Housing Court For All

The BBA is pleased to add its name to the large and growing list of supporters for a statewide housing court, following unanimous Council approval earlier this week.The proposal had earlier received recommendations from our Real Estate and Delivery of Legal Services Sections.  Housing Court is a special court session conducted by experienced and expert judges.  They operate out of already existing court houses, providing landlords and tenants with a special legal forum to resolve disputes, as well as code enforcement, mortgage fraud, and numerous complex housing matters.

Housing Court was first established in 1972 for the City of Boston.   Since then, it has gradually expanded through the advocacy work of local constituencies to its current makeup consisting of five divisions covering approximately 80% of the state geographically.  Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis.  Its judges have the expertise to analyze the federal, state, local laws, and codes on housing.

Housing Court is also the only forum to use Housing Specialists, individuals who mediate cases, saving potential litigants time and money they would otherwise spend to have their case heard in court.  Over half of Housing Court cases were resolved in this way last year.  Specialists also perform on-site reviews of property to resolve issues concerning housing conditions.  In part because of these services, Housing Court is extremely efficient, featuring the lowest cost per case of any Trial Court department.

Finally, Housing Court is adept at serving pro se litigants and individuals facing evictions.  It is home to the Tenancy Preservation Program (TPP), a counseling service designed to intervene in cases affecting individuals with physical and/or mental disabilities to help prevent homelessness, as well as volunteer lawyer-for-the-day and other self-help forums.

Despite all these benefits, nearly one-third of Massachusetts residents do not have access to a housing court.  Currently, there is no Housing Court for all of Barnstable, Dukes and Nantucket Counties, most of Norfolk County, and a large portion of Middlesex County.  These areas include cities such as Chelsea, Framingham, Malden, Cambridge, Medford, Somerville, Watertown, Woburn, and Waltham, which have some of the highest number of rental units.  As a result, any housing or code enforcement issues in these counties are heard in District Court, where judges may not have any special housing expertise and housing cases are simply a drop in the bucket of a high volume caseload.  One consequence we’ve heard is that municipalities not covered by the Housing Court sometimes don’t even bring code-enforcement actions to District Court, because they know the inevitable delays make it not worth the effort.

Another interesting element of this proposal is the simplicity with which it can be accomplished.  Because the Housing Court is simply a special sitting, it will continue to operate out of existing court houses.  A handful of support staff is all that is needed to make it a reality.  The total cost to the state is estimated to be roughly $2.4 million per year.  However, funding is a secondary element, as the current proposal seeks only approval of the policy issue of expanding Housing Court statewide. With the support of SJC Chief Justice Ralph Gants, the court will pursue funding on a separate track.

We hope that lending the BBA’s voice to the chorus of supporters will help put this proposal over the top.  We will do our part to make the case in the Legislature that expanding the Housing Court is a step toward greater efficiency and a move in the right direction not only for lawyers and the judiciary but also for two million people, many of whom are renters, in the communities that currently lack the special services only Housing Court provides.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Expanding Access to Justice: Right to Counsel Amicus Brief

The BBA is committed to facilitating access to justice.  Of late, much of our discussion on this topic has focused on Investing in Justice, the report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts and its recommendation for an additional $30 million in civil legal aid funding to help cover the deficit in legal aid services for those in need.  However, this week we are pleased to report on an amicus brief we joined.

Filed yesterday, in the case of In re Guardianship of V.V., the amicus brief argues for a right to counsel for indigent parents of a minor child in private guardianship actions where someone other than the parent seeks to have him or herself appointed by the court as the child’s guardian.  In the case at hand, a 19 year old self-represented mother, lost custody of her one-year old son to her mother-in-law, who had counsel.  The child has since been returned to his mother, so the underlying case is moot, but the Supreme Judicial Court has requested amicus briefs on the right to counsel issue.

As the brief notes, this case represents a gap in counsel rights.  Currently, indigent parents have a right to counsel in other guardianship proceedings, such as those between an individual and the Department of Children and Families – a legal proceeding with the “same fundamental parenting issue at stake” – the potential loss of child custody to a non-parent.  In addition, the brief argues that appointment of counsel is required under due process and equal protection rights granted in the Massachusetts Constitution, promotes a sound child welfare system, and follows preexisting national and state policy.

Specifically, the circumstances of this case meet the three part analysis required for appointment of counsel in Massachusetts, which asks the court to consider: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the Government’s interest.  The private interest here is that of a parent’s relationship with her child, an interest which has been deemed fundamental in Massachusetts case law.

There is a significant risk of erroneous deprivation of this interest due to the imbalance of power, as explained in the BBA’s Gideon’s New Trumpet report from 2008, because the parent faces a potential loss of custody and a represented opponent.

Finally, although the Commonwealth is not a party in these proceedings, the state still plays a role through the Department of Children and Families (DCF) which frequently refers potential guardians to Probate and Family Court to prevent the agency from having to file a Care and Protection case in Juvenile Court and also advises potential guardians to seek guardianships.

