February 28, 2017

House of Delegates approves policies on array of issues important to the rule of law

The ABA House of Delegates, convening Feb. 6 in Miami during the association’s Midyear Meeting, adopted new policies on a number of pressing issues of importance to the legal profession.

ABA President Linda A. Klein, addressing the delegates, called this a “defining season” for lawyers and their commitment to the rule of law, due process and access to justice.

“There has been a lot of talk about protecting our borders,” she said. “Let me tell you what the most important border is: It’s our Constitution and the rule of law it embodies. We as lawyers are called upon to protect it.”  She emphasized the importance of avoiding sweeping bans based on religion or national origin and that lawyers must insist on the right to due process and legal representation for immigrants.

Klein also highlighted that, for a nation based on the rule of law, nothing is more important than a fair and impartial judiciary. Also on the ABA’s list of important issues are support for the Legal Services Corporation and criminal justice reform, she said.

Policy resolutions adopted by the delegates include opposing an executive order issued in January to restrict entry into the United States from seven specific countries, and urging attention to legal procedures and legal rights in crafting future executive orders regarding border security, immigration enforcement, and terrorism. Other new policies include support for action to improve the civil justice system, prevent sexual and gender-based violence, protect those with disabilities from discrimination, and provide legal assistance to veterans.

Panel discussions focused on a wide variety of topics, including the judicial nomination and confirmation process, the death penalty, public service loan forgiveness programs, the gender pay gap, immigration, environmental issues, and legal innovation.

In addition, the ABA Board of Governors approved the association’s Legislative and Governmental Priorities for the 115th Congress (see page 8).

Here is a summary of major new legislative policies adopted by the delegates.

Civil Rights

Blood donation. Urges the Food and Drug Administration (FDA) to update its current policy requiring deferment of blood donations from men who have sex with men to a deferral policy based on an assessment of the risk posed by an individual based on potential recent exposures rather than on the individual’s sexual orientation. Urges the FDA to develop and implement validated tools for assessing individual risk to ensure the safety of the blood supply.

Courts/Judiciary

Supreme Court Appointments. Urges the U.S. Supreme Court to consider racial, ethnic, disability, sexual orientation, gender identity, and gender diversity in the selection process for appointments of amicus curiae, special masters, and other counsel.

Bankruptcy Judges. Urges Congress to amend Title 28 of the U.S. Code to authorize the appointment of additional bankruptcy judges sufficient to meet the demands within each district.

Civil Justice. Urges all state courts to develop and implement a plan to improve the delivery of civil justice guided by the recommendations of Call to Action: Achieving Civil Justice for All, as endorsed by the Conference of Chief Justices. Also urges all bar associations to promote the recommendations.

Criminal Justice

Hair Analysis. Urges the U.S. Department of Justice to continue its accuracy and quality assurance efforts in the area of microscopic hair analysis. Urges prosecutors to undertake a timely review of all cases in which they have received notice of possible error, and to consider waivers of statute of limitations if needed to serve justice.

Conviction Integrity. Urges each prosecutor’s office to adopt and implement internal conviction-integrity policies when an office supports a defendant’s motion to vacate a conviction based on the office’s doubts about the defendant’s guilt of the crime or about the lawfulness of the conviction.

Miranda Warnings. Urges law enforcement authorities to develop and use, prior to custodial interrogation of suspects, translations of Miranda warnings in as many languages and dialects as necessary to accurately and fully inform individuals of their Miranda rights.

Disability Law

Parents with Disabilities. Urges governments to enact legislation and implement policy providing that custody, visitation and access shall not be denied or restricted, nor shall a child be removed or parental rights terminated, based on a parent’s disability, absent a showing that the disability is causally related to a harm or an imminent risk of harm to the children.

Disaster Response

Disaster Resilience. Urges governments at all levels to adopt standards, guidance, best practices, programs, and regulatory systems that make communities more resilient to loss and damage from foreseeable hazards.

