UNITED STATES v. MOLINA

Cr. No. N 88-17 (TFGD)

688 F. Supp. 819 (1988) | Cited 0 times | D. Connecticut | June 16, 1988

MEMORANDUM OF DECISION

I. Background

In an indictment returned by a grand jury on March 9, 1988,the defendants were charged with criminal violations allegedto have occurred after November 1, 1987. Defendants pleadednot guilty to all of the charges and now await trial. Afterconsidering all of the briefs submitted in connection withdefendants' motion to declare the Federal SentencingGuidelines unconstitutional, and after hearing oral argumentson the motion in a plenary session before all of the activejudges in the District of Connecticut, this Court entered anOrder holding certain provisions of the Sentencing Reform Actof 1984 (the "Sentencing Act") unconstitutional. ThisMemorandum of Decision sets forth the reasons for that Order.

The Sentencing Act, which was enacted as Chapter II of theComprehensive Crime Control Act of 1984 (the "CCCA"), iseffective for all criminal conduct occurring subsequent toNovember 1, 1987. The act radically alters long-standingfederal sentencing practices. For approximately 200 yearsfederal judges have exercised broad discretion in imposingsentences on federal offenders, limited only by statutorymaximum penalties and, for certain crimes, statutory minimumpenalties. While this sentencing system has facilitatedindividualized sentencing, it has also been criticized overthe years for producing too much sentencing disparity foroffenders considered to be similarly situated.

Largely in response to this criticism, Congress enacted theSentencing Act. Thelaw alters the existing sentencing system in three fundamentalways. First, it establishes a seven member commission known asthe U.S. Sentencing Commission (the "Commission"), which wasauthorized to, and did, promulgate binding sentencingguidelines (the "Guidelines") that specify a narrow rangewithin which a sentence must ordinarily be imposed for eachoffense. 28 U.S.C. § 991-98. Second, the law provides for aright of appeal to determine whether the correct guidelinerange was imposed, and, if the sentence is outside theguideline range, whether the sentence is unreasonable in lightof the factors to be considered in imposing a sentence.18 U.S.C. § 3742. Third, the Parole Commission and the concept ofparole are abolished. CCCA, Pub.L. No. 98-473, 98 Stat. 2027,Title II, § 218(a)(5) (1984) (codified at 18 U.S.C. § 4201-18).

II. Discussion

A.

Defendants challenge the Sentencing Act on the followinggrounds: (1) the Sentencing Act violates separation of powers;(2) the Guidelines were promulgated pursuant to an illegal andoverbroad delegation of legislative authority; and (3) theGuidelines offend due process because they unduly restrict theavailability of probation as a sentencing option. The Court isnot persuaded that the Guidelines were promulgated inviolation of the delegation doctrine, nor is it persuaded thatthe Guidelines offend due process by restricting theavailability of probation. With all due respect to Congress,however, which has expended substantial energy on thislegislation, the Court finds that the Sentencing Actcontravenes the separation of powers doctrine.

B.

Although the question of ripeness was not raised by thegovernment, the Court briefly addresses that issue here. Theissue of ripeness is strictly a question of timing. "[I]tsbasic rationale is to prevent the courts, through avoidance ofpremature adjudication, from entangling themselves in abstractdisagreements. . . ." Abbott Laboratories v. Gardner,387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Aripeness analysis requires an inquiry into the "fitness of theissues for judicial decision" and "the hardship to the partiesof withholding court consideration." Thomas v. Union CarbideAgricultural Products, Co., 473 U.S. 568, 581, 105 S.Ct. 3325,3333, 87 L.Ed.2d 409 (1985).

Although the defendants have not as yet been convicted ofcriminal wrongdoing, the possibility of incarceration is asignificant factor entering into their pretrial negotiatingstrategies. Withholding a decision on this motion would,therefore, work a hardship on them. Furthermore, because theissues involved in this motion are purely legal, and will notbe clarified from further factual development, they are fitfor adjudication. Since nothing would be gained frompostponing a decision, and the public interest would be wellserved by prompt resolution of the constitutional challengepresented here, the Court finds the matter ripe foradjudication.

C.

