US v. Lopez-Barron

• Decision Date: 26 February 1988
• Docket Number: 87-1415-K and 87-1291-K.,87-1329-K,Crim. No. 87-1309-K,87-1338-K,87-1363-K,87-1374-K
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Rigoberto LOPEZ-BARRON, Rikki Mazzetti-Keel, Martin Rivera-Huerta, Hector J. Cota, Kim Walker, Jake Stokes, Jr., Lee Scoggins, Carol Jones, Hector Manuel Perez-Fregosa, Alfred Lopez, Willie Ray Jackson, Maria Emma Gonzalez de Mendoza, Defendants.

685 F. Supp. 725

UNITED STATES of America, Plaintiff, v. Rigoberto LOPEZ-BARRON, Rikki Mazzetti-Keel, Martin Rivera-Huerta, Hector J. Cota, Kim Walker, Jake Stokes, Jr., Lee Scoggins, Carol Jones, Hector Manuel Perez-Fregosa, Alfred Lopez, Willie Ray Jackson, Maria Emma Gonzalez de Mendoza, Defendants.

Crim. Nos. 87-1309-K, 87-1329-K, 87-1338-K, 87-1363-K, 87-1374-K, 87-1415-K and 87-1291-K.

United States District Court, S.D. California.

February 26, 1988.

Roger Haines, Asst. U.S. Atty., San Diego, Ca., for the U.S.

Mark Adams, San Diego, Ca., for Lopez-Barron.

KEEP, District Judge.

The Court: All right. At this time then I am going to give to you another one of those long, boring, oral rulings.

In ruling on the motions to hold unconstitutional the guidelines, I join in the "order granting motion to invalidate the guidelines promulgated by the United States Sentencing Commission," issued by the Honorable Rudi M. Brewster February 18, 1988. I concur in his thoughtful decision and I do want to incorporate it in this oral ruling.

By my comments this morning, I wish to supplement Judge Brewster's decision and ruling on the motion. I will discuss a few issues which he did not address or expand on some that he did. Because of the fact that this is a supplementary ruling, it will of necessity be choppy, as well as long and boring.

First as to ripeness. I agree with Judge Brewster that this case is ripe for the reasons that he stated in his opinion. However, among the cases before me today is Mr. Espinoza's case, Miss Millsaps, of the United States v. Gonzalez, 87-1291-K. Defendant Ms. Gonzalez has joined the constitutional challenge to the guidelines. She is due to be sentenced today. Her offense took place after November the 1st, 1987, so she is due to be sentenced this morning under the guidelines. The probation report places her sentencing range at 57 to 71 months, or at a range consistent with the mandatory minimum period of time she must serve since her offenses are ones of which she has to do a mandatory minimum of five years. Nevertheless, the guidelines clearly impact on Ms. Gonzalez because, among other things, they significantly reduce the amount of good time she is eligible to receive. Hence, although I hold this issue is ripe as to all the defendants before me this morning, by any existing definition of ripeness, the constitutional challenge is ripe as to defendant Gonzalez.

The first area that I will discuss is the Congressional placement of the Commission in the Judicial Branch.

As Judge Brewster notes in his opinion, there are serious separation of powers problems caused by the Sentencing Commission being placed in the Judicial Branch. I hold the Commission is unconstitutionally placed in the Judicial Branch because the composition of the Commission, the duties of the Commission, and the President's removal power over members of the Commission violate separation of powers. I add the following comments to those of Judge Brewster.

In its amicus brief, the Commission justifies the presence of the Commission within the Judicial Branch by comparing it with other roles some Justices have served, such as Ambassador or Secretary of State, or with other Committees within the Judicial Branch which serve nonadjudicatory roles, such as the Judiciary Committees which have created the Federal Rules of Civil Procedure and the Federal Rules of Evidence.

I note that analogizing to other roles Justices may have served, such as an Ambassador, is of little assistance. First, no cases were cited that indicated those roles were challenged on separation of powers grounds. And, as an aside, in regard to one of the few modern-day examples that were provided, the record before the court shows that Chief Justice Earl Warren was extremely concerned about his role on the Warren Commission and concerned that it violated separation of power principles, but was implored, presumably on National interest grounds, to serve anyway. Additionally, these Extra-Judicial roles, including Warren's, are distinguishable because they did not involve a Justice making substantive law.

