SJC Decision Commonwealth v. Rossetti Cites Two BBJ Articles

We were pleased to find not one but two citations to the Boston Bar Journal in last week’s SJC decision on Commonwealth v. Rossetti. In this important ruling Justice Cypher, writing for a majority, starts by stating, “[O]ver the years, our sentencing jurisprudence has become less than clear,” adding, in a footnote, “This lack of clarity was also recently observed in a Boston Bar Journal article on this court’s sentencing jurisprudence related to mandatory minimum sentences, with the author”—Massachusetts AAG Jared Cohen—”titling one section, ‘Confusing Cases, Confusing Law.'”

Justice Wendlandt filed a dissent to argue, in part, that the Court’s approach—in particular, its overturning a previous SJC decision, which limited the application of mandatory minimums—would set back the cause of reducing racial and ethnic disparities in sentencing. To help underscore the urgency of that effort, she cites another BBJ article, this one penned by former SJC Chief Justice Ralph Gants and former Trial Court Chief Justice Paula Carey—“Creating Courts Where All Are Truly Equal”, describing it as “reiterating [their] call to ‘recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all’.

Talk to the Hill for Civil Legal Aid 2022 Recap

On January 27th, the Equal Justice Coalition (EJC) held the 23rd Annual Talk/Walk to the Hill event, drawing bar association leaders, private law firms, general counsel, legal aid organizations, and law students from across the state to advocate for civil legal aid funding. This year, 845 participants gathered online to “talk to the hill,” requesting $41 million for the Massachusetts Legal Assistance Corporation (MLAC) in the state’s Fiscal Year 2023 budget – line item 0321-1600.

Attendees heard from an impressive line-up of speakers including Massachusetts Attorney General Maura Healey, Supreme Judicial Court Chief Justice Kimberly Budd, Assistant Speaker to the U.S. House of Representatives Katherine Clark, and Boston Bar Association (BBA) President Deb Manus – alongside other members of the EJC. In her address, President Manus thanked the legal community for continuing to show up for civil legal aid and reminded folks of the impact that this yearly advocacy has had.  

“By coming back each January we emphasize that the need is still there and that access to justice still matters.”

Deb Manus, Boston Bar Association President

Carol, Ed, and Jean, three of the clients of MLAC-funded organizations who spoke at the event, described the impact of civil legal aid on them personally and shared how lawyers helped them stay in their homes when they lost income due to the pandemic and helped them obtain rightfully owed benefits. Following these inspiring speakers, participants were invited to meet with their legislators in virtual break-out rooms to advocate for a $6 million dollar increase in MLAC funding over the current budget. Over 50 legislative offices were represented and hundreds of lawyers stayed on to discuss the importance of increasing civil legal aid with them.

While the Governor’s budget has recommended level-funding MLAC at $35 million next year, the BBA will continue to advocate for an increase to $41 million to meet the escalating need brought on by the pandemic as the Massachusetts House and Senate budget processes progress throughout the spring. Check back here for updates!

Click here to hear from MLAC clients about the true impact of civil legal aid or here to watch the 2022 Talk to the Hill program.  

Summer Colley

Government Relations Assistant

The Haitian Migrant Crisis: Immigrant Rights, Impacts, and Access to Justice

“When…the federal or state government or members of the public target a population and limit or seek to limit that group’s access to judicial or administrative forums, it creates a vulnerable subclass, undermining our system of democracy and the Constitution.”

Boston Bar Association Immigration Principles

In mid-December, the BBA hosted a panel discussion on the Haitian migrant crisis featuring Dr. Geralde Gabeau of Immigrant Family Services Institute (IFSI), Sara Wilson of Lawyers for Civil Rights (LCR), Nancy Kelly of Greater Boston Legal Services (GBLS) and Irene Freidel of Political Asylum/Immigration Representation Project (PAIR Project). Boston is home to the third-largest population of Haitian immigrants in the U.S. and has seen an increase in Haitian asylum-seekers during the past several months following the assassination of President Jovenel Moise and the 7.2-magnitude earthquake that devastated the country last summer. Inhumane treatment of asylum-seekers at the border garnered outrage and national attention in the fall but did not stop the U.S. from using a provision of federal health law, called Title 42, to deport thousands of Haitians without processing their immigration or asylum claims. A fact-finding mission at the border, conducted by LCR, documented horrible conditions in detention and denial of basic rights, which ultimately led them to file a complaint on behalf of 48 Haitians who experienced this treatment at the border.

