Bar Watch Bulletin August 11, 2008

House of Delegates
August 11, 2008

The American Bar Association's Annual Meeting will be taking place from August 7-12 in New York City. As always, ABA Watch will be reporting live, providing you with highlights of the day's events.  To read more about resolutions that will be considered by the House of Delegates at this year's meeting or to learn about recent ABA activity, check out our latest edition of ABA Watch.

What follows are some highlights from today's sessions at the annual meeting.

House of Delegates Vote on Resolutions

Monday, the House of Delegates considered recommendations that, if passed, become official ABA policy.  The recommendations are introduced on the floor of the session, debated among the delegates, and then put to a vote.  Below are highlights of today's meeting.

(NOTE: The recommendations below may have provisions that have been amended and/or omitted upon passage by the House of Delegates)  
Feres Doctrine

Recommendation 10B, sponsored by the Bar Association of the District of Columbia, which "urges congress to examine the incident to service exception to the Federal Tort Claims Act created by the Supreme Court in Feres v. United States, 340 U.S. 135 (1950), to provide t.hat only the exceptions specifically provided in the act limit active duty military members access to the courts when they are victims of torturous government conduct, and amend the act to provide that the exception limiting access for conduct that occurs in combatant activities applies 'during time of armed conflict rather than 'during time of war.'"  The recommendation's spokesman discussed the increasing support for returning to the textual limitations of the Federal Tort Claims Act as opposed to the Feres doctrine.  The sponsor's arguments and the accompanying report rely heavily on the dissent of Justice Scalia in Johnson v. United States (1987). The resolution passed with no opposition.  

Correctional Facilities 

Recommendation 104B, sponsored by the Criminal Justice Section, urges governments on the federal, state and local level to "ensure that the public is informed about conditions in correctional and detention facilities" and ensure "greater accountability to the public in the operation of those facilities." Professor Stephen Saltzburg, spoke in favor of the measure, arguing that the fate of those incarcerated in America is often unknown by the public and that this recommendation would provide "transparency" and "accountability."  Mark Alcott, a House member, also spoke in favor of the resolution.  Alcott mentioned his own experience touring a correctional facility with the Correctional Association of New York, calling inmate conditions "deplorable."  The resolution was passed without opposition. 

Prescription Drug Monitoring

Recommendation 105, sponsored by the Standing Committee on Substance Abuse was debated heavily on the House floor.  The resolution "urges state, territorial, tribal legislative bodies and appropriate government agencies to develop comprehensive strategies to reduce the incidence of prescription drug diversion and abuse including the utilization of prescription drug monitoring Programs."  Several rose to speak against this resolution, primarily on the grounds that it violates the privacy of individuals taking prescription medication.  Ellen Flannery, of Covington & Burlington LLP, pointed out that prescription drug abuse is often perpetrated by those who "doctor shop" and that monitoring the various prescriptions of each individual would be unrealistic.  She also pointed out that much of the prescription drug abuse takes place in the home, after the physician has prescribed medication for legitimate purposes.  Flannery was concerned that this fact may have a chilling effect on physicians and abilities to prescribe appropriate treatment. 

Delegates Lucy Thompson and J. Anthony Betal also showed their disfavor with the recommendation's lack of concern for privacy.  Betal pointed out that the government experiences more data breaches than any other sector, and that the monitoring provisions of the recommendation would be akin to any other type of eavesdropping program. Thompson argued that prescription drug monitoring programs were not the answer and that the patient's prescription history is "sensitive" information. Although the recommendation did have some support among the house, it did not pass.
Judicial Confirmations

Recommendation 118, sponsored by the Standing Committee on Federal Judicial Improvements and 24 other ABA sections and committees, calls for reform of the federal judicial nominating process.  Provided below is the text of the major provisions in the recommendation.

  • The American Bar Association encourages the senators of each state jointly to appoint (in cooperation with others not of their party when appropriate) bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators might suggest for the President's consideration.
  • The American Bar Association endorses the use of bipartisan commissions to consider and recommend prospective nominees for the United States Court of Appeals.
  • The American Bar Association recommends that the President consult with Senate leaders of both parties and the home state senators in advance of submitting nominations.
  • The American Bar Association urges the President and Senate to promptly fill judicial vacancies and act expeditiously, especially with respect to nominees recommended by bipartisan commissions.

Delegate Doreen Dodson called the resolution "excellent" saying that it will coincide with new ABA President Thomas Wells's mission of having "fair and impartial and independent judges."  James Williams of the Washington Bar Association also spoke in favor of the resolution saying it creates "transparency," and a "level playing field," and that similar measures have benefited Washington state greatly.   The recommendation was passed by the House of Delegates. 
Other Resolutions

Edward Haskins Jacob, VI., in recommendation 11-1, proposed amendment of section 1.2 of the ABA constitution to include as one of the purposes of the organization; "to defend the right to life of all innocent human beings, including all those conceived but not yet born."  The amendment was voted down. 