In addition, the brief explains how failure to provide counsel violates constitutional equal protection rights.  It compares private guardianship cases with Care and Protection proceedings, noting that they are nearly identical in many facets, except that both state and federal law provide parents with numerous procedural protections in in the latter.  The brief goes on to state that there is no legitimate or compelling government interest that can justify this differential treatment.

Finally, the brief examines policy aspects of the right to counsel.  It demonstrates that providing a right to counsel in private guardianship cases would be good for the justice and child welfare systems, noting that judges surveyed in Investing in Justice witnessed problems due to lack of representations and observed the problem worsening.  It also prospectively examines the process for implementing the right to counsel, warning about a potential for unknowing waiver of substantive rights by vulnerable parents. The brief recommends a “Targeted Representation” approach as set forth by the BBA’s Task Force on Civil Right to Counsel in both Gideon’s New Trumpet and The Importance of Representation in Eviction Cases & Homelessness Prevention, whereby the Court should recognize a right on a case-by-case basis, and ensure that a parent’s decision on whether to retain counsel is voluntary and informed.

We are proud to be a part of this brief and this effort to improve access to justice for parents in these cases and applaud the drafters for all of their hard work to make this brief a reality.  We look forward to its upcoming review by the justices of the SJC on January 5, 2015, and hope they reach the same conclusions explained here.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Working Together: The BBA and The Courts

The BBA and our judiciary are committed to the fair and efficient administration of justice as well as the functioning of the judiciary as a co-equal branch of government.  So with  December upon us, we took the opportunity to do some reflecting on the past year, and particularly on the breadth and depth of judicial involvement with the BBA.

The BBA and the judiciary have historically had a close relationship.  We are proud to support the judiciary, and the BBA President annually meets with the chief justices of all the Trial Court departments, in addition to the Chief Judge of the U.S. District Court, District of Massachusetts; the Chief Judge of the U.S. Bankruptcy Court, District of Massachusetts; and the Chief Judge of the U.S. Court of Appeals for the First Circuit.  At these meetings we discuss the issues facing each individual court and various BBA and court initiatives.

This commitment goes far beyond one-on-one meetings with the chief justices, however, and we are especially grateful for their contributions to the bar.  As the Code of Judicial Conduct correctly notes, judges are in a “unique position to contribute to the integrity of the legal profession and to the improvement of the law, legal system, and administration of justice.”  One way they do this at the BBA is through participation in the Boston Bar Journal, both as article authors and as members of its Board of Editors.  And beginning in January, you’ll find more articles penned by judges and a “Voices of the Judiciary” feature in future issues of BBA Week.  Another way they contribute is by speaking at BBA programs – educating the bar and sharing ideas – all in an effort to improve the administration of justice.  In the last two years, over 100 BBA programs have featured active judges sharing their thoughts, opinions, and practice tips.

The BBA is pleased to work hand-in-hand with the courts on a number of important initiatives promoting diversity and improving access to justice.  A couple of examples:

Projects by the Public Interest Leadership Program (PILP). The BBA’s PILP promotes civic engagement and public service of young lawyers in the community.  The 2012-13 PILP class worked with the Trial Court to draft documents used for the first Court Service Center pilot program in the Brooke Courthouse.  These included a resource guide for self-represented litigants, FAQ sheets, and multilingual cover sheets for legal forms.  The Court Service Centers have already been making a difference for pro se litigants and the courts – helping to streamline the process for both the litigants and court staff, all of which benefits court efficiency and the administration of justice.

The 2013-14 PILP class is partnering with the BBA’s Community Re-Entry and Readiness Program Standing Committee to expand upon its work with the District Court’s Court Assisted Recovery Effort (“CARE”) and Reentry: Empowering Successful Todays and Responsible Tomorrows (“RESTART”) programs.  Both programs operate out of the District Court of Massachusetts and supervise federal probationers reentering the community.  CARE serves a population of probationers who struggle with drug addiction, and RESTART serves probationers who present a particularly high risk of recidivism.  Both programs feature increased supervision, including periodic meetings with the Court, swifter sanctions for non-compliance, regular drug testing, and tight coordination among service providers, the Probation Department, the Federal Defender’s office, the U.S. Attorney’s Office, and the Court.

 Judicial Internship Program. Launched by the BBA’s Diversity and Inclusion Section, the Judicial Internship Program provides professional experience of working in the court system to law students finishing their first and second years of legal education.  The Diversity & Inclusion Section’s Pipeline and Recruitment Committee works to connect the judges with potential interns, and BBA staff facilitates the program.  The internships have been served at the Boston Municipal Court, Massachusetts State District Courts, the Probate and Family Court, and the U.S. Bankruptcy Court for the District of Massachusetts.  Since the BBA began this program in 2010, 100 law students have taken part.  In the summer of 2014 alone nearly 3,000 hours of work were logged by the BBA’s 26 law student interns.

Finally, BBA members work with the courts on numerous issues related to legal practice and court procedure.  The BBA regularly reviews and comments on court rules, procedures, and the work of various court committees.  In the last year, our sections and committees examined everything from proposed amendments to the rules of professional conduct to the Report of the SJC Ad Hoc Committee on Bosch Litigation.  BBA Sections studied eyewitness evidence issues and rules of civil and criminal procedure, and submitted their comments to the Courts.

All of these connections strengthen the BBA and, we believe, the judiciary as well.  They give our members unique opportunities to advance personally and professionally and help us further each piece of our mission – to advance the highest standards of excellence in the legal profession, facilitate access to justice, and serve the community at large.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Change Is Upon Us – Tracking Governor Baker’s Appointments

We’ve been scouring the news around here for information about our next governor.  We are interested to see what policy changes, will come with the change in leadership.  For now, we’ve been keeping track of Governor-Elect Baker’s appointments as we look forward to working with them in the coming years.  Here is a breakdown of his selections by position, starting with his complete transition team and followed by his chief of staff and the cabinet members named thus far:

Transition Team

Team Head – Jim Peyser – the Managing Director of NewSchools City Funds at NewSchools Venture Fund’s Boston Office.  He served as Chairman of the Massachusetts Board of Education for seven years under Governors Cellucci and Romney and as Undersecretary of Education and Special Assistant to the Governor for Charter Schools for Governor William Weld in addition to working for more than seven years as Executive Director of the conservative think tank Pioneer Institute.

State of the State Committee – Michael O’Brien is the lone remaining chair of this committee after the other individual selected, former transportation secretary Richard Taylor resigned.  O’Brien is Executive Vice President at Winn Companies and former city manager of Worcester.

Human Resources Committee – co-chaired by Deb Hicks and Danroy Henry.  Hicks is Senior Vice President and Chief Human Resources Officer at the Dana-Farber Cancer Institute and formerly worked at Harvard Medical School and Harvard Pilgrim Health Care (HPHC) where she was instrumental in helping HPHC move from receivership to profitability.  Henry is Chief of Human Resources and Corporate Social Responsibility at child-care provider Bright Horizons and formerly worked in HR roles at Pepsi and Reebok International and executive roles with Staples, Blinds To Go Superstores, and Fleet Boston Financial.

Better Government Committee – co-chaired by Stephen Goldsmith and Steve Poftak.  Goldsmith is the Daniel Paul Professor of the Practice of Government and Director of the Innovations in American Government Program at the Harvard Kennedy School of Government.  He previously served as mayor of Indianapolis and deputy mayor of New York, as well as chief domestic policy advisor to the George W. Bush campaign in 2000.  Poftak is Executive Director of the Rappaport Institute at the Harvard Kennedy School and former Director of the Center for Better Government at the Pioneer Institute.  He has researched and written scholarly articles on topics such as transportation policy, government efficiency, municipal finance, and job creation.  Prior to his work in academia he served in the Executive Office for Administration and Finance under Governor Romney.

Community Committee – co-chaired by Robert Lewis Jr. and Chrystal Kornegay.  Lewis Jr. is best known for his work in nonprofits and under Mayor Tom Menino.  He recently left his position as President for Programs at the Boston Foundation to start a new nonprofit called Home BASE, which leverages sports to engage boys and young men in Roxbury, Dorchester, and Mattapan.  Kornegay is President and CEO of Roxbury nonprofit Urban Edge, which works to produce and preserve affordable housing for rent and purchase as well as offering educational programming on housing and financial issues.

Schools Committee – co-chaired by Martin T. Meehan, Jr., and Beth Anderson.  Meehan is a former Congressman and current Chancellor of the University of Massachusetts Lowell.  He served in the US House of Representatives for over a decade representing Massachusetts 5th Congressional district, which at that time included the Lowell area.  He was best known for his advocacy on campaign finance reform and was a leader on gay rights issues, including the repeal of the so-called “don’t ask, don’t tell” policy.  Anderson is founder and Chief Executive of Phoenix Charter Academy Network.  This nonprofit runs two schools in Chelsea and Lawrence for disadvantaged youths and is looking to start a third in the Springfield area.

Healthcare Committee – co-chaired by Deb Enos and Keith Hovan.  Enos is the former CEO of Neighborhood Health Plan, who stepped down earlier this year.  She previously held positions at Blue Cross Blue Shield of Massachusetts, Cambridge Eye Doctors, and the Hospital Corporation of America.  Hovan is President and CEO of the Southcoast Health System.  Prior to joining Southcoast, he was Executive Vice President and Chief Operating Officer at Danbury Hospital in Danbury, CT.

Jobs and Economy Committee – co-chaired by Jay Ash, Roger Crandall, and Karen Kaplan.  Ash is the City Manager of Chelsea.  He is a former State House aide to Majority Leader Richard Voke, former president of the Metropolitan Area Planning Council and founder of the Metro Mayors Coalition.  Roger Crandall is Chairman, President, and CEO of Massachusetts Mutual Life Insurance Company, where he has worked since 1988.  He serves on the Governor’s Council of Economic Advisors.  Kaplan is Chairman and CEO of advertising firm Hill Holliday, where she rose through the ranks after first starting as a secretary in 1982.

Cabinet-Level Appointments (as of 11/25/14)

Chief of Staff – Steven Kadish is the Senior Vice President and Chief Operating Officer at Northeastern University.  He previously held leadership positions at Dartmouth College and Brigham and Women’s Hospital in addition to serving as Undersecretary of the Executive Office of Health and Human Services for Governor Romney.

Energy Environment Secretary – State Representative Matt Beaton of Shrewsbury is an environmental engineer who started his own energy efficient consulting company.

Undersecretary of Finance and Administration – Kristen Lepore is the Vice President of Government Affairs at Associated Industries of Massachusetts.  She is the former Deputy Chief of Staff and Director of Fiscal Policy for Governor Paul Cellucci.

Health and Human Services Secretary – Marylou Sudders is an Associate Professor at the Boston College School of Social Work.  She is the former Mental Health Commissioner and former president of the Massachusetts Society for the Prevention of Cruelty to Children.

Housing and Economic Development Secretary – Jay Ash, who is also serving on the Jobs and Economy transition team and is described above.

We have a keen interest in the process and are watching to see who will be appointed next.  We look forward to working with these and other members of the Baker Administration on issues surrounding the BBA’s mission such as access to justice, funding for the judicial system, and the legal profession.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Judicious Partnership: The Intersection of BBA and SJC Initiatives

Just under a month ago, new Chief Justice of the Supreme Judicial Court (SJC), Ralph Gants, gave his first annual State of the Judiciary address.  He declared four points of emphasis, all of which have ties to the BBA.  We are already seeing movement in these areas, behind the energetic and committed leadership of Chief Justice Gants.  The following is a rundown of his four stated priorities and the BBA’s involvement with each.

  • Sentencing reform. The Chief called for individualized, evidence-based sentencing and a reconsideration of mandatory minimum sentences.  A long-time proponent of sentencing reform, the BBA has opposed mandatory minimum sentences, and worked to establish fairer graduated sentencing, with heightened judicial discretion, for decades.  We are interested in working with the judiciary to re-examine the current sentencing structure.
  • Civil justice system reform. We are currently working with the courts to reform the civil justice system.  Chief Justice Gants pledged that each Trial Court department that handles civil litigation would convene a working group to develop cost-effective options that parties could agree upon for proceeding with their cases.  Over the last few weeks, the BBA has been asked for nominees to serve on the working groups for various court departments,.  While each request is slightly different, they ask the BBA to name a few members with expertise in the court department at hand to help with the goal of streamlining civil litigation.  Each working group will devise a “menu” of options for litigants, starting with, in the Chief Justice’s words, “the usual three course meal of full discovery, a jury trial. . . and full rights of appeal.”  However, the working groups are tasked with finding other, less expensive and less time-consuming dishes for litigants desiring them.  Examples from Chief Justice Gants’ speech include limited discovery, bench trials, and possible limitations on the right or scope of appeal.
  • Access to justice. We have been at the forefront of  work on access to justice with the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts (task force).  In his speech, the Chief Justice referenced the work of the BBA task force directly, saying, “The Report demonstrates that investing in civil legal aid is not only an investment in equal justice, but also a sound fiscal investment, generating savings in public expenditures greater than its costs.”  He urged the Legislature to consider the task force’s request for an additional $30 million in funding for civil legal aid over the next three years.  The   Boston Globe editorial team endorsed the funding request shortly thereafter.  The Globe also published a letter to the editor earlier this week, authored by Jeff Baliban of Alvarez & Marsal, one of the independent economic analysts who focused on domestic violence issues in the task force report.
  • Jury voir dire. We have also been involved with jury voir dire issues.  BBA Council member Mark Smith of Laredo & Smith, currently serves as BBA liaison to the SJC working group on voir dire.  The working group is critical for the Chief Justice’s commitment to establish protocols implementing the new law on attorney voir dire by February 2015.  The group anticipates the release of a draft proposal around the end of this year. The superior court will work to develop pilot programs soon after.  We look forward to seeing what they come up with and to working with the courts on making the new law a success.

In short, we are pleased that progress is already being made in these four important areas highlighted by Chief Justice Gants.  The BBA takes is proud to be a thought leader in the law and a long-time supporter of the judiciary.  We look forward to helping see these efforts through to fruition, as part of our long-standing commitment to advancing justice in our community.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Another Point of View: Looking at the News from a Legal Aid Perspective

Earlier this week we were pleased with the Boston Globe editorial on our recent task force report, “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts.”  The Globe shares our view that “[t]he Legislature should find a way to increase funding for civil legal aid in the next budget.”

As we’ve discussed before, the report is the culmination of 18 months of hard work by leaders from around the state and independent economic analysts.  It makes a compelling argument that we need to increase funding for civil legal aid in order to help people in our society secure basic rights to life necessities such as shelter and protection from an abuser.  The Globe agreed, endorsing the report and concluding that its statistics on cost-savings – a return of $2 to $5 for every dollar spent on certain areas of legal aid – more than justify our call for increased state investment.  As the editorial board concluded, “It’s far better to invest money now for legal aid than it is to bear the costs later.”

