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The New York State Bar Association, expressing grave concern over what it views as congressional encroachments on state law and criminal procedure, has taken aim on two pending measures — a proposed “tort reform” bill that has already passed the House of Representatives and a controversial measure that would largely eliminate federal habeas review of many state court convictions. At its regular fall meeting on Saturday, the organization’s House of Delegates unanimously condemned both the Lawsuit Abuse Reduction Act of 2005 and the Streamlined Procedures Act. LARA passed the House of Representatives by a largely party-line vote of 228 to 184 late last month. Under the bill, which is strongly supported by President George W. Bush, when a judge decides that a lawsuit is frivolous the attorney would be fined and ordered to pay the defendant’s legal fees, a subtle shift toward a loser-pays system. Additionally, in an effort to curb “forum shopping,” the bill would require personal injury claims to be filed in the home jurisdiction of the plaintiff, in the locality where the injury occurred or where the defendant’s business is based. Further, the measure would remove the “safe harbor” provision included in Rule 11 of the Federal Rules of Civil Procedure, require mandatory suspension of an attorney who violates Rule 11 three times and extend federal sanctions to any state civil claim that materially impacts interstate commerce. The safe harbor provision was inserted by the U.S. Supreme Court in 1993 to give attorneys 21 days to cure or withdraw a claim deemed frivolous. The bill has the enthusiastic support of the insurance industry and business groups, but has been criticized by trial attorneys, bar groups and Democrats. The habeas corpus measure is an outgrowth of the Federal Antiterrorism and Effective Death Penalty Act, which was passed in 1996 to ensure prompt review of state court judgments by the federal courts. Under the proposed Streamlined Procedures Act, the federal courts would largely lose jurisdiction to consider many habeas petitions. It was drafted to prevent lengthy delays in carrying out death sentences, but would apply to non-capital cases as well. The bill is opposed by the American Bar Association, the Judicial Conference of the United States, the NAACP Legal Defense Fund, the National Conference of Chief Justices, current and former federal and state prosecutors (including former Eastern District U.S. Attorney Zachary W. Carter), two former directors of the FBI (William H. Sessions and William H. Webster) and two former judges of the New York Court of Appeals (Stewart F. Hancock Jr. of Syracuse and Howard A. Levine of Albany). State Bar President A. Vincent Buzard of Harris Beach in Rochester, N.Y., said Monday he is increasingly concerned over Congress’ tendency to enact preemptive laws and to intrude in areas that had been the province of the states. He pointed to a recent federal highway bill that, along with appropriating money for road projects, eliminated New York’s law imposing vicarious liability on auto leasing companies. Although the state bar supported the elimination of the vicarious liability provision as a matter of state statute, Buzard is uneasy with the federal government’s roundabout maneuver, which caught many in New York off-guard. “As long as the Congress is going to meddle in state’s rights we need to beef up our efforts in dealing with Congress as a state bar,” Buzard said. The group is developing a “federal key contacts program,” he said, through which it can contact federal lawmakers and work with the American Bar Association to keep up with events. “We need more notice and we need to make the public more aware,” he added. Buzard said the federal tort reform measure, which unlike the habeas corpus initiative seems to have momentum, amounts to an extraordinary effort to impose the will of Congress, through the federal courts, on the state courts. “This is the first time the Congress has purported to adopt a state court rule of procedure which really is a total violation of the principles of federalism,” Buzard said. “For the Congress to say to state courts, ‘This is what your rules must be in handling lawsuits,’ we think is unbelievably hypocritical by people who claim to be for state’s rights.” Buzard said that the effort to stop what some may view as a frivolous claim and others may view as a novel and important attempt to expand the law threatens to stifle major developments in litigation. He acknowledged that when it was first brought, Brown v. Board of Education presented a novel — and some could have thus argued “frivolous” — legal theory. “It is absolutely draconian,” Buzard said of the tort reform measure. “It would represent a sea change in the handling of civil cases and have a chilling effect on litigants.” At Saturday’s meeting, Jean T. Walsh, vice-chair of the Criminal Justice Section, presented a report on the habeas corpus measure. It was sparked by the New York County Lawyers’ Association, which in a recent letter urged the state bar to stake a position against the measure. Gregory K. Arenson of Kaplan Fox & Kilsheimer in Manhattan presented the LARA report.

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