Recommendation 108A, sponsored by the Section of International Law, urges the United States to expand and broaden interaction with the International Criminal Court."  This cooperation would include participation in future sessions of the ICC's Assembly of State Parties and preparations for the Review Conference in 2010.  The recommendation was passed by the House of Delegates.

Recommendation 117B, sponsored by the Section on Individual Rights and Responsibilities, "opposes all federal, state, and territorial legislation and policies that interfere with a medical provider's ability to recommend and provide, with the patient's informed consent, medical procedures that, in accordance with reasonable medical judgment, best protect the patient's health."  This resolution was withdrawn by the sponsors, but will be introduced again in upcoming house meetings, according to a spokesman from the section.

Recommendation 104C, also sponsored by the Criminal Justice Section, "urges federal, state, local, and territorial governments to enact effective legislation, policies, and procedures," to limit the use of racial profiling in the law enforcement context.  This resolution was passed.   
Remarks from New ABA President Thomas H. Wells

Newly elected ABA president, Thomas H. Wells, provided comments accepting his new position during the House of Delegates meeting.  Wells thanked the work of previous president William H. Neukom, and the House of Delegates.  Wells also thanked his family and his colleagues at his law firm in Alabama.  Wells said that his firm is exceptional because they encourage all of their attorneys to be active in the Bar Association. 

Wells went through the various initiatives that the ABA has undertaken in recent years from the military pro bono project to erosion of attorney client privilege.  He also commended the ABA's involvement in the World Justice Project, "a multinational, multidisciplinary initiative to strengthen the rule of law worldwide." 

Wells also commented on the Bar's separation from partisan politics, saying he would work tirelessly in Washington DC to achieve ABA goals, no matter what the outcome of the November election "The American Bar Association is neither a D or an R, a red or a blue, a liberal or a conservative.  There is only one L word that describes us and that word is lawyers."

Wells also spoke about the "stubborn" federal judicial confirmation process, and urged the House of Delegates to consider recommendation 118 (outlined above).  Wells spoke about the importance of an independent judiciary and his dislike of the politics that have slowed confirmation proceedings in the past.

Reporter's Shield Discussion

Monday's House of Delegates session featured a panel discussion entitled "The Use of Subpoenas to Compel Reporters to Disclose Their Sources."  The panelists included Floyd Abrams, renowned First Amendment attorney, Jim Fleissner, professor of law, Mercer University, and Geoffrey Stone, professor of law, University of Chicago.  The panel was moderated by Connie Schultz, nationally syndicated columnist for The Plain Dealer and Creators Syndicate.

The discussion focused on the extent to which (or if at all) shield laws should apply to journalists.  The panel began by discussing the Supreme Court holding in Brandenburg v. Ohio.  Fleissner argued that the holding in Brandenburg, resolved the issue of whether there is an absolute reporter's shield.  Abrams on the other hand said he had "made a career" out of arguing otherwise saying "the court's are still in turmoil as to whether there is protection."  Stone commented that that he thinks the Brandenburg decision is wrong and that he would have joined the minority in the case. 

Stone went on to say that the relationship between a journalist and his/her source(s) are akin to the relationship between an attorney and a client, or a doctor and a patient.  It is only the definitions of the executive branch that run contrary this according to Stone, and those "are not law in the way I define law."

The panel then switched topics to discussing the recent "federal reporter's shield law" legislation.  Fleissner argued that the legislation provides too broad a definition for what constitutes a "journalist."  "You would be creating a "statutory privilege that can be claimed by nearly anyone" said Fleissner.  Fleissner also took issue with the degree of protection offered in the bill.  The bill does have a "harm to national security requirement," but that less is needed to subpoena information in a murder trial for instance. 

Both Stone and Abrams took issue with the Executive branch, accusing the administration of ignoring the role of the judiciary when making policies.  Abrams argued th executive has a "deep seated belief that there is no role of the judiciary," and that is what is holding up adequate shield law legislation and that is why there has been so much lobbying on the issue.  Stoned seconded Abrams points, saying that the executive branch is "power grabbing" on the issue, and needs to let the courts decide important legal matters.  

Stone then went on to give the reasons why he is in favor of absolute reporter's shield legislation.  Stone argued that there is public value at stake in being informed by the media, and that there is risk of a "chilling effect" if journalists fear uncovering controversial stories.  Stone also said that many critics are looking at the situation from the wrong starting point.  Stone used the example of an FBI agent attempting to obtain information on a kidnapping case. Stone argued that the reporter might not have received valuable information in the first place if sources were afraid to come forward because they feared investigation.

Fleissner said that you can't analyze the behavior of sources in a strictly "blind economic sense," pointing to historical examples such as the Watergate Scandal, where sources came forward without absolute shield laws in place.  Fleissner also responded to Stone's comments on the executive branch, saying that although he agrees somewhat, the courts are not often the best "check" on the executive.

Abrams ended the discussion by mentioning the effect that shield laws have on the news industry.  According to Abrams, the print media is under increasing pressure with the rise of the internet and that if they are not properly shielded, they may be unwilling to take risks on stories that would have legal consequences because of the cost of legal representation.  Shield legislation will allow reporters to take greater risks according to Abrams.