G. Heileman Brewing Co., Inc. v. Joseph Oat Corporation

COFFEY, Circuit Judge,

with whom EASTERBROOK, RIPPLE and MANION, Circuit Judges, join,

dissenting.

Because Rule 16 of the Federal Rules of Civil Procedure, amended by the Supreme Court and Congress as recently as 1983, specifically designates who may be ordered to appear at a pretrial conference, I disagree with the majority’s determination “that the action taken by the district court in this case constituted the proper use of inherent authority to aid in accomplishing the purpose and intent of Rule 16.” Majority Opinion at 652. Rule 16 of the Federal Rules of Civil Procedure states in relevant part:

“(a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before .it for a conference or conferences before trial for such purposes as (1) expediting the disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activity; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating the settlement of the case.”

Unlike the majority, I am convinced that Rule 16 does not authorize a trial judge to require a represented party litigant to attend a pretrial conference together with his or her attorney because the rule mandates in clear and unambiguous terms that only an unrepresented party litigant and attorneys may be ordered to appear.

Although I recognize that all courts, including those of federal jurisdiction, possess certain inherent authority, such as the contempt power and the power to determine whether the court has jurisdiction, this authority is limited. We recently warned that:

“ ‘Inherent authority’ is not a substitute for good reason_ ‘Inherent authori *659 ty’ like its cousin in criminal law the ‘supervisory power’, is just another name for the power of courts to make common law when statutes and rules do not address a particular topic. Cf. United States v. Widgery, 778 F.2d 325, 328-29 (7th Cir.1985).”

Soo Line R. Co. v. Escanaba & Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir.1988). The Supreme Court has placed clear limits on judicial reliance on “inherent authority” or, as it is labeled in the criminal law context, “supervisory power”:

“Even a sensible and efficient use of the supervisory power ... is invalid if it conflicts with constitutional or statutory provisions. A contrary result ‘would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.’ ”

Thomas v. Arn, 474 U.S. 140, 148 , 106 S.Ct. 466, 471 , 88 L.Ed.2d 435 (1985) (quoting United States v. Payner, 447 U.S. 727, 737 , 100 S.Ct. 2439, 2447 , 65 L.Ed.2d 468 (1980)). Thus, as the majority recognizes, “the district court, in devising means to control cases before it, may not exercise its inherent authority in a manner inconsistent with rule or statute.” Majority Opinion at 652.

The Supreme Court very recently underscored the fact that district courts are not to attempt to utilize an alleged inherent authority in a manner that contravenes the balance between varying interests that has previously been struck in a federal procedural rule, such as Federal Rule of Civil Procedure 16. In Bank of Nova Scotia v. United States, — U.S. -, 108 S.Ct. 2369, 2374 , 101 L.Ed.2d 228 (1988), the Court held that a judge may not invoke inherent authority (labeled “supervisory” power by the Court) to dismiss an indictment based upon “harmless error” in a grand jury proceeding:

“We now hold that a federal court may not invoke supervisory power to circumvent the harmless error inquiry prescribed by Federal Rule of Criminal Procedure 52(a). The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked ‘because a court has elected to analyze the question under the supervisory power.’ United States v. Payner, 447 U.S. [727, 736, 100 S.Ct. 2439, 2447 , 65 L.Ed.2d 468 (1980)].”

As the Supreme Court observed in an earlier decision rejecting the broad use of the supervisory power (inherent authority) to justify an individual court’s determination that public policy required criminal defendants to be extended certain protections beyond those allowed in the Constitution, such

“reasoning ... amounts to a substitution of individual judgment for the controlling decisions of this Court. Were we to accept this use of the supervisory power, we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. We hold that the supervisory power does not extend so far.”

