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104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-179
_______________________________________________________________________


 
                 3-JUDGE COURT FOR CERTAIN INJUNCTIONS

                                _______


 July 11, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. Moorhead, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1170]

      [Including cost estimate of the Congressional Budget Office]
    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1170) to provide that cases challenging the 
constitutionality of measures passed by State referendum be 
heard by a 3-judge court, having considered the same, report 
favorably thereon with amendments and recommend that the bill 
as amended do pass.
                                CONTENTS

                                                                   Page
The Amendment in the Nature of a Substitute......................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     3
    Historical Summary...........................................     3
    Current Lack of Protection...................................     4
Hearings.........................................................     6
Committee Consideration..........................................     6
Vote of the Committee............................................     6
Committee Oversight Findings.....................................     7
Committee on Government Reform and Oversight.....................     7
New Budget Authority and Tax Expenditures........................     7
Congressional Budget Office Estimate.............................     7
Inflationary Impact Statement....................................     8
Section-by-Section Analysis and Discussion.......................     8
Agency Views.....................................................     9
Dissenting Views.................................................    15

    The amendments are as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:
SECTION 1. 3-JUDGE COURT FOR CERTAIN INJUNCTIONS.

    Any application for an interlocutory or permanent injunction 
restraining the enforcement, operation, or execution of a State law 
adopted by referendum shall not be granted by a United States district 
court or judge thereof upon the ground of the unconstitutionality of 
such State law unless the application for the injunction is heard and 
determined by a court of 3 judges in accordance with section 2284 of 
title 28, United States Code. Any appeal of a determination on such 
application shall be to the Supreme Court. In any case to which this 
section applies, the additional judges who will serve on the 3-judge 
court shall be designated under section 2284(b)(1) of title 28, United 
States Code, as soon as practicable, and the court shall expedite the 
consideration of the application for an injunction.

SEC. 2. DEFINITIONS.

    As used in this Act--
          (1) the term ``State'' means each of the several States and 
        the District of Columbia;
          (2) the term ``State law'' means the constitution of a State, 
        or any statute, ordinance, rule, regulation, or other measure 
        of a State that has the force of law, and any amendment 
        thereto; and
          (3) the term ``referendum'' means the submission to popular 
        vote of a measure passed upon or proposed by a legislative body 
        or by popular initiative.

SEC. 3. EFFECTIVE DATE.

    This Act applies to any application for an injunction that is filed 
on or after the date of the enactment of this Act.

    Amend the title so as to read:

    A bill to provide that an application for an injunction restraining 
the enforcement, operation, or execution of a State law adopted by 
referendum may not be granted on the ground of the unconstitutionality 
of such law unless the application is heard and determined by a 3-judge 
court.
                          purpose and summary

    H.R. 1170 provides that requests for injunctions in cases 
challenging the constitutionality of measures passed by State 
referendum must be heard by a 3-judge court. Like other federal 
legislation containing a provision providing for a hearing by a 
3-judge court, H.R. 1170 is designed to protect voters in the 
exercise of their vote and to further protect the results of 
that vote. It requires that legislation voted upon and approved 
directly by the populace of a state (defined in the bill as a 
referendum) be afforded the protection of a 3-judge court 
pursuant to 28 U.S.C. Sec. 2284 where an application for an 
injunction is brought in federal court to arrest the 
enforcement of the referendum on the premise that the 
referendum is unconstitutional.\1\
    \1\ An application for an injunction includes both interlocutory 
and permanent injunction requests under Section 1 of the bill.
    In effect, where the entire populace of a state 
democratically exercises a direct vote on an issue, one federal 
judge will not be able to issue an injunction preventing the 
enforcement of the will of the people of that State. Rather, 
three judges, at the trial level,\2\ according to procedures 
provided by statute, will hear the application for an 
injunction and determine whether the requested injunction 
should issue. An appeal is taken directly to the Supreme Court, 
expediting the enforcement of the referendum if the final 
decision is that the referendum is constitutional. Such an 
expedited procedure is already provided for in other Voting 
Rights cases.
    \2\ The 3-judge court remains technically a district court in terms 
of its jurisdiction, procedures and place in the judicial hierarchy. 
Phillips v. U.S., 312 U.S. 246, 248-51 (1941); Jacobs v. Tawes, 250 F. 
2D 611, 614 (4th Cir. 1957).
---------------------------------------------------------------------------
    H.R. 1170 recognizes that referenda reflect, more than any 
other process, the one-person one-vote system,\3\ and seeks to 
protect a fundamental part of our national foundation. The 
bill, as reported, will implement a fair and effective policy 
that preserves a proper balance in federal-state relations.
    \3\ See Baker v. Carr, 369 U.S. 186 (1962).
---------------------------------------------------------------------------

                background and need for the legislation

Historical summary

    Three-judge courts were first established in 1910 in 
response to the Supreme Court's decision in Ex Parte Young, 209 
U.S. 123 (1908), which held that federal courts could enjoin 
state officials from enforcing unconstitutional state statutes. 
In order to protect states from an imprudent exercise of 
federal power by one federal judge who, by holding a statute 
unconstitutional, could halt the implementation of a law passed 
by a state legislature, Congress created 3-judge courts at the 
trial level and provided for direct appeal to the Supreme Court 
in order to expedite the review process. The Three-Judge Court 
Act of June 18, 1910, cd. 309, Sec. 17, 36 Stat. 577,

        prohibited a single Federal court judge from issuing 
        interlocutory injunctions against allegedly 
        unconstitutional State statutes and required that cases 
        seeking such injunctive relief be heard by a district 
        court made up of three judges. The act also contained a 
        provision for direct appeal to the Supreme court in the 
        belief that this would provide speedy review of these 
        cases. The rationale of the act was that three judges 
        would be less likely than one to exercise the Federal 
        injunctive power imprudently. It was felt that the act 
        would relieve the fears of the States that they would 
        have important regulatory programs precipitously 
        enjoined. * * * \4\
    \4\ ``Revision of the Jurisdiction of Three-Judge Courts,'' S. Rep. 
No. 94-204, Report of the Senate Committee on the Judiciary to 
Accompany S. 537, 94th Cong., 1st Sess. 2-3 (June 18, 1975).

