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105th Congress                                            Rept. 105-101
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     Part 1
_______________________________________________________________________


 
                    VOLUNTEER PROTECTION ACT OF 1997

_______________________________________________________________________


                  May 19, 1997.--Ordered to be printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 911]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 911) to encourage the States to enact legislation to 
grant immunity from personal civil liability, under certain 
circumstances, to volunteers working on behalf of nonprofit 
organizations and governmental entities, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                               Page

                                                                   
The Amendment..............................................     2
Purpose and Summary........................................     5
Background and Need for the Legislation....................     5
Hearings...................................................     8
Committee Consideration....................................     8
Vote of the Committee......................................     9
Committee Oversight Findings...............................    12
Committee on Government Reform and Oversight Findings......    12
New Budget Authority and Tax Expenditures..................    12
Congressional Budget Office Cost Estimate..................    12
Constitutional Authority Statement.........................    13
Section-by-Section Analysis and Discussion.................    13
Dissenting Views...........................................    17

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Volunteer Protection Act of 1997''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--The Congress finds and declares that--
            (1) the willingness of volunteers to offer their services 
        is deterred by the potential for liability actions against 
        them;
            (2) as a result, many nonprofit public and private 
        organizations and governmental entities, including voluntary 
        associations, social service agencies, educational 
        institutions, and other civic programs, have been adversely 
        affected by the withdrawal of volunteers from boards of 
        directors and service in other capacities;
            (3) the contribution of these programs to their communities 
        is thereby diminished, resulting in fewer and higher cost 
        programs than would be obtainable if volunteers were 
        participating;
            (4) because Federal funds are expended on useful and cost-
        effective social service programs, many of which are national 
        in scope, depend heavily on volunteer participation, and 
        represent some of the most successful public-private 
        partnerships, protection of volunteerism through clarification 
        and limitation of the personal liability risks assumed by the 
        volunteer in connection with such participation is an 
        appropriate subject for Federal legislation;
            (5) services and goods provided by volunteers and nonprofit 
        organizations would often otherwise be provided by private 
        entities that operate in interstate commerce;
            (6) due to high liability costs and unwarranted litigation 
        costs, volunteers and nonprofit organizations face higher costs 
        in purchasing insurance, through interstate insurance markets, 
        to cover their activities; and
            (7) clarifying and limiting the liability risk assumed by 
        volunteers is an appropriate subject for Federal legislation 
        because--
                    (A) of the national scope of the problems created 
                by the legitimate fears of volunteers about frivolous, 
                arbitrary, or capricious lawsuits;
                    (B) the citizens of the United States depend on, 
                and the Federal Government expends funds on, and 
                provides tax exemptions and other consideration to, 
                numerous social programs that depend on the services of 
                volunteers;
                    (C) it is in the interest of the Federal Government 
                to encourage the continued operation of volunteer 
                service organizations and contributions of volunteers 
                because the Federal Government lacks the capacity to 
                carry out all of the services provided by such 
                organizations and volunteers; and
                    (D)(i) liability reform for volunteers, will 
                promote the free flow of goods and services, lessen 
                burdens on interstate commerce and uphold 
                constitutionally protected due process rights; and
                    (ii) therefore, liability reform is an appropriate 
                use of the powers contained in article 1, section 8, 
                clause 3 of the United States Constitution, and the 
                fourteenth amendment to the United States Constitution.
    (b) Purpose.--The purpose of this Act is to promote the interests 
of social service program beneficiaries and taxpayers and to sustain 
the availability of programs, nonprofit organizations, and governmental 
entities that depend on volunteer contributions by reforming the laws 
to provide certain protections from liability abuses related to 
volunteers serving nonprofit organizations and governmental entities.

SEC. 3. PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.

    (a) Preemption.--This Act preempts the laws of any State to the 
extent that such laws are inconsistent with this Act, except that this 
Act shall not preempt any State law that provides additional protection 
from liability relating to volunteers or to any category of volunteers 
in the performance of services for a nonprofit organization or 
governmental entity.
    (b) Election of State Regarding Nonapplicability.--This Act shall 
not apply to any civil action in a State court against a volunteer in 
which all parties are citizens of the State if such State enacts a 
statute in accordance with State requirements for enacting 
legislation--
            (1) citing the authority of this subsection;
            (2) declaring the election of such State that this Act 
        shall not apply, as of a date certain, to such civil action in 
        the State; and
            (3) containing no other provisions.

SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.