United States v. Payner, 447 U.S. 727, 737 , 100 S.Ct. 2439, 2447 , 65 L.Ed.2d 468 (1980) (footnote omitted). Like the procedural rule involved in Bank of Nova Scotia , the Federal Rules of Civil Procedure, including Rule 16, “are the product of a careful process of study and reflection designed to take ‘due cognizance both of the need for expedition of cases and the protection of individual rights.’ ” Strandell v. Jackson County, 838 F.2d 884, 886 (7th Cir.1987) (quoting S.Rep. No. 1744, 85th Cong., 2d Sess., reprinted in 1958 U.S. Code Cong. & Admin.News 3023, 3026). Furthermore, “in those areas of trial practice where the Supreme Court and the Congress, acting together, have addressed the appropriate balance between the needs for judicial efficiency and the rights of the individual litigant, innovation by the individual judicial officer must conform to that balance.” Id. at 886-87 .

Prior to 1983, Rule 16 only provided district court judges with the discretion to require the attendance of attorneys for parties at such proceedings. As pointed out earlier in this opinion, the Supreme Court and Congress took a good hard look at Rule 16 in hopes of improving judicial effi *660 ciency and only increased the power of district court judges to the extent of authorizing them to compel the attendance of “unrepresented parties” at pretrial conferences.

However, it is very clear that the amendment explicitly stopped short of providing trial judges with the broad and sweeping authority to compel the presence of “represented parties” at pretrial conferences that the majority now seeks to achieve by judicial fiat. “[T]he Supreme Court and Congress, acting together, ... addressed the appropriate balance between the needs for judicial efficiency and the rights of the individual litigant,” 1 when they chose to amend Rule 16 in a limited manner. The majority upsets this careful balance and acts contrary to the Supreme Court’s mandate in the Bank of Nova Scotia case when it relies upon an alleged “inherent authority” to permit district court judges to exercise a power which the drafters of Rule 16 explicitly denied them. See United States R. Retirement Board v. Fritz, 449 U.S. 166, 179 , 101 S.Ct. 453, 461 , 66 L.Ed.2d 368 (1980) (“The language of the statute is clear, and we have historically assumed that Congress intended what it enacted.”) 2 The obvious intent of the Supreme Court and Congress that only attorneys and unrepresented parties be required to participate in pretrial conferences is clearly supported by the specific references to “attorneys” and “unrepresented parties” throughout Rule 16. Rule 16(a), as noted previously, allows for the court to “direct the attorneys for the parties and any unrepresented parties to appear before it.” Rule 16(b), concerning scheduling, requires a judge to “consult[] with the attorneys for the parties and any unrepresented parties.” Rule 16(c), regarding subjects to be discussed at a pretrial conference, states that “[a]t least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed.” Similarly, Rule 16(d), concerning final pretrial conferences, provides that “[t]he conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.”

The majority’s creation of this new inherent authority to compel attendance of litigants (represented parties) also contravenes the terms of at least one other rule regulating compulsory attendance at judicial proceedings. Federal Rule of Civil Procedure 45 does not authorize subpoenas to be issued for pretrial conferences and permits the invocation of the subpoena power only for hearings and trials. On the federal level neither the Supreme Court nor Congress has given the courts the authority to direct litigants’ attendance much less the power to subpoena them to pretrial conferences whose sole purpose is to discuss the upcoming trial, to frame and define the issues, and through custom to explore with the consent of the litigants’ attorneys, in very limited situations, the discussion of settlement possibilities. Furthermore, the extension of the “inherent authority” doctrine to substitute for the subpoena power at pretrial conferences raises a due process question in that the court’s rule authority to issue a subpoena is subject to a motion to quash, which is not available to challenge the alleged inherent authority. Assuming that the court would issue a contempt citation for failure to appear, I know of no avenue for an unwilling litigant to challenge the alleged “inherent authority” other than an attempt *661 to offer a defense to an unjustified contempt citation.

The newly created “inherent authority” to require represented litigants to appear at a pretrial conference is based upon a legal foundation of quicksand. Exercise of this power has posed and will continue to pose a substantial invitation for judicial abuse. The purpose of a pretrial conference is to set the parameters of litigation, clarify the issues and organize its presentation with the aid of the respective attorneys, and now, unrepresented party litigants in the hope of improving judicial efficiency at trial.