    Accordingly, through the creation of 3-judge panels, states 
were afforded due process and balance in state-federal 
relations vis-a-vis determinations by the federal judiciary of 
whether their statutes were unconstitutional and review of such 
decisions was accelerated so that the will of a people of a 
state could be effected as soon as possible provided the 
statute was found to be constitutional.
    Three-judge panels were established for many state 
statutory and administrative decisions and were coming into 
greater and greater use. In 1973, 3-judge court cases had risen 
threefold in 10 years and were perceived as causing too great a 
burden on the federal judiciary. In response, in 1976, Congress 
abolished the use of 3-judge courts in cases challenging the 
constitutionality of general state statutes and regulations by 
repealing Sec. Sec. 2281 and 2282 of Title 28, United States 
Code, but specifically preserved their use when required by Act 
of Congress \5\ and in cases involving the apportionment of 
congressional districts or any statewide legislative body. 
Three-judge courts were preserved in voting apportionment cases 
``because these issues are of such importance that they ought 
to be heard by a three-judge court and, in any event, they have 
never constituted a large number of cases.'' \6\
    \5\ The use of 3-judge courts was specifically preserved by 
Congress in cases brought under the Voting Rights Act and in certain 
civil rights suits.
    \6\ S. Rep. No. 94-204 at 9.
---------------------------------------------------------------------------
    Today, the use of 3-judge courts is provided for in 28 
U.S.C. Sec. 2284, as amended.\7\ The law requires that when a 
3-judge panel is required by an Act of Congress or in an 
apportionment case, the judge to whom the case is assigned must 
determine for herself whether a 3-judge court is required, and 
then must contact the Chief Judge of the circuit in which the 
suit is filed who must in turn appoint a panel consisting of at 
least one circuit judge and two other judges either from the 
circuit or district. This provides for constitutional review of 
the challenged state law or procedure by at least one federal 
appellate judge. A single judge may conduct all pre-trial 
proceedings. Direct appeal to the United States Supreme Court 
is provided for all cases which utilize a 3-judge court 
pursuant to 28 U.S.C. Sec. 1253.
    \7\ The current version of 28 U.S.C. Sec. 2284 dealing with 3-judge 
courts (when they are required, their composition and procedure) is the 
result of the general revision of the existing provisions in 1976, 
referred to in discussion, supra, by P.L. 94-381, Sec. 3, 90 Stat. 1119 
(Aug. 12, 1976), and a subsequent amendment in 1984, P.L. 98-620, Title 
IV, Sec. 402(29)(E), 98 Stat. 3359 (Nov. 8, 1984).
    Congress has consistently maintained the use of 3-judge 
court panels in cases which concern a citizen's voting rights 
and in cases of voting procedures. Besides apportionment cases, 
a 3-judge court is mandatory in suits brought under the Voting 
Rights Act of 1965, pursuant to 42 U.S.C. Sec. Sec. 1971 
(action by the U.S. for preventative relief with respect to a 
pattern or practice of discrimination in voting rights); 
1973b(a) (action by state or political subdivision for 
declaratory judgment regarding tests or devices to determine 
eligibility to vote); 1973c (action by State or political 
subdivision for declaratory judgment regarding voting 
qualifications and procedures); 1973bb (action by U.S. seeking 
injunction against state denying right under 26th Amendment); 
and 1973h(c) (actions for relief against enforcement of poll 
tax requirement).

