Justice System FY16 Budget Update

This week the House Ways and Means Committee released its FY2016 budget proposal.  The $38 billion budget made targeted new investments in early education, substance abuse prevention, and behavioral health.  We were pleased to see some increases in judiciary line items, and applaud the House Ways and Means Committee for all their hard work, which was especially challenging this year as they faced a $1.8 billion shortfall.  Even so, we have some concerns about whether the judiciary received enough to allow it to continue to deliver on its promise of “justice with dignity and speed.”  The Trial Court, legal services, and state attorneys will all face challenges if the budget is adopted in this form.

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

As you likely know, the BBA spent the last 24 months studying and gathering data on civil legal aid, and ultimately releasing one the most comprehensive reports in the nation on the issue, including analyses demonstrating concrete returns to the state on investments in this area.  For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69.  For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in medical care savings.  Finally, for every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.  And this is only in the three practice areas we studied.

Overall, roughly 64% of people seeking legal aid, who qualify financially at 125% of the federal poverty level, are turned away due to lack of resources.  That doesn’t take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.

Investing in Justice asks for $30 million from the Legislature in additional funding for legal services, spread out over three years.  That translates to $25 million in total funding this year, $35 million next, and $45 million in FY2018 funding.  We are confident that these funding levels would make a significant impact and significantly increase access to justice for those in need, while at the same time actually saving the state money.

Governor Charlie Baker’s budget proposal, which was released last month, essentially level-funded MLAC from last year, but the House Ways and Means budget gave it a $2 million increase.

Here is the breakdown:

FY2015 Budget

 

FY2016 Budget
Request$17,000,000$25,000,000
Governor’s Budget$14,000,000$14,731,500
House Ways & Means Budget$13,000,000$17,000,000
Final Budget Appropriation$15,000,000*

* before mid-year cut of 1.79%

Representative Balser is filing an amendment to increase the House appropriation by an additional $5 million, bringing total additional MLAC funding to $7 million and increasing the MLAC line item to $22 million.  We hope that you will contact your state Representative as soon as possible asking him or her to co-sponsor Rep. Balser’s amendment.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples include funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

The Governor’s budget proposal was disappointingly low, prompting a swift response from the Courts explaining that such funding levels would result in the devastating elimination of 550 positions, roughly an 8.4% cut to a court staff which is already pushed to its limits.  Thankfully, the House Ways and Means budget provides significantly more funding – a little over $620 million – and the Trial Court will continue to work closely with the Legislature to sustain its current operations and avoid layoffs.

This is how the funding breaks down:

FY2015 Budget

 

FY2016 Budget
Request$615,000,000 + Modules$642,600,000 + Modules
Governor’s Budget$617,000,000$603,300,000
House Ways & Means Budget$609,000,000$620,533,116
Final Budget Appropriation$612,000,000*

* before mid-year cut of 1.79%

 

Supreme Judicial Court (SJC) (Line Items: 0320-0003, 0320-0010, 0321-0001, 0321-0100)

The state’s highest court, comprised of four line items, took one of the biggest relative hits in the budget, as its House Ways and Means allotment was nearly 5% below its maintenance request.  As a result, the SJC may also have to face employee layoffs unless it can secure additional funding.

FY2015 Budget

(FY15 Final: $8,183,990)

FY2016 Budget

(Request: $12,600,000)

Governor’s Budget$11,554,036$11,554,036
House Ways & Means Budget$11,685,314$12,020,560

 

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS is comprised of four line items that include its own attorneys as well as compensation for private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, making a convincing case that public defenders, bar advocates, and assistant district attorneys, merit higher salaries, and a state commission unanimously agreed with that proposition [link to Issue Spot on this].  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfundedCPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  Neither the Governor nor the House Ways and Means budget propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breadkdown:

FY2015 Budget

(FY15 Final:)

FY2016 Budget

 

Governor’s Budget$187,337,340$186,701,051
House Ways & Means Budget$168,000,000$170,470,051
Final Budget Appropriation$168,000,000*

* before supplemental budget funding

In all, we are still at the beginning of a long budget process.  The next step will be amendments in the House and a floor debate before a House budget is finalized.  The process repeats in the Senate next month – Ways and Means budget, amendments, and debate.  Finally, a Conference Committee reviews the House and Senate budgets to pick a single amount for each line item.

The Governor then has 10 days to review the budget.  He can approve or veto the entire budget, veto or reduce specific line items, veto outside sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We will do our best to keep you updated throughout the budget process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Aid Advocacy and Awards

As we’ve said before, once you understand the workings and impact of legal aid, it’s easy to view the world through this lens.  With near daily news of Massachusetts individuals struggling with issues such as income inequality, evictions, and domestic violence, and the documented increase in families and individuals qualifying for legal aid from roughly 800,000 to one million over the last few years, the time is right for a change in how we view civil legal aid, and how we fund it.  Our Investing in Justice report continues to make that case, both in the news and at the State House.  We are pleased to share that in the last two weeks we met with:

