SEPTEMBER 26 (legislative day, SEPTEMBER 12), 1975.—Ordered to be printed Mr. BURDICK, from the Committee on the Judiciary, REPORT [To accompany S. 539] The Committee on the Judiciary, to which was referred the bill (S. 539) to increase the fees and reduce the financial hardships for those individuals who serve on petit and grand juries in the district courts, and to protect such individuals from the loss of their employment while so serving, having considered the same, reports favorably thereon, without amendment, and recommends that the bill do pass. PURPOSE OF THE BILL The purpose of the bill is to revise, clarify and update the fee section (28 U.S.C. § 1871) of the Jury Selection and Service Act of 1968, as amended, and to add to that Act a new section (28 U.S.C. $1875) which will guarantee to every person serving on a federal jury the right to return to his or her employment after completion of his or her term of jury service. The updated fee section, section 2, of the bill would mandate a twenty-five-dollar-per-day juror attendance fee and establish minimal criteria for judicial certification of additional fees for extended petit and grand jury service. It would also authorize new procedures for determining the amounts to be expended for juror travel allowances and expenses, including tolls and parking charges, and new procedures for determining the amounts to be expended for juror subsistence allowances when such allowances are necessitated by long travel distances or sequestration. The employment guarantee section, section 3, of the bill would require that any employee, other than a temporary worker, applying for reemployment within fifteen days after completing his or her jury service, be rehired at his or her former seniority, status and pay. It would further require that any employee so restored be classified as having been on furlough or leave-of-absence for purposes of insurance and any other employment benefits, and that any such employee could not be discharged without cause for at least one year after returning to work. In order to encourage the proper and responsive implementation of this newly created reemployment right, section 4 of the bill confers upon the district courts original jurisdiction to grant money damages. regardless of the amount in controversy. In addition, U.S. Attorneys are required to act as attorneys for any person claiming a violation of his or her reemployment rights, and the assessment of attorney fees or court costs against such person is specifically prohibited when such a cause of action is brought in good faith. BACKGROUND In March of 1974 the Judicial Conference of the United States recommended to the Congress legislation which would correct certain inadequacies in the existing jury fee structure embodied in 28 U.S.C. § 1871. The draft bill recommended by the Judicial Conference was introduced in the House of Representatives on April 8, 1974 as H.R. 14027. While the Judicial Conference's Committee on the Operation of the Jury System was formulating its recommended changes, Senator Nelson was also studying the problem, and on March 28, 1974 he had introduced S. 3265, which was also intended to update and improve certain fees regulated by 28 U.S.C. § 1871. In responding to this committee's request for its views on S. 3265, the Administrative Office of the United States Courts forwarded its recommendation that "... legislation in the form already recommended to the Congress [the Judicial Conference draft bill] is imperatively needed. . . ."2 In view of the Administrative Office's response. the committee held a hearing on July 23, 1974 to appraise the recommendations contained in both S. 3265 and the Judicial Conference's draft bill. On September 26, 1974 the committee, after substituting the language of the Judicial Conference's draft bill for the language contained in section 2 of S. 3265, favorably reported that amended bill and recommended its passage.* On September 30, 1974, Senator Schweiker submitted, as an amendment to S. 3265, the text of a bill, S. 3776, which he had introduced on July 18, 1974. Under S. 3776 every person serving on a jury would be guaranteed the right to return to his or her prior employment following completion of jury service. On October 2, 1974 the committee amendment and Senator Schweiker's amendment were both agreed to 1 See Reports of the Proceedings of the Judicial Conference of the United States, March 78, 1974, at 18. 2 See the "Communications" section of this report, infra. That the Administrative Office has not changed its views since April 11, 1974, is evidenced by the re-introduction, on April 16, 1975, of the Judicial Conference's draft bill in the 94th Congress by Representstive Peter W. Rodino, who had introduced H.R. 14027, 93d Cong., 2d Sess. (1974). In the 94th Congress, the draft bill has been designated H.R. 6048. Hearings on S. 3265 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. (1974) (Hereinafter referred to as Hearings-Senate Judiciary Comm.). 