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

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.

Washington

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.

Oregon

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

Near Final State Budget and Innovation in Civil Legal Aid Advocacy

We are pleased to start with some great news.  The FY2016 budget appears to be just about settled as the House and Senate are voting on their Legislative overrides to the Governor’s proposed vetoes (read more about the budget process and all our budget priorities here), and both houses agreed to restore vetoed funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), and the Land Court ($291,470).  All three provide essential services to people in Massachusetts.  At the time of writing, the House had also voted 143-11 to override the Governor’s veto of $3.7 million from the Trial Court’s administrative staffing budget.  We hope the Senate will do the same.

The Land Court Department has statewide jurisdiction over the registration of title to real property and foreclosure and redemption of real estate tax liens.  It also shares jurisdiction over matters arising out of local planning and zoning board decisions.  The Housing Court Department has jurisdiction over civil and criminal actions, including equitable relief, which involve the health, safety, or welfare of the occupants or owners of residential housing.  It hears summary process (eviction) cases, small claims cases, and civil actions involving personal injury, property damage, breach of contract, discrimination, and other housing related claims.  It also hears residential housing code enforcement actions.  We are currently advocating for the statewide expansion of Housing Court jurisdiction, as it now covers less than 70% of the state population.  This can be accomplished through the enactment of S901/H1656, and we hope restoration of this funding demonstrates the value the Legislature sees in Housing Court, and represents a first step towards passage of these expansion bills.

Thank you to all our members who responded to our social media action alert for Prisoner’s Legal Services (PLS)!  PLS provides legal assistance to incarcerated individuals and promotes the safe, humane, and lawful treatment of Massachusetts prisoners through civil rights litigation, administrative advocacy, client counseling, and policy outreach.  It receives well over 2,000 requests for advice or assistance each year and is one of the only organizations of its kind in the state, working to assure prisoner’s rights are upheld – that they get the medical attention they need, their confinement conditions are constitutional, and they are safe from assault.  PLS’s vital legal aid also safeguards prison staff, protects public health, and eases the burden on our courts.

Throughout the budget veto and override process, the additional $2 million received by Massachusetts Legal Assistance Corporation (MLAC), which funds civil legal aid programs across the state, remained untouched.  This substantial increase will help MLAC expand its important work and brings its total funding for FY2016 to $17 million, representing a 15% year-over-year increase, when the overall budget increased by only 3%.  This percentage increase demonstrates a clear commitment from the Legislature and Governor to support civil legal aid while also running a more efficient Commonwealth, thanks to the cost savings provided by civil legal aid as demonstrated in our Investing in Justice task force report.

Even as the FY2016 budget cycle comes to an end, our work never stops.  It is precisely this summer “down time” when we need to redouble our efforts and find new ways to spread our message on civil legal aid.  The need for legal aid is ever increasing, and we constantly see new stories highlighting the need for increased funding for legal services agencies and underscoring the value of the assistance they provide.

With this in mind, we are pleased to report on an innovative new way the private bar is becoming involved.  The idea is law firm breakfasts throughout the year, featuring presentations by members of the Equal Justice Coalition (EJC) and MLAC on civil legal aid and advocacy.  It is based, at least in part, on the model started at Nutter McClennen & Fish, which holds a breakfast for the entire firm around the time of Walk to the Hill, the annual lobbying event for civil legal aid, to promote the Walk and explain the importance of lawyers advocating for civil legal aid funding.

The breakfasts are being arranged by the EJC with the help of its private bar liaison, Louis Tompros of Wilmer Hale.  After a successful start at his home firm, the group recently paid a morning visit to Holland & Knight, where Ben Stern was host and past BBA President J.D. Smeallie presented to a full boardroom on the findings of the BBA Statewide Task Force on Civil Legal Aid, which he chaired.  The breakfast also included presentations by MLAC Executive Director Lonnie Powers, EJC Chair John Carroll, of Meehan, Boyle, Black & Bogdanow, and EJC Director Deb Silva.