  • Attorney General Maura Healey
  • Representative John Fernandes, House Chair of the Joint Committee on the Judiciary
  • Minority Leader Brad Jones
  • Representative Hank Naughton
  • Representative Sarah Peake
  • Representative David Linsky
  • Representative Joseph Wagner
  • Representative Aaron Michlewitz
  • Representative Tom Sannicandro
  • Representative Chris Markey
  • Representative Carole Fiola
  • Representative Edward Coppinger
  • Representative Tricia Farley-Bouvier
  • Representative Alan Silvia
  • Representative David Muradian
  • Representative Betty Poirier
  • Karen Spilka, Chair of the Senate Ways and Means Committee
  • Senate Majority Leader Harriette Chandler
  • Senator Cindy Creem
  • Senator Jamie Eldridge

We hope that each of these meetings is another step towards more funding for civil legal aid.  We are seeking a total increase of $30 million in funding over the next three years.  The additional $10 million needed this fiscal year would bring total MLAC funding to $25 million and make a huge difference for so many individuals with life-altering issues.  The next major step will be the release of the House Ways & Means Committee’s budget on April 15th.  House members will then have the opportunity to file amendments, followed by a debate on the House floor two weeks later, before a final vote.  The Senate follows a similar process next month.  (Click here for more on the budget process).

Legal aid is also playing a leading role in our 2015 Law Day Dinner.  We look forward to honoring three stalwarts of legal services – Barbara Mitchell, Al Wallis, and Jack Ward.

Mitchell, BarbaraBarbara Mitchell, Executive Director of Community Legal Services and Counseling Center (CLSACC) will be receiving the John G. Brooks Legal Services Award for her career in legal services.  In her eight years with CLSSACC, she has increased the size of that organization’s professional staff by 70%, even while legal services was experiencing precipitous declines in funding.

Before her current role with CLSACC, Mitchell spent 15 years as Managing Attorney of the Greater Boston Legal Services (GBLS) Family Law Unit.  While at GBLS, she dramatically expanded exemplary family law representation for low-income individuals, especially those with domestic violence cases, more than doubling the size of the Family Law Unit to 20 attorneys.  Her work as an advocate both in and outside the courtroom led to a number of positive reforms in domestic violence law in case law and legislation.

Wallis, Al W. - newAl Wallis will receive the Thurgood Marshall Award for his legal services work in the private sector as Executive Director of the Brown Rudnick Center for the Public Interest.  Wallis has served in this role since the Center’s creation in 2001, championing and coordinating the pro bono, charitable, community, and public interest activities of the firm.  He is also the Director of the Brown Rudnick Charitable Foundation Corporation, which is known for its work supporting organizations improving inner-city education.  He is a nationally recognized leader in public interest and corporate social responsibility issues both locally and nationally.

Wallis is also extremely active in the legal and social justice community.  He was elected Co-President of the National Association of Pro Bono Counsel and serves as the Co-Chair of the Boston Pro Bono Roundtable.  He has donated a great deal of time and expertise to various BBA Sections and leadership positions and is also a past president and long-time board member of the Volunteer Lawyers Project of the BBA.

Ward, JackJack Ward will receive the President’s Award for his incredible 30-plus years of service at GBLS.  As Associate Director for Finance and Development until January of this year, he was responsible for overseeing all financial aspects of GBLS and its extensive fundraising efforts.  Ward remains involved in running the annual legal services development conference he helped found more than 25 years ago.  He is nationally recognized as a leader in legal services fundraising for his tireless and innovative work.

In case you’ve never been, Law Day Dinner is the largest annual bench-bar event in the Commonwealth, with over 1,300 judges, lawyers, and legislators from all practice areas and legal sectors.  Attorney General Maura Healey will provide this year’s keynote address, reflecting on the state of the legal community and the future of law.

We look forward to the opportunity to honor three fine individuals who have devoted their careers to legal aid, as we continue to advocate for increased funding for these crucial services.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

New Rules Rule: BBA Participates in MRPC Comment and Review Process

It has been a busy time for rule-related news from the SJC.  First, the SJC posted proposed revisions to the Code of Judicial Conduct, requesting comment from the bar.  Then, only a few days later, the SJC posted the revised Massachusetts Rules of Professional Conduct online.  The full impacts of both remain to be seen, but we are pleased that the SJC has involved the bar in their procedures.

The Code of Judicial Conduct changes, from an institutional perspective, appear to ease some of the restrictions on judicial interaction with attorneys and bar associations.  For example, a number of proposed revisions remove limits on judicial participation at bar association events.  The BBA encourages anyone who is interested to examine the new rules and comment as they see fit.  We plan to do the same.  Comments are due by Friday May 22 and should be sent to the Committee to Study the Code of Judicial Conduct at CodeJudicialConductComm@sjc.state.ma.us. The comments received will be made available to the public, and the Committee will make its recommendations to the Justices of the Supreme Judicial Court following receipt and review of public comments.

The revised rules of professional conduct are the culmination of months of consideration, revision, and even oral argument that began more than a year ago.  In July 2013, with the SJC’s permission, the SJC Standing Advisory Committee on the Rules of Professional Conduct (“SJC Committee”) published its proposed rules for comment.

Many of the proposed changes were based on the model rules proposed by the ABA Ethics 2000 Commission and the ABA Commission on Ethics 20/20.  The BBA’s Ethics Committee and Bankruptcy Law Section both carefully reviewed the rules and composed six comments, which were submitted to the SJC Committee in February 2014.  Following careful review of these and other comments, the SJC Committee submitted revised proposed rules to the Justices of the SJC on May 14, 2014.