    (a) Liability Protection for Volunteers.--Except as provided in 
subsections (b) and (d), no volunteer of a nonprofit organization or 
governmental entity shall be liable for harm caused by an act or 
omission of the volunteer on behalf of the organization or entity if--
            (1) the volunteer was acting within the scope of the 
        volunteer's responsibilities in the nonprofit organization or 
        governmental entity at the time of the act or omission;
            (2) if appropriate or required, the volunteer was properly 
        licensed, certified, or authorized by the appropriate 
        authorities for the activities or practice in the State in 
        which the harm occurred, where the activities were or practice 
        was undertaken within the scope of the volunteer's 
        responsibilities in the nonprofit organization or governmental 
        entity;
            (3) the harm was not caused by willful or criminal 
        misconduct, gross negligence, reckless misconduct, or a 
        conscious, flagrant indifference to the rights or safety of the 
        individual harmed by the volunteer; and
            (4) the harm was not caused by the volunteer operating a 
        motor vehicle, vessel, aircraft, or other vehicle for which the 
        State requires the operator or the owner of the vehicle, craft, 
        or vessel to--
                    (A) possess an operator's license; or
                    (B) maintain insurance.
    (b) Concerning Responsibility of Volunteers to Organizations and 
Entities.--Nothing in this section shall be construed to affect any 
civil action brought by any nonprofit organization or any governmental 
entity against any volunteer of such organization or entity.
    (c) No Effect on Liability of Organization or Entity.--Nothing in 
this section shall be construed to affect the liability of any 
nonprofit organization or governmental entity with respect to harm 
caused to any person.
    (d) Exceptions to Volunteer Liability Protection.--If the laws of a 
State limit volunteer liability subject to one or more of the following 
conditions, such conditions shall not be construed as inconsistent with 
this section:
            (1) A State law that requires a nonprofit organization or 
        governmental entity to adhere to risk management procedures, 
        including mandatory training of volunteers.
            (2) A State law that makes the organization or entity 
        liable for the acts or omissions of its volunteers to the same 
        extent as an employer is liable for the acts or omissions of 
        its employees.
            (3) A State law that makes a limitation of liability 
        inapplicable if the civil action was brought by an officer of a 
        State or local government pursuant to State or local law.
            (4) A State law that makes a limitation of liability 
        applicable only if the nonprofit organization or governmental 
        entity provides a financially secure source of recovery for 
        individuals who suffer harm as a result of actions taken by a 
        volunteer on behalf of the organization or entity. A 
        financially secure source of recovery may be an insurance 
        policy within specified limits, comparable coverage from a risk 
        pooling mechanism, equivalent assets, or alternative 
        arrangements that satisfy the State that the organization or 
        entity will be able to pay for losses up to a specified amount. 
        Separate standards for different types of liability exposure 
        may be specified.
    (e) Limitation on Punitive Damages Based on the Actions of 
Volunteers.--
            (1) General rule.--Punitive damages may not be awarded 
        against a volunteer in an action brought for harm based on the 
        action of a volunteer acting within the scope of the 
        volunteer's responsibilities to a nonprofit organization or 
        governmental entity unless the claimant establishes by clear 
        and convincing evidence that the harm was proximately caused by 
        an action of such volunteer which constitutes willful or 
        criminal misconduct, or a conscious, flagrant indifference to 
        the rights or safety of the individual harmed.
            (2) Construction.--Paragraph (1) does not create a cause of 
        action for punitive damages and does not preempt or supersede 
        any Federal or State law to the extent that such law would 
        further limit the award of punitive damages.
    (f) Exceptions to Limitations on Liability.--
            (1) In general.--The limitations on the liability of a 
        volunteer under this Act shall not apply to any misconduct 
        that--
                    (A) constitutes a crime of violence (as that term 
                is defined in section 16 of title 18, United States 
                Code) or act of international terrorism (as that term 
                is defined in section 2331 of title 18) for which the 
                defendant has been convicted in any court;
                    (B) constitutes a hate crime (as that term is used 
                in the Hate Crime Statistics Act (28 U.S.C. 534 note));
                    (C) involves a sexual offense, as defined by 
                applicable State law, for which the defendant has been 
                convicted in any court;
                    (D) involves misconduct for which the defendant has 
                been found to have violated a Federal or State civil 
                rights law; or
                    (E) where the defendant was under the influence (as 
                determined pursuant to applicable State law) of 
                intoxicating alcohol or any drug at the time of the 
                misconduct.
            (2) Rule of construction.--Nothing in this subsection shall 
        be construed to effect subsection (a)(3) or (e).

SEC. 5. LIABILITY FOR NONECONOMIC LOSS.

    (a) General Rule.--In any civil action against a volunteer, based 
on an action of a volunteer acting within the scope of the volunteer's 
responsibilities to a nonprofit organization or governmental entity, 
the liability of the volunteer for noneconomic loss shall be determined 
in accordance with subsection (b).
    (b) Amount of Liability.--
            (1) In general.--Each defendant who is a volunteer, shall 
        be liable only for the amount of noneconomic loss allocated to 
        that defendant in direct proportion to the percentage of 
        responsibility of that defendant (determined in accordance with 
        paragraph (2)) for the harm to the claimant with respect to 
        which that defendant is liable. The court shall render a 
        separate judgment against each defendant in an amount 
        determined pursuant to the preceding sentence.
            (2) Percentage of responsibility.--For purposes of 
        determining the amount of noneconomic loss allocated to a 
        defendant who is a volunteer under this section, the trier of 
        fact shall determine the percentage of responsibility of that 
        defendant for the claimant's harm.

SEC. 6. DEFINITIONS.

    For purposes of this Act:
            (1) Economic loss.--The term ``economic loss'' means any 
        pecuniary loss resulting from harm (including the loss of 
        earnings or other benefits related to employment, medical 
        expense loss, replacement services loss, loss due to death, 
        burial costs, and loss of business or employment opportunities) 
        to the extent recovery for such loss is allowed under 
        applicable State law.
            (2) Harm.--The term ``harm'' includes physical, 
        nonphysical, economic, and noneconomic losses.
            (3) Noneconomic losses.--The term ``noneconomic losses'' 
        means losses for physical and emotional pain, suffering, 
        inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium (other than loss of domestic 
        service), hedonic damages, injury to reputation and all other 
        nonpecuniary losses of any kind or nature.
            (4) Nonprofit organization.--The term ``nonprofit 
        organization'' means--
                    (A) any organization which is described in section 
                501(c)(3) of the Internal Revenue Code of 1986 and 
                exempt from tax under section 501(a) of such Code and 
                which does not practice any action which constitutes a 
                hate crime referred to in subsection (b)(1) of the 
                first section of the Hate Crime Statistics Act (28 
                U.S.C. 534 note); or
                    (B) any not-for-profit organization which is 
                organized and conducted for public benefit and operated 
                primarily for charitable, civic, educational, 
                religious, welfare, or health purposes and which does 
                not practice any action which constitutes a hate crime 
                referred to in subsection (b)(1) of the first section 
                of the Hate Crime Statistics Act (28 U.S.C. 534 note).
            (5) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Virgin Islands, Guam, American Samoa, the Northern 
        Mariana Islands, any other territory or possession of the 
        United States, or any political subdivision of any such State, 
        territory, or possession.
            (6) Volunteer.--The term ``volunteer'' means an individual 
        performing services for a nonprofit organization or a 
        governmental entity who does not receive--
                    (A) compensation (other than reasonable 
                reimbursement or allowance for expenses actually 
                incurred); or
                    (B) any other thing of value in lieu of 
                compensation,
        in excess of $500 per year, and such term includes a volunteer 
        serving as a director, officer, trustee, or direct service 
        volunteer.

SEC. 7. EFFECTIVE DATE.

    (a) In General.--This Act shall take effect 90 days after the date 
of enactment of this Act.
    (b) Application.--This Act applies to any claim for harm caused by 
an act or omission of a volunteer where that claim is filed on or after 
the effective date of this Act but only if the harm that is the subject 
of the claim or the conduct that caused such harm occurred after such 
effective date.