Current lack of protection

    With the rise in use of popular referenda by states to 
allow direct democracy to rule on issues where representative 
systems may be perceived to have failed in legislating the will 
of the populace, states have experienced an improper restraint 
by the federal judiciary on their citizen's right to vote. 
Applications to estop the enforcement of the direct will of the 
people of a State may be granted by a single federal judge. 
Overturning that decision requires a lengthy and expensive 
appeals process. The imbalance is aggravated by the ability of 
a plaintiff who wishes to arrest the enforcement of a law 
passed by state referendum to ``judge shop'' by bringing suit 
in a venue in which a judge is likely to be sympathetic to the 
plaintiff's cause.
    The Amendment in the Nature of a Substitute to H.R. 1170, 
as reported by the Subcommittee, would provide for the three-
judge court panel consideration and determination, in 
accordance with 28 U.S.C. Sec. 2284, of any application brought 
in or removed to federal district court for temporary or 
permanent injunctive relief from the enforcement, operation or 
execution of a state law passed by referendum or initiative \8\ 
based on a challenge to the constitutionality of such a 
referendum. The bill further provides for expedited 
consideration of such an application under 28 U.S.C. 
Sec. 2284(b)(1), and any appeal would be made directly to the 
Supreme Court in line with 28 U.S.C. Sec. 1253.
    \8\ Section 2(c) of the bill defines ``referendum'' to cover what 
is commonly known as both referenda and initiatives, i.e. legislation 
first passed by a state legislature and then presented to the general 
populace of a state for a vote and initiatives presented directly to 
the populace.
---------------------------------------------------------------------------
    H.R. 1170, unlike other Acts which provided for 3-judge 
court consideration for constitutional challenges to state laws 
prior to the abolishment of many such courts in 1976, is 
specifically limited to state laws which are voted on directly 
by the entire populace of the state, lending itself to parallel 
the apportionment and Voting Rights cases which traditionally 
have maintained 3-judge court consideration by Congress because 
of the importance of such cases due to the effect on a voter's 
exercise of his or her franchise \9\ and because such cases are 
presented so rarely they do not present the same burden on the 
courts as cases which involve constitutional challenges to 
general state laws passed by the state legislative process. A 
Congressional Research Service survey reveals that over the 
past 10 years, only 10 cases in the nation would have been 
eligible for review by a 3-judge court under H.R. 1170.\10\
    \9\ In Baker v. Carr, 369 U.S. at 259 (Clark J., concurring), 
Justice Clark explicitly recognized the similarity between state 
referenda and the protection provided to the people by the 
constitutional prohibition of unfair apportionment of voters among 
legislative districts.
    \10\ Survey conducted by Congressional Research Service of The 
Library of Congress on March 9, 1995 as to the number of cases that 
would have been affected by H.R. 1170 for years 1986 through 1994. 
Thirty-six states have some sort of referendum system.
---------------------------------------------------------------------------
    State laws adopted by referendum or initiative, reflecting 
the direct will of the electorate of a state on a given issue, 
will be afforded greater reverence than measures passed 
generally by representative bodies. Such cases are of ``such 
great importance'' and occur so rarely such that they will not 
``overburden the courts'', that they precisely fit the category 
of cases in which 3-judge courts were preserved even after the 
abolishment of many 3-judge courts in 1976. The use of 3-judge 
courts is imperative to the proper balance of state-federal 
relations in cases such as this where one federal judge can 
otherwise impede the direct will of the people of a state 
because she disagrees with the constitutionality of the 
provision passed. Three-judge courts in this case will help to 
provide fairer, less politically motivated consideration of 
State referendum cases.
    H.R. 1170 will also substantially limit the practice of 
``shopping around'' for a federal judge or a particular venue 
likely to be sympathetic to a plaintiff's cause. The 
recognition that individual judicial policy predilections may 
influence a judge's decision whether to grant an injunction 
leads attorneys to ``shop'' for the federal district within a 
state most likely to have a predisposition in favor of that 
attorney's argument on behalf of her client. Forum shopping 
results in imbalanced decision-making and undermines public 
confidence. It subjects the directly expressed will of the 
people to the vagaries of a single judge's policy 
predispositions, which may have been chosen in advance by the 
conscious forum selection of a competent lawyer. Like other 
cases in which Congress has maintained 3-judge courts, H.R. 
1170 recognizes the obvious truth that no matter how objective 
a judge may attempt to be, her predilections will necessarily 
influence her decisions, especially when addressing matters of 
constitutional policy.
    The constitutional issues raised in cases such as those 
passed by State referendum are often complicated and difficult, 
and are a direct result of the one-person, one-vote system. 
These cases are therefore more appropriately addressed by a 
proceeding in the nature of an appellate hearing than by a 
single trial judge.\11\
    \11\ While three judges must make final decisions regarding the 
issuance of an injunction, a single judge may make all preliminary 
determinations in a case and issue a temporary restraining order. 28 
U.S.C. Sec. 2284(b)(3). The burden on 3-judge panels is thereby 
lessened.
---------------------------------------------------------------------------

                                hearings

    The Committee's Subcommittee on Courts and Intellectual 
Property head 1 day of hearings on H.R. 1170 on April 5, 1995. 
Testimony was received from 3 witness, Mr. Harold G. Maier, 
Professor of Law, David Daniels Allen Distinguished Chair in 
Law, Vanderbilt University School of Law; Mr. Burt Neuborne, 
Professor of Law, New York University School of Law; and The 
Honorable Harry T. Edwards, Chief Judge, United States Court of 
Appeals for the District of Columbia Circuit. Additional 
material was submitted by the Honorable Daniel E. Lungren, 
Attorney General, State of California; William P. Barr, former 
Attorney General of the United States; and Edwin Meese III, 
former Attorney General of the United States.

                        committee consideration

    On May 16, 1995, the Subcommittee on Courts and 
Intellectual Property met in open session and ordered reported 
the bill H.R. 1170, as amended by an amendment in the nature of 
a substitute, by a vote of 8 to 4, a quorum being present. On 
June 7, 1995, the Committee met in open session and ordered 
reported the bill H.R. 1170 with the amendment in the nature of 
a substitute by a voice vote, a quorum being present.

                         vote of the committee

    Rollcall No. 1.
    Subject: H.R. 1170, to provide that injunction cases 
challenging the constitutionality of measures passed by State 
referendum be heard by a 3-judge court--Subcommittee amendment 
in the nature of a substitute. Adopted 17-13.

------------------------------------------------------------------------
                                     Ayes          Nays        Present  
------------------------------------------------------------------------
MR. MOORHEAD...................            X   ............  ...........
MR. SENSENBRENNER..............            X   ............  ...........
MR. McCOLLUM...................            X   ............  ...........
MR. GEKAS......................  ............  ............  ...........
MR. COBLE......................            X   ............  ...........
MR. SMITH (TX).................            X   ............  ...........
MR. SCHIFF.....................            X   ............  ...........
MR. GALLEGLY...................            X   ............  ...........
MR. CANADY.....................            X   ............  ...........
MR. INGLIS.....................            X   ............  ...........
MR. GOODLATTE..................            X   ............  ...........
MR. BUYER......................  ............  ............  ...........
MR. HOKE.......................  ............  ............  ...........
MR. BONO.......................            X   ............  ...........
MR. HEINEMAN...................            X   ............  ...........
MR. BRYANT (TN)................            X   ............  ...........
MR. CHABOT.....................            X   ............  ...........
MR. FLANAGAN...................            X   ............  ...........
MR. BARR.......................            X   ............  ...........
MR. CONYERS....................  ............            X   ...........
MRS. SCHROEDER.................  ............            X   ...........
MR. FRANK......................  ............            X   ...........
MR. SCHUMER....................  ............  ............  ...........
MR. BERMAN.....................  ............            X   ...........
MR. BOUCHER....................  ............            X   ...........
MR. BRYANT (TX)................  ............            X   ...........
MR. REED.......................  ............            X   ...........
MR. NADLER.....................  ............            X   ...........
MR. SCOTT......................  ............            X   ...........
MR. WATT.......................  ............            X   ...........
MR. BECERRA....................  ............            X   ...........
MR. SERRANO....................  ............            X   ...........
MS. LOFGREN....................  ............  ............  ...........
MS. JACKSON-LEE................  ............            X   ...........
MR. HYDE, Chairman.............            X   ............  ...........
                                ----------------------------------------
      TOTAL....................           17            13   ...........
------------------------------------------------------------------------

