Legal Housekeeping

by Ken Bresler

A version of this article appeared in
The Vocabula Review, March 2015

The adjective “housekeeping” in a legal context refers “to administrative, logistical, or minor procedural rules or acts to tidy up matters or keep them tidy, such as language, which are not substantive, adjudicative, or intended to affect or grant rights.” That’s from my online dictionary, Bresler’s Law Dictionary at www.ClearWriting.com/dictionary.

An indication of the inconsequential nature of housekeeping is one appellate court’s non-binding language: A “recused judge can enter ‘housekeeping’ orders until a successor judge is assigned….” Moody v. Simmons, 858 F. 2d 137, 138 (3rd Cir. 1988)(dictum).

One state’s high court categorized communications with a jury into substantive, such as a judge’s supplemental instruction on the law; administrative, such a judge’s order to continue deliberating; and housekeeping, such as a court order taking meal orders. People v. France, 436 Mich. 138, 143–44 (1990).

A law informally known as the Housekeeping Statute or the Federal Housekeeping Statute “seems to be simply a grant of authority to the agency to regulate its own affairs,” the Supreme Court has opined. Chrysler Corp. v. Brown, 441 U.S. 281, 309 (1979). The Housekeeping Statute is not “a substantive grant of legislative power to promulgate” substantive rules or regulations. Id. at 310. “It is indeed a ‘housekeeping statute’….” Id.

(If you’re interested, the statute is 5 U. S. C. § 301 and it reads: “The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.”)

Although “housekeeping” refers to minor matters, I’m wondering if the term is becoming a euphemism or a cover for lawyers to propose significant and substantive matters. An agency lawyer appearing in front of me (I’m a state administrative law judge) had a housekeeping request for me at a prehearing conference. The private claimant, who represented himself, was absent due to a debilitating migraine, but had said that he would appear at the prehearing conference when I rescheduled it. As for the agency lawyer’s housekeeping request, I expected something inconsequential, such as changing a party’s address or spelling. The agency lawyer asked me to rule that the claimant owed him discovery – documents that the agency had requested from the claimant. I was taken aback at the agency’s substantive oral motion without the claimant present to argue against it, and I denied it.

The term “housekeeping” also arose in post-divorce proceedings in a case whose transcripts I’ve seen. First, the background: In 2012, a father went to trial for two days, which led to the divorce court issuing various judgments. He appealed the judgments to the state’s intermediate appellate court, which struck them down and sent the case back to the divorce court. In 2014, he  went to trial for three more days.

At the end of the second day of trial, the mother’s lawyer said, “Judge, one housekeeping matter that I just [raise] before we leave.” Notice the “just,” which in addition to “housekeeping,” minimizes the request. Notice the acknowledgment that the parties are headed out of the courtroom; the implication is that the request is a passing matter.

The lawyer proceeded to ask the judge on an emergency basis to reinstate one of his major judgments from 2012, one that the appellate court had vacated as unjustified. This was an astounding misuse of the word “housekeeping.”

I hope these two examples of misuse are not a trend.