This Month's News

11th ABA Day sets attendance record with nearly 300 participants

Nearly 300 bar leaders converged on the nation’s capital April 18 and 19 for the 11th annual “ABA Day in Washington” to meet face-to-face with their members of Congress to discuss the concerns of the legal profession. Read more...

ABA DAY IN PHOTOS

Legislative grassroots advocacy awards presented during ABA Day

During this year’s ABA Day in Washington events, the ABA Standing Committee of Governmental Affairs recognized two organizations and two individuals for their grassroots advocacy efforts. Read more...

ABA expresses concerns about military commission law

ABA President Karen J. Mathis expressed ABA concerns last month about several provisions in the Military Commissions Act of 2006 (MCA) and the guidelines issued in January to govern the military commission proceedings. Read more...

Elder Justice Act reintroduced

The push is continuing this Congress toward enactment of the proposed Elder Justice Act with the introduction March 29 of bipartisan measures that seek a coordinated effort, led by the federal government, to help reduce elder abuse, neglect and exploitation. Read more...

ABA urges prompt TRIA reauthorization

The ABA urged Congress last month to act quickly to reauthorize the Terrorism Risk Insurance Act of 2002 (TRIA), which is scheduled to expire in December. Read more...

ABA backs increased judicial salaries and pay reforms

The ABA recommended last month that Congress promptly pass legislation to substantially raise the base salaries of federal judges, whose real pay declined by 27 percent since 1969 as the real pay of the average American worker increased by 23 percent. Read more...

Association cites impact of domestic violence

The ABA expressed support April 17 for congressional efforts to increase awareness about the impact of domestic violence in the workplace and the need for employers to develop policies to assist and protect employees who are victims of such violence. Read more...


WASHINGTON NEWS BRIEFS

COURT SECURITY: The Senate passed two bills April 19 that include provisions to renew the authority of the court system through 2009 to redact potentially endangering information from a judges’ federal financial disclosure reports before they are made public.

LAW DAY: This year’s Law Day theme, “Liberty Under Law: Empowering Youth, Assuring Democracy,” aligns with ABA President Karen J. Mathis’ presidential initiative focusing on youth at risk.

STEM CELL RESEARCH: Despite a veto threat from President Bush, the Senate approved a bill April 11 that would lift the president’s 2001 ban on use of federal funds for research using new embryonic stem cell lines.


COMPLETE ARTICLES

11th ABA Day sets attendance record with nearly 300 participants

Nearly 300 bar leaders converged on the nation’s capital April 18 and 19 for the 11th annual “ABA Day in Washington” to meet face-to-face with their members of Congress to discuss the concerns of the legal profession.

The association’s Governmental Affairs Office coordinates the two-day event, which is cosponsored by the ABA Section Officers Conference, the ABA Young Lawyers Division, the National Association of Bar Executives, and the National Conference of Bar Presidents. Stephen N. Zack, of Miami, Florida, chaired this year’s planning committee, and emphasized in his welcome to the attendees that their efforts “are critical to the ABA’s mission of improving the justice system, promoting meaningful access to justice and advancing the rule of law.”

ABA Day honorees this year were Sen. Robert C. Byrd (D-W.Va.), Sen. Thad Cochran (R-Miss.) and House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), who were recognized for their extraordinary commitment to improving the justice system. Grassroots advocacy honors were awarded to the Washington State Equal Justice Coalition, the Ohio State Bar Association, Missouri Supreme Court Justice Richard B. Teitelman, and Doreen D. Dodson, of St. Louis, Missouri. (see page 6).

Keynote speakers included House Majority Leader Steny Hoyer (D-Md.) and Sen. Mel Martinez (R-Fla.), general chair of the National Republican Committee.

A lobbying workshop and issue briefings prepared participants for more than 350 scheduled congressional visits. The lobbying efforts focused on four critical issues from among the 11 categories of legislative and governmental priorities adopted by the ABA Board of Governors at the association’s Midyear Meeting in February: Legal Services Corporation (LSC) funding, federal judicial pay, preservation of the attorney-client privilege, and comprehensive immigration reform

These four issues are critical areas requiring urgent congressional action,” according to Neal R. Sonnett, chair of the Standing Committee on Governmental Affairs, who noted that participants also were advised to urge their members of Congress to support legislation to restore habeas corpus rights to those detained by the United States at Guantanamo Bay as “enemy combatants.” The detainee issue was highlighted in response to an April 17 Supreme Court decision denying cert in a case challenging a law prohibiting habeas corpus rights to the detainees.