                      committee oversight findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         committee on government reform and oversight findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               new budget authority and tax expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               congressional budget office cost estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1170, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 12, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 1170, a bill to provide that an application for 
an injunction restraining the enforcement, operation, or 
execution of a state law adopted by referendum may not be 
granted on the ground of unconstitutionality of such law unless 
the application is heard and determined by a three-judge court, 
as ordered reported by the House Committee on the Judiciary on 
June 7, 1995.
    CBO estimates that enacting H.R. 1170 would not result in 
any significant cost to the federal government. Because 
enactment of H.R. 1170 would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply to the bill.
    This bill would require that an application for an 
injunction challenging any state law passed by state 
referendum, on the grounds of unconstitutionality, could be 
granted only if such application was heard by a panel of three 
judges. Under current law, these challenges to state law are 
referred to a single federal judge. According to information 
from the Administrative Office of the United States Courts, 
federal courts have heard fewer than 100 such appeals over the 
last 10 years and the number of future appeals is not expected 
to increase significantly. Thus, CBO estimates that while 
enacting H.R. 1170 would require additional court resources, 
the amount of such additional court expenses would be minimal.
    CBO estimates that H.R. 1170 would have no impact on state 
courts.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                         June E. O'Neill, Director.
                     inflationary impact statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 
1170 will have no significant inflationary impact on prices and 
costs in the national economy.

               section-by-section analysis and discussion

    Section 1. This section provides for the use of a 3-judge 
court in accordance with 28 U.S.C. Sec. 2284 in any case 
brought in federal district court where an application for an 
injunction is made to restrain the enforcement of a state law 
adopted by referendum on the ground that such law is 
unconstitutional. This section further provides that a decision 
as to who shall serve on the applicable 3-judge panel shall be 
designated in accordance with 28 U.S.C. Sec. 2284(b)(1) as soon 
as practicable and that the 3-judge court hearing the 
application for an injunction shall expedite its consideration.
    Section 2. This section defines the term ``state'' to mean 
each of the several states in which there sits a federal 
district court, including the District of Columbia. This 
section defines ``state law'' as any measure of a state that 
has the force of law including state constitutions, ordinances, 
rules and regulations. This section defines the term 
``referendum'' to mean the reflection of the majority of a 
voting populace of a state on either an original initiative or 
on a piece of legislation previously passed by the state 
legislature.
    Section 3. This section establishes a prospective effective 
date and applies the provisions of the Act to applications for 
injunctions filed on or after the date of enactment.

                              agency views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                      Washington, DC, May 16, 1995.
Hon. Carlos Moorhead,
Chairman, Subcommittee on Courts and Intellectual Property, Committee 
        on the Judiciary, House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice regarding H.R. 1170, a bill to provide 
that federal-court cases challenging the constitutionality of 
measures passed by state referendum be heard by a three-judge 
district court, whose decision would be appealable directly to 
the Supreme Court. We understand that this bill will be marked 
up by your Subcommittee in early May.
    Provisions similar to those found in H.R. 1170 once were 
commonly found in federal law, but Congress gradually has 
eliminated such provisions because of a consensus view that 
such three-judge-court requirements are cumbersome, confusing, 
and inefficient. Indeed, in 1976, Congress rescinded a 
provision of federal law that was almost identical to the 
requirement proposed in section 1(b) of H.R. 1170. Former 28 
U.S.C. Sec. 2281 provided, in pertinent part, that

        [a]n interlocutory or permanent injunction restraining 
        the enforcement, operation or execution of any State 
        statute * * * shall not be granted by any district 
        court or judge thereof upon the ground of the 
        unconstitutionality of such statute unless the 
        application therefor is heard and determined by a 
        district court of three judges under section 2284 of 
        this title.

