A wide range of issues faced the ABA House of Delegates when it convened Aug. 8-9 in Toronto during the ABA Annual Meeting, and new policies adopted by the delegates address the funding crisis in state courts, support for mandatory civic education in public schools, increased civility in the legal profession, and greater protection of children in the immigration process.
The state court funding policy was developed by the ABA Task Force on Preservation of the Justice System, which is chaired by Theodore B. Olson and David Boies, recipients of this year’s ABA Medal. The policy urges bar associations, governments and courts to take specific actions to respond to the crisis.
The delegates also approved a resolution opposing efforts to amend the U.S. Constitution to alter the grant of U.S. citizenship under the 14th Amendment to any persons born in the United States, including territories, possessions and commonwealths.
The following summarizes the House of Delegates action.
Employment Discrimination. Urges the president, Congress and the chair and commissioners of the Equal Employment Opportunity Commission (EEOC) to adopt measures to provide that EEOC employment discrimination hearings conducted are subject to the formal adjudication requirements of the Administrative Procedure Act.
Civic Education. Recommends that state, local and territorial bar associations urge state and local legislatures, education commissions and school boards to mandate civic education classes/courses in elementary, middle and secondary public schools.
Cross-Border Class Actions. Adopts as best practice the Protocol on Court-to-Court Communications in Canada-U.S. Cross Border Class Actions and Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Class Proceedings, dated August 2011, and urges courts and counsel in cross-border class actions cases involving the United States and Canada to adopt the protocols.
Judicial Disqualification. Urges states to establish clearly articulated procedures for judicial disqualification determinations and prompt review, by another judge or tribunal, of denials of requests to disqualify a judge; and urges states in which judges are subject to elections of any kind to adopt disclosure requirements for lawyers and litigants who have provided campaign support for a judge before whom they are appearing and guidelines for judges concerning disclosure and disqualification obligations regarding campaign contributions.
Time Standards. Adopts the Model Time Standards for State Courts and urges state judicial systems to adopt and implement the standards while recognizing in criminal cases that any time standards must acknowledge the caseloads of prosecutors and defense counsel and avoid any rush to case disposition that might compromise justice.
Court Funding. Urges state, territorial and local bar associations to document the impact of funding cutbacks to the judicial systems in their jurisdiction, to publicize the effects of those cutbacks, and to create coalitions to address and respond to the ramifications of funding shortages to their justice systems.
Background Checks. Urges applicable governmental entities to take all appropriate measures to ensure that the National Instant Criminal Background Check System (NICS) is as complete and accurate as possible so that persons properly categorized as prohibited persons under 10 USC § 922(g) are included in the NICS, and to urge the Department of Justice, the Department of Defense and any other federal agencies to rescind policies that do not require reporting for inclusion in the NICS of applicants who fail voluntary drug tests.
Human Trafficking. Urges state, tribal and territorial legislatures to enact laws that effectively aid minors who are victims of human trafficking by, among other things, permitting their immediate protective custody as dependent children in suitable residential environments, amending juvenile dependency laws, and providing a civil cause of action for child victims to receive compensation and services.
Sentencing. Urges the U.S. Sentencing Commission to complete a comprehensive assessment of the guidelines for child pornography offenses, taking into account the severity of each offense and factors pertaining to the current nature of these offenses, offenders, victims and the role of technology in these offenses.
Correctional Accrediting. Adopts the Key Requirements for the Certification of Correctional Accrediting Entities, dated August 2011, and urges governments to require that public and private facilities in which adults or juveniles are confined for violations or alleged violations of criminal, juvenile or immigration laws be accredited by one or more federally certified accrediting entities.
Women in Prison. Urges the Bureau of Prisons, the U.S. Marshals Services, Immigration and Customs Enforcement, and state, tribal and local correctional authorities to develop and implement gender-responsive needs assessments that account for women’s specific needs and to link women prisoners to gender-responsive programming, including programs targeted to parenting responsibilities, the women’s histories of domestic violence and abuse, their distinctive patterns and prevalence of mental health issues, and substance abuse and its co-occurrence with trauma and mental health issues.
Disclosure Rules. Urges federal, state, local and territorial governments to adopt disclosure rules in state and federal courts requiring the prosecution to obtain from its agents and to make timely disclosure to the defense before the commencement of trial or a guilty plea all information known to the prosecution that tends to negate the guilt of the accused, mitigate the offense charges or sentence, or impeach the prosecution’s witnesses or evidence, except when relieved of the responsibility by a protective order.