As Charles Richey, District Judge for the United States District Court for the District of Columbia, has noted, “Rule 16 provides an important mechanism for narrowing the issues in a case, saving time and expense for the litigants and easing the burden on the courts by facilitating the handling of congested dockets.” C. Rich-ey, Modem Management Technique for Trial Courts to Improve the Quality of Justice: Requiring Direct Testimony to be Submitted in Written Form Prior to Trial, 72 Geo.L.J. 73, 78 (1983). As the majority admits, “ ‘it is not the purpose of Rule 16(b)(7) to impose settlement negotiations on unwilling litigants. ’ ” Majority Opinion at 653 (quoting Fed.R.Civ.P. 16 Advisory Committee’s Note (c) (1983)). We emphasized this fact when we noted that there is “nothing in the amended rule [16] or in the Advisory Committee Notes [that] suggests that the amendments were intended to make the rule coercive.” Stran-dell, 838 F.2d at 888 . In our judicial system all party litigants are entitled to their day in court to present their claims or defenses before an impartial judge or jury. Our trial judges must never fall prey to becoming part of a process that even subliminally suggests a pressure to forego the essential right of trial.

An example of the possible abuse that can result from creation of an inherent authority to require the attendance of represented party litigants at a pretrial conference is found in a case in which a trial judge in this circuit sought to compel the attendance of a represented party, the Secretary of Labor, to discuss a settlement after the Department of Labor’s attorney refused to agree to a settlement proposal suggested by the district court. 3 The trial court judge in that case stated:

“I think I want to set a hearing as soon as I get back in which I want the Secretary of Labor to be here, not even Mr. Lilly. I’m tired of horsing around with people who sit in the Solicitor’s Office, spending the taxpayer’s money, having these kinds of, to me, difficult to understand, to put it gently, positions, and say, ‘We want to take the position that any breach, however infinitesimal, however irrelevant, however immaterial, however inadvertent, however innocent, is going to be of significance in a determination as to whether or not compensation can be paid under an indemnification agreement to ERISA trustees.’ I want the Secretary to tell me that that’s the Department of Labor’s position. I want the Secretary to tell me that he wants a hole in this decree so that the other court would have to decide whether or not what the Trustees and Senator Saxbe [Independent Special Counsel] and the Fund did — the staff recommendation and all — should be determined by a new and different judge who has never had anything to do with the case, has no background in it, has no knowledge of the facts, etcetera.”

No. 85-1640, unpublished order at 2-3 (7th Cir. April 23, 1985). The district court added that:

“I will tell you now that I am through with the Department of Labor’s waltzing around, taking ridiculous positions, and saying that this is the Government. The Government is the Secretary of Labor, so far as I’m concerned. And I want to see him at 10:00 o’clock on the 23rd of April in this courtroom to tell me why the Secretary of Labor is taking these idiotic positions.”

*662 Creation of an “inherent authority” to require the presence of a party litigant at a pretrial conference presents a host of problems. Certainly, the court has the power to command the attendance of attorneys at the conference under the provisions of Rule 16 and as “officers of the court.” However, I am convinced that if the attorney does not wish to have the litigant personally appear before the court at the pretrial conference, he is not bound to do so, lest, among other problems, the litigant make an admission of some type which would be damaging to the case and which had not previously been elicited in discovery proceedings. I believe we are all aware of the fact that the appearance of fairness, impartiality and justice is all imperative, and based upon logic I fail to understand how a litigant sitting at a command appearance before a judge who injects himself into an adversarial role for either of the parties’ positions during settlement negotiations can feel that he or she (the litigant) will have a fair trial before the judge if he or she fails to agree with the judge’s reasoning or direction regarding a recommended settlement. We may express in grandiose terms all sorts of theory and postulation about being careful not to influence, intimidate and/or coerce a settlement, but under the pressure that our trial judges experience today from their ever-burgeoning caseloads, we would be foolhardy not to anticipate an undesirable and unnecessary psychological impact upon the litigant in circumstances of this nature. The difficulties associated with active judicial participation in settlement negotiations is expressly exacerbated when the trial is scheduled before the court rather than a jury of one’s peers. The appearance of partiality and impropriety must be avoided at all lengths if our nation is to continue to show respect for its judicial judgments. Since litigants are neither trained in the law nor have the basic understanding of the nuances of legal proceedings that we as lawyers have gained through years of education, professional training and experience, they could well be confused and dismayed with judicial participation in settlement negotiations.

