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RULES OF CIVIL PROCEDURE FOR UNITED STATES

DISTRICT COURTS

MONDAY, APRIL 18, 1938

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The subcommittee met, pursuant to call, in the committee room, Capitol, at 10:30 a. m., Senator William H. King presiding. Present: Senators King (presiding), Burke, and Austin.

Present also: Hon. Hatton W. Sumners, a Representative in Congress from the State of Texas.

Present also: Hon. Homer Cummings, Attorney General of the United States.

The subcommittee had under consideration Senate Joint Resolution 281, to postpone the effective date of the rules of civil procedure for the district courts of the United States, which said resolution is here set forth in full, as follows:

[S. J. Res. 281, 75th Cong., 3d sess.]

JOINT RESOLUTION To postpone the effective date of the Rules of Civil Procedure for the District Courts of the United States

Whereas, by the Act of June 19, 1934, chapter 651, it is provided that the Supreme Court of the United States shall prescribe by general rules for the District Courts of the United States and for the District of Columbia the forms of process, writs, pleadings, and motions and the practice and procedure in civil actions at law; and

Whereas it is further provided by said Act of June 19, 1934, chapter 651, that the said rules to be promulgated thereunder shall not take effect until after the close of the regular session of the Seventy-fifth Congress; and

Whereas the rules transmitted to the Senate and the House of Representatives by the Attorney General on January 3, 1938, which purport to unite the rules for cases in equity with those in actions at law and provide in proposed rule 86 that such united rules will take effect on September 1, 1938, or three months subsequent to the adjournment of the second regular session of the Seventy-fifth Congress if that date is later; and

Whereas the Act of June 19, 1934, chapter 651, provides that all laws in conflict therewith shall, after the rules take effect, be of no further force and effect, and rule 86 of said proposed rules provides that the united rules shall govern all proceedings in the courts in actions brought after they take effect and in all actions pending with certain exceptions; and

Whereas if the rules so promulgated with such provisions and under such statute are intended to have the force and effect of repealing, modifying, or superseding numerous Acts of Congress now on the statute books, innumerable questions will arise as to the exact extent of the conflict; and

Whereas it is desirable that a study of such proposed rules and the laws with which they may be in conflict should be made and the conflicting provisions governing practice and procedure in the District Courts of the United States and in the District of Columbia should be brought into harmony and not be left in confusion: Now, therefore, be it

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Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the effective date of the proposed united rules shall be extended to the adjournment date of the first session of the Seventy-sixth Congress.

Senator KING. The subcommittee consists of Senators O'Mahoney, Austin, Burke, and myself. Senator O'Mahoney was compelled to leave the city, and asked me to take charge of the hearing.

The ATTORNEY GENERAL. You are going to preside over the destinies of your own bill?

Šenator KING. Yes. That is frequently the case. You presided over the destinies of your court bill.

Gentleman, this subcommittee is convened today for the purpose of considering Senate Joint Resolution 281, postponing the effective date of the rules of civil procedure for the district courts of the United States.

The Attorney General has asked for a hearing this morning. The chairman of the committee, Senator Ashurst, conferred with me, and we agreed to have this meeting this morning to permit the Attorney General and such other persons as he desires to submit their views in connection with this resolution.

Mr. Attorney General, we will hear from you first.

STATEMENT OF HON. HOMER CUMMINGS, ATTORNEY GENERAL OF THE UNITED STATES

The ATTORNEY GENERAL. Mr. Chairman and members of the committee, it is not my purpose to make anything but a very brief preliminary statement. The position of the Department of Justice with reference to this resolution is one of opposition.

That opposition grows out of the fact that the Department is in favor of the rules as submitted by the Supreme Court. I think they should take effect according to their terms.

I think it was on the 19th of June 1934 that the Congress authorized the Supreme Court of the United States to make these rules. That work the Supreme Court took up through various committees and agencies. It appointed a committee of distinguished lawyers, who took time from their own private affairs to devote themselves assiduously to framing rules to express the desire of the Supreme Court. That work went on from a time shortly after the passage of the act down to the times the rules were submitted to Congress. Assuming that the work began on July 1, 1934, and was finished on January 1, 1938, we find that 31⁄2 years of devoted service have been given to the preparation of these rules. The work was not haphazard. It was scientifically planned. It is a monument, in my judgment, to the profession and to the Supreme Court. It is supported by the overwhelming sentiment of the bar of the country and the judiciary of the country. The opposition is faint and unconvincing.

These rules were submitted at the opening of this Congress by the Attorney General, to whom the Chief Justice of the Supreme Court submitted the rules in accordance with the terms of the act of June 19, 1934. They have been before this Congress ever since that time, which is now a matter of 312 months, during which time there have been hearings before the Judiciary Committee of the House so ably presided over by the distinguished gentleman who has just entered

this room, Mr. Hatton Sumners. I suppose the report of those hearings will be available in printed form. I think they should be considered by this committee in connection with whatever action it is desired to take with reference to the resolution proposed by Senator King.

