Governor Baker Makes History with Three SJC Nominations

With three new nominations over the past few weeks, Governor Baker has completed a historic remaking of the Supreme Judicial Court (SJC) and ensured that its tradition of excellence will continue well into the future. 

In selecting sitting SJC Justice Kimberly Budd to replace the late Chief Justice Ralph Gants, and Appeals Court Justice Dalila Argaez Wendlandt and Boston Municipal Court Judge Serge Georges, Jr., to join the high court, the Governor also signaled his understanding that diversity at the highest levels of the judiciary need never be in conflict with—but rather is a prerequisite to—the fulfillment of the highest ideals of justice.

BBA President Marty Murphy released statements praising each of these choices, who will be, respectively, the SJC’s first Black woman as chief, first Latina justice, and second Black man (see the links above and excerpts below).

Justice Budd has since been confirmed as chief by the Governor’s Council, which, under the state constitution casts the final vote on approval of judicial nominations. Although the Judicial Nominating Commission—established by governors in recent decades through a series of executive orders—makes initial recommendations for all other judgeships*, Governor Baker set up a special commission (full list of members below) to advise him on the selection of the two new nominees to the SJC.

* Potential applicants are urged to review current vacancies.

Justice Wendlandt had a hearing before the Governor’s Council this week, with a vote expected soon, and Judge Georges’ hearing will be held on December 2. The two current vacancies were created by the death of Chief Justice Gants and the pending retirement of Justice Barbara Lenk on December 1. Having previously appointed five of the seven justices, Governor Baker is believed to be the first since John Hancock to name the entire SJC bench.

BBA President Marty Murphy on…

  • Chief Justice Budd:

Justice Budd’s career, including her 11 years on the bench, demonstrates her extraordinary legal acumen, her deep commitment to justice for all, and the careful attention she gives to every case that comes before her — all of which will serve her well in leading a court whose decisions affect the lives of all of us in so many ways. We look forward to the Governor’s Council’s review of her nomination and her confirmation by that body.

  • Justice Wendlandt:

As demonstrated by her experience as a highly-respected litigator who argued before the US Supreme Court, and more recently on the bench, Justice Wendlandt has a brilliant, creative, and methodical legal mind. Her background — which includes a master’s degree in mechanical engineering, pro bono work on asylum applications and a death-row appeal, and a commitment to improving work-life balance for attorneys at her prior firm — will bring a unique perspective to the Court and assist in their work on some of the most challenging issues in the Commonwealth.

Issue Spot Boston Bar Association Page 3
  • Judge Georges:

Judge Georges—who currently sits in the Dorchester session of the Boston Municipal Court, not far from the Kane Square neighborhood where he grew up—is a jurist of great compassion, empathy, and wisdom. A former criminal-defense attorney and civil litigator, and former President of the Massachusetts Black Lawyers Association, he has served on the bench since 2013. Judge Georges is a true son of Boston, having graduated from B.C. High, Boston College, and Suffolk Law School.

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The members of the SJC Nominating Commission:

Paul T. Dacier, Co-Chair
Executive Vice President and General Counsel
Indigo Agriculture, Inc.
 
Robert Ross, Co-Chair
Chief Legal Counsel fo Governor Charles D. Baker
 
Michael P. Angelini, Esq.
Bowditch & Dewey LLP
 
Roberto M. Braceras, Esq.
Goodwin Procter LLP
 
Laura J. Cervizzi, Esq.
Cervizzi & Associates
 
Patricia Finnegan Gates, Esq.
Mountain, Dearborn & Whiting LLP
 
Kay H. Hodge, Esq.
Stoneham, Chandler & Miller LLP
 
The Honorable Margaret R. Hinkle
Associate Justice of the Superior Court (Ret.)
JAMS
 
Martin W. Healy, Esq.
Chief Legal Counsel and Chief Operating Officer
Massachusetts Bar Association
 
The Honorable Roderick L. Ireland
Chief Justice of the Supreme Judicial Court (Ret.)
Northeastern University, College of Social Sciences and Humanities
 
William F. Kennedy, Esq.
Nutter, McClellan & Fish LLP
 
The Honorable Mary-Lou Rupp
Associate Justice of the Superior Court (Ret.)
Bulkley, Richardson & Gelinas LLP
 
Evelynne L. Swagerty, Esq.
Assistant General Counsel (Ret.)
Bank of America

Lauren Greene Petrigno, Esq.
Executive Director, Judicial Nominating Commission
and Deputy Legal Counsel to Governor Charles D. Baker

—Michael Avitzur
Government Relations Director
Boston Bar Association

Olchowski Decision Is a Win for Access to Justice

We were delighted last week by the SJC’s ruling that unidentified IOLTA funds should be transferred to the Massachusetts IOLTA Committee for disposition, just as the BBA had argued in an amicus brief joined by the Massachusetts Bar Association (MBA) and the Real Estate Bar Association (REBA). 

You can read our statement on the decision here (as well as our initial statement upon filing the brief) and the BBA’s amicus brief here.

A previous Issue Spot blog delved into the issues involved in the case — In the Matter of Gregory M. Olchowski (SJC-12730) — including our concerns about attorney-client confidences, which the Court noted in the opinion, by the late Chief Justice Ralph D. Gants.

Massachusetts Lawyers Weekly reported on the ruling as well (subscription required).

The full decision can be found here, but below are some key excerpts:

Gants for the 6-1 majority:
The question presented in this case concerns the proper disposition of unidentified client funds on deposit in an Interest on Lawyers’ Trust Account (IOLTA or IOLTA account): should they be remitted to the Commonwealth’s general fund under the abandoned property statute, G. L. c. 200A, or to the IOLTA committee pursuant to this court’s inherent authority to govern the conduct of Massachusetts attorneys? We conclude that trust funds on deposit in an IOLTA account do not fall within the statutory definition of “abandoned property” and therefore the disposition of these funds is not governed by G. L. c. 200A. We also conclude that unidentified IOLTA funds should be transferred to the IOLTA committee for disposition, as set forth in this opinion.

