Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Protects Individual Rights, Opposes Conversion Therapy

We are proud to announce here that the BBA Council recently voted unanimously to support H.97: An Act relative to abusive practices to change sexual orientation and gender identity in minors.  Read our press release here.  This is only the latest step in the BBA’s long history of advocacy to assure equality and individual rights, including supporting the 1989 “Gay Rights Bill” and working with the Massachusetts Transgender Political Coalition on the Transgender Equal Rights Bill which was enacted in 2012.  We are also proud of our longstanding relationship with the LGBTQ Bar Association, which has enjoyed affinity bar status at the BBA for over 20 years.

What is Conversion/Reparative Therapy?

Also called ex-gay therapy or sexual orientation change efforts, these are all various “treatments” that purport to change sexual orientation and gender identity based on the scientifically discredited premise that being LGBTQ is a psychological defect or disorder.  The techniques associated with conversion therapy are often violent (e.g., electric shocks, induced nausea or vomiting) and psychologically damaging.  Furthermore, the American Psychological Association (APA) has long held that gender identity and sexual orientation are at the core of who we are as individuals; they are not mental disorders. Treating them as such runs against best practices in medicine. In fact, a 2007 APA task force report found not only clear evidence that conversion therapy does not work, but also some significant evidence that it is harmful.

As a result, medical and child welfare experts nationally and locally have condemned conversion therapy, declaring it ineffective, physically and mentally damaging, and antithetical to the current scientific understanding of gender identity and sexual orientation.  In spite of this, the practice is currently statutorily illegal only in California, New Jersey, Oregon, and Washington, D.C.  Courts in the Third and Ninth Circuits have upheld these bans.

What are we doing about it?

The bill we support, H.97, bars licensed health care professionals from engaging with minors in therapeutic practices aimed at either changing or “healing” the minor’s sexual orientation, in particular same-sex attraction, or eliminating the minor’s sincerely held conviction that their birth assigned gender is different or inappropriate from their actual gender identity.  The bill also requires state mandatory reporters to report suspected incidences of these practices and makes advertising them  a violation of consumer protection laws.

Health care professionals – including licensed social workers, child psychologists, school social workers, therapists and other state-licensed professionals – are expected to assist their clients, in these instances by helping them learn to accept their individual gender identity and sexual orientation, not to cause further harm or suffering. This bill ensures that medical and psychological treatment for our children will follow the highest ethical standards.

Even though we are not aware of these practices currently going on in Massachusetts, there have been some recent news stories of their occurrence in other states, most notably a recent case in New Jersey, Michael Ferguson v. JONAH, wherein a conversion therapy provider was found guilty of committing consumer fraud in a case involving an adult who underwent such treatment.

The Massachusetts bill is formally supported by at least ten groups with interests ranging from child welfare to health care to human rights, including, GLAD, and the Children’s League of Massachusetts.  In addition, the American Bar Association recently approved a resolution and report recognizing the right of LGBTQ people to be free from attempts to change their sexual orientation or gender identity and urging all federal and state governments to enact laws prohibiting state-licensed professionals from using conversion therapy on minors.

In July, the Boston City Council unanimously passed a resolution supporting the bill, and shortly thereafter it had a public hearing before the Joint Committee on Children, Families, and Persons with Disabilities.  At this hearing, 19 people testified in support and 8 people testified in opposition.  The opposition was comprised of concerned individuals and out-of-state groups, such as the Family Research Council (anti-gay-marriage and pro-life organization in Washington, D.C.) and the Florida Alliance of Therapy and Choice.  Supporters included the American Counseling Association, National Association of Social Workers, Boston Children’s Hospital, GLBT Caucus, Massachusetts Health Council, Transgender Political Coalition, and the Anti-Defamation League.  Representative Kay Khan, the bill’s sponsor also testified.  Read her testimony here.

The BBA looks forward to advocating for the passage of H.97, which has already been favorably reported out of the Joint Committee on Children, Families, and Persons with Disabilities, and will keep you updated on the bill’s progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.


The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.


Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.


We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”


Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.


The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

From Boston to the Vatican and Beyond: Haskell Cohn Honoree Chief Justice Rapoza

The BBA is proud to be honoring Appeals Court Chief Justice Phillip Rapoza with the 2015 Haskell Cohn Award for Distinguished Judicial Service on September 24 (click here for tickets and details).  The award was established by Mintz Levin for one of its founding members, Haskell Cohn, in 1975 in honor of the 50th anniversary of Cohn’s admission to the bar.  It is presented to a member of the Massachusetts judiciary, or a resident of Massachusetts who is a member of the Federal Judiciary, who has distinguished himself/herself in a manner that calls for special recognition.

