United States v. Ortega Lopez

HUPP, District Judge,

dissenting.

We respectfully dissent. In dissenting, we note that the court as a whole decided that the issue of facial unconstitutionality of the Sentencing Reform Act of 1984 was severed from each individual case and is to be decided by the court as whole. We concurred with that procedure, to the end that there be uniformity of decision in the Central District pending final resolution of the problem. Our dissent from the result reached by the majority does not mean that the court’s decision expressed in the majority memorandum is not applicable in our individual courts pending appellate decision. No other aspect of individual cases has been decided by the whole court and individual judges will continue to handle such aspects in each case.

The majority memorandum has identified separation of powers and due process of law as the principal constitutional problems with the Sentencing Reform Act of 1984 (hereafter, the “Act”). Within the Act, the important separation of powers problem to consider is whether Congress impermissi-bly extended or impaired the powers of the judiciary by the creation of the Sentencing Commission “in the judicial branch” of government and by requiring that three Article III judges be members of the Commission. We believe that neither consideration requires a declaration at this judicial level that the Act is unconstitutional. We believe that the Act does not violate due process. We agree with the majority memorandum that the Act is not unconstitutional on grounds of delegation of powers.

1. The Act is not unconstitutional because it purports to place the Sentencing Commission in “the judicial branch” of *1516 government. It is suggested that placing the Sentencing Commission “in the judicial branch” either expands or impairs the judiciary in a constitutional sense. We disagree. The legislative history makes clear that Congress intentionally sought to place the Sentencing Commission “in the judicial branch.” However, to suggest that this label makes the Act, or the creation of the Sentencing Commission, unconstitutional, elevates semantics over substance. While “branch” is a convenient shorthand expression, the Constitution does not create “branches”; instead, it allots powers. Thus, “All legislative Powers herein granted shall be vested in a Congress ...” (Article I, Section 1), “The executive Power shall be vested in a President of the United States ...” (Article II, Section 1), and, most important for this memorandum, “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (Article III, Section 1). It follows that in considering constitutionality, we must not look to the assignment of the Commission to a “branch,” but instead determine whether the creation and function of the Sentencing Commission impairs or extends the powers of the courts inconsistently with the Constitution. The label placed by Congress (“in the judicial branch”) is constitutionally meaningless; instead, what must be examined are the function and powers of the Commission without the distraction provided by the label, which serves semantic purposes only. It seems unnecessary to declare that the label is unconstitutional but unimportant to the functional plan of the Act and, therefore, severable; it may be ignored as meaningless. 1

2. The Sentencing Commission performs no function allotted to the judiciary by the Constitution. The majority memorandum notes, correctly in our view, that the intended work of the Commission most closely resembles that of an executive department or independent agency authorized to write regulations to implement legislation enacted by Congress. Such regulation making has long been considered to be a part of the duty of the executive to “take Care that the Laws be faithfully executed ...” (Article II, Section 8), when authorized by Congress. That the regulations are binding on the court is nothing new. Courts have always been bound by legislation and regulations validly adopted thereunder. Judicial functions, on the other hand, are defined by the Constitution to be the decision of “cases” and “controversies” (Article III, Section 2). The Commission does not decide “cases” or “controversies.” To the contrary, the duty of the Commission is confined to the writing of the regulations (denominated “guidelines”) by which judges are to decide the cases. Executive departments or independent agencies have been doing this for at least half of the period the Constitution has been in existence. Since regulation or guideline writing does not involve the decision of cases or controversies, nor does it impinge on the power of the judiciary to decide the same, the mere creation of a Commission that creates sentencing guidelines does not violate the separation of powers doctrine. Whether the Commission is tagged with the “judicial branch,” “executive branch,” or “independent agency” label is an irrelevancy in determining whether its functions impair or expand judicial powers. 2

*1517 To be sure, if one could properly conclude that the Commission was doing work confided to the judiciary by the Constitution, then major constitutional problems would exist (i.e., non-Article III judges doing judicial work (Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50 , 102 S.Ct. 2858 , 73 L.Ed.2d 598 (1982)), power to remove Commissioners for cause by the President (Bowsher v. Synar, 478 U.S. 714 , 106 S.Ct. 3181 , 92 L.Ed.2d 583 (1986))). However, since the Commission does not decide cases or controversies, but writes regulations, it does nothing confided by the Constitution to the sphere of the judiciary. A non-sequitur is also suggested: since the Commission does not decide cases and controversies, placing it in the judicial “branch” impermissibly expands the powers of the judiciary to that of rule makers. The answer should be clear from the above; we are not concerned with “branch” but allotment of power— since the Commission exercises no judicial powers, it does not impinge on the powers of the judiciary, whatever the label.