Once away from the border, those Haitians who arrive in Boston still face on-going legal and material challenges. IFSI Executive Director Dr. Geralde Gabeau explained during the panel that inadequate access to government benefits such as MassHealth and Department of Transitional Assistance (DTA) services is crippling to Haitian refugees, who often arrive in Boston with only the clothes on their backs. Many do not have money to pay for basic necessities, let alone a stable source of income, and also face a steep language barrier to accessing services and navigating the immigration system. Lack of communication from U.S. government agencies overseeing border patrol operations coupled with insufficient documentation and paperwork for those who are allowed entry has made it difficult for IFSI and legal organizations to prepare for refugees’ arrival. As the U.S. has yet to provide relief under Temporary Protected Status (TPS), countless Haitians are forced to pursue their cases in court, with approximately 90 percent being denied asylum in cases without representation, and 82 percent of those with representation being denied – according to GBLS Attorney Nancy Kelly.

“Immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses.”

Principle 3, Immigration Principles

The BBA’s commitment to access to justice for immigrants, as laid out by our Immigration Principles, implores that all people must be afforded a meaningful opportunity to have their claims for asylum heard without fear of deportation. As described by Principle Three: “Immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses.” Despite the border having been re-opened for travel and commerce, the Biden Administration has continued to use Title 42, to deny immigrants access to asylum and due process.

Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.

Principle 4, Immigration Principles

The Boston Bar’s Fourth Immigration Principle states that “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” As clearly described by our panel, Haitians are being denied meaningful access to justice to make their claims, as thousands were deported under Title 42, and those who are still here cannot be expected to navigate the judicial system without access to basic human necessities, language support, and assistance navigating complex bureaucratic systems.

“Our history, culture, economy, and traditions have been shaped by…the unique and invaluable contributions of immigrants”

Principle 1, Immigration Principles

What can be done? Federal authorities can exercise their discretion to grant Haitian families immigration protection through humanitarian parole, parole-in-place or deferred action. The Biden administration could extend TPS to Haitians who arrived past July 2021 to provide at least temporary relief while they recover from traumas during their travel and those inflicted at the U.S. border. Beyond advocating for federal action, anyone can volunteer to assist newly arrived immigrants with organizations like IFSI, and lawyers can help through pro bono opportunities at LCR, GBLS, and PAIR Project. The BBA’s First Immigration Principle states that Boston is, and has always been, a city of immigrants: “Our history, culture, economy, and traditions have been shaped by…the unique and invaluable contributions of immigrants,” and the protection of their rights and dignity is essential to the creation of a more diverse, vibrant, and equitable Commonwealth.

Ashley Alphonse, Executive Assistant

Summer Colley, Government Relations Assistant

Immigration Update

 BBA Hosts Panel on the Haitian Migrant Crisis – A Boston Perspective  

This week the BBA hosted a panel of local experts on the Haitian migrant crisis: Dr. Geralde Gabeau of Immigrant Family Services Institute, Sara Wilson of Lawyers for Civil Rights, Nancy Kelly of Greater Boston Legal Services, and Irene Freidel of Political Asylum/Immigration Representation Project. The recent instability in Haiti brought about by the assassination of President Jovenel Moise in July and an earthquake that killed over 2,000 people and injured 12,000 more in August, contributed to thousands of Haitian people seeking asylum at the U.S. border this fall. Many Haitians have since made their way to Boston, which is home to the third-largest Haitian-immigrant population in the U.S. Our esteemed panelists led an engaging discussion on historically discriminatory immigration policies against Haitians, the challenges experienced by newly arrived migrants in Boston, their mistreatment at the border, and the legal action being taken in response. The need for legal assistance for Haitian migrants is clear, with approximately 90 percent being denied asylum in cases without representation, and 82 percent of those with representation being denied. The full recording of this program is available on the BBA website, and you can check back here for an in-depth analysis of these issues in the new year.  

