The ABA House of Delegates, convening Feb. 5 during the association’s Midyear Meeting in Vancouver, adopted numerous new policies that address pressing legal issues.
The new policies include support for providing more access to the courts for low-income individuals, prohibiting the death penalty for those who were 21 or younger at the time of their crimes, enacting legislation to protect DREAMERS, and prohibiting discrimination based on sexual orientation and/or gender identity or expression.
The delegates also adopted policies on issues facing the legal profession, including providing women lawyers with more opportunities and directing attention to the mental health and well-being of lawyers.
Highlights of the Midyear Meeting included panel discussions focusing on issues ranging from immigration to homeless youth. The Commission on the Future of Legal Education also launched a series of open forums.
During the House of Delegates meeting, ABA President Hilarie Bass emphasized the ABA’s power to provide leadership to individuals and institutions, zeroing in on the ABA’s advocacy supporting criminal justice and immigration reform, the rule of law and the federal judiciary, and opposing mandatory accrual accounting for law firms.
The selection of Judy Perry Martinez, of New Orleans, as ABA president-elect nominee was another high point. If elected in August, she would serve one year as president-elect before assuming the association’s presidency in August 2019.
The following is a summary of the new legislative policies adopted by the delegates.
Civil Rights /Discrimination
Jurors. Urges courts at all levels to apply the Supreme Court ruling in Batson v. Kentucky, 476 U.S. 79 (1986), to sexual orientation and gender identity/expression. The ruling held that the Equal Protection Clause precludes the use of peremptory challenges to strike prospective jurors based solely on their race and was later extended in 1994 to preclude removal because of gender.
Death Penalty. Without taking a position supporting or opposing the death penalty, urges each death penalty jurisdiction not to execute or sentence to death anyone who was 21 years old or younger at the time of their offense.
Employment Discrimination. Supports an interpretation of Title VII of the Civil Rights Act of 1964, which defines sex discrimination by covered employers, to include discrimination based on sexual orientation and gender identity. Urges the U.S. attorney general to withdraw the interpretation proposed by the U.S. Department of Justice in October 2017 that Title VII does not protect transgender citizens against workplace discrimination.
Environmental Justice. Urges Congress to enact legislation overruling Middlesex County Sewerage Auth. V. Nat’l Sea Clammers Ass’n, 433 U.S. 1 (1981), which has severely limited relief to plaintiffs suffering environmental harm. Supports legislation enabling plaintiffs to bring constitutional claims in lieu of a statutory cause of action based upon environmental harm due to governmental acts or omissions.
HIV/AIDS. Urges governments and relevant private entities to ensure health care equity for HIV populations, to maintain evidence-based information pertaining to HIV, to combat housing discrimination based on HIV, and to not criminalize HIV status or HIV non-disclosure.
Harassment. Urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.
Solitary Confinement. Urges legislative bodies and government agencies to enact laws and adopt policies that would prohibit the use of solitary confinement for certain specific classes of detainees and provide that solitary confinement should be used only in exceptional cases as a measure of last resort.
Forensic Evidence. Urges legislatures to enact legislation creating a substantive right and procedures for individuals to challenge their convictions by demonstrating that forensic evidence or testimony used to obtain their convictions has been undermined or discredited by reliable scientific research or technological advances.
Prosecutorial Discretion. Urges the Department of Justice to reconsider the guidelines contained in its 5/10/17 memorandum regarding charging and sentencing policies and to utilize the ABA Standards on the Prosecution Function (2015) in revising the guidelines. Urges all prosecuting authorities to adopt and pursue charging policies that are consistent with the ABA standards.
Domestic and Sexual Violence
Violence Against Women Act (VAWA). Urges Congress and the president to reauthorize, raise the appropriation level of, and fully fund the VAWA Legal Assistance for Victims Grant Program.
Social Security. Urges Congress and the Social Security Administration (SSA) to strengthen the safeguards and protections for all beneficiaries – both individuals and organizations – of the SSA representative payee program, under which a representative payee receives and spends benefits on behalf of a beneficiary if the SSA deems that the beneficiary cannot independently manage funds.
Courts. Supports the development of integrated, systemic approaches within administrative, civil and criminal court contexts to address the special needs of youth and young adults experiencing homelessness. Urges lawmakers to work with the legal profession to effectuate specified goals.
Children in Street Situations. Endorses General Comment No. 21 on Children in Street Situations, which was issued in June 2017 by the United Nations Committee on the Rights of the Child. Urges development of comprehensive long-term strategies to realize the rights of children living in street situations. Reaffirms support for ratification of the United Nations Convention on the Rights of the Child.
Dreamers. Urges Congress to enact legislation permitting Deferred Action for Childhood Arrivals (DACA) recipients and other undocumented immigrants who were brought to the United States as children and who meet age, residency, educational and other qualifications, including background checks and good legal standing, to apply for permanent legal status and citizenship. Urges the Department of Homeland Security to exercise discretion, consistent with legal authority, to refrain from apprehending, detaining, or removing Dreamers.
Evidentiary Privilege. Urges federal courts, Congress and the U.S. Patent and Trademark Office (USPTO) to adopt rules or enact legislation to establish an evidentiary privilege by courts in civil actions and USPTO proceedings for confidential communications between a client and a patent agency licensed by the USPTO that are reasonably necessary and incidental to the limited activities authorized by the Patent Act.
Copyright. Supports efforts in Congress and federal courts to allow the filing of a copyright infringement action once a proper application for registration of a copyright has been delivered to the Copyright Office.
Electronic Commerce. Adopts the Model Provisions on Electronic Commerce for International Trade Agreements, dated February 2018, and recommends the Model Provisions as a template for international trade agreements.
Branch Campuses. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in adopting amendments dated February 2018 to Standard 106 (Separate Locations and Branch Campuses) of the ABA Standards and Rules of Procedures for Approval of Law Schools.
Courtroom Experience. Encourages law firms to develop initiatives to provide women lawyers with opportunities to gain trial and courtroom experience.
Lawyer Well-Being. Urges stakeholders, where appropriate, to consider the recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, a report by the National Task Force on Lawyer Well-Being.
Law Library of Congress. Urges Congress to approve appropriations necessary to enable the Law Library of Congress to adequately staff, modernize, and enhance its services, collections, facilities, digital projects, and outreach efforts.
Legal Representation. Urges governments to provide legal counsel as a matter of right at public expense to low-income persons in all proceedings that may result in a loss of physical liberty, regardless of whether the proceedings are criminal or civil, or are initiated or prosecuted by a government entity. Urges courts not to accept an in-court waiver of the right to appointed counsel in cases that may result in loss of liberty unless the person has had the opportunity to confer with a lawyer.
Divorce. Urges Congress to repeal Section 641 of the National Defense Authorization Act for Fiscal Year 2017, which dictates a single, pre-determined outcome in divorce and property division cases involving military retired pay. Opposes enactment of federal legislation that overrides the discretion and authority of state legislatures and courts to determine the fair, just and equitable division of military pensions.
Uniform State Laws
The delegates also approved five uniform states law proposed by the National Conference of Commissioners on Uniform State Laws: the Uniform Directed Trust Act; the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act; the Uniform Parentage Act; the Uniform Protected Series Act; and the Uniform Regulation of Virtual-Currency Businesses Act.