A few months ago, a guy from the Heritage Foundation wrote an opinion piece for Fox News about the 2014 congressional elections, which secured Republican majorities in both Houses of Congress. He said, “The 2014 election also represents a repudiation of an attitude and style of governance that has become entrenched in Washington’s political culture: an arrogant, smug and ideologically driven elitism.”
Do keep that in mind when I tell you about H.R. 758 – a bill the House Judiciary Committee is scheduled to mark-up tomorrow after a March 17 subcommitteehearing that lasted all of one hour.
With this bill, our new congressional leaders have decided to directly amend the Federal Rules of Civil Procedure – and in terrible ways (we’ll get there in a minute). Writes the Judicial Conference of the United States, which otherwise writes these rules (under the purview of the U.S. Supreme Court): H.R. 758, “contravenes the longstanding Judicial Conference policy opposing direct amendment of the federal rules by legislation rather than through the deliberative process Congress established in the Rules Enabling Act.…” In other words, Congress – at least those in charge over there – is poised to circumvent its own law in order to force the entire judicial branch to submit to Congress’ political will regarding how judges should manage their courtrooms. Oh, we’re just getting started.
Rule 11 provides judges with authority to sanction attorneys for filing frivolous “claims, defenses, and other legal contentions.” Under the Rule, judges have the power to decide, on a case-by-case basis, the appropriateness of sanctions and what those sanctions should be.
Under H.R. 758, Congress would directly interfere with judges’ authority and discretion in several ways. The bill would require imposition of sanctions without regard to the particular facts or circumstances of a case. It would mandate the types of sanctions that judges would be forced to impose. And it would eliminate Rule 11’s common sense 21-day “safe harbor” provision, which currently allows attorneys to correct mistaken pleadings, claims or contentions without fear of sanctions.
It gets worse.
H.R. 758 basically reinstates a rule with which the Judicial Conference experimented in 1983 but was such a disaster and universally criticized, the rule was rescinded in 1993. For one thing, the 1983 version of Rule 11 had a chilling effect on the filing of meritorious cases and a disproportionate impact on civil rights plaintiffs. Empirical data showed that sanctions were sought and imposed against civil rights plaintiffs more than against any other litigants in civil court, specifically “more than 28 percent of the time, well out of proportion to the percentage of such cases filed.” Moreover, “[c]ivil rights and employment discrimination plaintiffs were sanctioned more than 70% of the time in which sanctions were sought, a significantly higher rate than in cases with other kinds of plaintiffs.”
We’re not finished.
Writes the Judicial Conference, the 1983 version of Rule 11 was “replete with unintended consequences, chiefly an explosion of satellite litigation.” They explain:
The 1983 version of Rule 11 required sanctions for every violation of the rule, and quickly became a tool of abuse. Aggressive filings of Rule 11 sanctions motions required expenditure of tremendous resources on Rule 11 battles having nothing to do with the merits of the case and everything to do with strategic gamesmanship. Many Rule 11 motions in turn triggered counter motions seeking Rule 11 sanctions as a penalty for filing of the original Rule 11 motion.
The 1993 changes to Rule 11 followed years of examination and were made on the Judicial Conference’s strong recommendation, with the Supreme Court’s approval, and effective only following a period of congressional review.
They also note the “judiciary’s united opposition to legislation amending Rule 11,” and write:
Lawyers share this view. The American Bar Association has opposed H.R. 758. Indeed, of the 200 lawyers, litigants, judges, and academics who participated in the 2010 conference at Duke University Law School convened by the Advisory Committee to search for ways to address the problems of costs and delay in civil litigation, nobody proposed a return to the 1983 version of Rule 11. (emphasis added).