Meeting with Boston Immigration Court  

Last week, BBA President Deb Manus joined Immigration Law section co-chair Alexandra Peredo Carroll (KIND), MBA President Thomas Bond, AILA-NE chair Annelise Araujo and Nancy Kelly of GBLS in a meeting with Regional Deputy Chief Immigration Judge Mary Cheng. The meeting was called to discuss the joint BBA/MBA resolution calling upon the Boston Immigration Court to adopt several measures to improve transparency, communications, and efficiency. Some steps have already been taken — including the hiring of a court administrator based in Boston to oversee management and administration and the return of the administrative-closure policy that gives judges more discretion to effectively manage their dockets as they see fit. Judge Cheng promised to consider the rest and committed to keeping the dialogue open.

Since April, when the BBA, MBA, and AILA adopted the resolution, a number of moves by the Immigration Court, both locally and nationally, have improved the climate for litigants and their counsel who appear there. For example, the new court administrator has significantly improved communication between the Court and advocates, who report that there is more openness about sharing information, with all clerks’ e-mail addresses now available and one clerk tasked with addressing all scheduling issues. Similarly, all e-mail addresses for staff have been shared, and there is improved communication on the judges’ rotation. 

At our meeting, we thanked Judge Cheng for these and other changes that have created an improved environment at the Boston court, while also emphasizing recommendations from the resolution that have yet to be implemented, such as mandating pre-trial conferencing between counsel for the government and for the respondent, presided by an immigration judge, in order to narrow issues for review before the court and ensure efficient adjudication of cases. Judge Cheng agreed that regular stakeholder meetings hosted by the Court would offer practitioners an opportunity to provide feedback, ask questions, and maintain an open channel of communication with the Court, to increase efficiency and ensure compliance with all processes established and preferred by the Boston Immigration Court. 

We also raised concerns about the “dedicated docket”, created since the resolution was drafted, which now has about 17,000 cases in the Boston court alone and limits judges’ opportunity to take into account the individual needs of each case. Even if local officials can’t roll back this national policy, there’s room for more flexibility with time standards, to allow litigants to find counsel and to ensure proper notice, especially for children. 

All those present agreed that regular meetings like this one will benefit all court users, and we intend to follow up on the remaining items from that agenda. 

BBA Comments on Public Charge Ground of Inadmissibility  

In October, the BBA submitted comments on the Public Charge Ground of Inadmissibility in response to a Department of Homeland Security advanced notice of proposed rule-making. These comments built on our previous advocacy against the Public Charge Rule that was implemented in 2019. The BBA’s Immigration Principles adopted in 2018 specifically address the fact that “immigrants are deterred from asserting their civil rights with respect to housing, healthcare, labor and employment, education, and public benefits when they fear that doing so may lead to immigration enforcement against them or their families or may negatively affect their future ability to pursue U.S. citizenship.” Indeed, research highlighted in our letter showed that the Public Charge Rule deterred immigrants and their family members from seeking nutrition assistance, housing access, and healthcare which they were legally entitled to.* While a Biden administration executive order largely limited the effects of the Rule as of April 2021, the BBA felt it important to underscore our support for access to justice and equal protection under the law for noncitizens and citizens alike, urging that crucial benefits such as “Medicaid, Medicare Part D prescription drug assistance, Supplemental Nutrition Assistance Program (SNAP), and housing support not be considered as factors in a public-charge test.” 

