US v. Seluk

• Decision Date: 05 July 1988
• Docket Number: Crim. No. 88-107-K.
• Citation: 691 F. Supp. 525
• Parties: UNITED STATES of America, v. Joseph SELUK, Defendant.
• Court: U.S. District Court — District of Massachusetts

691 F. Supp. 525

UNITED STATES of America, v. Joseph SELUK, Defendant.

Crim. No. 88-107-K.

United States District Court, D. Massachusetts.

July 5, 1988.

Robert Richman, Federal Defender's Office, Boston, Mass., for defendant.

Victor A. Wild, Boston, Mass., for U.S.

OPINION

KEETON, District Judge.

The defendant, scheduled to be sentenced under mandatory sentencing guidelines promulgated by the United States Sentencing Commission pursuant to the Sentencing Reform Act ("SRA" or "the Act"), 28 U.S. C. § 991 et seq., challenges the constitutionality of the Act and the guidelines as a whole. I conclude that the challenge lacks merit.

The defendant has not challenged separately any of the particular provisions that bear upon his sentence, and of course, I do not consider whether one or more among the many provisions within the guidelines may be held unconstitutional as applied in other circumstances, even though the guidelines as a whole survive challenge.

I. Summary of Contentions

The defendant contends that the creation of the Sentencing Commission, pursuant to the SRA, violates the Constitution in five ways. The first four are arguments that the SRA violates the doctrine of separation of powers because (1) through this Act Congress has assigned legislative power to a body (the Sentencing Commission) that not only is outside the legislative branch but also is part of the judicial branch, (2) the SRA makes an excessive delegation of legislative power, (3) the inclusion of three federal judges on the Commission threatens the independence and impartiality of the judiciary, and (4) the President's control over the Commission makes its members (including judges) subservient to the executive branch. The final argument is that (5) the sentencing guidelines deny due process by unduly restricting defendants' right to present information relevant to sentencing.

Essentially similar arguments, though with variations in detail, were presented to and rejected by Judge Mazzone in United States v. Alves, 688 F.Supp. 70 (D.Mass.1988), and a number of other district courts, see, e.g., United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.), cert. granted sub nom. United States v. Mistretta, ___ U.S. ___, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988); United States v. Chambless, 680 F.Supp. 793 (E.D.La.1988); United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988). Decisions of other courts, even greater in number, sustained the challenge to constitutionality. See, e.g., United States v. Tolbert, 682 F.Supp. 1517 (D.Kan.1988); United States v. Estrada, 680 F.Supp. 1312 (D.Minn. 1988); United States v. Frank, 682 F.Supp. 815 (W.D.Pa.1988); United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988). I concur in the conclusions reached by Judge Mazzone in Alves, the only other case thus far decided in this district, and I write further only to consider the basic premises of the separation-of-powers and due-process arguments emphasized in the submissions before me and to address some points not explicitly addressed in the Alves opinion and others cited above as sustaining the SRA.

Underlying the first and second of the defendant's contentions is the characterization of the Commission's power to develop sentencing guidelines as a "legislative" power. This characterization is the foundation for contentions that the power may not be exercised by either the executive or the judicial branch of government, that the delegation made by Congress in this case is constitutionally excessive, and that, therefore, delegation to a commission placed in the judicial branch is twice forbidden — both because of the extent of the delegation and because the SRA attempts to delegate to a commission that it purports to place in the judicial branch.

In response, first, the government argues that fashioning sentencing guidelines is essentially "executing" law rather than "making" law, and is analogous to the function previously performed by the Parole Commission, which served the objective of reducing disparity in sentences entered by hundreds of different judges by applying guidelines that it developed for general use and then applied case by case. Second, the Commission responds that governmental entities in the judicial branch, as well as administrative agencies (whether treated as part of the executive branch or as "independent" agencies) have an acknowledged power to promulgate rules affecting their administration, procedures, and operations, and that the sentencing guidelines developed by the Commission and challenged here are constitutionally permissible under this inherent rulemaking power. As to placement of the Commission in the judicial branch, the government does not oppose a ruling that this is impermissible but argues that this provision is severable. Counsel for the Commission, as amicus, defends the placement of the Commission in the judicial branch as well as all other features of the Act.