The constitutionally mandated tripartite form of governmentwas created because the Framers recognized that "theaccumulation of all powers, legislative, executive andjudicial, in the same hands, whether of one, a few, or many,and whether hereditary, self-appointed, or elective, mayjustly be pronounced the very definition of tyranny."Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,458 U.S. 50, 57, 102 S.Ct. 2858, 2864, 73 L.Ed.2d 598 (1982)(quoting The Federalist No. 47, at 300 (H. Lodge ed. 1888) (J.Madison)). The division of distinct governmental powers amongthree separate branches provides structural, self-executingchecks and balances which guard against the encroachment oraggrandizement of one branch at the expense of another. Theseparation of powers doctrine that is embodied in theConstitution, however, does not require or envision a totalseparation of each of the three branches of government. Rather,the Constitution recognizes that in order for the government tooperate, each branchmust "function independently within their separate areas, butcooperatively in their relations with each other." In theMatter of the President's Commission on Organized Crime,Subpoena of Scarfo, 783 F.2d 370, 375 (3d Cir. 1986).

The separation of powers doctrine may be violated in eitherof two ways. As Justice Powell commented in his concurringopinion in INS v. Chadha, 462 U.S. 919, 963, 103 S.Ct. 2764,2790, 77 L.Ed.2d 317 (1983), the principle may be violated whenone branch assumes a function that is more properly entrustedto another. See e.g., Bowsher v. Synar, 478 U.S. 714, 106 S.Ct.3181, 92 L.Ed.2d 583 (1986) (separation of powers violatedwhere Congress reserves for itself removal power over officercharged with execution of laws); Keller v. Potomac ElectricPower Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731 (1923)(separation of powers violated where power to amend valuationsand rates established by Public Utility Commission conferred oncourt); In Re Sealed Case, 838 F.2d 476, 517 (D.C. Cir. 1988)(separation of powers violated where "special court" wasestablished to appoint special prosecutor and supervise andcontrol prosecutorial office). Or, alternatively, the principlemay be violated when one branch interferes impermissibly withthe other's performance of its constitutionally assignedduties, as was the case in Nixon v. Administrator of GeneralServices, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).The Sentencing Act violates the separation of powers doctrinein both respects.

The Sentencing Act violates the separation of powers byrequiring federal judges to assume executive functions moreproperly entrusted to another branch. As an initial matter theCourt finds that, notwithstanding the language in the actplacing the Commission in the judicial branch, the Commissionis not in fact a judicial agency. The Commission wasestablished as an independent agency in the judicial branch,apparently because of Congress' "strong feeling that, evenunder this legislation, sentencing should remain primarily ajudicial function." S.Rep. No. 225, 98th Cong., 1st Sess. 159,reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3342.Placement of the Commission in the judicial branch, althoughentitled to deference, is not conclusive. The proper focus ofinquiry regarding the placement of the Commission requires anexamination of the substance of the character and nature of thecomposition of the Commission and the responsibilities assignedthereto. See Bowsher, 106 S.Ct. at 3191-92; Chadha, 462 U.S. at952-54, 103 S.Ct. at 2784-86. Congress' placement of theCommission in the judiciary simply does not bear scrutiny.

The Commission is comprised of seven voting members, atleast three of whom must be federal judges, with the AttorneyGeneral, or his designee, serving as an ex officio, non-votingmember. The voting members are appointed by the President and,most significantly, they are removable by him for good cause.Although somewhat limited, the removal power, at leastarguably, makes the commissioners answerable to, and thereforeunder the control of, the executive branch. See Bowsher, 106S.Ct. 3181.

The Commission also functions in an executive capacity. Itstask is to interpret a law enacted by Congress, and toimplement the legislative mandate embodied therein. This isthe very essence of execution of the law. Id. at 3192. TheCommission's argument, as amicus curiae, that the promulgationof the Guidelines is in aid of the judiciary, carries no force,for Congress has long established sentencing policies.Furthermore, although it is true that many rules promulgated bythe federal courts under the Rules Enabling Act have asignificant impact on the litigants, the fact remains thatthese rules govern court administration. To extend thisexception to the Guidelines, which clearly affect a libertyinterest of convicted criminals and establish important publicpolicy in the area of criminal jurisprudence, is simply to gotoo far.

Accordingly, the Court finds that the Commission is not infact a judicial agency, and that it is charged with performingexecutive functions. Other than the fact thatthe Commission includes three judges and that thecommissioners are paid through the judicial branch, thejudiciary plays no significant part in the functioning of theCommission. Furthermore, if necessary, because the Courtbelieves that Congress would have enacted the remainder of theSentencing Act without the language locating the Commission inthe judiciary, the Court would not hesitate to sever suchlanguage. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107S.Ct. 1476, 1480, 94 L.Ed.2d 661 (1987). The Court hastens toadd that had it found that the Commission was truly a part ofthe judiciary, the Sentencing Act would have died a swift deathunder the separation of powers doctrine.