The only material difference between this former statute and 
proposed section 1(b) of H.R. 1170 is that the latter is 
limited to ``State law adopted by referendum.''
    Before its revocation in 1976, both the bar and the bench 
expressed sustained and virtually unanimous opposition to 
Sec. 2281. Vocal proponents of rescinding that statute included 
the United States Judicial Conference, the Chief Justice of the 
Supreme Court, the Chief Judges of the Second, Third, Fourth 
and Fifth Circuit Courts of Appeals, the Department of Justice, 
the American Bar Association, and Professor Charles Alan 
Wright, the foremost expert in the area of federal civil 
procedure. See S. Rep. No. 204, 94th Cong., 1st Sess. 3 (1975) 
[``Senate Report'']; H.R. Rep. No. 1379, 94th Cong., 2d Sess. 4 
(1976) [``House Report'']. Repeal of the three-judge-court 
requirement also was recommended by the Federal Judicial Center 
Study Group on the Caseload of the Supreme Court, popularly 
known as the Freund Committee. See Report of the Study Group on 
the Caseload of the Supreme Court, 57 F.R.D. 573, 595-605 
(1972) [``Freund Committee Report''].
    The strong criticism of the three-judge procedure in former 
Sec. 2281 was animated by the widely-held view that that 
procedure was ``the single worst feature in the Federal 
judicial system as we have it today.'' Senate Report at 2. 
Accordingly, Congress repealed former Sec. 2281 in 1976. Pub. 
L. No. 94-381, Sec. 1, 90 Stat. 1119. The specific reasons 
Congress invoked to explain the repeal were threefold.
    First, ``the original reasons for the three-judge court 
ha[d] been largely dissipated by limiting statutes and 
decisions controlling the jurisdiction of the federal courts 
collaterally to review State laws.'' Senate Report at 8. As 
then-Chief Justice Burger noted, ``[t]he original reasons for 
establishing these special courts, whatever their validity at 
the time, no longer exist.'' Id. at 3. Because later legal 
developments obviated the concerns that originally had given 
rise to the three-judge-court requirement, the House concluded 
the ``states no longer require this kind of protection from the 
arbitrary actions of a single judge.'' House Report at 4. See 
also Senate Report at 7 (original rationale for Sec. 2281 ``has 
long been obsolete'').
    Second, the procedure ``compounds and confuses rather than 
simplifies orderly constitutional decision.'' Senate Report at 
8-9. Whether and to what extent a three-judge court must be 
convened under particular circumstances, and at certain stages 
of litigation, were questions that engendered hopelessly 
complex and arcane litigation and decisional law under 
Sec. 2281. See generally 12 Moore's Federal Practice para. 
421.03[2], at 5-63 to 5-96 (2d ed. 1995) (canvassing and 
discussing hundreds of pertinent decisions and distinctions). 
Examples of frequent areas of procedural litigation included 
whether a three-judge court was required when it was unclear 
that the court had jurisdiction (for example, because the 
plaintiff lacked standing or the suit was barred by the statute 
of limitations or res judicata), and whether a three-judge 
court was required when plaintiff's claim was frivolous.
    What is more, a second tier of complex litigation was 
generated by the ``wasteful and confusing'' channels for 
appealing jurisdictional issues relating to three-judge courts 
under Sec. 2281. According to the Senate, the rules on 
appellate review of whether a three-judge court was needed were 
``so complex as to be virtually beyond belief.'' Senate Report 
at 6. See also Freund Committee Report, 57 F.R.D. at 598 
(``When, where, and how to obtain appellate review of an order 
by or relating to a three-judge court is a hopelessly 
complicated and confused subject that in itself has produced 
much unnecessary litigation,'' and ``review of these matters 
has become so mysterious that even specialists in this area may 
be led astray''). Examples of this kind of litigation included 
questions as to which court had appellate jurisdiction when a 
three-judge court decided a case that should have been decided 
by a single-judge district court, or when a three-judge 
district court decided the case, not on the issue for which a 
three-judge court was required, but on some other issue, e.g., 
lack of standing, lack of personal or subject-matter 
jurisdiction, a statute of limitations bar, res judicata, or 
lack of merit on an unconstitutional ground.
    Third, in addition to the extra, complex litigation 
engendered by the three-judge-court requirement of Sec. 2281, 
the three-judge procedure in and of itself was, in Justice 
Frankfurter's words, a ``serious drain upon the federal 
judicial system.'' Phillips v. United States, 312 U.S. 246, 250 
(1941). As the Senate concluded, ``the burden placed on the 
panels of judges to handle these cases on an expedited basis is 
onerous in view of the mounting backlog of cases of no lesser 
priority.'' Senate Report at 9. See also id. at 4-5; House 
Report at 4 (``The scarce judicial manpower of the nation is 
inefficiently used by requiring three judges to convene for 
work that could be performed by one.''); Freund Committee 
Report, 57 F.R.D. at 598.
    Three-judge district courts are administratively 
complicated to convene and conduct, especially when, as 
frequently occurs, the judges do not reside in the city where 
the proceedings take place. Such a court ``is not well adapted 
for the trial of factual issues,'' Freund Committee Report, 57 
F.R.D. at 599, and accordingly, such courts often resort to 
procedural devices to induce stipulated facts or otherwise 
pretermit development of the facts at an evidentiary hearing, 
id.
    Moreover, eliminating court of appeals review and providing 
direct appeal to the Supreme Court unnecessarily burdens the 
Supreme Court by requiring the Court to resolve cases that 
could and should be resolved at the court of appeals level. On 
direct appeal from a three-judge court, the Supreme Court often 
must decide between reaching decision on an inadequate factual 
record or protracting the litigation by remanding for 
development of a more helpful record. Id. And, even where the 
record is adequate, direct appeal means that the Supreme Court 
``does not have the benefit of the preliminary screening and 
sharpening of issues that the courts of appeals ordinarily 
provide.'' Id. (citing Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 937, 938 (separate opinion of Burton and Frankfurter, 
JJ.) (1952)).
    In sum, the three-judge requirement of Sec. 2281 
``generate[d], rather than lessen[ed], litigation,'' and 
Congress accordingly eliminated that requirement in order to 
``increase the efficiency of our judicial system to the benefit 
of litigants, lawyers, and judges alike.'' Senate Report at 7. 
H.R. 1170 would simply reinvite the problems and stresses that 
were alleviated by repeal of Sec. 2281. Admittedly, H.R. 1170 
might not apply to as many lawsuits as did former Sec. 2281, 
because it is limited to state laws ``adopted by referendum.'' 
Nonetheless, the problems associated with such cases will be 
just as pronounced as they were with respect to cases under 
Sec. 2281.
    Moreover, in one important respect, H.R. 1170 is broader in 
scope than was Sec. 2281. Section 2281 required a three-judge 
court only for the issuance of an injunction restraining the 
enforcement of a state statute. Section 1(a) of H.R. 1170 
would, by contrast, require a three-judge court without respect 
to whether injunctive relief is sought. Under that section, a 
three-judge court would be required to ``hear [ ] and determine 
[ ]'' ``[a]ny action'' in federal court that ``challenges the 
constitutionality of a State law adopted by referendum.'' Thus, 
for example, a three-judge court arguably would have to be 
convened if the unconstitutionality of a State referendum-
passed statute were simply interposed as a defense to a private 
civil action or to a criminal charge. Indeed, H.R. 1170 seems 
to contemplate that any action being heard by a single district 
judge would have to be transferred to a three-judge court 
whenever a question is raised in the litigation as to the 
constitutionality of an applicable State statute. Thus, the 
problems and complexities that led to the elimination of 
Sec. 2281 might even be exacerbated under H.R. 1170.
    The standard judicial procedure provides for expedited 
appellate review in the courts of appeals in appropriate cases. 
A decision of a single-judge district court holding 
unconstitutional a state law adopted by referendum would be 
such a case H.R. 1170 would provide that only the Supreme 
Court, not a court of appeals, could overturn such a decision. 
The result in most cases will be to delay, rather than to 
expedite, appellate review. For these reasons, H.R. 1170 is 
likely to have the opposite result than the one its sponsors 
intend.
    The Office of Management and Budget has advised this 
Department that there is no objection to the submission of this 
report from the standpoint of the Administration's program.
            Sincerely,
                                               Robert Brish
              (For Kent Markus, Acting Assistant Attorney General).
                                ------                                

