Tuesday, September 9, 2003
Conference of Delegates Votes to Oppose Racial Data Initiative
By a MetNews Staff Writer
The Conference of Delegates of California Bar Associations passed an emergency resolution Saturday opposing Proposition 54, the measure on next month’s ballot which would bar state government collection of racial data.
Though the measure passed on a near-unanimous voice vote and only a single speaker opposed it, the resolution—which was not part of the agenda set in advance—was called up for full debate and discussed for more than half an hour. Most resolutions are called up for only limited debate under the conference rules, and many are not debated at all, with the delegates adopting the recommendation of the conference Resolutions Committee.
On Sunday, in closing the three-day meeting at the Anaheim Convention Center, held in conjunction with the State Bar Annual Meeting at the Anaheim Hilton next door, conference chairperson and State Bar Board of Governors member Vivian Kral called the debate on the initiative a high point of the conference. She told the delegates they had stated the case against the controversial measure better than she had heard done in any other forum.
Proponents of the emergency resolution said the initiative measure would make it illegal for the courts to track the success of their efforts to achieve diversity and make it difficult for litigants in some types of cases to collect the data needed to prosecute discrimination claims.
Delegate Charles Bird of the San Diego County Bar Association said the name under which the measure has been promoted—the “Racial Privacy Initiative”—was misleading.
“Privacy is a code word that sounds good and this initiative has nothing to do with privacy,” Bird declared.
Though one speaker argued that there is no biological basis for racial classifications and the government should therefore not be using them, lawyer Tony Vittal of the Beverly Hills Bar Association said that contention missed the point that racial discrimination, whatever its basis, still exists.
“How do we prevent that kind of behavior unless we have the ability to track it?” Vittal asked.
The conference, in its first year of full independence from the State Bar of California, did not shy away from debating politically sensitive issues. Such debates had in past years raised the specter of illegal use of mandatory bar dues for political advocacy, but the conference is no longer funded from mandatory dues.
A check off on their dues bills allows, but does not require, lawyers to support the conference, but the conference must also raise funds to support its mechanisms for adopting positions on issues and its efforts to lobby for legislative action. Appeals for donations were voiced repeatedly from the podium and the floor.
A resolution opposing the death penalty and one calling for implementation of a procedure to identify mentally retarded defendants and bar application of the death penalty to them were approved without even being called up for debate. After the conference passed a death penalty abolition resolution in 1997, then-Gov. Pete Wilson vetoed the State Bar dues bill, sparking a crisis in State Bar funding that was only overcome when the bar “spun off” the conference as a separate entity.
A resolution calling for formation of a state commission to investigate the imposition of the death penalty—similar to the Illinois commission that led to a death penalty moratorium in that state—passed on a voice vote, as did one sponsored by the San Francisco Bay Area Chapter of the National Lawyers Guild calling on the state’s congressional delegation to oppose Bush administration policies seen as undercutting environmental protections. The latter proposal had initially been ruled not “germane” to the conference’s mission, but after an appeal conference officials changed their minds and allowed it to come to the floor.
The question of germaneness, under the new conference rules, replaces the question of “purview,” a rubric under which the issue of whether resolutions were relevant to the State Bar’s purpose had been considered in past years.
In the end only a single resolution was ruled not germane. Also proposed by the Bay Area Lawyers Guild chapter, it would have called for legislation requiring California’s governor to report annually to the president of the United States on public efforts to bring down unemployment.
The delegates rejected, by a voice vote, a resolution asking the state’s representatives in Congress to seek amendments to provisions of the Patriot Act and the Homeland Security Department Act that have been widely criticized by civil rights advocates as undercutting civil liberties. Some speakers said the measure was unnecessary, since the conference passed a similar resolution last year.
But the delegates spent most of their time on Friday, Saturday and Sunday debating proposed changes in civil procedure and the substantive law governing specific practice areas.
The Los Angeles County Bar Association delegation, chaired by Janet Frangie of Narvid, Scott, Schwartz & Frangie, sponsored 10 conference resolutions, of which six were adopted (two after being amended), one withdrawn, and three voted down.
A LACBA measure calling for shortening the time for filing a motion for summary judgment to 28 days prior to a hearing was amended after other delegations argued it was too soon to abandon the 75-day timeline, which went into effect only Jan. 1 but has been criticized as unworkable and blamed for discovery problems in fast-track courts. A version asking instead that the law be amended to clarify that judges have discretion to shorten the 75-day period won approval on a voice vote.
After amendment to require the use of a clear and convincing evidence standard, a LACBA-sponsored resolution to allow for double damages where property of a decedent, conservatee, minor or trust is wrongfully taken through undue influence or the commission of elder or dependent abuse was adopted on a voice vote.
