F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I reserve a point of order on the amendment.

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the amendment. Mr. Chairman, under the amendment of the gentleman from Virginia, we are going to reduce the penalty for pedophiles if they do not murder one of their victims. That shows that this amendment really is not a good idea and in effect reverses the entire thrust of the bill. I do not think that the concern of the gentleman from Virginia is justified because what he is saying is that we ought to take the bill's penalties away from section 2243(a) of the criminal code which provides that whoever knowingly engages in a sexual act with another person who is 12 to 15 years old and is at least 4 years older than the victim shall be fined or imprisoned for not more than 15 years, or both. If you have the hypothetical of an 18-year-old adult knowingly engaging in a sexual act with a 13-year-old child, that person would be indicted, would be prosecuted, would be convicted and would be incarcerated for several years as a result of that crime. My guess is that he would not be out of prison until he was in his mid- to late twenties. Now, if he turns around and commits another sexual act on someone who is 12 to 15 years old in his mid-twenties, then I think the book ought to be thrown at him, because this is not an immediate post- adolescent whose hormones have run amok and commits a sexual act. This is somebody who is now preying on somebody who is probably 10 to 15 years younger as a victim. I think that that is the type of person who ought to be sentenced to life imprisonment. I think that really what we ought to do is look at how the clock runs, where you have the first strike that does not involve life imprisonment and then you have the second strike which would involve life imprisonment where the victim is probably at least 10 years and maybe even more than that younger than the assailant. For that reason, I would hope that this amendment would be rejected.

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the amendment. Mr. Chairman, the second Scott amendment amends the bill so that no person subject to the criminal jurisdiction of an Indian tribal government would be covered by the Two Strikes and You're Out provision contained in this bill. What the amendment does is, it creates a safe haven for child sex offenders on Indian land. I do not think we want to do that. A convicted child molester in Wisconsin would know the only way to avoid life imprisonment if he is caught would be to prey upon children in Indian lands. I think the Congress has an obligation to protect children on Indian lands just as much as we have an obligation to protect children on other Federal lands, as well. I urge my colleagues to oppose this amendment.

Mr. SENSENBRENNER. Mr. Chairman, I make a point of order against the amendment. The amendment is not germane. It fails the fundamental purpose test. The fundamental purpose of the legislation is to provide mandatory minimum sentences for those convicted of sex offenses against children. The amendment offered by the gentlewoman from Texas (Ms. Jackson-Lee) exceeds the scope of this legislation by directing a component of the Department of Justice to study a subject not contemplated by the bill, namely, the effectiveness of treatment for incarcerated and nonincarcerated sex offenders. Therefore, the amendment is not germane, and the point of order should be ruled well taken by the Chair.

Mr. SENSENBRENNER. Mr. Chairman, I reserve a point of order.

Mr. SENSENBRENNER. Mr. Chairman, I rise in support of the amendment. Mr. Chairman, I would like to thank the gentleman from Michigan (Mr. Conyers) for introducing a germane amendment on how to study the impact of this legislation. I think the type of material that the study would put together would be very useful in looking at the types of crimes that have been committed against children. However, let me say I am a little bit puzzled at the gentleman from Michigan putting this amendment in, because all day yesterday when we were dealing with the class action suit, the gentleman from Michigan and his supporters on the other side of the aisle were saying how overworked our Federal judges are and how the complicated class action legislation that we were discussing yesterday, really more of these cases should be tried in the State court because our Federal judges were overworked. Well, now we have an amendment that has a mandate on the Federal judges. Let me read from the amendment to show that the Federal judges are going to have to do more work. It says that ``in each case in which a life sentence is imposed, the judge shall make and transmit to the Administrative Office of the United States Courts findings with regard to each of the following: the applicable range under the sentencing guidelines if the minimum mandatory life sentence had not applied.'' So the judge has to speculate what he would do to sentence the defendant if he were not required to sentence the defendant for life. ``The race, gender, age and ethnicity of the victim and of the defendant.'' Well, that is fairly obvious from the court records. But then we have to have the reason for the government's decision to prosecute this defendant in Federal court instead of State or tribal court, and then the criteria used by the government to make that decision in this or other cases, and the projected cost to the government of the life sentence, taking into account capital and operating costs associated with the imprisonment. Now, what this is going to require is it is going to require an additional hearing after the sentence for the court to make these findings, because the government would not be able to make a determination of what this cost would be until the sentence is pronounced, as well as what the alternative would have been and the mandatory life sentence if not applied in this case. So I would say to the gentleman from Michigan, I think these are very, very useful statistics, and I am prepared to support this amendment; but I am wondering if the gentleman's sympathy for our overworked Federal judges evaporated overnight, and I am happy to yield for an answer.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. The gentleman from Michigan knows that there are several features of the bill. One involves jurisdiction on where cases can be filed and removal of cases filed in State court. But there are other provisions that require increased judicial scrutiny of coupon settlements. That would call into play when you get a coupon to buy more of the product or service that is sold by the corporation that did it to you.

Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman from Virginia (Mr. Boucher). (Mr. BOUCHER asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman from Ohio (Mr. Chabot).

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume, and I rise in opposition to the amendment and claim the time in opposition. Mr. Chairman, this can be called the two-or-more-kicks-at-the-cat amendment, because what the gentleman is proposing is that when the Federal court refuses to certify a class, then it goes back to State court and the State court looks at it again and may certify a class. While most States have got class action rules similar to rule 23 of the Federal Rules of Civil Procedure, they are not always uniformly applied, and that is why there is all this forum shopping that is going around that has caused this bill to come before the House of Representatives today. So I think that we really should not allow two kicks at the cat. They can have their day in court. If the Federal court determines that the Federal rules do not allow for the certification of a class, then we should not go back to square one and have the plaintiffs' lawyers shop around to a friendly State judge that may very well certify that the class that is not allowed in the Federal rules ends up getting certified and the trial ends up proceeding. So I think that everybody should have one day in court, not more than one day in court. For that reason, I would urge that the amendment be rejected. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of the time. Mr. Chairman, I am really disappointed in the argument of the gentleman from Texas (Mr. Doggett), who is a distinguished former member of the State Supreme Court, saying that this has to do with Enron. Enron is in bankruptcy. Bankruptcy is a Federal law. The Federal bankruptcy court will determine the rights of all people who have got claims against Enron, and there is an automatic stake that is entered by the Federal court when a bankruptcy is filed against proceeding in any other court, State or Federal, besides the bankruptcy court. Now, I think what we are really getting down to is, how are consumers being protected? I do not think most consumers really care whether a class action suit is litigated in State court or Federal court; they care what kind of recompense they get, should the class action suit be resolved. I have this box of Cheerios here, because General Mills, which owns Cheerios, was sued in a class action suit alleging that there were harmful additives in Cheerios. When the case was settled, what did all the members of the class get? A coupon to buy another box of Cheerios. If Cheerios had food additives that were so damaging, that caused millions of dollars in lawyers' fees to settle this suit out, then why would the lawyers sign off to require people who wanted to cash in on their settlement to eat more Cheerios? It does not make any sense. The amendment ought to be rejected.

Mr. SENSENBRENNER. The gentleman does wish to close.

Mr. SENSENBRENNER. Mr. Chairman, how much time is remaining on each side?

Mr. SENSENBRENNER. Mr. Chairman, I yield myself 15 seconds. Mr. Chairman, if the gentleman from Texas was so interested in disclosing defendant's fees, he could have gone to the Committee on Rules and asked them to make in order an amendment for the disclosure of defendant's fees. He failed to do so, and that is why we are not considering this today under the structured rule. Mr. Chairman, I yield such time as he may consume to the gentleman from Virginia (Mr. Goodlatte).

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, if the civil and criminal law did not provide for sanctions against those who deliberately destroy documents, I believe that the arguments of the gentlewoman from Texas would be valid. But they do. Adopting the amendment that she proposes will simply allow the trial lawyers to have another tool to game the system and to prevent the removal of cases that really should be removed as a result of the changes in the diversity of citizenship requirements that are contained in this bill. Let me point out that in many instances, the destruction of subpoenaed documents is a criminal obstruction of justice. The gentlewoman from Texas keeps on bringing up the case of Enron. There is a criminal investigation going on whether Enron and Arthur Andersen and other people who are involved in this obstructed justice by altering or destroying documents. I hope that that investigation is thorough, and, if there is probable cause to believe that such misconduct happened, that the Justice Department will seek indictment, prosecute those who are responsible, the jury will convict them, and I hope that the judge sentences them to jail for a long, long time, because destroying documents that are needed to fairly administer justice is something that cannot be tolerated, and it goes to the very heart of the ability of the courts to fairly mete out justice. We wish the gentlewoman were on the other side when we were talking about that when President Clinton was accused of destroying documents a few years ago. But on the civil side, there are plenty of sanctions that can be imposed by a court if discovery is being thwarted, up to and including the court ordering a default judgment entered against a defendant that destroys documents and completely obstructs the discovery that the Federal Rules of civil procedure allow. Mr. Chairman, I will tell you what will happen if the Jackson-Lee amendment becomes a part of this bill and the bill becomes law, and that is there will be repeated allegations of misconduct through the destruction of documents. When an allegation is made, the court is going to have to hold a hearing on it and take testimony and make a determination on whether removal can be thwarted because of the provision of the Jackson-Lee amendment. As a result, it ends up being tried in the State court, because the Federal court will not be able to determine whether or not a case is removable. Now, that is ridiculous. If this type of amendment was put into law, if there was a civil action filed alleging a civil rights violation in a State court with a redneck judge anywhere in the country, this game could be played to prevent the Federal court from getting jurisdiction over it, and that would be equally ridiculous in terms of thwarting the administration of justice. Now, this bill, in section 1716(C)(2), provides that discovery should not proceed while a motion to dismiss an action is pending and also during appeals from class certification rulings. But the bill flatly states that in these circumstances, discovery shall proceed where necessary to preserve evidence and to prevent undue prejudice. Thus the bill anticipates and deals with document destruction risk and gives the Federal court the authority to prevent documents that are necessary to find out what the true facts are from being altered or mutilated or destroyed. According to the Manual for Complex Litigation, third edition, courts normally issue orders requiring the preservation of documents at the outset of litigation of such cases. Thus any document-destruction risk is addressed by such orders. So we do not need additional laws, civil laws, statutory laws or criminal laws, to protect against the destruction and mutilation of documents. The amendment of the gentlewoman from Texas merely gives the trial lawyers' bar another tool to game the system. It is unnecessary because of the other provisions of law and rule that I stated and should be rejected. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. I rise in opposition to the amendment.

Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, the reason there is an exemption for State attorneys general in this bill is because the State attorney general is the chief law enforcement officer of the State. In most States, the attorney general is an elected official. Now, if the attorney general is not doing his job, then it is up to the voters to choose a new attorney general in the next election. But just because attorneys general might not be able to do their job is no reason why we should empower a whole host of other people to file pseudo class actions, which is what the amendment of the gentlewoman from California seeks to do. Now, again, diversity jurisdiction interprets State law. Federal questions are automatically removable to Federal court. The reason the Framers put diversity jurisdiction into the Constitution was to prevent a State judge from being a hometown umpire to the prejudice against citizens of other States who happen to be litigants. So very simply, what we do in this bill is to provide a better way of protecting litigants who come from other States. For that reason, I would urge that this amendment be rejected.

Mr. SENSENBRENNER. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, I yield such time as he may consume to the gentleman from Virginia (Mr. Goodlatte).

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in strong opposition to this amendment, which effectively excludes private attorney general claims from the provisions of H.R. 2341. Allowing citizens to use private rights of actions as a class is an enormous loophole in this law that can be easily accessed and lead to continued abuses in local courts, even in California. Now, let me say when we are talking about diversity jurisdiction as established in the Constitution, we are talking about claims between plaintiffs in different States and defendants in different States, so if all the plaintiffs lived in California and the defendant was living in California, there would be no Federal diversity jurisdiction whatsoever and the case would be tried in the California court. However, the Federal courts were intended by the Framers in diversity jurisdiction to get away from having a State court be the hometown umpire and thus favoring litigants from the State where the court sat. So if I had a claim and were potentially a member of a class as a citizen of the State of Wisconsin, I really would not appreciate very much one of these private attorney general actions litigating my claim in a California court which is 1,500 miles away from my State. I would end up having my rights litigated and my remedies extinguished as a citizen of Wisconsin in a court that I might not think I would get a fair trial in. Now, under H.R. 2341, I, as a citizen of Wisconsin, if I were a defendant in this action, would have the right to remove the case into a Federal court and even the playing field. Mr. Chairman, I think we ought to realize that every case that arises under diversity jurisdiction arises under State law. Cases that arise under Federal law jurisdiction, the jurisdiction is in the Federal courts, and they can automatically be removed simply because a Federal question is posed. So diversity jurisdiction applies where no Federal question is posed, but you have plaintiffs and defendants who live in different States and are citizens of different States. Now, I think that in order to protect the nonresident litigants, there ought to be a procedure to remove those types of private attorney general class action claims into Federal court. The bill provides that procedure. The gentlewoman from California wants to eliminate that procedure, and that means that those of us who happen to be either plaintiffs in a class action or a defendant in one of these private attorney general actions in a State like mine that does not allow them will end up having the case litigated in a court that might be thousands of miles away from where we live and would have the hometown bias. That is not what this bill should be about, and that is why I hope this amendment will be defeated. Mr. Chairman, I reserve the balance of my time.

Mr. SENSENBRENNER. I do, Mr. Chairman.

Mr. SENSENBRENNER. Mr. Chairman, I yield the balance of my time to the gentleman from Virginia (Mr. Goodlatte).

Mr. SENSENBRENNER. Mr. Chairman, how much time do I have remaining?

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and to include extraneous material on H.R. 2341, the bill just passed.