Report from Toronto: Inside the ABA House of Delegates Meeting
by Troy R. Rackham
Last year, the Denver Bar Association selected me to serve as a delegate to the American Bar Association House of Delegates. I was at once delighted and fearful. I was delighted to have the good fortune to be chosen, but I was fearful because I was not quite sure what being a delegate meant. I had visions of being sent to some foreign meeting where everybody else spoke a different language and followed different customs. Fortunately, the House of Delegates was much less overwhelming and foreign than I had imagined.
Now that I have two House of Delegates meetings under my belt, I thought it good to write an article and explain what the House of Delegates is, generally, and particularly what occurred at the House of Delegates during the ABA’s Annual in Toronto from Aug. 4 to Aug. 9. This article discusses each of these topics in turn.
The ABA House of Delegates: What is It?
If you are a lawyer like I was before I was selected as a delegate, the first question you may have is what is the ABA House of Delegates? That is a common and good question.
The ABA House of Delegates is like the Congress of the ABA. The House is the policy-making body of the ABA. It proposes, considers, debates, and enacts policy for the ABA.The policies generally are then effectuated through the administration, sections, councils, and committees of the ABA. Established in 1936, the House meets twice a year; once at the ABA’s Midyear and Annual Meetings.
There are 561 members of the House of Delegates, composed of state delegates; state bar association delegates; local bar association delegates (like me); delegates from ABA Sections, Divisions, and Conferences; and delegates-at-large, among others. The delegates may propose, debate, and vote on specific issues that affect lawyers in the ABA. If the House approves a proposed resolution, it becomes a part of the official policy of the ABA. The House also is involved in selecting the leaders of the ABA and, of course, of the House itself. There are a number of other functions and features of the House that I would be happy to discuss with anyone who has an interest, but in the interest of brevity purposes, I do not discuss here.
What Did the House of Delegates Do at the ABA Annual Meeting?
The House had a very full agenda and considered more than 50 resolutions. A complete description of the resolutions considered, and whether the resolutions were enacted, can be found at abanow.org/issue/page/3/?annual-meeting-2011&view=hod. I encourage all who are interested to go to the website and browse all the issues considered. Although many of the issues were not controversial, some were. Rather than discuss all the issues that came before the House, I will simply attempt to identify the highlights of the meeting.
Calls for Civility from Former Foes
One of the more interesting issues that came before the House on the first day of the meeting was the ABA’s awarding of the ABA Medal to David Boies and Theodore B. Olson, who serve as co-chairs of the ABA Task Force on Preservation of the Justice System. Boies and Olson have worked together on several cases in the past, but in particular, they have received much attention for their representation of two California couples who were precluded from marrying because of Proposition 8. More recently, they worked together to help resolve the labor dispute between the NFL owners and players.
Their representation that gained the most notoriety, however, was probably their representation of the opposing parties in the Bush v. Gore case, which arose out of the 2000 presidential election. After they each was awarded the ABA Medal, both Boies and Olson addressed the House of Delegates. They spoke of the great challenges that face this profession, including the funding challenges that nearly every court system in the country is facing. Boies discussed the need to foster and encourage civility among lawyers and to “reinvigorate ourselves to try to protect the things that made our justice system great and our profession great.” Olson commented on the fact that “our profession is based upon honest and admirable advocacy,” but that anger and incivility can corrode our profession. The speeches were invigorating, enlightening, and encouraging. This was, without a doubt, one of the best parts of the House’s session.
Agenda Items Considered by the House
As mentioned earlier, the House had a full agenda. In between interesting and important speeches by ABA President Stephen N. Zack,. Boies, and Olson the House got to work. The House considered and adopted a number of resolutions affecting the legal profession. Although I do not detail all of the resolutions considered or adopted by the House, I discuss many of the more interesting or controversial resolutions in turn.
First, the House considered and adopted Resolution 302, proposed by the ABA Task Force on Preservation of the Justice System. The resolution urges state and local bar associations to document the impact of funding cutbacks to the judicial systems and to respond to the ramifications of funding shortages. The resolution highlighted one of the critical features that permeated the ABA Annual Meeting: the funding crises affecting the court system nationwide. Some of the examples given to describe this funding crisis were stark. For example:
There are many other similar examples. Consequently, the House passed Resolution 302 unanimously and is supportive of the task force’s efforts to combat the funding crisis affecting the court system.
