Vol. 36, Number 10—October 2004

Legislation Waits for November

Congress recessed in mid-October for the November presidential election in October, leaving behind many pending bills. But even though they will return for a lame duck session in November, little time remains for legislative action on bills of interest to the Judiciary.

For example, H.R. 1302, the Federal Courts Improvement Act of 2003, is now with the full House Judiciary Committee, while, S. 2396, the Senate version of the bill, is under consideration by the Senate Judiciary Committee. The provisions of both bills address the Judiciary's administrative, financial, personnel and benefit needs. While bills such as H.R. 1302 and S. 2396 have enjoyed bipartisan support in the past, congressional action typically occurs in the waning days—sometimes hours—of a Congress.

H.R. 2971, the Social Security Number Privacy and Identity Theft Prevention Act of 2003, was reported out by the House Ways and Means Committee in September 2004. The bill, which also will be considered by the Judiciary Committee, would prohibit the public disclosure of redacted social security account numbers by a "judicial agency" effective six years after the promulgation of implementing regulations by the Attorney General, unless those regulations provide for an exemption.

H.R. 1768, the Multidistrict Litigation Restoration Act of 2004, was passed by the House in March 2004, and sent to the Senate where it was referred to the Judiciary Committee. The Judicial Conference strongly supports this bill, which would, among other provisions, allow a court with cases transferred to it from the Judicial Panel on Multidistrict Litigation retain them for trial. The bill also would authorize the transferee court to retain actions transferred when jurisdiction is based on the Multiparty, Multiforum Trial Jurisdiction Act of 2002.

Judgeships and a Split Circuit
S. 878, a judgeship bill, was passed by the Senate in May 2004. The bill would create 14 permanent and temporary district court judgeships, and 36 permanent and temporary bankruptcy judgeships. However, when the bill was sent to the House, the House Judiciary Committee stripped out the bankruptcy judgeships and amended the bill to create 57 new Article III judgeships, as recommended by the Judicial Conference—11 courts of appeals and 46 district court judgeships.

When the bill went to the House floor for consideration, Representative Mike Simpson (R-ID) offered an amendment that would split the Ninth Circuit into three circuits. Under his amendment, the new Ninth Circuit would consist of California, Guam, Hawaii, and the Northern Marianas Islands; the new Twelfth Circuit would be Arizona, Nevada, Idaho and Montana, and the new Thirteenth Circuit would consist of Alaska, Oregon and Washington.

A second amendment was made to the bill, offered by Representative F. James Sensenbrenner Jr.(R-WI), to stagger over a five-year period the effective dates of the judgeships created under the bill. Sensenbrenner explained this amendment was made to keep the bill in compliance with House budgetary rules. The House passed S. 878 with both amendments and sent the bill back to the Senate for consideration. Subsequently, Senator Dianne Feinstein (D-CA) announced her opposition to the bill as passed by the House with the Ninth Circuit split, placing a hold on the bill and effectively preventing its passage.

Eliminating Court Jurisdiction
A number of bills eliminating the jurisdiction of the federal courts—including the Supreme Court—over particular types of cases were considered in the House late in the second session. Although the chances of their passage may be slim in the 108th Congress, collectively they signal a legislative strategy to stop federal court consideration of certain controversial issues.

For example, HR 2028, the Pledge Protection Act of 2004, would deny jurisdiction to any Federal court, and appellate jurisdiction to the Supreme Court, "to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance." The bill was passed by the House in September 2004 and sent to the Senate.

HR 3313, the Marriage Protection Act of 2004, would deny federal courts jurisdiction over questions pertaining to the interpretation of, or the validity under the Constitution of, the Defense of Marriage Act. The House passed H.R. 3313 in July 2004, and it is now pending in the Senate.

Victims Rights
Nearly eight years agoin March 1997, the Judicial Conference strongly endorsed a statutory approach to a crime victims' rights initiative as opposed to a constitutional amendment. Congress may have been listening. Just before recess, it passed H.R. 5107, the Justice for All Act of 2004, a bill combining provisions on victims' rights and DNA testing from two prior House and Senate bills.

The Senate passed S. 2329, the Victims' Rights Bill, in April 2004 and the bill moved to the House where the House Judiciary Committee was considering its own victims' rights bill. But in late September, H.R. 5107 was introduced in the House. The billcombined provisions from the victims' rights bills with provisions from bills on DNA testing. This is the bill that finally passed both Houses.

H.R. 5107 would improve and speed DNA testing. The DNA provisions would, in part, and if certain requirements are met, also provide access to post-conviction DNA testing for persons convicted of a federal crime.

H.R. 5107 also provides crime victims certain rights, among them: the right to be reasonably protected from the accused; the right to reasonable, accurate, and timely notice of any public court or parole proceeding involving the crime or of any release or escape of the accused; the right to be reasonably heard at any public proceeding in district court involving release, plea, sentencing, or at any parole proceeding; the reasonable right to confer with the attorney for the government; the right to full and timely restitution as provided by law; the right to proceedings free from unreasonable delay; and the right to be treated with fairness and respect for dignity and privacy. 

Where the Senate bill would have given victims the right "not to be excluded from any such public court proceeding," H.R. 5107 added, "unless the court determines that testimony by the victim would be materially affected if the victim heard other testimony at that proceeding."  

It is the responsibility of the Department of Justice, not the courts, to notify and accord victims these rights.

Under H.R. 5107,  the failure to provide victims' rights is not grounds for a new trial. A victim may, however, make a motion to re-open a plea or sentence if the victim has previously asserted the right to be heard and such right was denied, the victim petitions the court of appeals for a writ of mandamus within 10 days, and, in the case of a plea, the accused has not pled to the highest offense charged.

H.R. 5107 requires the Administrative Office to submit annual reports to Congress stating, for each federal court, the number of times that relief is denied upon assertion of a victim's right, and the reason for such denial, as well as the number of times a mandamus action is brought and the result reached.