The Court next considers whether the Sentencing Act'smandate that three federal judges participate in thepromulgation of the Guidelines violates the separation ofpowers. It is well established under case law that Congresscannot impose a legislative or executive duty on an ArticleIII court. See e.g., Keller, 261 U.S. 428, 43 S.Ct. 445, 67L.Ed. 731 (1923); In Re Sealed Case, 838 F.2d at 517. Thequestion now under consideration is whether Congress can imposesuch duties on judges. The Court is of the view that it cannot.

The Supreme Court appears to have squarely addressed thisquestion on only one occasion. The circumstances surroundingthat case are somewhat elusive and quite intriguing. InHayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792), theCourt was faced with a 1792 statute that conferred on CircuitCourts the administrative duty of settling pension claims ofRevolutionary War veterans. The Court held the matter underadvisement until the 1793 term, and in 1793, in the wake ofseveral Circuit Court decisions questioning theconstitutionality of the statute, Congress amended the statute.As a result of this amendment the issue in Hayburn's Case wasrendered moot. In a footnote appended to Hayburn's Case, threeCircuit Court decisions addressing the 1792 statute arereported. Each of these decisions finds that the statuteimpermissibly conferred nonjudicial power on the courts. Thedecisions are divided, however, on the question of whether thestatute can be construed as conferring the power on judges intheir individual capacities.

In 1794, in the case of United States v. Yale Todd, theSupreme Court, in what appears to be an unreported decisionrecounted in a footnote appended to United States v. Ferreira,54 U.S. (13 How.) 40, 14 L.Ed. 40 (1851), held that the 1792statute referred to above could not be construed as conferringthe non-judicial administrative powers on judges in theirindividual capacities1. Thus, to this Court's knowledge,the only case addressing the question of whether Congress canimpose non-judicial duties on judges in their individualcapacity, appears to have held that it could not.

This Court understands the separation of powers doctrine asprohibiting the assignment to the judiciary, whether as acourt or through its individual members, of any duties exceptthose that are properly judicial. Our tripartite form ofgovernment, and in particular an independent judiciary, wasdesigned to protect individual liberties from encroachmentoccasioned by the unchecked accumulation of power. The aspectof the separation of powers principle presently underconsideration, namely the prohibition against expanding therole of the judiciary, strives to safeguard this libertyinterest in two respects. First, it attempts to prevent otherbranches from draining judicial power by precluding thosebranches from diverting judicial attention from thejudiciary's sole duty of deciding cases and controversies.Second, it jealously guards judicial independence which is thehallmark of the judiciary. Erosion of this principle ofseparation of powers will inevitably lead to an undermining ofpublic confidence in the judiciary and in turn of publicrespect for the rule of law.

In announcing this principle, the Court is mindful of theflexibility embodied in the separation of powers principle.Where judicial cooperation is required and called for it willsurely not be withheld. Furthermore, the principle is pliableenough to embrace an assignment to the judiciary that is trulya proper judicial function. This Court simply cannot squarethe imposition of executive duties on judges with theseparation of powers doctrine. In the long term, thestructural protections embodied in the Constitution must berespected in order to preserve judicial independence.

The Sentencing Act also violates separation of powers byinterfering impermissibly in the judiciary's performance ofits constitutionally assigned duties. Under the so called"functional approach" articulated in Nixon, 433 U.S. at 443, 97S.Ct. at 2790, where a law interferes with the properfunctioning of a branch, the court must determine the extent towhich it prevents that branch from accomplishing itsconstitutionally assigned functions. Where a potential fordisruption is found to exist, then the court must "determinewhether that impact is justified by an overriding need topromote objectives within the constitutional authority ofCongress." Id. Although this test is similar to the testpreviously discussed, and indeed the analyses overlap, theprimary focus of this test is on the interference with thejudiciary, whereas the previous test focuses on the properdistribution of the constitutionally delegated functions andthe effect of the law on the structural checks and balancesthat are inherent in our tripartite form of government.