In November, DHS released an update stating that it has “reverted to the 1999 interim field guidance issued by the former Immigration and Naturalization Service, ” which was in effect prior to the 2019 rule, to “help ensure that noncitizens are able to access important government services” – including those aforementioned benefits outlined in our letter. We applaud this step in the right direction, but in order for immigrants’ rights to be fully protected in our increasingly diverse country, legislative action will be necessary to ensure that access to benefits and services cannot be curtailed in the future solely by executive action. Over a quarter of Bostonians were born outside the U.S.** and Greater Boston has become one of the number-one destinations for newly arrived immigrants, as such we have a responsibility to noncitizen community members. As a stalwart advocate for meaningful access to justice and equal protection under the law, the BBA will continue to follow the rule-making process, share information about new regulations, and advocate to protect the fundamental rights and human dignity for all members of our community.  

* Jeremy Barofsky, Ariadna Vargas, Dinardo Rodriguez, and Anthony Barrows, “Spreading Fear: The Announcement of the Public Charge Rule Reduced Enrollment in Child Safety-Net Programs,” Health Affairs, No. 10, p. 1752-1761, October 2020, available at: https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763.

** Rita Kiki Edozie, Barbara Lewis, William Monroe, Shauna Lo, Trevor Mattos, Mark Melnik, Lorna Rivera, Mauricio Gastón, Luc Schuster, Watanabe, Institute for Asian American Studies, Gail Waterhouse, J. Cedric Woods, “Changing Faces of Greater Boston,” Boston Foundation, May 2019, available at: https://www.bostonindicators.org/-/media/indicators/boston-indicators-reports/report-files/changing-faces-2019/indicators-changing-facesf2web.pdf

—Summer Colley
Government Relations Assistant
Boston Bar Association

Fall Policy Update

Commonwealth v. Curran 

The BBA joined an SJC amicus brief by the Committee for Public Council Services in Commonwealth v. Curran, along with with the Massachusetts Association of Criminal Defense Lawyers and the Charles Hamilton Houston Institute for Race & Justice. This brief builds on the arguments developed in a brief we joined in Commonwealth v. Vazquez Diaz, arguing that judges must provide defendants with a colloquy advising them of their constitutional rights before proceeding with a virtual or hybrid trial, and elaborating on the disparate impact these trials may have on low-income individuals and communities of color, who are less likely to have high-quality access to Zoom—if at all.  

Just yesterday, before filing an opinion, the SJC issued an order affirming the conviction in Curran and prospectively directing that a trial judge must conduct a colloquy on the record with a defendant before proceeding to a virtual bench trial. In the meantime, we await the full decision. 

 

Commonwealth v. Dufresne  

The BBA submitted an amicus letter in Commonwealth v. Dufresne in support of the SJC convening a study committee on the right to counsel in G. L. c. 209A hearings. The BBA has been a steadfast supporter of expanding the right to counsel in civil cases when critical human rights are at stake, as put forward in our 2008 report Gideon’s New Trumpet: Expanding the Right to Civil Counsel in Massachusetts and our 2014 report on legal-services funding and the 2020 update to this report. The defendant in this case argues that he cannot be convicted as counsel was not appointed to represent him in the underlying case. Our letter states that — because of the potential power imbalance in Ch. 209A hearings, and to ensure the protection of critical rights for both parties — if the Court ultimately rules in favor of a right to counsel for respondents, it should be provided for petitioners as well. 

K.J. v. Superintendent of Bridgewater State Hospital  

Early this month, the SJC ruled in K.J. v. Superintendent of Bridgewater State Hospital that a statutory provision allowing the Department of Correction to override a court’s decision is unconstitutional. The BBA filed an amicus brief with the Disability Law Center and Mental Health Legal Advisors Committee arguing that the provision – which allowed the Commissioner of Correction to send the petitioner to Bridgewater State Hospital, overriding a judge’s determination that they need not be held at the high security institution – was unconstitutional. The provision infringes upon constitutional separation of powers and the petitioner’s due-process rights, and it has a disparate impact on low-income individuals and people of color, who are more likely to be held on bail and be sentenced to incarceration. While the SJC ruled solely on the separation-of-powers argument in its decision, we are glad that it declared this statute unconstitutional, as urged by our brief.  

