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BRIEF IN OPPOSITION TO THE BILL TO AMEND SECTION 83 OF THE JUDICIAL CODE
AS AMENDED, DividinG THE STATE OF KENTUCKY INTO THREE JUDICIAL DISTRICTS, SUBMITTED BY REPRESENTATIVE ROBERT BLACKBURN
I am opposed to this bill to redistrict the judicial districts of Kentucky, as, in my judgment, there is no public necessity for the changes contemplated by the provisions of this bill.
According to the person who, in my opinion, is most competent to pass judgment on this matter-Judge A. M. J. Cochran—these changes are not necessary.
At the hearings held on this bill in 1927, at which time Judge Cochran appeared, he testified that he was fully capable of handling the business of the court for the eastern district of Kentucky, and he is certainly better fitted to judge whether he is overworked than any other person. At that time Judge Cochran related that for the year ending July 1, 1926, he disposed of more cases than were added in all branches of litigation. I do not believe that conditions in his court have materially changed since that time; nor that the judge of the eastern Kentucky district is any less able to dispose of the cases on his docket with speed, justice, and dispatch comparable to that achieved by any other Federal judge in the country.
As Judge Cochran asserted here then, there is no necessity to establish new places to hold court, with the possible exception of Pikeville. Other towns and cities which have asked to have court held in their limits have shown more of civic pride than State interest. The complaint that the court is remote from many places is one common in almost every State, including Kentucky. Since the last hearing held on this proposal there have been changes, which tend to make the places of holding court more accessible to the people of the region which they serve this has been accomplished by the building of new highways; and it is reasonable to believe that this accessibility will tend to become more progressive with the passage of time, as the State of Kentucky is constantly building fine new roads.
Judge Cochran said recently in a letter to the chairman of this committee that he is disposing of more cases each year than are brought. At the end of the last fiscal year, he disposed of 120 more cases than were instituted. Also there has been a marked and steady decline in the number of civil suits tried in the eastern district. Although this has been partly offset by the increase of criminal business, it has been demonstrated in a very practical and irrefutable manner that this slight increase has not advanced beyond the powers of the judge to cope with it; and furthermore, Judge Cochran is of the opinion that there is no good reason to believe that this type of business will not show a marked decline in the near future, and he expects that it will so decline.
Both Judge Dawson and Judge Cochran, and numerous members of the bar in my district--all of whom, in my opinion are the most competent to pass upon the advisability of this proposal-are opposed to it. My constituents assert that the present arrangement is entirely satisfactory and that the only measure of relief which could be properly afforded would be through the appointment of an additional judge, and this opinion, also, is held by both Judge Dawson and Judge Cochran. If this judge is appointed, he should be for the entire State.
In the matter of the expense which would naturally follow on the establishment of another judicial court in Kentucky, it can not logically be held—as it was asserted by one of the proponents of the measure at the hearing in 1927that this court would cost the Government less than would be saved as a result of the partition of the western and eastern districts and the establishment of a new district.
It has been asserted that the Federal Government will benefit by the increased revenue expected to result from the establishment of another district court, should this bill be enacted into law. This reasoning is highly fallacious, it seems to me. Rather than a new source of revenue the redistricting of the courts would merely mean that the revenue now derived from two courts would come instead from three courts. Even if there were an increase, due to new business, I believe that it would pale into insignificance when compared to the cost of maintaining another court, with the small army of marshals, district and assistant district attorneys, clerks, etc., who must be paid and maintained in officeanother load on the shoulders of an already heavily taxed people.
Judge Cochran has asserted that if he were to have his way in this matter, he would answer these proposals for a new court and a new judge on the grounds that he now has too much work for one man, by eliminating some of the places
dre court is now held. He believes that it is necessary only to hold court at
Covington, Catlettsburg, Pikeville, Hazard, Lexington, London, and Pineville. Several places could be eliminated, in his opinion, such as Somerset, Frankfort, Jackson, and Richmond.
The attorney general has also rendered an adverse report against this proposal, after conducting a most painstaking examination into the state of affairs in the judicial districts of Kentucky.
I want to reiterate that the bar associations, the boards and chambers of commerce and many other civic and social organizations in my section of the State of Kentucky are vigorously opposed to this bill and do not wish to see it enacted. They have asked me, by letter and by telegram, to convey their remonstrances to this committee, which I now do. Judge Cochran has also asked that I tell this committee that he, too, is opposed to this bill in its present form for a number of reasons which he has incorporated in a letter to the chairman of this committee. Respectfully submitted.