Families/Children

Sexual Abuse. Urges state, territorial, tribal and local legislative bodies and governmental agencies to review their laws on preventing the luring, enticing, or intimidating of minors for sexual acts to ensure that such laws explicitly address Internet and other electronic means of communication.

Health Law

Medicare Coverage. Urges amendment to Section 1862(a)(1) of the Social Security Act and adoption of regulations that broaden the scope of Medicare coverage to include aspects of “precision medicine” – interventions that could mitigate medical issues that are genetically indicated but not yet apparent.

Human Rights

Atrocities. Urges governments and relevant organizations to implement the recommendations set forth in the May 2016 policy brief, Allies Against Atrocities: The Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings.

Immigration

Refugee Legal Protection. Reaffirms support for the establishment of laws, policies and practices that ensure access to legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge. Urges Congress to adopt legislation mandating that refugees receive an appropriate individual assessment in a timely fashion to determine their eligibility and that neither national origin nor religion be the basis for barring an otherwise eligible individual in making a determination.

Immigration Executive Orders. Urges the president to withdraw Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States, issued Jan. 27, 2017) and to follow legal procedures and other legal rights in the promulgation of future executive orders regarding border security, immigration enforcement, and terrorism.

Immigrant Children. Urges Congress to preserve and develop laws, regulations, policies and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children, especially those who have entered the United States without a parent or legal guardian.

Intended Parents. Urges the U.S. State Department to interpret the Immigration and Nationality Act to recognize children born to intended parents, even if those legally recognized parents do not have a biological relationship to the child, as long as one of the intended parents is a U.S. citizen who is legally recognized as the child’s parent by the country of birth or the intended parent’s state of domicile and the relevant resident or physical presence requirements are met.

Intellectual Property Law

Trademarks. Supports the adoption of the nominative fair use doctrine as an affirmative defense to claims of trademark infringement and unfair competition.

International Law

Arms Trade. Urges the United States to ratify and implement the 2013 Arms Trade Treaty to prevent and eradicate the illicit trade in conventional arms and prevent their diversion.

Sexual and Gender-based Violence. Urges the United Nations, the United States and other governments and relevant parties to develop and implement methodologies to measure and track the prevalence of sexual and gender-based violence. Endorses international efforts to improve donor coordination, transparency, and accountability with respect to assistance to victims of sexual and gender-based violence,  and recommends that international non-governmental organizations, donors and multilateral agencies work with governments to develop appropriate methodologies to create publicly accessible national databases of information for coordinating, tracking and evaluating assistance. 

Legal Education

Drug Convictions. Urges Congress to repeal a restriction in the Higher Education Act that denies eligibility for federal educational aid to students convicted of drug offenses, remove the question about drug convictions from the Free Application for Federal Student Aid, and provide notification of the change to students who had earlier been deemed ineligible.

Standards. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in amending the ABA Standards and Rules of Procedure for Approval of Law Schools in the areas concerning self study, curriculum, academic program and academic calendar, admissions, and appeals panels.

Continuing Legal Education. Adopts the Model Rule for Minimum Continuing Legal Education and Comments adopted in February 2017 to replace the previous model rule and comment adopted in 1988.

Veterans

Legal Assistance. Urges lawmakers and the legal profession to work together to identify longstanding legal barriers for veterans in accessing housing, education, employment, treatment, other services, or benefits. Urges, where appropriate, the inclusion of veterans’ caregivers as eligible clients.

Uniform State Laws

The delegates approved the following uniform state laws promulgated by the National Conference of Commissioners on Uniform State Laws: Uniform Family Law Arbitration Act; Uniform Wage Garnishment Act; Uniform Employee and Student Online Privacy Protection Act; Revised Uniform Unclaimed Property Act; Uniform Unsworn Domestic Declarations Act; and Uniform Unsworn Declarations Act. 

Back to the February 2017 Washington Letter