None of the Judiciary Committee examples cited by the Commission, such at the Federal Rules Committee, are Committees that are mandated by Congress, composed of Judges and Nonjudges, with membership decided by the President pursuant to the instructions of Congress and with members of the Committee being subject to removal by the President. I concede the fact that such a Commission has not existed in the past does not mean it is unconstitutional. But since there is no precedent, in seeking guidance as to the Commission's validity constitutionally speaking, one must look at the intent of the founders in creating the three-branch government—the separation of powers and check and balance system created in Articles I, II and III of the Constitution.

Looking at original intent has become a controversial approach to adjudicating, particularly in this year of Supreme Court appointments. Nevertheless, when dealing with the somewhat elusive concept of separation of powers, I believe an analysis of the general intent of the founders in creating three discrete branches of Government is helpful. Among other things, the intent of the founders indicates as to the Judiciary, the founders desired an impartial and independent Judiciary. And I rely on the Federalist No. 78 at 469 and No. 39 at 246. That is why, for example, Federal Judges have no veto power, can only decide cases or controversies, cannot render advisory decisions and have lifetime tenure.

Within this historical framework, I hold the present Commission created by and empowered by Congress, appointed by the President and subject to his removal, comprised of three Article III Judges and four Nonjudges, and assigned the power of developing a set of sentencing rules which bind the entire Federal Judiciary violates separation of powers.

Supplementing Judge Brewster's reasoning, I add the following. The independence of the Judiciary is offended by a Committee composed of at least three Federal Judges and at present four Nonjudges, since a majority of the Commission has no lifetime tenure nor Article III status. The independence and impartiality of the Judiciary is offended by a Committee whose members are appointed by, subject to reappointment by, and subject to removal by the President. Such appointment and removal power creates at the very least the appearance that a significantly empowered Judiciary Committee is subject to the control of the Chief Executive.

The impartiality of the Judiciary is offended also by a Judicial Committee whose duty is to develop a mandatory set of rules which will determine by their application what sentence a Judge imposes. Basically, in creating a Judiciary, the founders created a branch of government which was not to be involved in legislating, using that term broadly, but in adjudicating. As stated in I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317, quote:

"The hydraulic pressure inherent within each of the three separate branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted."

The Commission's analogy to existing Judicial Commissions and Committees I hold fails because the aims and functions of the Sentencing Commission are wholly different from the normal role of a nonadjudicatory body within the Judicial Branch, and I hold the difference is constitutionally fatal. Sentencing guidelines are substantive. Miller v. Florida, ___ U.S. ___, 107 S.Ct. 2446, 96 L.Ed.2d 351. Therefore, under existing law, it is improper for a Judicial Commission to have rule-making powers in regard thereto. And that's Sibbach v. Wilson & Company, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479. The Commission attempts to justify its role by asserting that the guidelines regulate only remedies and affect only the actions of Judges; hence, the Commission argues this rule-making is indistinguishable from promulgating Judicial rules such as the Federal Rules of Civil Procedure. At pages 41 and 42 of their brief, the Commission concedes that there are limits on Congress' ability to delegate rule-making to the Judicial Branch. They state the court cannot promulgate binding antitrust guidelines. They explain, quote:

"The implementation of a statute through rule-making that creates rights and obligations that bind the general public rather than the courts has never been thought to be a Judicial function."

In response, I note that the implementation of a statute through rule-making that binds the entire Judiciary in the matter of what sentences will be imposed has never been thought to be a Judicial function either. Further, I note no law supports the Commission's remedies versus rights and obligations distinction. The only case cited for that proposition was Hanna v. Plumer, 380 U.S. 460, 476, 85 S.Ct. 1136, 1146, 14 L.Ed.2d 8, and specifically the concurring opinion of Judge Harlan.

The majority in Hanna held it was improper to hold a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state created rights because so holding would, quote, disembowel, end quote, Congress' grant of power in the rules enabling act. In his concurrence, which the Commission relied upon, Harlan called this standard the, quote, arguably procedural standard, end quote, and was concerned it was too liberal in that it gave the Judiciary too much authority for rule-making. Hence, it is inapposite and ironic for the Commission to quote Harlan to support it's rights and obligations theory.

I concede the Federal Rules of Evidence and the Federal Rules of Civil Procedure can, by their imposition, affect substantive rights; however, that affect is secondary. The aim of such rules is to establish procedures that structure how courts decide cases or controversies. On the other hand, the aim of the guidelines is to affect...