As to the first set of required statutory conditions [for “abandoned property”], none of the designated sections [of the abandoned property law] specifically addresses IOLTA accounts, but the Treasurer contends that § 3, which concerns “deposits” of funds, applies to the unidentified funds in IOLTA accounts. We disagree. A careful review of this section reveals that attempting to apply § 3 to IOLTA accounts would be the legal equivalent of trying to fit a square peg into a round hole.


[I]f IOLTA accounts could be deemed “abandoned property” under § 3, the true owners of these funds would not receive notice by the bank that the account was to be reported abandoned (that notice would go only to the attorney whose name is on the IOLTA account), nor be able to take one of the six listed actions in § 3 to prevent their IOLTA funds from being presumed abandoned by the bank.

The claims process established by the Treasurer to allow true owners of presumptively abandoned property to claim those funds also does not fit the unique nature of IOLTA accounts. Under the Treasurer’s regulations, “the original owner” of the funds is required to submit documentation in support of his or her claims. See 960 Code Mass. Regs. § 4.04(1), (2) (2004). But the usual required documentation, such as the monthly statement of the bank or the holder’s certification, is not applicable to an IOLTA account because these documents would not establish a purported owner’s beneficial ownership of the funds.


In short, the careful procedures established by c. 200A to identify presumptively abandoned funds, report and remit those funds to the treasury, and allow the true owner of those funds to reclaim them by proof of ownership simply do not fit when applied to IOLTA accounts.


[I]f the attorney responsible for an IOLTA account is deemed the “holder” of the account [as the Treasurer argued, in the alternative], the Treasurer or her agents “may at any reasonable time and upon reasonable notice examine or audit a holder’s books, papers or other records to verify proper compliance with the reporting requirements of [c. 200A].” 960 Code Mass. Regs. § 4.07 (2004). Section 3 cannot be reasonably understood to mean that, by opening an IOLTA account, which an attorney may be required to do under our rules of professional conduct, the attorney opens the door to treasury agents examining all of his or her books, papers, and other records, which may contain confidential client information, attorney-client communications, or attorney work product. Allowing that to happen in the ordinary course might result in a breach of an attorney’s obligations to his or her client. See Commonwealth v. Perkins, 450 Mass. 834, 851 (2008) (“It is axiomatic that among the highest duties an attorney owes a client is the duty to maintain the confidentiality of client information” [citation omitted]); Mass. R. Prof. C. 1.6 comment 2, as amended, 474 Mass. 1301 (2016) (“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent or as otherwise permitted by these Rules, the lawyer must not reveal confidential information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship”); Mass. R. Prof. C. 1.6 (providing for protection of confidential client information).


Our conclusion that c. 200A does not govern IOLTA accounts does not mean that there will be no process to identify abandoned funds in IOLTA accounts, to investigate bank and attorney records to determine the true owners of those funds, to restore the funds to those true owners, and to transfer any funds whose true owner cannot be identified despite diligent investigation. It simply means that we must put that process in place through our superintendence authority over the bar and the practice of law. We do so here, and direct this court’s standing advisory committee on the rules of professional conduct (standing committee) to propose amendments to Mass. R. Prof. C. 1.15 to incorporate the following guidance into our rule.


We currently require lawyers to maintain IOLTA accounts only in financial institutions that agree to notify the board when a check is dishonored for insufficient funds. … We shall now require similar agreements to impose an obligation on financial institutions to notify the board when there is no activity in an IOLTA account for more than two years, apart from automatic interest payments to the IOLTA committee.*

* This court’s standing advisory committee on the rules of professional conduct, in proposing amendments to Mass. R. Prof. C. 1.15, may consider whether a different time period is more appropriate to accomplish our purpose for requiring such notification.



Even though the disposition of these funds is not governed by c. 200A because IOLTA funds fall outside the scope of the abandoned property law, we recognize and respect the legislative purpose that all abandoned property be transferred to the general fund. We would, pursuant to our superintendence authority, transfer these funds to the general fund out of respect for that legislative purpose if funds deemed abandoned could never be claimed by their rightful owner. But such claims may be made, with no limitations period, and therein lies the rub.

If we were to determine that unidentified IOLTA funds should be transferred to the Treasurer, we would expect the Treasurer to apply the same claims process to IOLTA funds, which fall outside the scope of c. 200A, as she applies to abandoned funds that are within the scope of c. 200A. Under that process, when someone claims an interest in property surrendered to the State, the Treasurer has “full and complete authority to determine all such claims” and, in doing so, may take testimony under oath, subpoena the attendance of witnesses, and subpoena the production of all “books, papers and documents which may be pertinent to such hearing.” G. L. c. 200A, § 10 (b)-(c). This is precisely the type of inquiry that we are reluctant to relinquish to the Treasurer should a claim be made on unidentified IOLTA funds by an attorney’s client. Attorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences. Any such inquiry by the Treasurer poses the risk of impermissible disclosure of confidential client information, attorney-client communications, and attorney work product. 


We conclude that there is a better approach that is more protective of the confidential information so fundamental to the attorney-client relationship: where bar counsel determines after reasonable investigation that the owner of IOLTA funds cannot be identified or located, bar counsel should request the single justice of the county court to find that the funds are presumptively abandoned and to order the transfer of the abandoned funds to the IOLTA committee. The transfer of these funds to the IOLTA committee, in order to avoid constitutional concerns, carries with it an obligation by the committee to return those funds to their true owner, with interest, if the true owner establishes ownership at any time. Therefore, we will revise our rules of professional conduct to memorialize that obligation after considering language recommended by our standing committee. Where such a claim is made, the investigation of its merits should be conducted by bar counsel, whose obligation to maintain the confidentiality of information arising from an investigation is already established by rule.


Conclusion. In answer to the questions posed by the single justice in his reservation and report, we conclude that unidentified client funds on deposit in an IOLTA account do not fall within the statutory definition of “abandoned property” under G. L. c. 200A; that neither Mass. R. Prof. C. 1.15 nor any other rule of this court presently governs the disposition of such funds; and that such funds shall be transferred to the IOLTA committee for disposition under the conditions set forth in this opinion, which shall later be incorporated in revisions to Mass. R. Prof. C. 1.15. So ordered.