Immigration and Citizenship
The House also considered Resolution 303, which was proposed by the Commission on Hispanic Legal Rights and Responsibilities and urged Congress to reject any proposal to alter the Fourteenth Amendment, relating to the granting of U.S. citizenship.
The House considered and adopted several resolutions relating to legal education. Specifically, the House considered Resolution 10B, which urged law schools, firms, and CLE providers to provide the knowledge, skills and values that are required of successful modern lawyers. It also urged legal education providers to implement curricular programs to develop practice-ready lawyers though enhanced clinical courses. The resolution was debated, and ultimately amended, after which it was overwhelmingly passed the House, although there was some opposition.
The House also considered Resolution 111A, which urges Congress to pass legislation that would assist students with significant legal education debt by extending to holders of commercial lender loans the same repayment schedules as those with federal student loans. It also urged the creation of loan forgiveness programs for public service lawyers and asked Congress to raise or eliminate the income level associated with the federal income tax deduction for interest paid on qualifying student loans. The resolution passed the House with limited opposition.
Finally, the House considered and adopted Resolution 111B, which was proposed by the Young Lawyers Division, among others. The resolution urges all law schools to accurately report employment data and identify whether graduates have full- or part-time employment, whether in private or public sector, and whether employment is permanent or temporary. Further, the resolution urged the collection of additional costs related to law school, such as living expenses, and posting this information on the schools’ websites. The resolution passed with overwhelming support.
The House also considered, and ultimately approved, Resolution 107, which urged the ABA to support efforts at the state level to establish clear procedures for judicial disqualifications and the implementation of procedures to review a judge's decision to reject a disqualification request. The resolution is particularly important in those states where heated and expensive judicial elections cause concerns about a judge’s independence in certain circumstances.
Additionally, the House considered Resolution 123, which adopts Model Time Standards for State Courts. Resolution 123 was supported by the Denver Bar Association, and Colorado’s own Judge Terry Ruckriegle spoke on behalf of and urged the adoption of the resolution on behalf of the Judicial Division. Judge Ruckriegle has worked hard on the Model Time Standards for years. It was quite pleasing that the House approved Resolution 123, and universally appreciated Judge Ruckriegle’s and the division’s work.
Language Access to the Courts
Given the funding crisis that is gripping court systems nationwide, one of the more controversial issues that came before the House of Delegates was Resolution 122, which called on courts to implement services for non-English speakers. The House overwhelmingly supported the concept of the resolution; the problem was funding and burdening an already overwhelmed court system with a resolution that would immediately require courts to hire interpreters and staff to ensure language access to courts.
Ultimately, the Conference of Chief Justices and the Conference of State Court Administrators urged the House to postpone consideration of the resolution indefinitely because of the funding crisis. A vote on the Resolution ultimately was postponed, but it is likely that it will be considered at the ABA Midyear Meeting in New Orleans in February.
Finally, undoubtedly the most controversial measure before the House of Delegates was Resolution 110B. Proposed by the Uniform Law Commissioners, it sought the ABA’s approval of the Uniform Collaborative Law Rules/Act, which was promulgated by the National Conference of Commissioners on Uniform State Laws in 2010. Proponents of the resolution argued that the proposed rules/act should be considered as appropriate legislation or rules for those states desiring to adopt the specific substantive law relating to collaborative law.
The resolution was supported by the Family Law Section, although in a divided vote, as well as a number of other sections. Likewise, there were many opponents of Resolution 110B, including many in the Litigation Section. The debate on the resolution was lengthy, interesting, and at times, passionate. Ultimately, the House voted by close to a 2-to-1 margin not to adopt Resolution 110B. Consequently, the Collaborative Law Resolution failed the House.
Serving as the DBA’s delegate to the House of Delegates has been very interesting and rewarding. I hope this Article has sufficiently described the House of Delegates so that DBA members have a better understanding of its role and its importance to the legal profession generally. I also hope this article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the recent annual meeting.
As an DBA delegate, I am open to and look forward to hearing any input or questions from any of the constituents of the DBA on any issues that may be before the ABA House of Delegates. I also thank the DBA for its support of the ABA’s House of Delegates.
Troy R. Rackham is the DBA’s delegate to the ABA House of Delegates. He is of counsel at Fennemore Craig. He may be reached at email@example.com.