A tax and estate planning expert, Haskell Cohn served as BBA President from 1969 to 1971.  He was known for espousing many of the tenets central to the BBA’s mission.  As BBA President, he helped spark a fundraising drive to raise money for law school scholarships for students of color.  He urged lawyers to go beyond the narrow confines of the profession and was a driving force behind a BBA effort to help expand affordable housing stock in Boston.  He also cared deeply about the quality of the judiciary and served as Chair of the Joint Bar Committee.

The 31st Haskell Cohn Award recipient, Justice Phillip Rapoza, served as Chief of the Appeals Court from October 17, 2006, to June 30, 2015, when he retired from the judiciary.  He had served on the Appeals Court since 1998, and prior to that was a District and Superior Court Judge since he was appointed to the bench in 1992.  As Chief Justice, he played an important role in setting many key precedents for Massachusetts.  He also served admirably as chief administrator, managing all of the other Appeals Court justices and staff.  Finally, he worked to modernize the appeals court as a strong proponent and early adopter of electronic filing technology.

Justice Rapoza’s influence extends far beyond Massachusetts.  He is the grandson of Portuguese immigrants and is a leader in the Portuguese-American community in Massachusetts.  He is the first Portuguese-American judge to serve at the appellate level in Massachusetts. He served on the US Council of Chief Judges of State Courts of Appeals, lead the Commission for Justice Across the Atlantic, a judicial exchange program between the US and Portugal, and is President of the International Penal and Penitentiary Foundation.  In his role with the IPPF, he was recently invited to address the pope.  He used this opportunity to speak on the rehabilitation and reintegration of criminals, an issue we have discussed here a number of times beforeIn his speech he described the negative impact of high incarceration rates globally and the lack of rehabilitative opportunities for inmates.  He encouraged justice reinvestment through the use of alternative sentences, intermediate sanctions, and diversionary programs that would benefit the individual, their family, and the community at large.  The BBA has long supported these sorts of measures to end mass incarceration and we are pleased to see Justice Rapoza addressing them on a world stage.

Justice Rapoza is also a leader in the field of international criminal justice, working to spread the rule of law in the developing world, including serving on UN-backed war crimes tribunals in East Timor and Cambodia.  From 2003 to 2005, he took an unpaid leave of absence from the Appeals Court to work for the United Nations, serving in East Timor as an international judge and coordinator of the Special Panels for Serious Crimes.  The Special Panels was a war crimes tribunal established by the UN to prosecute crimes against humanity and other serious offenses committed during the Indonesian occupation of East Timor.

Justice Rapoza has demonstrated his remarkable commitment to justice and the rule of law both at home and around the world.  His work illustrates how a state court judge can have an influence around the globe, and he stands as a reminder of the excellence of the Massachusetts judiciary.  We look forward to presenting him with our highest recognition for the judiciary, and we hope to see you there.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Meet Our Annual Meeting Honorees

We are all excited about this year’s BBA Annual Meeting Luncheon, which takes place next Friday, September 18, at the Seaport World Trade Center. (Tickets are still available. Further info here.)

The keynote speaker, as you’ve probably heard, is Governor Charlie Baker. But here, let’s throw a spotlight onto the two legislative honorees at the event, and the pivotal roles they have played in fighting for BBA priorities.

Speaker Robert DeLeo — a member of the state’s House of Representatives since 1991, and that body’s leader since 2009 – will receive a Presidential Citation from BBA President Lisa Arrowood. This award will be bestowed in recognition of his leadership in securing the enactment of a number of major legislative reforms that have maintained and built upon Massachusetts’ role as a national policy leader.

Speaker DeLeo has been a tireless supporter of both the judiciary and civil legal aid. It is in large part a testament to the Speaker that the courts have flourished in recent years, as he worked with former Supreme Judicial Court Chief Justice Roderick Ireland on restructuring the court system and overseeing a much-needed judicial pay raise that will help assure that the Commonwealth continues to benefit from the highest-caliber judges. The Trial Court is still in the midst of implementing its recent strategic plan, and the justice system as a whole is again able to innovate — for example, through the implementation and expansion of specialty courts, court service centers, and probationary programs.

Speaker DeLeo has long been an advocate for civil legal aid. Under his leadership, the House has repeatedly passed budgets providing funding increases for the Massachusetts Legal Assistance Corporation. Always concerned about the human side of public policy, the Speaker pushed the BBA Statewide Task Force to Expand Civil Legal Aid to include in its 2014 Investing in Justice report accounts of real people benefitting from legal services. While he certainly valued and appreciated the report’s ground-breaking econometric studies and statistical analyses of current legal-aid turn-away rates and the potential return on investment from legal-aid funding, he never lost sight of the real reason legal aid is important: It helps people secure and preserve life’s necessities, such as shelter or protection from abuse.

Our Distinguished Legislator Award goes to Representative John Fernandes, a House member since 2007 and currently the House Co-Chair of the Joint Committee on the Judiciary. Chairman Fernandes has been the force behind many positive changes in the state. He co-chaired the Legislature’s Alimony Reform Task Force, which wrote and secured passage of sweeping reforms to modernize the Massachusetts alimony law, now hailed locally and nationally as a model for alimony reform. He also sponsored, and successfully shepherded through to enactment, the Post-Conviction Forensic Testing Law that provided a process by which individuals convicted of serious crimes can obtain access to testing of evidence such as DNA that may prove they were wrongfully convicted. This effort built directly upon the work of a BBA task force and their Getting It Right report.

In 2013, Representative Fernandes joined the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts. He was an integral member of the Task Force, providing many insights and strategic counsel on the interplay of civil legal aid and the Legislature. Since then, he has been one of the leading voices for MLAC funding, which culminated in an additional $2 million in the FY2016 state budget appropriation.

As Co-Chair of the Judiciary — a Committee which considers many BBA bills, among the hundreds before it each session — Representative Fernandes is already making an impact, and we look forward to continuing to work with him in this new role.

Similarly, we look forward to seeing all of you next Friday at the Seaport World Trade Center, as we honor these two outstanding elected officials before hearing from the Governor. Please join us.

— Michael Avitzur
Government Relations Director
Boston Bar Association

A First Step in Reversing “A Troubling Trend”

A couple of weeks ago, we posted the first of our two part SJC review posts on political free speech in the Lucas case.  This week we are going to look at another important decision, Commonwealth v. Tyshaun McGhee, upholding Massachusetts’ 2011 anti-human trafficking law.

The case alleged that the defendants approached three women, took and posted pictures of them in online advertisements, drove them to various locations to have sex with men who responded to the ads, and retained some or all of the money the women received as payment.

The defendants filed a motion to dismiss the sex trafficking charges on the grounds that the trafficking statute is unconstitutionally vague and overbroad, both on its face and as applied to them, and that the definition of “commercial sexual activity” is also overbroad.  In addition, they argued that because the statute lacks an element of force or coercion there is a risk that it will be enforced arbitrarily.

The statute at issue criminalizes “sexual servitude, forced labor, and organ trafficking.”  The relevant portions for this case are codified at M.G.L. c. 265 §§ 49, 50 and state the following:

Section 50. (a) Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, …  another person to engage in commercial sexual activity, … or causes a person to engage in commercial sexual activity … or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than 5 years but not more than 20 years and by a fine of not more than $25,000.

Section 49 defines “commercial sexual activity” as “any sexual act on account of which anything of value is given, promised to or received by any person.”

The SJC concluded that the statute is sufficiently clear and definite and the phrase “commercial sexual activity is “amply defined” (17).  The statute provides fair notice of the type of conduct it criminalizes, and it does not need to include an element of force or coercion to avoid vagueness as “the clear and deliberate focus of the statute is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent” and “the Legislature has determined that whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed.” (17 emphasis added).  In addition, the mens rea requirement signified by the use of “knowingly” in the statute provides sufficient protection against arbitrary enforcement of the statute (19).

The Court also reasoned that the statute is not overbroad because it only prohibits individuals from “knowingly undertaking specified activities that will enable or cause another person to engage in commercial sexual activity” (23).  It found no problem with the definition of “commercial sexual activity,” construing it with consideration of the plain language and legislative intent to refer to “any sexual act for value that involves physical contact” (25).

In the words of Alec Zadek, Mintz Levin, co-chair of the Human Trafficking Group of the BBA’s Delivery of Legal Services Section, this is “truly a fantastic result and affirms the hard work of everyone who worked on the legislation.”  Zadek has an active pro bono practice focusing primarily on survivors of sex trafficking and domestic violence, so he has seen firsthand the importance of this case.

Julie Dahlstrom, Clinical Legal Fellow in the Human Trafficking Clinic at Boston University School of Law and member of the BBA’s Immigration Law Section Public Service Committee, co-authored an amicus brief in the case on behalf of a number of domestic violence and human trafficking interest groups.

The brief explained the pervasiveness of the human trafficking problem and made many arguments echoed in the SJC holding defending the constitutionality of the Massachusetts statute.  She noted that the “case has tremendous implications for human trafficking survivors and the Commonwealth.  It means that those who knowingly harbor, recruit, and otherwise obtain women for sexual exploitation cannot operate with impunity.”

But this case is only a first step, in her view –

“The facts of this case bring to light a troubling trend. In Boston, there young women who are the fringes of our society – who are homeless and lack viable employment options. These women are exploited by men who seek to profit from and violently abuse them. The state human trafficking statute is an important tool in this fight. But we still need lawyers and others involved. Lawyers to play a key role to ensure that these women have effective representation, the protections they deserve, and the support necessary to exit commercial sexual exploitation.”

To that end, we encourage everyone to participate in our upcoming event, Justice for Trafficking Victims: Civil Litigation, Vacatur, Criminal Restitution and the Pro Bono Bar.  Dahlstrom will speak as will Martina Vandenberg from the Human Trafficking Pro Bono Legal Center on human trafficking and opportunities for pro bono attorney involvement.  With your help, we hope to shed light on human trafficking and hope that the McGhee case will serve as useful precedent.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Who’s Leading the Fight Against Mass Incarceration?

We are thrilled that Roca will be the 2016 BBA Adam’s Benefit’s Public Service Honoree.   Roca is a wonderful organization that works to “disrupt the cycle” of incarceration and poverty by helping young people in the Greater Boston area transform their lives.  Roca works with at-risk youths aged 17-24, many of whom are on the streets, have a history of legal problems, are involved in gangs, have dropped out of school, and/or are young parents.  The organization intervenes based on a scientific, data-driven model that has been proven effective at getting these young people the support, education, and jobs they need to stay out of trouble, earn a living, and have a positive impact in their communities.  Most importantly, Roca’s system works. Since its founding in 1988, the organization has helped more than 18,000 young people change their lives.

Roca’s important work complements our own policy efforts.  We have written before about the BBA’s position opposing mandatory minimums and our efforts to remove them in Massachusetts.  Earlier this summer, we were part of the discussion in the legislature, when BBA President Julia Huston provided testimony at a public hearing on mandatory minimum drug sentences.  In recent weeks, we have seen some momentum building around this issue on Beacon Hill.  We learned that Governor Baker, House Speaker Robert DeLeo, Senate President Stanley Rosenberg, and SJC Chief Justice Ralph Gants all signed onto a letter asking the U.S. Department of Justice and the Pew Center for the States to review and analyze Massachusetts criminal-justice policies, making recommendations on what works well, what doesn’t, and what changes can be made to improve the system. Though the timeline for this report remains unclear, we are hopeful it can make a difference this legislative session (watch a video of the Governor speaking about this study).

Senate President Stanley Rosenberg has been particularly vocal about the need for so-called “justice reinvestment” – changing policies to reduce incarceration and using the attendant monetary savings on programs and initiatives to further that cause.  By many accounts it costs around $40,000 a year to incarcerate an offender, while other programs, such as parole, are far less expensive.  Rosenberg points to states such as Texas, Washington, and Oregon as models of this movement, and is pushing for Massachusetts to follow their lead.  So what have these states done to fix their sentencing models?


Texas managed to dramatically reduce its prison population and incarceration rates with changes only to its incarceration policies, and not its sentencing regime.  Until recently, the number of inmates in Texas was booming: the state’s prison population grew from 50,000 in 1990 to 173,000 in 2010.  Texas was building prisons as fast as it could, but still many prisoners were transferred to for-profit prisons in other states.

Recognizing that this growth was unsustainably expensive, Texas lawmakers devised a treatment system.  They increased the amount of space in drug treatment programs and created intermediate sanction facilities, all at a fraction of the cost of warehousing inmates.  They also increased the amount of pre-trial diversion programs for people suffering from mental health illnesses and drug addiction.  These reforms have resulted in large drops in the prison population, the closing of a number of prisons, and a nearly 6% drop in the recidivism rate.  Crime is now at the lowest rate since 1968 and the closure of three prisons has saved $3 billion.


While Washington may have been a leader in drug law reform, becoming one of the first states to legalize recreational use of marijuana in 2012, it still has a way to go with sentencing reform.  According to a recent study, one in five prisoners in Washington is serving a life sentence, compared to one in nine nationally.  This is largely the result of the 1984 Sentencing Reform Act, which eliminated parole, and two subsequent voter-approved initiatives – the 1993 “three strikes” law, mandating life without parole for three serious felony convictions, and the 1995 Hard Time for Armed Crime law, requiring mandatory sentences for gun crimes.

The report also found a disparate impact on racial minorities (28% of those serving life without parole sentences are African-Americans although they comprise only 4% of Washington’s population) and exorbitant expense (an average life sentence costs $2.4 million per prisoner).

The Legislature appears to be taking notice.  Earlier this year, the House approved a bill to amend the “Hard Time for Armed Crime” law to give judges more discretion.  If enacted, the bill would permit judges to depart from the currently mandatory additional 18 to 60 month prison time in all every gun-related felonies if they feel the mandatory sentence enhancement results in a “clearly excessive” sentence.


In only the last couple of years, Oregon has made major strides to curb its mandatory sentencing regime.  The state had operated under its so-called Measure 11 structure since 1994, whereby there were long mandatory sentences for 16 designated violent and sex-related offenses, “earned time” was prohibited, and juvenile offenders were tried in adult court.

As a result, the state built a prison system widely recognized as a national leader – “the system uses prison sparingly, locks up the right people and helps keep them from reoffending.”  Even though Oregon ranked well nationally in many statistics – holding the lowest recidivism rate, and ranking 33rd nationally in incarceration, incarcerating people at a rate that was 25% lower than the national average – it was still spending too much.  In 2013, lawmakers approved reforms to Measure 11, cutting sentences for crimes such as marijuana possession and felony driving, giving judges more discretion.  The result has been a decrease in prison populations and some savings that are being funneled to local governments for crime prevention measures.

As you can see, the sentencing policies for each of these states have their pros and cons.  They are all worth considering as Massachusetts prepares to reform its own policies.  We look forward to becoming the model for other states, and, hopefully, one without mandatory minimums.  In the meantime, we hope you will join us in a few months when we honor Roca for their outstanding work to keep young people out of the criminal justice system altogether.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Declines “An Invitation to Mischief” on Political Speech

Though August may be a quiet time at the State House, it has been anything but for the justices of the Supreme Judicial Court (SJC).  In the first two weeks of this month, the state’s highest court has issued two major decisions with particular interest for our members.  On August 6, the Court declared unconstitutional a 1949 law that criminalizes certain false statements used in political campaigns.  One week later, the Court upheld the 2011 anti-human trafficking law against its first challenge.    This week we will break down the free speech case and next week we will discuss human trafficking.  Both are important cases for the state and set key precedents that will shape their areas of law going forward.

During his state legislative campaign in the fall of 2014, Second Barnstable District Representative Brian Mannal was facing a challenge for his legislative seat.  In October, the Jobs First Independent Expenditure Political Action Committee (PAC) distributed brochures alleging that:

“Brian Mannal chose convicted felons over the safety of our families.  Is this the kind of person we want representing us?”;

“Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals.  Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders”; and

“Brian Mannal is putting criminals and his own interest above our families.”

The quotes refer to a bill sponsored by Mannal, a former public defender, which would have notified indigent sex offenders of their right to a public defender before Sex Offender Registry Board hearings.  Mannal has never represented sex offenders at board hearings.

In late October, approximately two weeks before the election, Mannal responded by filing a criminal complaint against Melissa Lucas, the PAC’s treasurer, alleging that she knowingly published false statements designed to defeat Mannal’s candidacy in violation of M.G.L. c. 56 § 42.  In November, Mannal won the election by a mere 205 votes.

Eight months later, the SJC weighed in, unanimously holding in Commonwealth v. Melissa Lucas that the law in question is an unconstitutional restriction on free speech.  The court reasoned that the law was a content-based speech restriction and thus merited strict scrutiny review, meaning the government must establish that the statute is both necessary to serve a compelling state interest and narrowly tailored to achieve that end.

The Commonwealth addressed the issue in two ways, arguing both that the statute does not apply because the statements at issue are opinions that cannot be proven false and also that the statute is constitutional because it only reaches fraudulent and defamatory speech, forms of speech that are not protected under the First Amendment.

While the court stated that free and fair elections may be a compelling interest (though they are not so in this case), the Lucas opinion is clear that § 42 is not necessary to serve that interest.  Though the statute could be used to punish defamatory or fraudulent speech, it casts a far wider net, reaching other forms of speech (12-13). The court explains that the statute can “be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech” (26-27).  The best protection against the speech contemplated in the statute is counterspeech, the “free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market” (29).  The court concludes that § 42 is “antagonistic to the fundamental right of free speech” (31) and declares the statute invalid.

However, social science may take issue with the court’s ruling.  As explained in the recent Boston Globe op-ed, “Confronting and Refuting Political Lies,” lies in political speech may have a major impact on the public and can be far more difficult to refute than suggested by the “marketplace of ideas” theory.

The lie itself usually opens up a new arena for discussion and, by being first on the ground, sets up the mental frame for the argumentation to come. Therefore, those wishing to refute a political lie have a two-part task: (1) They must convincingly articulate the truth and (2) they have to replace the existing frame of discussion with a more accurate one.

Those tasks are very difficult to accomplish.

Author Martin Evans, an organizational psychologist and professor emeritus at the University of Toronto, goes on to explain that the problem can compound itself, whereby when a candidate denies a lie, it only serves to reinforce the issue in people’s minds.  The best solution is actually to reorient the original frame by basically changing the subject, a challenging and undoubtedly frustrating thing to do.  In this context, § 42 comes from a good place – in theory protecting both candidates and the public from this situation.  However, as the SJC ruled, the statute is overly broad.  Could it be revised to reach only unprotected fraudulent and defamatory speech?

BBA Council member Jeff Pyle, Prince Lobel, who practices in media and First Amendment law, declared the decision “a resounding victory for the First Amendment.”  He believes that § 42 is “flatly unconstitutional” and that having such a law “is only an invitation to mischief,” opening the door for candidates to “strategically seek criminal charges in order to divert their opponent’s resources and distract from the campaign itself.”  Contemplating potential next steps by the Legislature, Pyle explained:

In my view, the Legislature also should not try to rescue the statute by limiting it to defamation or fraud.  To be actionable, a defamatory statement about a political candidate would have to be made with “actual malice,” meaning knowing or reckless falsity.  Other states have had laws that, unlike section 42, limited coverage to statements published with actual malice, but those statutes have been struck down nonetheless by such courts as the Court of Appeals for the Eighth Circuit (in the case of Minnesota’s statute), a federal district court in Ohio, and the Washington Supreme Court.  Limiting the statute to defamatory statements wouldn’t solve the underlying fact that it is counterspeech, not criminal process, that needs to be applied to false campaign claims.  Similarly, “fraud” is a poor fit to this kind of problem, because it requires not just a false statement, but inducing reliance to one’s detriment.

We will keep an eye out for any Legislative follow-ups and look forward to being part of the discussion should there be any proposed fixes.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Sneak Peek at Beacon Hill This September

The State House has gone quiet this month, legislators having recessed on July 31 in a flurry of budget overrides.  The BBA is relatively quiet, with fewer events on the calendar and with our sections and committees having largely wrapped up their work for the current program year.  Indeed, it seems at times that the city of Boston has become quieter, with so many on vacation and college students yet to return.

So now seems a good time to take a peek at what’s on tap for the coming months, once Beacon Hill, the BBA, and Boston as a whole spring back to life.

  • The start of September brings with it leadership changes at the BBA, starting at the top, where Lisa Arrowood will become President, taking over the reins from current President Julia Huston. Each fall, the incoming President holds individual meetings with the Chief Justice of the SJC and the chiefs of each of the departments of the Trial Court, as well as with the federal judges leading the U.S. Circuit, District, and Bankruptcy Courts.
    • Three of those chiefs will be new this year: As noted below, the Appeals Court and Housing Court will be under new leadership. And Judge Jeffrey Howard earlier this year became the chief judge of the First Circuit.
    • We are gearing up now for those meetings, which offer a chance for us to share our priorities and learn more about how we can help the courts with their mission.
  • After Labor Day, the Legislature begins formal sessions again, as well as continuing public hearings on the thousands of bills that have been filed this year. The Judiciary Committee, which holds public hearings on more bills than any other legislative committee, has been understandably very busy thus far, and it is expected to return to work on September 16 with a hearing on criminal-procedure legislation.
  • On September 2, the Governor’s Council will take up the nomination of Paul Treseler, chief of the Narcotics Case Integrity Unit in the Suffolk County District Attorney’s Office, to chair the state’s Parole Board. This week, Governor Charlie Baker nominated Treseler to replace Charlene Bonner, an appointee of Governor Deval Patrick.
  • That will be the second major confirmation hearing for the current Council. Led by Lieutenant Governor Karyn Polito, the Council last month approved Judge Scott Kafker’s nomination to take over as Chief Justice of the Appeals Court.
  • Another significant nomination is forthcoming from the Governor, with the help of the Judicial Nominating Commission: Housing Court Chief Justice Steven Pierce has announced that he will be stepping down in September, after 10 years in that post.
  • The BBA is regularly called upon by the courts to offer comments on proposed rule changes, and we are at work right now gathering input on two such requests concerning ethical issues:
    • In July, the Supreme Judicial Court (SJC) Standing Advisory Committee on the Rules of Professional Conduct’s requested comments on proposed revisions to Rules 5.4 and 5.5 of the Rules of Professional Conduct.  The change to Rule 5.5 would bring the Massachusetts rule mostly in line with the ABA Model Rule, permitting lawyers from foreign countries who are in good standing in their home country to act as in-house counsel to an employer in Massachusetts.  The change to Rule 5.4 would remove some sub-clauses in the interest of simplification.  These changes are currently being considered by the BBA’s Business Transactions and International Law Sections and its Ethics Committee.
    • In addition, the BBA and its Ethics Committee are considering commenting on proposed amendments to SJC Rule 3:11 giving the SJC the ability to issue advisory opinions and to review opinions written by the Committee on Judicial Ethics (currently the sole reviewer of these issues).  They would also permit individuals and groups of lawyers to solicit advisory ethics opinions, whereas the current rule limits this ability to judges.  These proposed amendments seem a natural next step as the SJC continues to revise the rules pertaining to judges.  The BBA has already commented on this process, and generally applauds the SJC for expanding the roles judges can play as members of the bar.  We look forward to considering both of these proposed rule changes and are happy to be part of this inclusive process.
  • Momentum continues to grow toward criminal-justice reform: This month we learned that Governor Baker, House Speaker Robert DeLeo, Senate President Stanley Rosenberg, and SJC Chief Justice Ralph Gants all signed onto a letter urging the Council of State Governments and the Pew Center for the States to work with Massachusetts on a review and analysis of our criminal-justice policies, making recommendations on what works well, what doesn’t, and what changes can be made to improve the system. It remains unclear what the timeline is for such a report – and specifically whether it can be done before the current legislative session ends next July.

We will continue to keep you informed on these issues as they develop.  In the meantime, we hope you are enjoying the summer!

— Michael Avitzur
Government Relations Director
Boston Bar Association

EOPSS Revises Rules for Attorney Access to Prisons

For those who have ever visited a correctional facility, you know that there are a host of security measures required upon entry. The Code of Massachusetts Regulations regarding attorney access at Massachusetts Correctional Institutions (103 CMR 486) is designed to facilitate inmate access to proper legal counsel while accommodating security concerns at prisons. Its purpose is to lay out standards to achieve that balance for attorneys, law students, and paralegals, as well as investigators and interpreters.

The Executive Office of Public Safety (EOPSS) in cooperation with the Department of Corrections (DOC) recently revised CMR 486 in response to concerns raised by several parties—including the BBA, the MBA, the ACLU of Massachusetts, Prisoners’ Legal Services, and the Committee for Public Counsel Services—with regard to the inconsistent application of these rules and overly intrusive searches of attorneys. Female attorneys, specifically, have found themselves subjected to seemingly arbitrary and unnecessarily invasive searches at prisons, often after an underwire bra triggers a metal detector in the course of an initial scan.

In response to an invitation for comments from EOPSS, the BBA and its Criminal Law Section reviewed the revisions to 103 CMR 486 and found the efforts to be worthwhile. The BBA believes that the revised rule will function to standardize applications of the CMR—alleviating concerns about intrusive searches of attorneys and facilitating attorney visits to clients at correctional institutions. We hope the final rules will be uniformly enforced by all DOC facilities and that support training for all involved personnel will ensure proper implementation. One thing we noted, however, is that 103 CMR 486 applies only to attorney visits at state prisons. We encouraged EOPSS to consider extending the revised rule to county correctional facilities as well, in order to ensure uniform proper treatment of attorneys at all correctional institutions in Massachusetts.

The Criminal Law Section was also largely supportive of the revised rule, calling it “generally fair, reasonable, easy to follow and an improvement over the existing CMR.” While the Section was pleased to see increased record keeping requirements—such as incident reports stating an articulable reason for a pat down search of an attorney whenever one is requested by an officer,—some members voiced concerns that this additional paperwork might be burdensome or impracticable. Moreover, while members were also pleased to see a general presumption supporting the reasonableness of an attorney’s explanation for the cause of any interference indicated by the metal detector scan, individuals hoped that these changes would not overly limit correction officers in keeping prisons safe. Other concerns included the fact that the revisions did not address rules regarding specific articles of clothing—particularly women’s clothing—that have been inconsistently implemented and enforced at certain correctional facilities.

On Tuesday, we attended the EOPSS hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives. Like the BBA, those who testified generally supported the revisions, but took the chance to offer some further suggestions based on their personal experiences and perspectives.

EOPSS hearing picture2

Victoria Kelleher testifying while Michael Hussey (MACDL) looks on.

First to testify was Lauren Petit on behalf of Prisoners’ Legal Services (PLS), which viewed the changes as largely positive. Nonetheless, PLS suggested that changes should also include other professionals who are supervised by attorneys, such as paralegals and interpreters. Moreover, they believed that some of the language changes may be “unnecessary” or “overkill”, noting that they appear to be geared towards limiting access. As a result, Petit asked for further clarity in the definitions section of the CMR. She also suggested that the clearance process for law students and paralegals be centralized, so they wouldn’t have to be certified by each prison individually.

Joel Thompson of the Harvard Prison Legal Assistance Project, also welcomed the changes, but made proposals to move the revisions even further. He asked the panel to strive for consistency and clarity, speaking to the discrimination that female law students face when entering correctional facilities. The group sends 150 law students into prisons each year, but “every once in a while,” he said, “there’s an interaction that’s less than optimal,” noting that the problem seems to have worsened this year, and that female students are more likely to have difficulty gaining access. He proposed that the rule allow access to law students on the same basis as attorneys, on the grounds that they are in virtually the same position. Thompson also suggested the clarification and streamlining of the process for law students to get clearance to enter prisons.

The president of the Massachusetts Association of Criminal Defense Lawyers, Michael Hussey, raised the same concerns about consistency and equal treatment of men and women. He also testified for the easing of access to prisons for private investigators (PIs). He described PIs as essential to criminal defense and noted that the current requirements for PI access are unnecessarily burdensome (e.g., PIs are required to give one week’s notice before entry). Richard Slowe, the Chief Investigator for the Public Defender Division of the Committee for Public Counsel Services (CPCS), pointed out that CPCS staff investigators, unlike private investigators, are not technically covered by the new regulations and argued that they should be part of a central database of pre-screened visitors. Slowe also echoed the testimony of Hussey in stating that CPCS investigators should not only be allowed more accommodations (such as access to private interview rooms), but also be governed by the same rules as attorneys (as they are always supervised and are already subjected to extensive background checks).

Perhaps the most passionate testimony came from Victoria Kelleher, who works in private practice, and has been subjected first hand to what she termed “illegal searches.” She described her experiences entering prisons to visit clients as “unpredictable, stressful, and onerous” and shared how she has been turned away for wearing items such as boots and belts. These experiences only added to her concern that women are excluded for things seemingly unrelated to security (e.g. not being allowed access for wearing suit jackets with pants that do not match). Kelleher asked for more-specific definitions regarding apparel. In addition, Keller testified for further revisions that would allow attorneys to bring in files that are not necessarily “official”, but still pertinent to a client’s case. She also suggested that the DOC needs to “keep up with the times” and allow attorneys to utilize their own laptops to better defend their clients. Kelleher also recommended more training for prison security to ensure uniformity of attorney experiences and reduce delays that result when correction officers have to try to interpret the regulations. Her testimony spoke to the concerns of many female attorneys in Massachusetts who have had negative experiences with prison security.

While the revisions to 103 CMR 486 have been received positively, we will continue to monitor any further changes that may result from the BBA’s written testimony and that of the witnesses EOPSS and DOC heard from this week.

– Jing Li
Summer Intern
Boston Bar Association