As previously mentioned, it is well established that"[i]mpartiality is one of the central,constitutionally-ordained, requirements of the federaljudicial office." In Re Application of the President'sCommission on Organized Crime, Subpoena of Scaduto,763 F.2d 1191, 1197 (11th Cir. 1985). The requirement that judgesparticipate in the promulgation of mandatory sentencingguidelines, especially where the judges may receive a pay raiseand are subject to executive removal, leads this Court to theinescapable conclusion that the Sentencing Act impairs judicialimpartiality, both in fact and in the appearance thereof. SeeUnited States v. Estrada, 680 F. Supp. 1312, 1332-36 (D.Minn.1988). Participation of judges/commissioners also provides thepotential for diverting judicial attention from deciding casesand controversies.

The government's reliance on Scarfo, 783 F.2d 370, ismisplaced in light of the mandatory nature of judicialparticipation under the Sentencing Act. The court in Scarforelied heavily on the fact that the judge served voluntarilyand in his individual capacity. Although not performing ArticleIII functions, the judges/commissioners are sitting as membersof the judiciary and not in their individual capacities. Theyare included because of their specialized knowledge and arerecommended by the Judicial Conference. Furthermore, recusal isno answer to the problem of impartiality because Congresscannot be permitted to force judges into situations which cryout for recusal. The mingling of judges in executive functionsdilutes judicial power. Such an aberration of theconstitutional structure must be supported by an overridingneed.

Although the Court has no doubt that federal judges couldhave, and indeed have, made valuable contributions to thereexamination of sentencing policies, it nevertheless findsthat there is no overriding need to mandate judicialinvolvement in the promulgation of the Guidelines.

III. Conclusion

For the reasons set forth above, the Court holds that theportion of the Sentencing Act which authorizes the Commissionto promulgate the Guidelines, 28 U.S.C. § 991-98, contravenesthe separation of powers doctrine. It follows a fortiori, thatthe Guidelines, which were promulgated pursuant to anunconstitutional statutory provision, are themselves null andvoid. Those portions of the Sentencing Act that require courtsto impose the Guidelines must also fall as null and void. Thus,18 U.S.C. § 3553(a)(4) and (5), (b), (c)(1) and(2), and the last sentence of paragraph (e) areunconstitutional. The Court will now endeavor to examine whichportions of the CCCA survive this constitutional challenge.

When a court declares a portion of a law unconstitutional,it should strive to sever only those provisions of the lawthat are objectionable. The determination of whether anunconstitutional provision is severable is essentially aquestion of legislative intent and, because severing ispreferable to striking an entire act, the presumption is infavor of severability. Regan v. Time, Inc., 468 U.S. 641, 653,104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (pluralityopinion). The standard for determining the severability of anunconstitutional provision is well established: "Unless it isevident that the Legislature would not have enacted thoseprovisions which are within its power, independently of thatwhich is not, the invalid part may be dropped if what is leftis fully operative as law." Alaska Airlines, 107 S.Ct. at 1480(quoting Champlin Refining Co. v. Corporation Commission ofOklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062(1932)).

With these standards in mind, the Court has no doubt thatthe provisions here declared unconstitutional are severablefrom the legislative scheme of which the Sentencing Act wasbut a part. However, in order to make what is left of theSentencing Act fully operative as law, consistent with thelegislature's intent, the Court believes that the repeal ofthe Parole Commission, CCCA, title II, § 218(a)(5), must alsobe severed. In enacting the Sentencing Act, Congress wasprimarily concerned with reducing sentence disparity. TheParole Commission was created by Congress in an attempt toameliorate sentencing disparity. Furthermore, the fact that theeffective date of the repeal of the Parole Commission wascoordinated with the effective date of the Guidelines,evidences the legislature's intent to keep the ParoleCommission operative absent the Guidelines.

Similarly, the Court believes that Congress would not haveamended Rule 35 of the Federal Rules of Criminal Procedure toeliminate the defendant's right to file a motion to reduce hissentence, had it known that sentences would not be imposedunder the Guidelines. Rule 35, as it previously existed, wasdesigned to reduce sentencing disparity and the effective dateof the amendment to the Rule was keyed to the effective dateof the Guidelines. Accordingly, the Court shall construe §215(b) of the Sentencing Act, Pub.L. No. 98-473, as retainingwhat was previously Rule 35(b), and as redesignating thatparagraph as paragraph (c)2.

To the extent the decretal portion of this Memorandum ofDecision is inconsistent with the Court's Order dated May 6th,1988, that Order is VACATED.

1. It is interesting to note that four of the five Justiceswho were present at the Yale Todd decision also took part inthe Circuit Court decisions reported in the footnote toHayburn's Case.