Rape Kit Backlog. Urges federal, state, local and tribal governments to enact legislation and support appropriate funding to protect sexual crime victims rights by eliminating the substantial backlog of rape kits collected from crime scenes and convicted offenders; and urges governments to adopt policy and/or legislation supporting efforts to test every rape kit booked into police evidence where testing may identify the unknown assailant, can confirm the presence of a known suspect’s DNA, corroborate a victim’s complaint or testimony, or exonerate innocent suspects.
Long Term Care. Urges Congress and all federal, state and territorial administrative bodies to continue efforts to expand the availability of home- and community- based services as a viable long term care option to help people of all ages with disabilities live in the community.
Rights of Older Persons. Encourages the U.S. Department of State and the United Nations and its member states to support the ongoing processes at the United Nations and the Organization of American States to strengthen protection of the rights of older persons, including the consideration of an international and regional human rights instrument to accomplish this goal.
Voter Registration. Supports efforts to improve voter registration practices, and urges commitment by states and local election jurisdictions to develop the necessary compatible technology and resources to implement improvements.
Law Practice. Urges all lawyers regularly to assess their practice environments to address risks that may arise from any natural or manmade disaster and compromise their ability to protect their clients’ interests and maintain the security of their clients’ property; and urges bar associations to create committees dedicated to emergency management planning and response.
Victims. Opposes the adoption of laws that would alter the legal duty of reasonable care that relief organizations and health care practitioners owe individuals harmed by a natural or manmade disasters; and supports educational programs about the duty of care owed to victims of a natural or manmade disaster.
Climate Change. Urges the U.S. government to ensure that federally recognized Indian tribes may participate fully in policy discussions and government-to-government meetings on the issue of climate change domestically and in international fora, and to provide adequate and equitable financial and other support for tribes to carry out measures relating to climate change.
Abused Children. Adopts the Model Act Governing the Representation of Children in Abuse, Neglect and Dependency Proceedings, dated August 2011.
Concealed Weapons. Supports laws that give law enforcement in jurisdictions that allow the carrying of concealed weapons broad discretion to determine whether such activity requires a permit or license; and opposes laws that limit such discretion by mandating the issuance of a permit or license to all persons who simply satisfy minimum prescribed requirements. Opposes federal legislation that would force states to recognize permits or licenses to carry concealed weapons issued in other states.
Genetic Testing. Urges federal, state and territorial governments to assure that predictive and diagnostic medical genetic testing provided online, via the telephone, or by any other direct-to-consumer method complies, at a minimum, with certain specified requirements.
Minor Children. Urges Congress to enact legislation and the Department of Homeland Security to adopt policies that assure that information pertaining to location and transfer of immigration detainees who are parents of minor children is shared among immigration authorities, state and local child welfare agencies and state courts; that length of one’s status as an immigration detainee cannot be the sole basis for not making reasonable efforts to reunify children with their parents; and mandate collection and reporting of annual data on the number of U.S.-citizen children impacted by detention and deportation of parents or primary caregivers and the costs involved.
Children in Proceedings. Urges the Department of Homeland Security to revise its policies to allow detained parents, legal guardians and primary caregivers access to an attorney to help them understand the legal issues related to their minor children and to represent their interests in state court custody, dependency and other legal actions related to their children; and recommends that such persons be provided an opportunity for meaningful participation in judicial proceedings involving their children’s custody and welfare.
Unaccompanied Children. Urges federal and state governments to enact legislation for the protection of unaccompanied and undocumented immigrant children and U.S.-citizen children of noncitizen parents that includes screening to determine whether the child is eligible for immigration relief because he or she is a victim of crime, abuse, neglect or abandonment; repatriation that adheres to intercountry protocols; full access for U.S.-citizen children to vital government documents; and training for judges and attorneys who work in the field.
Deportation. Supports application of the Immigration and Nationality Act to allow persons outside the United States to pursue motions to reopen or to reconsider removal (deportation) proceedings on the same basis and subject to the same restrictions that apply to persons who file such petitions from within the United States.
Access to Counsel. Supports measures by the Department of Justice’s Executive Office of Immigration Review and the Bureau of Immigration Appeals to improve access to competent legal counsel for individuals in immigration removal proceedings; and supports measures to combat the unauthorized practice of immigration law and immigration practitioner fraud.
Citizenship. Urges Congress to reject any resolution proposing an amendment to the U.S. Constitution that would alter, in any way, the grant of U.S. citizenship under the 14th Amendment to any persons born in the United States (including territories, possessions and commonwealths); and urges Congress and all state, territorial and local legislative bodies to reject any proposal that seeks to alter the right of U.S. citizenship under the Citizenship Clause of the 14th Amendment through the enactment of legislation or an interstate compact.
Intellectual Property Law
Definiteness. Supports the continued application by courts of certain legal principles to determine if an issued patent claim meets the definiteness requirements under 35 USC § 112, second paragraph.