ROBERT BLACKBURN, Member of Congress, Seventh Kentucky District.
WASHINGTON, D. C., April 16, 1930. Hon. CHARLES A. CHRISTOPHERSON, Chairman, Hon. RICHARD YATES, Hon. Carl G. BACHMANN, Hon. GEORGE R. STOBBS, Hon. CHARLES E. SWANSON, Hon. ANDREW J. MONTAGUE, Hon. GORDON BROWNING, Members Subcommittee of the House Judiciary Committee,
House of Representatives. GENTLEMEN: Referring to the hearings before your subcommittee on the 7th instant on H. R. 5624, for the creation of a third judicial district in Kentucky, agreeably to my statement then made I introduced on the 14th instant H. Ř. 11638 (copy inclosed) providing for the appointment of an additional judge for the two districts, as at present constituted.
For the reasons urged by me and by others appearing at the hearings, on April 7, and by the two district judges of Kentucky, I respectfully submit that the only adequate form of relief for any congestion in the Federal courts of Kentucky must be found in the creation of another judge with state-wide jurisdiction, rather than through the creation of a third district in the State. Also the bill I have introduced provides for regular terms of court at four additional places in southeastern Kentucky in the area covered by the proposed new district as carried in H. R. 5624 and for two additional places for the holding of court in the western district. Thus, under the provisions of H. R. 11638 there are provided 11 places in the eastern district, and 6 places in the western district, for the holding of court. The unusual number of such places thus provided in the eastern district will meet, in the amplest manner possible, any and all needs for more courts in the eastern district, and particularly in southeastern Kentucky. In addition, western Kentucky needs will also be fully met.
H. R. 11638 provides that the work of the three judges shall be determined agreeably to the provisions of section 23 of the Judicial Code as amended (U. S. C., title 28, sec. 27) thus placing the three judges on same footing and dignity. Section 23 reads as follows:
“District with more than one judge; division of business.-In districts having more than one district judge, the judges may agree upon the division of business and assignment of cases for trial in said district; but, in case they do not so agree the senior circuit judge of the circuit in which the district lies, shall make all necessary orders for the division of business and the assignment of cases for trial in said court.” (Mar. 3, 1911, c. 231, No. 23, 36 Stat. 1090.)
The services of the third judge provided for in H. R. 11638 will thus be immediately and expressly available for each and every part of Kentucky, and thereby the problems of congestion in both the eastern and western districts may be relieved in the most adequate way; whereas the creation of a third district in Kentucky, while it may relieve congestion in the eastern portion of the State, will not, in any adequate or satisfactory way, relieve the congestion in the western portion. Moreover, as I pointed out at the hearings, the geographical lines of the State do not permit of any satisfactory division of the State into three districts. Furthermore, it is to be borne in mind that there is no trouble about sending a judge from one district to another where he is specifically appointed to serve two or more districts. On the other hand, it is oftentimes very difficult in emergency needs to send a judge out of the single district for which he is appointed, into another district. The regularly domiciled judge very naturally prefers to stay in his own district, and only infrequently leaves it. He certainly would oppose constant assignments to other districts, and can usually plead home business and demands against such assignments.
Another provision in H. R. 11638 to which attention is called is that contained in section 1, to the effect that the third judge provided for the entire State must reside, and have his official place of residence, at a point other than where either the judge of the eastern district or the judge of the western district of Kentucky, live or have his place of official residence. The object of this provision is obvious and will prove, it is believed, very salutary.
As the hearings and the records show, Judge Cochran, of the eastern district, and Judge Dawson, of the western district, are absolutely opposed to the creation of a third district, but do favor the creation of a third judge for both districts. Their known ability, integrity, and experience certainly entitle their opinions and recommendations to very serious consideration.
Also, the State Bar Association of Kentucky, at its recent annual meeting or convention, by an overwhelming vote, adopted resolutions opposing the creation of a third district, but approving the proposal for a third judge for both districts.