4S. Rep. No. 93-1188, 93d Cong., 2d Sess. (1974). See 120 Cong. Rec., S. 17661 (daily ed., Sept. 30, 1974). and, as amended, S. 3265 was passed by the Senate. The bill was not considered by the House of Representatives prior to the conclusion of the ninety-third Congress. Shortly after the commencement of the ninety-fourth Congress, Senator Nelson introduced S. 500, a bill incorporating the same approach embodied in S. 3265, 93d Cong., 2d Sess. prior to that bill's amendment. On February 3, 1975 Senators Burdick and Schweiker introduced S. 539, a bill which is almost identical to S. 3265, 93d Cong., 2d Sess., as amended and passed by the ninety-third Congress. Because the differences between S. 500 and section 2 of S. 539 (concerning jury fees) in this Congress are essentially merely repetitive of the differences between S. 3265, as originally introduced, and S. 3265, as amended and passed, in the last Congress, and because the proposals contained in sections 3 and 4 of S. 539 (concerning a juror's reemployment rights) have been previously evaluated by the Congress, the committee has concluded that additional hearings during this Congress are not necessary. Accordingly, the committee is now reporting favorably on S. 539 and recommending that the bill do pass. 9 STATEMENT REGARDING JUROR FEES THE EXISTING FEE STRUCTURE In March of 1968 Congress established the existing fee structure for federal petit and grand jurors.10 Under that structure a petit or grand juror serving in a federal district court receives $20.00 per day for time spent in actual attendance at, or in travel to or from, the place of service. If a juror is required to serve more than thirty days in hearing one case, the trial judge has the discretionary power to certify a $5.00 increase in the daily fee, to $25.00 a day, for each day of service in excess of thirty days. In addition, the statute sets a 10-cent-per-mile travel allowance, and authorizes reimbursement for all tolls on roads, tunnels, and bridges, as long as the total of those amounts does not exceed $16.00 per day, the maximum amount allowed for subsistence when daily travel is impractical. Finally, whenever a jury is sequestered, reimbursement for all incidental expenses is authorized upon order of the court. THE IMPACT OF INFLATION UPON THAT STRUCTURE In the seven years which have passed since the adoption of that fee structure, inflation has rendered it inadequate. The costs of subsistence and travel, as well as the salary loss involved in jury service for those whose salary is suspended during that service, have increased dramatically. In testimony given before the Subcommittee on Improvements in Judicial Machinery in July of 1974 the Director of the Administrative Office of the United States Courts reported that the Bureau of Labor • See 120 Cong. Rec., S.18068-71 (dally ed., Oct. 2, 1974). See 121 Cong. Rec., S.1225-27 (daily ed., Jan. 30, 1975). See 121 Cong. Rec., S.1355-56 (daily ed., Feb. 3, 1975). See note 3 supra and accompanying text. See also this report's "Statement Regarding a Juror's Right to Reemployment." infra. 10 Aet of March 27, 1968, Pub. L. No. 90-274, § 102(a), 82 Stat. 62 (codified at 28 U.S.C Statistics haa determined that the Consumer Price Index had risen 37% between December 1968 (the effective date of the 1968 fee structure legislation) and May 1974. He also noted that in 1968 the average per-day income for private non-farm payroll workers was $22.80, while in May of 1974 that figure had increased to $33.12, an increase of 45%.11 Not only has inflation made the daily fee inadequate, but in addition the daily subsistence expense of $16.00 per day is inadequate in those circumstances where a juror lives a long distance from the place of holding court and is paid a subsistence allowance in lieu of mileage. In many cities that amount will obviously not adequately compensate the juror for the cost of a hotel room and meals. In fact, the actual expense reimbursement provided a government employee has just been increased from $25.00 to $35.00 per day,12 and on June 4, 1975, the Senate itself increased the limitation on daily witness fees payable to witnesses summoned to appear before the Senate or any of its committees from $25.00 to $35.00.13 Travel allowances mandated by the existing fee structure have also been outdated by the events of the past seven years, especially by the increased price of gasoline in the past eighteen months. Under existing law a juror receives only 10 cents per mile, regardless of the means of transportation used. Government employees are currently reimbursed at a rate "not to exceed 20 cents per mile" for the use of a privately-owned automobile.14 The necessity for that higher amount was demonstrated during testimony regarding S. 3341, 93d Cong., 2d Sess., received by the Senate Government Operations Committee on Budgeting, Management and Expenditures on June 6, 1974. Mr. Ronald E. Zechman, the Acting Associate Administrator of the Office of Federal Management Policy, then testified in