SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

From time to time, we like to update you on recent key happenings at the Supreme Judicial Court (SJC). This month, we have two significant developments to share: one related to the dismissal of over 20,000 convictions based on tainted drug evidence, and the other related to the SJC hearing oral arguments on the legal force of an “ICE Detainer.”

Bridgeman v. District Attorney

On Tuesday, five years since reports of the misconduct of Annie Dookhan at the Hinton Drug Lab first emerged, thousands of individuals who had been convicted or pled on the basis of tainted evidence finally received some resolution. Following the holding in “Bridgeman II,” prosecutors just announced they were dismissing 21,587 drug convictions, likely the largest mass dismissal in U.S. history.

As you know, from our many past reports, the scandal arose from the 2012 discovery that chemist Annie Dookhan had for years mishandled thousands of drug samples, by, among other things, contaminating unknown drug samples with known drugs, failing to conduct tests on samples she then labeled as controlled substances, and falsifying evidence logs and reports.

In 2013, she pled guilty to 27 criminal counts, including perjury, obstruction of justice, and tampering with evidence, and served more than two years in prison. All the while, more than 20,000 individuals that were convicted or pled on the basis of the tainted evidence were living with the significant consequences that come along with a criminal conviction, including difficulty securing employment, housing, custody of their children, and public benefits. Because a Dookhan conviction often served as a predicate offense, many also faced harsher sentences for later charges.

Over the past few years, the courts struggled to determine how to offer justice based on the sheer volume of such cases, and Bridgeman v. District Attorney for Suffolk County eventually went to the SJC two times. In May of 2015, the SJC held that the Dookhan defendants who challenged their convictions could not be charged with more serious crimes if given a new trial. Additionally, even if convicted, they could not be given a harsher sentence than was originally imposed.

In the fall of 2016, Bridgeman was before the SJC again, this time to determine whether all the convictions based on tainted evidence should be dismissed or instead subject to a court-imposed deadline. The BBA submitted a brief, written by Amicus Committee Co-Chairs Elizabeth Ritvo, Brown Rudnick, and Anthony Scibelli, Barclay Damon, calling for a global remedy. We argued that the Court should vacate, without prejudice, the adverse disposition on all drug-related charges where Dookhan was the primary or secondary chemist, and that the Commonwealth should be allowed a period of at least one year to re-prosecute individual charges, with the remainder automatically dismissed with prejudice.

Overall, the brief was drafted based on two principles central to the BBA’s mission: access to justice and the fair administration of justice. The global remedy would secure justice for the defendants who had already been living with the consequences of a conviction based on faulty evidence. Also, because the criminal misconduct was that of a state employee, implicating the public confidence in the government and justice system, the burden should be on the Commonwealth and not the individual defendants, to right the wrong. Furthermore, a global remedy would begin to relieve the burden on the justice system of individually resolving more than 20,000 cases.

In January, the SJC released its decision, agreeing that the Commonwealth should bear the burden, but declining to adopt a global remedy. The decision called for a three-step protocol where: 1) the District Attorneys were given 90 days to vacate and dismiss with prejudice those cases that would or could not be re-prosecuted; 2) adequate notice was to be approved by the Single Justice and sent to all defendants whose cases had not been dismissed; and 3) the Committee for Public Counsel Services (CPCS) would assign counsel to all indigent defendants who wished to explore the possibility of moving to vacate their plea or for a new trial.

The 90-day first step just came to an end, and prosecutors announced Tuesday that over 20,000 cases would be dismissed with prejudice. Overall, this brings the State, and the Dookhan defendants, much closer to a final resolution. The BBA is proud to have played a part and applauds the dismissal. BBA President Carol Starkey stated, “We thank the District Attorneys for their recognition that a different course of action, more than five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.”

President Starkey noted that “[f]or far too long, thousands of Massachusetts residents have lived under a cloud created by the misconduct of a rogue state employee, carrying a criminal record that may have prevented them from securing jobs, housing, benefits, and even legal immigration status. Today’s actions lift that cloud and allow the Dookhan defendants to move forward.”

As Dookhan takes a step toward comprehensive resolution, another case garnering nationwide attention just appeared before the SJC for oral arguments….

Commonwealth v. Sreynuon Lunn

On April 4, the SJC heard arguments on whether it is permissible for state and local authorities to hold people on “ICE detainers.” These detainers, from the federal Office of Immigration and Customs Enforcement (ICE), request federal, state, or local officials to hold individuals for up to 48 hours beyond when they would otherwise be released, on the basis that ICE has “determined that there is a reason to believe the individuals is an alien subject to removal from the United States.”