Lowy, dissenting:
The court holds, without an adequate factual record to support it, that Interest on Lawyers’ Trust Accounts (IOLTAs or IOLTA accounts) fall outside the abandoned property act (act), in part because the alternative would allow the Treasurer and Receiver General (Treasurer) to inspect attorneys’ records in a manner that could allow the Treasurer to maintain and to investigate IOLTA accounts, as she does with other abandoned property. This, according to the court, would improperly risk “disclosure of confidential client information, attorney-client communications, and attorney work product,” all of which fall under the attorney-client privilege governed by the judicial branch. Because the court concludes as such, it avoids having to decide whether classifying orphaned IOLTA funds as abandoned property would impede upon the judiciary’s authority under art. 30 of the Massachusetts Declaration of Rights to regulate the practice of law, or whether keeping unclaimed IOLTA accounts within the province of the judiciary would unduly interfere with the executive or legislative powers as outlined in art. 30. 


I, on the other hand, believe that the plain meaning and legislative intent of the act require categorizing unclaimed or orphaned IOLTA funds as abandoned property, a conclusion that prevents us from avoiding the lurking separation of powers issues. I therefore do not believe that we should draw any definitive conclusions from the bare factual record. Instead, we should remand to a trial court to develop a more complete record.


Because IOLTA funds are deposited into “trust accounts” in a bank by attorneys operating on behalf of their clients in a fiduciary capacity, such funds facially qualify as abandoned property under the act absent some compelling factual or legal reason to the contrary.


The court argues that “attempting to apply § 3 to IOLTA accounts would be the legal equivalent of trying to fit a square peg into a round hole.” Statutory interpretation, however, does not pursue a perfect fit when effectuating legislative intent, and some square pegs can fit into round holes.


This apparent “square peg” actually fits quite nicely into the act, even though the statute does not define “owner,” see G. L. c. 200A, § 1, because attorneys acting as fiduciaries have a “legal . . . claim to abandoned property” on behalf of their clients and therefore qualify as “owners” under the Treasurer’s regulations. … Because the attorney is the owner of the IOLTA account, I am not convinced on this record that the bank could not comply with its statutory obligations to notify the owner in advance of reporting the IOLTA account as abandoned property.



[I]t makes logical sense that responsible attorneys would report abandoned IOLTA funds to the Treasurer as abandoned property if they could not contact clients for three years, and that the bank would report the entire IOLTA account if it qualified as presumptively abandoned under the act. See 960 Code Mass. Regs. § 4.02. Although the court claims that this scenario “would be a recipe for confusion,” ante at , the factual record provides no indication of such confusion, especially considering that some attorneys and law firms have reported IOLTA funds as abandoned property. We simply need more information. 


Even if I were to agree with the court’s statutory analysis, my foundational concern about the inadequate record remains for the court’s apparent primary concern: that the Treasurer might need to investigate attorneys’ books to determine to whom the unclaimed IOLTA funds belong, see G. L. c. 200A, § 10 (b)-(c), or to ensure that attorneys complied with their requirements as holders. See 960 Code Mass. Regs. § 4.07 (2004). The court raises the understandable concern that “[a]llowing [such an investigation] to happen in the ordinary course might result in a breach of an attorney’s obligations to his or her client,” ante at , but only hints at the secondlevel implication of that statement; allowing the Treasurer such access as the statute would require might invade upon the judiciary’s art. 30 power to protect attorney-client privilege and attorney confidentiality as part of its power to regulate the practice of law. 


Of course, the court does not need to reach whether those fears would come true, because its version of statutory interpretation keeps IOLTA accounts outside the realm of abandoned property and therefore out of the possible reach of the Treasurer. The court accordingly has no obligation to provide evidence that such breaches occur or that investigations by the Treasurer would impede upon our art. 30 authority. I view the matter differently. 


Because I conclude that orphaned IOLTA funds qualify as abandoned property under the act, we can only keep the Treasurer from exercising her statutory obligations regarding those funds based on some interpretation of our constitutional authority to regulate the practice of law. We could hold that the act is unconstitutional as applied to orphaned IOLTA funds, or we could craft an alternative solution that gives the Treasurer control over the orphaned IOLTA funds without unduly impeding the attorney-client privilege. Either solution necessarily implicates separation of powers concerns, as both could interfere with the Legislature’s and the executive branch’s powers under art. 30. In sum, concluding that unclaimed IOLTA funds constitute abandoned property requires me to consider how the court’s proposed solution, one that still might be constitutionally or statutorily permissible even though I determined that IOLTA accounts are abandoned property under the act, affects art. 30, and to consider whether it does so appropriately on the facts before the court. 


Before we reach such a significant decision, I believe that we need a factual record to help answer critical questions beyond the bare joint statement of facts presented to the single justice. The record does not reflect whether investigating unclaimed funds in IOLTA accounts would necessarily violate the attorney-client privilege. 

The amicus briefs presented by the Boston Bar Association and others and by the Board of Bar Overseers (BBO) suggest that it does [emphasis added], but the factual record only explains that a financial investigator subpoenaed records from banks and examined records held by Gregory M. Olchowski’s former accountant. There is no indication that the investigation necessarily pierced the veil of attorney-client privilege, which, if accurate, would lessen the art. 30 concerns for orphaned IOLTA funds constituting abandoned property because the Treasurer would not therefore be impeding upon the judiciary’s art. 30 authority to regulate the practice of law.


[Footnote: The court contemplates that someone will have to review attorney-client privileged materials to determine the true owners of the IOLTA funds, but it does not discuss any precise procedures for doing so beyond keeping the funds within the judiciary and having the BBO conduct an inquiry in a manner similar to how it assesses attorney accounts during disciplinary procedures. There may be alternatives. For example, it may be constitutionally permissible to require that the Treasurer transfer investigatory responsibilities to an agent of the judiciary, namely the BBO, if an examination of orphaned IOLTA accounts threatened to pierce the veil of attorney-client privilege. It also might be possible to maintain the privilege if the BBO hired outside counsel to conduct the review. It may even be possible to rely on an interpleader action, with the Treasurer and the IOLTA committee as nominal parties, so that the unclaimed IOLTA funds are deposited with the court until appropriate disposition of the matter. See Mass. R. Civ. P. 67, 365 Mass. 835 (1974). Perhaps these ideas would not be possible or constitutionally permissible, but the parties understandably did not brief this matter.]

BBA Legislative Alert: Help Secure Fairness for Non-Citizen Taxpayers

As you may know, the BBA recently endorsed legislation that would eliminate an unjust disparity in the federal CARES Act’s treatment of taxpayers who use an Individual Taxpayer Identification Number (ITIN), as well as their families, leaving almost all of them ineligible for stimulus payments of up to $1,200 per person, despite paying the same share of taxes as those who file with a Social Security Number.  

We submitted testimony to the Legislature’s Joint Revenue Committee, urging them to give the relevant bills a favorable report, so the full body can vote on the measures. And the Boston Globe has since lent its support

Now you can help, too: The legislation faces a committee deadline of June 16 and may be rendered effectively dead for the year if not reported out by then. If you have a moment this week to contact your state Senator and Representative, by phone or e-mail, please ask them to express their support for S. 2659 and H. 4726 to the Revenue Committee chair and to Senate or House leadership. 

You can find more background in our testimony and in a fact sheet by the Massachusetts Budget and Policy Center. Thanks for your support!

Immigration Update: June 2020

Since we published our Immigration Principles in 2018, we have been tracking a number of immigration-related issues and have regularly posted updates on our Issue Spot blog. Our most recent update was posted shortly after Governor Charlie Baker declared a state of emergency in Massachusetts as a result of the coronavirus pandemic. Since then, immigration policies have continued to change and have gone largely unnoticed as the pandemic dominates local and national headlines. This is an update on some of the most recent immigration-related news and changes to previous policies.  

USCIS 

The United States Citizenship and Immigration Services (USCIS) is the agency primarily responsible for the issuance of visas, green cards, and naturalization services. The COVID-19 pandemic has significantly reduced the number of people travelling and applying for visas to enter the United States, which has caused USCIS revenue to plummet, as it relies mainly on application fees to fund its operations. The institution said that it could run out of money by the summer and has sought out a $1.2 billion cash infusion from Congress in order to stay afloat. 

Late last year, the agency announced application fee increases. According to the Migration Policy Institute, “the increases USCIS proposed in mid-November (there are a few categories where application fees would decrease) are significant but not unprecedented. Since the agency was established in 2003 as part of the creation of the Department of Homeland Security (DHS), which absorbed the functions of the earlier U.S. Immigration and Naturalization Service (INS), fees have been adjusted five times”. Immigration advocates criticized the increases for having the covert intention of limiting low-income applicants’ ability to apply for asylum, green cards, and naturalization.  

Now, application fees are poised to increase again as a result of the decrease in application numbers. Advocates claim that the need to increase fees is a result of USCIS’s lack of efficiency and excessive vetting process that has caused every application to take longer to review. Some critics said that the agency was ill-prepared for the economic shock from the coronavirus pandemic because of policies that had rendered its adjudication process less efficient while bloating its payroll. “This administration has made every single application much more expensive and time-consuming to adjudicate,” said Doug Rand, who worked on immigration policy in the Obama administration. 

In our 2018 Immigration Principles, we refer to an American Bar Association (ABA) Resolution from 2007 that reports the proposed naturalization and immigration fee increases at the time. The Resolution states that, “the new fees may place naturalization and other immigration benefits out of reach of many low-income immigrants. Application fees should not be so excessive as to prevent otherwise eligible individuals from accessing benefits, and USCIS initiatives that benefit the public as a whole should be funded through federal appropriations rather than through application fees”. The BBA endorsed this regulation and holds that it would be unjust for application fees to be the reason why somebody is unable to apply to adjust their status.  

The fees remain unchanged for now. The Federal Register has posted three public notes about them, attracting more than 40,000 public comments that the agency is mandated to review before announcing a final rule.

Deportation of Refugees and Children at the Border 

Under the guise of battling the threat presented by COVID-19, President Trump has used the nation’s public health laws as an excuse for summarily deporting refugees and children at the border. On March 20, 2020, the Centers for Disease Control (CDC) issued an order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The order was issued simultaneously with an emergency Department of Health and Human Services (HHS) Interim Final Rule based on the authority of an obscure provision of the 1944 Public Health Service Act. According to Just Security, based out of the Reiss Center on Law and Security at New York University School of Law, “Section 362 of that Act authorizes the Surgeon General to suspend ‘introduction of persons’ and ‘introduction to communicable diseases’ into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (TVPRA)”.  

The CDC order directly impacts those traveling to the United States by land, coming from Mexico and Canada. It claims to serve the purpose of preventing immigrants from congregating in large groups and limiting the possibility of new infections being brought into the country. However, critics claim that this policy distracts from meaningful measures to prevent the spread of the coronavirus and undermines confidence in the CDC. The Border Patrol is carrying out the CDC directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. More than 20,000 people have been deported under the order, including 400 children in just the first few weeks. The order was justified as a short-term emergency measure. However, it is now known that the Trump administration plans to extend the border restrictions indefinitely, until the director of the CDC no longer identifies the virus as a threat.  

“This ban was never about the pandemic, and it was never about public health,” said Charanya Krishnaswami, an advocacy director for Amnesty International. “As [the] news makes clear, the Trump administration is weaponizing COVID-19 to achieve the policy objective it’s sought from Day 1: shutting the border to people seeking safety.” Advocates add that there are no such measures for truck drivers travelling from Canada and Mexico for commercial or educational purposes and that the restrictions that exist do not apply at all to airplane travel.  

Ban on Issuance of New Green Cards 

On April 21, President Trump tweeted that he would order a temporary halt on issuing green cards to prevent people from immigrating to the United States, citing the exponential increase in unemployment claims due to the coronavirus pandemic and the need to protect American citizens’ job security from non-citizens seeking employment in the U.S. Trump said that his order would initially be in effect for 60 days, but that he might extend it “based on economic conditions at the time”. 

The BBA asserts that “immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country”. It sides with the numerous studies that outline how immigration boosts, rather than suppresses, the American economy and job growth. There is no evidence to show that limiting legal immigration will result in greater job opportunities for citizen workers. In fact, last month, BBA President Chris Netski issued a letter to Acting Secretary of Homeland Security Chad F. Wolf, urging him to leverage the authority of the Department of Homeland Security (DHS) to enlist the help of noncitizen healthcare workers in the fight against COVID-19. In the Presidential Proclamation, President Trump outlines that this temporary ban will not impact “any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional”.  

Still, it is predicted that Trump’s proclamation will block as much as a third of all the people who would otherwise be approved for a green card each year. This will especially affect family-based green card applicants applying from abroad and will effectively terminate the Diversity Visa program. This order adds to claims that the Trump administration is utilizing the COVID-19 crisis to push forth harsh immigration policies that have nothing to do with public health protections. 

On May 13, the DHS responded to our letter and seemed to deny they have any authority, even in an emergency, to grant parole or deferred action to non-citizen health workers who could save lives in this pandemic. We were disappointed with this response and will continue to advocate for this and for ensuring that immigrants are not impacted by public charge regulations when seeking out testing and treatment for COVID-19.

Infection Within ICE Detention Centers  

In a May 22 letter, BBA President Chris Netski addressed a spreading COVID-19 crisis behind the walls of prisons, jails, and detention centers in Massachusetts, which threatens to expand into the broader community. “In the midst of a pandemic, congregate housing of incarcerated individuals, pre-trial and immigration detainees, and people held on civil commitment presents urgent challenges that call for comprehensive action by all three branches of government,” said the letter.

There is growing evidence that infections are rampant within Immigration Customs Enforcement (ICE) detention centers, and that law enforcement is not doing enough to test detainees and prevent further infection. Andrea Flores, Deputy Director of Policy, Equality Division at the American Civil Liberties Union (ACLU), issued a statement claiming that “people in detention centers are sitting ducks for the spread of this virus”. 

On March 26, 2020, Lawyers for Civil Rights (LCR) filed an emergency class action[link?] against ICE and the Bristol County Sheriff requesting immediate relief on behalf of a putative class of highly vulnerable civil immigration detainees who are at imminent risk of contracting COVID-19. U.S. District Court Judge William Young found both the sheriff and ICE have deliberately disregarded the health of detainees in their care amid the COVID-19 pandemic. Young ordered immediate, widespread testing — at ICE’s expense — of ICE detainees, as well as staff who may have come in contact with them. As of May 7, 2020, the class action had resulted in the release of 50 detainees. The BBA has been tracking this case and is pleased to see this positive outcome. 

The ACLU of Rhode Island also filed a class action lawsuit on May 15 against DHS, ICE, the local ICE field office, and the warden of the Donald W. Wyatt Detention Facility in Central Falls, Rhode Island. The suit, filed as a habeas corpus petition, seeks urgent relief for a class of over 70 immigration detainees at the facility. It names three detainees who have underlying conditions that put them at a heightened risk of death or serious illness if infected with COVID-19. However, the class-action petition argues that all of the ICE detainees at Wyatt are at “unreasonable risk” of COVID-19 infection due to the conditions at the facility, and should therefore be released or placed in community-based alternatives to detention. It cites a recent study which projects a “significant impact on immigrants and local health care if ICE detention populations are not decreased”.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Joins Amicus Brief in Support of Keeping ICE Out of Massachusetts Courthouses

We have been concerned for several years about the issue of enforcement of our immigration laws, and an amicus brief the BBA joined this week is the latest example of our advocacy in this area.

In April 2019, Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services (CPCS), and the Chelsea Collaborative, Inc., jointly filed a lawsuit in federal court against U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS), and several other officials. The lawsuit challenges ICE’s policy and practice of conducting civil immigration arrests inside of and near state courthouses in Massachusetts.

The Plaintiffs contend that:

  • At the time the Immigration and Naturalization Act (INA) was enacted, all those appearing in court on official court business enjoyed a common-law privilege against civil arrest.
  • INA does not specifically extinguish this common law privilege and therefore must be interpreted to be constrained by it.
  • Any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.

The Defendants argue that there is no common-law privilege against civil arrest in courthouses and, in the alternative, that any such privilege was superseded long before the codification of the current immigration scheme.

In June 2019, the Plaintiffs’ Motion for a Preliminary Injunction, which sought to restrict immigration authorities from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they were going to, attending, or leaving the courthouse, was allowed.

This week, the BBA joined an amicus brief in the case jointly drafted by Professor Christopher Lasch of the University of Denver School of Law and the Massachusetts Bar Association (MBA). The brief was also joined by the Massachusetts Academy of Trial Attorneys (MATA), the Women’s Bar Association (WBA), and the South Asian Bar Association of Greater Boston (SABA GB).

The brief is positioned in support of affirming the District Court’s order granting the injunction. Defendants are currently pursuing an interlocutory appeal of that order in the First Circuit, while simultaneously filing a motion to dismiss in the District Court—and an amicus brief in opposition to the latter has been submitted by Professor Nikolas Bowie and the Harvard Immigration and Refugee Clinical Program.

The brief:

  • Contextualizes the case by detailing how “thirty years of ever-increasing efforts by the federal government to harness state and local justice systems in the service of immigration enforcement” set the stage for the conflict between the parties.
  • Outlines why the common-law privilege from arrest recognized by the District Court guarantees access to equal justice and is essential for preserving individual rights.
  • Argues that the privilege from arrest prohibits civil arrests in and around courthouses, protecting the sanctity of the courts as a branch of government and signaling equal access for all who come seeking justice.
  • Argues that the privilege from arrest prohibits arrests of those on their way to, or returning from, court proceedings, protecting individual access to the courts and preserving individual rights.

The BBA has spoken on this issue previously. Our Immigration Principles, as adopted in 2018, state:

“[I]mmigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation.”

Earlier that same year, we sent a letter to SJC Justice Cypher in her capacity as Single Justice, in support of the request by plaintiffs in a related case for full-bench review of a similar claim. (She denied that motion, and the case ended there.) And, in 2019, we spoke out against the federal indictment of Judge Shelley Joseph, who allegedly helped an undocumented man avoid an ICE agent who was waiting for him outside her courthouse. In that occasion, we asserted that the federal government’s decision to send ICE officers to Massachusetts courthouses significantly interfered with the ability to secure justice for all in cases where immigrants—documented and undocumented—are victims, witnesses, or defendants.

The amicus brief we joined this week presents a united front among a number of concerned Massachusetts bar associations, who agree that ICE enforcement in and around our courthouses contributes to a detriment in the ability for all persons to access the justice system, and we hope that this will help persuade the Circuit Court to uphold the injunction.

We will of course continue speaking out on this issue, guided by our Immigration Principles, and we hope that this case sets a precedent that will protect individual litigants in and around courthouses across the Commonwealth and, in doing so, advance the cause of justice.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Q&A with BBA Crisis Response Working Group Chair, Martin Murphy, BBA President-Elect and Partner at Foley Hoag

BBA President Christine Netski appointed a COVID-19 Crisis Response Working Group which has been working to identify and monitor the impact of emerging issues during the COVID-19 crisis, and to recommend changes in or clarifications regarding practice. We caught up with Working Group Chair and BBA President-Elect, Marty Murphy. Murphy discusses some of the emerging issues the group is tackling, ways the legal community has met these extraordinary challenges with collective persistence, and his predictions for how these changes will affect the profession long term.

  1. What are some of the major themes that the Working Group has identified over the last couple of months?

We’ve been working hard to identify how the BBA can best address the unprecedented range of issues the bar and the public are now facing. We’ve been particularly interested in addressing issues that impact individuals who have been hit the hardest, and have even in ordinary times a hard time making their own voices heard. So we have, for example, publicly supported the moratorium on evictions and foreclosures the Legislature enacted and the Governor signed into law, and we also filed a an amicus letter in the SJC supporting expedited, individualized, consideration of release of prisoners in Houses of Corrections and state prisons.  We’ve also taken on a number of issues that impact day-to-day practice in many areas—like the remote notarization of documents (also, fortunately, approved by the Legislature and the Governor.)

  1. What responsibility does the BBA have to speak out on these issues?

Ensuring access to justice for all citizens is at the heart of the BBA’s mission. The challenges faced by individuals facing extraordinary economic hardship and having to face the pandemic while in custody are precisely the kind of issues where the expertise of the BBA’s lawyers can play an important role in shaping the public debate.

  1. What have you learned about the current state of legal practice and the court system through your work with this group?

I have been incredibly impressed by the dedication of lawyers and judges tackling some extraordinarily challenging issues without any playbook. The commitment of the lawyers who brought challenges in federal and state court seeking the release of prisoners and ICE detainees, and the Judges who heard those cases so expeditiously is an extraordinary blessing that we should all be grateful for. The SJC’s first-of-a-kind marathon telephone hearing on the CPCS/MACDL petition was a testament to the quality of advocacy—on all sides–and judging we are fortunate to have here. And United States District Court William G. Young’s willingness, day-after-day, to wade into the personal circumstances of dozens of detainees to determine whether each should be released demonstrates the kind of persistence that is a hallmark of our judiciary.

In ordinary times, this is a great place to practice law. These unprecedented circumstances have tested the mettle of our lawyers and judges, and none have been found wanting.  

  1. Have any changes emerged, whether positive or negative, that you think will last beyond this pandemic?

I think the jury is out on that one—though I am pretty sure that it’ll be some time before offering to shake hands will be viewed as anything other than a declaration of hostilities. It’s hard to know how much of our new virtual reality will stick, and how much will pass by the boards. But I do believe that, in the future, we will all spend more time planning for potential calamities—pandemics, or other threats, like cybersecurity, that could tax our ability to carry on our day to day lives.

And I hope we will all embrace and support new lawyers in this unique time. The pandemic has thrown a monkey wrench into the ordinary rhythm of the bar exam bar, bar admission, and new crop of lawyers we are always excited to bring aboard each fall.  They will need our help.

Emergency Remote Notarization Law Enacted

We have been keeping you updated here on the progress of legislation to authorize, on a temporary basis, the practice of remote notarization and witnessing of documents, which the BBA endorsed.

We’re pleased to report that Governor Charlie Baker signed the bill into law last week. It took effect immediately and will apply until three days after the Governor’s state of emergency is ultimately lifted.

This issue was urgent, because, as we stated in our letter to the Legislature:

We have heard from BBA members across a variety of practice areas—including real estate, family law, trusts and estates, and bankruptcy—that their work is being hindered, and clients’ urgent needs left unaddressed, by the requirement that notarization and witnessing be conducted in person. It is especially unfortunate that, at a time when health concerns, if not actual illness, have led many to focus on their estate planning, quarantine orders and self-isolation are complicating and often preventing the execution of the necessary legal documents to achieve their goals.

The final legislation represented a compromise among a broad coalition representing various practice areas and other stakeholders, including banks and insurance companies. The new law was further tweaked by lawmakers, and while not all parties got everything they wanted, the consensus was that passage in some form took precedence during this crisis over any particular provision.

We were relieved that the Legislature and Governor were able to move this bill through the current limited process, in spite of the hardships they themselves face and the many other pressing priorities before them. Here are some of the highlights of the law:

  • The act permits execution, notarization, filing, or recording of virtually notarized legal documents such as wills, trusts, nominations of guardians or conservators, caregiver authorization affidavits, durable powers of attorney, health-care proxies, and HIPAA documents, as well as mortgages and other documents transferring title to real estate.
  • Only a notary who is also a Massachusetts attorney, or a paralegal under a Massachusetts attorney’s direct supervision, can notarize such documents remotely or virtually. The Act clearly excludes non-attorney notaries from remotely notarizing wills, trusts, personal and asset protection documents and real estate transfer and mortgage documents.
  • Via videoconference, documents may be executed and notarized remotely if:
    • all parties are physically located in Massachusetts during the signing;
    • the signers and all others in the room with the signer consent to the recording;
    • the signer provides satisfactory identification by video, with copies subsequently sent to the notary;
      • If the documents relate to a real estate transaction and the notary does not know the signer, a second form of identification containing the signer’s photograph or signature or issued by a governmental agency, is required to comply with the Act.
      • Copies of the signer’s identification must be retained by the notary for ten years from date of execution.
    • all others in the room are seen on video by the notary and provide satisfactory identification by video and disclose their relationship to the signer;
    • the notary observes the actual execution of the documents by video;
    • the executed documents are delivered to the notary, as directed, for notary signature, stamp, and certification;
    • the notary completes an affidavit indicating receipt of the signer’s identification documents, visual inspection of the credentials during the video conferences, consent to record the video conferences, confirmation that signer was physically located in Massachusetts and noting all of the individuals present in the room with the signer and their relationship to the signer.
  • If any of the executed documents are to be recorded in connection with real-estate transaction (deed, mortgage, easement etc.) a second verification video conference is required.
  • Notaries are required to keep copies of their certifications, affidavits and video and audio recordings of the remote sessions for ten years.

You can read more, and view sample forms, here.

We thank all the BBA sections that brought this issue to our attention, the members who helped support our advocacy by contacting their legislators to explain its importance to the practice of law, and the coalition members who led this effort, including the Real Estate Bar Association of Massachusetts and the Massachusetts chapter of the National Academy of Elder Law Attorneys.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Advocates for Legal Services, Loan Forgiveness, and Immigration in First-Ever Digital ABA Day

Every year, the BBA President and President-Elect travel to Washington, D.C., to meet with our representatives in Congress and advocate for issues that are important to our membership and the legal profession as a whole. This annual event, organized by the American Bar Association (ABA) is known as ABA Day in Washington, and it’s one of our most important lobbying days of the year. This year, however, the in-person component of ABA Day was cancelled due to the coronavirus pandemic, and we were forced to adapt our advocacy to fit with the challenges of the current global situation. BBA President Chris Netski and President-Elect Marty Murphy participated in the first-ever Digital ABA Day on April 22 and 23, 2020, and advocated for three principal issues: Legal Services Corporation (LSC) funding; the Public Service Loan Forgiveness (PSLF) program; and immigration.

The Legal Services Corporation was created to promote equal access to justice by providing funding assistance to civil legal aid programs that exist in every congressional district. Legal aid attorneys help low-income clients with a multitude of legal issues such as family law, housing, employment, immigration, and more. The BBA supports civil legal aid at the local level by advocating for Massachusetts Legal Assistance Corporation (MLAC) funding in the state budget every year, and supports the LSC (alongside the ABA) at the federal level for the same reasons.

LSC is the single largest funder of civil legal aid in the nation and LSC-funded programs help nearly 2 million people every year. (In Massachusetts, they assist the Volunteer Lawyers Project, Northeast Legal Aid, Community Legal Aid, South Coastal Counties Legal Services, and the Massachusetts Justice Project.) However, the need for civil legal aid far outweighs the current resources, and that is why the ABA is advocating for an increase in LSC’s annual appropriation to $652.6 million. This need is especially at the forefront now, as the COVID-19 pandemic brings to light the inequalities in access to justice that have always been present. The pandemic has already caused a significant increase in the need for legal help with evictions and unemployment, lack of access to healthcare, scams aimed at the elderly, and temporary restraining orders needed to protect survivors of domestic violence.

The Public Service Loan Forgiveness Program was enacted by Congress in 2007 in order to make it financially feasible for law school graduates to pursue public interest careers by offering partial student loan forgiveness in exchange for a service commitment of at least ten years. This program is essential to the legal community, which relies on its public servants to provide legal help to those most in need. However, certain members of Congress are calling for the program to be suspended, claiming that it is too expensive for the federal government.

The ABA is strongly in support of the PSLF program and believes that repealing it would be of significant detriment to the legal community and society as a whole, as it would make it more difficult for law school graduates with significant debt to choose careers in public service. The BBA supports this program and also recognizes that communities rely on public service professionals especially during crises, like the current COVID-19 pandemic.

  • Immigration

The BBA has advocated for the fair and just treatment of immigrants for a number of years. Since 2018, we have been guided by our Immigration Principles, which outline the values that are most important to us as an association. Marty Murphy, who chaired the Working Group that drafted the Principles, outlined for our representatives the most important immigration-related issues that we are tracking at the moment.

The first is the ongoing concern with immigrants’ access to courthouses. Immigration and Customs Enforcement (ICE) has been conducting civil immigration arrests in and around courthouses, which produces a chilling effect that may prevent undocumented immigrants from fully participating in the justice system. This is particularly concerning in domestic violence cases, for example, where victims are afraid to present themselves in court due to potential immigration actions, and therefore unable to pursue legal action against their attackers. It has also caused defendants to not show up in court, as Chief Justice Gants and Chief Justice Carey pointed out in a letter to ICE earlier this year. This also prevents the justice system from functioning properly.

The second issue is one that we spoke out recently about in our letter to Acting Secretary of Homeland Security Chad Wolf. The letter urges the Department of Homeland Security (DHS) to instruct U.S. Citizenship and Immigration Services (USCIS) to ensure that foreign-trained healthcare workers are able to deploy their energy to aid our communities that have been devastated by COVID-19. USCIS has the statutory authority to expedite the review of petitions and applications involving healthcare workers. DHS is also equipped with a wide array of tools to recruit and retain critical healthcare workers. 

We are thankful to have met with five legislators’ offices: Congresswoman Katherine Clark (MA-5); Congressman Jim McGovern (MA-2); Congressman Joe Kennedy III (MA-4); Congresswoman Lori Trahan (MA-3); and Congressman Richard Neal (MA-1). We are happy to share that all five offices expressed support on all of the above issues.

We look forward to continuing our advocacy and supporting our members of Congress throughout the pandemic and beyond. If you’d like to express support on these issues to your Senator and Representative, you can find contact information for them here. The ABA also has issue-specific pre-populated forms for your use on LSC and PSLF.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Legislative Update

We continue to monitor pandemic-related legislation of interest to the BBA, and below we offer another bi-weekly update on a couple of bills in particular:

Moratorium on Foreclosures and Evictions

Since our last update, the Senate and House set up a conference committee to work out differences between their respective versions of legislation to impose a moratorium on foreclosures and “non-essential” evictions during, and a bit beyond, the current state of emergency.

The BBA submitted a letter to the conferees on April 13, asking them to act quickly to resolve the matter in order to relieve pressure on tenants and mortgagors by restricting evictions and foreclosures. The letter recommended adoption of one eviction provision in particular, preventing any judgment from being entered on a move-out agreement reached out of court—which we understand may still be happening in Massachusetts courts, notwithstanding the current Housing Court restrictions on non-essential eviction actions—thus pausing evictions from beginning to end, except in emergencies.

The conference committee reached an agreement on April 15, one that included the specific language we sought, and the Governor signed this into law on April 20, with immediate effect. Among the key provisions (which go beyond what was provided in the federal CARES Act):

  • No late fees for non-payment of rent—nor can a landlord notify a credit-reporting agency—if the tenant provides documentation within 30 days of the missed payment that the non-payment of rent was due to a financial impact from COVID-19.
  • Landlords may apply last month’s rent (but not a security deposit) to certain qualified expenses, with notice to the tenant—and with no effect on the interest that would otherwise have accrued as owed to the tenant.
  • Notices to quit may not be sent, nor may sheriffs execute evictions. Housing Court may not hear “non-essential” evictions (as defined), and deadlines are tolled.
  • Tenants are not relieved of their obligation to pay rent. Instead, the Act is intended to provide temporary relief without unduly penalizing landlords from being able to collect unpaid rent. The Act does not provide any guidance as to when and how any unpaid rent must be paid back to a landlord, though this may be covered later in regulations. [Corresponding provisions are in place for mortgagees.]
  • Covers residential tenants and small businesses.
  • For homeowners, including owner-occupants of most buildings with four or fewer units, creditors and mortgagees may not publish a notice of foreclosure sale, commence a judicial or non-judicial foreclosure process, or exercise their power of entry.
  • Creditors must grant a forbearance of mortgage payments for up to 180 days, if requested, during which time fees may not accrue.
  • No additional fees, penalties, or interest beyond what the borrower was obligated to pay under the mortgage may accrue during the forbearance period. Payments subject to forbearance will be added to the end of the term unless otherwise agreed to. Borrowers and lenders may enter into alternative payment agreements, but no negative credit information may be provided by a lender to a credit reporting agency relating to the payments subject to the forbearance.
  • The law is in effect for 120 days, or for 45 days beyond the end of the current state of emergency, whichever is shorter. But after 120 days, the Governor may extend its effectiveness by 90 days, so long as it ends no later than 45 days beyond the end of the current state of emergency.

Read more: https://www.nutter.com/trending-newsroom-publications-ma-enacts-temporary-moratorium-evictions-foreclosures

Remote Notarization and Witnessing

You may recall that the BBA recently endorsed legislation to temporarily authorize remote notarization and witnessing of documents during this state of emergency, and for three days thereafter. The issue has also received media coverage, and Massachusetts Lawyers Weekly recently editorialized about the need for this legislation.

Remote notarization and witnessing would allow attorneys to conduct signings remotely by videoconference, with protections in place to prevent fraud and abuse.  This temporary emergency relief is urgently needed to help clients sign their wills and other essential documents when they (or the notary or attorney) are sick or merely quarantined, and to help keep courts from being overwhelmed by cases after they re-open and the crisis passes.

At last count, forty-two states, including all the rest of New England, have acted to authorize some form of remote notarization during the COVID-19 emergency. And at this time of writing, the Senate and House have each passed identical legislation, which will now be sent to the Governor. If he signs it, the bill will take effect immediately—and we will update you here, with a summary of its provisions.

—Michael Avitzur
Government Relations Director
Boston Bar Association

SJC Decision Offers a Pathway to Emergency Release for Pre-Trial Detainees

Last week, in this space, we told you about an emergency amicus letter filed by the BBA in a lawsuit brought by the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL). The plaintiffs called on the SJC to institute sweeping procedures in order to protect incarcerated individuals, and those who might otherwise become incarcerated, from a potential public-health catastrophe involving the spread of COVID-19 within Massachusetts prisons and jails, and beyond. They asked the Court to create a process by which such at-risk people could be kept out of, or released from, incarceration.

The BBA letter — filed at the recommendation of the BBA’s new Crisis Response Working Group, and drafted with the assistance of members of that group and the Amicus Committee — noted that “this is one of the very rare instances where litigation and judicial deliberation by trial judges under the ordinary rules will literally cost lives” and therefore urged the Court to:

  • create a system-wide mechanism to quickly reduce the pre-trial detainee population, designating officials to review existing bail conditions in pending cases and instructing them to apply a strong presumption of release for individuals held on cash bail (not for dangerousness) and for detainees held on alleged probation violations (other than new violations of restraining orders in domestic-abuse cases); and
  • temporarily suspend Massachusetts Criminal Procedure Rule 29 so as to allow anyone serving a House of Correction sentence or a parole-eligible (including medical parole) prison sentence to file a motion to revise and revoke their sentence — notwithstanding the requirement that such a motion be filed within 60 days of sentencing — and explicitly permit judges addressing those motions to consider the COVID-19 pandemic in their rulings.

The SJC ruled last Friday, on an expedited basis, after a historic telephonic emergency hearing that lasted four hours. In its decision, the Court began by recognizing the urgency of the situation and pointing to its won actions in response, including its statement that, “[i]n criminal cases, where appropriate, a defendant may ask the court for reconsideration of bail or conditions of release.” The unanimous opinion by Justice Gaziano (with Justice Lenk taking no part) goes on to state:

We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557. To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A [dangerousness], and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release. The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight.

The special master appointed by the Court is ordered to work with sheriffs and the Department of Correction (DOC) to facilitate its implementation. And the Parole Board and DOC are urged “to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.”

However, the Court declined to exercise its superintendence authority, as urged by the BBA and others, toward the release of those incarcerated post-sentence:

With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29). Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). See Commonwealth v. Charles, 466 Mass. 63, 83 (2013). Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch. Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.

The ruling left the door open to further litigation for such individuals, saying that “if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.”

We were pleased that the Court at least took steps to speed the release of broad classes of pre-trial detainees by finding them presumptively eligible under the changed circumstances. And although we were disappointed that the Court did not take the opportunity to suspend Rule 29, we will continue to monitor any follow-up litigation, such as on constitutional grounds, and the implementation of this ruling.

—Michael Avitzur
Government Relations Director
Boston Bar Association