2. Based on the Court's holding in this case, it ispossible that other provisions of the Sentencing Act may haveto be severed. Those provisions are not now before the Courtand, therefore, the Court need not deal with them here.

MEMORANDUM OF DECISION

I. Background

In an indictment returned by a grand jury on March 9, 1988,the defendants were charged with criminal violations allegedto have occurred after November 1, 1987. Defendants pleadednot guilty to all of the charges and now await trial. Afterconsidering all of the briefs submitted in connection withdefendants' motion to declare the Federal SentencingGuidelines unconstitutional, and after hearing oral argumentson the motion in a plenary session before all of the activejudges in the District of Connecticut, this Court entered anOrder holding certain provisions of the Sentencing Reform Actof 1984 (the "Sentencing Act") unconstitutional. ThisMemorandum of Decision sets forth the reasons for that Order.

The Sentencing Act, which was enacted as Chapter II of theComprehensive Crime Control Act of 1984 (the "CCCA"), iseffective for all criminal conduct occurring subsequent toNovember 1, 1987. The act radically alters long-standingfederal sentencing practices. For approximately 200 yearsfederal judges have exercised broad discretion in imposingsentences on federal offenders, limited only by statutorymaximum penalties and, for certain crimes, statutory minimumpenalties. While this sentencing system has facilitatedindividualized sentencing, it has also been criticized overthe years for producing too much sentencing disparity foroffenders considered to be similarly situated.

Largely in response to this criticism, Congress enacted theSentencing Act. Thelaw alters the existing sentencing system in three fundamentalways. First, it establishes a seven member commission known asthe U.S. Sentencing Commission (the "Commission"), which wasauthorized to, and did, promulgate binding sentencingguidelines (the "Guidelines") that specify a narrow rangewithin which a sentence must ordinarily be imposed for eachoffense. 28 U.S.C. § 991-98. Second, the law provides for aright of appeal to determine whether the correct guidelinerange was imposed, and, if the sentence is outside theguideline range, whether the sentence is unreasonable in lightof the factors to be considered in imposing a sentence.18 U.S.C. § 3742. Third, the Parole Commission and the concept ofparole are abolished. CCCA, Pub.L. No. 98-473, 98 Stat. 2027,Title II, § 218(a)(5) (1984) (codified at 18 U.S.C. § 4201-18).

II. Discussion

A.

Defendants challenge the Sentencing Act on the followinggrounds: (1) the Sentencing Act violates separation of powers;(2) the Guidelines were promulgated pursuant to an illegal andoverbroad delegation of legislative authority; and (3) theGuidelines offend due process because they unduly restrict theavailability of probation as a sentencing option. The Court isnot persuaded that the Guidelines were promulgated inviolation of the delegation doctrine, nor is it persuaded thatthe Guidelines offend due process by restricting theavailability of probation. With all due respect to Congress,however, which has expended substantial energy on thislegislation, the Court finds that the Sentencing Actcontravenes the separation of powers doctrine.

B.

Although the question of ripeness was not raised by thegovernment, the Court briefly addresses that issue here. Theissue of ripeness is strictly a question of timing. "[I]tsbasic rationale is to prevent the courts, through avoidance ofpremature adjudication, from entangling themselves in abstractdisagreements. . . ." Abbott Laboratories v. Gardner,387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Aripeness analysis requires an inquiry into the "fitness of theissues for judicial decision" and "the hardship to the partiesof withholding court consideration." Thomas v. Union CarbideAgricultural Products, Co., 473 U.S. 568, 581, 105 S.Ct. 3325,3333, 87 L.Ed.2d 409 (1985).

Although the defendants have not as yet been convicted ofcriminal wrongdoing, the possibility of incarceration is asignificant factor entering into their pretrial negotiatingstrategies. Withholding a decision on this motion would,therefore, work a hardship on them. Furthermore, because theissues involved in this motion are purely legal, and will notbe clarified from further factual development, they are fitfor adjudication. Since nothing would be gained frompostponing a decision, and the public interest would be wellserved by prompt resolution of the constitutional challengepresented here, the Court finds the matter ripe foradjudication.

C.