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Legislative grassroots advocacy awards presented during ABA Day

During this year’s ABA Day in Washington events, the ABA Standing Committee of Governmental Affairs recognized two organizations and two individuals for their grassroots advocacy efforts..

The Washington State Equal Justice Coalition and the Ohio State Bar Association received organization awards.

The Equal Justice Coalition was created in December 1994 in response to threatened cuts in Legal Services Corporation funding and has worked since then to ensure broad-based and bipartisan support and sufficient public funding for civil legal aid. Activities include gaining support from the Washington congressional delegation for increased LSC funding, building a broad base of support in the state of Washington for increased state funding for civil legal aid, and coordinating public awareness events.

The Ohio State Bar Association has been closely involved in the legislative advocacy of the organized bar for many years, working with the ABA Governmental Affairs Office on LSC funding and many other issues. The state bar’s efforts and close contact with key members of Congress helped bring about a substantial increase in LSC funding last year.

The individuals recognized for awards this year are Missouri Supreme Court Justice Richard B. Teitelman and Doreen D. Dodson, of Missouri, who is a past chair of the of the ABA Standing Committee on Legal Aid and Indigent Defendant and is the current chair of the ABA Standing Committee on Judicial Independence.

Teitelman, who had a 23-year career at Legal Services of Eastern Missouri before becoming a judge, and Dodson, who practices law with the Stoler Partnership in St. Louis, have worked individually and together for years in Missouri and across the country to garner bipartisan support for the LSC. Their efforts last year resulted in the Missouri senators signing for the first time a Senate letter supporting a $32 million increase for LSC.

The Washington State Bar Association (WSBA) Equal Justice Coalition’s award is displayed by (from left): César Torres, Northwest Justice Project director; Justice Susan Owens, Washington Supreme Court; Judge Gregory Tripp, Access to Justice Board chair; Sara Zier, Equal Justice Coalition education director; Ellen Conedera Dial, WSBA president; Caitlin Davis Carlson, Legal Foundation of Washington director; Scott Smith, chair, Equal Justice Coalition chair; and Patrick McIntyre, Northwest Justice Project immediate past director.

Accepting the award for the Ohio State Bar Association (OSBA) were (from left): Stephan W. Stover, legislative counsel; Lee Kolczun, ABA General Practice Section; John S. Stith, president; William K. Weisenberg, assistant executive director; Robert F. Ware, president-elect; and Barbara J. Howard, Board of Governors.

Doreen D. Dodson

Richard B. Teitelman

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ABA expresses concerns about military commission law

The ABA is urging Congress to act quickly to reauthorize the Indian Health Care Improvement Act (IHCIA) so that the government can better address serious health issues faced by American Indians and Alaska Natives.

ABA President Karen J. Mathis expressed ABA concerns last month about several provisions in the Military Commissions Act of 2006 (MCA) and the guidelines issued in January to govern the military commission proceedings.

Pointing out that the ABA since 2002 has urged the federal government to establish fair procedures in its prosecution of alleged terrorists, Mathis said the ABA believes that the government can prevail in prosecuting terrorists “without sacrificing the rule of law and the principles of justice that have historically guided our democracy.”

In April 4 letters submitted for the record of hearings held by the Senate and House Armed Services Committees, Mathis said the ABA strongly opposes Section 7 of the act, which eliminated judicial review of habeas corpus claims for detainees in U.S. custody.

The writ of habeas corpus, which ensures protection against unjust government imprisonment, is “one of the pillars of our constitutional system,” she said, explaining that the writ “serves as an important check on the power of the executive detention and embodying the fundamental principle that one should not be imprisoned by the government without opportunity for a fair and impartial determination that the detention is in accordance with the Constitution and the laws of the United States.”

Section 7 has resulted in the dismissal of hundreds of habeas corpus claims from the federal courts, and the ABA believes that Congress should adopt legislation restoring habeas review for non-citizens who are detained in U.S. custody at Guantanamo Bay, Mathis said.

She also told the committees that the ABA was disappointed when the Pentagon issued MCA guidelines in January without seeking prior open debate and public input. She expressed concern that the MCA’s procedural framework for military commissions departs significantly from the practices of the Uniform Code of Military Justice (UCMJ), which provides the rights afforded in courts-martial. For example, the MCA allows for consideration of evidence obtained by coercion in some circumstances if it was obtained prior to Dec. 30, 2005. The ABA also is troubled, she said, by a provision that provides that “no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States” in interpreting Common Article 3 violations under the War Crimes Act.

“The appropriate use of foreign sources by our federal courts is an evolving issue and has wide-ranging implications that should be left open to discussion and debate so that a consensus over the relevant issues and guiding principles may emerge,” she said.

