Federalism

Class Action/Mass Torts
Competence of Counsel/ DNA Testing
Federal Prosecutor Compliance with State Rules of Ethics (McDade)
Product Liability
Takings Bills
Hate Crime Legislation
Increased Attorney Related Rules of Professional Conduct at the Federal Level (S. 2673)
Victims Rights

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Federalism

Issue:	Competence of Counsel/ DNA Testing
Impact:	S. 486 and H.R. 912, the Innocence Protection Act in the 107th Congress, would have interfered with traditional state authority in the providing of competent counsel for defendants in capital cases and state court authority over its own procedures.
Summary:	The bills would have provided for a national board to determine appropriate standards for counsel representing capital case defendants. Federal funding would be used as a “stick” for states that do not adopt the standards developed. This proposed legislation carried with it substantial federalism problems in several areas. These included: mandated standards for state and federal procedures, imposition of 14th amendment based rights for defendants re DNA, and imposition of competency of counsel standards for capital cases in states with the death penalty.
Position:	CCJ shares Congress’ concern over ensuring competent counsel, but worries about federalism problems. It supports DNA testing where appropriate but objects to Federal mandates.
References:	CCJ Resolution 01-M-18 and CCJ Resolution 34 of 8/1/02 The Innocence Protection Act (S. 486 and H.R. 912)
Support Materials:	Post-Conviction DNA Testing in Federal and State Cases and Provision of Counsel in State Capital Cases, NCSC Issue Brief, Vol. 2, No. 9, September 2001 U.S. Judicial Conference letter to Chairman Leahy of the Senate Judiciary Committee, June 20, 2002

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Federalism

Issue:	Federal Prosecutor Compliance with State Rules of Ethics (McDade)
Impact:	Federal attorneys don’t want to have to conform to state ethics rules.
Summary:	DOJ desires to be exempt from state ethics regulation, particularly Rule 4.2 dealing with contacts with represented persons. On 10/21/98, Congress passed Section 520B of Title 28 of the U.S. Code as part of the Omnibus Appropriations Bill for FY 1999 which became effective on 4/19/99. This bill contained the McDade amendment that requires federal lawyers to abide by state ethics rules. The passage of the McDade amendment followed a recent history of the DOJ asserting that federal prosecutors were not required to comply with state ethics rules, particularly Rule 4.2. DOJ even promulgated regulations to this effect in 1994 (See 28 CFR 77) and continues its efforts to rescind this law. State courts have consistently opposed the DOJ’s position in this matter. A number of court decisions had also rejected it prior to the passage of the McDade amendment. Senator Hatch introduced legislation in the 106th Congress (S. 250), which would repeal McDade and allow self-regulation by the DOJ and Senator Leahy introduced S. 855, which would mandate the U.S. Judicial Conference to set up a federal regulatory process for legal ethics in the Federal Courts. Senators Hatch and Leahy pushed a compromise version of S. 855 in the waning hours of the 106th Congress but the House resisted it.
Position:	Federal attorneys have been required to conform to state ethics rules like all attorneys (See O’Keefe v. McDonnell Douglas, 1332 F. 3d 11252). State courts oppose federal legislation to repeal the McDade amendment, which, legislatively, imposes such a rule and encourages continued DOJ/ABA negotiations on modifying Model Rule 4.2 dealing with attorney contacts with represented parties.
References:	Letter to Speaker Hastert and Minority Leader Gephardt from Chief Judge Wagner 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215)
Support Materials:	CCJ Fact Sheet on the McDade Amendment

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Federalism

Issue:	Product Liability
Impact:	H.R. 2366 and S. 1185 in the 106th Congress would have preempted state tort law.
Status:	H.R. 2366 was introduced on 6/25/99 and passed the House on 2/16/00 by a vote of 221–193. There was no activity on S. 1185 in the 106th Congress and no further movement in the 107th Congress. Activity in the 108th Congress will probably be concentrated in the medical malpractice and asbestos areas.
Position:	CCJ Resolution 00-M-XXVI opposes “…federal preemption of state product liability laws which intrude on principles of federalism” and specifically opposed H.R. 2366. Comprehensive reforms in tort law have occurred in and through state courts and legislatures, which are better situated to determine and control the impact of reform within their own communities.
References:	Small Business Liability Reform Act of 1999 (H.R. 2366) CCJ Resolution 00-M-XXVI
Support Materials:	Analysis of Federal Legislation to Limit Product Liability, NCSC Issue Brief, Vol. 2, No. 5, July 2001