The constitutionally mandated tripartite form of governmentwas created because the Framers recognized that "theaccumulation of all powers, legislative, executive andjudicial, in the same hands, whether of one, a few, or many,and whether hereditary, self-appointed, or elective, mayjustly be pronounced the very definition of tyranny."Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,458 U.S. 50, 57, 102 S.Ct. 2858, 2864, 73 L.Ed.2d 598 (1982)(quoting The Federalist No. 47, at 300 (H. Lodge ed. 1888) (J.Madison)). The division of distinct governmental powers amongthree separate branches provides structural, self-executingchecks and balances which guard against the encroachment oraggrandizement of one branch at the expense of another. Theseparation of powers doctrine that is embodied in theConstitution, however, does not require or envision a totalseparation of each of the three branches of government. Rather,the Constitution recognizes that in order for the government tooperate, each branchmust "function independently within their separate areas, butcooperatively in their relations with each other." In theMatter of the President's Commission on Organized Crime,Subpoena of Scarfo, 783 F.2d 370, 375 (3d Cir. 1986).

The separation of powers doctrine may be violated in eitherof two ways. As Justice Powell commented in his concurringopinion in INS v. Chadha, 462 U.S. 919, 963, 103 S.Ct. 2764,2790, 77 L.Ed.2d 317 (1983), the principle may be violated whenone branch assumes a function that is more properly entrustedto another. See e.g., Bowsher v. Synar, 478 U.S. 714, 106 S.Ct.3181, 92 L.Ed.2d 583 (1986) (separation of powers violatedwhere Congress reserves for itself removal power over officercharged with execution of laws); Keller v. Potomac ElectricPower Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731 (1923)(separation of powers violated where power to amend valuationsand rates established by Public Utility Commission conferred oncourt); In Re Sealed Case, 838 F.2d 476, 517 (D.C. Cir. 1988)(separation of powers violated where "special court" wasestablished to appoint special prosecutor and supervise andcontrol prosecutorial office). Or, alternatively, the principlemay be violated when one branch interferes impermissibly withthe other's performance of its constitutionally assignedduties, as was the case in Nixon v. Administrator of GeneralServices, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).The Sentencing Act violates the separation of powers doctrinein both respects.

The Sentencing Act violates the separation of powers byrequiring federal judges to assume executive functions moreproperly entrusted to another branch. As an initial matter theCourt finds that, notwithstanding the language in the actplacing the Commission in the judicial branch, the Commissionis not in fact a judicial agency. The Commission wasestablished as an independent agency in the judicial branch,apparently because of Congress' "strong feeling that, evenunder this legislation, sentencing should remain primarily ajudicial function." S.Rep. No. 225, 98th Cong., 1st Sess. 159,reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3342.Placement of the Commission in the judicial branch, althoughentitled to deference, is not conclusive. The proper focus ofinquiry regarding the placement of the Commission requires anexamination of the substance of the character and nature of thecomposition of the Commission and the responsibilities assignedthereto. See Bowsher, 106 S.Ct. at 3191-92; Chadha, 462 U.S. at952-54, 103 S.Ct. at 2784-86. Congress' placement of theCommission in the judiciary simply does not bear scrutiny.

The Commission is comprised of seven voting members, atleast three of whom must be federal judges, with the AttorneyGeneral, or his designee, serving as an ex officio, non-votingmember. The voting members are appointed by the President and,most significantly, they are removable by him for good cause.Although somewhat limited, the removal power, at leastarguably, makes the commissioners answerable to, and thereforeunder the control of, the executive branch. See Bowsher, 106S.Ct. 3181.

The Commission also functions in an executive capacity. Itstask is to interpret a law enacted by Congress, and toimplement the legislative mandate embodied therein. This isthe very essence of execution of the law. Id. at 3192. TheCommission's argument, as amicus curiae, that the promulgationof the Guidelines is in aid of the judiciary, carries no force,for Congress has long established sentencing policies.Furthermore, although it is true that many rules promulgated bythe federal courts under the Rules Enabling Act have asignificant impact on the litigants, the fact remains thatthese rules govern court administration. To extend thisexception to the Guidelines, which clearly affect a libertyinterest of convicted criminals and establish important publicpolicy in the area of criminal jurisprudence, is simply to gotoo far.

Accordingly, the Court finds that the Commission is not infact a judicial agency, and that it is charged with performingexecutive functions. Other than the fact thatthe Commission includes three judges and that thecommissioners are paid through the judicial branch, thejudiciary plays no significant part in the functioning of theCommission. Furthermore, if necessary, because the Courtbelieves that Congress would have enacted the remainder of theSentencing Act without the language locating the Commission inthe judiciary, the Court would not hesitate to sever suchlanguage. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107S.Ct. 1476, 1480, 94 L.Ed.2d 661 (1987). The Court hastens toadd that had it found that the Commission was truly a part ofthe judiciary, the Sentencing Act would have died a swift deathunder the separation of powers doctrine.