Another concern is a provision that gives the administration the authority to sanction civilian agencies to engage in harsh interrogation techniques that would be unacceptable for the military to conduct under U.S. law. “Such departures from a uniform approach to the treatment of detainees under Common Article 3 will affect both the treatment of Americans captured abroad and the credibility of our government in raising objections to the use of torture or other cruel, inhuman or degrading treatment or punishment against our citizens,” Mathis said.

Mathis also spoke out recently to emphasize the importance of providing detainees with access to adequate counsel. “The ability of lawyers to confer with their clients and advocate for justice for those clients is a deeply imbedded principle of American democracy,” she said in an April 27 statement. “The principles of freedom, due process and justice are too critical to our national character to be abandoned in any manner,” she said.

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Elder Justice Act reintroduced

The push is continuing this Congress toward enactment of the proposed Elder Justice Act with the introduction March 29 of bipartisan measures that seek a coordinated effort, led by the federal government, to help reduce elder abuse, neglect and exploitation.

S. 1070, sponsored by Sens. Orrin G. Hatch (R-Utah) and six cosponsors, and H.R. 1783, sponsored by Rep. Rahm Emanuel (D-Ill.) and 24 cosponsors, would amend the Social Security Act to establish an elder justice program under Title XX, which provides block grants to states for social services. The proposals also would establish a grant program for adult protective services and provide for the establishment of forensic centers for developing expertise on elder abuse.

Other provisions would authorize funding for national organizations or states that represent or train long-term care ombudsman representatives to provide training, technical assistance, demonstration programs and research to improve ombudsman effectiveness in addressing abuse and neglect in nursing homes and assisted-living facilities.

The House bill includes additional provisions that would, among other things, support a study of existing state statutes related to elder abuse and the development of model laws, as well as training and technical assistance for law enforcement officials and prosecutors.

In introducing the Senate bill, Hatch highlighted a provision that is in both measures that would establish an Elder Justice Coordinating Council to make recommendations to the Secretary of Health and Human Services on the coordination of activities of federal, state, local and private agencies and entities relating to elder abuse neglect and exploitation. In addition, an Advisory Board on Elder Abuse, Neglect and Exploitation will be comprised of experts in the field.

“With more than 77 million baby boomers retiring over the next three decades, we cannot wait any longer for this legislation to pass,” Hatch said.

The ABA strongly supports enactment of the Elder Justice Act, which was reported by the Senate Finance Committee in the 108th and 109th Congresses.

“No current federal law adequately and comprehensively addresses issues of elder abuse, neglect and exploitation, and there are very limited resources available to those in the field directly dealing with these issues,” then Governmental Affairs Director Robert D. Evans wrote to the Senate committee last August. “The Elder Justice Act would create infrastructure, and provide resources needed to develop and implement a nationally coordinated strategy in collaboration with the states to make elder justice a reality,” he said.

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ABA urges prompt TRIA reauthorization

The ABA urged Congress last month to act quickly to reauthorize the Terrorism Risk Insurance Act of 2002 (TRIA), which is scheduled to expire in December.

The goals of TRIA, enacted in the wake of the 9/11 terrorist attacks, are to help stabilize the commercial property and casualty insurance markets and ensure the continued availability of terrorism insurance, which is required by banks and financing institutions before they will make loans on commercial real estate projects and development. Prompt enactment of permanent or long-term reauthorization legislation is necessary, according to the ABA, to prevent marketplace disruptions and enable new policies to be written for 2008 and purchased by consumers.

“TRIA has helped stabilize the price of terrorism insurance by reducing the amount of risk to be borne by insurers.…By providing a backstop, TRIA improved the ability of the market to respond to this risk,” Peter J. Neeson, chair of the ABA Section of Tort Trial and Insurance Practice, and Francine L. Semaya, chair of the section’s Task Force on Federal Involvement in Insurance Regulation Modernization, said in a statement submitted April 24 to the House Financial Services Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises.

Neeson and Semaya explained in their statement that the unpredictability of terrorism diminishes the ability of the private market to underwrite terrorism risk.

Terrorism risk is “significantly more difficult to predict and model than other kinds of risks,” they said, pointing out that the risk is so variable and difficult to predict that insurers and reinsurers are cautious and will only put limited amounts of capital at risk.

The federal government is in the best position to partner with the insurance industry to provide terrorism insurance, Neeson and Semaya emphasized. They pointed out that experience has shown that the government will likely provide assistance to victims of a major terrorist attack and that it “behooves the federal government to be involved prior to the attack in order to receive the benefits of advance planning, risk management, capital accumulation and the opportunity to use the underwriting and claims expertise of the insurance industry.”

