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Division Delegate Report

By Alexander W. Purdue and Gregory G. Brooker

The virtual meeting of the House of Delegates at the ABA Annual Meeting took place on August 3 and 4, 2020. A listing of resolution reports addressed by the House of Delegates can be found here. Several resolutions of interest to public lawyers were considered by the House during the meeting. They include:

Resolution on In-Person Bar Exams during the Pandemic (Resolution 10G)

This resolution urged that the highest court or bar admissions authority in each jurisdiction cancel the in-person bar examinations scheduled for September 9-10, 2020, and September 30-October 1, 2020, and not administer any other in-person bar examination until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, and other staff. After extensive debate, the House adopted the resolution.
 

Resolution on Evictions during the Pandemic (Resolution 10H)

This resolution urged federal, state, local, territorial, and tribal governments to address the COVID-19 eviction and housing crisis and its collateral harm by (1) providing rental assistance to rental property owners where tenants are facing COVID-19 economic hardship, and (2) in tenant screening practices, precluding the use of nonpayment of rent or eviction records that occur during a particular jurisdiction’s COVID-19 state of emergency or in the 90 days immediately following the lifting of such emergency. The House passed the resolution.
 

Resolution on Integrity of Elections (Resolution 101)

This resolution urged the adoption of the American Bar Association Election Administration Guidelines and Commentary, dated August 2020; it recommends that all election officials ensure the integrity of the election process through the adoption, use, and enforcement of the guidelines; and urged that federal, state, local, territorial, and tribal governments provide election authorities with adequate funding to implement the guidelines and commentary. The resolution was passed by the House.
 

Resolution on Restorative Justice Initiatives (Resolution 106A)

This resolution urged criminal justice stakeholders to consider using a restorative justice response to crime as one effective alternative, or adjunct to, a criminal adjudicatory process, in appropriate cases; urged federal, state, local, territorial and tribal governments to develop grant and funding streams to enable criminal justice stakeholders and community partner organizations to develop, maintain, and assess the effectiveness of restorative justice programs in a data-driven manner; and urged the National Institute of Justice to prioritize and make publicly available an evaluation of restorative justice practices nationwide. The resolution was adopted by the House.

Resolution on Criminal Justice Standards (Resolution 107)

This resolution amended Model Rule 1.8(e) by adding a narrow exception to the Rule that will increase access to justice for the most vulnerable clients. The House passed the resolutions with slight revisions.
 

Resolution on Strip Searches of Children (Resolution 111B)

This resolution urged all federal, state, tribal, local, and territorial governments to adopt policies and contractual provisions that: 1) prohibit conducting strip searches of children and youth, except in exceptional circumstances, 2) require that, if the child or youth must be strip searched, the search is conducted in a manner that respects the sexual orientation and gender identity of the child or youth and is the least intrusive manner possible, 3) prohibit body cavity searches of children and youth; and encourages court systems, lawyers, law schools, and bar associations to promote awareness of the harmful effects of strip searches and body cavity searches of children and youth, including trauma and re-victimization. The House passed the resolution.
 

Resolution on Gender Bias in Sexual Assault Investigations (Resolution 113C)

This resolution adopted the eight principles and accompanying commentary set forth in the U.S. Department of Justice December 15, 2015 guidance titled Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence; and urged all federal, state, territorial, local, and tribal law enforcement agencies in the United States to adopt those same principles and provide periodic training to all law enforcement agency personnel to promote compliance with those principles. The resolution was passed by the House.

Resolution on Use of Lethal Force by Law Enforcement (Resolution 116A)

This resolution urged federal, state, local, territorial, and tribal governments to enact legislation that requires: 1) law enforcement agencies to keep records of instances in which lethal force is used, 2) the appointment of a fully independent special prosecutor whenever a person’s death occurs in the custody of or during an encounter with a police officer or other law enforcement officer, and 3) a showing of objective reasonable necessity to establish a defense in criminal cases involving lethal force use by police or other law enforcement officer. The House passed the resolution after revising it.