The Court next considers whether the Sentencing Act'smandate that three federal judges participate in thepromulgation of the Guidelines violates the separation ofpowers. It is well established under case law that Congresscannot impose a legislative or executive duty on an ArticleIII court. See e.g., Keller, 261 U.S. 428, 43 S.Ct. 445, 67L.Ed. 731 (1923); In Re Sealed Case, 838 F.2d at 517. Thequestion now under consideration is whether Congress can imposesuch duties on judges. The Court is of the view that it cannot.

The Supreme Court appears to have squarely addressed thisquestion on only one occasion. The circumstances surroundingthat case are somewhat elusive and quite intriguing. InHayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792), theCourt was faced with a 1792 statute that conferred on CircuitCourts the administrative duty of settling pension claims ofRevolutionary War veterans. The Court held the matter underadvisement until the 1793 term, and in 1793, in the wake ofseveral Circuit Court decisions questioning theconstitutionality of the statute, Congress amended the statute.As a result of this amendment the issue in Hayburn's Case wasrendered moot. In a footnote appended to Hayburn's Case, threeCircuit Court decisions addressing the 1792 statute arereported. Each of these decisions finds that the statuteimpermissibly conferred nonjudicial power on the courts. Thedecisions are divided, however, on the question of whether thestatute can be construed as conferring the power on judges intheir individual capacities.

In 1794, in the case of United States v. Yale Todd, theSupreme Court, in what appears to be an unreported decisionrecounted in a footnote appended to United States v. Ferreira,54 U.S. (13 How.) 40, 14 L.Ed. 40 (1851), held that the 1792statute referred to above could not be construed as conferringthe non-judicial administrative powers on judges in theirindividual capacities1. Thus, to this Court's knowledge,the only case addressing the question of whether Congress canimpose non-judicial duties on judges in their individualcapacity, appears to have held that it could not.

This Court understands the separation of powers doctrine asprohibiting the assignment to the judiciary, whether as acourt or through its individual members, of any duties exceptthose that are properly judicial. Our tripartite form ofgovernment, and in particular an independent judiciary, wasdesigned to protect individual liberties from encroachmentoccasioned by the unchecked accumulation of power. The aspectof the separation of powers principle presently underconsideration, namely the prohibition against expanding therole of the judiciary, strives to safeguard this libertyinterest in two respects. First, it attempts to prevent otherbranches from draining judicial power by precluding thosebranches from diverting judicial attention from thejudiciary's sole duty of deciding cases and controversies.Second, it jealously guards judicial independence which is thehallmark of the judiciary. Erosion of this principle ofseparation of powers will inevitably lead to an undermining ofpublic confidence in the judiciary and in turn of publicrespect for the rule of law.

In announcing this principle, the Court is mindful of theflexibility embodied in the separation of powers principle.Where judicial cooperation is required and called for it willsurely not be withheld. Furthermore, the principle is pliableenough to embrace an assignment to the judiciary that is trulya proper judicial function. This Court simply cannot squarethe imposition of executive duties on judges with theseparation of powers doctrine. In the long term, thestructural protections embodied in the Constitution must berespected in order to preserve judicial independence.

The Sentencing Act also violates separation of powers byinterfering impermissibly in the judiciary's performance ofits constitutionally assigned duties. Under the so called"functional approach" articulated in Nixon, 433 U.S. at 443, 97S.Ct. at 2790, where a law interferes with the properfunctioning of a branch, the court must determine the extent towhich it prevents that branch from accomplishing itsconstitutionally assigned functions. Where a potential fordisruption is found to exist, then the court must "determinewhether that impact is justified by an overriding need topromote objectives within the constitutional authority ofCongress." Id. Although this test is similar to the testpreviously discussed, and indeed the analyses overlap, theprimary focus of this test is on the interference with thejudiciary, whereas the previous test focuses on the properdistribution of the constitutionally delegated functions andthe effect of the law on the structural checks and balancesthat are inherent in our tripartite form of government.

As previously mentioned, it is well established that"[i]mpartiality is one of the central,constitutionally-ordained, requirements of the federaljudicial office." In Re Application of the President'sCommission on Organized Crime, Subpoena of Scaduto,763 F.2d 1191, 1197 (11th Cir. 1985). The requirement that judgesparticipate in the promulgation of mandatory sentencingguidelines, especially where the judges may receive a pay raiseand are subject to executive removal, leads this Court to theinescapable conclusion that the Sentencing Act impairs judicialimpartiality, both in fact and in the appearance thereof. SeeUnited States v. Estrada, 680 F. Supp. 1312, 1332-36 (D.Minn.1988). Participation of judges/commissioners also provides thepotential for diverting judicial attention from deciding casesand controversies.