Read more here.

Court Management Advisory Board 

Past BBA President Mark Smith oversaw the recent release of the Court Management Advisory Board’s 2019-2020 Report, “Rounding out the Trial Court User Experience Study,” in his role as Chair of that body. You can read the full report here

Statement on DOJ Challenge to Texas Abortion Law 

The BBA released a statement supporting the US Justice Department’s decision to challenge Texas’s new abortion statute, known as SB-8, which encourages private citizens to use the judicial process to abridge individual rights that are protected by Supreme Court precedent. The statute subverts Roe v. Wade by providing a bounty to anyone who pursues a claim against a person for actions associated with obtaining a constitutionally legal abortion. 

The Supreme Court declined to stay the implementation of SB-8 on procedural grounds, without the benefit of briefing or argument. This is concerning to the BBA as it does not address the heart of the issue, and leaves the door open for state legislatures to restrict other rights by relying on similar vigilante-style action. While this statute is now being tested, the chilling effect it has had on women’s access to reproductive rights and care is deeply concerning – especially considering the fact that low-income, vulnerable women with the fewest resources are the ones who will be most affected by this statute as long as it remains in effect.

The BBA has regularly spoken on issues relating to the rule of law, civil rights, and the administration of justice — all of which are at stake in SB-8 and the Supreme Court’s decision not to stay its implementation — and our statement is grounded in these principles. 

 

Legislative Hearing on Civil Asset Forfeiture 

The BBA has endorsed the recommendations of a special commission on civil-forfeiture laws, and last week, past BBA President Carol Starkey — who represented us on that commission — testified on the issue before the Legislature’s Judiciary Committee, as part of a panel alongside fellow commission members from the ACLU, CPCS, and MBA. Her testimony focused specifically on the importance of rerouting seized assets away from law enforcement, as the current law allows, in order to remove any incentive toward prioritizing cases based on the potential civil-forfeiture revenue that could be derived from them. We’ll continue to promote reforms in this area over the last 10 months of the legislative session. 

Legislative Update

Last week’s meeting of the BBA Council was heavy on policy matters, with the board voting to take positions on three important pieces of legislation.

Mandatory Minimums and Juveniles

As you probably know, the BBA has long opposed mandatory minimums across the board. And both our 2017 report on criminal-justice reform and a pair of recent SJC cases in which we filed amicus briefs make the argument that juveniles deserve special treatment when charged with criminal offenses.

These issues coincide in the Give Youth a Future bill — filed for the first time this session by Sen. Jamie Eldridge and Rep. Liz Miranda — which has been receiving some attention. The legislation, which would prevent juvenile adjudications from acting as predicate offenses to trigger enhanced sentencing for certain gun crimes, was filed in response to an SJC ruling in Commonwealth v. Baez. In that 2018 case — where the defendant’s sentence was seven times longer, based on two offenses committed at age 15 — the late Chief Justice Ralph Gants urged “the Legislature to consider the wisdom and fairness of the mandatory-minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” 480 Mass. 328, at 332.

The bill is premised on solid scientific research from recent decades, recognized by judges from the US Supreme Court down, that because minors are not capable of the same level of rational decision-making as full-fledged adults, and are more susceptible to peer pressure and impulsive thoughts, it is unjust to hold them to an adult standard, or to sentence them as adults. The legislation would specifically amend M.G.L. c. 269, s. 10G (sometimes referred to as the Armed Career Criminal statute) to exclude juvenile adjudications as predicates and provide for resentencing of anyone currently serving such a sentence, including those on probation or parole.

Remote Participation in Non-Profit Member Meetings

Among the emergency measures adopted by the State Legislature at the start of the
COVID-19 pandemic was a provision in Chapter 53 of the Laws of 2020, enacted on April 3,
that, in Section 16, authorized remote membership meetings for non-profits.