During the hearing, subcommittee Chairman Paul Kanjorski (D-Pa.) noted that while TRIA has increased the availability and affordability of terrorism risk insurance, the marketplace is still tenuous.

He noted several issues his panel will be considering in reauthorization legislation, including eliminating the distinction between foreign and domestic terrorism, adding group life insurance to TRIA, determining how best to add nuclear, biological, chemical and radioactive coverage to TRIA, and deciding whether to not to continue to limit the government’s financial exposure within TRIA through creation of a trust fund.

Kanjorski also cautioned that TRIA legislation should not become a vehicle for non-related matters such as natural disaster and risk retention group reforms. Those issues deserve full consideration on their own, he said.

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ABA backs increased judicial salaries and pay reforms

The ABA recommended last month that Congress promptly pass legislation to substantially raise the base salaries of federal judges, whose real pay declined by 27 percent since 1969 as the real pay of the average American worker increased by 23 percent.

“Properly and adequately compensating our federal judges is an investment in the future excellence of our courts,” according to an ABA statement submitted for the record of an April 19 hearing before the House Judiciary Subcommittee on the Courts, the Internet and Intellectual Property.

In addition to a substantial raise in base pay, the ABA also recommended that Congress should amend the Ethics Reform Act of 1989 to break the statutory link that couples cost-of-living adjustments for federal judges with those of members of Congress and repeal the language of Section 140 of P.L. 97-92, which was originally enacted in 1982 and made permanent in 2001 by P.L. 107-77. The Section 140 language requires an extra step of explicit congressional approval of any cost-of-living adjustment for federal judges.

The association also supports enactment of legislation to re-establish a salary review commission similar to past Quadrennial Commissions to recommend pay rates on a regular basis for members of Congress, judges and appointed officials in top executive branch positions.

Testifying at the April 17 hearing, Supreme Court Justice Stephen G. Breyer maintained that the compensation problem “ultimately threatens harm to the American public, whom the independent federal judiciary seeks to serve.” He explained that continuous cuts in the salaries at the top of any sector (public or private) may sap the institution’s strength. They will lower morale, harm the institution’s reputation, and diminish its power to attract and to retain well-qualified employees, he cautioned.

Justice Samuel A. Alito Jr., testifying with Breyer, said that the federal judiciary is losing some of its best and brightest judges to higher paying positions both inside the government and in the private sector.

House Judiciary Committee Chairman John Conyers Jr. indicated that he is seeking a “quick and bipartisan path” of responding to the urgent judicial compensation issue.

“One of the recent strengths of the judiciary is the pluralism in terms of race, religion and career expertise,” Conyers said. “If we don’t eliminate linkage and increase federal judicial pay, I fear that in the future we will be limiting our judiciary to persons of privileged background,” he said.

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Association cites impact of domestic violence

The ABA expressed support April 17 for congressional efforts to increase awareness about the impact of domestic violence in the workplace and the need for employers to develop policies to assist and protect employees who are victims of such violence.

In a statement submitted to the Senate Health, Education, Labor and Pensions Subcommittee on Employment and Workplace Safety, Judge Pamila Brown, chair of the ABA’s Commission on Domestic Violence, said that perpetration of domestic violence impacts the victims’ work performance, their co-workers and their workplaces.

“Some of the work-related problems experienced by survivors because of the violence include missing days of work to go to civil or criminal court to obtain a protection order or to testify, and missing days of work to heal from injuries caused by domestic violence. In addition, the perpetrator of domestic violence may stalk or harass the victim at her workplace, including making numerous calls threatening her or coming to the workplace which affects her ability to work effectively,” Brown said.

She went on to explain that the business community has become increasingly aware of the impact domestic violence has within the workplace in addition to the risk it poses to the safety of their employees. Brown stated that, according to a survey conducted by Liz Claiborne Inc. in 2002, 66 percent of corporate leaders say that domestic violence is a major problem in today’s society, and 91 percent believe that domestic violence affects both the private lives and the working lives of their employees. Sixty-eight percent feel that a company’s financial performance would benefit if domestic violence were addressed among its employees.

Brown expressed the need to better train staff to understand domestic violence and its dynamics, to develop a response plan, and to use both employee benefits and the law to assist employees who are victims of domestic violence. Job guaranteed leave, maintenance of health insurance, and access to unemployment insurance are a few examples of laws and benefits that could potentially provide work-place assistance to domestic violence survivors according to Brown.

In 1996 the ABA adopted policy urging judges and attorneys responsible for the management of employees to provide workplace policies to assist employees who are victims of domestic violence. The ABA policy encourages employers to provide for the welfare of the victims should they come in contact with batterers during the course of business. In 1998 additional policy was adopted by the association recommending that employers address workplace violence by adopting policies and practices that would better prevent and manage on-site violence and threats.