Resolution on Prevention of Infectious Disease in Law Enforcement Facilities (Resolution 116D)

This resolution urged federal, state, local, territorial, and tribal legislatures to enact legislation, and correctional and detention facilities for both adults and minors to enact policies requiring that all incarcerated persons are provided with: 1) soap, paper towels, hand sanitizer, and facial tissues in sufficient quantities to prevent the transmission of infectious disease; 2) personal protective equipment including personal sanitizing products and face masks; and 3) sufficient facilities for hand washing, including unrestricted access to clean water and working sinks. The House approved the resolution.

Resolution on Voting by Eligible Pretrial Detainees (Resolution 116E)

This resolution urged federal, state, local, territorial and tribal governments to: 1) enact and enforce legislation directing law enforcement officials and election officials to establish a protocol where pretrial detainees, who are eligible to register to vote or vote in the jurisdiction in which they are detained are given the opportunity to register to vote and cast ballots in their respective federal, state, and local elections; and 2) promulgate and enforce regulations that facilitate such participation. The resolution was adopted.

Resolution on HIV Status and Military Service (Resolution 116F)

This resolution urged the United States Department of Defense to declare that HIV status alone has no impact on service members’ ability to fully execute their duties and is not a determinant of fitness for duty. This Resolution was withdrawn by its sponsors.

Resolution on Implicit Bias Training (Resolution 116G)

This resolution urged that, in all states, territories and tribes, the highest courts or legislative bodies charged with the administration of justice, admission to the bar, or regulation of the legal profession, require that lawyers, judges, commissioners, referees, probation officers, and court personnel whose job requires interacting with the public receive periodic training regarding implicit biases that addresses, at minimum: sex, race, color, religion, ancestry, national origin, ethnic group identification, age, disability, medical condition, genetic information, marital status, sexual orientation, gender expression and gender identity. The House passed the resolution with revisions.

Resolution on Restoring Voting Rights (Resolution 116H)

This resolution urged federal, state, local, territorial, and tribal governments to: 1) repeal laws that disenfranchise persons based upon criminal conviction, 2) restore voting rights to those currently and formerly incarcerated, including those on probation, parole, or any other community-based correctional program, 3) assure that no person convicted of crime is disenfranchised because of nonpayment of a fine. The House passed the resolution.

Resolution on Remote Court Proceedings during the Pandemic (Resolution 117)

This resolution urged federal, state, local, territorial, and tribal governments to: 1) use a considered and measured approach in adopting and utilizing virtual or remote court proceedings established as a result of the COVID-19 pandemic; 2) form appropriate committees to establish or review the use of virtual or remote court proceedings and make recommendations for procedures, revisions of procedures and best practices; 3) ensure that virtual or remote court proceedings guarantee equal access and meet standards of fundamental fairness and due process; 4) provide advance notice of proceedings and ensure full and meaningful public access to virtual proceedings, while also protecting the privacy of those proceedings legally exempted from public access; 5) reintroduce in-person court options as soon as safely feasible as determined by public health officials, and 6) study the impacts of virtual or remote court procedures and take steps to halt, alter, or revise virtual or remote court procedures if such study suggests prejudicial effect or disparate impact on case outcomes. The resolution was passed with several revisions and amendments.

Resolution of Qualified Immunity (Resolution 301A)

This resolution urged federal, state, local, territorial, and tribal governments to enact legislation to curtail the defense of qualified immunity in civil actions brought against law enforcement officers. After extensive debate, the House adopted the resolution.

The House of Delegates will next convene at the ABA Midyear Meeting in February 2021.

Alexander W. Purdue

Colonel, USAF (ret.)

Division delegate and former chair of the Division.

Gregory G. Booker

Assistant U.S. Attorney for the District of Minnesota

Division delegate and former chair of the Division.