The law set an expiration date for these provisions of 60 days after the end of the state of
emergency as declared by the Governor. With that emergency having concluded on
June 15, this section will expire on August 14. Non-profits are keen to have some certainty in this area, so that they can plan upcoming meetings in conformance with whatever the law requires at the time, and on June 16, the Governor signed into law a bill that would extend the relevant language until December 15.

The BBA has signed onto a proposal, developed by our Chapter 180 Working Group, that would permanently codify the authority of a non-profit’s board—unless otherwise provided in the articles of organization or bylaws—to hold remote member meetings. In addition—subject to the articles and bylaws or guidelines and procedures adopted by the board—members participating remotely can take part and vote, even if the meeting itself is
being held in-person, if:

  • reasonable measures are in place to verify each person’s membership status;
  • such members are given a reasonable opportunity to participate and vote on matters submitted to the members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and
  • a record of any such vote or other action taken remotely is maintained by the corporation.

These changes are generally aligned with the Model Nonprofit Corporation Act and would
modernize the conduct of membership meetings in keeping with best practices.

Management of the Probate & Family Court

The Board also voted to add the BBA’s voice to those of many who practice in the Probate & Family Court — including the Massachusetts Lawyers Weekly editorial board (pay-wall) — and are expressing great concern about legislation that would shift administrative and personnel oversight within the court from judicial leadership and their appointed staff — such as judicial case managers and assistant judicial case managers — to elected Registers of Probate.

Currently, staff under the oversight of the Chief Justice and First Justices work closely with the judges to handle the voluminous cases that are filed each year. These professionals act in concert with the judges and as a liaison to the bar — and especially pro se litigants. Registrars, unlike Judges, are elected positions, so the bill could result in a vast turnover of staff, which in turn would cause severe disruption to an already overloaded system. In turn, this would negatively affect litigants’ access to justice.

The bill eliminates the role that the Court’s judicial leadership plays in hiring and in ensuring that staff assignments reflect their expertise for efficient court operations. The Council’s vote does not reflect the view that there is no room for improvement in the Court’s efficiency, but rather that this legislation would be a step in the wrong direction.

For the remainder of the current 2021-22 legislative session, we’ll be advocating to the Legislature for these positions. And we’ll keep you apprised here of any developments before that session formally wraps up on July 31 next year.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Looking Back: The BBA’s History of Supporting LGBTQ+ Rights

In celebration of Pride Month, we wanted to take a moment to update our 2018 Issue Spot post tracing the BBA’s own long history of supporting LGTBQ+ rights…

To begin, we have to go back nearly 50 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, more than three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was enacted and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

However, that was not the final word, because opponents of the new law used the referendum process to put its repeal before the voters in 2018. In defense of the law, we joined the Freedom for All MA Coalition that led this effort, mobilized our members, and celebrated a historic victory when, by a vote of more than 2 to 1, Massachusetts became the first state to maintain transgender protections at the ballot box. The BBA later honored the “Yes on 3” campaign, at that year’s Beacon Awards for Diversity & Inclusion (more on which below), with the Empowerment Award, given annually to “a powerful advocate who works to create systemic change in the wider community, advancing civil rights, access to justice, and/or diversity and inclusion, and amplifying the voices of underrepresented groups”.

In addition to being on the forefront of offering anti-discrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

  • In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
  • In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management, et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
  • In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
  • Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, with then-President Julia Huston stating: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a bill to ban the use of so-called “conversion” or “reparative” therapy by licensed professionals on minors, allegedly to “cure” them of homosexuality. It took four years for the legislation to be enacted, but that protection has been in place since 2019.

We have turned our attention since then to the issue of co-parent adoption, last year endorsing legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples. It is especially important to enact such legislation in Massachusetts because this happens to be the state with the highest use of assisted-reproduction technologies. The BBA will be working to support its enactment during the current legislative session.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. The past several years have been challenging for members of the LGBTQ community. One need look no further than the continued assaults on transgender rights elsewhere in the US. We spoke up when the previous administration in Washington sought to curtail LGBTQ protections, and we’ve been quick to praise the current administration as they move to undo these steps and make further progress.