Judicial Relief. Adopts policy relating to the rights of an applicant denied a patent by the U.S. Patent Office and who has exercised the right provided by federal statute to bring a civil action in the U.S. District Court for the District of Columbia to obtain the patent. Supports the right of the applicant to introduce new evidence in the district court subject only to limitations generally applicable in federal civil litigation.
Patent Eligibility. Adopts policy supporting the principle that laws of nature, physical phenomena and abstract ideas are not eligible for patenting under 35 USC § 101, and supports the principle that a patent claim limited to a new application of a law of nature or physical phenomenon meets the requirements of Section 101 where such new application manifests itself in a process, machine, manufacture or composition of matter, including a process, other than a mental process, for the treatment of a particular disease or other medical condition.
Blanket Prohibitions. Opposes federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of foreign or international law, or on consideration or use of the entire body of law or doctrine of particular religion.
Economic Development. Urges Congress to fund U.S. participation in capital increases and replenishments for the World Bank, the Inter-American Development Bank, the African Development Bank and the European Bank for Reconstruction and Development to further longstanding ABA goals in the promotion of the rule of law in economic development.
International Trade. Supports development and harmonization of international trade and commerce law and the establishment of predictable systems of secured lending in developing countries through the reform of commercial laws, including secured transactions law; and encourages lawyers to support and participate in efforts to have secured transactions reform adopted in developing countries.
Practice-ready Lawyers. ABA should take steps to assure that law schools, law firms, continuing legal education providers and others concerned with professional development provide the knowledge, skills and values that are required of the successful modern lawyer; and urges legal education providers to implement curricular programs intended to develop practice-ready lawyers, including, but not limited to, enhanced capstone and clinical courses that include client meetings and court appearances.
Native American Students. Urges the Law School Admissions Council and ABA-approved law schools to require additional information, including tribal citizenship, tribal affiliation or enrollment numbers, and/or “heritage statements,” from individuals who indicate on their applications for testing and/or admission that they are Native American.
Student Loan Debt. Urges Congress to enact legislation that assists individuals who are experiencing financial hardship due to excessive levels of student loan debt but are not covered by the provision of the student loan overhaul enacted in March 2010; and urges commercial lenders to assist such individuals by developing and implementing certain loan repayment and forgiveness programs.
Employment Data. Urges all ABA-approved law schools to report employment data that identifies whether graduates have obtained permanent or temporary full-time or part-time employment within the legal profession, whether in the private or public sector, or whether in alternative professions; and urges the law schools to make data on employment and salaries of their graduates, as well as other cost-related law school data, readily available to applicants and other individuals. Urges the Section of Legal Education and Admissions to the Bar to consider revising the ABA Standards for Approval of Law Schools to require law schools to provide on their websites, and other reasonable methods of communication, more data on employment and placement of graduates.
Civility. Affirms the principle of civility as a foundation for democracy and the rule of law and urges lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse. Urges government officials, media, political parties, etc., to strive for more civil public discourse in the political arena. Supports government action that promotes civility.
Lobbying Disclosure. Urges Congress to update and strengthen the Lobbying Disclosure Act of 1995 (LDA) by narrowing the threshold for those exempted from registering under the LDA, requiring fuller reporting of lobbying activities, forbidding certain conflicts of interest, and providing for more effective enforcement of the LDA.
Returning Veterans. Urges Congress to amend the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by adding provisions to require employers to provide certain reasonable accommodations for returning veterans with combat injuries that may not manifest themselves until after a return to work; authorize the award of attorneys’ fees, costs and damages to redress violations of the act; make agreements to arbitrate a dispute under the act unenforceable; and authorize the Department of Labor to investigate patterns and practices of USERRA violations.
Detainees. Urges the president and the Department of Defense to assure that there is an opportunity for public notice and comment regarding the rules governing the “continued law of war detention” periodic review required for Guantanamo detainees under a March 2011 presidential executive order.
Uniform State Laws
Notarial Acts. Approves the Revised Uniform Law on Notarial Acts, promulgated by the National Conference of Commissioners on Uniform State Laws in 2010, as appropriate legislation for states desiring to adopt the specific substantive law suggested therein.
During the House of Delegates meeting, Kentucky lawyer Wm. T. (Bill) Robinson III became ABA president, vowing to focus his presidency on the state court funding crisis, volunteerism, membership, and diversity in the profession (see article, page 5). Laurel G. Bellows, of Chicago, will serve as president –elect.
The six-day Annual Meeting also featured more than 1,400 events, including 200 continuing legal education programs. U.S. Supreme Court Justice Stephen G. Breyer emphasized to those attending the Opening Assembly the importance of civic education in advancing the rule of law.