                          Purpose and Summary

    The Volunteer Protection Act promotes the interests of 
social services program beneficiaries and taxpayers, and 
sustains the availability of programs, nonprofit organizations, 
and governmental entities that depend on volunteer 
contributions. The Act accomplishes this by providing 
volunteers serving nonprofit organizations and governmental 
entities reasonable protections from liability.
    H.R. 911, as amended, immunizes a volunteer from liability 
for harm caused by ordinary negligence, and prohibits the 
recovery of punitive damages unless the volunteer's conduct was 
willful, criminal, or in conscious flagrant indifference to the 
rights or safety of the claimant. It also provides that a 
volunteer's liability for noneconomic damages will be limited 
to the proportion of harm for which that volunteer is found 
liable. These modest limitations are intended to remove a 
significant barrier--the fear of unreasonable legal liability--
to inducing individuals to volunteer their time to charitable 
endeavors.

                Background and Need for the Legislation

    Volunteer service has become a high risk venture. Our ``sue 
happy'' legal culture has ensnared those selfless individuals 
who help worthy organizations and institutions through 
volunteer service. The proliferation of these types of lawsuits 
is proof that no good deed goes unpunished.
    The litigation craze is hurting the spirit of volunteerism 
that is an integral part of American society. From school 
chaperones to Girl Scout and Boy Scout troop leaders to Big 
Brothers and Big Sisters, volunteers perform valuable services. 
But rather than thanking these volunteers, our current legal 
system allows them to be dragged into court and subjected to 
needless and unfair lawsuits. In most instances the volunteer 
is ultimately found not liable, but the potential for 
unwarranted lawsuits creates an atmosphere where too many 
people are pointing fingers and too few remain willing to offer 
a helping hand.
     The need for relief from these debilitating lawsuits has 
increased over the last two decades. Until the mid-1980's, the 
number of lawsuits filed against volunteers might have been 
counted on one hand. Although the law permitted such suits, in 
practice very few were filed. Volunteers had little reason to 
worry about personal liability. In the last two decades, 
however, the number of suits against volunteers has increased 
substantially, and those suits have drawn national media 
attention. The fear of being sued has had an impact on 
volunteerism, in that it has caused non-profit organizations to 
stop offering certain types of programs, caused potential 
volunteers to stay home, and led to an increase in the cost of 
insurance against potential verdicts.
    The effect of this increase in litigation--and the media 
attention it has drawn--has been to dampen the willingness of 
people to give of their time to charity. Statistics show that 
the rates at which people volunteer are on the decline, 
particularly in categories where longstanding commitments are 
required. According to a report by the Independent Sector, a 
national coalition of 800 organizations, the percentage of 
Americans volunteering dropped from 54 percent in 1989 to 51 
percent in 1991 and 48 percent in 1993. The Gallup organization 
studied volunteerism and found, in a study titled ``Liability 
Crisis and the Use of Volunteers of Nonprofit Associations'' 
that approximately 1 in 10 nonprofit organizations has 
experienced the resignation of a volunteer due to liability 
concerns. Gallup also found that 1 in 6 volunteers reported 
withholding services due to a fear of exposure to liability 
suits. And, 1 of 7 nonprofit agencies had eliminated one or 
more of their valuable programs because of exposure to 
lawsuits.
    The increase in liability concerns is also evidenced by the 
increase in the liability insurance costs of nonprofit 
organizations. The average reported increase for insurance 
premiums for nonprofits over the period 1985-1988 was 155%. One 
in eight organizations reported an increase of over 300%. 
Little League Baseball reports the liability rate for a league 
increased from $75 to $795 in just 5 years. In fact, the Little 
League's major expenditure is not bats and balls, but the cost 
of obtaining insurance against liability. Many leagues cannot 
pay the $795 needed, so they operate their programs without 
coverage or discontinue the program altogether.
    It is sometimes difficult to quantify exactly how much of 
an organization's time and money is spent on liability 
protection. However, the Executive Director of the Girl Scout 
Council of Washington, D.C., said in a February 1995 letter 
that ``locally we must sell 87,000 boxes of .  .  . Girl Scout 
cookies each year to pay for liability insurance.'' And Charles 
Kolb of the United Way reports that insurance deductibles for 
his organization fall into the range of $25,000-30,000 a year. 
At three or four lawsuits a year, that diverts $100,000 or more 
from charitable programs.
    It is not enough to leave it to the States to solve this 
problem. Volunteerism is a national activity and the decline in 
volunteerism is a national concern. And in many cases, 
volunteer activities cross state lines. Even a local group may 
operate across state lines. A Boy Scout troop in Georgia may go 
on an outing in Tennessee or Alabama. A Little League team 
might routinely play games in Virginia, Maryland and the 
District of Columbia. A meals-on-wheels volunteer might daily 
deliver meals in Kansas City, Kansas, and Kansas City, 
Missouri. In emergency situations and disasters, such as 
hurricanes or the floods in our upper Midwest states, 
volunteers come from many states.
    Although every state now has a law pertaining specifically 
to legal liability of at least some types of volunteers, many 
volunteers remain fully liable for any harm they cause, and all 
volunteers remain liable for some actions. Only about half of 
the states protect volunteers other than officers and 
directors. Moreover, every volunteer protection statute has 
exceptions. As a result, state volunteer protection statutes 
are patchwork and inconsistent. In many states, the volunteer 
leaders are granted immunity while the direct service providers 
remain exposed. Substantially different civil justice standards 
apply to volunteers of the same organization, providing the 
same services, depending on the state in which the service is 
delivered. This inconsistency hinders national organizations 
from accurately advising their local chapters on volunteer 
liability and risk management guidelines.
    This current hodgepodge of State laws has not provided the 
buffer against liability that volunteers need and deserve. The 
very minimum amount of protection--the freedom from suit 
because of honest mistakes, or ordinary negligence, is not the 
rule. In some States the law provides little or no protection 
for the volunteer, and in others the law protects only certain 
kinds of volunteers. Certainly there is no consistency across 
State borders. Charities, especially small charities, do not 
have the resources to determine the differences in state laws 
affecting them so they can advise their volunteers accordingly, 
or implement risk management programs adequate to meet them. 
National nonprofit organizations are particularly burdened by 
these inconsistent rules, since they are unable to develop 
uniform management techniques which will be suitable for their 
volunteers, regardless of where the volunteer serves.
    The patchwork quality of State volunteer liability laws 
also has a negative effect on the cost of insurance. Because of 
the small size of the market for volunteer liability insurance, 
insurers do not differentiate among the States. Thus, 
regardless of the State in which organization operates, and how 
broad or how narrow the relevant State volunteer protection 
law, the price for insurance will be the same. This means that 
not only are nonprofit organizations forced to use their scarce 
resources to pay for insurance, but that those in States where 
the law is protective are forced to vastly overpay if they wish 
to obtain coverage at all.
    The Committee heard repeatedly from witnesses, such as 
representatives of the Big Brother/Big Sister Foundation, the 
American Diabetes Association, and Habitat for Humanity, of the 
many negative consequences the current volunteer liability 
system has on the delivery of charitable services to the 
community. The fear of litigation prevents these organizations 
from successfully recruiting volunteers, which in turn requires 
the organization to either expend funds to hire employees, or 
to reduce the level of services it provides.
    H.R. 911, the Volunteer Protection Act of 1997, addresses 
all of these concerns. As introduced by Congressman John 
Porter, the bill provided incentives to states to enact 
legislation which would eliminate tort liability of any 
volunteer if (1) the volunteer was acting in good faith and 
within the scope of the volunteer's official functions and 
duties within volunteer organization, and (2) the damage or 
injury at issue was not caused by the volunteer's willful and 
wanton misconduct. A State which could certify within two years 
of enactment that it had adopted such reforms would have been 
entitled to an additional one percent allotment in the State's 
Social Services Block Grant award.
    Based on the testimony of many witnesses of the need for 
uniform national standards governing volunteer liability, the 
Committee adopted an amendment in the nature of a substitute 
which takes a more direct approach to the problem. H.R. 911, as 
amended, preempts State law to provide that volunteers would 
not be liable for harm if (1) they were acting in the scope the 
volunteer activity, (2) they were properly licensed (if 
necessary), (3) the harm was not caused by willful or criminal 
misconduct, gross negligence, reckless misconduct, or a 
conscious, flagrant indifference to the rights or safety of the 
claimant, and (4) the harm was not caused by the volunteer 
operating a vehicle.
    In addition, H.R. 911 as amended does not allow punitive 
damages to be awarded against a volunteer unless the harm was 
caused by willful or criminal misconduct, or a conscious, 
flagrant indifference to the rights or safety of the claimant. 
In a suit against a volunteer, the volunteer's liability for 
noneconomic damages would be several but not joint.
    H.R. 911 does allow the States to opt out of coverage under 
certain circumstances. It also specifies certain conditions and 
restrictions which a state could impose without being 
inconsistent with the Act. It further exempts from coverage any 
misconduct which constitutes a crime of violence, an act of 
international terrorism, a hate crime, a sexual offense, a 
violation of a civil rights law, or where the volunteer was 
under the influence of drugs or alcohol.