Sreynuon Lunn entered the US in 1985 as a refugee, receiving lawful permanent resident status in the early 1990s. He was ordered deported in the early 2000s on account of criminal convictions. Cambodia, however, would not accept Lunn back, and he was released from federal custody in October 2008. Eight years later he was arrested again on unarmed robbery charges. ICE lodged a detainer request with state authorities, but on February 6 state prosecutors elected not to prosecute Lunn and the case was dismissed from Boston Municipal Court. Lunn’s attorney asked for him to be released but the judge declined, and Lunn remained in court lock-up until ICE agents took him into custody several hours later. While the case is now moot as a result of Lunn’s detention, the SJC took it up “because the case raises important, recurring, time-sensitive issues that will likely evade the full court’s review in future cases.”

At oral arguments, the SJC heard from three attorneys, one on behalf of the Department of Justice (DOJ), one on behalf of the Commonwealth, and one on behalf of Lunn. Joshua Press, for DOJ, argued that without a law prohibiting state officials from detaining people at the request of ICE, authorities did not misstep by enforcing the requested detention and that detainer requests reflect principles of comity between various law enforcement agencies.

Jessica Barnett, deputy chief of the Criminal Appeals Division for Attorney General Maura Healey, presented the state’s argument that state agencies lacked the authority to comply with ICE, noting that keeping an individual in custody after the case is otherwise resolved was the equivalent of a fresh arrest without sufficient legal justification. She argued that “probable cause for civil removability is simply not a basis for arrest under Massachusetts law.” Emma Winger of CPCS, attorney for Lunn, echoed that, but also argued that the detainer process violates constitutional guarantees of due process because it amounts to custody without judicial oversight.

This case is significant for a number of reasons, not least because it may be the first State Supreme Court to reach the issue. It is also being considered in a time of great uncertainty around immigration given recent federal events, including the issuance of controversial executive orders and warnings from Attorney General Jeff Sessions that those cities and towns that do not comply with federal immigration law may lose federal funding.

ICE Presence in Courthouses

The argument also occurred on the heels of reports across the country that ICE officials were showing up at courthouses in order to reach undocumented immigrants. One of the first of such stories was the arrest of a woman in Texas who was seeking a protective order against an allegedly abusive boyfriend. The reports of ICE’s presence at courts have brought sharp criticism, not only from the attorneys of the immigrants being targeted by ICE, but also judges, including the Chief Justices in California, Washington, and New Jersey.

Much of this criticism centers around a concern that ICE arrests at courthouses can undermine the judicial system. As Washington Chief Justice Mary Fairhurst wrote in her letter to Secretary of Homeland Security John Kelly, “When people are afraid to appear for court hearings, out of fear or apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner who wrote to Secretary Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Overall, with the nation watching how ICE and state officials will interact, the Lunn case could not come at a more important time. As usual, we’ll continue to keep a close eye on this and all other matters impacting access to, and the fair administration of, justice.

We may even have the chance to discuss the issue of ICE showing up at courthouses with our Massachusetts Congressional Delegation in D.C. next week. President Carol Starkey and President-Elect Mark Smith are headed down as part of ABA Day, where they will be advocating for civil legal aid through federal funding of the Legal Services Corporation and for increased access to legal services for homeless veterans.

Stay tuned for updates on the BBA advocacy in Washington!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Budget Update: House Ways and Means Proposes FY18 Budget

As we’ve reported, BBA advocacy on the Budget for FY18 is now in full gear. This means we’ve been keeping a close watch on all budget-related happenings, and on Monday the House Ways and Means Committee released their $40.3 billion proposed budget for Fiscal Year 2018 (FY18), which begins on July 1.

With this release, members of the House are gearing up for a busy few weeks, as they will file and debate proposed amendments before the final House budget is passed. Then, it’ll be the Senate’s turn to propose, debate, and pass their own version of the budget. After that, a conference committee will attempt to reconcile the differences in the two budgets, and once approved by both chambers of the Legislature, the Governor has ten days to review and sign it. The Governor cannot add additional items but can veto or reduce particular line-items or veto the entire budget. The House and Senate can then, with a two-thirds roll-call vote in each chamber, vote to override any vetoes.