The speakers talked about the history of legal aid and its funding, the importance of legal services, the budget process, tips for advocacy, and the key role played law firm attorneys, who, as Louis explained,  understand the issues and have the means to do something about it.  The presenters stressed the importance of not only being an engaged voter but also contacting legislators to inform them that their constituents care about legal aid.  Just this small act can go a long way and make a major difference.

Thank you to everyone who helped us advocate for our budget priorities in this budget cycle.  We will continue to keep you updated, and hope that you’ll be ready to answer the call again when the FY2017 budget process begins in January.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Justice Scott Kafker Confirmed as Chief Justice of the Massachusetts Appeals Court

On Wednesday, July 22, by a 7-1 vote, the Governor’s Council confirmed sitting Associate Justice Scott Kafker to be the next Chief Justice of the Massachusetts Appeals Court.  Justice Kafker succeeds Appeals Court Chief Justice Philip Rapoza, who retired from the bench on June 30. As Chief Justice, Kafker will oversee the 20 other Appeals Court judges and–as he put it—work as “the daily guardian” of the Commonwealth.

This marks the first judicial appointment by Governor Charlie Baker, whose administration was applauded by the Council before the vote for putting forward such an “outstanding nominee right out of the box.” Councilor Terrence Kennedy remarked that “if they’re all like that, we’re going to have an easy ride the next four years.”  It is also is the first judicial appointment to have come through the recently-reconstituted Judicial Nominating Commission (JNC), chaired by BBA past-president Paul Dacier.  The JNC played an integral part in reviewing the candidate and is equally deserving of praise for its role in this process.

Who Is Justice Kafker?

First appointed to the Appeals Court in March of 2001, Justice Kafker has heard almost 2,700 cases and written opinions in nearly 900.  Prior to joining the Appeals Court, he served as chief legal counsel for the Massachusetts Port Authority (Massport) and deputy chief legal counsel to Governor William F. Weld.  During his time in the Weld Administration, Kafker served alongside Charlie Baker and current SJC Justice Robert Cordy.

A graduate from Amherst College and the University of Chicago Law School, Kafker spent his first few years out of school as an associate at Boston’s Foley, Hoag & Eliot. He has taught at Boston College Law School, the National Judicial College, and serves on the SJC’s Advisory Committee on the Rules of Civil and Appellate Procedure.  Justice Kafker is a trustee of the Dana-Farber Cancer Institute and a member of the American Law Institute.

The Process of His Nomination and Confirmation

As you may recall, earlier this year we reviewed the procedure for the appointment of new judges and explained the first two crucial steps of the process: The screening of applicants for judicial office by the Judicial Nominating Commission and the review of successful candidates by the Joint Bar Committee (JBC). Once Chief Justice Rapoza announced his retirement plans in February, it was clear that finding a suitable replacement would be the first order of business for the JNC, and it was their work that led to Justice Kafker’s nomination by the Governor.

JNC diversity meeting

JNC staff meeting at the BBA on July 8 with affinity bar leaders on strategies to increase diversity of the bench

After his nomination, Justice Kafker was subjected to a final review by the Governor’s Council, which is an elected body consisting of 8 Councilors and the Lieutenant Governor. All judicial nominations are subject to review by the Council — the final step in this multi-layered selection process.

Last week, we attended Justice Kafker’s public confirmation hearing, with the Governor’s Council taking witness testimony in support and, from one individual, in opposition to Kafker’s nomination. They also heard from Justice Kafker himself and asked him questions that would better inform their vote.

governors council kafker

Justice Kafker sits facing the Governor’s Council

Testifying on Kafker’s behalf was a diverse and comprehensive list of witnesses.  Justice Cordy and Appeals Court Justice Elspeth Cypher—who have both worked extensively with Kafker in the past—spoke to Kafker’s professional qualifications, citing his extensive experience and background, his legal, managerial, and collaborative skills, as well as his calm and contemplative  temperament. Council members inquired about Kafker’s leadership qualities, his disciplinary ability, and his “non-trial lawyer” legal background. Amid an exchange of jokes from both sides, Cordy and Cypher made plain with utmost conviction their belief in the abilities of Justice Kafker.

Law clerk Brittany Williams and court officer John Harrison spoke to their positive experiences working for Judge Kafker. Williams described Kafker as a “first-rate supervisor, mentor, and judge” and further emphasized his collaborative and pragmatic nature. Court officer John Harrison began by stating that he didn’t realize Kafker was a judge because “he was a regular, nice person”— which was received humorously by the Council. Harrison also conveyed how all the employees like Justice Kafker because he treats them all with respect. Councilors noted how much they valued this testimony because it demonstrated Kafker’s civility and managerial abilities.

Striking a common theme, Dana-Farber’s general counsel Richard Bosky and Kafker’s longtime friend and law-school classmate David Abelman, further testified in support of Kafker’s collaborative skills. Bosky spoke to Kafker’s diligence in preparation for board meetings, his dedication, and the value of his advice. He also mentioned how Kafker made it his priority to diversify the board. Abelman added that Kafker is fair, passionate, and leads by example.

The only person to speak in opposition to the nomination was Patrick McCabe of the Fatherhood Coalition. While McCabe was quick to praise the justice’s legal writing ability, he raised questions about Kafker’s leadership ability based on child-custody decisions to which the Coalition has objected. McCabe expressed concern over the fact that judges—including Kafker—routinely grant sole custody to one parent without any explanation.

In his address to the Council, Justice Kafker stated that if he were confirmed, his mission would include speeding up the issuance of decisions, creating more specialized expertise for better collaboration, promoting diversity on staff, and pioneering a new system of technology in the courts for improved efficiency. Kafker described himself as responsive and respectful, saying he respects everyone from all branches of government and tries to treat everyone with dignity. The hearing was cordial and flowed smoothly, with little debate, and several Councilors declared their support for Justice Kafker.

The Governor’s Council reconvened yesterday to vote on Justice Kafker’s confirmation, with Lieutenant Governor Karyn Polito presiding. Polito, who takes part in the selection process and facilitate the Governor’s Council review, pledged that only the best candidates will come before the Governor’s Council, after Councilor Jennie Caissie offered congratulations to the Administration and all those involved in the process that produced the newly-sworn-in Chief Justice Kafker.  We echo this sentiment and are pleased to see the JNC’s hard work beginning to bear fruit.  We hope this is only the first of many strong appointments, and encourage everyone with any interest in a judgeship to apply, as the only way to assure we have great judges is to start off with great candidates.

– Jing Li
Summer Intern
Boston Bar Association

Breaking Down the SJC Ruling in BBA Amicus Case Wong v. Luu

On Tuesday the SJC released its decision in Wong v. Luu, and we were gratified by the results.  As you may recall, our Amicus Committee filed a brief in this case that played a major role in oral argument.  As it turned out, it played a role in the final holding, too.  Although our brief is not cited, the SJC held, as we had advocated, that the trial judge did not have power to assess nearly $240,000 in sanctions against an attorney for his alleged role in breaking up a potential settlement agreement.  The case helps to clarify the sanctioning power of judges going forward.

How We Got Here

We first learned about this case at the end of 2014, after the SJC granted direct appellate review and issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.  Our Amicus Committee, chaired by Mark Fleming of WilmerHale, reviewed this request and gathered feedback from the BBA’s LitigationCivil Rights and Civil Liberties, and Bankruptcy Law Sections and Ethics Committee, as well as the parties involved in the case.  They ultimately decided to recommend filing a brief, concluding that the case raised serious concerns regarding the practice of law.

The case arises from two orders issued by a Superior Court Justice for sanctions of $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based supermarkets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain – including some who were parties to the case and were already represented by counsel — informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction in order to compensate the other lawyers for their time after the breakdown of settlement discussions, explaining that the attorney had acted unreasonably, wasted court and attorney resources, delayed the administration of justice, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

Through the early part of 2015, the Amicus Committee worked with the BBA’s Executive Committee and Council and their chosen drafter, Debra Squires-Lee, Sherin & Lodgen, LLP, to finalize the BBA’s amicus brief.  We were excited about the final product, crafted by Debra with help from Sherin & Lodgen associate Jessica Gray Kelly, which, while taking no position on the underlying facts of the case, requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order.  It further argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

On March 3, 2015, the SJC heard oral argument in the case.  We hope you will watch the brief video, available here as it was clear that our brief played an integral part.  The brief is mentioned immediately, as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and at the 10:00 minute mark, when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 minute mark, when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), that the Superior Court still did not have authority to sanction the attorney for his actions.