My conclusion that judges lack the inherent authority to require the presence of a represented party litigant at a pretrial conference does not deprive trial judges of the ability to effectively handle their caseloads. Judges remain free to require the attendance of attorneys and unrepresented parties at pretrial conferences. However, if further measures are taken to coercively require the presence and active participation of a represented party at a pretrial conference, it is my considered belief that judges will be no longer worthy of the aura of impartiality for “the guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Public Utilities Commission v. Pollack, 343 U.S. 451, 466-67 , 72 S.Ct. 813, 822-23 , 96 L.Ed. 1068 (1952) (Frankfurter, J., in chambers). 4

Rule 16 is an example of “the Supreme Court and the Congress, acting together [to address] the appropriate balance between the needs for judicial efficiency and the rights of the individual litigant.” Stran-dell, 838 F.2d at 886-87 . If we are to maintain the appearance of fairness and impartiality that is so important to preservation of confidence and respect for our cherished judicial system, “innovation by the individual judicial officer must conform to that balance.” Id. at 887 . The majority, in their attempt to permit judicial officers the right to exercise their personal judgment to require the attendance at pretrial conferences of entities other than those specifically enumerated in Rule 16, upsets the delicate balance the Supreme Court and *663 Congress struck between the needs for judicial efficiency and the rights of the individual litigant. But on the other hand, if we wish to grant federal trial judges the power, let it be accomplished through the accepted channels of the Supreme Court and Congress of the United States. 5 Because district court judges lack authority to require the attendance of represented litigants at a pretrial conference as of this date, I dissent. 6

. Strandell, 838 F.2d at 886-87 .

. Justice Scalia pointed toward a similarly circumscribed construction of "supervisory power” when he recently noted: “Even less do I see a basis for any court's ‘supervisory powers to discipline the prosecutors of its jurisdiction,’ except insofar as concerns their performance before the court and their qualifications to be members of the court’s bar.” Bank of Nova Scotia, 108 S.Ct. at 2379 (Scalia, J., concurring) (quoting United States v. Hasting, 461 U.S. 499, 505 , 103 S.Ct. 1974, 1978 , 76 L.Ed.2d 96 (1983)). Likewise, there is no basis for a court’s possession of broad inherent powers to force party litigants to participate in settlement discussions where the party litigants have not expressed a desire to participate.

. No. 85-1640, unpublished order at 2 (7th Cir. April 23, 1985). This order is not cited as precedent, but merely for its description of the involved factual situation.

. It should be noted that those who advocate expansive use of "supervisory power” or inherent authority in the criminal context rely upon the integrity of the judicial process as a justification for allowing courts to exercise this authority. See United States v. Payner, 447 U.S. 727, 745-46 , 100 S.Ct. 2439, 2451-52 , 65 L.Ed.2d 468 (1980) (Marshall, J., dissenting). In our case, creation of the appearance of impropriety with a judge actively injecting himself into the settlement procedure in the presence of the party litigants compromises, rather than furthers, the "protect[ion of] the integrity of the court,” the "major purpose behind the exercise of the supervisory powers." 447 U.S. at 748 , 100 S.Ct. at 2453 .

. "If such radical surgery is to be performed, we can expect that the national rule-making process outlined in the Rules Enabling Act will undertake it in quite an explicit fashion.” Strandell, 838 F.2d at 888 (footnote omitted).

. Although I am convinced that the district court lacked the authority to require represented parties to attend the pretrial conference, if it did have such power I would conclude, for the reasons enumerated by Judge Posner, that the magistrate acted improperly in exercising this power to require that Oat Corporation send to the settlement conference an executive possessing "full settlement authority."