In October, the SJC Justices announced their decisions regarding some rules and requested oral argument on certain issues for some others in December.  Ever since then, we have been eagerly awaiting their final decisions.

We were particularly pleased to see some revisions in-line with the BBA’s comments.  Most notably, the BBA’s Ethics Committee encouraged adoption of Model Rule 3.5, lifting the old MRPC prohibition on all juror contact, even after the jury was discharged.  The new adopted rule follows this recommendation with significantly fewer limits on juror communication after discharge, barring contact only if the communication is prohibited by law or court order, the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

Another notable rule change in keeping with recommendations from the BBA’s Ethics Committee was incorporation of the ABA Model Rule into MRPC 7.2, deleting the requirement to retain advertising materials.  The old MRPC required lawyers to keep a copy or recording of all advertisements for two years after its last dissemination.  In their meetings, the Ethics Committee discussed the anachronistic elements of the old rule, and the challenges facing lawyers and law firms with web sites.  The definition of lawyer advertising materials is broad enough to include web and social media communications, making it almost impossible to accurately keep such records.  The new rule is less burdensome and easier to follow.

Finally, the final rules reflect the Ethics Committee’s recommendation to include the “catch-all” category in MRPC 8.4(h), which states that it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on his or her fitness to practice law.”  The Standing Advisory Committee had proposed deleting that language.  While the Ethics Committee expressed concerns about the vagueness of this standard and the potential for its inconsistent application, Committee members were more troubled by the thought that egregious attorney conduct that was not a crime or fraud and not otherwise in violation of a provision in Rule 8.4 would go undisciplined because it was not specifically included in the definition of professional misconduct.  Their comments also noted that the Committee was unaware of any reported abuse of this provision, and that the facts of reported cases under this provision merited discipline.

Because of the voluminous rules changes and the complexity of the MRPC, we look forward to a program hosted by our Ethics Committee in the coming months explaining the new rules and their implications for practitioners.  We also expect to take part in a similarly comprehensive and successful comment and review process in the near future for the proposed revisions to the CJC.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Out and About: BBA Budget Excursions

Since Governor Charlie Baker released his state budget proposal at the beginning of this month, funding the Massachusetts Legal Assistance Corporation line item below its original FY15 amount, we’ve increased our focus on Legislative meetings, trying to meet with as many legislators as possible before the House and Senate file their own versions of the budget.  , Thus far, we have held meetings with House Speaker Robert DeLeo, Senate President Stanley Rosenberg, House Ways and Means Chair Brian Dempsey, House Speaker Pro Tempore Patricia Haddad, Senate Judiciary Chair William Brownsberger, Senate Minority Leader Bruce Tarr, and others.  And by the time the two houses begin to debate the budget, we plan to have met with legislators or staffers from the following offices:

  • Representative Ronald Mariano (House Majority Leader)
  • Representative Byron Rushing (House Assistant Majority Leader)
  • Representative Garrett Bradley (House Second Assistant Majority Leader)
  • Representative Michael Moran (House Division Chair)
  • Representative John Fernandes (House Judiciary Chair)
  • Representative Aaron Michlewitz (House Financial Services Chair)
  • Senator Sal DiDomenico (Vice-Chair, Senate Ways and Means)
  • Senator Pat Jehlen (Assistant Vice Chair, Senate Committee on Ways and Means)
  • Senator Harriette Chandler (Senate Majority Leader)
  • Senator Cindy Creem (Senate Assistant Majority Leader)
  • Senator Anthony Petruccelli (Senate Majority Whip)
  • Senator Kenneth Donnelly (Senate Assistant Majority Whip)

As of this post, we have met with ten of the above twelve listed legislators, and their reactions have been overwhelmingly positive.  Most are well versed in the issues that have put a major strain on legal services providers – the drop in IOLTA funds and the increase in poor population – and have been long-time supporters of legal-aid funding.  Many knew firsthand of constituents whom they referred to legal services providers.  While all reminded us that this year’s budget situation is unusually bleak due to the massive deficit, we have heard repeatedly that our message on the investment value of legal-aid funding is getting through, and that, once again, many members are flagging the line-item for the Massachusetts Legal Assistance Corporation (MLAC) as one of their top budget priorities.

The next step in the budget process comes from the House Ways and Means Committee, which is expected to release its budget on April 15.  The Senate’s budget will likely come out in May.  We still hope to see a major increase for civil legal aid funding, and will keep you posted on the process.

In the meantime, the Ways and Means Committees of each house have been holding joint hearings across the state, each on a different part of the budget.  Wednesday’s hearing in Worcester focused on the judiciary budget, taking testimony from the likes of Chief Justice of the SJC Ralph Gants, most of the state’s district attorneys, Chief Counsel Anthony Benedetti of the Committee for Public Counsel Services (CPCS), and MLAC Executive Director Lonnie Powers.

Chief Justice Gants told Committee members that the Governor’s budget plan would effectively cut $40M from the $642M that the courts would need simply to maintain existing levels of service.  The impact would be devastating to the delivery of justice, he warned, which “must be among the highest priorities of government.”  Layoffs of hundreds of court employees would be required, and the overall effect would be to undermine recent reforms and efficiencies that have been made possible by a stabilization in court budget levels after sustaining disproportionate cuts in the wake of the Great Recession.