In order to assess the defense contentions and the responses of the government and the Commission, one must consider what is the most appropriate description of the nature of the function of fashioning sentencing guidelines such as those promulgated by the Commission and to what extent this function is like or unlike powers traditionally exercised in various branches of government, including agencies unknown in earlier years of our constitutional history but used with increasing profusion and variety in the last half century.

II. "Legislative," "Rulemaking," and "Lawmaking" Powers

At the outset, it may be observed that advocates of contrasting views predictably use different terminology with contrasting tendencies as hidden persuaders. Characterizing the power to develop sentencing guidelines as a "legislative" power encourages one to conclude that this power belongs only in the legislative branch. Similarly, on the other side, characterizing this power as a "rulemaking" power encourages one to conclude that it is an inherent power of every court, administrative agency, and commission.

Accepting such an intuitive leap from a label adopted without examination of its substantive implications, however, is precisely the kind of formalism in applying the doctrine of separation of powers that the Supreme Court has rejected. Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977); Buckely v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976) (per curiam); see also Morrison v. Olson, ___ U.S. ___, 108 S.Ct. 2597, 2617-19, 101 L.Ed.2d 569. Fidelity to the Court's caution against formalism requires an appraisal of the reality of how powers and functions have been allocated and exercised among the three branches in the system that had evolved up to the time of enactment of the SRA, as well as how they are allocated and will be exercised under the Act.

Defendant characterizes the Commission's work as nonjudicial. Citing Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), and United States v. Ferreira, 54 U.S. (13 How.) 40, 52, 14 L.Ed. 40 (1852), defendant argues that the Supreme Court has recently explained these early cases as holding "that executive or administrative duties of a nonjudicial nature may not be imposed on Article III judges." Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976). Defendant also calls attention to the declaration in Springer v. Phillipine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), that "unless otherwise expressly provided or incidental to the powers conferred, ... the judiciary cannot exercise either executive or legislative power." Id. at 201-02, 48 S.Ct. at 482; see also Keller v. Potomac Electric Power Co., 261 U.S. 428, 444, 43 S.Ct. 445, 449, 67 L.Ed. 731 (1923) (declaring legislation prescribing legislative function for Supreme Court invalid).

The defense argument continues that under Article III, Section 2, of the Constitution, the power of judges is narrowly and precisely limited to deciding cases and controversies. See Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923); Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

If interpreted in this restrictive way, however, these precedents would invalidate much of the traditional work of Article III judges. Indeed, defendant has recognized that judicial officers (including Article III judges) are not limited to performing the adjudicatory function of deciding cases and controversies. Their acknowledged powers and duties of office include nonadjudicatory tasks. Among such functions are disciplinary supervision of both Bench and Bar, rulemaking "ancillary to the administration of the courts," In re Certain Complaints Under Investigation, 783 F.2d 1488, 1505 (11th Cir.), cert. denied, 477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986), and other functions, including supervision of grand juries and initiation of contempt proceedings, that "do not necessarily or directly involve adversarial proceedings within a trial or appellate court," Morrison, 108 S.Ct. 2597 at 2614 n. 20.

Defendant argues, however, that the judiciary may not "take part in the formulation of substantive law. See Sibbach v. Wilson & Co., 312 U.S. 1, 14 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941)." Defense Memorandum (Docket No. 13), page 9.

This broad assertion that courts and Article III judges may not "take part in the formulation of substantive law" is a vulnerable link in the defense chain of reasoning.

The premise that courts may engage in prospective "procedural" rulemaking but never in prospective "substantive" rulemaking not only is inconsistent with American legal tradition but also is flawed on theoretical grounds.

True, there was a time when prevailing legal theory suppressed the fact that courts make law. Among the grandest of all legal fictions was the notion that courts merely interpret and apply law either previously made by statute...