Also, permit me to suggest as a very important consideration to be kept in mind that there are being created an almost infinite number of new offices in the Nationboth Federal and State; that the enactment of H. R. 11638 will only provide for the creation of one judgship and several deputy clerks of court, while H. R. 5624, or any similar measure, will not only create an additional judgeship and several deputy clerks, but also, a United States marshal, a United States district attorney, and one or more assistants and an office force; and a clerk of the United States court and office deputies and help. Thus, the creation of the new district will result in greatly increased expense to the Government over the creation of a third judge with state-wide powers and duties. It seems to me, that if there were any doubt touching these two methods of dealing with situations of this character, that doubt should be resolved in the interest of economy and for the benefit of the taxpayers. This consideration has undoubtedly largely prevailed with the Congress in the past in dealing with like questions, as in State after State, and in district after district, additional jusges have been provided to handle increasing court business without the creation of additional districts, and the other necessary major officers for additional districts.
It may be further stated that the proponents of a third judge for Kentucky are entirely in sympathy with the idea of having additional places for the holding of terms of court in the State, and H. R. 11638, as already pointed out, meets this situation in a thoroughly adequate manner. It provides for the holding of regular terms of court at every place in the territory of eastern and southeastern Kentucky named in H. R. 5624 and the similar measure (H. R. 11631), with a single exception, that of Paintsville. It is not believed that a court at that place, in addition to the other courts provided for in H. R. 11638, will be needed or required. Hence, under H. R. 11638 there would result the same savings in cost of witness fees, travel items, etc., as under H. R. 5624.
Your subcommittee, as a whole will desire, of course, to solve any problems of court needs or congestion in a wise and adequate way. The problems involved in the present case are State-wide rather than sectional. The needs of the entire State must be taken into account and provided for, else any legislative treatment of the subject will be insufficient. The needs of the western district are no less important than are those of the eastern district. The difference of methods in docketing and handling cases in the eastern and western districts, in a large measure accounts for a paper variance of court statistics between the two districts which is more seeming than real. Both of the present judges are diligent workers and keep up with their dockets. They seem to feel that ther, is no emergent need for relief in either district, though there is a reasonable need in both; and this need will grow, and the problem would be met. The proponents of H. R. 11638, in good faith, propose the measure as a solution of all the questions involved, and as the only just and adequate solution.
We very much regret to have to oppose the proponents of the third district suggestion, but our disagreement is in all kindness to them. We can not be indifferent to the needs of our own section, nor, in fact, to the needs of any
section of Kentucky; and we therefore urge a method of treatment that will serve, as we fully believe, every section of the State, and will justly and adequately solve every question involved.
It is therefore hoped that the subcommittee will defer action on these measures until the hearings referred to may be printed, read, and fully considered. We venture the hope that after a careful, impartial study is made of the entire subject, the subcommittee may approve the solution proposed by H. R. 11638, and may therzfore favorably report that measuru.
It is resp.ctfully urged that this letter and the accompanying approval, signed by other members of the Kentucky House delegation, be included in the printed hearings on H. R. 5624.
Thanking the subcommittee members for the pacient attention and consideration they are giving to this matter, I beg to remain, Very truly yours,
M. H. THATCHER, Member Fifth Kentucky District (Western Judicial District of Kentucky).
WASHINGTON, April 16, 1930. We fully approve, and concur in, the foregoing letter of Representative Thatcher to Chairman Christopherson and the other members of the subcommittee.
Robt. BLACKBURN, Member Seventh Kentucky District (Eastern Judicial District of Kentucky).
Elva R. KENDALL, Member Ninth Kentucky District (Eastern Judicial District of Kentucky).
J. LINCOLN NEWHALL, Member Sixth Kentucky District (Eastern Judicial District of Kentucky).
J. D. CRADDOCK, Member Fourth Kentucky District (Western Judicial District of Kentucky).
HOUSE OF REPRESENTATIVES,
Washington, D. C., April 15, 1930. Hon. GEORGE S. GRAHAM, Chairman Judiciary Committee,
House of Representatives, Washington, D. C. DEAR JUDGE GRAHAM: I am inclosing a letter received from the Kentucky State Bar Association with reference to the proposed new Federal judicial district for Kentucky.
My own home is within the present western district of Kentucky, and before my election to Congress I had many years of experience in practicing in the United States court for that district. In addition to my private practice, I had an opportunity to learn of the needs of the court in that district through my service as United States attorney.
