Vol. 37, Number 12—December 2005

First Session Legislation Waits for 2006, Continued

Conference Proposes Legislation to Reduce Needless Litigation
Judge Janet C. Hall (D. Conn.), a member of the Judicial Conference Committee on Federal-State Jurisdiction, appeared before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property in November to testify on the "Federal Courts Jurisdiction Clarification Act of 2005." The legislation, proposed by the Conference, would reduce needless litigation by clarifying federal jurisdictional statutes.

Testifying on habeas corpus reform last month before the Senate Judiciary Committee, chaired by Senator Arlen Specter (R-PA), were Deputy District Attorney Ronald Eisenberg of Philadelphia, Pennsylvania; former Solicitor General Seth Waxman; and Judge Howard D. McKibben, (D. Nev.), chair of the Judicial Conference Committee on Federal-State Jurisdiction.

The present problem, according to Hall, has been that differing interpretations of certain statutes in the U.S. Code have created uncertainty among parties about whether to pursue a civil claim in state or federal court. "Enactment of this proposal," Hall told the subcommittee, "will eliminate much confusion and thereby reduce unnecessary judicial proceedings."

The Act includes provisions that would:

• Eliminate the resident alien proviso. Replacement language would no longer "deem" resident aliens to be citizens of states in general, but would restore the focus of congressional intent to preclude diversity jurisdiction under section 1332(a) in claims between a citizen of a state and a resident alien in the same state.


• Revise the definition of corporate citizenship to recognize business activities in foreign countries in determining the principal place of business or place of incorporation. This would make clear that all corporations, both foreign and domestic, would be regarded as citizens of their place of incorporation and their principal place of business.


• Solve problems that have arisen with removal and remand procedures. This provision would, among other things, permit removal of diversity cases after the present one-year deadline when equitable circumstances so warrant. It would also (1) codify the present "rule of unanimity" requiring consent by all defendants properly joined and served, (2) give each defendant 30 days in which to remove or consent to removal, and (3) permit earlier-served defendants who did not remove within their own 30-day period to consent to removal by a later-served defendant.


• Index the amount in controversy. The minimum amount in controversy for diversity of citizenship jurisdiction, which is presently $75,000, would be adjusted every five years in keeping with the rate of inflation.


• Allow litigants to more effectively use written declarations or stipulations when they desire to specify that less than $75,000 in damages is being sought, thereby indicating that a state court, not federal court, has jurisdiction over the claim. If a case is removed, federal judges would be authorized to recognize declarations specifying that less than the threshold amount for diversity jurisdiction is being sought and remand such cases back to state courts.

Hall's complete testimony is available on the web at: www.uscourts.gov/testimony/judgehall_fcjca111005.pdf.

Judiciary Has Concerns over Habeas Corpus Legislation
Judge Howard D. McKibben (D. Nev.), chair of the Judicial Conference Committee on Federal-State Jurisdiction, testified in November before the Senate Judiciary Committee about the proposed Streamlined Procedures Act of 2005. On behalf of the Conference, he voiced concerns that the bill would affect how federal courts handle habeas petitions filed by state prison inmates, including those sentenced to death. The legislation, said McKibben, "could preclude the federal courts from reviewing meritorious constitutional claims and, with the creation of new procedural hurdles, could protract rather than streamline consideration of habeas petitions in the federal courts."

Habeas corpus petitions filed in federal court by state prisoners assert that a state court prosecution violated in some way a defendant's federal constitutional rights.

McKibben said the Judiciary "shares the goal of eliminating any unwarranted delay in the fair resolution of habeas corpus petitions filed by state prisoners in the federal courts," but added that further study is needed "to evaluate whether there are any unwarranted delays occurring . . . and, if so, the causes for such delays."

"A preliminary analysis of the statistical data indicates that no significant delays appear to exist with respect to non-capital habeas corpus petitions," McKibben said. "The data regarding capital cases are inconclusive and suggests the need for further analysis."

After the Conference explained its opposition to certain provisions in the legislation in letters sent to congressional leaders last July and September, the bill was amended in October. The Judiciary appreciates efforts to take its views into account, but continues to have concerns with the legislation.

The bill would apply new rules to pending federal habeas proceedings. McKibben said such retroactive application "could complicate and protract, not curtail, the disposition of pending cases and may cause further litigation related to issues of fairness."

Also raising concerns for the Judiciary are new prerequisites and standards for federal court review of legal claims not previously raised in state courts and claims that were procedurally defaulted. "These revised standards, never before applied in this manner, create complexity and could further delay, not expedite, the resolution of federal claims," McKibben said.

The Conference also opposes a provision that would shift reviewing authority from the federal courts to the U.S. attorney general to determine whether a state has established a qualifying mechanism for providing competent legal help to indigent defendants in state post-conviction proceedings in capital cases under chapter 154 of title 28, United States Code. Appeals of the decision by the attorney general would be to the U.S. Court of Appeals for the D.C. Circuit. That court could overturn the decision only if it was found to be "manifestly contrary to the law and an abuse of discretion."

The judge's November 16 testimony, in its entirety, can be found online at www.uscourts.gov/testimony/mckibben111605.pdf.