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                      Washington, DC, June 5, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice regarding H.R. 1170, a bill ``to provide 
that any application for an injunction restraining the 
enforcement, operation, or execution of a State law adopted by 
referendum may not be granted on the ground of the 
unconstitutionality of such law unless the application is heard 
and determined by a 3-judge court.'' We understand that this 
legislation was cleared for full committee action by the 
Subcommittee on Courts and Intellectual Property on May 16, 
1995.
    In our letter of May 16, 1995, to the Chairman of the 
Subcommittee on Courts and Intellectual Property (copy 
enclosed), we raised a number of serious concerns about H.R. 
1170 and noted that ``three-judge-court requirements [of the 
kind envisioned by H.R. 1170] are cumbersome, confusing, and 
inefficient.'' The amendments adopted during subcommittee 
markup of this legislation have not alleviated our concerns, 
and we therefore continue to recommend against enactment of 
H.R. 1170.
    Please let us know if we may be of additional assistance in 
connection with this or any other matter. The Office of 
Management and Budget has advised this Department that there is 
no objection to the submission of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                               Kent Markus,
                                 Acting Assistant Attorney General.
                                ------                                

                             Judicial Conference of
                                         The United States,
                                     Washington, DC, April 4, 1995.
Hon. Carlos J. Moorhead,
Chairman, Subcommittee on Courts and Intellectual Property, Committee 
        on the Judiciary, House of Representatives, Rayburn House 
        Office Building, Washington, DC.
    Dear Mr. Chairman: Thank you for your letter of March 24, 
1995, requesting comments on H.R. 1170, a bill to provide that 
cases challenging the constitutionality of measures passed by 
state referendum, as well as interlocutory or permanent 
injunctions sought to restrain the enforcement, operation, or 
execution of such laws, be heard by a three-judge court, in 
accordance with the procedures in section 2284 of title 28, 
United States Code. The bill also requires expedited 
consideration of the case by the three-judge court and provides 
for direct appeal of these cases to the Supreme Court.
    The Judicial Conference has not taken a position on H.R. 
1170. In the past, the Conference has commented upon the 
appropriateness of retaining three-judge courts for certain 
classes of cases. Ultimately, it remains for Congress to 
determine what types of cases should be determined by how many 
judges. Below, however, is a summary of positions the 
Conference has taken on this issue.
    In October 1970 the Judicial Conference endorsed the repeal 
of sections 2281 and 2282 of title 28, United States Code, 
which required a three-judge district court in cases seeking to 
restrain the enforcement, operation, or execution of all state 
or federal statutes for repugnance to the Constitution and to 
provide for direct appeal to the Supreme court in certain 
cases.\1\ The Conference explained that much of the concern by 
state officials had lessened regarding the granting of 
injunctions against enforcement of state statutes by a single 
federal judge, which was why such courts were first created in 
1910. Also, the requirement for a three-judge court in such 
injunction cases, it was noted, created a judicial burden for 
district and appellate judges because of the volume of cases 
necessitating a three-judge panel and the resulting limitations 
on the judges' availability to handle other cases.
    \1\ Sections 2281 and 2282 of title 28, United States Code, were 
both repealed in 1976.
---------------------------------------------------------------------------
    The Conference further explained in 1970 that the mechanism 
allowing for direct appeal to the Supreme Court avoided the 
screening process of appellate review at the court of appeals 
level, which better serves the interests of justice. The 
repealing legislation which the Conference was then endorsing 
would have instead created a new section title 28 providing for 
the direct review of any preliminary or permanent injunction 
granted against enforcement of a state or federal statute for 
repugnance to the Constitution by the appropriate court of 
appeals or by the Supreme Court at the election of the attorney 
general of a state or the Attorney General of the United 
States, depending on the statute involved in the suit--in 
essence, the cases subject to sections 2281 and 2282.
    I note that the 1970 position addressed a statute applying 
to constitutional challenges to all state laws, whereas the 
amendment in H.R. 1170 appears to apply only to state laws 
adopted by referendum. Subsequently, the Conference endorsed 
the retention of three-judge courts for reapportionment cases 
involving congressional redistricting or statewide 
reapportionment.
    At its October 1971 session, the Judicial Conference 
commented upon a bill implementing recommendations of the 
American Law Institute to curtail the use of three-judge 
courts. The Conference reaffirmed its support for the 
elimination of three-judge district courts in those cases 
seeking to restrain the enforcement of state or federal 
statutes that have been challenged on constitutional grounds 
and to provide for direct appeal to the Supreme Court in 
certain cases, as proposed in 1970. One year later, the 
Conference approved a bill to amend the requirement for a 
three-judge court, although the bill was different from the 
1970 recommendation in that it did not give the attorney 
general of a state or the Attorney General of the United States 
the option of appealing to the appropriate court of appeals or 
directly to the Supreme Court.
    In March 1983 the Judicial Conference considered the 
Judicial Reform Act of 1982 and a provision therein to require 
that an injunction directed against a state or any officer, 
commission, political subdivision, or other agency of a state 
be heard by a three-judge district court. The Conference 
repeated its support for the elimination of three-judge 
district courts, as articulated by it in 1970.
    Concerning expedited review, the Judicial Conference in 
September 1990 reiterated its strong opposition to statutory 
provisions imposing litigation priority, expediting, or time 
limitation rules on specified classes of civil cases brought in 
federal courts beyond those specified in 28 U.S.C. Sec. 1657. 
This position was taken in response to legislative efforts to 
impose litigation priorities and time limits in certain classes 
of cases.
    I hope that this information is helpful and, as you know, 
we stand ready to assist you in any way we can. Please let me 
know if you have any questions, or you may wish to call Mike 
Blommer, Assistant Director for the Office of Congressional, 
External and Public Affairs, at 273-1120.
            Sincerely,
                                        L. Ralph Mecham, Secretary.
                            DISSENTING VIEWS