favor of a statutory maximum of at least 18 cents per mile for automobile travel. Mr. Zechman explained that, although Government Services Administration studies then indicated that the average cost of operating a private automobile was 14.4 cents per mile, latitude was needed for future adjustment.15 Certainly his testimony dramatizes the inadequacy of the existing ten-cent-per-mile juror travel allowance. In view of the Government Services Administration studies, most jurors are today receiving between 4.4 and 10 cents per mile less than their actual travel costs.16 PROPOSED CORRECTIVE LEGISLATION As explained above, there are presently three bills pending before the 94th Congress which are designed to effect changes in the existing 11 Hearings-Senate Judiciary Comm., at 32-33. 1 Act of May 19, 1975, Pub. L. No. 94-22, § 3, 89 Stat. 84 (Codified at 5 U.S.C. § 5702). 13 S. Res. 172, 94th Cong., 1st Sess. (1975). In its report on S. Res. 172, filed on June 2 1975, the Senate Committee on Rules and Administration stated that: "The proposed increase in daily witness fees is predicated upon and consistent with the maximum increased limitation on per diem in lieu of substance rates for government employees traveling official business provided by S. 172, which bill received final favorable action by the Chtgress on May 5, 1975, and was approved by the President on May 19, 1975. Such rates are and have been the criteria for determining the rate for witness fees paid by the Senate." See S. Rep. No. 94-162, 94th Cong., 1st Sess. (1975). 14 Act of May 19, 1975, Pub. L. No. 94-22, § 5. 89 Stat. 85 (codified at 5 U.S.C. § 5704) 15 Hearings on S. 3441 Before the Subcomm. on Budgeting, Management, and Expend tures of the Senate Comm. on Government Operations, 93d Cong., 2d Sess., 10 (1974). 16 It should perhaps be noted that S. Res. 172, discussed at n. 13 supra, in addition te raising daily witness fees for Senate witnesses, also increased from 20 cents to 35 cents per mile the limitation on payment of actual transportation expenses for witnesses traveling not more than 600 miles and increased from 12 cents to 20 cents per mile the same payment for those witnesses traveling more than 600 miles. See S. Rep. No. 94-162, 94th Cong., 1st Sess., 1 (1975). jury fee structure-the Judicial Conference's draft bill, H.R. 6048,17 S. 500,18 and S. 539. Each is intended to remedy inadequacies which have developed during the past seven years. After carefully weighing the merits of each, the committee has concluded that S. 539 provides the most comprehensive and appropriate legislative response to the existing inadequacies in the jury fee structure. The remainder of this section of this report will support that conclusion. Before examining the individual recommendations for changes contained in S. 539, however, the committee wishes to note that, in assessing and evaluating competing proposals, it has been guided by three fundamental principles. The first of those principles is that juror fees, of whatever specific nature, are only intended to obviate undue financial hardship; they are not intended to make a juror as financially whole as he might be if he had invested the time given to jury service in some other endeavor. That principle has consistently been recognized by the judiciary's characterization of a juror's fee as a "gratuity" rather than as a "wage": There is a fee paid for service of a juror, but this is not to be considered as a wage. It is merely a gratuity covering the expense that a juror may be put to in answering the call.19 That this concept of the jury fee as a gratuity is inherent in the very nature of jury service as a civic duty has been recognized by the Supreme Court of the United States: Jury service is a duty as well as a privilege of citizenship; It is a duty that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarassment is such as to impose a real burden and hardship does a valid excuse ... appear.20 A second principle is that, although many aspects of a juror's character such as economic status or educational background, may distinguish one juror from another in life, nothing should distinguish one juror's vote from another's in the jury room. Again, the Supreme Court's language in Thiel v. Southern Pacific Co. is pertinent: The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community... Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. The fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.21 The third principle which the committee found helpful in its evaluation of the proposals is that of vesting in the discretion of the trial judge, whenever possible, the authority to oversee the proper implementation of the Sixth and Seventh Amendment rights to jury trial. 17 See note 2, supra and accompanying text. 18 See the "Background" section of this Report, supra. 19 Jochen v. County of Saginaw, 110 N.W. 2d 780, 784 (Mich Sup. Ct. 1961) (Carr, J., concurring opinion). 20 Thiel v. Southern Pacific Co., 328 U.S. 217. 224 (1946). 2 Id. at 220. |