The commission followed those policies in 1999 by publishing the Guide for Employers: Domestic Violence in the Workplace, the first guidebook of its kind providing employers with examples of how to develop and implement effective policies and procedures addressing domestic violence.

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COMPLETE WASHINGTON NEWS BRIEFS

COURT SECURITY: The Senate passed two bills April 19 that include provisions to renew the authority of the court system through 2009 to redact potentially endangering information from a judges’ federal financial disclosure reports before they are made public. Consideration of judicial security legislation - H.R. 1130, which the Senate cleared for the president by voice vote, and S. 378, a broader bill passed by a Senate vote of 97-0 - became more urgent within the past two years after a federal judge’s mother and husband were murdered in their home in Illinois by a disgruntled litigant and a judge in Georgia was shot in a Fulton County courtroom by a prisoner. The ABA has been urging Congress to authorize redaction authority on a permanent basis, maintaining that a judge or family member may face significant security threats by individuals who obtain personal information from judicial disclosure forms. S. 378 also would direct the U.S. Marshals Service to consult with the Judicial Conference of the United States on a continuing basis regarding security requirements for the judicial branch and would authorize $100 million over five years for hiring more marshals to protect the judiciary - provisions supported by the ABA. The legislation, introduced by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), also would expand the current ban on possession of firearms in federal courthouses to include any “dangerous weapon.” In addition, the bill includes language added as an amendment during Senate Judiciary Committee markup that would decrease the number of judges in the D.C. Circuit Court of Appeals from 12 to 11 and increase the number of judges in the 9th U.S. Circuit Court of Appeals from 28 to 29. In related action, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security scheduled a hearing May 3 on H.R. 660, court security legislation similar to S. 378 sponsored by House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

LAW DAY: This year’s Law Day theme, “Liberty Under Law: Empowering Youth, Assuring Democracy,” aligns with ABA President Karen J. Mathis’ presidential initiative focusing on youth at risk. Both the theme and her initiative, Mathis said, encourage us to listen better to the voices of young people and improve the ways the law serves them. “By empowering all youth to learn about and become active on our democracy, we can help to reduce the staggering numbers of our nation’s youth at risk,” she said in her Law Day message. ABA Law Day Chair Judith S. Kaye agreed with Mathis about the importance of the issues. “Whether it’s our nation’s half-million children languishing in foster care or children in fragile homes, or children facing the turmoil of adolescence in today’s world, too little attention is paid them until tragedy strikes,” she said. She also tied the Law Day theme to the ABA president’s “Second Season of Service” initiative, which encourages lawyers moving away from full-time practice to continue to serve in a pro bono capacity by, among other things, making a positive difference in the life of a young person. In a Law Day proclamation issued April 28, President Bush said that “today we strive to prepare our next generation of leaders to carry on America’s tradition of freedom and democracy.” Law Day was established in 1957 by then ABA President Charles S. Rhyne as a day to celebrate the rule of law. Since President Eisenhower issued the first Law Day proclamation in 1958, the celebration, for which the official date is May 1, has grown to encompass weeks of activities conducted by schools, bar associations, courts and civil groups throughout the country.

STEM CELL RESEARCH: Despite a veto threat from President Bush, the Senate approved a bill April 11 that would lift the president’s 2001 ban on use of federal funds for research using new embryonic stem cell lines. S. 5, passed by a 63-34 vote, would amend the Public Health Service Act to require the Secretary of Health and Human Services to conduct and support research that utilizes human embryonic stem cells regardless of the date the stem cells were derived. Ethical standards in the bill would require the following: the stem cells must be derived from human embryos donated from in vitro fertilization clinics for fertility treatments and must be in excess of the needs of the treatment; the embryos would never be implanted in a woman and would otherwise be discarded; and written informed consent, without financial or other inducement, must be obtained from the individual donating the cells. The House passed similar stem cell legislation, H.R. 3, by a 253-174 vote in January. The ABA supports H.R. 3 and S. 5, emphasizing in correspondence to Congress earlier this year that the proposals “demonstrate that ethical concerns can be satisfactorily addressed while the scientific promise is pursued.” Stem cell research has been instrumental in seeking treatments and cures for a number of diseases and conditions, including Parkinson’s Disease, diabetes and cancer. The Bush administration opposes using federal funds to pay for research that relies on the intentional destruction of human embryos for the derivation of stem cells. The president supports S. 30, also passed April 11 by the Senate to support research using non-embryonic types of human stem cells.

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