The government's reliance on Scarfo, 783 F.2d 370, ismisplaced in light of the mandatory nature of judicialparticipation under the Sentencing Act. The court in Scarforelied heavily on the fact that the judge served voluntarilyand in his individual capacity. Although not performing ArticleIII functions, the judges/commissioners are sitting as membersof the judiciary and not in their individual capacities. Theyare included because of their specialized knowledge and arerecommended by the Judicial Conference. Furthermore, recusal isno answer to the problem of impartiality because Congresscannot be permitted to force judges into situations which cryout for recusal. The mingling of judges in executive functionsdilutes judicial power. Such an aberration of theconstitutional structure must be supported by an overridingneed.

Although the Court has no doubt that federal judges couldhave, and indeed have, made valuable contributions to thereexamination of sentencing policies, it nevertheless findsthat there is no overriding need to mandate judicialinvolvement in the promulgation of the Guidelines.

III. Conclusion

For the reasons set forth above, the Court holds that theportion of the Sentencing Act which authorizes the Commissionto promulgate the Guidelines, 28 U.S.C. § 991-98, contravenesthe separation of powers doctrine. It follows a fortiori, thatthe Guidelines, which were promulgated pursuant to anunconstitutional statutory provision, are themselves null andvoid. Those portions of the Sentencing Act that require courtsto impose the Guidelines must also fall as null and void. Thus,18 U.S.C. § 3553(a)(4) and (5), (b), (c)(1) and(2), and the last sentence of paragraph (e) areunconstitutional. The Court will now endeavor to examine whichportions of the CCCA survive this constitutional challenge.

When a court declares a portion of a law unconstitutional,it should strive to sever only those provisions of the lawthat are objectionable. The determination of whether anunconstitutional provision is severable is essentially aquestion of legislative intent and, because severing ispreferable to striking an entire act, the presumption is infavor of severability. Regan v. Time, Inc., 468 U.S. 641, 653,104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (pluralityopinion). The standard for determining the severability of anunconstitutional provision is well established: "Unless it isevident that the Legislature would not have enacted thoseprovisions which are within its power, independently of thatwhich is not, the invalid part may be dropped if what is leftis fully operative as law." Alaska Airlines, 107 S.Ct. at 1480(quoting Champlin Refining Co. v. Corporation Commission ofOklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062(1932)).

With these standards in mind, the Court has no doubt thatthe provisions here declared unconstitutional are severablefrom the legislative scheme of which the Sentencing Act wasbut a part. However, in order to make what is left of theSentencing Act fully operative as law, consistent with thelegislature's intent, the Court believes that the repeal ofthe Parole Commission, CCCA, title II, § 218(a)(5), must alsobe severed. In enacting the Sentencing Act, Congress wasprimarily concerned with reducing sentence disparity. TheParole Commission was created by Congress in an attempt toameliorate sentencing disparity. Furthermore, the fact that theeffective date of the repeal of the Parole Commission wascoordinated with the effective date of the Guidelines,evidences the legislature's intent to keep the ParoleCommission operative absent the Guidelines.

Similarly, the Court believes that Congress would not haveamended Rule 35 of the Federal Rules of Criminal Procedure toeliminate the defendant's right to file a motion to reduce hissentence, had it known that sentences would not be imposedunder the Guidelines. Rule 35, as it previously existed, wasdesigned to reduce sentencing disparity and the effective dateof the amendment to the Rule was keyed to the effective dateof the Guidelines. Accordingly, the Court shall construe §215(b) of the Sentencing Act, Pub.L. No. 98-473, as retainingwhat was previously Rule 35(b), and as redesignating thatparagraph as paragraph (c)2.

To the extent the decretal portion of this Memorandum ofDecision is inconsistent with the Court's Order dated May 6th,1988, that Order is VACATED.

1. It is interesting to note that four of the five Justiceswho were present at the Yale Todd decision also took part inthe Circuit Court decisions reported in the footnote toHayburn's Case.

2. Based on the Court's holding in this case, it ispossible that other provisions of the Sentencing Act may haveto be severed. Those provisions are not now before the Courtand, therefore, the Court need not deal with them here.

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