In my opinion the creation of the proposed third district will offer absolutely no appreciable relief to the western district of Kentucky. Practically all of the time of the Federal judge in the western district of Kentucky is required in the trial of civil and criminal cases at Louisville. However, the development of oil and gas fields in western Kentucky is adding to the judge's work at other points.
Judge Dawson, who serves in the western district, is a very capable, industrious, and efficient judge. He should be relieved of all of the criminal business at Louisville, and perhaps at Owensboro, Paducah, and Bowling Green. The appointment of a third judge will solve the problem in both districts. The creation of a third district will not only fail to give the necessary relief to Judge Dawson's district, but, in my opinion, it will embarrass him in years to come if Congress should be asked to create another judgeship to relieve the congestion in his district. Sincerely yours,
W. V. GREGORY. 109067-30--SER 6-7
UNITED STATES DISTRICT COURT,
Louisville, Ky., April 17, 1930. Hon. M. H. THATCHER, M. C.,
Washington, D. C. DEAR MR. THATCHER: I have not furnished you additional statement relative to the dockets of the eastern and western districts, because I have been waiting on Judge Cochran to explain in the statement which he is making up the apparently tremendous volume of business in his district, as shown by the Attorney General's reports. I have felt that I did not want to comment on his docket without having his statement before me.
The discrepancy in the dockets of the two districts I know, however, is more apparent than real. Take, for instance, the civil cases in the eastern district: I understand it has been the uniform practice in that district, when a bail bond in a criminal case has been forfeited—and this is a very frequent occurrence in each district—the forfeiture procedure is immediately docketed as a civil case. I understand these forfeited bail bond cases in the eastern district appear in the Attorney General's reports as civil cases in which the United States is a party, under the heading of “Internal revenue.”. Until very recently we have not handled bail forfeitures in the western district that way. We have followed the State procedure—that is, when the criminal case is called, and the defendant is on bond and does not appear, an order of forfeiture is entered and process against the surety issues, but until very recently this procedure has simply been a continuation of the criminal case.
Again, in the eastern district, I understand from the clerk that when automobiles are caught in the transportation of liquor, the district attorney prepares a libel proceeding against the car, under section 3450 of the Revised Statutes, instead of proceeding under the national prohibition act, as we do in the western district. They have quite a number of these cases in the eastern district, and in the Attorney General's report they appear as civil cases in which the United States is a party, under the heading of “Internal revenue.”
I further understand from both Judge Cochran and the clerk that neither the bond forfeit cases nor the procedure against automobiles, under section 345 entail any work on the judge, except the signing of the necessary orders; that almost without exception the cases are disposed or without any contest what
I further understand from the clerk and the judge that these two methods of procedure account for practically all the civil cases in which the United States is à party, under the heading of "Internal revenue,” shown by the Attorney General's reports.
In the western district no separate civil case is docketed where automobiles are seized while engaged in the transportation of liquor. If the defendant is convicted, the car is forfeited in the criminal proceeding and the docket does not show any additional case. In the western district all the cases that appear in the Attorney General's reports under the heading of civil cases in which the United States is a party, under the heading of “Internal revenue,” are important and seriously contested income-tax cases.
Beginning with the fifth Federal, second series, and running down to the present, you will find reported many very important income-tax cases tried in the western district of Kentucky. I think you will find only one such case during the same period from the eastern district of Kentucky.
Again, beginning with 1927, it has been the practice in the eastern district, as I understand from Judge Cochran, to go through the form of a jury trial for the purpose of disposing of practically all the criminal cases which the district attorney desires to nolle. In such cases a jury is impaneled and the district attorney announces that he has no proof to offer, and the judge instructs the jury to find the defendant not guilty. I am not advised as to why this practice is followed, unless it is to meet the general rule promulgated by the Attorney General, that no criminal case shall be nolled by the district attorney without first securing the consent of the Attorney General thereto.
We have followed no such practice in the western district. With the tremendous volume of criminal business in both the eastern and the western district of Kentucky, the following of such a rule would absolutely paralyze the speedy disposition of our docket. With the hundreds of cases he has to deal with, in many of which the district attorney never has an opportunity to talk with the witnesses until the case is called for trial, it would be thoroughly impracticable to hold up the disposition of these cases, most of which are minor offenses, until
if Attorney General could be communicated with and his consent obtained.