The House Ways and Means Committee proposed budget contains some significant departures from the Governor’s budget, H.1, in the areas that we’ve highlighted as our state funding priorities, including:

MLAC

As the largest provider of funds for state legal-services agencies, the Massachusetts Legal Assistance Corporation (MLAC) is a crucial piece of providing access to justice for Massachusetts residents. The Governor’s proposed budget called for only a 1% increase in the MLAC line-item, leaving the proposed appropriation at $18.18 million. This $180,000 increase is far below the BBA-supported ask of a $5 million increase that would provide for a $23 million MLAC line-item.

The House Ways and Means Budget recommends an increase of $1.5 million for the MLAC line-item to a total of $19.5 million. This moves MLAC a significant step closer to the $5 million request and will allow civil legal aid programs to take on more than 2,000 new cases.

In the words of Executive Director Lonnie Powers, MLAC is “incredibly pleased that the House Ways and Means Committee recognizes the role that civil legal aid funding plays in promoting equal access to justice for low-income residents of the Commonwealth.” Notably, House Ways and Means Committee Chairperson Brian Dempsey specifically mentioned the inclusion of MLAC in his letter explaining the budget, highlighting it as part of the House’s own commitment “to protecting and providing for [the] Commonwealth’s most vulnerable residents.”

We join MLAC in expressing gratitude that the House Ways and Means Committee continues to recognize and value the importance of civil legal aid. As BBA President-Elect Mark Smith, of Laredo & Smith, was able to relay at a legislative briefing last week, and as we have expressed consistently over the past years, civil legal aid is not only necessary to ensure access to justice, it is also a smart investment that offers many economic benefits to the state.

Overall, this is undoubtedly good news for civil legal aid in Massachusetts, but given the shaky position of the federal budget and President Trump’s proposal to zero-out funding for the main federal funder of civil legal aid, the need for more state funding for MLAC is still critical. An increase of $1.5 million is a good start, but even with that, the state will still be forced to turn away the majority of eligible people who need legal assistance.

Fortunately, Representative Ruth Balser filed an amendment (#822) on Thursday to increase the House Ways and Means Committee recommendation by an additional $1.5 million, bringing the total proposed appropriation to $21 million. As the house budget debates begin, it is crucial that your representatives know how important civil legal aid is to you.

You can contact them now, using this easy tool from our partners at the Equal Justice Coalition (EJC), to ask them to co-sponsor the amendment. If you want to reach out in person or on the phone, you can find your representative here, get guidance from these talking points and resources, and listen to the BBA Issue Spot Podcast with chair of the EJC Louis Tompros for a primer on how to talk to your legislator (especially about civil legal aid).

Trial Court

Adequate funding of the Trial Court, another BBA priority, is necessary to ensure the continued efficient and accessible functioning of our judicial system. The Governor’s proposed budget recommended a 1% increase for the Trial Court, for a total appropriation of $646.8 million. Mostly because of an $11.7 million judicial pay increase that passed after the Governor released his budget in January, this now falls below the Trial Court’s revised funding request of $661,368,224 for FY18.

In more good news, the House Ways and Means Committee recommendation specifically provided for these pay raises in full, as the line-item related the payroll costs of the justices in the seven departments of the Trial Court (0330-0101) moved from $58.5 million in the Governor’s recommendation to $70.3 million. By including this increase, the Committee will allow the Trial Court to continue the gains it has made in recent years on working smarter and getting more done with less money and less staff. Ultimately, this will help to ensure that the Trial Court remains effective and accessible for all Massachusetts residents.

Despite this good news, there was one significant Trial Court line-item missing entirely from the House Ways and Means recommendation, which brings us to…

Statewide Expansion of the Housing Court

For the past few years, we’ve been discussing the reasons why statewide expansion of the Housing Court makes sense. Currently, about one-third of the state lacks access to Housing Court and the benefits that come along with it, including the judges’ expertise in all housing matters, the availability of Housing Specialists who can facilitate settlements and help parties avoid expensive litigation costs, and programs like Lawyer for the Day, which assist pro-se litigants and as a result preserve judicial resources and ensure the efficient operation of the Court.

In an important step, the Governor’s budget recommended $1 million for the expansion. After the release of the Governor’s budget Representative Chris Walsh sent a letter, signed onto by 42 other Representatives, to the House Ways and Means Committee, urging them to include the full $1.2 million needed for successful initial expansion in their FY18 budget proposal. Unfortunately, the Committee removed the Housing Court Expansion line-item entirely.