And when the SJC Committee on Lawyer Well-Being recently released its Report Summarizing Affinity Bar Town Hall Meetings, we urged our members to read it in full, to take in its disturbing findings — and then to act on them, “to engage, ask if we can help, question the differential treatment, be an ally. We cannot remain silent. … We pledge to continue to work closely with our members and our affinity bar partners to ensure that the extraordinary challenges underrepresented and historically excluded lawyers face—so dramatically illustrated by the Report—are addressed, day in and day out, as a central part of the BBA’s mission, until they are eliminated.”

We hope you’ll join the BBA in celebrating Pride by recommitting to this fight.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Amicus Brief Supports Post-Conviction Ballistic Testing

Last week, the BBA filed an amicus brief in Commonwealth v. Jenks — the latest in a series of briefs in cases testing a 2012 law — which the BBA was instrumental in enacting — that provides a mechanism for post-conviction testing of forensic evidence, allowing petitioners to try to prove their innocence.

Here, the BBA argues that the forensic-testing law is intended to set a low bar for initial motions for such testing and that the SJC should recognize, for purposes of applying the law, that science is constantly changing, taking that into account in assessing whether a proposed analysis to be sought — in this case, ballistic testing — is a material improvement over a previously conducted analysis.

Our Amicus Committee — led by Neil Austin of Foley Hoag and Maria Durant of Hogan Lovells — has been busy recently. This brief was drafted by Neil and his Foley colleagues, Anthony Mirenda and Rachel Hutchinson, as well as John Weaver of McLane Middleton and Madison Bader of Lawson & Weitzen.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update

BBA Council Adopts Resolution on Immigration Court

The BBA Council endorsed a resolution aimed at addressing concerns among practitioners about practices at the Boston immigration court. It offers recommendations to strengthen the court’s COVID-19 protocols, as well as to improve communications between the court and attorneys who practice there, and to enhance efficiencies in the court’s handling of cases. The MBA and the American Immigration Law Association of New England have also adopted the resolution, and we hope this united front will prompt consideration of, and dialogue about, these recommendations.

New Policy on Immigration Enforcement in Courthouses

The Department of Homeland Security (DHS) this week tasked Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) with developing new guidelines on enforcement by those agencies in and around courthouses. Such enforcement has been a major access-to-justice concern for the BBA, because it has a chilling effect on victims, witnesses, and others seeking justice. Indeed, we have been involved with litigation at the federal and state level challenging such actions. 

The interim DHS memo for the first time recognizes the impact on access to justice and calls for enforcement measures to be limited to certain circumstances. But we await further detail, in more-permanent policies, to assess how effectively the Biden Administration’s approach will curtail courthouse enforcement.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Leadership Takes Part in Annual ABA Day

For the second year in a row, our participation in the annual ABA Day event was virtual-only, but we were nevertheless able to continue the spirit of the event by communicating over Zoom with some of the Massachusetts delegation about shared BBA and ABA priorities.

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Rep. Jim McGovern (MA-04), speaking with the BBA on ABA Day, April 21, 2021


As usual, our main focus was on appropriations for the Legal Services Corporation, the largest source of funding for legal-aid providers nationwide, including four grantees in Massachusetts. President Marty Murphy and President-Elect Deb Manus led the meetings, joined by three experts on that issue: former BBA Presidents Mary Ryan (co-author of our Gideon’s New Trumpet report) and J.D. Smeallie (lead author of our Investing in Justice report), and Council member Betsy Soulé, executive director of MetroWest Legal Services.

We also talked about immigration concerns, including the resolution recently adopted by the BBA Council, calling for reforms to improve efficiency and accessibility at the Boston immigration court, and our support for ensuring the independence of immigration courts throughout the U.S. by placing them outside the executive branch, like similar courts, such as Tax Court and Bankruptcy Court. These positions are built on the foundation of our Immigration Principles.

—Michael Avitzur
Government Relations Director
Boston Bar Association