3. Presence of judges on the Commission does not impair or expand the powers of the judiciary. The most serious point made by the majority memorandum, on which reasonable minds could well differ, and which ultimately can only be decided by the Supreme Court, is whether the required presence of Article III federal judges on the Commission impairs or expands the powers assigned by the Constitution to the judiciary. It is argued that the powers of the judiciary are expanded because judges serving on the Commission assist in making regulations, and that the judiciary is impaired by having to decide cases under regulations made in part by other judges. We find these arguments insufficiently convincing. Our approach should be a pragmatic and functional one which examines whether the presence of judges on the Commission either impinges or expands the power of judges in the real world. 3 We think that neither result follows, and that the maximum impact on the judiciary of having three judges serve on the Commission is that those judges may have to recuse themselves in cases involving the validity and interpretation of the guidelines — an insufficient effect to bring unconstitutionality. To put the problem in perspective, it is apparent that the task of the Commissioners is regulation or guideline writing, and not judging. Functionally, therefore, the judges on the Commission do not serve in a judicial role, but one akin to a member of a regulation writing board of an independent agency. In this sense, the judge wears an entirely different hat while serving on the Commission — he or she is like many judges in our history who, while serving in one capacity as federal judge, serves in another capacity in the executive. The list of historical precedent is lengthy, starting with Chief Justice Jay serving as ambassador to England, and, inter alia, noting Justice Jackson’s role as prosecutor at Nuremberg and Chief Justice Warren’s chairmanship of the commission to investigate the death of President Kennedy, and most recently Judge Kaufman’s participation as a member of the President’s Commission on Organized Crime. The latter episode generated two Court of Appeals opinions with opposite holdings {In re Application of President’s Commission on Organized Crime, Subpoena of Scadu-to, 763 F.2d 1191 (11th Cir.1985); In re Application of President’s Commission on Organized Crime, Subpoena ofScarfo, 783 F.2d 370 (3d Cir.1986)). The difference between those opinions mirrors the current *1518 debate on the guidelines. We prefer Scar-fo to Scaduto, emphasizing, as it does, the pragmatic and functional approach to the constitutional question. If, then, the question is whether the presence of three judges on the Commission impacts in any real way the operation of the judiciary, the answer is not at all. We suggest:

a. The answer to the concern that three judges, in concert with four non-judges, are making regulations for all judges is simply that the three judges who are commissioners are not acting as judges at all in their Commission work, and no one thinks that they are.

b. The thought that the presence of three judges on the Commission would unduly influence other judges in judging the validity and interpretation of the guidelines is, to quote Judge Duplantier, 4 “patently meritless.”

c. The theory that the three Commission members who are judges may not be able to sit in matters where the validity and interpretation of the guidelines is at stake has merit, but it is difficult to see why the result should be more than recusal, not to speak of unconstitutionality. The thought that the loss of these three judges in certain criminal cases imposes an extra load on the judiciary is certainly not sufficient impairment of the judiciary to bring unconstitutionality; only three of approximately 800 judges are affected. When Congress starts recruiting a sufficient number of volunteer judges to impair the work of the judiciary, then is the time to find functional impairment. The argument that the required presence of three judges on the Commission doing regulation writing work invalidates the legislation comes down to a concern about impurity of form. We are right to be suspicious about congressional requests to judges to do public work outside of the judiciary. However, our test is whether there is an impairment in fact in the operation of the judiciary; here there is none worth mentioning. 5

It is also suggested that the required presence of three judges on the Commission impermissively expands the powers of the judiciary into the area of law making. However, this is only true if the judge-commissioners are performing judicial work in their service on the Commission. We have already seen that examined from a functional approach they do not. With that recognition, the problem is one of semantics only, and vanishes. It is noteworthy that no judge is required to do Commission duty. From the judge’s standpoint, participation is voluntary. Thus, no constitutional question arises which might be present if a judge were required to do non-judicial work (Hayburn’s Case, 2 U.S. (2 Dall.) 409 , 1 L.Ed. 436 (1792); United States v. Ferreira, 54 U.S. (13 How.) 40 , 14 L.Ed. 42 (1851)).

4. Delegation of powers. The majority memorandum does not hold that the Act is invalid as involving an impermissible delegation of legislative powers to the Commission. The vast majority of district judges who have considered this point have held that there is no impermissible delegation, and we agree, adopting the discussion of Judges Brewster 6 and Duplantier 7 on this point.

