Document Sample
Kirby Powered By Docstoc
					Legislation and Regulation
September 14, 2010

United States v. Kirby
Supreme Court of the United States (1868)
U.S. v. Sherriff

Ninth section of the act of congress, of March 3, 1825:

“that, if any person shall knowingly and willfully obstruct or retard
the passage of the mail, or of any driver or carrier…he shall, upon
conviction…pay a fine of 100 dollars.”

Procedural History:

-Circuit Court of Gallation County, Kentucky two indictments were
found by the grand jury against Farris, a carrier of mail, for murder.
-Court issued warrants upon the indictments and gave them to Kirby,
who was sheriff of the county to arrest and bring Farris.


-Kirby, with warrant, entered the steamship Buell to make the arrest.
-Arrest, acted without any intent to obstruct the mail or passage of
the steamer.


-Whether the arrest of the mail-carrier upon the warrants was an
obstruction of the mail within the meaning of the act of Congress.

-Whether the arrest was obstructing or retarding the passage of a
carrier of the mail within the meaning of that act.


-Statute applies only to those who “knowing and willfully” obstruct or
retard the passage of the mail or of its carrier, AND perform them
with the intention that such shall be their operation.
-Statute mentions nothing about acts that are lawful in themselves.
-Persons exempt from arrests of civil process
-The rule is different when the process is issued upon a charge of
felony. (No officer of U.S. is placed above the responsibilities to
the legal tribunals when accused of felony.”

-No intention to extend such an exemption should be attributed to
Congress unless clearly manifested by its language.
-All should receive sensible construction.
-So limited as not to lead to injustice, oppression, or an absurd
Public Citizen v. United States Department of Justice
Supreme Court (1989)

Secton 3(2) of FACA, as se forth in 5 U.S.C.App. § 3(2) defines
“advisory committee”:

-Any committee, board…which is—
1. established by statute or reorganization plan, or
2. established or utilized by the President, or
3. established or utilized by one or more agencies in the interest of
obtaining advice or recommendations for the President or one or more
agencies or officers… (See 91)


-Department of Justice seeks advice from the American Bar
Association’s Standing Committee on Federal Judiciary regarding
potential nominees for federal judgeships.
-Since 1952 the President, through the D.O.J., has requested advice
from the ABA Committee in making judicial nominations.
-ABA is a private, voluntary professional association of approx.
343,000 attorneys.

-FACA’s purpose: to assess the need for the “numerous committees,
boards, commissions, councils, and similar groups which have been
established to advise officers and agencies in the executive branch of
the federal government.”

-To ensure the committees be established when essential and the number
be minimized and terminated when outlived usefulness.

-Guidelines: file a charter and keep detailed minutes, chaired and
attended by an officer or employee of the Federal Government who is
authorized to adjourn any meeting. Requires committees to provide
advance notice of their meetings and to open them to the public,
unless the President of the agency head determines they may be close
according to the Sunshine Act.


-Washington Legal Foundation brought suit against the D.O.J after ABA
committee refused WLF’s request for the names of potential judicial
nominees it was considering.
-Asked to bring ABA committee under “advisory committee” as defined by
-Further sought an injunction against D.O.J from utilizing ABA
Committee until complied with FACA.

-Reliance on plain language of FACA alone is not entirely
-“utilize” is a woolly verb and its contours left undefined by
the statute (would extend to any group of two or more persons, or at
least formal org., from which President or Executive agency seeks

-Congress did not intend that result.
-manifested by legislative history, reveals could not have been intent
to control NAACP before nominating Commissioners to EEOC.
-Nor, straight reading of “utilize” : FACA’s restrictions apply if
President consults with his own political party before picking his
-Not Congress’ intention to intrude on a political party’s freedom to
conduct its affairs as it chooses.
-Cites Holy Trinity (these applications demonstrate absurdity of
giving “utilize” broad meaning.

Justice Kennedy:

-Presents two distinct issues for the separation of powers:
     1. Congressional superiority (does not respect binding effect of
     legislative enactments)
     2. To what extent may Congress interfere with the President’s
     constitutional prerogative to nominate federal judges
           a. It is quite plain that the application of FACA to the
           Government’s use of the ABA Committee is unconstitutional.

-The only question we face is whether the ABA Committee is “utilized
by the D.O.J or the President
-If answer not yes, woolly judicial interpretation instead of woolly
-Absurd doctrine is a legitimate tool so long as the Court acts with
self-discipline by limiting the exception to situations where the
result of applying the plain language would be absurd.
-Court here exercising its own WILL instead of JUDGMENT.
-None of Court’s examples demonstrate the kind of absurd consequences
that would justify departure from the plain language of the statute.
-The Court confuses the two points: the pact that a particular
application of the clear terms of a statute might be unconstitutional,
does not render a straightforward application of the language absurd.
-Disagrees with Holy Trinity (court is more confortable)
-Thinks violation of the Appointments Clause of the COnstitution

United States v. Locke
1985 Supreme Court
-1976 Congress enacted the Federal Land Policy and Manaement Act, 90
Stat. 2743 (codified at 43 U.S.C. § 1701)
-Section 314 of the Act established a federal recording system that is
designed both to rid federal lands of stale mining claims and to
provide land managers with up-to-date info to make informed land
management decisions
-For claims located BEFORE the Act, they had to claim “prior to Dec
-Section 314© says failure shall be deemed conclusively to constitute
an abandonment of the mining claim.


-4 individuals engaged in operating mining properties in Nevada
-Throughout 1979-1980, they complied with annual state law filing and
assessment work
-End of 1980 failed to comply with federal government.
-Waited until Dec 31 to file BLM
-As noted, requires “prior to Dec 31”
-BLM regulations made quite clear “on or before Dec 30 of each year”


-“prior to dec 31” should be construed as on or before dec 31.
-even counsel for the parties seems to understand it was before dec 31
-Other interpretation would leave open any date plausible for filing
-Congress might have acted with greater clarity or foresight does not
give courts “carte blanche” to redraft statutes.
-Deference to supremacy of legislature


-Look to intent of congress.
-When read in context, consequence of legislative accident, otherwise
just ambiguous.
-Congress clearly meant “prior to the close of business on Dec 31”
-Careful reading of § 314 shows that literal readings not always
correct: § 314(a)(2) “or” for word “on” must be substituted to make

-Also, example of “mailed ok til Jan 19, 1983,” but hand-delivered not
ok on Dec 31, 1982.
-Scrivener’s error.

Shared By: