DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

On Tuesday, September 5, U.S. Attorney General Jeff Sessions announced that President Trump is ending the Deferred Action for Childhood Arrivals program (“DACA”), with a gradual phase-out, and official end date of March 5, 2018.  DACA was established through an Executive Order in June 2012 by then-President Obama and provides qualifying undocumented immigrants with a renewable two-year period of deferred action and work authorization, allowing them to remain in the United States to study, work, or serve in the military.  Individuals were eligible for DACA relief if they satisfied a strict set of criteria, including:

  • Were under 31 years of age as of June 15, 2012;
  • Arrived in the U.S. while under the age of 16;
  • Continuously resided in the U.S. from June 15, 2007, to the present (though brief and innocent absences for humanitarian reasons do not count against this);
  • Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
  • Were physically present in the United States on June 15, 2012, and at the time of applying for DACA relief;
  • Were in school, had graduated from high school, had obtained a GED, or had been honorably discharged from the Coast Guard or armed forces;
  • Had never been convicted of a felony, a significant misdemeanor, or more than three misdemeanors; and
  • Were not a threat to national security or public safety.

Though the phase-out will occur gradually over the next six months, and Congress has been urged to pass a replacement in the meantime, this announcement instantly made the future of current beneficiaries unclear.  Given this resulting (and continued) confusion and the potentially devastating outcomes for an estimated 800,000 current and potential DACA beneficiaries, the BBA moved quickly to gather a panel of immigration law attorneys to discuss what members of the bar, potential clients who are directly affected, and the public need to know about the decision and what to expect in the coming months.

For full details, watch the program here.

We were fortunate enough to be joined by three experts in the field:  Iris Gomez, of the Massachusetts Law Reform Institute (MLRI), is a nationally-recognized expert on immigration and asylum law and has served as an immigration attorney at MLRI for 25 years and now directs the organization’s Immigrants Protection Project. Scott J. FitzGerald, of Fragomen, Del Rey, Bernsen & Loewy, LLP, has practiced in immigration and nationality law for over 20 years and has in-depth experience in the full gamut of U.S. immigration and nationality laws and policies. And George N. Lester, also of Fragomen,  has over 25 years of experience in advising diverse companies seeking to hire foreign professionals and representing them through all the steps necessary to achieve temporary or permanent immigration status.

The Phase-Out:

Iris Gomez kicked things off with an overview of the program itself and how the phase-out would impact various types of immigrants. The original program protected qualifying immigrants against deportation and granted them work authorizations for a two-year, renewable period. The program also included travel benefits, known as advance parole, which allowed participants to leave the country and return without being ejected at the border.

As the phase-out begins, different groups will be impacted in different ways, which Gomez helpfully explained:

  • Current beneficiaries of DACA whose documents expire within next six months: Those beneficiaries whose documents expire between September 5, 2017, and March 5, 2018, have until October 5 to renew their DACA authorization and work permits. Because of this tight timeframe, the need for legal assistance for this category of beneficiaries is exceedingly pressing. Greater Boston Legal Services is hosting Clinics on the next three Mondays in advance of this October 5 deadline.
  • DACA beneficiaries who have already applied for renewal and those applying for DACA for the first time: Those individuals who had applied for renewal, or for the first time, before September 5, 2017, will continue to be adjudicated under the pre-existing process. The two-year authorization period will begin upon the final adjudications, so many of these individuals may remain beneficiaries into 2020 or 2021.
  • Current beneficiaries with documents that will expire after March 5, 2018: These beneficiaries will retain their status in their documents until their individual expiration dates, so their work permits will remain valid through the date on their work authorizations.
  • Past DACA beneficiaries who let their DACA qualification expire and had not yet applied for renewal: These past-beneficiaries are now ineligible and can only benefit if there is a legislative solution or other remedy that covers them.
  • Similarly situated immigrants who, in theory, are eligible for DACA but never filed: These individuals are also left with few options as a result of the program’s end and are similarly reliant on a legislative solution or other remedy.
  • Advance Parole Applicants: The granting of advance parole on the basis of DACA was immediately terminated upon the September 5 announcement. However, those who had already received advance parole but not actually travelled will, in theory, be permitted to return if they do leave the country. There is some risk in this, though, because Customs and Border Patrol Officials exercise broad powers in turning people away at the border. As a result, this also represents a category of individuals for whom access to an immigration attorney is very pressing.

Options beyond DACA

Next up, George Lester discussed other immigration options for those who previously had relied on or expected to rely on DACA relief, including:

  • Green Card based on a Family Member: Those individuals that may be eligible based on, for example, marriage to a U.S. Citizen or an approved family benefit petition from another family relationship (child, parent, etc.)
  • Green Card based on Employment: Those individuals that may be eligible based on one of numerous work-based petitions.
  • Temporary Work Visa Status: Those individuals that may be eligible for one of numerous temporary employment-based options, including H1-B visas.
  • Section 245-I: Those individuals eligible to receive a waiver of unlawful presence, which often bars exercise of the above options.
  • Asylum and Temporary Protected Status (TPS): Those individuals that meet the requirements of asylum, including well-founded fear of persecution upon returning to their country of origin, or TPS, when conditions in a country temporarily prevent individuals from returning safely.
  • Special Immigrant Juvenile Status: Those individuals under 21 and meeting the other criteria of SIJS, including being a victim of abuse, abandonment, or neglect.

Options at the Legislative and Court Level:

Following the overview of other options, Scott FitzGerald discussed the prospect of a Congressional solution which would prevent the end of DACA. President Trump, himself, has urged Congress to find a solution for DACA for the so-called Dreamers who are covered by it.  However, given the political climate in Washington, not least surrounding the highly-charged issue of immigration, there is much uncertainty about the likelihood that such legislation can be passed.

This prospect is made more complicated by the fact that many in Congress will demand that any continuation of DACA  include more-restrictive immigration measures, such as funding for building a border wall, stricter verification of employment status-, and major changes to the family-based immigration programs.

In addition to these legislative efforts, a lawsuit has been filed in the Eastern District of New York by 15 states, including Massachusetts (through the office of Attorney General Maura Healey), and the District of Columbia, demanding injunctive relief to prevent the phase-out of DACA provisions.  The suit outlines a number of arguments, including that the Trump administration violated the due process rights of the young immigrants impacted by the phase-out by failing to safeguard the personal information they provided to the government in order to gain DACA relief.  The suit also argues that President Trump violated the equal protection clause by targeting immigrants from Mexico and that the President has demonstrated “racial animus” based on past statements and actions.

We were pleased to be able to host this important and timely event, and we hope it that it offered some measure of clarity in an area of on-going uncertainty.  We will continue to monitor developments and offer guidance in any way we can.

In the meantime, we are very happy to hear about the partnership between the City of Boston, the Massachusetts Legal Assistance Corporation, and MLRI to create the Greater Boston Immigrant Defense Fund. The initiative will help provide much-needed legal assistance to immigrants facing removal proceedings.

In a statement on the announcement, BBA President Mark Smith expressed gratitude “to Mayor Walsh and the Fund partners for this ambitious effort to increase access to justice for some of the most vulnerable members of society,” noting also that, given the Boston Bar Foundation’s grant-making to several legal-services providers who represent immigration clients, “we are acutely aware of the need for legal representation in this area, and we stand ready to assist and support attorneys and organizations who commit their time and talent to this important cause.”

Be sure to stay tuned for more updates on this initiative and future Immigration-Related events here at the BBA, like the upcoming “Immigration Law as it Relates to Representing Health Care Providers” lunch program that will be held on September 26.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Welcome to the 2017 – 2018 Program Year!

It’s a lively time here at the BBA, and the building is abuzz with activity as Section Steering Committee meetings and brown bag and CLE programs are once again in full swing. With the new year underway, we wanted to take a moment to offer a refresher about our public policy opportunities and procedures.

Our Public Policy Procedures offer a great resource for learning about BBA policy processes and highlight our key focus areas. We evaluate opportunities to engage in public policy through the lens of our mission, which is to:

  • Increase access to justice,
  • Provide for the fair and efficient administration of justice, and
  • Enhance the quality of the law

The procedures also highlight the myriad of ways in which policy related to these areas manifests at the BBA, including:

  • Providing comments on proposed changes to court rules
  • Drafting, endorsing, or providing feedback on legislation
  • Filing and joining amicus briefs

Section Comments

One of the more common policy opportunities here at the BBA involves the solicitation of Steering Committee comments on proposed amendments to court rules. As part of this process, we send an email to the Section Co-Chairs, notifying them of an opportunity to comment, and if the proposed amendments do relate to their practice area, the Co-Chairs forward them along to the full Steering Committee for more in-depth review and potentially a discussion at their next meeting. When a Steering Committee has an invitation to comment on their agenda, I, or Mike Avitzur, the Director of Government Relations, will attend, take notes, answer any questions, and assist in the development of comments should the Steering Committee have them. Then, the comments are reviewed by BBA leadership and submitted by the BBA on behalf of the relevant Steering Committee(s).

We love facilitating the opportunity for Sections to weigh in from their particular, expert perspectives on important changes that may impact their practice area. This also provides the courts with an opportunity to hear directly from practitioners that will be affected by the proposed amendments. And the courts have a history of carefully considering the submissions and even adjusting the final versions of the rules as a result of the concerns and feedback raised in the Section comments.

For more reading on the Comment process and the impact of these submissions, be sure to check out:

BBA Government Relations Year in Review: Comments on Proposed Rules Changes

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

Comment Round up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

Sometimes, however, the request for input will come not from the courts, but internally from the BBA. Here in the Government Relations Department, we often reach out to the Sections for their expert opinions and analysis on a range of other internal and external policy requests, including requests for the BBA to endorse legislation, requests for the BBA to file or join an amicus brief, and requests for the BBA to respond to various current event and policy developments locally and nationally. In these instances, we rely on Sections to weigh in from the perspective of their particular practice area as a way to ensure that we thoroughly understand the issue and any impacts it may have.

Public Policy Request

Beyond responding to requests for comment coming directly from the Government Relations Department, we also work with Sections, acting through their co-chairs, to prepare their own policy proposal requests by filling out and submitting this summary sheet. These proposals can seek a number of things from the BBA, including creating and drafting new legislation, supporting or opposing existing legislation (with or without further comments), providing comments on regulations, rules or standing orders, or something else entirely.

As you can see, these requests can be used to take much more nuanced positions than simply support or opposition to an existing piece of legislation. For example, just this year, the Trusts and Estates Section submitted a proposal seeking BBA endorsement of Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Access Act (RUFADAA). The BBA Council voted to endorse RUFADDA, even though, interestingly enough, none of the bills currently filed at the State House actually included the full RUFADAA language. Armed with BBA Council approval, BBA Trusts and Estates Section Co-Chair Joe Bierwirth, alongside members of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates, and Fiduciary Administration, testified before the Judiciary Committee on bills related to fiduciary assets, urging the committee to adopt full RUFADDA language instead of the bills currently filed.

Amicus Brief Request

While we already noted that Sections are sometimes asked to provide comments on amicus brief requests, members are also encouraged to submit their own requests if they believe the litigation at issue fits the specific criteria. According to the Amicus Brief Policy, the BBA will, “as a general rule…only file or join an amicus brief related to the practice of law or the administration of justice,” though, “possible exceptions will be considered on a case-by-case basis.”

The drafting or joining of a brief, however, takes a significant amount of time and resources, so we urge Sections to begin this process as early as possible. For requests that require the BBA to draft a brief, three months is typically required to obtain the appropriate approvals from BBA leadership and prepare the brief for filing. If, however, the request asks the BBA to join a brief being prepared by another party, only two months is required, with the draft brief being submitted to the BBA for review one month prior to the filing deadline.

Our Amicus Committee has a long history of submitting briefs on some of the most significant and timely matters facing the profession and the general public, including the Dookhan Drug Lab Scandal, Access to DNA Testing, and Diversity in the Legal Profession.

Read more about this important work:

BBA President Carol Starkey on 20 Years of the Amicus Committee

Amicus Committee History Part I

Amicus Committee History Part II

This year, we are excited to work with you on the full range of policy opportunities here at the BBA. Looking ahead, you can be sure that we will continue advocating for funding for civil legal aid, the Trial Court, and the Committee for Public Counsel Services, as well as our long-held criminal justice reform priorities, including opposition to the death penalty and repeal of mandatory minimums. The following months should prove especially exciting on the criminal justice reform front as our recently appointed Working Group is gearing up for release of its recommendations on improvements to current and proposed criminal justice reform policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

ABA Annual Meeting Recap

While much of our policy focus remains concentrated on the City of Boston and the Commonwealth of Massachusetts, from time to time, whether it be our annual advocacy at ABA Day or BBA Council endorsement of an ABA Resolution, we turn our attention to the American Bar Association (ABA).

Founded in 1878, the ABA has over 400,000 members, making it one of the largest voluntary professional organizations in the world. The ABA House of Delegates (The House) is the policy-making body of the Association, and it meets twice a year to consider and adopt new policy resolutions on a range of issues related to the law and the legal profession. Once adopted, the Resolutions become official policy and the ABA is able to advocate for the measures contained within the resolution. The House is made up 601 delegates from state, local, and other bar associations and legal groups from across the country, and we are proud to be represented by two former BBA Presidents, Lisa Arrowood of Arrowood LLP and Mary Ryan, of Nutter, McClennen, & Fish LLP.

At the ABA Annual Meeting in New York earlier this month, the House considered a range of timely resolutions, and many of those that passed relate to issues we’ve also been taking a close look at here at the BBA.

ABA Resolution 115

First and foremost, we are happy to report that the House passed ABA Resolution 115, which, as you’ll recall, the BBA Council voted to endorse last month.  The Resolution contains three key parts: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Mary Ryan reported that in the days leading up to the vote on this resolution, proponents fanned out through many of the meetings of delegates and Section councils to educate the delegates about the resolution. This advocacy, along with the carefully crafted accompanying report, resulted in resounding support for the resolution.

Be sure to check out our prior Issue Spot blog for the full details on BBA endorsement of this important resolution!

Resolution 10C

Another interesting immigration-related resolution passed by the House involves an issue we’ve been tracking here in the Commonwealth: the presence of Immigration and Customs Enforcement (ICE) Officers in courthouses. Resolution 10C calls on Congress to amend Section 287 of the Immigration and Nationality Act to codify the Department of Homeland Security guidelines regarding immigration enforcement actions to include courthouses as “sensitive locations.” Currently, ICE limits enforcement at other locations deemed “sensitive,” including schools, health care facilities, places of worship, religious or civil ceremonies or observances, and public demonstrations.

By including courthouses in this category, immigration enforcement action would only be taken on a showing of exigent circumstances and with prior approval of a designated supervisory official. Exigent circumstances include those actions involving a national security matter, an imminent risk of death, violence or harm to person or property, an immediate arrest or pursuit of a dangerous felon or one that presents an imminent danger to public safety, or an imminent risk of destruction of evidence material to an ongoing criminal case.

Those calling for limits on ICE action at courthouses point to the potential interference with access to justice and the administration of justice. The Report accompanying Resolution 10C succinctly summarizes these issues, noting that immigration enforcement actions at courthouses:

…chill undocumented victims and defendants from seeking justice in court and deter witnesses from responding to legal process, frightened by the knowledge that they run the risk of being detained and deported should they participate in our system of justice, comply with lawful process requiring their participation, or dare enter an American courthouse.

In addition, the Report outlined the recent escalation of immigration enforcement actions, relying partly on information from Massachusetts.  For example, in 2017,  the Massachusetts Committee for Public Counsel Services Immigration Impact Unit received reports of close to 40 people who had been arrested by ICE agents while either inside courthouses, on the courthouse steps, or getting out of their cars to enter courthouses. Across the country, from Maine to Arizona, courthouse arrests have been documented against asylum seekers, agricultural workers, victims of domestic violence, and recipients of Deferred Action for Childhood Arrivals.

The passage of this resolution is especially timely given the recent Massachusetts Supreme Judicial Court decision in Lunn v. Commonwealth, which held that detention of an individual who would otherwise be released based on an “ICE detainer” is tantamount to arrest and not authorized under state law, and the debates following that ruling. As usual, we will continue tracking these issues, both locally and nationally, and keeping a close eye on all developments that may impact access to justice for Massachusetts residents.

Criminal Justice Resolutions

As you know, we’ve also been closely following Beacon Hill developments on criminal justice reform, including the recent release of the highly anticipated legislation based on recommendations from the Council of State Governments’ Justice Center Report, along with at least 150 other bills on matters related to sentencing, mandatory minimums, and CORI Reform to name a few. Many of the same and similar issues were also up for debate and approved in Resolutions passed at the Annual Meeting, including:

  • Resolution 106:
    • In this Resolution, the ABA urges Congress to increase the powers of the U.S. Department of Justice (DOJ) to ensure compliance with the Supreme Court decision in Gideon v. Wainwright, which, under the Sixth Amendment, guaranteed the right to counsel in most criminal cases. Specifically, the resolution calls for Congress to 1) enable the DOJ “to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel,” and 2) “enact legislation recognizing the right of private litigants…to obtain equitable relief in federal court for systemic violations of this right.”
  • Resolution 10B:
    • By passing Resolution 10B, the House reaffirmed its opposition to mandatory minimums, an opposition that has also long been a position of the BBA. The accompanying report outlined the ABA’s history of opposition to mandatory minimums and the reasoning for their opposition, including the detrimental limits on a judge’s flexibility to consider all relevant circumstances and the resulting disparate impacts on communities of color.
  • Expungement Resolutions:
    • The House also passed two expungement related policies, Resolution 112F and 112G. The former urges all levels of government “to enact laws allowing individuals to petition to expunge all criminal justice records pertaining to charges or arrests that did not result in a conviction.” The latter urges all levels of government to pass laws “allowing for the expungement of: (a) convictions, or (b) other statutory ordinances or violations where a court enters a finding of guilty, for actions performed in public spaces that are associated with homelessness.”
  • Resolution 112C:
    • This cash-bail related resolution urges federal, state, and local governments to adopt policies that favor release on recognizance and disallows the imposition of a financial condition of release that results in the pretrial detention of a defendant based solely on that defendant’s ability to pay. In addition, the Resolution calls for adoption of policies that “make bail and release determinations based upon individualized, evidence-based assessments that use objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, disability, sexual orientation or gender identification.”

Looking ahead, the BBA’s own Criminal Justice Reform Working Group, headed by BBA Secretary Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Collora LLP, is wrapping up its own exploration of criminal justice reform recommendations for the Commonwealth. We look forward to outlining those for you in the near future and keeping you posted on the continuing State House developments!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

As we’ve often noted, the opportunity to comment on proposed amendments to various rules allows BBA members to leverage their particular expertise and offer specific, constructive feedback on items that influence their own practice of law. In addition, the courts have long shown an interest in taking a close look at these submissions by the Sections and often the concerns expressed in the comments are reflected in the final iterations of the rules.

The Business and Commercial Litigation Section has consistently been one of our most prolific contributors of comments on rule changes and the past few months have been no different. The hard-working “Comments Subcommittee,” made up of Paula BaggerDaniel Tighe, Brendan St. Amant, and John Bauer, with active oversight from the Section’s Co-Chairs, Brenda Sharton and Debra Squires-Lee, took the lead in producing the Section’s thorough and thoughtful comments over the last year.

Below, we highlight four comment submissions, beginning with the two most recent sets of comments submitted by the Section:

Proposed Amendments to the Massachusetts Rules of Appellate Procedure

Just this week, the BBA Executive Committee approved submission of comments on the proposed amendments to the Massachusetts Rules of Appellate Procedure.

The proposed amendments were drafted by the Appellate Rules Subcommittee, appointed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure. The Subcommittee was tasked with identifying proposals that would clarify the meaning and formatting of the rules, assist in the development of paperless processes, and encourage the just and speedy resolution of appeals.

Given the lengthy and technical nature of the amendments, representatives from interested sections were tasked with undertaking the review and drafting of the comments on behalf of their sections, with comments then redistributed for final review by the full Steering Committee. Paula Bagger and Daniel Tighe volunteered to tackle the lengthy proposed amendments and draft the comments on behalf of the Business and Commercial Litigation Section Steering Committee while Bethany Stevens did the same for the Criminal Law Section Steering Committee. Upon finalization, Paula Bagger and Bethany Stevens joined the Executive Committee to report on their comments.

Both the Business and Commercial Litigation Section and the Criminal Law Section expressed great appreciation for the great amount of work undertaken by the Standing Advisory Committee and the Appellate Rules Subcommittee to produce the amendments, and the BBA echoed this appreciation in the cover letter accompanying the comments. Overall, the Business and Commercial Litigation Section and the Criminal Law Section “were in agreement that the proposed amendments offered substantial improvements, especially by addressing technological advancements and changes to practice that have made the current rules obsolete and clarifying aspects of rules that were confusing and added difficulty for those who do not frequently appear before the Appeals Court or Supreme Judicial Court.” Both Sections then offered their own more technical suggestions for ways the proposed amendments could be tweaked to make them even clearer.

Proposed Amendments to the Supreme Judicial Court Rule 1:11

In June, the BBA submitted comments on behalf of the Section in relation to proposed amendments to Supreme Judicial Court (SJC) Rule 1:11, Relative to the Disposal of Old Court Papers and Records.

The SJC Rules Committee solicited comments on the proposed amendments, which were drafted upon consideration by an SJC-appointed committee, on “whether changes were warranted regarding the scope of case records required to be retained permanently and whether any records might be retained electronically.” The proposed amendments offer a number of changes, including increased allowances for the use of electronic storage and the disposal of certain files, simplified notice requirements, and expansion of the rule to include the SJC and Appeals Court in addition to the Trial Court.

The comments drafted by the Steering Committee outlined a few of the strengths as well as a few of the ambiguities in the proposed amendments. For example, members praised the permissive nature of the rules, noting it was important that clerks are allowed discretion to retain those records they think important, even if they would be permitted to dispose of them. However, the comments also outlined those sections that could use some clarifying, including the lack of requirements related to “sampling” and the ambiguity in whether certain records that must be retained permanently must also be stored electronically.

Brendan St. Amant presented the Section comments before the BBA Executive Committee and Council, and following Brendan’s presentation, the BBA was struck by the potential significance of these rule changes. As a result, in the accompanying cover letter, President Carol Starkey stressed the need to balance the creation of an efficient mechanism for storing and disposing of records while also maintaining a great deal of deference to the historical significance of many legal documents, including recent documents, whose future historical value may not yet be fully evident.

We’ll be sure to keep you posted once the final approval of the amendments to SJC Rule 1:11 and Massachusetts Rules of Appellate Procedure are announced.

In addition to these submissions, two final rules previously commented on by the Section were recently announced:

Board of Bar Overseers Rule 3.18 and Related Rules

Late last year, the Board of Bar Overseers (BBO) sought comment on proposed amendments to Rule 3.18 and related provisions of sections 2.8(b)(1), 2.13, 3.16, 3.17, 3.22(d), 3.32, and 4.9(a)(1) and (2). The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board Members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will be reserved exclusively for Board Members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

In February, the BBA submitted comments on these proposed changes on behalf of the Business and Commercial Litigation Section and the Ethics Committee. The comments expressed unanimous support for these “welcome and necessary” amendments. The Section felt that certain motions, like those on protective orders and discovery, “are too important as a matter of due process to be left to the hearing committee members who may only hear one or two matters in their entire tenure.”

Last month, the SJC approved these amendments, which will be effective September 1, 2017.

Massachusetts Rules of Civil Procedure 26(b)(5)(A)

The same day we submitted comments on the proposed changes to BBO Rules, we also submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure. The proposed amendments would conform the Massachusetts rules on privilege logs to the federal rule, which, unlike the current Massachusetts rule, does not require a document-by-document log of privileged information, though parties are still required to describe the nature of the material withheld in enough detail for the other party to assess the merits of the withholding.

The Business and Commercial Litigation Section comments expressed a variety of views by members of the Section, including those that favored the proposed new rule and those who believed the present rule was more suitable to Massachusetts-specific courts and cases. For example, some members felt the new rule would address shortcomings in the current rule that made the process too time-consuming, expensive, and could be unfair for those parties with many more privileged documents, while others felt the current rule, though burdensome, offered greater and necessary safeguards for parties seeking the information. In addition, some members noted some discomfort with the rule’s lack of specific language providing for a judge’s ability to order production of a privilege log in certain circumstances. Though a judge could take that step without specific language in the rule, placing such authority in the rule itself would render a ruling of that type less extraordinary.

The SJC also recently announced the final amendments, effective September 1, 2017, to this rule. The final approved amendments remain largely the same as the proposed amendments, with the addition of one sentence, that reads “[t]he court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege.” This addition helpfully offers the clarity sought by those members who thought the rule could benefit by the specific inclusion of the court’s ability to order the production of more information when appropriate.

The presentation on the Section’s comments both the BBO Rules and the Massachusetts Rules of Civil Procedure to the BBA Executive Committee and Council in February was made by Paula Bagger (and, ICYMI, she will be, alongside Stephen Riden, the co-chair of the Business and Commercial Litigation Section Steering Committee in 2017 – 2018).

With the new program year only a few weeks away, we are excited to see all the future comments coming from the Business and Commercial Litigation Section and all the other sections at the BBA!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Endorses Two Access to Justice-Focused Policy Items

Last week, the BBA Council voted to endorse two proposals firmly rooted in the “facilitate access to justice” piece of the Association’s mission. One relates to the provision of counsel for immigrants in federal removal proceedings and the other relates to what a full switch to electronic reports of decisions by the Massachusetts SJC and Appeals Court would mean for access to justice in the Commonwealth.

ABA Resolution 115

First up on the Council agenda was a proposal seeking BBA support for the proposed American Bar Association (ABA) Resolution 115. In June, the BBA received a request to support the resolution and accompanying report in advance of the August ABA Annual Meeting, where the House of Delegates will vote on a number of resolutions, including this one.

In brief, the draft resolution contains three components: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Backers see the resolution as a “logical next step” in its incremental approach to endorsing the appointment of government-funded counsel for indigent individuals in adversarial civil proceedings “where basic human needs are at stake” and argue that support for the provision of counsel to all indigent individuals in removal proceedings “will not only help to ensure due process and fairness, but also has the potential to make the process more efficient.” They view the resolution as “especially timely” in light of the new federal enforcement priorities on immigration and increased recognition of the need for government-funded counsel in such cases across the country.

Similarly, the BBA itself had previously endorsed a number of very relevant proposals, including:

  • In August 2008, the BBA Council approved Gideon’s New Trumpet, a report drafted by the Task Force on Expanding the Civil Right to Counsel. The Task Force concluded “that representation should be provided in cases where individuals have the most at stake in terms of their liberty and their right to assert defenses to removal.” Specifically, the report identified three categories of individuals who fit these criteria: 1) those who have been detained, 2) those facing deportation as a result of a criminal offense, and 3) those seeking asylum.”
  • In February 2017, the BBA Council voted to endorse ABA Resolution 301 and its accompanying report. This resolution expressed ABA support for “the preservation and development of laws, regulations, policies, and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children.” The resolution also specifically urged Congress and the Administration to take a number of actions, such as maintaining the current statutory definition of “unaccompanied alien child,” ensuring children are held in custody for the shortest period possible, and increasing the annual number of Special Immigrant Juvenile visas allotted, among other things. Lastly, the ABA urged governments at all levels to “expand efforts to provide legal information and legal representation for unaccompanied immigrant and asylum-seeking children in removal proceedings.”

Overall, Resolution 115 is closely related to the above BBA positions, but does go a bit beyond both by expanding support for the provision of publicly-funded counsel to all immigrants in removal proceedings before the Immigration Court and the Board of Immigration Appeals, and not just in the more discrete categories mentioned in Gideon’s New Trumpet and ABA Resolution 301.

Upon distribution to relevant BBA Sections, members of the Delivery of Legal Services Steering Committee expressed support for BBA endorsement, and both the Civil Rights and Civil Liberties Section Steering Committee and Immigration Law Section Steering Committee voted to support BBA endorsement of the proposal. A statement made by the Civil Rights and Civil Liberties Section described the government-funded provision of counsel to indigent persons in removal proceedings as “a practical, legal, and moral imperative.”

The Council was fortunate to have former BBA President Mary Ryan, of Nutter, McClennen, & Fish LLP, present the proposed resolution. Ryan also serves, alongside Lisa Arrowood, as one of two BBA delegates in the ABA House of Delegates, and as co-chair of the ABA’s Working Group on Unaccompanied Immigrants, a co-sponsor of the proposed resolution. Ryan began by noting that she felt endorsement of the resolution was the “right and fair thing to do, as equal protection and the right to due process under the law applies to all people in the United States.” Her thorough and thoughtful presentation articulated the variety of ways the proposed resolution had a strong foundation in both ABA and BBA policy, highlighting specifically the work of the Task Force on Expanding the Civil Right to Counsel, which produced the above-mentioned Gideon’s New Trumpet Report, and which she also co-chaired.

After posing a few questions to Ryan, the Council voted to endorse ABA Resolution 115, and we are very pleased to be included in the list of supporters that will be read to the House of Delegates during consideration of the proposed resolution in August.

Proposed Change from Print to Electronic Reports

Next on the agenda were comments drafted by the Civil Rights and Civil Liberties Section in response to the Supreme Judicial Court’s recent invitation to comment on a proposed change from print reports to electronic reports. The invitation explains that the Justices of the Supreme Judicial Court (SJC) and the Court’s Reporter of Decisions are considering whether reports of both the SJC and the Appeals Court should be published only in electronic, and no longer in print, form–perhaps as soon as July 2019. Specifically, the invitation to comment sought information related to access to justice and the “anticipated impact of such a change on populations who may have limited access to the internet or little experience using the internet.”

The Civil Rights and Civil Liberties Section Steering Committee took this charge to heart, drafting detailed and eloquent comments on this anticipated impact. The comments, composed principally by Joshua Daniels, with the support from the Section’s comments subcommittee, noted the Section’s support for broad public access to the decisions of the Massachusetts courts but also a concern that discontinuation of the printed version “may have unintended adverse consequences for many people who rely on the print edition as their primary or even sole means of obtaining Massachusetts appellate decisions.” Specifically, the comments highlighted the consequences such a change may have on already especially vulnerable populations, including low-income, homeless, elderly, and incarcerated individuals.

Relying on case law and statute, the comments explore the Commonwealth’s existing commitment to ensuring that the public have access to those sources of law, like decisions and statutes, that are binding upon them. In light of this, the Section relies on local information and data to highlight those whose access may suffer as a result of the change, first noting that around 14% of Massachusetts residents either lack access to, or do not use, the internet. While Court Service Centers, Trial Court Law Libraries and potential partnerships between the courts and the public library system do a great deal to expand public access to judicial decisions, certain limitations persist. For example, resource constraints limit the number of public-library computers available and the amount of time allowed on computers printing is very rarely free and can cost as much as $0.15 a page, and access to public libraries often requires a form of ID and address verification that many homeless individuals do not possess. In addition, the nearly 10,000 individuals currently incarcerated in Massachusetts lack access to these services and, as a matter of policy, the internet.

The Section comments concluded with a statement “encourag[ing] the SJC and the Reporter’s Office to work closely with the Legislature, the Department of Correction, and individuals and organizations representing those who might be adversely affected by the Proposal, so that these concerns are addressed.”

Upon an initial presentation the week before by Joshua Daniels and Section Co-Chair Kate Cook of Sugarman Rogers, Barshak & Cohen, P.C., the Executive Committee was struck by both the quality of the comments and the firmly-rooted “access to justice” angle and requested Cook and Daniels return to present the comments to the full BBA Council for potential full BBA endorsement, rather than by the Section alone. Once again, Cook and Daniels eloquently explained the potential implications of the shift outlined in their comments. The Council agreed that, given the BBA’s mission to “facilitate access to justice,” and the strength of the comments, they could and should be endorsed by the Association as a whole. Last week, we mailed the comments with a cover letter explaining this endorsement, and we hope it will assist the Justices and Court’s Reporter of Decisions as they consider the proposed change.

We want to send a special thanks to Mary Ryan, Kate Cook, Joshua Daniels and the Civil Rights and Civil Liberties Section for making the above policy proposals possible! Be sure to watch this space for more updates on the House of Delegates vote on ABA Resolution 115 and the proposed change to electronic reports.

Housing Court Set to Expand to Statewide Jurisdiction

Finally, a quick update on an issue we’ve discussed here several times before: We are happy to report that the Legislature and Governor Charlie Baker have agreed, through the state-budget process, on statutory language and funding to allow the Housing Court to expand to full statewide jurisdiction. No longer will nearly one-third of the state’s population be denied access to the Housing Court—along with its expertise in housing matters, its specialized programs to help prevent homelessness, and its unique efficiencies—merely because of the town they live in.

This would not have become a reality absent the tireless work of Annette Duke and the Massachusetts Law Reform Institute, who assembled a coalition in support of expansion that the BBA was proud to be a part of. In keeping with the theme of this post, this change is a big victory for access to justice, which is why the BBA has been advocating for it for years.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Conference Committee Submits FY18 Budget to Governor

The budget process is finally nearing completion with last Friday’s release of the Conference Committee’s $40.3 Billion Fiscal Year 2018 (FY18) budget, H3800, which was followed by quick passage in both houses that same day. If you need a refresher as to how we got here, be sure to check out past posts on our advocacy on the initial Governor’s budget, the House’s Ways and Means Committee and final budgets, and the Senate Ways and Means Committee and final budgets. The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it.

Worth noting at the top — as the Legislature was piecing together its FY18 budget, it was receiving increasingly gloomy news about FY17 revenues – to the point that the Conference Committee was forced to revise downward its spending plans for next year in the face of a developing budget gap. In the end, the budget delivered by the six conferees slashed about $700 million from the budgets passed only weeks earlier by each house. The general rule was that individual line-items were level-funded or even cut, from last year’s appropriations.

The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it. Here’s a round-up of how our budget priorities fared in the Conference Committee:

Statewide Expansion of the Housing Court

We are happy to report great news for statewide expansion of the Housing Court, which the BBA has long supported as a key access to justice cause. If you’ll recall, for the second year in a row, the Governor included funding and authorization for the expansion in his initial budget, the House did not allocate funds or authorizing language, and the Senate included $1 million appropriation and authorizing language. This year, the measure survived the Conference Committee process and both the authorizing language and appropriation of $1 million were included in their final budget that was sent to the Governor. So a statewide Housing Court is only one step away from finally becoming a reality.

Currently, nearly one-third of Massachusetts residents must take their landlord/tenant matters to District Court – as do municipalities in those regions that are seeking to enforce health and sanitary codes. There they wait in line behind others bringing a wide variety of cases, they appear before judges who see such cases only occasionally, and they do not have access to housing specialists trained to successfully resolve these cases and avoid the need – and expense – of litigating in open court. In addition, Housing Court offers programs like the Tenancy Preservation Program – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping to prevent homelessness. These programs help make Housing Court a model of efficiency, featuring the lowest cost per case of any Trial Court department.

As mentioned, this year the Conference Committee included the $1 million appropriation (line-item 0336 – 0003) as well as the authorizing language (outside sections 78-82), so if the Governor continues his leadership on this issue and includes the language and funding, this may finally be the year that all of the residents of the Commonwealth will finally have access to the many benefits the Housing Court offers.

Trial Court

The expansion of the Housing Court is just one piece of the Trial Court appropriation, which is made up of about 15 different line-items. Within the context of the gloomy revenue news outlined above, the Conference Committee budget did reduce overall Trial Court funding, but nevertheless provided for a $13.7 million increase over last year’s appropriation – presumably in recognition of the fact that the court system still remains underfunded, despite a more than $8 million increase in FY17 – for a total of $652.6 million in FY18.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less. As a result of this work, they have been able to continue the efficient and effective operation of the courts even with a 19% reduction in staffing since FY02. Despite these transformational efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. For example, the installations of new technologies that will ultimately save on staffing and overhead costs nevertheless require large up-front investments. In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems. These upgrades are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

The Trial Court, made up of seven different departments, handles nearly all of the cases in the Commonwealth and functions as the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved. As such, adequate funding is critical for the Commonwealth, and we hope the Governor will include the full appropriation in H3800 for all of the Trial Court line-items.

Massachusetts Legal Assistance Corporation (MLAC)

As you know, MLAC is the largest funder of civil legal aid in the Commonwealth. The Governor’s budget allocated for a 1% increase in MLAC funding, or $18,180,000. The House Budget, with the help of an amendment filed by Representative Ruth Balser, included a $20 million appropriation, and the Senate budget, with the help of an amendment filed by Senators Cynthia Creem and William Brownsberger, also included a $20 million appropriation for MLAC.

Unfortunately, however, the Conference Committee felt compelled, in light of the gravity of the revenue shortfall, to move the MLAC line-item (0321 – 1600) back down to $18 million, representing level-funding from FY17.

We’ve outlined the importance of MLAC funding, again and again, as legal aid touches so many of the biggest social problems facing the Commonwealth, including foreclosures and emergency shelter, immigration, the opioid crisis, and domestic violence. In addition, the recent BBA Report, Investing in Justice, revealed just how many Massachusetts residents needed this aid and how many were turned away due to lack of resources. Each year, MLAC-funded programs are forced to turn way around 64% of qualified clients, or about 57,000 individuals. Plus, with legal aid funding at the federal level in peril, the demand for state-funded legal services may increase even more in the near future.

In addition to outlining the great need for legal aid funding, the report also established that investment in legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. Indeed, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

We join MLAC and the Equal Justice Coalition in urging the Governor to protect funding for civil legal aid by approving the $18 million in MLAC funding in the FY18 Budget.

CPCS

Similar to the Trial Court, the Committee for Public Counsel Services (CPCS) also received some cuts to their budget line-items in the Conference Committee budget.

CPCS plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase compensation paid to private assigned counsel, as well as increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the recent Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and the appropriations outlined above would be a significant and beneficial step in that direction.

Given the importance of the services provided by CPCS, we hope the Governor will continue his recognition of the importance of providing adequate funding for CPCS and uphold the full H3800 appropriations of $58,896,644 for staff and operations (line item 0321-1500); $98,906,090 for private counsel compensation (line item 0321-1510), and $14,951,982 for indigent court costs (line-item 0321-1520).

On the heels of our letter to the Conference Committee, we sent a letter to the Governor this week urging him to include the Conference Committee appropriation in the above line-items. Watch this space for one last update when the Governor signs the official final budget for FY18 … pending any potential legislative overrides, of course, should he veto or cut any of these.

We also want to thank you for all the phone calls, letters, and conversations you’ve had with your legislators on behalf of such important issues like increasing civil legal aid funding and expanding the Housing Court. If you’re reading this before the Governor has acted, please contact his office to express your support for the items outlined above.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Criminal-Justice Reform Inches Forward

Whether or not you’ve been following Beacon Hill developments on criminal-justice reform as closely as we have, if it seems like that debate has been going on for a couple of years now, that’s because it’s been about that long since the state’s top leadership kicked off the review process by formally inviting outside experts to undertake an assessment of our criminal-justice system.  This month, legislation that emerged from that effort—along with more than 150 other bills on criminal procedure, sentencing, prison programs, and related issues—passed the first hurdle in the legislative process, with two heavily-attended public hearings of the Legislature’s Judiciary Committee.

To recap: In July 2015, Governor Charlie Baker, SJC Chief Justice Ralph Gants, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo jointly penned a letter asking for technical assistance from the Council of State Governments’ (CSG’s) Justice Center—which had already provided such help to more than a dozen other states—in using “a data-driven approach to continue to improve criminal justice outcomes”.  The request was greeted with wide acclaim from stakeholders in the system and outside advocates, who saw it as an opportunity to address long-standing inefficiencies and inequities, and to provide a framework for substantial reforms in a variety of areas that have been discussed at the State House for years—but acted on only fitfully and incrementally.  The seeds of future discontent were planted, however, by the letter’s focus on recidivism, re-entry, early release, and post-release supervision—the so-called “back end” of the system, with no mention of such “front-end” ideas as diversion, bail reform, and sentencing reductions.

Fast-forward to this past February, when the CSG group—consisting of a team of national experts alongside a star-studded panel of leaders from throughout the Massachusetts system—released its final report after 18 months of hard work.  As with the initial invitation, the report’s recommendations, which had achieved unanimous internal consensus, met with near-universal approval once made public, and a bill was filed to implement those that required legislative endorsement.  Still, some observers expressed frustration with the bill’s limited scope, pointing out missed opportunities and calling for lawmakers to expand on it when they take up the issue during the current two-year legislative session.

The first real chance to speak directly to legislators on these issues—well, the first two chances, I guess—came on June 5 and again June 19, when the Judiciary Committee, which oversees criminal-justice legislation (among many other areas), held hearings to take testimony on those bills in particular.

The BBA was there both days, along with hundreds of other interested parties, as witnesses spoke on a wide variety of proposals, including limits on how criminal-justice fees and fines are imposed on the indigent, efforts to make the bail system more evidence-based, and steps to reduce the debilitating effects of the web of collateral consequences facing ex-offenders upon re-entry to society.  (For its part, Commonwealth Magazine has been providing strong coverage of the on-going debate, including both hearings—while also weighing in itself from time to time through its MassINC research arm.)

At the June 19 hearing, Marty Murphy of Foley Hoag—BBA Secretary and an experienced criminal lawyer—testified on our behalf, focusing on mandatory minimums, which the BBA has opposed for decades in all cases except first-degree murder.  With the Committee imposing a three-minute limit on oral testimony, in order to allow everyone present an opportunity to be heard, Murphy used his time to make four key points to the panel:

  1. Mandatory minimum sentences fail every test by which we should measure the strength of our justice system: In place of proportionality—a system where the punishment fits the crime—they offer one-size-fits-all justice.  They frequently require incarceration for longer than the judge believes is either necessary or just, as demonstrated by the prevalence of “and a day” sentencing.  These overly-long sentences, in turn, delay the possibility of re-integration, restrict access to the very programs shown to help make that process a success, and often turn prisoners back to the street without support, supervision, or help to find employment or housing.
  2. Mandatory sentencing statutes effectively turn over the reins of the criminal justice system to prosecutors and strip judges of their power to impose the kind of individualized sentences that would in fact make the punishment fit the crime. Mandatory sentences are mandatory only when prosecutors want them to be; in practice, prosecutors often use them as bargaining chips in the plea bargaining process. When prosecutors use the threat of mandatory sentences to drive the plea-bargaining process, there is no transparency and no accountability. Instead, the result is justice produced behind closed doors, with the prosecutor choosing both charge and sentence.
  3. The evidence shows that mandatory minimum sentences help drive one of the most deeply disturbing aspects of our state’s criminal justice system: the problem of racial disparity. Massachusetts may have one of the lowest incarceration rates in the nation; but our criminal justice system’s record on race is nothing to be proud of.  Massachusetts rates of racial and ethnic disparity are among the highest in the United States.  For African-Americans the rate of disparity (that is, incarcerations rates of black compared to white residents) was the 13th highest in the country. For Latinos, Massachusetts ranked first.  Mandatory minimum sentences help drive that rate of disparity: Three out of every four defendants sentenced to mandatory minimum sentences are defendants of color.  As recent studies have confirmed, and as our own experiences teach, these sentences tear lasting holes in defendants’ families, and in entire communities.
  4. There is no time better than the present to address this issue. Massachusetts reduced mandatory minimums in both 2010 and 2012 without the kind of harm to public safety opponents of reform predicted. Since then, we have watched crime rates continue their historic decline. There is certainly much to praise in the CSG’s framework, and in the CSG bill.  The BBA thanks all of those who devoted so much of their time, over so many months, to producing a strong outcome.  But it is our hope that the best and longest-lasting legacy of the CSG process will be the foundation it lays on which to build additional criminal-justice reforms, continuing the work begun in 2010.

As Murphy’s prepared remarks go on to say:

Massachusetts taxpayers deserve to see their money spent wisely.  No one disputes that certain offenders deserve to be incarcerated—sometimes for a long time.  But the length of that sentence should be determined by a well-qualified judge, ruling on the unique facts and circumstances of the case, and the individual defendant’s history and background—not by the cold calculus of arbitrary justice, which is all that mandatory minimums can ever offer.

These hearings were the Legislature’s first official step toward criminal-justice reform in this 2017-18 session.  Much remains unclear at the moment: When will the Judiciary Committee report out legislation?  What form will it take?  Might they, as some have urged, report the CSG bill out first and leave the harder work of fashioning further reforms until later?  Which house will debate these issues first?  And ultimately, how far will the Legislature go in expanding on the narrow scope of the CSG recommendations?

As it happens, Murphy and former BBA President Kathy Weinman, of Collora LLP, are heading up a BBA working group that is currently exploring potential avenues for reform that were left untouched by the CSG report, but where the BBA can recommend improvements to current law and practice.  We expect the group to make those recommendations to the BBA Council soon—and that they will help shape the criminal-justice debate as it develops in the State House.

—Michael Avitzur
Government Relations Director
Boston Bar Association

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

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

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

Why we support H.1190 and S.62

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

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

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

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

Legislative Hearing

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

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

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

 

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

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

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

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

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

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

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Senate Approves FY18 Budget

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

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

Massachusetts Legal Assistance Corporation (MLAC)

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

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

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

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

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

Statewide Expansion of the Housing Court

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

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

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

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

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

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

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

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

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

BBA President Carol Starkey (ConnKavanaugh) addresses the crowd.

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

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

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

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

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

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

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

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

Congressman Seth Moulton delivers the keynote speech.

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

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

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

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

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

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association