Also on a voice vote, the delegates approved LACBA’s proposal to seek an amendment to the Government Code to allow administrative proceedings to be stayed when a related criminal or civil case is proceeding, but they narrowly rejected—after a division of the house, with supporters and opponents standing in turn—a related proposal which would have called for incorporating a procedure similar to summary judgment into administrative hearings.
LACBA’s call for an amendment to Code of Civil Procedure Sec. 720.440 which would permit a prevailing judgment creditor to recover attorney fees and costs incurred in contesting a third party claim in response to a writ of execution was adopted by a voice vote.
A LACBA proposal that the definition of employment records under Code of Civil Procedure Sec. 1985.6 be amended to include records maintained by labor unions was adopted without debate, as was the group’s suggestion that the Probate Code be changed to allow any interested party, even if not a beneficiary, to request notice of court proceedings regarding a trust.
But two LACBA measures aimed at changing the effect of out-of-state discipline on the medical licenses of California doctors were defeated by voice votes. The proposals would have called for changes in the Business and Professions Code to eliminate the conclusive effect of out-of-state discipline in a California disciplinary proceeding if the out-of-state action did not result from an adjudication on the merits or involve an admission of wrongdoing.
LACBA withdrew its proposal for a statutory fee schedule for conservator services in the face of opposition from the conference Resolutions Committee and several other county bar associations.
Only a few of the over 125 resolutions required a vote count, which is taken at the conference only when a standing division of the house leaves the outcome unclear.
One of the closest votes came on a measure, sponsored by the Bar Association of San Francisco, calling for an instruction telling civil jurors that in evaluating witness testimony they should “not consider any bias, prejudice, or preconceived ideas” they might have based on “race, color, religion, national origin, ancestry, age, physical or mental disability, gender, sexual orientation, sexual identity or socioeconomic status.”
That measure passed on Sunday by an 88-81 vote.
A similar proposal relating to criminal jury instructions had been defeated on a voice vote on Saturday after some delegates objected it would bar jurors from considering relevant factors like age and mental status in deciding credibility. But delegate James Brosnahan argued Sunday that jurors need to be told they are not free to disregard testimony based on race.
The debate seemed to indicate the change in outcome was not based on a difference between the civil and criminal contexts, but on the efforts of the sponsors to clarify that the proposed instruction was directed at group bias based on out-of-court experiences, and not an attempt to prevent jurors from considering matters affecting credibility they observed in court.
In other actions on Saturday and Sunday, the delegates:
•Adopted by a 116-95 vote a resolution calling for legislation to allow community service in lieu of restitution for homeless offenders.
•Passed, 78-71, a measure calling for amendments to Family Code Sec. 4320 to permit courts to consider contributions to an adult child’s post-secondary education as a factor in determining spousal support. The Court of Appeal barred the practice in +In re Marriage of Serna+ (2000) 85 Cal.App.4th 482.
•Adopted, 88-80, a resolution calling for an amendment to Labor Code Sec. 233 which would require employers to allow their employees to use sick leave for pregnancy, birth, or the adoption of a child. Opponents warned that since state law does not require employers to provide sick leave, adoption of the change could lead some to drop the benefit entirely.
•Approved, on a division of the house, a call for legislation barring state agencies from contracting with companies which do not offer benefits to the domestic partners of their employees identical to those provided to employee spouses.
•Approved, on a voice vote, supporting legislation to amend several codes to give registered domestic partners many of the rights and responsibilities of spouses.
•Approved, on a voice vote, a call for amending federal law to define “spouse” for immigration law purposes to include same-sex partners.
•Approved, without debate, a call for a “death with dignity” statute permitting qualified patients to end their lives with physician assistance. The resolution was sponsored by the Beverly Hills Bar Association.
•Approved, without debate, a recommendation to increase the jurisdiction of Small Claims Court to $10,000.
•Voted down, 86-97, a resolution calling for an amendment to the Probate Code to permit third parties to rely on an authentic signature on a trust certification even if it is not notarized.
•Voted down, 61-79, a proposal to require an independent review before a donative transfer may be made to a spouse, cohabitant or domestic partner who previously served as the donor’s care custodian.
•Defeated, on a division of the house, a proposal by the Beverly Hills Bar Association which would have called for legislative enumeration of the powers of temporary trustees.
•Defeated, on a division of the house, a call for support for a constitutional amendment making access to government records and information a fundamental right. The proposal tracked language from Senate Constitutional Amendment 1, which has been passed by the Senate and is before the Assembly, but opponents said the legislative measure has been modified and its language now differs from that in the resolution.
Resolutions passed at the conference meeting are lobbied for selectively, so passage does not guarantee a concerted effort in favor of enactment.
Copyright 2003, Metropolitan News Company