The Task Force report itself has been the subject of recent media coverage in a variety of forms.  But once you’ve read the report, it’s remarkable how many other stories in the news register as tangentially related – stories about the growing ranks of poor, homeless, and abused among us.  While increased funding for legal aid is not a panacea for all of these tales, it would certainly make a difference by keeping people from being wrongfully evicted, securing them deserved federal benefits, and helping them escape a cycle of domestic abuse.

Part of the problem we discovered was simple supply and demand.  The number of people qualifying for legal aid, with income at 125% of the federal poverty level has increased to nearly one million people in Massachusetts, while the number of legal aid attorneys has decreased over the last seven years due to declines in funding.  As the Boston Globe reported earlier this week, the current poverty rate in the state is at its highest point since 1960.  It is no wonder, then, that 64% of qualified individuals seeking legal aid are turned away, as the Task Force discovered.  There are simply not enough attorneys to meet the demand.  This situation results in individuals incurring more debt to meet their daily needs, plunging them into further debt and poverty.  Though many of these people likely qualify for some sort of federal benefits, it is often very difficult for them to navigate the complex system and paperwork without the help of a legal aid lawyer.

In late October, CNN Money reported on debt and credit issues facing victims of domestic violence.  We know from our work on the Task Force Report that concerns about finances are a major factor in domestic violence, and often a trigger of abuse, particularly when there is an income disparity that creates a dependence of one partner upon the other.  Ideally a domestic violence victim will leave their abuser, but with no money and no place to go, this can be a daunting task.

Only a couple weeks later, the New York Times reported that shelters nationwide report that nearly ¼ of all families cite abuse as the cause for their stay.  Civil legal aid providers can help domestic abuse victims by aiding them in securing restraining orders, demanding funds, such as child support payments from abusers, to help promote the victim’s independence, and working with shelters to assure a placement.

Homelessness presents its own difficulties, as recent stories demonstrated just how easy it can be to fall into homelessness and the dire need for shelters, especially after the recent closure of the Long Island bridge.  From our Task Force we learned that 56% of eligible people with housing problems in Massachusetts were turned away from legal aid, and a significant number of them were likely facing wrongful eviction that could have been prevented.  The result is increased costs for the state from police to health care, and shelter expenses, not to mention the long-term costs resulting from children growing up without stable homes and the increased difficulties in finding a job while living in a shelter.  In assessing such situations, the Task Force’s independent economic analysts calculated that every dollar invested in this area likely saves the state nearly three dollars.

Civil legal aid is a sound investment for the state – one that will create a positive return while also helping those individuals most in need.  While it can’t, in isolation, solve our problems of domestic violence, homelessness, and poverty, it will change many lives, and hopefully that will be the news we get to read about in the future.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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2014 Election Wrap-Up

The BBA’s Government Relations Department regularly works with legislators, the executive branch, and the judiciary, but the landscape in which we do so will be quite different at the start of 2015 from the past four years, with a new Governor, Attorney General, Senate President, Senate Ways and Means Committee chair, and House co-chair of the Judiciary Committee.

The biggest news from Tuesday’s statewide election is that Charlie Baker narrowly defeated Attorney General Martha Coakley.  Outgoing Governor Deval Patrick was recently honored with the BBA’s Beacon Award for his historic commitment to diversity and inclusion in the judiciary.  The responsibility for nominating judges will now rest with the new Governor.

All such judges must be confirmed by the Governor’s Council, an elected eight-member body, and there we will see little change at the start of the next two-year term, with only one new member in Joseph Ferreira, a part-time attorney and retired Somerset police chief, who spent 36 years as a police officer and is replacing Councilor Oliver Cipollini.

Karyn Polito will chair the meetings of the Governor’s Council, in her new role as Lieutenant Governor.  Since the departure last year of former Lieutenant Governor Tim Murray, Governor Patrick chaired those meetings, though he lacks the LG’s authority to cast the decisive vote in case the Council is evenly split.

Maura Healey, who has served on the BBA Council and Executive Committee, will become the nation’s first openly gay Attorney General.  A first-time candidate, she previously worked under current AG Coakley as Chief of the Business and Labor Bureau, the Public Protection and Advocacy Bureau, and the Civil Rights Division.

The other newly-elected statewide official is Deborah Goldberg as State Treasurer, replacing Steve Grossman, who left the office to run for Governor.  Secretary of the Commonwealth William Galvin and State Auditor Suzanne Bump will return to those offices.

Massachusetts’ nine-member Congressional delegation will gain Seth Moulton, elected from the Sixth District, on the North Shore, which is currently represented by John Tierney.  U.S. Senator Ed Markey was elected to a full six-year term, having first won election in 2013 to the seat when John Kerry became U.S. Secretary of State.