                                Hearings

    The Full Committee held a hearing on H.R. 911 and related 
bill H.R. 1167 on April 23, 1997. Testimony was received from 
Speaker Newt Gingrich, Congressman John Porter of Illinois, 
Senator Paul Coverdell of Georgia, Senator Mitch McConnell of 
Kentucky, Senator John Ashcroft of Missouri, Senator Rick 
Santorum of Pennsylvania, Lynn Swann, National Spokesman, Big 
Brothers/Big Sisters of America, Conrad Teitell, Esq., on 
behalf of the American Council on Gift Annuities, Terry Orr, 
The Orr Company, Robert Goodwin, President and CEO, Points of 
Light Foundation, Fred Hanzalek, American Society of Mechanical 
Engineers, John Graham, CEO, American Diabetes Association 
(also on behalf of the American Society of Association 
Executives), Andrew Popper, Professor, Washington College of 
Law, American University, Charles Tremper, Senior Vice 
President, American Association of Homes and Services for the 
Aging, and Dr. Thomas Jones, Habitat for Humanity. In the 104th 
Congress, the Full Committee also held a hearing on H.R. 911 
(the bill carried the same number in the preceding Congress), 
on February 27 and 28, 1996.

                        Committee Consideration

    On May 13, 1997, the Committee met in open session and 
ordered reported the bill H.R. 911, with amendment, by a 
recorded vote of 20 ayes to 7 nays, a quorum being present.

                         Vote of the Committee

    The Committee considered the following amendments with 
recorded votes:
    Mr. Conyers offered an amendment to the Inglis amendment in 
the nature of a substitute which would have allowed the States 
to elect to apply limitations on volunteer liability in 
exchange for an additional amount of federal funding. The 
amendment was defeated by a vote of 5 ayes to 21 nays.

                                                   ROLLCALL NO. 1                                               
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present   
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............              X   ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Inglis......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Buyer.......................................................  ..............              X   ..............
Mr. Bono........................................................  ..............              X   ..............
Mr. Bryant (TN).................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Schumer.....................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................  ..............              X   ..............
Mr. Rothman.....................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              5              21   ..............
----------------------------------------------------------------------------------------------------------------

    Mr. Scott offered an amendment to the Inglis amendment in 
the nature of a substitute which would make the Act effective 
only as to claims where the harm that is the subject of the 
claim or the conduct that caused the harm occurred after the 
effective date. The amendment was adopted by a vote of 22 ayes 
to 4 nays.

                                                   ROLLCALL NO. 2                                               
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present   
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Inglis......................................................  ..............              X   ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Buyer.......................................................              X   ..............  ..............
Mr. Bono........................................................              X   ..............  ..............
Mr. Bryant (TN).................................................              X   ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Schumer.....................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................             22               4   ..............
----------------------------------------------------------------------------------------------------------------

    Mr. Watt offered an amendment to the Inglis amendment in 
the nature of a substitute which would have required an 
affirmative vote of a state legislature before the terms of the 
Act would be effective in that state. The amendment was 
defeated by a vote of 5 ayes to 17 nays.