                              introduction

    The three-judge district court procedure in cases 
challenging the constitutionality of state laws, with a direct 
appeal to the Supreme Court, is one that has failed the test of 
time. It was resoundingly rejected by the judiciary and by the 
Congress in 1976, based on long experience. Revival of the 
procedure in the form mandated by H.R. 1170 would impose 
significant burdens on an already over-burdened federal 
judiciary. H.R. 1170 arrogantly tells States that one method of 
enacting state laws is preferred over others, a determination 
that States are best suited to make for themselves. Moreover, 
H.R. 1170 fails to provide any real benefit to the voters of a 
State who approved a state law by referendum. By championing 
the Prop. 187 experience in California for their own political 
gain. We suggest that their duty lies, instead, in the 
direction of furthering public understanding of the process of 
constitutional law.

   i. three-judge courts impose a significant burden on the federal 
                               judiciary

    At every step of the process, the three-judge court 
requirement is burdensome on the federal judiciary, and the 
burden is substantial even if the number of cases falling 
within the ambit of the requirement is small.
    We do not have to surmise that this is so; when a 
substantially similar statute \1\ was repealed in 1976, the 
repeal received universal support, and the repealed provision 
was described as ``the single worst feature in the Federal 
judicial system as we have it today.'' \2\
    \1\ Former 28 U.S.C. Sec. 2281, repealed by Pub. L. No. 94-381, 
Sec. 1, 90 Stat. 1119. The primary difference between H.R. 1170 and 
Sec. 2281 is that the former applies only to State law adopted by 
referendum.
    \2\ S. Rep. No. 204, 94th Cong., 1st Sess. 2 (1975). Although the 
Judiciary Committee rushed through the hearing and markup of H.R. 1170 
before the Judicial Conference of the United States had an opportunity 
to consider the bill and provide the Committee with the benefit of its 
views, consistently since 1970, the Conference has opposed three-judge 
courts except for reapportionment cases involving congressional 
redistricting or statewide reapportionment. The undersigned note our 
concern that, not for the first time this year, the Judiciary Committee 
majority has ridden roughshod over the federal judiciary, taking action 
on measures with a significant impact on the workload of the federal 
judiciary without waiting the short period of time it would take to 
permit the Judicial Conference to consider those measures and give the 
Committee the benefit of its views.
---------------------------------------------------------------------------
    H.R. 1170 would require three judges, including one circuit 
judge, to perform the work now performed by one judge. In most 
areas of the country, judges are widely dispersed throughout 
the circuit, and will have to travel to convene the three-judge 
panel, to the substantial detriment of their existing 
caseloads. This committee knows all too well that the federal 
judiciary has limited resources and an overburdened docket; we 
should not blithely require the judiciary to triple the time it 
must devote to a single case without evidence that an 
improvement worthy of that added investment would be 
forthcoming.
    Proponents of H.R. 1170 argue that very few cases would be 
implicated by its provisions, and therefore, the burden would 
be minimal. This argument is wrong for several reasons. First, 
no reliable evidence was introduced into the record to 
demonstrate that the number of cases would be small.\3\ Even if 
the number is small, the burden is high. As Chief Judge Harry 
T. Edwards of the D.C. Circuit Court of Appeals testified, even 
``a relatively insignificant number'' of cases constitutes ``a 
terribly burdensome process when we're asked to engage in it.'' 
\4\ Finally, because the referendum process does not exist in 
fourteen states, and its use is more heavily concentrated in 
others (for example, California), the burden imposed by H.R. 
1170 would not be evenly distributed among the circuits. Some 
circuits would find themselves bearing a disproportionate share 
of the burden of H.R. 1170 without any additional resources.
    \3\ Proponents of H.R. 1170 argued that only ten cases in the last 
decade would have come within the ambit of H.R. 1170. The source of 
this information, apparently, was a quick keyword computer search 
performed by a Library of Congress employee and reported by telephone. 
No truly reliable research was conducted.
    \4\ Testimony of Hon. Harry T. Edwards before the House 
Subcommittee on Courts and Intellectual Property, Committee on the 
Judiciary, April 6, 1995.
---------------------------------------------------------------------------
    Furthermore, the burden imposed by a three-judge court 
requirement is not merely one of time and logistics. There are 
also procedural difficulties for the three-judge court, and 
appellate burdens for the Supreme Court.
    Judge J. Skelly Wright, testifying in 1975, emphasized 
``the problem of ruling on evidence as the swift-moving events 
of the trial take place. Three judges cannot act with the same 
incisiveness as the single judge in making trial rulings as 
necessary. * * *'' \5\ Chief Judge Edwards underscored this 
concern:
    \5\ Testimony of Hon. J. Skelly Wright, Hearings before the 
Subcommittee on Courts, Civil Liberties, and the Administration of 
Justice (June 20 and July 19, 1975) [hereinafter ``Wright Testimony''].

        [C]onducting a trial or any procedure other than a 
        strict appellate-style argument with more than one 
        judge is, quite frankly, a nightmare. Bench-attorney 
        interactions, which are crucial to trial and hearing 
        processes, are extremely hard to orchestrate in a 
        three-judge setting.\6\
    \6\ Testimony of Hon. Harry T. Edwards before the House 
Subcommittee on Courts and Intellectual Property, Committee on the 
Judiciary, April 6, 1995.

