Hurricane Katrina Response Issues
A. General Message Points The National Bar Association (NBA) is protecting the civil and political rights of gulf coast residents that were left behind to fend for themselves in the aftermath of Hurricane Katrina. Senator Barack Obama pointed out that many gulf coast residents could not simply fill their SUVs with $100 of gas and check into a hotel with a credit card. The fact that many of Katrina's victims are African Americans and/or low-
income families is no surprise and causes us to suspect that the slow and inadequate response to the destruction was not simply incompetence. The people of the Gulf Coast region, regardless of race and economic status, deserve the best America can offer, and we have not seen that to date. The NBA calls upon the U.S. Government to expedite its response to the suffering and death taking place before our eyes. Efforts to date have been grossly inadequate. We urge our government leaders and law enforcement officials to be rational in securing public safety. Any order to shoot criminal suspects on sight is inconsistent with due process and the rule of law. The NBA will continue to monitor relief efforts closely, and we will demand action to redress disparate treatment of people of color and low economic status. We will also participate in the investigations commenced by Congress and the Bush Administration to ensure that they receive information that will allow the American people and the world to see how we serve our people in times of crisis, and how to improve that service in the future. The NBA concurs with NBA member and President of the NAACP Legal Defense Fund, Ted Shaw’s declaration that “It is time for a paradigm shift in which we commit ourselves to the adoption of priorities and policies which leave no person behind in this country, mired in poverty and shackled by racism”. We are committed to ensuring the loss of lives and property will not be in vain. The following are significant issues that must be immediately addressed.
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1. Separation of Children from Families The NBA is concerned that unaccompanied minors, the most vulnerable victims of Katrina, are suffering because of the unconscionable decision by FEMA to separate families in their relocation efforts without adequately documenting the location of their parents or guardians. This situation is further exacerbated by the fact that many of these minors have been placed in foster homes in the Birmingham, Alabama area as well as in states across the country. Too many families were separated in an arbitrary and
capricious manner in blatant disregard for the sanctity of the black family unit. Currently, more than 1,800 children are separated from their families. The NBA demands that FEMA correct this problem immediately by implementing comprehensive and effective efforts to ascertain and document the whereabouts of separated family members. FEMA must then put forth every effort to transport parents to reunite them with their children and other loved ones. The NBA further demands that these children and families undergo any counseling they need to address any fear, separation anxiety, attachment disorder(s) and post traumatic stress disorder(s) they may have suffered as a result of FEMA’s utter disregard and deliberate separation of these families. The NBA encourages its members to serve as guardians ad litem to protect these children and aggressively advocate for the reunification of these families.
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Equality in distribution of assistance funding
There are still staggering numbers of gulf coast residents that are not receiving sorely needed federal, state and local recovery assistance, and this situation must be immediately rectified. Nearly four weeks after the hurricane, FEMA is still stumbling in its efforts to get relief aid to victims. Additionally, immediate measures must be taken to protect the elderly in shelters. We also call upon NBA lawyers and other national law groups to step up to serve as representative payees for social security and other beneficiaries of government assistance programs.
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3. Health Care The NBA endorses the health care package to assist victims of Hurricane Katrina that will be introduced by Finance Committee Chairman Charles Grassley (R-IA) and ranking member Max Baucus (D-MT). The package will expand Medicaid eligibility and provide 100 percent federal reimbursement for Medicaid coverage to states that have seen an influx of displaced persons, the poorest of the poor.
4. Equal Participation in the Recovery and Reconstruction Efforts We join the NAACP, National Urban League and the NAACP Legal Defense in urging fairness and inclusion in the expenditures of federal funds for Katrina recovery, and that African Americans and other people of color fully participate in recovery and reconstruction efforts.
5. Property Issues There will be a torrent of legal issues having to do with property rights, insurance, and environmental concerns. The NBA has established a program to provide pro bono legal services and referral clinics in gulf coast areas, and other locations where residents have been relocated. (A copy of our NBA Hurricane Katrina Pro Bono Services and Volunteer Plan is attached). We must closely monitor the situation in the gulf coast to prevent the use of eminent domain to displace long-established communities. Land loss issues could result from the city’s use of its eminent domain power to take property. Recently, in Kelo v. City of New London, the U.S. Supreme Court held that private property could be taken and given to a privately owned developer for redevelopment. The City did not have to demonstrate that the property would be put to a public use. Instead, the City was only required to demonstrate that the property would provide a public benefit. This benefit could take the form of jobs, economic development, increased tax base, etc. Therefore, owners in the affected gulf coast areas must be wary of a city using its eminent domain power to condemn property and transfer ownership to a corporation. For example, in St. Bernard Parish, while the floodwaters are receding, it will take months to clean up the mess caused by a massive oil spill from a Murphy Oil refinery, which
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authorities last week measured at least 10,000 barrels. Many areas in this parish are likely to be bulldozed and the issue of whether or not to rebuild has not been resolved. Ironically, the Murphy Oil Refinery had sought expansion prior to Katrina. Through the use of eminent domain, the refinery could get its wish.
6. Consumer Issues Postponement of the Effective Date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 The NBA supports a general stay of the effective date of the Act, and further supports the bills sponsored by Reps. John Conyers, Jr., Louise McIntosh Slaughter and Russell D. Feingold. (Our position statement, copies of the proposed legislation and additional relevant articles are attached). Katrina Assistance Tax Relief Incentives for Necessities Act of 2005 Congresswoman Stephanie Tubbs Jones, member of the House Way and Means Committee, has introduced a tax relief, incentive bill to assist Katrina victims. (A copy of the bill and summary is attached). Other consumer protection issues that may require legislative action and litigation challenges to protect the interests of hurricane victims include the following: Mortgage/Foreclosure Protection Loan Forbearance/Distribution Interim Lending Practices Government Entity Responses (e.g., Fannie Mae, HUD) Fraud, Scams and Identity Theft
7. Disruption of Ability of Courts to Conduct Judicial Business In many areas, the legal system is in shambles, and judicial business has come to a complete halt. In Louisiana, the state supreme court was under water, as well as many of the city and district courts. Because of the extensive hurricane damage, it is
impossible to predict how long the disruption of the ability of many courts to conduct business may continue.