                                                   ROLLCALL NO. 3                                               
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present   
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............              X   ..............
Mr. McCollum....................................................  ..............              X   ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Inglis......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Buyer.......................................................  ..............              X   ..............
Mr. Bono........................................................  ..............              X   ..............
Mr. Bryant (TN).................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............  ..............  ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................  ..............  ..............  ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Schumer.....................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............  ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................  ..............              X   ..............
Mr. Rothman.....................................................  ..............              X   ..............
Mr. Hyde, Chairman..............................................  ..............  ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................              5              17   ..............
----------------------------------------------------------------------------------------------------------------

    Final Passage. Mr. Hyde moved to report H.R. 911, as 
amended, favorably to the whole House. The bill was ordered 
favorably reported by a roll call vote of 20-7.

                                                   ROLLCALL NO. 4                                               
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present   
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................              X   ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................  ..............  ..............  ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Gallegly....................................................  ..............  ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Inglis......................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Buyer.......................................................              X   ..............  ..............
Mr. Bono........................................................              X   ..............  ..............
Mr. Bryant (TN).................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Schumer.....................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............              X   ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             20               7   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(C)(3) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 911, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Office has prepared 
the enclosed cost estimate for H.R. 911, the Volunteer 
Protection Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are John R. 
Righter (for federal costs), who can be reached at 226-2860, 
and Leo Lex (for the state and local impact), who can be 
reached at 225-3220.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.
H.R. 911--Volunteer Protection Act of 1997

    H.R. 911 would protect individuals who volunteer their 
services to nonprofit organizations and government agencies 
from personal liability in certain cases. CBO estimates that 
enacting this bill would have no impact on the federal budget. 
Because the bill would not affect direct spending or receipts, 
pay-as-you-go procedures would not apply.
    H.R. 911 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act of 1995 (UMRA), but CBO 
estimates that the costs of complying with that mandate would 
be minimal and would not exceed the threshold established in 
the law ($50 million in 1996, adjusted annually for inflation). 
The bill contains no new private-sector mandates as defined in 
UMRA.
    The bill explicitly preempts any state law that would be 
less strict or inconsistent with provisions in the bill. Such a 
preemption constitutes an intergovernmental mandate as defined 
in UMRA. However, by passing appropriate legislation, states 
may elect to declare that the provisions of H.R. 911 do not 
apply to cases in state courts if all of the parties to the 
case are residents of the state.
    Liability cases against volunteers are uncommon. Given 
their limited number, and the even more limited number of cases 
where a state, local, or tribal government might be a plaintiff 
suing a volunteer, the costs resulting from this preemption of 
state laws would be minimal.
    The CBO staff contacts are John R. Righter (for federal 
costs), who can be reached at 226-2860, and Leo Lex (for the 
state and local impact), who can be reached at 225-3220. The 
estimate was approved by Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 3 of the 
United States Constitution, and the fourteenth amendment to the 
United States Constitution.

                      Section-by-Section Analysis

                         Section 1. Short Title

    The bill may be cited as the ``Volunteer Protection Act of 
1997.''

                    Section 2. Findings and Purpose

    Congress finds that volunteers have been deterred from 
offering their services due to liability concerns; that 
volunteers, nonprofit organizations, and government entities 
have faced increased liability insurance costs due to 
unwarranted litigation; that nonprofit organizations and 
government entities have been adversely affected by a resulting 
withdrawal of volunteers; and that much-needed contributions to 
communities have thereby also been diminished. Clarifying and 
limiting the liability risk assumed by volunteers is an 
appropriate subject for federal legislation because of the 
national scope of the problems, federal expenditures on 
volunteer-based social programs, the federal government's 
inability to carry out all services provided by such 
organizations, and due to the effects on interstate commerce. 
The legislation will serve those who need and use nonprofit and 
government programs and will sustain the availability of 
programs dependent on volunteers.

      Section 3. Preemption and Election of State Nonapplicability

    While the bill will generally preempt State law to the 
extent that it is inconsistent with the bill, the bill will not 
preempt any State laws that provide additional protections from 
liability relating to volunteers, nonprofit organizations, and 
government entities. This sets an outer limit of volunteer 
liability, while permitting States to provide greater 
protections.
    The bill also permits a State to opt out of the bill's 
coverage in any civil action against a volunteer, nonprofit 
organization, or government entity in State court in which all 
parties are citizens of the State. This permits States to elect 
to apply their own legal rules in cases involving more purely 
State interests. The state must opt out in a free-standing 
bill.

           Section 4. Limitation on Liability for Volunteers

    The bill provides that a volunteer of a nonprofit 
organization or government entity will generally be relieved of 
liability for harm caused if (1) the volunteer was acting 
within the scope of the volunteer's responsibilities; (2) the 
volunteer was properly licensed, certified, or authorized by 
the State in which the harm occurred, if such authorization is 
required; (3) the harm was not caused by willful or criminal 
misconduct, gross negligence, reckless misconduct, or a 
conscious, flagrant indifference to the rights or safety of the 
individual harmed by the volunteer; and (4) the harm was not 
caused by the volunteer operating a motor vehicle, vessel, 
aircraft, or other vehicle for which the State requires the 
owner or operator to possess an operator's license or maintain 
insurance. This section explicitly specifies that it does not 
affect any civil action brought by any nonprofit organization 
or government entity against any volunteer of such organization 
or entity. This section also does not affect the liability of 
any nonprofit organization or government entity with respect to 
harm caused by a volunteer.
    The bill further specifies that the following types of 
State laws shall not be construed as inconsistent with the 
bill: (1) any State law requiring a nonprofit organization or 
governmental entity to adhere to risk management or mandatory 
training procedures; (2) any State law making an organization 
or entity liable for the acts or omissions of its volunteers to 
the same extent as an employer is liable for the acts or 
omissions of its employees; (3) any State law making a 
liability limit inapplicable if the civil action is brought by 
an officer of a State or local government pursuant to State or 
local law; (4) and any State law making a liability limit 
applicable only if the nonprofit organization or governmental 
entity provides a financially secure source of recovery for 
individuals who suffer harm as a result of actions taken by a 
volunteer on behalf of the organization or entity.
    The bill also limits punitive damages that may be awarded 
against volunteers based on harm caused by a volunteer acting 
within the scope of the volunteer's responsibilities. In such 
cases, punitive damages against any such defendant will be 
available only where the claimant demonstrates by clear and 
convincing evidence that the volunteer proximately caused the 
harm through willful or criminal misconduct, or a conscious, 
flagrant indifference to the rights or safety of the individual 
harmed. This ensures that punitive damages, which are intended 
to punish the defendant and not to compensate the plaintiff, 
are available only where a volunteer has acted in an egregious 
fashion warranting such an award.
    The bill separately provides that none of the liability 
limitations in the Act will apply to any misconduct that 
constitutes a crime of violence, act of international 
terrorism, or hate crime, or to any misconduct that involves a 
sexual offense, the violation of any State or Federal civil 
rights law, or intoxication or drug use. The provisions of this 
subsection therefore also limit the provisions of Section 5 
relating to joint and several liability.