Trial Court Administrator Harry Spence noted that, by law, courthouses cannot be closed without legislative approval, yet without proper funding, there may not be enough staff to keep all of them operating at sufficient levels.  Paula Carey, Chief Justice of the Trial Court, called the courts “ground zero” for society’s problems, saying, “We see the sea of humanity.”  The epidemic of opioid addiction has hit the courts particularly hard, with some overdosing on court property.  The courts, she said, are also hard at work implementing new laws on domestic violence and gun possession, and they will need money to conduct on-line education for staff.

Their testimony also covered two key BBA priorities that came up short in the Governor’s budget: expansion of the Housing Court to offer statewide jurisdiction, and expansion of the successful specialty courts for mental health, substance abuse, veterans, and the homeless.

Although DA’s and CPCS generally line up on opposite sides of the courthouse, they were in complete agreement on one point at the hearing: They are unable to attract and retain new attorneys at current funding levels.  Both pointed to the report last December from a commission established by former Governor Deval Patrick, which emphasized the embarrassingly low starting salaries for ADA’s and public defenders – about $40,000 for each – and recommended instead a minimum of about $56,000 for each, to match the lowest-paid attorneys in the executive branch.

Lonnie Powers spoke eloquently of the value of funding for legal aid, citing the report of the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, which demonstrated through independent economic analysis that the state actually receives a positive return on that investment, in the form of both reduced “back-end” costs on things like health care for domestic-violence victims and shelter for the homeless, and the economic growth that’s generated when Massachusetts residents are able to receive the full federal benefits to which they’re entitled.

Powers mentioned the report’s additional findings that 64% of qualified applicants for legal aid must be turned away by providers for lack of resources, and that judges reported a flood of pro se litigants clogging up their courts.  He said MLAC closed 34,000 cases last year and trained private attorneys who put in an additional 46,000 pro bono hours.

Budget season is heating up, and we will continue to update you on our advocacy efforts.

— Michael Avitzur
Government Relations Director
Boston Bar Association

An Inside Look: Court Management, Court Comments, and the Governor’s Legal Counsel at This Month’s BBA Council

At the BBA, we are always eager to hear a variety of perspectives on the justice system, and our Council meetings often provide an opportunity to do that.  This week’s Council meeting was especially fruitful, as Council heard from two very important individuals working to improve the justice system, Glenn Mangurian and Lon Povich, in addition to considering comments from two of our sections.

Our Council regularly considers policy-related items, and this week’s agenda included informal comments from our Bankruptcy and Real Estate Law Sections on a proposed Trial Court standing order for the BMC and District Court that would require plaintiffs to verify defendants’ addresses for claims incurred in trade or commerce or pursuing assigned debt.  Council discussed and approved comments that were sent to the Trial Court for its consideration.  We appreciate being asked to weigh in and hope that the Court finds these thoughtful comments helpful.

The conversation then turned to our justice system, with a presentation from Glenn Mangurian, Chair of the Court Management Advisory Board (CMAB).  The CMAB was established by the Legislature in 2003 after issuance of the report of the Monan Commission, which had been appointed the previous year to provide an independent perspective on the state of management in the judiciary and to make recommendations for its improvement.  The CMAB has a similar but enduring role.

_MG_1071

The CMAB is comprised of two ex-officio members and 10 members who are invited to participate by the SJC.  They all serve 3-year terms and can be reappointed to one additional term.  The Board, currently in its third iteration, elects its own chair.  Mangurian is only non-lawyer member and the first non-lawyer chair.  As he explains it, the CMAB is a working board.  It meets with all the chief justices of the various Trial Court departments and monthly with SJC Justice Margot Botsford, and with Trial Court leaders, Chief Justice Paula Carey and Court Administrator Harry Spence.  Mangurian also sits down with SJC Chief Justice Ralph Gants on a quarterly basis.

The CMAB issued a report in 2014, its most comprehensive and the first since 2010, describing the state of management of the courts.  In briefest terms, the report explains that the court has new leadership and is quickly moving in the right direction.  It also makes four recommendations for improvement:  First, the report espouses increased use of data and “organizational learning,” whereby the courts constantly reconsider each aspect of justice administration by studying other courts, other states, and other cultures.  The data recommendation calls for an evidence-based approach to problem-solving.  The courts have done a good job, particularly in recent years, of collecting data   as Mangurian explained, and it is now time to use those data to tweak court operations and expectations.

Second, the report discusses leadership, with a focus on encouraging the Trial Court to cultivate future generations of leaders.  Under this theory of talent development, the courts should give employees the opportunity to build careers, with room for advancement to reward individuals demonstrating ambition and potential.

The report next addresses the court “user experience,” which is the sum of every interaction – from the phone to the website, parking lot, and courthouse interiors.  It places an emphasis on hearing the voices of court users — a diverse group including lawyers, litigants, jurors, witnesses, victims, family members, and more, each with different needs and experiences — and trying to meet those needs as well as possible.

The final recommendation calls on the SJC to maintain a close relationship with the Trial Court, operating like a board of directors and working to build the public’s trust in the judicial system.  Mangurian reported that the SJC is already embracing this directive and now meets regularly with leaders of the Trial Court to discuss both immediate and long-term issues.