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This problem is being addressed as some courts are finding other locations to conduct business. Other jurisdictions have entered Orders temporarily suspending litigation proceedings. We support emergency legislation that will permit courts in areas devastated by Hurricane Katrina to temporarily relocate to another location and resume business as soon as possible. Some of these measures are highlighted below.
Relocation of Court Operations Louisiana Supreme Court moving to Baton Rouge U.S. Court of Appeals for the Fifth Circuit moving to Houston
Emergency Orders Louisiana Executive Order No.KBB 2005-32- All deadlines in legal proceedings, including peremptive periods in all courts, administrative agencies, and boards are suspended from August 29, 2005 through Sunday, September 25, 2005.
8. Displaced Attorneys It is our understanding that as many as 7,500 lawyers, including more than 5,000 in Louisiana alone, are displaced by the hurricane, and that more than 60% of these lawyers are African American. It may take several months before the thousands of lawyers displaced by Hurricane Katrina can return to their old practices, if ever, and their temporary offices in nearby states may not last that long. The Georgia Bar Association has said that lawyers from Louisiana, Mississippi and Alabama can set up offices in Atlanta to temporarily serve their clients, but long-term work would require they get a Georgia license. The NBA recommends consideration of waiver of bar exam requirements for a specified period of time or temporary reciprocity approaches to address this problem in the short term.
On September 2, 2005 the Supreme Court of Texas issued the following Order:
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Until further order of this Court, and notwithstanding Texas Government Code chapter 81, subchapter G, an attorney holding a valid law license issued by Louisiana, Mississippi, or Alabama, who is in good standing with the attorney’s respective state bar, and who is displaced from the attorney’s home jurisdiction due to Hurricane Katrina, is permitted to practice law for 30 days from the date of this order from a location in Texas as if the attorney were located in the state in which the attorney is licensed.
Under this Order, a lawyer holding a valid law license issued by Louisiana, Alabama and Mississippi may only represent existing clients pertaining to matters that are governed by their resident state law while presently living in Texas as a result of Hurricane Katrina. This Order is set to expire on October 2, 2005. We believe this Order is too narrow to adequately support many lawyers who have been displaced to Texas. This is especially the case for solo and small firm lawyers. This Order should be expanded in two significant areas: 1. The Order should be extended beyond 30 days. A reasonable time should be established to allow lawyers who have been displaced to Texas to continue to practice law for up to one year.
2. Displaced lawyers should be allowed to establish a practice within the State of Texas since many have lost all or a significant portion of their practice as a result of Hurricane Katrina. A specific period of time should be set before a lawyer is required to sit for the Texas Bar Exam. (6-9 months) Licensed Texas lawyers may be assigned to supervise these lawyers during this interim period.
(See attached letter containing recommendations to Texas State Board of Law Examiners Vice President and Past NBA President Lawrence Boze).
Additionally, we are working with other national organizations to establish funding to assist affected lawyers, match displaced firms and attorneys with offices and firms that 6
have space to donate, and establish funding to help lawyers that do pro bono work or take in displaced lawyers. Our NBA Website Hurricane Katrina Aid Resource Center has posted information regarding lawyers needing office space and lawyers that have available space. 9. Rights of the Accused Thousands of prisoners awaiting trials and hearings are in legal limbo without courts or lawyers. These prisoners must be afforded equal protection, due process and speedy trial rights. Additionally, the NBA advocates the creation of a registry of lawyers and their clients that were incarcerated prior to Katrina to reconnect clients with counsel. Additionally, we have all seen the inequitable depiction of people of color referenced as “looting” establishments for food, while Caucasian residents are described as “finding” food. We witnessed the use of excessive force in situations where people were desperately struggling only to survive. While there have been instances of thugs committing crimes in the hurricane aftermath, innocent citizens have also been falsely accused. For example, the 73-year-old grandmother that spent 16 days in prison held on a $50,000 bond for allegedly stealing food from a deli strongly asserted her innocence when interviewed by MSNBC Dan Abrams. Her attorney maintains that she did not steal anything, and that the food she was arrested with was part of the supplies that she took when she evacuated her home. We will protect the rights of those that have been falsely accused.
10. Suspension of Davis-Bacon Congressman George Miller (D-CA), the Senior Democrat on the House labor committee, will seek a vote to undo the President's executive order suspending the DavisBacon law for areas affected by Hurricane Katrina. Davis-Bacon requires federal contractors to pay its workers at least the prevailing wage on construction projects, including highways, buildings, and bridges. The prevailing wage is the average wage for specific jobs in a local area; it is not the union wage rate. Suspending Bacon-Davis will mean a lowering of wages for these workers, and ironically, ignores the fact that many of the displaced could not evacuate due to their own 7
poor economic conditions. Congressman Miller is also asking for transparency in the contracts made by FEMA and other federal agencies for rebuilding in order to determine what wage rates are being paid by contractors.
11. Legal Education Our NBA members are assisting law students from the affected areas to resume their studies at law schools across the country. NBA members Pam Boston and Robert Clayton, are reviewing the issues associated with displaced students from the affected areas, including tuition and curriculum issues, and will provide us with their recommendations.
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