               Section 5. Liability for Noneconomic Loss

    The bill includes joint and several liability reforms 
applicable to any civil action against a volunteer based on an 
action of a volunteer acting within the scope of the 
volunteer's responsibilities. In such actions, the liability of 
any defendant who is a volunteer for noneconomic loss will be 
proportional to that defendant's responsibility for the harm. 
Any such defendant will continue to be jointly and severally 
liable for economic loss. This promotes a balance between 
ensuring full compensation for economic losses (including 
medical expenses, lost earnings, replacement services, and out-
of-pocket expenses, etc.), and ensuring fairness in not holding 
volunteers responsible for noneconomic harm that they do not 
cause.

                         Section 6. Definitions

     This section defines significant terms in the bill: 
``economic loss,'' ``harm,'' ``noneconomic loss,'' ``nonprofit 
organization,'' ``state,'' and ``volunteer.''
    The term ``nonprofit organization'' includes organizations 
which have obtained tax exempt status under section 501(c)(3) 
of the Internal Revenue Code. It also includes organizations 
which may or may not have not obtained certification as tax-
exempt organizations under the Internal Revenue Code, but which 
are nevertheless conducted for public benefit and operated 
primarily for charitable, civic, educational, religious, 
welfare or health purposes. For example, the definition is 
intended to include trade and professional associations and 
other business leagues which are exempt from taxation under 
section 501(c)(6) of the Internal Revenue Code. It would also 
include organizations which are not tax-exempt but which meet 
the ``public benefit'' and ``operated primarily'' tests.
    The Act specifically excludes from the definition of 
``nonprofit organization'' any organization which practices any 
action which constitutes a hate crime referred to in subsection 
(b)(1) of the first section of the Hate Crimes Statistics Act. 
In order to fall within this exclusion, it would not be 
sufficient that the organization practice the conduct that 
forms the predicate of a crime referenced in that statute. That 
is, the organization's action must rise to the level of a 
crime.

                       Section 7. Effective Date

    The bill will take effect 90 days after the date of 
enactment. It will apply to any claim filed on or after the 
effective date, if the harm that is the subject of the claim or 
the conduct that caused the harm occurred after the effective 
date.
                            DISSENTING VIEWS

    Although we are fully supportive of increased volunteerism 
in our communities, we cannot support this well-intended, but 
poorly conceived legislation. The substitute amendment to H.R. 
911 approved by the Committee is not only irrelevant to the 
issue of increasing volunteerism, it is redundant of many state 
laws, and is dangerous because of drafting problems that are 
likely to invite unintended consequences.
     While we know of no volunteer liability case in the state 
courts whose outcome would have changed had this proposal been 
law, 1 this legislation is a classic case of 
unwarranted intrusion by the federal government into state 
prerogatives. H.R. 911 is particularly unnecessary in light of 
the fact that every state in the Union has enacted some form of 
protection for volunteers and charities. 2 We find 
it ironic that this ``Washington knows best'' mandate is being 
advanced by a party which repeatedly proclaims ``states' 
rights'' as a governing philosophy.
---------------------------------------------------------------------------
    \1\ We have done a Westlaw search of all reported decisions at the 
federal and state level during the last seven years involving the terms 
``volunteer,'' ``liability,'' and negligence, and H.R. 911 would not 
have altered the outcome of any of these cases.
    \2\ See infra n. 8.
---------------------------------------------------------------------------
    Moreover, not only is there no evidence of a decline in 
volunteerism in recent years, but there is no indication of any 
relationship between volunteer activity and any perceived risk 
of civil liability. We also oppose the legislation because it 
continues to allow the insulation of tortious conduct by hate 
groups and other undesirable entities, unnecessarily eliminates 
joint and several liability and limits punitive damages, and 
fails to adequately protect innocent victims.
    For these and the reasons set forth below, we dissent from 
H.R. 911 as reported by the Committee.

1. No Empirical Evidence of Link Between Volunteerism and Risk of Civil 
                               Liability

    While proponents of H.R. 911 claim that volunteerism is on 
the decline because of a ``litigation explosion,'' there is no 
verifiable evidence to support this notion. During hearings on 
H.R. 911, no witness was able to identify a single case whose 
outcome would have been altered had this proposal been law at 
the time the case was brought. 3 At the Judiciary 
Committee's recent hearing Professor Andrew Popper of American 
University testified that no em empirical case has been made 
for federal intervention in the area of volunteer liability.
---------------------------------------------------------------------------
    \3\ To the extent some individuals have reduced their commitment to 
volunteerism, the reason is unrelated to our tort laws. A landmark 
study by Robert Putnam identified the five leading social and economic 
factors which impact on volunteerism: (1) the movement of women into 
the workforce; (2) the necessity for Americans to work more hours to 
maintain their standard of living; (3) the mobility of people in 
America; (4) demographic changes, such as fewer marriages, more 
divorces, fewer children and lower real wages; and (5) the 
transformation of leisure time from volunteering to watching 
television. Robert D. Putnam, Bowling Alone: America's Declining Social 
Capital. 6:1 Journal of Democracy 65, Jan. 1995. Another study shows 
that for every 100 people who express interest in Big Brothers/Big 
Sisters of America, only 43 actually apply learn the amount of work 
involved. ``Work Defeating Volunteer Spirit: Summit to Address 
Problem,'' The Chicago Tribune, March 27, 1997, A1. Similarly, the 
Indiana University Center on Philanthropy concluded that time pressure 
was the major factor effecting. Nearly 60 percent of those questioned 
said they had no time to work without pay. ``Time Squeeze Pinches 
Charities,'' The Indianapolis Business Journal, June 17, 1996.