The SJC Decision

In an opinion authored by Chief Justice Ralph D. Gants, the SJC appeared to agree with some of our brief’s major points, most notably that the judge here abused his discretion by imposing the harsh sanctions and that the attorney’s conduct was more appropriately addressed by referral to the Board of Bar Overseers.

Although the Court rejected our argument that inherent sanctioning powers should be limited to cases where it finds “bad faith,” it adopted a similarly significant limitation – that sanctioning must be “necessary to preserve the court’s authority to accomplish justice” (Wong v. Luu, SJC-11789, p. 17) or “ensure the fair administration of justice” (20).  Expanding on this standard, the Court includes examples of sanction-worthy conduct including:

  • Failing to comply with an order of the court (18)
  • Undue delay in compliance (18)
  • Making knowingly false misrepresentations to the court, intentionally misleading the court, or knowingly concealing information that an attorney has a duty to provide to the court (19)
  • Engaging in conduct in the courtroom that interferes with a judge’s ability to manage the courtroom fairly, efficiently, and respectfully (20)

Analyzing the attorney’s conduct at issue here, the Court concluded that

“the fair administration of justice does not require the settlement of a case; although the parties are free to settle their case, their entitlement under law is to a trial, not to a settlement in lieu of a trial . . . the failure of settlement negotiations does not threaten a judge’s ability to ensure the fair administration of justice [and] the inherent powers of the court do not extend to claims that an attorney during settlement negotiations did not act honestly.” (22-25).

The case has already garnered national attention and we hope that the SJC’s leadership will help set sound precedent for courts in the Commonwealth and across the country.  We are proud to have been part of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Process Nearly Complete

This week, the Legislature’s Budget Conference Committee approved a final FY2016 budget and yesterday it was enacted in both the House and Senate.  Let’s take a look at where our items of interest ended up and how they got there:

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

We made a historic push for increased funding of this line item.  Following the release of our Investing in Justice task force report, we implemented an intensive and far-reaching educational campaign, which resulted in media coverage from national to local newspapers to radio and television coverage.  We also held meetings with over 50 public officials including state Executive Branch leaders, state and federal legislators, the Attorney General, and the Chief Justice of the Supreme Judicial Court.

We helped spread the word that 64% of qualified people seeking legal aid are turned away due to lack of resources.  That doesn’t even take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.  We also were proud to share the accomplishments of the private bar, which operates in a public-private partnership with legal aid, donating immense amounts of time and money to the cause.

Finally, we discovered that up-front investments in legal aid will yield back-end savings from social welfare expenses.

  • For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69, primarily on shelter costs
  • For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in Medicare savings.
  • For every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.

We are pleased to see that MLAC received $17 million in the Conference Committee budget, a $2 million (14%) increase over last year.  Thank you to everyone who responded to our many action alerts asking you to contact your Legislators to let them know the importance of funding legal aid.

Here is the final breakdown:

FY2015 Final: $15 million (before mid-year cut of 1.79%)

FY2016

  • Request: $25 million
  • Governor’s Budget: $15 million
  • House Final: $17 million
  • Senate Final: $17.1 million
  • Conference Committee: $17 million

The BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts recommended a $30 million increase over three years, so our work in this area is certainly not done.  But in the context of an overall budget increase of 3.5% and a $1.8B budget gap that confronted the new Governor, this budget lays a good foundation.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the Legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples included funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

We were satisfied with the final funding amount of $631.5 million and grateful for legislative support.  Within that number there were some particularly bright spots including increases to specialty court funding and the courts’ HOPE/MORR intensive probation program. Unfortunately, statewide expansion of Housing Court jurisdiction did not make it into the final budget.  However, we still hope to accomplish this legislatively through bills H1656/S901.