After Mangurian left, the Council welcomed back Governor Charlie Baker’s recently-appointed Chief Legal Counsel, and former BBA Council member, Lon Povich.  Having served roughly 65 days, Povich explained the whirlwind he’s experienced in his new position, through the worst winter in Boston’s history and a gaping budget deficit.  He broke down the Governor’s budget proposal for Council members, noting level-funding for the courts and civil legal aid (as well as for most areas), and explained the many difficulties the new administration faced in its preparation, including a short timeframe and major public transportation challenges, not to mention a mandate from the Governor not to raise taxes or fees._MG_1102

He also spoke about the judicial nominating process.  The Governor issued a new executive order (#558) at the end of January that reconstitutes the Judicial Nominating Commission (JNC).  The JNC is a 21- member statewide, non-partisan, non-political, non-compensated body that screens applications for judicial and clerk-magistrate positions.  Povich, who served for seven years on the JNC himself, spoke with great respect for their process and the amount of work JNC members do.

The Executive Order makes some minor tweaks to that process – for example, changing the language used to rate candidates (from “highly qualified,” “qualified,” or “less qualified” to “well qualified,” “qualified,” or “not qualified”, in keeping with the language used by the Joint Bar Committee) and increasing the threshold voting percentages for approval, with 50% (up from 40%) now required to advance to the “due diligence” stage, and 2/3 (up from 60%) now required for recommendation to the Governor.  Those increases were a nod to the amount of work conducted by the JNC in each step of their reviews, and will generally require an additional one or two votes.  He also spoke of the importance of recruiting strong judicial candidates and pledged that the Baker Administration will continue the pattern of exceptionally qualified and diverse nominees.

The BBA was pleased to hear from these accomplished individuals providing their different perspectives.  In one meeting, the BBA Council was able to provide the courts some insight from practitioners on a proposed standing order, learn about court management, and receive a report from the Governor’s office on court funding and the judicial nomination process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Governor Baker Submits His First Budget

Governor Charlie Baker released his first annual state budget proposal on March 4 and, generally speaking, most spending was held to no more – and in some cases less – than last year’s funding levels.  This is true for civil legal aid and most of the rest of the judiciary budget – key BBA priorities.  Neither does it provide for increases in the minimum salaries for assistant district attorneys and public defenders.

Although disappointing to be sure, these outcomes were not especially surprising, given that the Governor had identified a budget gap he estimated at $1.8 billion, and that he had stated he would nevertheless hold to his pledge not to increase any taxes or fees.  Required by state law to balance the budget, he chose to limit spending as the primary means to do so.  In total, the budget adds up to $38.1B, a 3.0% increase over the current fiscal year 2015 (FY15).

The Governor’s plan has been formally submitted to the Legislature, which will spend the next three or four months developing its own budget to send back to the Governor.

The BBA will of course continue to advocate for appropriate funding for the courts, and for a $10 million increase in funding for civil legal aid, as recommended by our Statewide Task Force to Expand Civil Legal Aid in Massachusetts in their recent report Investing in Justice.

(As you’ll recall from previous Issue Spot entries, that report used independent economic analyses to demonstrate that money invested by the state in civil legal aid actually produces a positive return on investment in the form of savings on back-end costs for things like health care for domestic-violence victims and shelter for the homeless, as well as the economic growth fueled when residents obtain their rightful federal benefits.)

Scroll down to learn how you can help with that effort!  But first, a brief primer on the budget process is in order:

The state’s fiscal year runs from July 1 through June 30, so the budget currently being debated is for Fiscal Year 2016 (FY16), which begins July 1, 2015.  The process begins in December or January with an agreement – known as the consensus revenue estimate — among the Governor, the Senate, and the House on how much money the state expects to collect during the coming fiscal year.  This year, they concluded revenue would expand to 4.8% higher than projections for the current fiscal year.

The Governor, with the help of his Executive of Office of Administration and Finance (ANF), then decides how much of that estimated revenue to spend on each of the hundreds of line-items that the budget is broken down into.  The budget may also incorporate proposals to increase revenue available to the state, either from one-time sources (such as this year’s plan to divert $300 million in capital-gains taxes into the General Fund rather than the “rainy-day” fund) or from on-going sources (such as a permanent hike in a tax or fee).

Next, the budget is delivered to the Legislature in the form of a bill, known as H. 1 (or “House 1”) in odd-numbered years and H. 2 in even-numbered years.  It is ordinarily due in late January, but when a new Governor takes office, as happened this year, there’s a grace period until early March.

Whether or not there is a new Governor, the timeline for the Legislature remains basically the same: The Ways and Means Committees of each house will soon hold a series of joint hearings across the state, each focused on a different area of the budget.  (The BBA is primarily interested in the hearing on the judiciary, which has yet to be scheduled.)

After hearing from House members about their individual budget priorities, the House Ways and Means Committee releases a budget, expected on April 15 this year.  Historically, it makes significant changes to the Governor’s bill, and this year should be no different.  House members then have about two days to file proposed amendments, which are debated over two or three days two weeks later, before a final vote is held.  Next, the Senate follows a similar process, with a final vote on their budget typically taking place in late May.

Because the two houses’ budgets inevitably differ, a joint conference committee then spends several weeks reconciling the differences.  Their goal is to deliver a budget to the Governor before the July 1 start of the fiscal year.  The Governor has ten days to act on the budget, and he wields “line-item veto” power (denied to the President, but available to Governors in many states), meaning he can approve the budget as a whole while vetoing or reducing specific line-items, but the Legislature can then override these changes with a two-thirds vote in each house.

