (P.L. 98-368, § 2). In all its functions, the Commission is answerable to the President, through the Attorney General (E.O. 12435, § 4), and obtains needed resources from the Attorney General (E.O. 12435, § 3(c)). As it goes about accomplishing its goals, the Commission makes findings about organized crime, evaluates federal laws pertaining to organized crime, and even makes recommendations concerning administrative, legislative and judicial improvement (E.O. 12435, § 2(a)).

By reason of the purpose and role of the Commission, the statutory interaction of the ordinarily separate branches of government are forced to work together in a manner which jeopardizes the Constitutionally mandated independence of each. A judge cannot be placed in a position of being a law enforcement officer answerable to the Attorney General. A judge cannot be called upon to investigate criminal activity and give advisory opinions regarding the effectiveness of the law enforcement effort against organized crime. A judge cannot be placed in a position of recommending legislative responses to emerging problems. Similarly, a congressional representative is ill-equipped, in a constitutional sense, to take on the role of a law enforcement officer or to utilize the tools available to the Executive to combat crime. It is not the function of the Congress to advise the Attorney General or the President how to utilize crime detection and prevention methods. Yet, the Commission compels its members to do all this and more.

Contrary to this argument, the Commission is simply to advise and recommend. It is to:

advise the President and the Attorney General with respect to its findings and actions which can be undertaken to improve law enforcement efforts directed against organized crime, and make recommendations concerning appropriate administrative and legislative improvements and improvements in the administration of justice.

Exec. Order 12435, Section 2(a), 48 Fed. Reg. 34 , 723 (1983). It has no autonomous authority to impose sanctions or implement final binding action. Although it has the power to investigate facts upon which to base its recommendations, it has no extraordinary powers not usually given to commissions appointed under the authority of the Federal Advisory Commission Act, 5 U.S.C.A.App. 2.

Although the analysis here makes it unnecessary to decide the propriety of federal judges serving on this Commission, it should be noted that it is not uncommon for federal judges to advise the executive and legislative branches of Government with respect to particular matters which fall within their expertise as a result of their judicial experience. In addition to the executive advisory commissions previously noted, judges frequently testify before Congress not only as to proposed rules in matters of judicial administration, but in other matters as well. See, e.g., Reform of the Federal Criminal Laws: Hearings Before the Senate Committee on the Judiciary, 97th Cong., 1st Sess. pt. XVI, at 11915-31 (testimony of Judge Gerald B. Tjoflat, United States Circuit Judge, Court of Appeals for the Eleventh Circuit); Legislation to Revise and Recodify the Federal Crimi *1206 nal Laws: Hearings Befare the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 95th Cong. 2d Sess., pt. 3, at 2473-84 (1978) (testimony of Judge Morris Lasker, United States District Judge, Southern District of New York).

Even if the Commission is determined to be unconstitutionally constituted, I agree with Judge Fay that its past action in the issuance of this subpoena should be given de facto validity, and the subpoena can be properly enforced, under the authority of Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976) and Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 102 S.Ct. 2858 , 73 L.Ed.2d 598 (1982).

Thus, I would affirm the judgment of the district court.