This is how the funding breaks down:

FY2015 Final: $612 million (before mid-year cut of 1.79%)

FY2016

  • Request: $642.6 million + modules
  • Governor’s Budget: $603 million
  • House Final: $622 million
  • Senate Final: $633 million
  • Conference Committee: $631.5 million

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS’s budget is comprised of four line items that include compensation for its own attorneys as well as private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, which made a convincing case that public defenders, bar advocates, and assistant district attorneys merit higher salaries, and a state commission unanimously agreed with that proposition.  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfunded CPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  The FY16 budget does not propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breakdown:

FY2015 Final: $168 million

FY2016

  • Governor’s Budget: $186.7 million
  • House Final: $170.5 million
  • Senate Final: $173.6 million
  • Conference Committee: $170.6 million

Next Steps

The Governor now has a total of 10 days to review the budget (9 days left at the time of posting).  He can approve or veto the entire budget, veto or reduce specific line items, veto outside (i.e., non-monetary) sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We hope the Governor will approve all of our line items of interest without change and we look forward to keeping you updated on the latest budget news.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equality: Making Great Strides, but a Long Way to Go

Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states.  The BBA has long been a supporter of marriage equality.  We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage.  Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court.  The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:

However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality.  Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications.  The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.

  • The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
  • The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
  • Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.

In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation.  While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.

Massachusetts has long been a leader in legislating equality.  The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application).  Remarkably, more than 25 years later, residents in many other states still lack these protections.

Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality.  As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples.  For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood.  They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples.  In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.

In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment.  However, we recognize that there is still a long way to go.  In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves.  In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity.  Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Will This Be the Year? Hearing on Longstanding BBA Probate and Family Law Bills

The BBA’s Trusts and Estates and Family Law Sections have long been amongst the most involved with policy and thus it was fitting that representatives from both were in the State House to testify on long-time BBA bills of interest on Wednesday.  The Judiciary Committee held the first of two hearings on probate and family issues and we provided testimony on three of the fifty-one bills on the agenda.

H1291 – An Act making Corrections to the adopted children’s act

The BBA been worked on this issue both through litigation and legislation.  Bear with us, as the full explanation is a bit technical, but in simplest terms, the bill changes the law to align with the SJC ruling in Bird v. BNY Mellon, a case that restored a 1958 law regarding trusts.  Got it so far?  Here is the detailed explanation prepared with the invaluable help of Brad Bedingfield of Choate and Marc Bloostein of Ropes and Gray.

In 1958, the Legislature modernized the law to presume that adopted persons are included in terms like “child, “grandchild” and “issue” unless the instrument plainly states otherwise. But it made the new law applicable only to instruments executed after its effective date.  The old law, which presumed adopted persons to be excluded unless they were adopted by the testator or settlor himself or herself, continued to apply to pre-1958 instruments. For the next 50 years, families adapted to this presumption for older trusts, making compensating and often irrevocable arrangements for adopted descendants who were not beneficiaries of these old trusts.

However, in 2008, that all changed.  Chapter 524 of the Acts of 2008 (which became effective in 2010) reached back to pre-1958 trusts and reversed the legal presumption, providing simply that the 1958 rule of construction (presuming inclusion of adopted people) would now apply to all instruments whenever executed.  This shift came as a complete surprise to the trusts and estates bar, banks, and other professional trustees, who knew nothing about the law until after its enactment and likely would have strongly opposed this sudden and disruptive change.

The problem was that from 1958 to 2008, lawyers had counseled numerous clients about how to provide for adopted children who were not benefited by pre-1958 family trusts. In many cases where such trusts benefitted only biological descendants, parents and grandparents with both biological and adopted descendants adjusted their estate plans to compensate the adopted descendants who were not thought to be beneficiaries under the pre-1958 trusts.  These plans could not always be changed to account for the 2008 change, which undermined the reasonable expectations of those who had created estate plans in the preceding decades.  It also removed existing interests in trusts by bringing in adopted beneficiaries to share in the trust benefits, unexpectedly diluting the interests of the long-standing beneficiaries and resulting in a windfall for adopted beneficiaries, who effectively got double shares where families had made corrective estate plans.

In the 2012 Bird case, in which the BBA filed an amicus brief, after one aggrieved beneficiary of a pre-1958 trust filed suit, the SJC found the 2008 reversal of the old, pre-1958 presumption to be “not reasonable” in that case.  The SJC felt that the 2008 bill violated due process by taking away vested trust interests or other property rights without serving a sufficient public interest to outweigh that loss by trust beneficiaries.  However, while the Court indicated generally that its ruling presumably would apply to other situations, it did not rule on the constitutionality of the 2008 bill in all cases.  Consequently, the 2008 law is still on the books.  Our bill, H1291 would remove it, clarifying the law and assuring that estate plans are executed as designed.  To see our full written testimony, click here.

S746 – An Act relative to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A BBA panel comprised of retired Probate and Family Court Judge Edward Ginsburg, Senior Partners for Justice, Family Law Section Co-Chair Theresa Ramos, Tracey & Associates, P.C., and Family Law Section Public Policy Committee Co-Chair, Gayle Stone-Turesky, Stone, Stone & Creem, gave riveting testimony on the need for this bill.

family law panel

Judge Ginsburg shared his illustrative experience in the 1998 case of Cricenti v. Weiland, which set the precedent for this bill.  The Judge presided over the custody claims of a Massachusetts divorce.  The mother had remarried and wanted to move to Nebraska with her children.  This was concerning to the children’s father, who asked Judge Ginsburg what would happen if the wife ignored a potential parenting agreement – would he have to go to Nebraska to litigate the case?  Judge Ginsburg assured him that was ludicrous, that Massachusetts would have continuing jurisdiction over the case, and that he would personally see to it that the mother and children would have to come to Massachusetts should there be any issues.  With this assurance, the father signed the agreement, permitting the mother to bring the children with her to Nebraska.

Seven months later, the mother went to a court in Nebraska and changed the terms of their parenting agreement.  The husband took action.  She was served in Nebraska and Judge Ginsburg was ready to find her in contempt.  However, the Court of Appeals had other ideas, holding that Massachusetts does not have exclusive continuing jurisdiction.  After a party leaves for six months, she is free to start over in another state and there is nothing Massachusetts can do about it.

Since then, the Judge has spent nearly twenty years trying to change the law.  Massachusetts is the only state left that has not adopted the UCCJEA, and thus is the only state that cedes jurisdiction to the home state of the custodial parents after six months of residency in the new state. This arrangement is extremely unfair to the “left behind” parent who is then forced to travel and litigate the issue in another state.  It also promotes forum shopping.

The purpose of the bill is to remedy these interstate conflicts.  Under the bill, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order, so long as the parent, the child, or someone acting as a parent remains in the original state.  This construction is very similar to the current laws regarding child support in all fifty states (including Massachusetts), which have an “exclusive jurisdiction” design.

The bill will lift a burden on litigants, who are more mobile in the modern world, and on the courts.  Although, under the bill, Massachusetts courts will maintain jurisdiction over some custody cases, they will avoid the contentious battles that currently arise in removal cases, where parents are fighting both to keep their children and to keep any future custody litigation close to home.

To read more about this bill, click here.

S748 – An Act relative to the elective share of surviving spouses

Some of you may remember this issue, as it too has been on the BBA’s agenda for some time.  It is another issue that doesn’t skimp on complexity.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is generally entitled to claim at least one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s relevant assets, multiplied by a percentage based on the length of the marriage – ranging from three up to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is now applied when a marriage ends in divorce.

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has since been replaced by a new bill which is similar, though not identical, to the Uniform Probate Code’s spousal elective share provision.  The ad hoc Elective Share Committee explained their proposed amendments in a 2012 report, which was submitted to the Committee at Wednesday’s hearing.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill and testified along with us on Wednesday.

spousal elective share panel

The panel consisted of:

They gave a great presentation, explaining not only the need for the bill and its complicated history, but also the technical aspects.

We also have another State House update: another BBA bill H3611 (formerly H1284), passed the House this week, following testimony by Real Estate Section Co-Chair Michael Fee, Pierce & Mandell P.C. at a May hearing.  The bill helps to protect consumers and other owners of improved real estate that violates zoning rules where a municipality has taken no enforcement action.  To learn more, read our testimony.  We will continue to track this bill as it moves through on the Senate side, and all the above discussed bills as they continue through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association