March 18, 2018

ABA Supports "Civil Gideon" and New Workplace Harassment Policies

By Alexander W. Purdue

Division Delegate Report
By Alexander W. Purdue

The House of Delegates met at the Midyear Meeting in Vancouver, B.C., Canada on February 5, 2018. A listing of key reports addressed by the House can be found here.

Remarks by ABA President Hillarie Bass and President Elect Judy Perez Martinez

President Bass spoke to the House about a number of her ongoing initiatives. She noted that one of those initiatives, ABA Legal Fact Check, demonstrates that the ABA does not just stand by when others challenge the legal underpinnings of our democracy. ABA Legal Fact Check quickly released statements on such timely topics as the scope of executive pardons; the constitutional limits of free speech; and foreign influence on U.S. elections. Bass also lauded the work of the ABA Standing Committee on the Federal Judiciary and the fact that they completed reviews of more than 60 judicial candidates in 2017 (finding only four to be unqualified). Other initiatives that are beginning to bear fruit are the work of the Commission on the Future of Legal Education and the Task Force on Building Trust in the Justice System. Finally, she touched on the need for the ABA to evolve and adapt. That may entail future changes in the ABA dues structure, the structure of the sections, and the ABA's administrative structure.

Judy Perry Martinez became the president-elect nominee at the Midyear Meeting. In her remarks, she also noted that the ABA, like organizations in every sector, is struggling to efficiently communicate the value of membership and how that value will be delivered in the future. She praised the ABA's commitment to reexamining our business model, driving greater operational efficiencies, and rethinking governance. She also commented on the awesome power of the collective voice of the ABA and stressed that we must continue to "use that voice to trumpet the essential values of our democracy, so that practicing lawyers everywhere, and law students who will join our ranks, are proud to be members of the organization that stands up time and time again for the rule of law."

Remarks of ABA Executive Director

Jack Rives discussed the opportunities and challenges facing the American Bar Association. He spoke about the new membership program proposal that would offer two section memberships, access to a robust CLE library and enhanced web-based content under a revised dues structure. He acknowledged that many organizations must re-assess their programs and structure in light of many societal and technological changes. He concluded by reaffirming the ABA's commitment to serve our members, improve our profession, eliminate bias and enhance diversity and advance the rule of law. He said that the ABA is on the right path to meet its challenges while at the same time continuing its important work for American's legal community.

Resolutions of Interest

There were very few surprises with respect to the resolutions that were considered by the House. With the exception of Resolution 117 (urging courts to recognize that service members should not be discriminated against based on sexual orientation or gender identity) that was withdrawn, all other resolutions reviewed by the Division's Council and supported by the Division were either adopted as drafted or as revised.

Resolution 108A, urging legislative bodies and governmental agencies to enact laws and adopt policies regarding the use of solitary confinement for detainees, passed.

Resolution 108B
was approved with revisions. As adopted, it 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 conviction has subsequently been undermined or discredited.  

Resolution 108C was also approved with revisions. That resolution urges the Department of Justice to restore prosecutorial discretion in choosing charges, and reserve mandatory minimum sentencing to only the most serious drug traffickers and prohibit its use to secure plea agreements.

Resolution 108D, urging courts to extend Batson v. Kentucky, 476 U.S. 79 (1986), to prohibit discrimination against jurors on the basis of sexual orientation or gender identity/expression, passed.

Resolution 108E, urging Congress to enact legislation to protect DACA recipients, passed with revisions.

Debate on Resolution 111 (urging death penalty jurisdictions not to impose death sentences on anyone younger than 21 at the time the offense was committed) proved to be unexpectedly controversial. The original language of the resolution specifically noted that the ABA was not taking a position on the death penalty itself, which has been the ABA position for many years. An amendment was offered suggesting that the time had come for the ABA to take a stand against the death penalty. Opponents of the amendment noted that while many in the ABA are opposed to the death penalty for a variety of very good reasons, the failure to stake out an absolute position on the issue has allowed the ABA to maintain its "seat at the table" and successfully argue against its use in all but the most egregious cases. Ultimately, that logic prevailed-the House defeated the amendment, but passed the original version of Resolution 111.

As anticipated, Resolution 112A (seeking approval of the Revised Uniform Unclaimed Property Act) was hotly debated, with the Business Law and Tax Sections both opposing adoption. Ultimately, the House indefinitely postponed action on Resolution 112A in hopes that all parties could reach a future agreement.

Resolution 113
, supporting 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, passed.

Resolution 114 passed. It 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 initiated/prosecuted by a government entity.

All three late filed resolutions passed including Resolution 300, urging health care equity for marginalized populations disproportionately impacted by HIV and Resolution 301, endorsing General Comment No. 21 on Children in Street Situations issued in June 2017 by the U.N. Committee on the Rights of the Child. Resolution 302, expanding ABA policy dating to 1992, sets forth new components for enforcing policies and procedures prohibiting harassment and retaliation in the workplace based on gender, gender identity and sexual orientation. The final voice vote was unanimous.

Division Delegate Alexander W. Purdue, Colonel USAF (retired), of Santa Fe, NM, was Division chair in 2013-2014.