          The literature does not reveal a single independent 
        study, much less a juried piece of research, suggesting 
        that federally imposed tort immunity will increase the 
        number, frequency, or quality of volunteers. While 
        there has been frequent and well publicized speculation 
        that these benefits might accrue, speculation, 
        rhetoric, and emotionalism are hardly the basis for 
        federal preemption of state law. 4
---------------------------------------------------------------------------
    \4\ Volunteer Liability Legislation: Hearing before the House Comm. 
on the Judiciary, 105th Cong. 1st Sess. (April 23, 1997) [hereinafter, 
``1997 Volunteer Liability Hearing''] (statement of Andrew Popper at 
4).

    To the contrary, the empirical evidence shows a strong 
increase in volunteerism in recent years. Director of the Roper 
Center, Everett C. Ladd, notes that evidence taken from 
numerous polls documents a striking increase in such 
involvement. 5 In addition, surveys by the Los 
Angeles Times and Princeton Survey Research show growth in 
volunteerism in recent years. 6
---------------------------------------------------------------------------
    \5\ Pama Mitchell, ``Trend Watch: Volunteers of America,'' The 
Atlanta Constitution (August 22, 1996).
    \6\ Id.
---------------------------------------------------------------------------
    Given the dearth of empirical support, it is premature to 
consider federal preemptive legislation. As Professor Popper 
observed, ``[t]he notion of a Congressional mandate changing 
state law is troubling, particularly in the absence of a 
showing that there is a national crisis, that a federal law 
will resolve the crisis, or that the consumers who are effected 
adversely by the law will be protected through some other 
mechanism.'' 7
---------------------------------------------------------------------------
    \7\ Id.
---------------------------------------------------------------------------

  2. Abrogates Our Traditional Respect for State Authority in Tort Law

    To the extent there is any problem with volunteer 
liability, the states are fully capable of passing their own 
laws protecting volunteers from personal civil liability. A 
survey by the Nonprofit Risk Management Center reveals that 
every state now has a law specifically limiting the legal 
liability volunteers or non-profit organizations. 8 
In addition to limitations on the liability of directors and 
officers, 9 38 states limit the liability of 
volunteers for simple negligence, 10 and another 20 
states provide additional exemptions for recklessness and gross 
negligence by volunteers. 11
---------------------------------------------------------------------------
    \8\ Nonprofit Risk Management Center, ``State Liability Laws for 
Charitable Organizations and Volunteers'' (1996).
    \9\ Id. at 9.
    \10\ Id. at 7.
    \11\ Id. Several states also limit liability by the charitable 
organizations themselves as well as their volunteers. Id. at 5.
---------------------------------------------------------------------------
    Moreover, as the bill is drafted, it invites legal 
challenges to Congressional authority to legislate in this 
area, given the Supreme Court's recent decision in United 
States v. Lopez. 12 In particular, Justice 
Department Office of Legal Counsel has expressed concern that 
the bill would invite constitutional challenges because its 
coverage is not limited to volunteer organizations that engage 
in interstate commerce or liability that arises by reason of 
volunteer services affecting interstate commerce. 13 
Significantly, the Majority rejected an amendment offered by 
Mr. Conyers which would have remedied the constitutional 
concern by making the bill voluntary to the states.
---------------------------------------------------------------------------
    \12\ 514 S.Ct. 549 (1995). In Lopez, The Court held that the Gun-
Free School Zones Act of 1990, which made illegal the knowing 
possession of a gun in a school zone, was beyond Congress' Commerce 
Clause authority. Last year, Congress acted to remedy the 
constitutional infirmity in the Gun-Free School Zones law by limiting 
it to firearms that ``ha[ve] moved in or that otherwise affects 
interstate or foreign commerce.'' See 18 U.S.C. Sec. 922q.
    \13\ Office of Legal Counsel Comments on S. 543, Volunteer 
Protection Act of 1997. The amendment would have brought the 
legislation within the exercise of Congress' Spending Power by 
providing additional block grants for those states which enact 
provisions of the bill. This is identical to the approach taken in the 
original version of H.R. 911, introduced by Rep. Porter during the last 
seven Congresses which had been approved by the 103rd Congress as an 
amendment to the National and Community Service Act of 1990. See 139 
Cong. Rec. P. 860 (July 28, 1993). The volunteer approach also avoids 
the problem of creating a confusing federal overlay on top of state law 
with ambiguities in interpretation only subject to final resolution by 
the Supreme Court. See H. Rep. No. 104-64, 104th Cong., 1st Sess. 40 
(1995).
---------------------------------------------------------------------------
    Proponents' arguments that the legislation protects state 
prerogatives because it allows the states to elect not to have 
the provisions apply 14 miss the mark. It is an odd 
formulation of federalism which grants all power to Congress 
unless the states affirmatively act to protect their interests. 
As proponents well know, it is no easy feat to obtain approval 
in a state house and senate and obtain the governor's 
signature. Moreover, many states only meet on a biennial basis 
and couldn't even consider electing to opt-out for several 
years.
---------------------------------------------------------------------------
    \14\ Section 3(b).
---------------------------------------------------------------------------
    Moreover, the opt-out provision is unduly narrow in that it 
would only allow states to preserve their laws if all the 
parties are residents of the state. This is a subset of the 
types of matters that fall within state tort law under 
traditional conflict of law principles, which frequently 
include legal actions involving litigants who do not reside 
within the state. 15
---------------------------------------------------------------------------
    \15\ The Restatement Second of the Law provides, ``The rights and 
liabilities of the parties with respect to an issue in tort are 
determined by the local law of the state which, with respect to that 
issue, has the most significant relationship to the occurrence and the 
parties.  .  .  .'' Thus state law would ordinarily apply even if a 
party resided outside of the state if the injury took place within the 
state. Restatement (Second) Conflict of Laws Sec. 145 (1971).
---------------------------------------------------------------------------

