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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
R E P O R T
[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.
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
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
(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
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
\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
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
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
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
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
\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
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
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.
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
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:
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
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
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
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.
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
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, 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,
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,
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
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
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.
(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,
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
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.
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
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
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.
L. Ralph Mecham, Secretary.
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
i. three-judge courts impose a significant burden on the federal
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
\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
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
\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
\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.
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
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
\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
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
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.
Howard L. Berman.
Melvin L. Watt.
Jose E. Serrano.