NATIONAL BAR ASSOCIATION HURRICANE KATRINA POSITION STATEMENT A. General Message Points The mission of the National Bar Association (NBA) is to promote the administration of justice and to protect the civil and political rights of the citizens of the United States. The 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 NBA calls upon the U.S. Government to immediately expedite its recovery response to the thousands of displaced Gulf Coast residents. 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 devastation of Hurricane Katrina has destroyed more than buildings. Families have been separated, and communities have been uprooted. People have lost their jobs, their health insurance benefits, and sources of income. The legal system is in shambles. 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 will closely monitor relief efforts, and we will demand action to redress disparate treatment of people of color and low economic status. The NBA will actively participate in Congressional and Bush Administration investigations into the inadequate response to the hurricane, and will demand that Gulf Coast residents fully participate in the recovery and rebuilding of their communities. NBA member and President of the NAACP Legal Defense Fund, Ted Shaw declared 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”. The NBA concurs and will work to shift the paradigm. We are committed to ensuring that the loss of lives and property will not be in vain. The NBA is taking the lead to ensure that the civil, legal and human rights of
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the Gulf Coast residents and families are protected. The following are significant civil rights and legal issues that must be immediately addressed. 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. To date, approximately 1,400 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, and we will provide our members with information regarding this process. Additionally, U.S.
Representative Maxine Waters (D-CA) has initiated the Search for Missing Children Project, through which she has retained private investigators and others to find missing children. We urge members to send contributions payable to “Children’s Defense Fund” to Honorable Maxine Waters, 2344 Rayburn House Office Building, Washington, D.C. 20515.
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2. Inadequate Access to Recovery Assistance 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. Two months after the hurricane, FEMA is still stumbling in its efforts to get relief aid to victims. Additionally, while HUD recently announced the Katrina Disaster Housing Assistance Program, it remains unclear how the approximately 2,500 public housing authorities across the country will administer the program. Thousands of evacuees face eviction from rental properties because they have not received federal aid. Immediate measures must also be taken to protect the elderly in shelters. We 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.
3. Health Care The NBA endorses the health care package to assist victims of Hurricane Katrina that has been introduced by Finance Committee Chairman Charles Grassley (R-IA) and ranking member Max Baucus (D-MT). This 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. NBA members are urged to contact their Congressional representatives to support this legislation. 4. Reinstate Davis-Bacon and Federal Contractor Affirmative Action Rules On October 27, 2005, the Bush administration announced that it would reinstate the rules requiring federal contractors to pay prevailing wages for Hurricane Katrinarelated work in the gulf coast. Bowing to pressure from both Republicans and
Democrats, the administration stated that Davis-Bacon would be reinstated on November 8, 2005. Shortly after Hurricane Katrina, President Bush issued an Executive Order suspending Davis-Bacon and waived affirmative action rules for federal contractors. The NBA and other national organizations called for an immediate reinstatement of DavisBacon, and the enforcement of affirmative action and safety rules for federal contracts.
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We joined the NAACP, National Urban League, Rainbow Push and the NAACP Legal Defense Fund 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. Displaced residents and businesses have the right to return to their homes, reclaim their land and property, resume their livelihoods, and to priority for jobs, training and contracts. After being severely criticized, FEMA recently announced that it would seek new bids on the multi-million dollars in federal contracts that had originally been awarded with no competition to companies that have prior relationships with the government. Congressman George Miller (D-CA), the Senior Democrat on the House labor committee, sought a vote to undo the President's executive order suspending the DavisBacon law for areas affected by Hurricane Katrina. Other actions taken by the Bush administration undermine gulf coast workers, including the suspension of affirmative action rules and safety standards, and we will continue to advocate that these actions be reversed. 5. Property Issues The NBA is closely monitoring the situation in the gulf coast to prevent the use of eminent domain to displace long-established communities. We are concerned that
governments will use eminent domain to displace long-established communities and remove low-income residents from valuable 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, or increased tax base. One potential problem is in St. Bernard Parish. The Parish has suffered extensive damage due to a massive oil spill of at least 10,000 barrels of oil from a Murphy Oil refinery. 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
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expansion prior to Katrina. Through the use of eminent domain, the refinery could get its wish. In addition to this issue, 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. Our NBA Hurricane Katrina Pro Bono Services and Volunteer Plan has been disseminated on CD-rom, and NBA members are encouraged to conduct legal clinics for hurricane survivors in their home towns.
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Consumer Protection Issues
With the loss of their jobs, many gulf coast residents will not be able to pay their bills. The NBA believes that legislation will be needed to address several issues
including: Mortgage/Foreclosure Protection Loan Forbearance/Distribution Interim Lending Practices Government Entity Responses (e.g. Fannie Mae, HUD) Fraud, Scams and Identity Theft Eviction of Renters that have been displaced to other locations
In addition to these issues, the NBA is concerned that the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 will adversely impact these residents as they are struggling to rebuild their financial lives. Consequently, 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 NBA Position Statement, copies of the
proposed legislation and additional relevant articles are attached).
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Congresswoman Stephanie Tubbs Jones, member of the House Way and Means Committee, has introduced legislation to aid hurricane survivors in repairing their financial lives. The proposed measure is a tax relief, incentive bill to assist Katrina victims. (A copy of the bill and summary is attached). Additionally, on September 23, 2005, the Katrina Emergency Tax Relief Act of 2005 (KETRA) was signed into law. In addition to providing tax relief and incentives to hurricane survivors, donors making cash gifts to charitable institutions from August 28 through December 31, 2005, can claim charitable deductions of up to 100 percent of their adjusted gross income. These deductions are not limited to disaster relief contributions.
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. 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 rules that will permit courts in areas devastated by Hurricane Katrina to temporarily relocate to another location and resume business as soon as possible, and will keep our members abreast of these measures through our Website. Some of the emergency measures are described below: Relocation of Court Operations Louisiana Supreme Court temporarily relocated to Baton Rouge U.S. Court of Appeals for the Fifth Circuit temporarily relocated to Houston Emergency Orders Louisiana Executive Orders No.KBB 2005-32 and 48. All deadlines in Legal proceedings, including peremptive periods in all courts, administrative agencies, and boards are suspended from August 29, 2005 through Sunday, October 25, 2005.
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Supreme Court of Louisiana Resolution – dated October 25, 2005 provides that any Louisiana judge may lift or shorten the suspension periods in the above referenced Executive Order in accordance with the procedure outlined in the Resolution. Supreme Court of Louisiana Order – dated October 25, 2005. The Louisiana Supreme Court will be closed through November 25, 2005, and the period from August 29, 2005 through November 25, 2005, will be considered a court holiday for purposes of computing the timeliness of filings. Beginning November 2, 2005, filings will be accepted at the temporary location of the Court in Baton Rouge. Texas Emergency Order On Enlargement of Time – The Texas Supreme Court issued an order and per curiam opinion providing for extending deadlines because of courthouse closures and other effects from Hurricane Rita. This Order expires on October 31, 2005, unless extended by the Court.
8. Disruption of Law Practices 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. For example, 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. Several issues face these attorneys as they attempt to maintain their practices: 1) how long can they practice law in a different jurisdiction without a license to practice in
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that jurisdiction; and 2) should they be required to take the bar exam for their temporary jurisdiction if they do not intend to practice the law of that jurisdiction? 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. NBA members drafted recommendations advocating a waiver that were submitted to the Texas Supreme Court. (See attached letter containing recommendations to Texas State Board of Law Examiners Vice President and Past NBA President Lawrence Boze). On September 30, 2005, The Texas Court Supreme issued an Emergency Order permitting lawyers displaced by Hurricane Katrina or Rita to continue representing clients from temporary offices in Texas until May 31, 2006. Their practice from Texas locations is limited to serving clients from their home states under the laws of those states. Attorneys covered by the Order must register with the State Bar by November 7, 2005. Additionally, the NBA is working with other national organizations to establish funding to assist affected lawyers, match displaced firms and attorneys with offices and firms that 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. Region V is assisting members affected by Hurricane Katrina by distributing Walmart Gift Cards.
9. Protection of Constitutional Rights Thousands of defendants awaiting trials and hearings are in legal limbo without courts or lawyers. These defendants 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 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 are certainly instances of thugs
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committing crimes in the hurricane aftermath, innocent citizens have also been falsely accused. Law enforcement has been under a heavy strain. Although their resources are diminished, police must not falsely accuse anyone of committing a crime. 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. Additionally, interviews conducted by the NAACP Legal Defense Fund lawyers revealed widespread claims of abuse against pretrial detainees who had been evacuated to Jena Correctional Facility from Jefferson Parish Prison after Hurricane Katrina. Many of these prisoners were being held on municipal charges, such as public intoxication and minor traffic offenses. The NBA supports the Legal Defense Fund’s demand that the Justice Department conduct an immediate independent investigation into these serious allegations of human and civil rights violations, and that these detainees be removed from Jena. Finally, Judge Arthur L. Burnett, Sr., NBA member and Nation Executive Director of the National African American Drug Policy Coalition, has recommended that the NBA support a proposal that all Hurricane evacuees who were on probation or parole report to the probation or parole authorities in the jurisdiction where they are relocated. As a result of this voluntary good faith action, authorities are urged to consider permitting the individual to remain at liberty if appropriate. Further, Judge Burnett recommended that judges and attorneys become knowledgeable regarding available providers of mental and emotional health care services to address post-traumatic stress syndrome and other mental and emotional disorders so that referrals can be made to those in need. (See attached letter from Judge Arthur L. Burnett, Sr.)
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10. Legal Education Southern, Dillard, and Xavier Universities were forced to cancel their fall semester due to the hurricane. For years, New Orleans has been a hub of black colleges producing doctors, nurses, scientists, teachers and social workers. While their city counterparts, Tulane and Loyola have large endowments, Southern, Dillard and Xavier rely heavily on student tuition to operate. Federal aid, private donations and alumni support are urgently needed to help these schools reopen next semester, and NBA members are urged to contribute. 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.
11. Post-Katrina Voting Rights With Louisiana residents scattered across the country, a significant issue is how upcoming elections will be conducted. The New Orleans mayoral election is currently scheduled for February 2006, and mid-term Congressional elections are just a year away. The NBA will monitor this issue to ensure that voting rights are protected.
12. Louisiana Supreme Court Emergency Pro Bono Civil Legal Assistance Rule This rule permits non-admitted attorneys to provide pro bono legal services in Louisiana from August 29, 2005 through February 28, 2006. This rule applies to civil matters, and expressly excludes criminal matters. Additionally, the services may only be provided through registration with the Louisiana State Bar Association or the American Bar Association Young Lawyers Division Program. The NBA opposes the exclusion of criminal matters from the rule, which can operate to deny due process. Further, it is our understanding that the ABA contract with FEMA places significant limitations on the services that can be provided. For example, attorneys working under the ABA program may be prohibited from appealing FEMA denials of client requests for emergency assistance. We are concerned that the restrictions placed by FEMA on the
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ABA program may impede the ability of attorneys to zealously represent their clients. We are working with the Lawyers Committee on Civil Rights to obtain clarification and point out these problems with the Order, and will follow-up with recommendations to our members.
October 31, 2005
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