    Fact-finding is a trial court function particularly 
difficult for a three-judge panel, and it is clear that many 
proceedings under H.R. 1170 will involve substantial fact-
finding. As Judge Edwards noted, ``determining the likelihood 
of irreparable harm in the weighing of probable evidence in 
support of parties' arguments on the merits'' are fact-finding 
matters ``ill-suited for initial decision by multi-judge 
panels.'' \7\ A burden is also imposed on the Supreme Court. 
Judge Wright noted that a three-judge court procedure requires 
the Supreme Court to ``dispose of a case, often involving 
delicate issues of federal-state relationships, on the skeletal 
record developed in an injunctive suit in the district court, 
without intermediate consideration by a court of appeals.'' 
Wright Testimony at 7.
    \7\ Id.
       ii. forum shopping is already prohibited in federal courts

    A primary argument advanced by the proponents of this bill 
is that it will prevent forum-shopping by plaintiffs who, it is 
said, can now file their cases in the court most likely to 
favor their position. This argument ignores the fact that all 
federal districts have rules that require the random assignment 
of cases, so that forum shopping is absolutely impossible in 
federal court. Indeed, in the California Prop. 187 case that 
motivated H.R. 1170, the case was filed in the Central District 
of California, which has 25 district judges (and an additional 
seven senior district judges), where it was randomly assigned 
to one of those 25 judges. Forum shopping is a highly overrated 
technique if it means that the plaintiff gets one chance in 25 
of drawing the preferred judge.
    If anything, H.R. 1170 itself provides an opportunity for 
forum shopping that does not now exist. If H.R. 1170 is 
enacted, plaintiffs seeking to challenge the constitutionality 
of a state law can elect to file a case seeking a declaratory 
judgment; if they like the judge randomly assigned to the case, 
they can seek the declaratory judgment alone, and when that 
judgment is final, it will be res judicata and an injunction 
will have to issue. An end run, in effect, can occur around the 
three-judge rule. If, on the other hand, the plaintiffs 
perceive the randomly assigned judge to be unfavorable, they 
can then file an application for an injunction, which will 
automatically give them two or more judges, in the hope that 
the original judge will be out-voted by the two additional 
judges. In short, plaintiffs would have two bites at the apple 
in terms of getting the ``best'' court possible.

 iii. although motivated by anger over the injunction in the prop. 187 
  case in california, this bill would have made no difference in that 
                                  case

    The impetus for this measure comes, in large part, from the 
frustration that many Californians reportedly feel with the 
federal court injunction that has been issued with respect to 
California Proposition 187.\8\ As one Prop. 187 proponent, 
former INS official Harold Ezell, put it, ``The people are 
ticked, and there needs to be some way to stop the kind of 
things this woman judge is trying to do.'' \9\ It is worth 
noting, however that a state court judge also issued an 
injunction with respect to parts of Prop. 187, so that to the 
extent that the public perceives that its will is being 
frustrated by judges, the state judicial system is equally 
implicated. But the situation bears closer scrutiny to 
determine whether there is judicial ``fault,'' and whether H.R. 
1170 would have made a difference. The clear answer to both 
questions is no.
    \8\ The bill's primary sponsor noted at the April 5, 1995 hearing 
on H.R. 1170 that the bill was introduced ``because 5 million people 
voted for a measure and one hand-picked Federal judge * * * can use 
legal maneuvers to sit and sort of bury that proposition. * * *''
    \9\ ``Uncertain Fate of Prop. 187 Tests Patience,'' Los Angeles 
Times (Mar. 28, 1995).
    The education component of Prop. 187 was specifically 
designed to spur a lawsuit to seek to overturn the 1982 Supreme 
Court decision in Plyler v. Doe.\10\ Therefore, it should not 
be particularly surprising to anyone that an injunction has 
issued pending further court review of the matter. If there is 
public unhappiness with that process, the fault is not with a 
judicial process that results in an injunction when there is 
clear Supreme Court law on point, but rather with those who 
would politically exploit that public frustration, instead of 
furthering greater public understanding of the process of 
constitutional law.
    \10\ UCLA law professor Evan H. Caminker * * * said [Governor 
Wilson's complaints] are `particularly ironic' since the governor 
stressed during last year's campaign that the education component of 
Proposition 187 was designed to spur a lawsuit seeking to overturn a 
1982 U.S. Supreme Court decision. * * * `If your real motivation is to 
get the courts to revisit a constitutional issue, said Caminker, `it's 
ironic you now complain the statute is not going into effect before the 
court decision.' '' Id.
---------------------------------------------------------------------------
    Prop. 187 proponents decried the fact that federal courts 
would not defer to state court consideration of the challenges 
to Prop. 187.\11\ While we believe the federal courts are an 
appropriate forum for review of the constitutionality of state 
laws, those who prefer state court review should consider H.R. 
1170 will have the unintended consequence of increasing the 
likelihood of federal court review of cases within H.R. 1170's 
ambit.
    \11\ Id.
---------------------------------------------------------------------------
    Many cases challenging the constitutionality of state laws 
are brought today in state court. By requiring expedited review 
by a three-judge federal court, and a direct appeal to the 
Supreme Court, bypassing the Court of Appeals, H.R. 1170 will 
almost certainly have the consequence of making federal court a 
much more appealing forum than state courts in these cases, 
because of the faster and more direct track to the Supreme 
Court. The expedited federal track will also make it more 
likely that the federal court process will eclipse any 
opportunity for state court review.

 IV. CONGRESS SHOULD NOT TELL STATES THAT ONE METHOD OF ENACTING STATE 
                      LAW IS PREFERRED OVER OTHERS

    The premise of H.R. 1170 is that a state law enacted by a 
ballot measure is somehow more worthy than a state law enacted 
by a state legislature; therefore, the federal judiciary is 
mandated to give preferential treatment to state laws adopted 
by referendum. What does that say to the significant number of 
states that do not have referendum and initiative? By what 
right (or superior wisdom) does Congress tell certain States 
that their form of democracy is of lesser value than that of 
other States? Congress has no business making that kind of 
judgment.
    Indeed, a strong argument can be made that the give and 
take of the legislative process, with hearings, markup, and 
debate, is likely to produce a better product than an 
initiative process in which voters can vote ``yes'' or ``no,'' 
but have no method to refine the proposal.
    Ultimately, however, the bottom line was best stated by 
UCLA law professor Evan Caminker, who said, ``It ought to make 
no difference that it is a ballot measure, because the people 
have no greater authority to transgress the Constitution than 
does the state Legislature.''
    For these reasons, we dissent.

                                   John Conyers, Jr.
                                   Pat Schroeder.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   John Bryant.
                                   Jerrold Nadler.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Xavier Beccera.
                                   Jose E. Serrano.
                                   Zoe Lofgren.