BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

In the fall of 2015, the BBA Council voted to support legislation that would ban licensed health care professionals from engaging in efforts to change sexual orientation and gender identity, often called conversion or reparative therapy. The BBA has a long history of defending principles of non-discrimination and equal protection, and as an organization of attorneys, we recognize that young people should enjoy the fundamental human right to be free from harmful and ineffective “treatments” intended to change their sexual orientation or gender identity.

As such, we are proud to be able to continue our advocacy on the ban by supporting H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny, two identical bills that would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. This week we had the opportunity to present testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities.

Why we support H.1190 and S.62

As we’ve outlined in the past, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought, and poses a high risk of seriously harming patients, especially minors.

The use of conversion therapy typically occurs within the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will typically be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes. These youth experience significantly higher rates of depression, substance use, suicide attempts, as well as homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” To date, nine states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the tenth state to enact these protections.

Legislative Hearing

At a hearing on June 6, many proponents of the bill, including psychiatrists, pediatricians, social workers, survivors of conversion therapy, LGBTQ-rights advocates, and legislators showed up to support the conversion therapy ban for minors. Following testimony from these supporters, opponents of the ban expressed concern that the bills would restrict legitimate therapies and infringe on First Amendment rights of free speech and free exercise of religion.

The testimony from supporters lasted for more than two hours and included deeply personal stories presented by those who had survived the use of conversion therapy methods like physical aversion and electroshock therapy. The harms that result from the use of these and other practices aimed at changing one’s sexual orientation and gender identity were addressed by a number of the witnesses, including a clinical child psychologist, representatives from the Boston Children’s Hospital, and pediatricians from the Massachusetts Chapter of the American Academy of Pediatricians. Witnesses from MassEquality, PFLAG, the Children’s League of Massachusetts, and the Massachusetts Teachers Association presented further reasons why passage of these bills is necessary to protect the youth of the Commonwealth. In addition, a panel made up of 12 representatives presented on the need for the legislation and the broad support these bills have in the Legislature. Ninety legislators have signed on to H.1190 and twenty-eight have signed on to S.62 this session.

We were lucky enough to be joined by Elizabeth Roberts of Roberts & Sauer, a member of the Family Law Section Steering Committee, who presented testimony on behalf of the BBA alongside Ben Klein a Senior Attorney  with the GLBTQ Legal Advocates and Defenders (GLAD).

 

Elizabeth Roberts presents testimony in support of H.1190 and S.62 before the Joint Committee on Children, Families, and Persons with Disabilities.

While deferring to the many experts and survivors to explain the psychosocial harms that result from the use of conversion therapy on minors, Roberts and Klein spoke on the legal aspects of the legislation. First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power.

For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, just last month, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, as both Roberts and Klein told the Committee, the existing case law makes it clear that the bills, like H.1190 and S.62, are valid exercises of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. As noted above, the BBA recognizes the  fundamental human right to be free from abusive practices meant to change one’s identity or expression of that identity and will continue to advocate for these bills to protect this right for minors in the Commonwealth.

We appreciated the opportunity to share support of the bills with the Committee and will keep you posted on the status of this important legislation.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Senate Approves FY18 Budget

From the release of the Governor’s proposed budget to the House Ways and Means and final budgets and our advocacy in between, we’ve been keeping you posted as the Commonwealth moves closer to a final Fiscal Year 2018 (FY18) budget.  This time, our attention turns to the Senate, which has been busy with its own budget process over the past few weeks. First, the Senate Ways and Means Committee released their version of the budget, then amendments were filed and debates took place, and finally, last Thursday, the Senate approved its $40.4 billion budget. Now, it’s on to the Conference Committee to reconcile the differences between the House and Senate budget, and, once this version is approved by both chambers, it will be on to the Governor to review and either sign as is, sign with line-item vetoes and proposed amendments, or veto.

Two BBA budget priorities were the focus of some debate during this process:

Massachusetts Legal Assistance Corporation (MLAC)

If you’ll recall, MLAC, the largest funder of civil legal aid in the Commonwealth, initially requested a $5 million increase to a $23 million appropriation in the FY2018 budget. The Governor’s budget allocated for a 1% increase, or $18,180,000. The House Ways and Means Committee proposal appropriated $1.5 million, which, with the help of an amendment filed by Representative Ruth Balser and approved unanimously, grew to $20 million in the final House budget.

Initial news coming out of the Senate budget process was not quite as positive, however, as the Senate Ways and Means Committee proposal only provided for an $18 million appropriation for the MLAC line-item (0321-1600).  Thankfully, civil legal aid has a great number of strong supporters in the Senate, and Senators Cynthia Creem and William Brownsberger filed Amendment #896, asking for a $2 million increase to the  MLAC appropriation.

Thanks to all of you who reached out to your Senators urging them to support  civil legal aid and sign on to this Amendment! In the end, Senators Barrett, Chang-Diaz, Rush, Eldridge, Cyr, Moore, L’Italien, McGee, Lewis, Welch, Gobi, Lesser, Brady, Flanagan, Lovely, and Boncore signed on as co-sponsors of the $20 million MLAC appropriation.

During the debate, Senator Creem explained why funding for civil legal aid matters. She pointed to the much needed assistance it provides to some of the Commonwealth’s most vulnerable individuals and communities, including those who facing domestic violence, eviction, deportation, inadequate health care, wage theft, and discrimination. She also noted that nearly two-thirds of eligible residents are now turned away and that every dollar invested saves the state between $2 and $5. Be sure to check out the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts Investing in Justice Report for full details on how civil legal aid helps and why it’s a smart investment, including the full econometric basis for the return-on-investment figures that Senator Creem cited. Senator Brownsberger concluded the debate by stating that, given what is happening at the federal level, with the White House proposing to eliminate federal funding for civil legal aid, state funding is needed now more than ever.

We are happy to report that, thanks to your outreach and the strong support from the full Senate, the Amendment was adopted unanimously and the final MLAC line-item came in at $20 million, matching the House budget!

Statewide Expansion of the Housing Court

As you know, the statewide expansion of the Housing Court, with all its accompanying benefits,  started off the budget process with a $1 million appropriation in the Governor’s budget, slightly below the Trial Court’s requested $1.2 million. Unfortunately, however, the House budget did not allocate any funds for this expansion, nor did it include language authorizing the expansion.

We are pleased to report that the Senate Ways and Means budget brought back the $1 million appropriation for the statewide expansion of the Housing Court line-item item (0336-0003). However, this line-item was up for debate as Senator Bruce Tarr filed Amendment #897, to zero out the Housing Court expansion appropriation. During the debate, Senator Tarr began by noting that he believes in the Housing Court and thinks it is a cost-effective resolution but was merely concerned about balancing the budget.

In response, Senator Karen Spilka, Chair of the Senate Ways and Means Committee, noted that her district, along with one-third of the state’s population overall, does not have access to Housing court, which specializes in complex housing issues, enforces codes, protects people from homelessness,  and addresses mortgage fraud among other important matters.  She further provided that Housing Court is both effective and efficient, as it has the lowest cost per case of the whole Trial Court and houses programs like the Tenancy Preservation Program, which saves the State millions of dollars each year by reducing the prevalence of expensive emergency shelter stays. Senator Tarr ultimately accepted this justification and withdrew his amendment.

Facing no other objections, the statewide expansion of the Housing Court ended up with a $1 million appropriation in the Senate budget!  Now the Conference Committee will have to consider whether to adopt the Senate’s version.

As the budget moves on to the Conference Committee, we’ll keep you posted about these items and any changes in our other priority areas, including the Trial Court and the Committee for Public Counsel Services (CPCS), which remained relatively level through the Senate process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Law Day Dinner: Celebrating the Leaders who Shape and Protect the Rule of Law

Last week, the BBA hosted its annual Law Day Dinner, which brings together members of the bar, the bench, and the business communities to recognize leaders who shape and protect the rule of law. The event is always one of the highlights of the year here at the BBA, and this time was no exception. The dinner included a keynote speech delivered by Congressman Seth Moulton and presentations of the Thurgood Marshall Award to Elaine Blais of Goodwin and the John G. Brooks Legal Services Award to Anne Mackin of Greater Boston Legal Services (GBLS).

To kick things off, BBA President Carol Starkey, of ConnKavanaugh, addressed the crowd, reflecting on the reason behind this annual event and the original proclamation of Law Day by President Eisenhower 59 years ago. She noted that all in the room were bound by their dedication and commitment to the law and its role in protecting individual rights, preserving justice, and ensuring equality. She took a moment to recognize the judges, custodians of the rule of law, in attendance and expressed gratitude to all members of the Boston legal community for their consistent selfless volunteerism, thoughtful policy contributions, intelligent debate, and persistent advocacy. She concluded her opening remarks by noting that the bar, collectively, continues to ensure, just as President Eisenhower said, that “the importance of law in the daily lives of our citizens is a source of national strength.”

BBA President Carol Starkey (ConnKavanaugh) addresses the crowd.

She went on to present the Thurgood Marshall Award to Elaine Blais, partner and head of litigation in Goodwin’s Boston office. The award recognizes attorneys in private practice in Greater Boston for their extraordinary efforts in enhancing the human dignity of others by providing legal services to Massachusetts’ low income population. Attorney Blais has been representing adults seeking asylum through Political Asylum/Immigration Representation (PAIR) and Immigration Equality for nearly a decade and representing unaccompanied immigrants and refugee children in their deportation proceedings through Kids in Need of Defense (KIND) for the past five years.

BBA president Carol Starkey (ConnKavanaugh) presents honoree Elaine Blais (Goodwin) with the Thurgood Marshall Award.

In a moving acceptance speech, Blais told the story of one particular child she and her team were able to assist in remaining in the U.S., a nine-year-old girl who had been living with her grandmother in El Salvador after her parents fled when they were threatened for standing up to a local gang. This young girl was forced to flee as well when the attention of the gang became directed toward her. Thanks to the hard work and dedication of Blais and her team, the girl was found eligible for asylum, and Blais is now helping to work on the green card application. This story highlights what a difference dedicated pro bono work can make, and Blais herself concluded with a call to action, asking members of the bar to use their unique positions as lawyers to assist those most in need.

Carol Starkey then returned to the stage to present the John G. Brooks Legal Services Award to Anne Mackin of GBLS. This award is presented to professional legal services attorneys for their outstanding work on behalf of indigent people in the Boston area. Attorney Mackin has worked in legal services for nearly 30 years, and joined GBLS’s Immigration Unit in 2013. Since then, she has helped people from all over the world who have witnessed or experienced unspeakable tragedies and faced severe persecutions. Her efforts have ensured that many who are fleeing extreme discrimination and danger are able to seek justice and safe harbor.

BBA president Carol Starkey (Conn Kavanaugh) gives honoree Anne Mackin (GBLS) the John G. Brooks Legal Services Award.

In an acceptance speech that displayed her humility and passion, Mackin discussed how privileged she feels to be able to work in legal services and specifically to be able to meet the brave and resilient individuals and children who have decided, as a matter of survival, to make the hard decision to pursue safety. In her work, she regularly takes on cases with individuals, often young children, who have endured unspeakable torture and abuse, wars and natural disasters and persecution on account of their race, gender, sexuality, or beliefs. She offered several harrowing stories, all of which revealed just how important the law and legal help is for these individuals. After making the often devastating decision to flee the only home they’ve ever known, many face a daunting bureaucracy with complicated and convoluted procedural and substantive rules upon reaching the U.S. Though not every attorney can dedicate their life to this work as Mackin has, her inspiring career reaffirms how crucial it is for all attorneys to take up Blais’ call to action in whatever way they can.

Following these moving speeches, Carol Starkey introduced keynote speaker U.S. Representative Seth Moulton. Congressman Moulton was elected to the represent the 6th District of Massachusetts in 2014, and he currently serves on the House Armed Services Committee and the House Budget Committee. After graduating from Harvard in 2001, Moulton joined the United States Marine Corps, where he served four tours in Iraq as a Marine Corps infantry officer, including two as an infantry platoon commander and two as a Special Assistant to General David Petraeus. After leaving the Marines in 2008, with the rank of Captain, Moulton attended Harvard Business School and the Kennedy School of Government, and worked in the private sector as managing director of the Texas Central Railway.

We welcomed Moulton to the Boston Bar once before, in 2015, when he attended the first of an ongoing Veterans Day reception series, where BBA members who are also current or former members of the military gather to share common experiences and challenges. This time, Congressman Moulton presented a captivating keynote speech that highlighted the notion that the role of lawyers and the rule of law is more important than ever.

Congressman Seth Moulton delivers the keynote speech.

His speech began with a compelling story about a refugee, Mohammed, who was his interpreter in Iraq. The two spent a great deal of time together, even going on to host a popular local TV show together as part of a media and free press initiative. Moulton explained that Mohammed put his life on the line, in an incredibly public way, to aid the U.S., and when he received a Fulbright Scholarship and left Iraq, his family faced such great threats that they had to flee their hometown. If Mohammed returned, he would be facing a life-threatening situation, so he decided to seek asylum, and Moulton helped him secure an attorney who made it possible for him to stay in the U.S. Moulton noted that, through all of the trials, Mohammed still maintained an amazing faith in the system. Moulton highlighted just how crucial it is for Americans to uphold and maintain this trust in the system, as the core of our democracy is respect for the rule of law and its fair application to all.

Lawyers, of course, play a unique role in maintaining the trustworthiness of the system, and, like Attorney Blais, Congressmen Moulton presented a call to action. He urged the crowd to use their authority as members of the Bar to speak up for the rule of law. He even harkened back to a quote from Ross L. Malone, President of the American Bar Association in 1959, who stated “tyrants throughout history have recognized in lawyers a constant threat to their tyranny.” Because lawyers and the judiciary are those charged with upholding the rule of law, he explained that bar associations are important pillars of our civil society and cited current examples of countries where human-rights lawyers are routinely jailed as “dissidents”.

Following this call, he turned his attention to the two award recipients, who are clearly prime examples of lawyers already going above and beyond this call. He spoke on the deep importance of pro bono and legal services work, like that undertaken by Blais and Mackin. This work is critical in instilling trust in the system that Mohammed relied on when carrying out his service for the U.S. and that the attorney fulfilled when taking on Mohammed’s case and ensuring the rule of law was fairly applied.

The Congressman concluded by recalling the most frequent question he got when he first decided to run in 2014: Why would you want to give up your work in the private sector to pursue public service? He said he no longer hears this question because it’s very clear why this service is crucial. He affirmed that no one should question the services of the members of the bar either, as it also is more important than ever.

Overall, it was a wonderful evening that highlighted the significance of the role of lawyers and the rule of law in upholding democratic ideals and ensuring justice for all. Be sure to check out our photo album and join us next year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Testimony at Judiciary Committee Hearings

We’ve recently reported on our testimony in support of H.2645 (tax basis for certain decedents’ beneficiaries), at the Joint Committee of the Revenue (which later reported the bill favorably to the House Committee on Ways and Means) and our testimony in support of full RUFADAA language (access to digital assets) before the Joint Committee on the Judiciary.  Lest you think our public hearing participation is limited to Trusts and Estates issues, we’ve also had the opportunity to present testimony on three other legislative items at Judiciary Committee hearings held the past few weeks.

Housing Court Expansion

On Tuesday, May 2, the Judiciary Committee heard from the public on bills related to Court Administration, including legislation that would expand jurisdiction of the Housing Court to the full state, which the BBA supports.  We’ve spoken often in the past on the importance of this expansion, identified this as a budget priority, and even recorded a podcast on the matter.

Two identical bills were before the committee, H.978 sponsored by Representative Chris Walsh, and S. 946, sponsored by Senator Karen E. Spilka. These bills would expand access to the Housing Court, and all its accompanying benefits, to all residents of the Commonwealth, including the close to one-third who currently lack such access.

Interestingly, H.978 and S.946 were two of the most highly testified-upon bills at the hearing. Representatives Paul J. Donato and Jay R. Kaufman, Senator Sal N. DiDomenico, and Chief Justice of the Housing Court Judge Tim F. Sullivan all testified in support of the bills.  In addition to these public officials, the Committee heard testimony from a number of key advocates, including Annette Duke of the Massachusetts Law Reform Institute, Elizabeth Soule, Executive Director of MetroWest Legal Services and Laura Rosi, Director of Housing and Advocacy of Housing Families.

We were lucky enough to have Julia Devanthery, Attorney and Clinical Instructor in Housing Clinic of the Legal Services Center of Harvard Law School and member of the BBA Delivery of Legal Services Section, presenting testimony on behalf of the BBA as part of a panel, alongside Jeff Catalano of Todd & Weld, president of the Massachusetts Bar Association, and James T. Van Buren, Commissioner of the Access to Justice Commission.

Attorney Devanthery offered specific insight from the perspective of her extensive work supervising the Lawyer for the Day Program in Housing Court, which, since 1999, offers advice, mediation, and case litigation for unrepresented tenants and landlords on Eviction Day at the Housing Court.  She spoke to the importance of expanding this service statewide given the complexity of housing cases, the lack of alternative affordable housing options, and the vulnerability of many pro se tenants and landlords.  She also spoke movingly about her experience representing victims of domestic violence, noting that this clientele, which is uniquely vulnerable, is able to have their cases adjudicated by Housing Court in a manner which takes into account abuse, while taking advantage of the specialized legal protections in place to defend survivors and their children.

We’ll keep you updated on the report of the Joint Committee on the Judiciary on H.978 and S.946, and be sure to watch this space for our soon-to-come Senate budget update (Spoiler Alert: Unlike the House Ways and Means Budget proposal, the Senate Ways and Means budget does include funding and authorizing language for Housing Court Expansion).

UCCJEA

Earlier this week, the Committee held its second day of hearings on Probate and Family matters, this time taking up two topics on which the BBA has worked for a number of years. First up, An Act relative to the Uniform Child Custody Justice Enforcement Act (UCCJEA), S.806, filed once again by Senator Cynthia Stone Creem.  As we’ve outlined in the past, enactment of this bill would remedy conflicts that occur under current Massachusetts law when one of the parents of the child moves to another state. Currently, Massachusetts is the only state in the US which has not enacted the UCCJEA!

As it stands now, Massachusetts law cedes jurisdiction over our own custody orders to the home state of the custodial parent and child after six months of their residency in the new venue.  But under the UCCJEA, once a state has exercised jurisdiction over custody, that state retains exclusive jurisdiction as long as a parent, the child, or someone acting as a parent remains in the original issuing state. Overall, adoption of the UCCJEA would help to prevent one parent from forum-shopping by seeking a more favorable outcome in another state and also prevent the problem of dueling lawsuits in different jurisdictions.

A panel with representatives from the BBA, MBA, and the Women’s Bar Association (WBA), all of whom support passage of the bill now that domestic-violence concerns have been addressed with new language in the bill, presented testimony on behalf of the UCCJEA.  Judge Edward Ginsburg spoke on behalf of the BBA, and as usual offered compelling reasons for Massachusetts adoption.  If you’ll recall, Judge Ginsburg has spent nearly twenty years advocating for Massachusetts to change the law.

Stay tuned to find out if this will finally be the year that Massachusetts becomes the 50th state to adopt the UCCJEA!

Shared Parenting

Finally, Jessica Dubin of Lee & Rivers, our Family Law Section co-chair, spoke about a number of bills being heard that would amend Section 31 of Chapter 208 of the Massachusetts General Laws, dealing with child custody and shared parenting.  While the BBA has not specifically endorsed any of the bills pending in the Judiciary Committee, in 2015, the Family Law Section Steering Committee worked hard to develop principles related to shared parenting that would guide the BBA’s analysis of all related legislation. For example, the principles call for the availability of alternative terminology such as “parenting time”, “residential responsibility” and “decision-making responsibility,” in place of the divisive and outdated terms, “visitation” and “custody.”  The principles also offer support for provisions that provide increased guidance on the content to be included in parenting plans and oppose any provision that takes any focus away from the best interests of the child or ties the hands of judges.

Attorney Dubin offered the BBA’s appreciation to the Judiciary Committee for its consideration of the similar legislation last session and its openness to the input of the bar on the pending bills.  She expressed a hope that the BBA would have the same opportunities this session and relayed the current work being done to study Senator Will Brownsberger’s bill, S.775, An Act relative to determining the best interest of children in Probate and Family Court.

As usual, watch this space to find out what happens!

Many more hearings are set to be scheduled for the coming months, and we’ll report back on our continued activity!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

In March, we updated you on the BBA’s endorsement, at the request of the Trusts and Estates Law Section, of the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the Commonwealth.

To briefly recap, RUFADAA was promulgated by the Uniform Law Commission in 2016 in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, Instagram, online banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies, if they have any policies on the matter at all. RUFADAA helps to add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 30 other states have adopted RUFADAA in some form. (Check out our previous blog post on this for a full refresher on the contents of RUFADAA.)

On Monday, the Joint Committee on the Judiciary (“the Committee”) heard testimony from three different panels on bills that deal with access to digital assets.

The Committee first heard testimony from the Ajemian siblings in support of, S.822, “An Act Relative to Access to a Decedent’s Electronic Mail Accounts,” sponsored by Senator Cynthia Stone Creem. As you’ll recall, the Ajemian siblings are parties to Ajemian v. Yahoo!, Inc., regarding the contents of an e-mail account established by their late brother.  There, the Supreme Judicial Court is currently determining whether the federal Stored Communications Act (SCA), 18 U.S.C. § 2702, prohibits disclosure of the contents of a deceased e-mail account-holder’s account to the administrators of his or her estate. In that case, the Ajemian siblings, the administrators of their brother’s estate, argue, in part, that they should have access under an exception to the Act, as agents for the decedent.

S.822 applies only to e-mail accounts but allows greater access to those accounts than the requirements set forth in RUFADAA. The bill allows personal representatives to gain access to the contents of an e-mail account upon a notarized written request by the personal representative or an order of the probate court that has jurisdiction over the estate of the decedent. Upon receipt of the request, the service provider has 60 days to comply, and this requirement supersedes provisions in e-mail service provider contracts, terms and conditions, or privacy policy unless the provider can show “by clear and convincing evidence, that it offered opt-out language, separate and distinct from the standard agreement or terms of service, whereby the decedent affirmatively declined to have the decedents electronic mail account released after dead.”

Next up, representatives from Facebook and NetChoice testified in opposition to S.822 and in support of Senator Lesser’s S.885, “An Act Relative to the Privacy of a Decedent’s Electronic Communication” (and Representative Livingstone’s identical H.3083, “An Act for Uniform Fiduciary Access to Digital Assets”). These bills are largely the same of RUFADAA, except the language limits the definition of “fiduciary” to a personal representative, while RUFADAA would cover personal representatives, conservators, trustees, and agents acting under the power of attorney. Notably, the Facebook witness also stated that they would be completely comfortable with the adoption of the full RUFADAA language instead of the more narrow S.885 or H.3083. These witnesses opposed S.822 because of the broader access to accounts the bill allows, as they worry it will push them to violate privacy guarantees, put them in conflict with the federal SCA, and tie them up in litigation.

This brings us to the final panel, which instead of testifying in support of any of the current bills, called for adoption of the full RUFADAA language, even though it hasn’t yet been filed in Massachusetts. BBA Trusts and Estates Section Co-Chair Joe Bierwirth, of Hemenway & Barnes, testified on behalf of the BBA, alongside Colin Korzec, of U.S. Trust, and Marc Bloostein, of Ropes and Gray, on behalf of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (“Standing Committee”).

Joe Bierwirth, Colin Korzec, and Marc Bloostein (right to left) testify in support of RUFADAA at Joint Committee on the Judiciary hearing. 

Overall, the panel presented the reasons for adoption of the complete RUFADAA language, including the balance it strikes in allowing access while also protecting privacy, and the clarity and certainty it will offer for fiduciaries, digital account users, and digital account service providers. The witnesses also stressed the unified support this language has achieved, both nationally, with adoption by more and more states in rapid succession over the past two years, and locally, with the BBA, the Massachusetts Bar Association, and the Massachusetts Bankers Association having all officially endorsed the RUFADAA language. (The written testimony offered by the panel also included the Standing Committee’s Massachusetts-specific analysis of RUFADAA, complete with proposed edits to the ULC’s model language in order to ensure it complies with the Massachusetts General Laws).

One thing all witnesses agreed on is that this is an issue crying out for action from the Legislature, in order to provide some clarity to what is now quite a grey area. As always, we’ll keep you posted on RUFADAA throughout the legislative session!

In related news, the BBA isn’t just sticking with legislative testimony to get the word out about RUFADAA. You won’t want to miss our podcast featuring Trusts and Estates co-chairs, Joe Bierwirth and Andy Rothstein, of Goulston & Storrs.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA at ABA Day 2017

Each April, BBA leadership treks to Washington, D.C., along with bar leaders from all 50 states, for ABA Day, the American Bar Association’s annual lobbying event.  This year, as usual, the primary focus of our efforts was on funding for civil legal aid.  And though federal appropriations were under threat at the time of our trip last week, by this week we had received welcome news—from both the Capitol and the State House.

First, a refresher: The Legal Services Corporation (LSC) is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million, of which about $5 million comes to four different providers in Massachusetts.  That budget is not nearly enough: It’s been essentially level-funded for years, even as the need for legal services has increased significantly, and one result is that an estimated 50 to 80% of qualified applicants must be turned away merely for lack of resources.

That’s why it’s critical that lawyers, who are at the front lines of this crisis, continue to make the case for LSC and civil legal aid.  The threat was even greater this time, after a White House budget plan proposed eliminating (or “zeroing out,” in budget-speak) LSC funding altogether.  A $5 million hit to legal services in Massachusetts alone would have been devastating—all the more so when you consider that the budget also sought deep cuts in services elsewhere, cuts that would’ve further increased the need for legal services.

All of this had legal-services providers on edge and lent a sense of urgency to this year’s ABA Day (which, full disclosure, takes place over three days). So it was nice to kick the event off with an awards ceremony for four members of Congress who’ve led the fight on ABA priorities, including our own Representative Joe Kennedy.

 

Rep. Joe Kennedy receiving the ABA Justice Award, alongside (left to right)
MBA President Jeff Catalano, ABA President Linda Klein, MBA President-Elect Chris Sullivan,
BBA President-Elect Mark Smith, and BBA President Carol Starkey

We’re proud of Rep. Kennedy for making this a priority and we were not only delighted to nominate him, along with the Massachusetts Bar Association, for an ABA Justice Award in recognition of his steadfast work to promote funding for legal aid and to end discrimination, but also thrilled to learn he’d been chosen as one of this year’s honorees.  To cite just one example of his commitment, Rep. Kennedy established a bipartisan Access to Civil Legal Services Caucus.  (The next morning, at an ABA breakfast, we heard from his caucus co-chair from across the aisle, Rep. Susan Brooks of Indiana.)

In receiving the award—after needling ABA President Linda Klein, of Atlanta, about the Super Bowl—Rep. Kennedy told the audience how his time as a young attorney with Greater Boston Legal Services had opened his eyes, allowing him to see the justice system through the eyes of his clientele: that is, as a complex maze that they couldn’t always navigate successfully without legal assistance.  He spoke of civil legal aid as a lifeline for working families—one that we need to fight for now more fiercely than ever before.  He thanked the BBA and MBA for making it such a priority, and he closed by saying, “Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”  (Of course you already know this, because you followed my live-tweeting, right?)

“Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”
—Rep. Joe Kennedy, ABA Justice Award recipient

With that event fresh in our minds, we headed off the next morning for a full day of meetings with the Massachusetts Congressional delegation.  To be clear, we have it much easier than the ABA Day participants from most other states, in that all our representatives stand with us four-square on LSC funding.  Our counterparts from elsewhere had their work cut out for them, educating their elected officials on the importance of, and the imminent threat to, the appropriation for civil legal aid.  Meanwhile, our group—including the BBA’s President, Carol Starkey of ConnKavanaugh, and President-Elect, Mark Smith of Laredo & Smith, along with their opposite numbers from the MBA, Jeff Catalano of Todd & Weld and Chris Sullivan of Robins Kaplan—had the opportunity to convey our appreciation for the delegation’s consistent support on our issues.

This extends not only to LSC, but also to the other top priority for ABA Day this year: access to justice for homeless veterans.  While the nation has made progress in recent years toward eliminating homelessness among our veteran population, there remain 39,000 homeless vets on any given night—and a staggering 1.5 million who live in poverty.  They face legal problems that are common to the poor, but also problems that stem directly from their service.  For example, time overseas—and, in particular, service-related disabilities, both physical and mental—can undermine a veteran’s ability to address legal issues when they arise, and if allowed to persist, these legal problems can become total barriers to critically-needed help.

 

Carol Starkey and Jeff Catalano with Rep. Mike Capuano,
a strong supporter of civil legal aid, as well as access to justice for homeless veterans

So on behalf of the ABA, we urged our members of Congress to enact the Homeless Veterans Legal Services Act, which would expand access to legal services for homeless veterans, and veterans at risk of homelessness, by authorizing the VA to partner with public and private entities and fund a portion of the cost of legal services.

That night, we attended an ABA reception at the Supreme Court, where Justice Elena Kagan spoke from the heart about advocacy for legal aid (“You are doing the Lord’s work,” she said), awards were given to Kids in Need of Defense (KIND) and long-time supporter Edwin Harnden of Barran Liebman (Portland, Oregon), and attendees more or less had the run of that historic building.

 

Carol Starkey and Mark Smith outside the US Supreme Court

ABA Day closed with a breakfast on our third day, where we got to hear from James Burnham of the Office of White House Counsel, who spoke about the work of his office, including the appointment of federal judges.  (We’ll have a new nomination for the bench in Massachusetts, with Judge George O’Toole, Jr., moving to senior status after 35 years as a state and federal judge.)  And finally, we were entertained by Minnesota Senator Al Franken, who made clear his fierce opposition to zeroing out LSC funding, calling such a move “callous”, “short-sighted”, and “penny-wise and pound-foolish.”   “We’re not gonna let that happen!” he pledged.

 

Sen. Al Franken speaking at an ABA Day breakfast

Sen. Al Franken: Eliminating LSC funding would be “callous”, “short-sighted”, and “penny-wise and pound-foolish” and “we’re not gonna let that happen!”

And with that, we were off.  But, oh yeah, I saved the best news for last:

  1. The same week we were traveling to D.C., the Massachusetts House was taking up its debate on the annual state budget—where, of course, the appropriation for civil legal aid is a top BBA priority. Here, the leading provider of funding is the Massachusetts Legal Assistance Corporation (MLAC).  We’ve covered that issue extensively in this space, but the update is that not only did the House Ways & Means Committee provide for a $1.5 million increase in the MLAC line-item, but thanks to a floor amendment last week from Ruth Balser, long-time champion of civil legal aid, the final House budget increased that figure to $2 million.  That would bring the total to $20 million, but now the debate shifts to the Senate, which will put forth their own plan later this month.  We will of course keep you updated…
  2. This week we learned that the Congress had worked out a spending plan to cover the remainder the current federal fiscal year, ending September 30. And we were relieved to see that it level-funds LSC at $385 million once again.  That’s well short of the $450 million we were asking for, but still far, far better than the $0 that the White House had recommended.  So the news came as a relief … but also a spur to continue our advocacy on this, because the justice gap is not going away any time soon.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Council Hears from the Governor’s Chief Legal Counsel

Last week, we were happy to welcome back Lon Povich, Governor Charlie Baker’s Chief Legal Counsel and former member of the BBA Council and the Statewide Task Force to Expand Civil Legal Aid. On his annual visit to Council he provided an update on three key areas of interest to members of the Bar:  1) Criminal Justice Reform, 2) the Budget, and 3) the Judicial Nominating Process.

Criminal Justice Reform

Lon Povich first spoke on criminal justice reform, highlighting the recent report released by the Council of State Governments (CSG).  We’ve been following the report, and related legislation filed in February by the Governor, closely. Overall, the report and bill focus on reducing recidivism in the Commonwealth, which is currently at about 40%. The Governor’s Proposed Budget allocated $3.5 million to fund the costs of implementing the recommendations in the report for the first year.

With the reducing recidivism goal, the proposed reforms include increasing programming for incarcerated individuals, providing more training for corrections officers, expanding the availability of behavioral health services, increasing credit for “good time served”, allowing good time to apply to some mandatory minimum sentences, strengthening the coordination between prisons and the Parole Board, and improving data collection. Overall, Povich characterized the bill as a start to criminal justice reform, but he thought it would attack recidivism head on. One member of Council expressed concern that if the legislation coming from the CSG report is rushed through the legislative process, momentum will be lost for more sweeping reforms, including front-end reforms that many stakeholders believe important, like those related to bail, collateral consequences, and mandatory minimums. In response, Povich said he did not see the CSG bill as a barrier, but instead a starting point. The narrow nature of the current proposed legislation reflected what it took to gain consensus among the sponsors of the CSG project, the Governor, the Speaker of the House, the Senate President and Chief Justice Gants, so he was worried if too many additional proposals were attached, it might not pass at all.

In addition to the above, Povich mentioned four other pieces of criminal justice legislation coming from the Governor’s Office this session. One relates to “fine time,” which is the practice of incarcerating individuals when they are unable to pay court fines and fees. The new bill would provide other options for defendants that cannot afford a fine and would provide counsel for indigent defendants facing fine time. The next bill would increase the penalty for assault and battery on police officers. The third bill would reform the current laws on the sharing of sexually explicit material, including “sexting” and “revenge porn.” The final piece of legislation he mentioned would update the wiretap statute, which was drafted in 1965, to account for modern technology and reform the types of crimes it covers. (Here at the BBA, we’ve also called for updates to the current wiretap laws.)

Budget Update

Next, Povich discussed the state budget, first noting that money is very tight right now, especially given the rising MassHealth costs. He spoke on funding for the Trial Court first, noting the 1% increase provided for in the Governor’s proposed budget as well as the inclusion of $11.7 million in the more recent House Ways and Means proposed budget to cover the pay raise legislation enacted since the Governor’s budget was released. He also mentioned the additional $1.5 million provided for the Massachusetts Legal Assistance Corporation (MLAC) in the House Ways and Means proposal. Finally, Povich noted that while the Governor’s budget allocated $1 million for expanding the jurisdiction of the Housing Court to the whole state, the House Ways and Means budget did not include any funding for this expansion. To wrap up his budget update, he discussed the rest of the budget process, which we’ve also covered in a podcast, and highlighted the significant impact BBA advocacy has on funding for the judiciary and civil legal aid.

To learn more about the funding of the Judiciary, civil legal aid, and statewide expansion of the Housing Court, check out our numerous updates on the budget!

Court Nominating Process

Finally, Lon Povich discussed court nominations under the Baker Administration, first noting that 53 judges had been appointed since the Governor took office. Around 33 vacancies remain in other courts, but nine are currently being scheduled for Governor’s Council hearings and six letters of nomination are about to be sent, so there are 18 positions for which nominees have not yet been identified. He called on the Council and the private bar to help in filling these vacancies by encouraging qualified attorneys to apply for these positions. He also highlighted that of the 53 new judges appointed during Governor Baker’s time in office, around 50% are women and around 20% are considered diverse, meaning they are members of racial or ethnic minority groups or members of the LGBTQ community.

In a follow-up question by a member of Council, Povich addressed whether the Governor’s Office would consider making the process to become a judge less arduous, in order to encourage more applications. Interestingly, when Povich previously addressed Council, it was on the heels of an Executive Order reforming the nominating process, which we outline in full here.  To summarize, the applications for judicial and clerk-magistrate positions are first reviewed by the Judicial Nominating Commission (JNC), a 21-member, statewide, non-partisan, non-compensated body currently chaired by former BBA president Paul Dacier and vice-chaired by former BBA Council member Roberto Braceras. Then, the Commissioner’s interview approved candidates and at least ½ of the Commissioners casting a vote amongst a quorum must agree to continue the application of the potential nominee. Following a period of thorough research and evaluation, a two-thirds vote is required for the JNC to forward an applicant’s name to the Governor’s Office to be considered for nomination. Typically, the JNC forwards between 3 and 6 potential nominees to the Governor’s Chief Legal Counsel, who then seeks input from the Joint Bar Committee (JBC). The JBC determines whether a candidate is well qualified, qualified, not qualified or there is insufficient information to evaluate the candidate. The JBC communicates its vote to the Governor’s office, and the Governor can nominate the applicant, deny the application, seek further commendation from the JNC, or re-open the application process.

In response to the question on whether the process could be simplified in order to encourage more applications, Povich responded by saying that he served on the JNC in both the Romney and Patrick administration who followed the same JNC process and that he believes the current three-step process is effective in ensuring that only top-quality candidates receive judgeships. Ultimately, he acknowledged the “triathlon” (JNC, Governor’s Office and Governor’s Council) that applicants must go through, but maintained that the work, by the applicants, the JNC, the JBC, and the Governor’s Office is all worth it to get the most qualified nominees.

With his earlier call in mind, if you’ve considered pursuing judgeship, or know someone who would make a great judge, now is the time to apply!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

From time to time, we like to update you on recent key happenings at the Supreme Judicial Court (SJC). This month, we have two significant developments to share: one related to the dismissal of over 20,000 convictions based on tainted drug evidence, and the other related to the SJC hearing oral arguments on the legal force of an “ICE Detainer.”

Bridgeman v. District Attorney

On Tuesday, five years since reports of the misconduct of Annie Dookhan at the Hinton Drug Lab first emerged, thousands of individuals who had been convicted or pled on the basis of tainted evidence finally received some resolution. Following the holding in “Bridgeman II,” prosecutors just announced they were dismissing 21,587 drug convictions, likely the largest mass dismissal in U.S. history.

As you know, from our many past reports, the scandal arose from the 2012 discovery that chemist Annie Dookhan had for years mishandled thousands of drug samples, by, among other things, contaminating unknown drug samples with known drugs, failing to conduct tests on samples she then labeled as controlled substances, and falsifying evidence logs and reports.

In 2013, she pled guilty to 27 criminal counts, including perjury, obstruction of justice, and tampering with evidence, and served more than two years in prison. All the while, more than 20,000 individuals that were convicted or pled on the basis of the tainted evidence were living with the significant consequences that come along with a criminal conviction, including difficulty securing employment, housing, custody of their children, and public benefits. Because a Dookhan conviction often served as a predicate offense, many also faced harsher sentences for later charges.

Over the past few years, the courts struggled to determine how to offer justice based on the sheer volume of such cases, and Bridgeman v. District Attorney for Suffolk County eventually went to the SJC two times. In May of 2015, the SJC held that the Dookhan defendants who challenged their convictions could not be charged with more serious crimes if given a new trial. Additionally, even if convicted, they could not be given a harsher sentence than was originally imposed.

In the fall of 2016, Bridgeman was before the SJC again, this time to determine whether all the convictions based on tainted evidence should be dismissed or instead subject to a court-imposed deadline. The BBA submitted a brief, written by Amicus Committee Co-Chairs Elizabeth Ritvo, Brown Rudnick, and Anthony Scibelli, Barclay Damon, calling for a global remedy. We argued that the Court should vacate, without prejudice, the adverse disposition on all drug-related charges where Dookhan was the primary or secondary chemist, and that the Commonwealth should be allowed a period of at least one year to re-prosecute individual charges, with the remainder automatically dismissed with prejudice.

Overall, the brief was drafted based on two principles central to the BBA’s mission: access to justice and the fair administration of justice. The global remedy would secure justice for the defendants who had already been living with the consequences of a conviction based on faulty evidence. Also, because the criminal misconduct was that of a state employee, implicating the public confidence in the government and justice system, the burden should be on the Commonwealth and not the individual defendants, to right the wrong. Furthermore, a global remedy would begin to relieve the burden on the justice system of individually resolving more than 20,000 cases.

In January, the SJC released its decision, agreeing that the Commonwealth should bear the burden, but declining to adopt a global remedy. The decision called for a three-step protocol where: 1) the District Attorneys were given 90 days to vacate and dismiss with prejudice those cases that would or could not be re-prosecuted; 2) adequate notice was to be approved by the Single Justice and sent to all defendants whose cases had not been dismissed; and 3) the Committee for Public Counsel Services (CPCS) would assign counsel to all indigent defendants who wished to explore the possibility of moving to vacate their plea or for a new trial.

The 90-day first step just came to an end, and prosecutors announced Tuesday that over 20,000 cases would be dismissed with prejudice. Overall, this brings the State, and the Dookhan defendants, much closer to a final resolution. The BBA is proud to have played a part and applauds the dismissal. BBA President Carol Starkey stated, “We thank the District Attorneys for their recognition that a different course of action, more than five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.”

President Starkey noted that “[f]or far too long, thousands of Massachusetts residents have lived under a cloud created by the misconduct of a rogue state employee, carrying a criminal record that may have prevented them from securing jobs, housing, benefits, and even legal immigration status. Today’s actions lift that cloud and allow the Dookhan defendants to move forward.”

As Dookhan takes a step toward comprehensive resolution, another case garnering nationwide attention just appeared before the SJC for oral arguments….

Commonwealth v. Sreynuon Lunn

On April 4, the SJC heard arguments on whether it is permissible for state and local authorities to hold people on “ICE detainers.” These detainers, from the federal Office of Immigration and Customs Enforcement (ICE), request federal, state, or local officials to hold individuals for up to 48 hours beyond when they would otherwise be released, on the basis that ICE has “determined that there is a reason to believe the individuals is an alien subject to removal from the United States.”

Sreynuon Lunn entered the US in 1985 as a refugee, receiving lawful permanent resident status in the early 1990s. He was ordered deported in the early 2000s on account of criminal convictions. Cambodia, however, would not accept Lunn back, and he was released from federal custody in October 2008. Eight years later he was arrested again on unarmed robbery charges. ICE lodged a detainer request with state authorities, but on February 6 state prosecutors elected not to prosecute Lunn and the case was dismissed from Boston Municipal Court. Lunn’s attorney asked for him to be released but the judge declined, and Lunn remained in court lock-up until ICE agents took him into custody several hours later. While the case is now moot as a result of Lunn’s detention, the SJC took it up “because the case raises important, recurring, time-sensitive issues that will likely evade the full court’s review in future cases.”

At oral arguments, the SJC heard from three attorneys, one on behalf of the Department of Justice (DOJ), one on behalf of the Commonwealth, and one on behalf of Lunn. Joshua Press, for DOJ, argued that without a law prohibiting state officials from detaining people at the request of ICE, authorities did not misstep by enforcing the requested detention and that detainer requests reflect principles of comity between various law enforcement agencies.

Jessica Barnett, deputy chief of the Criminal Appeals Division for Attorney General Maura Healey, presented the state’s argument that state agencies lacked the authority to comply with ICE, noting that keeping an individual in custody after the case is otherwise resolved was the equivalent of a fresh arrest without sufficient legal justification. She argued that “probable cause for civil removability is simply not a basis for arrest under Massachusetts law.” Emma Winger of CPCS, attorney for Lunn, echoed that, but also argued that the detainer process violates constitutional guarantees of due process because it amounts to custody without judicial oversight.

This case is significant for a number of reasons, not least because it may be the first State Supreme Court to reach the issue. It is also being considered in a time of great uncertainty around immigration given recent federal events, including the issuance of controversial executive orders and warnings from Attorney General Jeff Sessions that those cities and towns that do not comply with federal immigration law may lose federal funding.

ICE Presence in Courthouses

The argument also occurred on the heels of reports across the country that ICE officials were showing up at courthouses in order to reach undocumented immigrants. One of the first of such stories was the arrest of a woman in Texas who was seeking a protective order against an allegedly abusive boyfriend. The reports of ICE’s presence at courts have brought sharp criticism, not only from the attorneys of the immigrants being targeted by ICE, but also judges, including the Chief Justices in California, Washington, and New Jersey.

Much of this criticism centers around a concern that ICE arrests at courthouses can undermine the judicial system. As Washington Chief Justice Mary Fairhurst wrote in her letter to Secretary of Homeland Security John Kelly, “When people are afraid to appear for court hearings, out of fear or apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner who wrote to Secretary Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Overall, with the nation watching how ICE and state officials will interact, the Lunn case could not come at a more important time. As usual, we’ll continue to keep a close eye on this and all other matters impacting access to, and the fair administration of, justice.

We may even have the chance to discuss the issue of ICE showing up at courthouses with our Massachusetts Congressional Delegation in D.C. next week. President Carol Starkey and President-Elect Mark Smith are headed down as part of ABA Day, where they will be advocating for civil legal aid through federal funding of the Legal Services Corporation and for increased access to legal services for homeless veterans.

Stay tuned for updates on the BBA advocacy in Washington!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Budget Update: House Ways and Means Proposes FY18 Budget

As we’ve reported, BBA advocacy on the Budget for FY18 is now in full gear. This means we’ve been keeping a close watch on all budget-related happenings, and on Monday the House Ways and Means Committee released their $40.3 billion proposed budget for Fiscal Year 2018 (FY18), which begins on July 1.

With this release, members of the House are gearing up for a busy few weeks, as they will file and debate proposed amendments before the final House budget is passed. Then, it’ll be the Senate’s turn to propose, debate, and pass their own version of the budget. After that, a conference committee will attempt to reconcile the differences in the two budgets, and once approved by both chambers of the Legislature, the Governor has ten days to review and sign it. The Governor cannot add additional items but can veto or reduce particular line-items or veto the entire budget. The House and Senate can then, with a two-thirds roll-call vote in each chamber, vote to override any vetoes.

The House Ways and Means Committee proposed budget contains some significant departures from the Governor’s budget, H.1, in the areas that we’ve highlighted as our state funding priorities, including:

MLAC

As the largest provider of funds for state legal-services agencies, the Massachusetts Legal Assistance Corporation (MLAC) is a crucial piece of providing access to justice for Massachusetts residents. The Governor’s proposed budget called for only a 1% increase in the MLAC line-item, leaving the proposed appropriation at $18.18 million. This $180,000 increase is far below the BBA-supported ask of a $5 million increase that would provide for a $23 million MLAC line-item.

The House Ways and Means Budget recommends an increase of $1.5 million for the MLAC line-item to a total of $19.5 million. This moves MLAC a significant step closer to the $5 million request and will allow civil legal aid programs to take on more than 2,000 new cases.

In the words of Executive Director Lonnie Powers, MLAC is “incredibly pleased that the House Ways and Means Committee recognizes the role that civil legal aid funding plays in promoting equal access to justice for low-income residents of the Commonwealth.” Notably, House Ways and Means Committee Chairperson Brian Dempsey specifically mentioned the inclusion of MLAC in his letter explaining the budget, highlighting it as part of the House’s own commitment “to protecting and providing for [the] Commonwealth’s most vulnerable residents.”

We join MLAC in expressing gratitude that the House Ways and Means Committee continues to recognize and value the importance of civil legal aid. As BBA President-Elect Mark Smith, of Laredo & Smith, was able to relay at a legislative briefing last week, and as we have expressed consistently over the past years, civil legal aid is not only necessary to ensure access to justice, it is also a smart investment that offers many economic benefits to the state.

Overall, this is undoubtedly good news for civil legal aid in Massachusetts, but given the shaky position of the federal budget and President Trump’s proposal to zero-out funding for the main federal funder of civil legal aid, the need for more state funding for MLAC is still critical. An increase of $1.5 million is a good start, but even with that, the state will still be forced to turn away the majority of eligible people who need legal assistance.

Fortunately, Representative Ruth Balser filed an amendment (#822) on Thursday to increase the House Ways and Means Committee recommendation by an additional $1.5 million, bringing the total proposed appropriation to $21 million. As the house budget debates begin, it is crucial that your representatives know how important civil legal aid is to you.

You can contact them now, using this easy tool from our partners at the Equal Justice Coalition (EJC), to ask them to co-sponsor the amendment. If you want to reach out in person or on the phone, you can find your representative here, get guidance from these talking points and resources, and listen to the BBA Issue Spot Podcast with chair of the EJC Louis Tompros for a primer on how to talk to your legislator (especially about civil legal aid).

Trial Court

Adequate funding of the Trial Court, another BBA priority, is necessary to ensure the continued efficient and accessible functioning of our judicial system. The Governor’s proposed budget recommended a 1% increase for the Trial Court, for a total appropriation of $646.8 million. Mostly because of an $11.7 million judicial pay increase that passed after the Governor released his budget in January, this now falls below the Trial Court’s revised funding request of $661,368,224 for FY18.

In more good news, the House Ways and Means Committee recommendation specifically provided for these pay raises in full, as the line-item related the payroll costs of the justices in the seven departments of the Trial Court (0330-0101) moved from $58.5 million in the Governor’s recommendation to $70.3 million. By including this increase, the Committee will allow the Trial Court to continue the gains it has made in recent years on working smarter and getting more done with less money and less staff. Ultimately, this will help to ensure that the Trial Court remains effective and accessible for all Massachusetts residents.

Despite this good news, there was one significant Trial Court line-item missing entirely from the House Ways and Means recommendation, which brings us to…

Statewide Expansion of the Housing Court

For the past few years, we’ve been discussing the reasons why statewide expansion of the Housing Court makes sense. Currently, about one-third of the state lacks access to Housing Court and the benefits that come along with it, including the judges’ expertise in all housing matters, the availability of Housing Specialists who can facilitate settlements and help parties avoid expensive litigation costs, and programs like Lawyer for the Day, which assist pro-se litigants and as a result preserve judicial resources and ensure the efficient operation of the Court.

In an important step, the Governor’s budget recommended $1 million for the expansion. After the release of the Governor’s budget Representative Chris Walsh sent a letter, signed onto by 42 other Representatives, to the House Ways and Means Committee, urging them to include the full $1.2 million needed for successful initial expansion in their FY18 budget proposal. Unfortunately, the Committee removed the Housing Court Expansion line-item entirely.

However, the Housing Court Expansion line-item can still be included in the Senate budget, so now is the time to let your Senator know about the importance of allocating $1.2 million for this expansion. Additionally, two bills, one in the House and one in the Senate, have  been filed to advance housing court expansion, so you can urge your legislators to support this legislation to ensure that nearly one-third of the state is no longer excluded from the benefits of the Housing Court. Make sure to check out these resources and tips in our how-to-talk-to-your-legislator podcast!

As outlined above, there is still a ways to go in the budget process, which means there is plenty of time left for the BBA, and all of you as individuals, to advocate for adequate funding to ensure that Massachusetts is able to provide access to justice for all its residents. Keep watching this space for more news on budget developments and how you can get involved!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

With legislative committee hearings picking up steam of late, the 2017-18 legislative session is underway in earnest now, and we were at the State House for two important events this week.

The session technically lasts for two years, but the critical work generally must be accomplished by July 31 of the second year, as that’s the last date for formal meetings of the two houses in full.  After that, until the new Legislature is sworn in the following January, only informal sessions are conducted, with just a few representatives attending—any one of whom can individually block a bill from passing.  Thus, only those matters considered non-controversial are taken up.

The first couple of months of the session are spent on bill-filing (legislators must file bills by mid-January for them to be automatically admitted); populating the several dozen House, Senate, and joint committees; assigning those thousands of bills to the respective committees; and scheduling of hearings by the newly-appointed committee co-chairs (one from each house on the joint committees).

All bills that are duly admitted must get a public hearing before the committee to which they’ve been assigned.  Most often, because of the large number of bills on each committee’s docket, the hearings cover many bills at once.  Any member of the public can come forward to offer testimony on one or more bills, and although witnesses are asked to keep their statements brief, the hearing continues until all have been heard.

This past Monday, the Revenue Committee met for its first public hearing of the new session, and one of the BBA’s bills was on the agenda: House Bill 2645 (H. 2645): An act to continue tax basis rules for property acquired from decedents, filed on our behalf by Representative Alice H. Peisch.  It’s a complicated issue, to be sure, but fortunately, we had George Cushing, of McLane Middleton, on hand to help break it down for committee members—and within the three-minute time limit even (not counting follow-up questions from the panel)!

Without getting bogged down in the details, there were changes made to the federal estate tax several years ago, and while Massachusetts made some changes to its estate tax in response, the net result is that beneficiaries of decedents who passed away in 2010 will not get the benefit, which others do, of a “step-up” in the basis of the property they inherit (say, a home, a small business, or equities).  That means that when they sell that property down the road, perhaps many years later, they will be taxed on the capital gain not since the inheritance but rather since the decedent made the original purchase.  And if that purchase was well before their death in 2010, the difference could be not only unfair but substantial as well.

This unusual situation has led to confusion and differing interpretations among practitioners, thus creating unnecessary uncertainty.  We are seeking to provide that clarity by eliminating the anomaly that this hidden double tax represents, restoring the status quo ante, in which successors to decedents’ property get enhanced basis, but the property is subject to the Massachusetts estate tax.  Individuals who inherited property from those 2010 Massachusetts decedents will be authorized to use the federal adjusted basis (generally the value at death), as determined under the federal rule that applied in 2010 only, if the carry-over basis regime was not elected for federal tax purposes.

George Cushing, testifying on behalf of the BBA, before the Legislature’s Joint Committee on Revenue, April 3, 2017

The good thing about this first Revenue Committee hearing is that, by design, all the bills heard were approved by the Committee in the last session.  We hope that our bill will be among those reported favorably again—and that we can push it on for floor votes in each chamber this time.

Those votes would likely happen farther into the session.  For now, the biggest item before both houses is the development of the Fiscal Year 2018 (FY18) budget.  As we’ve noted, the Governor has already filed his proposal for spending the $40+ billion the state expects to take in next year.  Before FY18 begins on July 1, the two chambers will (we hope) come together on a budget package to send back to the Governor—which he may then accept as is, or (more likely) will mostly approve but send back with targeted cuts and some suggested changes.

The next big step in that process takes place this coming week, with the House Ways & Means Committee formally submitting its version of the budget for deliberation by the full House over the rest of the month.

One of the BBA’s biggest priorities, in this or any other year, is funding for civil legal aid in the Commonwealth, which is primarily provided by the Massachusetts Legal Assistance Corporation (MLAC).  MLAC, in turn, receives the bulk of its resources through an appropriation in the state budget.

Our commitment to this issue is reflected by the establishment of a BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, and our adoption of the Task Force report’s primary recommendation, that MLAC funding be increased by $30 million over three years.  Since the report’s release in 2014, state finances have hit a prolonged rough patch in which revenue has consistently missed targeted levels, and despite broad and deep support from Massachusetts legislators, we’ve fallen short of that goal.  Still, the Legislature and the Governor have come through with a 20% increase for MLAC across the last two years, to $18 million in FY17, even as overall spending has grown at a much lower rate.

This year, we are advocating for a $5 million increase in MLAC’s line-item.  Our efforts on civil legal aid are in conjunction with the Equal Justice Coalition (EJC)—a joint partnership of the BBA, MLAC, and the Massachusetts Bar Association—and to help spread the message about civil legal aid on Beacon Hill, and grow our support even further, the EJC held a briefing earlier today (Thursday) for elected representatives and their staffs.

The BBA’s President-Elect Mark Smith, of Laredo & Smith, took part in a panel discussion, to help educate the dozens of State House denizens in attendance.  In particular, Mark underscored both the report’s finding that investment in civil legal aid produces a positive return on investment for state coffers, and the BBA’s continued commitment to fighting for that full $30 million increase in state funding for civil legal aid—even if on-going budget constraints mean that it will take longer to get there than we, or the Legislature, would like.  (You can get more info about that funding here.)

 BBA President-Elect Mark Smith speaking at a State House briefing
on funding for civil legal aid, April 6, 2017

And with the White House recommending that Congress zero out funding for the Legal Services Corporation (LSC), which distributes an additional $5.2 million to providers in Massachusetts, our support from the Legislature at home may be tested even further.  Although the LSC money is independent of the state-level appropriation to MLAC, we would nevertheless certainly feel that loss here, as it represents more than 20% of the total funding for legal services in the Commonwealth.

So as we stay on top of the budget process at the State House—and keep you updated on it—we’ll also have one eye cast on the Capitol in DC.  We’ll be headed that way to make the case for the LSC, and civil legal aid in general, as part of the American Bar Association’s annual ABA Day lobbying event toward the end of April.

More on that to follow in this space … In the meantime, check out our four different podcasts relevant to the larger issue:

—Michael Avitzur
Government Relations Director
Boston Bar Association