            3. Fails To Protect Against Abuse by Hate Groups

    Although H.R. 911 includes some minimal safeguards to 
insure that protection from liability does not inure to members 
of hate groups, these protections do not go nearly far enough. 
For example, the provision in the bill exempting members of 
hate groups from the liability limitations in the bill 
16 does nothing to insure that state law does not 
unnecessarily immunize such persons. Thus if a particular state 
provides across the board immunity to volunteers, H.R. 911 
continues to allow a member of a militia or hate group who 
negligently entrusts a gun to a child (who in turn harms an 
innocent victim) to avoid responsibility for the negligent 
entrustment. This is not appropriate. It would seem that if 
there truly is a basis for federalizing the field of volunteer 
liability (as the legislation's proponents claim), no civil 
immunity of hate group members should be tolerated.
---------------------------------------------------------------------------
    \16\ Sec. 6(4). This language was added pursuant to an amendment 
offered by Ms. Jackson Lee.
---------------------------------------------------------------------------
    It is because of the bill's failure to provide full 
protection against harm perpetrated by hate group members that 
the Southern Poverty Law Center has chosen to oppose the 
legislation. Their Chief Trial Counsel, Morris Dees, has 
written:

          Under this legislation .  .  . a state could maintain 
        or reinstate protections for volunteers of white 
        supremacists, neo-Nazi and violent militia groups--the 
        types of organizations the Southern Poverty Law center 
        has crippled over the past ten years through the use of 
        both federal and state tort laws.  .  .  . Without two-
        way preemption, ensuring that volunteers connected with 
        hate groups are never insulated from liability, we 
        would oppose H.R. 911. 17
---------------------------------------------------------------------------
    \17\ Morris Dees, The Southern Poverty Law Center, Letter to 
Congressman John Conyers, Jr. (May 16, 1997).
---------------------------------------------------------------------------

  4. Unnecessarily Eliminates Joint and Several Liability and Limits 
                            Punitive Damages

    We also oppose the bill's elimination of joint and several 
liability for non-economic damages because it severely 
discriminates against women, children and seniors. This is 
because losses incurred by high paid CEO's who are victims of 
negligence are easily translated into economic damages (such as 
lost wages) which will not be subject to this new limitation. 
At the same time, damages incurred by a housewife or the loss 
of a limb by a senior or child, are more likely to included a 
larger proportion of ``pain and suffering'' damages which would 
be subject to the proposed limitation on joint and several 
damages. Moreover, as the bill is drafted, if a volunteer 
negligently causes an accident while driving a Salvation Army 
truck, the volunteer cannot be held jointly and severally 
liable for any non-economic damages that result. 18 
We don't believe this loophole was intended by the bill's 
authors.
---------------------------------------------------------------------------
    \18\ The joint and several liability provision of Sec. 5 of the 
bill covers ``any civil action against a volunteer acting within the 
scope of the volunteer's responsibilities.  .  .  .'' Unlike section 
4(a), which limits the application of the exemption for simple 
negligence to volunteers (1) acting within the scope of their 
responsibility to the nonprofit, (2) if appropriate, properly licensed, 
certified or authorized, and (3) not caused by the operation of a motor 
or other vehicle requiring license; section 4(e) and 5 (limiting the 
award of punitive and non-economic damages) applies to any volunteer 
acting within the scope of their responsibility to the nonprofit (i.e., 
the limitations would apply even to volunteers who weren't properly 
licensed, certified or authorized or were operating a motor vehicle).
---------------------------------------------------------------------------
    H.R. 911's limitations on punitive damages are similarly 
ill-conceived. 19 Given that almost all volunteers 
will already be totally exempt from legal liability under 
section 4(a) of the bill, there is little reason to further 
restrict the availability of punitive damages, which are 
incredibly rare to begin with. 20 The only parties 
who remain subject to liability may well be the very parties 
whose conduct society would want to deter--such as non-profit 
fraternity engaging in a hazing ritual that results in 
drunkenness and harm. 21 (The same concern exists 
with respect to the limitation on noneconomic damages--it will 
principally protect so-called ``bad actors'').
---------------------------------------------------------------------------
    \19\ Section 4(e) provides, ``Punitive damages may not be awarded 
against a volunteer in an action brought for harm based on the action 
of a volunteer acting within the scope of the volunteer's 
responsibilities to a nonprofit organization or governmental entity 
unless the claimant establishes by clear and convincing evidence that 
the harm was proximately caused by an action of such volunteer which 
constitutes willful or criminal misconduct, or a conscious, flagrant 
indifference to the rights or safety of the individual harmed.''
    \20\ See H. Rept. No. 104-64, 104th Cong. 1st Sess. 39 (1999) 
(citing numerous studies concerning the incidence of punitive damages).
    \21\ The Majority rejected an en bloc amendment offered by Mr. 
Scott which would have struck the non-economic damages and punitive 
damage limitation.
---------------------------------------------------------------------------

            5. Fails To Adequately Protect Innocent Victims

    H.R. 911 is also deficient in that instead of merely 
permitting the states to provide for adequate measures to 
insure that non-profit organizations operate in a safe manner--
such as by allowing the states to require that non-profits 
adopt risk management procedures (such as training of 
volunteers), be subject to respondeat superior, 22 
and have a secure source of funds for victim recovery available 
23--it should have required that such procedures be 
in place. In this way Congress could have helped insure that 
there was at least a measure of protection for innocent 
children and vulnerable individuals harmed by negligent conduct 
without exposing volunteers to any increased risk of legal 
liability. 24 For example, if we are going to exempt 
the volunteers of a non-profit gun club whose members 
unintentionally harm a child during errant target practice, we 
should make sure that the gun club is subject to liability and 
has the resources to make the child's family whole.
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    \22\ The common law doctrine of respondeat superior provides that 
employers are generally vicariously liable for the negligence of their 
employees and volunteers.
    \23\ Sec. 4(d)(1)-(4).
    \24\ When Mr. Scott offered an amendment to this effect, it was 
rejected by the Majority.
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                               Conclusion

    Like the other Members of this body, we believe that 
volunteerism can and should play an important role in restoring 
our communities. Unfortunately, H.R. 911 does nothing to 
enhance volunteerism, or help our poor and underprivileged. 
Instead, it creates a complex and inconsistent new overlay of 
limitations, confusing a system of state tort law that has 
served this nation well for more than 200 years. Our nation's 
volunteers and the persons they serve deserve better than this.
                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Zoe Lofgren.