However, the Housing Court Expansion line-item can still be included in the Senate budget, so now is the time to let your Senator know about the importance of allocating $1.2 million for this expansion. Additionally, two bills, one in the House and one in the Senate, have  been filed to advance housing court expansion, so you can urge your legislators to support this legislation to ensure that nearly one-third of the state is no longer excluded from the benefits of the Housing Court. Make sure to check out these resources and tips in our how-to-talk-to-your-legislator podcast!

As outlined above, there is still a ways to go in the budget process, which means there is plenty of time left for the BBA, and all of you as individuals, to advocate for adequate funding to ensure that Massachusetts is able to provide access to justice for all its residents. Keep watching this space for more news on budget developments and how you can get involved!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

With legislative committee hearings picking up steam of late, the 2017-18 legislative session is underway in earnest now, and we were at the State House for two important events this week.

The session technically lasts for two years, but the critical work generally must be accomplished by July 31 of the second year, as that’s the last date for formal meetings of the two houses in full.  After that, until the new Legislature is sworn in the following January, only informal sessions are conducted, with just a few representatives attending—any one of whom can individually block a bill from passing.  Thus, only those matters considered non-controversial are taken up.

The first couple of months of the session are spent on bill-filing (legislators must file bills by mid-January for them to be automatically admitted); populating the several dozen House, Senate, and joint committees; assigning those thousands of bills to the respective committees; and scheduling of hearings by the newly-appointed committee co-chairs (one from each house on the joint committees).

All bills that are duly admitted must get a public hearing before the committee to which they’ve been assigned.  Most often, because of the large number of bills on each committee’s docket, the hearings cover many bills at once.  Any member of the public can come forward to offer testimony on one or more bills, and although witnesses are asked to keep their statements brief, the hearing continues until all have been heard.

This past Monday, the Revenue Committee met for its first public hearing of the new session, and one of the BBA’s bills was on the agenda: House Bill 2645 (H. 2645): An act to continue tax basis rules for property acquired from decedents, filed on our behalf by Representative Alice H. Peisch.  It’s a complicated issue, to be sure, but fortunately, we had George Cushing, of McLane Middleton, on hand to help break it down for committee members—and within the three-minute time limit even (not counting follow-up questions from the panel)!

Without getting bogged down in the details, there were changes made to the federal estate tax several years ago, and while Massachusetts made some changes to its estate tax in response, the net result is that beneficiaries of decedents who passed away in 2010 will not get the benefit, which others do, of a “step-up” in the basis of the property they inherit (say, a home, a small business, or equities).  That means that when they sell that property down the road, perhaps many years later, they will be taxed on the capital gain not since the inheritance but rather since the decedent made the original purchase.  And if that purchase was well before their death in 2010, the difference could be not only unfair but substantial as well.

This unusual situation has led to confusion and differing interpretations among practitioners, thus creating unnecessary uncertainty.  We are seeking to provide that clarity by eliminating the anomaly that this hidden double tax represents, restoring the status quo ante, in which successors to decedents’ property get enhanced basis, but the property is subject to the Massachusetts estate tax.  Individuals who inherited property from those 2010 Massachusetts decedents will be authorized to use the federal adjusted basis (generally the value at death), as determined under the federal rule that applied in 2010 only, if the carry-over basis regime was not elected for federal tax purposes.

George Cushing, testifying on behalf of the BBA, before the Legislature’s Joint Committee on Revenue, April 3, 2017

The good thing about this first Revenue Committee hearing is that, by design, all the bills heard were approved by the Committee in the last session.  We hope that our bill will be among those reported favorably again—and that we can push it on for floor votes in each chamber this time.

Those votes would likely happen farther into the session.  For now, the biggest item before both houses is the development of the Fiscal Year 2018 (FY18) budget.  As we’ve noted, the Governor has already filed his proposal for spending the $40+ billion the state expects to take in next year.  Before FY18 begins on July 1, the two chambers will (we hope) come together on a budget package to send back to the Governor—which he may then accept as is, or (more likely) will mostly approve but send back with targeted cuts and some suggested changes.

The next big step in that process takes place this coming week, with the House Ways & Means Committee formally submitting its version of the budget for deliberation by the full House over the rest of the month.

One of the BBA’s biggest priorities, in this or any other year, is funding for civil legal aid in the Commonwealth, which is primarily provided by the Massachusetts Legal Assistance Corporation (MLAC).  MLAC, in turn, receives the bulk of its resources through an appropriation in the state budget.