But wait — the process is not quite over, because there are frequently supplemental (“supp”) budgets enacted during the fiscal year, as new costs arise (such as, well, extraordinary expenses for snow and ice removal) and as revenue numbers come in either higher or lower than anticipated.  And when a large hole opens up in the budget, a Governor can make unilateral “9C” cuts to the executive branch’s budget and urge the Legislature to do the same in the remainder of the budget, as Governor Baker did recently, and as Governor Deval Patrick did last fall.

(If this kind of “inside baseball” interests you – that is, if your eyes didn’t glaze over while reading the last several paragraphs – you should definitely attend our “Budget 101” event next Thursday, March 19, aimed at demystifying the budget process.  The program starts at 5:30 PM and features top staffers from ANF, the Senate President’s Office, and the House Ways and Means Committee.  A networking reception will follow.)

As you can see, we are still at the early stages of this process for FY16.  Nevertheless, the BBA has been working for months to advocate for our priorities of court funding and civil legal aid.  We have had meetings with leadership of all three branches of government and with more than a dozen legislators and their staffs, and we will continue to do so.

You can help in this effort by contacting your Senator and Representative, to let them know you value civil legal aid, that it actually saves the state money, and that you want them to make it a priority in their discussions with Ways and Means.  You can find talking points here, a fact sheet on our Task Force report here, and contact information for your own legislators here.

— Michael Avitzur
Government Relations Director
Boston Bar Association

The Gambling Fix: How Our Casino Helps the State

A couple of weeks ago, if you were anywhere near the BBA, you may have heard voices chanting outside the State House.  Their shouts echoed through 16 Beacon – around 800 young people marching from the Old South Church to the State House, demanding a change after the Governor cut funding for 160 youth jobs as part of his budget fix to close a $768 million budget gap.  This measure, coupled with the increase in minimum wage, could result in 1,000 fewer jobs for youths this year.

The funding at issue comes from an Executive Branch program administered by the Commonwealth Corporation, YouthWorks, also known as “Summer Jobs Program for At Risk Youths” (line item 7002-0012), which received a $10.2 million appropriation for the FY15 budget.  The Commonwealth Corporation is a quasi-public state agency within the Executive Office of Labor and Workforce Development.  Because it is part of the Executive Branch, the Governor has so-called 9C authority to cut its funding in order to balance the state’s budget.  In this case, Governor Charlie Baker’s cut will reduce YouthWorks funding by $370,000 over the course of the year.

YouthWorks provides job opportunities and training for individuals ages 14-21 and living at 130% of the federal poverty level in targeted high-risk cities of Massachusetts.  The program subsidizes jobs with local public, private, and non-profit companies and mandates a minimum of 15 hours of job readiness training for its participants.

With this news, the Boston Bar Association Summer Jobs Program carries increased significance.  The BBA works in concert with its charity, the Boston Bar Foundation, to provide paid summer internships to Boston public high school students in law firms, businesses, non-profits, the courts and government agencies.  In addition, students in the program attend an orientation as well as weekly seminars on law-related and professional development topics.  Last year, the program provided 64 internships to Boston teens, including 14 positions in legal service and government agencies funded by the Boston Bar Foundation.  Meet some of the BBF-funded students and learn about their experiences in the program here.

DSC_0119-002Coincidentally, our annual fundraising event for the Summer Jobs Program is only days away.  On March 12, the BBA will be transformed into a two-story casino for the annual Casino Night for Summer Jobs event. Your ticket to Casino Night gets you access to one of our most fun events with live entertainment, a silent auction, hors d’oeuvres and a beer and wine bar, and of course casino games.  (Check out pictures from past years).  Best of all, the proceeds give Boston area students great opportunities for paid meaningful summer employment that they would not otherwise have.

Another casualty of the budget deficit fix was civil legal aid funding – money that helps provide lawyers to individuals living at 125% of the poverty level secure or maintain basic life necessities such as avoiding foreclosure and eviction or gaining protection from a batterer.  The FY15 appropriation for the Massachusetts Legal Assistance Corporation (MLAC) was cut by 1.79%, or roughly $268,500 by a bill proposed by the Governor and approved almost unanimously by the legislature.  Because MLAC is part of the judicial branch, budget (line item 0321-1600), the Governor cannot cut it directly through his 9C authority.  However, the Governor can propose cuts in bill form to the legislature, which they can pass, as happened here.

The judiciary as a whole suffered a 1.79% mid-year cut, which of course is of great concern to us as well.  Governor Baker’s budget proposal for next year, FY16, was released just yesterday, and it too reflects strained circumstances, arriving as it does in the context of a significant budget gap.  (We will have more to say on that next week.)

As a result of the MLAC cuts, fewer people can access legal aid attorneys now than ever before.  According to our recent study, Investing in Justice, 64% of eligible individuals are turned away from legal aid due to lack of resources.  Not only does this mean that 54,000 people are hindered in accessing justice each year, but it also has a massive impact on the courts.  According to our survey, over 90% of judges felt that the increased number of pro se litigants bogged down court procedures and burdened court staff.

Like the summer jobs cuts, this problem has a solution.  We are asking the Legislature to increase legal aid funding by $30 million over three years, bringing the total MLAC appropriation request this year to $25 million.  We hope you will join us in this ask.  According to the work of independent economic analysts, civil legal aid is a smart investment.  For every $1 spent, the state actually gets a positive return on investment, either directly from back end savings on social services expenses such as law enforcement, shelter, and medical costs, or through economic growth.