In the State Legislature, Vinny de Macedo will be one of five new Senators, after winning the South Shore seat that out-going Senate President Therese Murray gave up.  House Representative Ryan Fattman defeated Senator Richard Moore in central Massachusetts.  All other Senators seeking re-election won, leaving the Republicans with six seats in the 40-member body come January, their highest total in ten years.  Three other Senate openings were created by the departures of Senator Stephen Brewer, who declined to run again; Senator Barry Finegold, who opted to run instead for Treasurer; and Senator Gale Candaras, who ran for Hampden County Register of Probate in a race still too close to call. Those seats will be filled, respectively, by House Representative Anne Gobi, former House Representative Barbara L’Italien, and Eric Lesser.

But the biggest changes in the Senate will come at the leadership level: Stanley Rosenberg is expected to be chosen by his colleagues as the new Senate President, when the Senate convenes for the 2015-2016 legislative session.  He will then have the opportunity to name his leadership team, as well as all Senate committee chairs, which will include a new Ways and Means chair to write the Senate’s budget, now that Chairman Brewer is retiring.

In the House, Speaker Robert DeLeo and Ways and Means Chair Brian Dempsey will likely stay in their current positions.  However, the Speaker will name a new House co-chair of the Judiciary Committee, after former Representative Eugene O’Flaherty left earlier this year to become Corporation Counsel to the City of Boston and was never officially replaced.

While final results have not all been determined, it appears that two sitting Representatives, Denise Andrews and Rhonda Nyman, lost re-election bids on Tuesday, to Susannah Whipps Lee and David DeCoste, respectively.  Overall, House Republicans are poised to add at least five seats, and possibly six, to their existing total of 29 out of 160.  Of special note to BBA members, Michael Day of Stoneham, Co-Chair of the Civil Rights and Civil Liberties Section, was elected to the State House, winning an open seat.

One thing we like to keep an eye on when viewing the Legislature is the number of Senators and Representatives who are attorneys.  By our best count, that figure will be 54, out of a total of 200, when the new Legislature is sworn in early next January.  This represents a drop of 6 or 7 from the start of the last two-year session, and it underscores the work we must sometimes do to educate non-lawyer legislators about issues of importance to lawyers, the courts, and the practice of law.

Four statewide ballot measures were also contested: Voters approved a repeal of the 2013 law indexing the gasoline tax to inflation (Question 1) and a new requirement that employers of 11 or more offer paid sick time to employees (Question 4), but rejected an expansion of the Bottle Bill (Question 2) and an effort to repeal the 2011 law that allows casino gambling (Question 3).

We will continue to update you on developments on Beacon Hill, and we look forward to working with the elected officials above on behalf of the BBA.

— Michael Avitzur
Government Relations Director
Boston Bar Association

How We Got Here

The BBA’s recent report on civil legal aid in the Commonwealth , “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts,” paints a dire picture.  In spite of generous monetary support from the private bar and Legislature alike, nearly two-thirds of those who qualify for legal aid are turned away due to a lack of resources.  It is a sad and frustrating state of affairs when some 54,000 qualifying individuals cannot obtain the legal help they need to secure necessities such as shelter or protection from a batterer. This predicament didn’t manifest overnight.  This is how we got here…

The Massachusetts Legal Assistance Corporation (MLAC) was established by the Legislature in 1983 to provide financial support for legal assistance programs in Massachusetts.  Shortly thereafter, in 1985, the Interest on Lawyers Trust Account (IOLTA) program was created by the Supreme Judicial Court.  The IOLTA program collects interest on funds held in trust by attorneys and uses them to help fund legal aid.  By 1990, MLAC’s total funding was just under $8.4 million.  This included nearly $3 million from IOLTA, $2.8 million from a surcharge on civil case filing fees, and almost $2 million from a legislative appropriation.

In 1994, the Legislature changed the law, moving the funds from the surcharge on civil filing fees from MLAC to the General Fund.  While the Legislature has since greatly increased its yearly appropriation to MLAC, up to $15 million in Fiscal Year (FY) 2015, it has never again given MLAC a direct source of revenue as it had from the filing surcharge through 1994.  This item has produced around $4 million of income for the General Fund in the last few years.

At the same time, IOLTA revenue was generally increasing, until it reached tens of millions of dollars annually in the early 2000s, including more than $16 million in FY 2007 and $17 million in FY 2008.  MLAC total funding in each of those years was over $25 million.  When the recession hit in 2008, IOLTA plummeted and the legislative appropriation dropped.  MLAC’s total funding decreased over ten million dollars in a single year.  Each year since then, IOLTA funding has continued to drop, and although the Legislature has continued to gradually increase funding for legal aid, and individuals — mostly lawyers — have continued to contribute tens of millions of dollars’ worth of pro bono services and monetary donations, legal aid funding lags behind the growing need.

One figure in particular helps highlight this gap: Turn-away rates, which were about 50% in the mid-2000s, have reached an estimated 64%, as calculated by the BBA’s Statewide Task Force to Expand Civil Legal Aid.  The funding decreases forced legal aid agencies to lay off experienced attorneys and implement hiring freezes.  Compounding the problem, the state experienced a nearly 25% increase in the number of individuals qualifying for legal aid in recent years, to almost 1 million people today.

