US v. Molander, 88-CR-2-S.

• Decision Date: 15 April 1988
• Docket Number: No. 88-CR-2-S.,88-CR-2-S.
• Parties: UNITED STATES of America, Plaintiff, v. Louis M. MOLANDER, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

683 F. Supp. 701

UNITED STATES of America, Plaintiff, v. Louis M. MOLANDER, Defendant.

No. 88-CR-2-S.

United States District Court, W.D. Wisconsin.

April 15, 1988.

Patrick J. Fiedler, U.S. Atty. by Jeffrey M. Anderson, Asst. U.S. Atty., for plaintiff.

W. Dan Bell, Madison, Wis., for defendant.

ORDER

SHABAZ, District Judge.

The defendant's motion to declare the sentencing guidelines unconstitutional came on to be heard before the Court in the above entitled matter on March 21, 1988, the government having appeared by Patrick J. Fiedler, United States Attorney, by Jeffrey M. Anderson, Assistant United States Attorney; the Department of Justice Appellate Criminal Division by Karen Scrivseth; the U.S. Sentencing Commission by Stephen G. Gilles; the defendant in person and by W. Dan Bell and Public Citizen Litigation Group, by Patti A. Goldman. The Hon. John C. Shabaz, District Judge, presided.

The defendant Louis M. Molander has moved the Court to declare the Sentencing Guidelines issued by the United States Sentencing Commission unconstitutional on the grounds that the delegation to the Sentencing Commission to issue the guidelines is excessive and that the composition of the Commission, as well as the method of appointment and removal of its members, violates the doctrine of separation of powers.

The defendant in his motion addresses the constitutionality of the Sentencing Reform Act, 28 U.S.C. §§ 991-998 (1987), specifically arguing that the delegation to the Sentencing Commission of the authority to establish sentencing guidelines is excessive, that Congress may not delegate this authority to the judicial branch, and further, that the composition of the Commission, as well as the method of appointment and removal of its members, violates the doctrine of the separation of powers. Although counsel for the Department of Justice has not specifically referred to the issue of ripeness, it would appear that some reference to standing has been made. It is important to address this concern, and accordingly the Court has examined the recent decision in United States v. Chambless, 680 F.Supp. 793 (E.D.La, 1988) where that court has determined that standing exists. Molander faces a period of supervised release under the guidelines to which he would not otherwise be subjected, and his actual time served would more likely be greater under the guidelines because of the abolition of the parole system.

For these reasons alone this defendant has standing, even though he may not be subject to a heavier sentence under the guidelines.

As for background, the Court looks first to the policy statement of April 13, 1987 and the supplemental report on the initial sentencing guidelines and policy statements of June 18, 1987, believing it appropriate to briefly articulate the authority suggested. The United States Sentencing Commission is an independent agency in the judicial branch composed of seven voting and two nonvoting ex officio members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes. The members are to be appointed by the President for an initial period of six years and removed by the President for "neglect of duty or malfeasance in office or other good cause shown." Congressional approval of the guidelines was not required, nor provided. The law provided only that Congress could by a vote of both Houses refuse to adopt those rules promulgated by the Commission, which legislative action was subject to further executive action.

There was no affirmative legislative action; no such action was taken when the guidelines were submitted.

The duties of the Commissioners have been clearly stated by the United States District Court for the Southern District of California in which the Hon. Rudi M. Brewster, District Judge, stated those duties, to include the promulgation and distribution to all courts of the United States and to the United States Probation System of the following:

1) sentencing guidelines for use of sentencing courts for most federal crimes;

2) general policy statements explaining application of the guidelines or any other aspect of sentencing or sentencing implementation in furtherance of congressional purposes established by statutes, including, but not limited to the following:

a) sanctions;

b) conditions of probation and supervised release;

c) sentence modifications;

d) imposition of fines;

e) plea agreement authorities and implementations;

f) temporary release provisions and pre-release custody;

g) guidelines for revocation of probation;

3) reports of compliance by sentencing courts obtained by monitoring procedures;

4) consideration of petitions of defendants requesting modification of guidelines utilized in sentencing that defendant;

5) research and development for future amendments and improvements to the sentencing mission; and

6) periodic training programs for all involved persons.

The Commission acts by an affirmative vote of at least four voting members to establish all general policies, rules and regulations for Commission functions under § 994(a).

United States v. Arnold, 678 F.Supp. 1463, 1465 (S.D.Cal.1988).

The Court now examines the three basic positions which the defendant has suggested. First, the delegation to the Sentencing Commission of the authority to establish sentencing guidelines is excessive because Congress failed to make the necessary policy judgments and gave the Commission insufficient standards to guide its work.

Second, if Congress has the power to delegate this authority at all, it may not delegate it to a body which by statute is part of a judicial branch of government and has among its members three federal judges, for it is only the executive branch that has the constitutional power to execute the laws, which is what the Commission is doing if it is not, in fact, legislating.

Third, that if the delegation could be made to a body within the judicial branch of the government composed entirely of three independent Article III judges, the Sentencing Commission is not so constituted because its members include a majority of nonjudges and because the President, the head of the executive branch, retains substantial powers over the Commission through his ability to reappoint members and to remove them for cause.

The government's memorandum in opposition to the defendant's motion suggests that this case would be very straightforward except for one short phrase in the Sentencing Reform Act; although Congress created a Sentencing Commission with all the attributes of an executive agency and assigned it in an executive function, Congress designated the Commission "an independent commission in the judicial branch," 28 U.S.C. § 991(a). If the Congressional designation is correct, then two potential constitutional problems with the Commission's composition would appear to exist: that Congress has assigned an executive function — rule making — to a judicial entity in violation of Article III, and that Congress has created a judicial entity whose members are removable by the President in violation of separation of powers principles set forth in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). The government, however, argues that these problems would completely disappear if one looks at what Congress did, not what it said it did. Convincing, perhaps, until the Court examines in depth the memorandum of the United States Sentencing Commission.

That Commission's position, by contrast, is that Congress may constitutionally create an independent body in the judicial branch that is authorized to perform the special sort of activity at issue here, rule making that is in aid of the judicial function of pronouncing sentence, and that is intended to rationalize and control the delegated sentencing discretion of federal judges. "Indeed, we suggest to the Court that, accepting as we all must the policy judgement made by Congress regarding sentencing reform, it is impossible to fault the mechanism designed by Congress to carry out its purposes."

The Sentencing Commission then lauds the wisdom of Congress in its enactment of this proposal recognizing, of course, that no matter how wise Congress may have been, nonetheless, it is subject to constitutional limitations.

The Court believes that this then sets forth the positions which it has been asked to address—excessive delegation; delegation of an executive function to the judicial branch; and the Commission is in violation of the doctrine of separation of powers because of its composition and the manner in which its members may be appointed and removed.

The first objection is without merit. There has been no excessive delegation. An examination of the Act would suggest that Congress has provided sufficient guidance to direct implementation of the Act by the Commissioners. The United States Supreme Court has struck down a statute by reason of undue delegation of legislative power only twice, at a time when there was a great deal of philosophical discussion concerning that delegation which a legislative body may provide to an executive agency. Since that time it has been recognized that there can be significant delegation. There are clear policy statements within the Act to guide the Commission in exercising the delegated rule-making authority. Intelligible principles to assist the Commission are contained in the Act as well as specific sentencing preferences for certain categories of offenses. This Court does not believe that the excessive delegation argument bears further discussion other than to address briefly Synar v. United States, 626 F.Supp. 1374 (D.D.C.1986), where the court addresses the issue of those powers which could not be conferred upon the Comptroller General.

The essential inquiry is

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