The budget deficit has created major challenges for many areas of the budget, but few issues were hit harder than youth employment and civil legal aid.  So our ask this week is two-fold – enjoy a great evening out at Casino Night to support youth summer jobs and contact your legislator to voice your support for civil legal aid funding.  Making a difference is that simple!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Recent Developments in Capital Punishment

This week, the BBA’s position on the death penalty is back in the news, after BBA President Julia Huston released a statement urging the Department of Justice (DOJ) to take the death penalty off the table in its prosecution of the Boston Marathon bombing case and instead pursue a sentence of life without the possibility of parole.

The BBA has opposed the death penalty for more than 40 years, and just over a year ago we clarified that our position extends to federal cases as well.  In doing so, the BBA ratified the work of our Death Penalty Working Group, which had released a report on the issue entitled “The BBA and the Death Penalty”.

The report found that the inevitability of error makes it overwhelmingly likely that innocent defendants will be executed, and that the death penalty disproportionately affects racial and ethnic minorities. Furthermore, even when the facts of a specific case do not appear to raise questions about innocence or discrimination, pursuit of the death penalty is fraught with delay, inordinately expensive, and offers only the illusion of ultimate punishment.

As you may be aware, there has been significant movement away from the death penalty even in the past year, as demonstrated both in polling numbers that show a sharp drop in support, and in statements and actions from public officials.

Although six states have repealed their capital-punishment laws since 2007, prosecutors may still seek the death penalty in 32 states and in federal cases.  Yet governors in four of those states have taken executive action to place a hold on executions—most recently Pennsylvania’s newly-elected Governor Tom Wolf, who had pledged, as a candidate, to do so.  Many of the other 28 states currently have executions on hold pending state reviews, state litigation, or the Supreme Court’s decision later this year in Glossip v. Gross.

Glossip presents a challenge to the use of Oklahoma’s death-penalty drug “cocktail,” after three botched executions across the country in 2014.  Citing similar concerns, the governor of Ohio last month imposed a moratorium on use of the death penalty there for the remainder of 2015.  And just this past week, out-going U.S. Attorney General Eric Holder called for at least a temporary nationwide halt to all lethal injections.  Complications from the drugs currently used for lethal injection, which is the preferred method of administration in every capital-punishment state, are symbolic of the broken system that the BBA Working Group described.

The AG also expressed his concern about the possibility of the execution of an innocent person, which he called “inevitable,” echoing our Working Group.  Indeed, the steady drumbeat of news stories about prisoners being released from death row, upon findings that they were wrongfully convicted, has been another factor in changing public opinion.

We wrote in this space last summer about two North Carolina brothers who were exonerated after 30 years.  Since then, three men in Ohio had their murder convictions overturned nearly 40 years after a trial in which the prosecution’s case rested chiefly on the eyewitness testimony of a 12-year-old boy, who later recanted and was shown to have been elsewhere at the time.  This brings the confirmed total number of condemned prisoners who have been exonerated from death row to 150 in the past 42 years.

It is in this context that the trial of the accused Boston Marathon bomber begins at the Moakley Courthouse.  At the time of writing, jury selection has been underway for nearly seven weeks, and defense attorneys continue to pursue a change of venue.  Prosecutors from the US Attorney’s Office have said they will ask jurors to impose the death penalty.

Proceeding to a full trial with the death penalty as an option likely means many years of delays and appeals before a death sentence would be carried out, if ever. The BBA Working Group found that appeals last an average of 16 years, and that less than 1% of cases in which the DOJ seeks death actually result in execution.  Such delays would serve to keep the alleged bomber’s name in the news for the foreseeable future.

In the alternative, prosecutors could take the death penalty off the table and explore the possibility of a plea bargain that might result in a life-without-parole sentence.  There is certainly precedent for such an approach, including in the prosecutions of the so-called Unabomber and the accomplice to the Oklahoma City bombing—both of whom have largely disappeared from public notice since their sentencing.

Such an outcome would offer multiple benefits: The entire case could be concluded expeditiously and a definitive sentence imposed, allowing for closure and putting the focus back on continuing to help the victims, their families, and the city heal from this gut-wrenching tragedy.  What’s more, the trial could proceed directly to sentencing, with an opportunity for impact statements from victims and their families, who could confront the defendant and tell him directly how the crime profoundly affected them.

There is still time for the DOJ to seek a plea deal that would obviate the need for a trial and ensure that the defendant lives out his life in the obscurity of a federal super-max prison.  Just today, the nomination of current US Attorney Loretta Lynch to become the next Attorney General advanced to the Senate floor.  We hope that, once sworn in, she will take a fresh look at the case and agree with our suggested approach.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Amicus on the Practice of Law and Attorney Sanctions

It’s been a little while since we last updated you on our Amicus Committee.  As of a few months ago, they were busy discussing the merits of an amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions.  They ultimately decided to recommend that the BBA sign on to a brief supporting this right, which also quoted from three different BBA working group and task force reports, including our Investing in Justice report on civil legal aid.  We did sign the brief, and the SJC recently adopted our position, as BBA President Julia Huston explained in her most recent blog post.