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Federalism

Issue:	Takings Bills
Impact:	If implemented, it could facilitate the substitution of Federal courts for local land use procedures and their appeals to state courts.
Summary:	H.R. 2372 and S. 1028, in the 106th Congress, proposed to expedite Federal court consideration of cases involving the “taking” of real property by local government agencies in violation of the fifth amendment of the U.S. Constitution. These bills would have amended the Federal judicial code to provide that whenever a District Court exercises jurisdiction under federal civil rights provisions in an action in which the operative facts concern the uses of real property, it shall not abstain from exercising or relinquish its jurisdiction to a State court in an action in which no claim of a violation of a State law, right, or privilege is alleged. Despite united opposition by state and local officials, state and federal courts, and a presidential veto threat, the real estate interests and the GOP leadership pushed this bill through the House by a vote of 226-182. It was not brought up in the Senate Judiciary Committee after meetings with state and local organizations failed to develop a compromise bill.
Position:	CCJ Resolution 98-M-X was adopted and is “In Opposition to Premature Federal Intervention in State Property Rights Proceedings”.
References:	Private Property Rights Implementation Act of 2000 (H.R. 2372) Citizens Access to Justice Act of 1999 (S. 1028) CCJ Resolution 98-M-X
Support Materials:	No additional materials

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Federalism

Issue:	Hate Crime Legislation
Impact:	S.625 in the 107th Congress would have broadened existing federal law to include offenses that target victims primarily because of their sexual orientation, gender and disabilities.
Summary:	S. 625 was brought to the Senate Floor on 6/10/02 by the Democratic leadership. However, a cloture vote was defeated 54-43, six votes short of the 60 votes needed for cloture (a number of Republicans who favor the Bill voted against cloture on that date at behest of their leadership)
Position:	There is no compelling evidence that these offenses are not prosecuted at the state and local level and that this duplicative legislation would federalize state and local crimes.
References:	None
Support Materials:	No additional materials

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Federalism

Issue:	Increased Attorney Related Rules of Professional Conduct at the Federal Level (S. 2673)
Impact:	S. 6873 (the Sarbanes-Oxley Act) requires the SEC to set up rules for lawyers practicing before the SEC to report corporate wrongdoing “up the ladder” to the chief legal counsel or the company CEO, and, if necessary to its directors.
Summary:	CCJ believes the proposed regulation would go beyond the statutory requirements and begin to impinge upon state regulation. Chief Judge Kaye outlined these problems in a letter to the SEC dated December 13, 2002.
Position:	As a general rule, the regulation of lawyers is the responsibility of the state supreme courts. The CCJ recognizes that other tribunals may impose further requirements but would urge the SEC to balance its interest in proposed new procedures with those of those of the state supreme courts (federalism).
References:	None
Support Materials:	Chief Judge Kaye, President of CCJ Letter to SEC on 12/13/02 Washington Post article entitled “SEC Mulls Retreat on Forcing Disclosure”, 1/14/03

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Federalism

Issue:	Victims Rights
Impact:	A federal victims rights amendment will conflict with 33 State Constitutional amendments and state statutes in all states.
Summary:	A number of different federal constitutional amendments have been introduced in the last few years that would have granted all victims of violence certain constitutional rights similar to those granted under state constitutions and statutes. Besides the various theoretical federalism problems, there were numerous practical problems with these proposals such as which state entity would be responsible for the new federal notice requirements and the specter of extensive federal court surveillance of the day-to-day operation of state law enforcement operations. The most active consideration of these proposals occurred in the 106th Congress where S.J. Res. 3 was brought to the Senate floor on 4/25/00 but was withdrawn on 4/27/00 (the House held a hearing on H.J. Res. 64 on 2/10/00 during that Congress). In the 107th Congress only hearings were held on S.J. Res. 35 and H.J. Res. 91.
Position:	Amending the U.S. Constitution should be approached with great caution, especially when states have relatively recently addressed the problem. Congress should consider legislation to deal with problem areas in the federal system only.
References:	Chief Justice Weisberger letter dated 3/19/99 S.J. Res. 1 H.J Res. 10
Support Materials:	No additional materials

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