5. The Act and Sentencing Guidelines are not unconstitutional on due process grounds. We do not agree that the Act or the guidelines are subject to question on *1519 due process grounds. The majority memorandum does not rely on procedural due process in invalidating the Act on due process grounds. It is, therefore, unnecessary to detail the meticulous procedural steps provided for in the Act and guidelines.

Substantive due process is used to declare that the Act is invalid in depriving the courts of their traditional discretion to weigh the various factors considered by a judge in sentencing. To an extent the Act does just that; it does so in implementing the congressional policy that relative uniformity of sentencing of defendants similarly situated is important. Congress is entitled to assert its policy concerns, and does not violate the Due Process Clause by doing so.

Congress could, and has in the past, validly prescribed a specific sentence for each offense, 8 thus removing all discretion from the hands of the judge. More recently in our history, an executive department, the Parole Commission, has validly had an equal role with the judiciary in fixing sentences, applying its own guidelines, 9 with the result that most sentences have in fact been between one-third and two-thirds of the length of sentence pronounced by the judge. Indeterminate sentence laws which transfer the whole task of fixing the length of sentence to an executive department have not been held to violate due process. 10 Congress has validly prescribed minimum as well as maximum sentences for many offenses without due process repercussions. The factors normally considered in imposing a sentence have been considered by the Commission in accord with the instructions of Congress, and the weight to be accorded each of those common factors has been specified. Here is where it appears that the majority finds the Act and guidelines are a violation of the Due Process Clause. How the conclusion is reached that the Due Process Clause eliminates congressional say-so about sentencing factors is not explained. 11 It is only suggested that the “traditional and fundamental” function of the courts to exercise this discretion has attained due process protection, without citation of any authority except a district court case concerning the Act and guidelines. As shown above, Congress can eliminate all discretion in sentencing, or place all discretion in an executive department body; a fortiori, it can specify the weight to be given the various factors normally considered.

In addition, the description of “the rigid, computerized nature” of the guidelines is considerably overblown. While the guidelines, in accord with congressional intent to make sentences more uniform, do specify the weight to be assigned common sentencing factors, they also allow departures from the guidelines for factors not covered by the guidelines or Congress ( 18 U.S.C. § 3553 (b)) with certain exceptions. The exceptions are few: a judge may not consider race, sex, national origin, creed, and socioeconomic status ( 28 U.S.C. § 994 (d)(ll)). In addition, the Commission is to “reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant” ( 28 U.S.C. § 994 (e)). Certainly, eliminating the factors in the former listing would not violate due process. In the latter listing, *1520 there are many factors formerly commonly considered. Congress’ policy is to discourage but not forbid all consideration of those factors, and the Commission has followed Congress’ directions (Guideline 5H). It is difficult to see why Congressional direction in this respect violates the Due Process Clause, even if judges do not agree that such is wise.

What the Act does is require the judge rather than the Parole Commission to apply guidelines; there is no due process violation in this. We judges, who with remarkable uniformity believe that we can do a better job of fitting the sentence to the crime and the criminal than can any chart or grid, or numerical evaluation of factors, must refrain from the temptation to classify our own beliefs in this respect as constitutional dogma. Congress is entitled to raise its uniformity policy to a high level without the result being labeled a due process violation.

Conclusion: We believe that courts should be slow to declare acts of Congress unconstitutional, and should do so in only the clearest of eases. In our hierarchical judicial system, the responsibility for declarations of unconstitutionality traditionally belongs in the appellate courts. Chaos of the type we are now about to undergo results otherwise. 12 A logical and rational argument for the constitutionality of the Act exists and should be adopted by us pendente lite.

Recommendation regarding review: We entirely agree with paragraph 3 of the order, urging prompt review of the question in the Court of Appeals and recommending that the Supreme Court take the matter directly and decide it promptly. The question at issue affects cases daily in every federal court in the country, and the public interest is that it be decided definitively and promptly.

BYRNE, KENYON, RAFEEDIE, RYM-ER, STOTLER, FERNANDEZ, KELLER and WILSON, District Judges, and GRAY, Senior District Judge, concur.

. The government would reach the same result by the alternative path of analysis. It argues that if the Commission is, in fact, placed in the "judicial branch” of government, the characteristics given the Commission by Congress might render it unconstitutional. However, the government argues that the "judicial branch” label may be severed from the rest of the Act and disregarded as unconstitutional for the reason that the label is entirely non-substantive and to disregard it would not affect the congressional plan at all (Alaska Airlines Inc. v. Brock, 480 U.S.-, 107 S.Ct. 1476 , 94 L.Ed.2d 661 (1987)).