Since then, the BBA’s Amicus Committee has been extremely busy, most notably with the case of Wong v. Luu (SJC No. 11789).  Though the facts are complex and often somewhat unclear from the record, the appeal arises from two orders issued by a Superior Court Justice for sanctionsof $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based Asian food markets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.

The Amicus Committee was first contacted about this case in late December 2014.  After thorough deliberation and input from a number of the attorneys involved in the litigation, as well as from members of the BBA’s Litigation and Civil Rights and Civil Liberties Sections and Ethics Committee, the Amicus Committee decided to recommend filing an amicus brief.  The Committee concluded that the case raised serious concerns regarding the practice of law, specifically, whether an attorney could be sanctioned for violating an assumption of confidentiality and whether a full evidentiary hearing should be held before a judge can issue sanctions, especially sanctions of this magnitude.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, Sherin and Lodgen LLP, to draft the BBA’s brief.  The record in this case is a bit tangled, and it took a lot of discussion to identify which issues the brief should focus on, but we couldn’t be happier with the result.  The brief requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order. In addition, it argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

BBA leadership unanimously approved the brief and it was filed on February 13.  Oral argument is scheduled for March 3, and we hope that the SJC will find our brief helpful as it considers these complex issues.  As always, we will keep you posted on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

 

The Power of Clemency

The power to grant pardons and commutations – a little-known aspect of a Massachusetts governor’s authority, and one that has been rarely used in recent years – has sprung into the public’s attention in recent months, leading us to review how that power may be exercised, offer some history, and assess the current state of play.

Under Article LXXIII of the state constitution, “The power of pardoning offences … shall be in the governor, by and with the advice of [the Governor’s C]ouncil.”  Pardons wipe a conviction from the grantee’s record; commutations, which are also covered by the constitutional language on pardons, shorten a sentence but leave the underlying conviction in place.  Applications for pardons and commutations — collectively termed “clemency” — are reviewed by the Parole Board, which — acting in its capacity as the Advisory Board of Pardons, and with the help of its Executive Clemency Unit — ensures that the requirements for clemency are met, conducts investigations about petitioners, holds hearings if appropriate (with opponents of clemency in each case invited to speak), and makes a recommendation to the governor.  If a governor approves clemency, the decision must then be ratified by the Governor’s Council.

Recent governors have, at least in theory, solicited formal clemency requests.  But the reality is that few such requests have been approved in the past couple of decades.  Indeed, until the past few months (see below), no pardon had been granted in Massachusetts since 2002.  Nor had any commutation been forthcoming since 1997, when Governor Bill Weld commuted the life sentence of Joe Salvati, who had served nearly 30 years for a crime he didn’t commit.  Even by then, only seven had been granted in the previous 10 years – with pardons also becoming less frequent — according to a 2009 article in the Boston Globe Magazine, which posed the rhetorical question, “Is [the justice] system [one] that allows for redemption and reevaluation over time, or is it strictly a system for retribution, where the judge and jury forever have the last word?”

That same article, noting several other states with far-higher rates of commutations, traced the decline in the granting of commutations back to the case of Willie Horton, which figured prominently in Governor Michael Dukakis’s unsuccessful campaign for President in 1988.

Across the country, pardons have traditionally been granted most often at the tail end of the calendar.  Surely the Christmas holiday has something to do with that timing, and perhaps the approach of a new year does as well.  It is especially common for a governor, or a President, to offer pardons or commutations at the very end of his or her last term, free from the need to seek re-election.

And so it happened that in 2014, Governor Deval Patrick, with his time in office drawing to a close, rewrote the rules he had previously applied to clemency requests, with an eye toward encouraging more applications.  For example, the new pardon guidelines did away with the requirement that a petitioner demonstrate a “compelling need” for clemency, instead focusing on whether he or she had made “extraordinary contributions to society” or faced a deportation that would be “unnecessary for public safety” and generate “especially harsh or unfair consequences.”  Commutations, under the guidelines, should be approved only if the petitioner can show the sentence was “unduly harsh” – either for a non-violent offense or as the result of the joint-venture or felony-murder laws – or that the petitioner has served a substantial portion of the sentence and is suffering from either a terminal illness or a serious debilitating condition.  For either type of clemency to be granted, applicants should “present no current risk of reoffending.”

About 70 people applied for pardons in the last year of Governor Patrick’s term, but only eleven have yet received hearings, and of those only four were granted pardons.  Among them were True-See Allah, a former gang member who now heads the Suffolk County Sheriff Department’s Boston Re-Entry Initiative, and Jeffrey Snyder, who has kept a clean record since serving two years after being caught selling marijuana as a teenager in the 1980s and said his conviction has kept him from pursuing his dream job as a high school sports coach.  In addition, one sentence was commuted — that of Deanne Hamilton, a recovering cocaine addict who said her substance abuse stemmed from childhood sexual abuse.  Hamilton had previously been released when her conviction was vacated but was sent back to prison when the Appeals Court reinstated her sentence.   She had three years left to serve at the time of her commutation.

Since taking office, Governor Charlie Baker has withdrawn Governor Patrick’s guidelines, promising to announce his own guidelines shortly.  In the interim, however, the remaining applications are in limbo, with Parole Board hearings on hold for those applicants — including, most famously, Mark Wahlberg.  We will continue to follow this issue.

— Michael Avitzur
Government Relations Director
Boston Bar Association