It seems to me that there has been ample time for the study of the rules. It seems to me that the fact that they have been available in printed form for a long period of time would indicate the propriety of an intensive study of them a long time ago. Now it is suggested that the effective date be postponed.

Senator KING. Until the next Congress.

The ATTORNEY GENERAL. Yes. It is hardly a mark of confidence in the work of the Supreme Court to make that suggestion. It also is a disappointment to the responsible leadership of the American bar that has devoted such a great amount of time to their preparation. The chairman of this subcommittee knows the respect and affection I have for him. That is of long standing. I most earnestly plead that, if a study of these rules is deemed necessary, it be given now. I shall be glad, with others on my staff, to cooperate in every possible way in clarifying any points that may be troubling the chairman or others, or cooperate in any general way that is desired, so that this great reform, which we consider a landmark in the progress of judicial procedure, shall not be delayed.

This morning through your courtesy, Mr. Chairman, we have the privilege of bringing here certain gentlemen, although the notice was rather short. There are many others who desire to be heard and perhaps can be heard at a later hearing. Those who have come are former Attorney General Mitchell, Maj. Edgar B. Tolman, Dean Arant, president of the Association of American Law Schools. I am informed that Mr. Arthur T. Vanderbilt, president of the American Bar Association, is coming this morning by plane, indicating his interest in this matter. His arrival may momentarily be expected. In the meantime, if in accord with your wishes, I would suggest that we proceed to hear former Attorney General Mitchell.

Senator KING. We shall be very happy to hear him, Mr. Attorney General.

STATEMENT OF HON. WILLIAM D. MITCHELL, FORMER ATTORNEY GENERAL OF THE UNITED STATES

Mr. MITCHELL. Mr. Chairman and gentlemen, the Attorney General has made a very clear statement of the gist of this situation, and I am not sure that I can add much to what he has said. I should like to say, first, that the situation is such that the effective date of the rules ought not to be postponed, unless there are very cogent reasons for it; and, second, I doubt if any good reason exists for such postponement. The rules are not the result of any star chamber process. They were not brought out by a court or committee out of the clear sky without consultation. They have been worked on for 311⁄2 years.

The committee produced two preliminary drafts, one in 1936 and one in 1937. Thousands of copies were printed. Everybody in the country had an opportunity to examine them. At the suggestion of the Attorney General, the Federal judges throughout the country

appointed local committees of the bar, which have worked on this problem. Thousands of suggestions came to the advisory committee as a result of these two drafts. The patent lawyers were consulted. The labor unions have dealt with it. The senior circuit judges in the judicial conference have considered it. Every Federal judge has been interested, and hundreds of suggestions have been received from State judges. Every class of lawyers has been heard-country lawyers, city lawyers, corporation lawyers, insurance-company lawyers, and every other possible class has had the opportunity of considering them. Then the advisory committee, as you know, worked on the problem for 32 years, and finally the Supreme Court of the United States has given the rules very careful consideration. The final result of that is that these rules are not the product of any one committee or court or the mind of any one man. They are the composite result of the efforts of the united bar of the country. Every bar association has considered them. The American Bar Association had two open-forum meetings on these rules in two different years. I have addressed 8 or 10 bar association meetings, and should have gone to more if I could have done so. The rules have been overwhelmingly endorsed by every bar association in the country and, as the Attorney General says, the opposition to them is relatively small, and is dwindling since their purpose and effect have been made more clear as the result of these discussions and open forums. The real opposition, I think, comes now from those who are fundamentally opposed to the idea of having the courts make rules to supersede the conformity system. The whole bar feels that it has participated in this work, and feels that it is a step forward in the cause of reform of judicial procedure, and that cause would suffer a very severe set-back if the Congress should postpone the effective date of these rules.

There is another aspect of the matter to which I should like to call your attention. Many of the States of the Union have already adopted the principle of having the courts make the rules instead of the legislatures. I mean the procedural rules. Some 12 or 15 States have adopted that system, and a number of others are falling in line. Those States that have not already adopted rules are now marking time and waiting until these Federal rules are promulgated and put into effect. Their plan is to adopt the Federal rules with such modifications as are needed by reason of the difference in local or other conditions. The State commissions have been so well pleased with the preliminary drafts that came out that they have been expecting to follow that course. Some of them are just about to do it. Others are awaiting action here, with the intention of taking it up in the very near future. If that is done, we will approach nearer uniformity of practice in State and Federal courts than we have ever been able to do by any other system.

Senator KING. These rules repeal by implication, if not directly, the Conformity Act, do they not?

Mr. MITCHELL. They repeal it directly. There is a provision in rule No. 86 which says that wherever the subject matter is not covered by these rules or the local rules of the district court, the district court shall use its own discretion about dealing with the procedure.

Senator KING. Of course, you are familiar with the fact that for years efforts have been made to consolidate the State government and the Federal Government in judicial procedure and policies, and repeal