. Other courts have held that the Act is constitutional for the reasons stated by Judge Enright in (United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988)). That reasoning, stated in summary, is that the Commission is validly placed in the "judicial branch”, and that such placement is sustainable because the Commission in fact acts as an aid to judges in doing their sentencing duty. This approach analogizes the Sentencing Commission to other bodies doing non-judicial work in the judiciary, such as judicial councils (Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74 , 90 S.Ct. 1648 , 26 *1517 L.Ed.2d 100 (1970)), groups to write the federal rules (Sibbach v. Wilson & Co., 312 U.S. 1 , 61 S.Ct. 422 , 85 L.Ed. 479 (1941)), or commissions to consider discipline of judges (In re Certain Complaints Under Investigation, 783 F.2d 1488 (11th Cir.), cert. denied, 477 U.S. 904 , 106 S.Ct. 3273 , 91 L.Ed.2d 563 (1986)), each of which survived separation of powers challenges.

. See Nixon v. Administrator of General Services, 433 U.S. 425, 443 , 97 S.Ct. 2777, 2790 , 53 L.Ed.2d 867, 891 (1977); Miller, Independent Agencies, 1986 Sup.Ct.Rev. 41, 52-53 (The pragmatic approach "tends to view the separation of powers as a practical approach to government such that the division of powers between the branches, and the system of checks and balances by which those powers are related to one another, can stand considerable stretching in order to accommodate the changing needs of a modern society”).

. United. States v. Chambless, 680 F.Supp. 793, 800 (E.D.La.1988).

. We do not take seriously the argument that, hypothetically, if a district judge were appointed to the Commission and, therefore, received during that period the pay of a circuit judge, and thereafter went back to his or her duties as a district judge, he or she would unconstitutionally have had his or her pay diminished while in office. The answer to the concern is that the judge, while serving on the Commission receives pay as a commissioner. When the judge reverts to judging, he or she receives pay as a judge — removal from the Commission thus does not cause diminished pay as a judge. Nor does the possibility of removal from the Commission affect status as a judge; thus, there is no impingement on the constitutional command that the judge serve "during good behavior."

. United States v. Arnold (S.D.Cal.1988) 678 F.Supp. 1463 .

. United States v. Chambless, 680 F.Supp. 793, 795-797 (E.D.La.1988).

. See United States v. Grayson, 438 U.S. 41, 45 , 98 S.Ct. 2610, 2613 , 57 L.Ed.2d 582, 586-87 (1978) (Citing Report on Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment, 83-85 (1976)).

. Geraghty v. United States Parole Comm’n, 719 F.2d 1199 (3d Cir.1983), cert. denied, 465 U.S. 1103 , 104 S.Ct. 1602 , 80 L.Ed.2d 133 (1984).

. See, e.g., Williams v. New York, 337 U.S. 241, 248 , 69 S.Ct. 1079, 1083 , 93 L.Ed. 1337 (1949).

. It is noted that the majority memorandum cites United States v. Barker 771 F.2d 1362 (9th Cir.1985) in support of the proposition that individualized sentencing is required. That opinion, however, cites the Act favorably (footnotes 3 and 19) and does not suggest that having multiple factors evaluated by the Commission is in violation of law. The case stands for the proposition that a judge who considers only one sentencing factor to the exclusion of all others abuses his or her discretion. The clear implication of the opinion is that the multiple factor approach to sentencing decisions is desirable, but the opinion does not suggest or hint that only judges, to the exclusion of Congress, may implement the multi-factor approach.

. The "chaos" adverted to is in numerous areas of practice and procedure; for example: 1. Is the Act as a whole invalid or only the guidelines? 2. Does parole still exist, and, if not, how should this affect sentencing decisions? 3. Should we utilize alternative sentencing and, if so, are there problems of uncertainty as to what, in fact, the judgment consists of? 4. Should we sentence under the guidelines when a defendant does not challenge the validity of or desires to be sentenced under the guidelines? 5. What information should the Probation Officer develop — a guidelines report, a preexisting law report, or both? 6. How do we take a plea? 7. How is a defense attorney to advise the client as to the effect of the plea? 8. Does the repeal of certain parts of the old statutory scheme fall with the unconstitutionality of the new provisions? Other knotty problems can be seen with a little imagination.