Now that we know how we got here, we are excited to see where we can go.  “Investing in Justice” demonstrates, through the work of three independent economic analysts, that the state stands to save a significant amount of money by investing in civil legal aid.  The report recommends a $30 million annual increase in legal aid funding over the course of the next three years.  We know that amount is not even close to enough to solve all our problems, but it is a sound start.  We hope the Legislature will heed the advice of SJC Chief Justice Ralph Gants from his State of the Judiciary Address, asking them to carefully consider our findings and recommendations.  The money the state invests in legal aid will pay dividends, and not just for the state’s bottom line. The investments improve the administration of justice in the courts and, most importantly, they improve the lives of individuals in Massachusetts, allowing them to secure basic needs such as shelter, safety, and human dignity.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Long Road to a Roadmap

On Wednesday, October 15, the BBA released its Task Force report on civil legal aid issues – “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts.”  We are extremely proud of the report.  As far as we know, this is the first time data such as turn-away rates and a survey on judge’s observations has been so systematically gathered and examined.  In addition, the report features the outstanding work of three independent economic analysts, who, working pro bono, broke down the areas of housing, domestic violence, and federal benefits into cost-benefit analyses based on state funding.

The report’s findings paint a dire picture.  Roughly 64% or more than 54,000 income-qualifying people who sought civil legal aid in Massachusetts last year were turned away due to lack of resources.  In addition, more than 60% of judges said that lack of representation resulted in a negative impact on the court’s ability to ensure equal justice.

However, the economic analysts’ reports reveal a potential boon for the Commonwealth.  Conservative estimates showed that investment in civil legal aid would actually result in cost savings to the state and growth for our economy.  Taking these numbers into account, the task force recommends a $30 million increase in annual state funding to help bridge the gap between existing resources and what is needed to provide appropriate civil legal aid to all who are eligible.  Although that amount will not solve the entire problem, it would be a great start.

“Investing in Justice” was released to some fanfare, with an exclusive article on the cover of the Boston Globe, radio coverage on WBUR and WBZ, and continuing media coverage, including a feature-length story in the MetroWest Daily News.  However, it is important to remember that this did not all happen at once.  The report is the result of more than 18 months of hard work by a devoted group of task force members.  Even beyond that it is the result of the foresight of task force chairman and former BBA president J.D. Smeallie, Holland & Knight, who decided to tackle the gargantuan issue of civil legal aid funding as his presidential initiative almost two years ago.

When J.D. Smeallie became president of the BBA in 2013, he took note of the revolution occurring in New York State surrounding funding for civil legal aid.  Since 2010, the state had been massively expanding its legal aid funding, based largely on reports issued by its Task Force to Expand Access to Civil Legal Services, chaired by Helaine Barnett and created by Chief Judge Jonathan Lippman.

Each year, the task force was comprehensively exploring different aspects of legal aid.  It gathered testimony from legal aid clients and business leaders and solicited the work of economists to examine potential cost-savings from legal aid funding.  It examined pro bono initiatives and ways law schools could get involved to meet the unmet needs for legal aid.  Finally, it made findings and recommendations for action, many revolving around state funding . . . and the state was listening.  In FY 2012, Judge Lippman demonstrated his personal commitment to civil legal aid, setting aside $27.5 million from his general court operating budget for civil legal services.  That allocation increased with the support of the state legislature to $55 million in FY14 and to $70 million in FY15.

Smeallie looked to New York’s task force as a model and began crafting his own team in Massachusetts.  He had a few priorities – to include representatives from all parts of the state and to make sure they had diverse interests.  In the end, his efforts produced the 28-member BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts:

Susan Alexander – Executive Vice President and Chief Legal Officer at Biogen Idec Inc. 
Lawrence Bacow -
Former President of Tufts University 
Chris Barry-Smith

Manisha Bhatt
 – Senior Attorney at Greater Boston Legal Services
Jonathan Chiel – Executive Vice President and General Counsel at Fidelity Investments
Hon. Martha Coakley – Attorney General of the Commonwealth of Massachusetts
Katherine Cook – Chief Legal Counsel at The Office of the Governor
Paul T. Dacier – Executive Vice President and General Counsel at EMC Corporation, Past-President of the Boston Bar Association
Lawrence S. DiCara – Partner at Nixon Peabody LLP
Russell Engler – Professor of Law at New England Law | Boston
Hon. John V. Fernandes – State Representative at the Massachusetts House of Representatives
Robert Holloway – Past-President of the Massachusetts Bar Association
Kathleen Joyce – Senior Counsel at Boston Redevelopment Authority
James C. Kennedy – Chief Legal Counsel at the Massachusetts House of Representatives
Joan Lukey – Partner at Choate, Hall & Stewart LLP
Hon. Richard J. McMahon – Justice at Probate and Family Court, Bristol County
Martha Minow – Dean of Harvard Law School
Alice Moore – Counsel to the Massachusetts Senate
Susan Murley – Co-Managing Partner at Wilmer Cutler Pickering Hale and Dorr LLP
Joseph Nauman – Senior Vice President and General Counsel at Acushnet Company
Lon Povich – General Counsel at BJ’s Wholesale Club
Lonnie Powers – Executive Director of Massachusetts Legal Assistance Corporation (MLAC)
Mary Puma – Chief Executive Officer of Axcelis Technologies
Faye Rachlin – Deputy Director of Community Legal Aid in Worcester, MA
Elizabeth Soule – Executive Director of MetroWest Legal Services
Veronica Turner – Executive Vice President at 1199SEIU United Healthcare Workers East in Massachusetts
Hon. David Weingarten – First Justice at Boston Municipal Court, Roxbury Division
Hon. Jim Welch – State Senator at the Massachusetts State Senate, Hampden District

A look at their affiliations above shows how well he succeeded.  The group includes representatives from across the state, bringing together leaders from business, academia, and all three branches of government; attorneys from legal services, private practice, and in-house staffs.  In addition, the task force recruited three independent economic analysts, who provided pro bono services.  Analysis Group studied potential cost savings to the Commonwealth from civil legal aid funding in the area of housing, foreclosures, and evictions.  Alvarez & Marsal looked at domestic abuse issues, and NERA Economic Consulting calculated the potential for economic growth from investment in civil legal aid in the area of federal benefits.

We are proud to have watched this process from the beginning – the inspiration, the drafting of the task force, 18 months of intensive study, and finally the release of the report and resulting media and public reactions.  We hope that you will take the time to read “Investing in Justice” for yourself – contemplate the problem and consider the proposed solutions.  We hope that it will has profound an effect for you as it does for us.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Governor Patrick and the Importance of a Diverse Judiciary

On October 14, we will honor Governor Deval Patrick with the 2014 BBA Beacon Award for his commitment to diversity on the bench.  It is important to reflect on the immensity and breadth of his impact, because his work certainly transcends the judicial branch.   For example, most executive-branch employees are now women, and more than a quarter are people of color.  During his time in office, there has been a 10% increase in the number of women holding managerial positions in the executive branch, and a 57% increase for racial minorities.

These changes are not happenstance; they were the direct result of a concerted effort by the Patrick Administration to overhaul the executive branch.  During his first month in office, Governor Patrick enacted Executive Order 478, declaring his commitment to diversity.  In 2011, he reaffirmed this commitment with Executive Order 526.  The orders spell out the means to achieving diversity through hiring.  Some of the highlights include:

  • Section 2 – declares “non-discrimination, diversity, and equal opportunity” as policies of the executive branch “in all aspects of state employment, programs, services, activities, and decisions.”  It charges each agency to consider the effects of its actions on achieving this policy.
  • Section 4 – calls for the protection and affirmative promotion of equal opportunity and diversity in all state, state-assisted, and state-regulated programs, activities, and services.
  • Section 10 – requires diversity training for current executive-branch employees at all levels and for all future new hires.

Similar to the executive branch, the judiciary has changed markedly over the past seven years as well.  It is currently at a high point of diversity.  Earlier this year, the Supreme Judicial Court’s first Chief Justice of color, Chief Justice Roderick Ireland, was replaced by the first Jewish Chief Justice, Ralph Gants.  In addition, with the appointment of Geraldine Hines, the first black woman to serve on the SJC, the state’s highest court has a majority of female justices for the first time.  Governor Patrick also appointed the first openly gay SJC justice, Barbara Lenk, and the first Asian-American justice, Fernande R.V. Duffly.

Diversity on the bench is important for a number of reasons.  A jury trial calls for a set of one’s peers gathered from the community, yet there is no such ideal in place for judges.  Thus, those who preside over cases may not be as representative of the population they serve.  As a recent Boston Globe article explored, this arrangement could be a source of bias, a troubling thought even if it is likely unintentional.  As one scholar contends, true impartiality requires judges from diverse backgrounds and viewpoints to avoid a situation where one perspective dominates.  Consider as well that people who come in contact with the judicial system may feel a lack of confidence in, or out of touch with, the court if the judges, clerks, attorneys, and others they encounter do not reflect the broader community outside the courthouse.

Achieving a diverse judiciary is a major problem across the U.S.  In most states, racial and gender diversity on the bench lags behind not only that of the state population, but also the diversity of the bar, suggesting possible bias in judicial selection.  In fact, a 2010 Brennan Center study, which advocated for improved judicial diversity, made grappling with implicit bias its top best-practice recommendation for judicial nominating committees.  The problem here is two-fold: first, bias limits the diversity of the bench, and second, in a state like ours where citizens can apply for judgeships, it could have a chilling effect on qualified minority candidates.  Governor Patrick has worked to make sure that this doesn’t happen in the Commonwealth.  His Executive Orders and judicial appointments have fulfilled a myriad of the Brennan Center study’s suggestions and made Massachusetts a leader of judicial diversity.

We are proud of the progress Massachusetts has made under Governor Patrick’s guidance.  We look forward to honoring him next week and hope that whoever follows him in office will build on his progress on diversity in both the judicial and executive branches.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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