Our commitment to this issue is reflected by the establishment of a BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, and our adoption of the Task Force report’s primary recommendation, that MLAC funding be increased by $30 million over three years.  Since the report’s release in 2014, state finances have hit a prolonged rough patch in which revenue has consistently missed targeted levels, and despite broad and deep support from Massachusetts legislators, we’ve fallen short of that goal.  Still, the Legislature and the Governor have come through with a 20% increase for MLAC across the last two years, to $18 million in FY17, even as overall spending has grown at a much lower rate.

This year, we are advocating for a $5 million increase in MLAC’s line-item.  Our efforts on civil legal aid are in conjunction with the Equal Justice Coalition (EJC)—a joint partnership of the BBA, MLAC, and the Massachusetts Bar Association—and to help spread the message about civil legal aid on Beacon Hill, and grow our support even further, the EJC held a briefing earlier today (Thursday) for elected representatives and their staffs.

The BBA’s President-Elect Mark Smith, of Laredo & Smith, took part in a panel discussion, to help educate the dozens of State House denizens in attendance.  In particular, Mark underscored both the report’s finding that investment in civil legal aid produces a positive return on investment for state coffers, and the BBA’s continued commitment to fighting for that full $30 million increase in state funding for civil legal aid—even if on-going budget constraints mean that it will take longer to get there than we, or the Legislature, would like.  (You can get more info about that funding here.)

 BBA President-Elect Mark Smith speaking at a State House briefing
on funding for civil legal aid, April 6, 2017

And with the White House recommending that Congress zero out funding for the Legal Services Corporation (LSC), which distributes an additional $5.2 million to providers in Massachusetts, our support from the Legislature at home may be tested even further.  Although the LSC money is independent of the state-level appropriation to MLAC, we would nevertheless certainly feel that loss here, as it represents more than 20% of the total funding for legal services in the Commonwealth.

So as we stay on top of the budget process at the State House—and keep you updated on it—we’ll also have one eye cast on the Capitol in DC.  We’ll be headed that way to make the case for the LSC, and civil legal aid in general, as part of the American Bar Association’s annual ABA Day lobbying event toward the end of April.

More on that to follow in this space … In the meantime, check out our four different podcasts relevant to the larger issue:

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Budget Advocacy for FY2018

With the House Ways and Means Committee set to release their budget recommendation around April 12, the BBA is ramping up our own budget advocacy, calling for adequate funding for the Massachusetts Legal Assistance Corporation (MLAC) and the Trial Court, including statewide expansion of the Housing Court, and help for the Committee for Public Counsel Services (CPCS) in meeting their constitutional mandate to provide legal representation to the indigent. This week, we’re sending a letter to the Chair of the House Ways and Means Committee, Brian Dempsey, explaining why adequate funding in these areas is necessary.

Below, we offer an update on our budget priorities and share how you can get involved:

MLAC

Funding for MLAC and civil legal aid is as crucial as ever because legal aid directly touches so many of the biggest social issues impacting residents of the Commonwealth today, including homelessness and emergency shelter, immigration, domestic violence, and the opioid crisis. MLAC projections reveal that in 2017, MLAC-funded legal aid programs will receive over 89,500 requests for legal services. And, as indicated by the findings of the Investing in Justice Report by the BBA Statewide Task Force to Expand Civil Legal Aid, providers will be forced to turn away nearly two-thirds of those requests from qualified applicants as a result of a lack of resources.

These projections, of course, do not take into account the recent threats to federal civil legal aid funding. President Trump’s first proposed federal budget calls for the complete elimination of the Legal Services Corporation (LSC) and its $385 million in federal appropriations for civil legal aid. At the state level, this would mean MLAC would lose more than $5 million in federal funding and nearly 26,000 low-income Massachusetts residents would be left without legal assistance. Plus another $4 – $5 million in federal funding for civil legal aid would be lost by other programs, making the total civil legal aid funding lost in Massachusetts close to $10 million. The projected demand of 89,500 cases would likely rise significantly as well if that federal budget were enacted, as other social support services are likewise at risk of losing federal funding.

(You can learn about the federal budget and budget advocacy at the federal level by listening to this Federal Budget Process 101 podcast, and our earlier podcast on the state budget process focused on civil legal aid in particular.)

As we’ve reported many times before, the Investing in Justice Report also found that civil legal aid is a smart investment as it saves the state money on “back-end” costs such as emergency shelter, foster care, and health care. In fact, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

The BBA supports MLAC’s ask for a $5 million increase in funding, for a total of $23 million in the FY18 budget, which would allow MLAC-funded civil legal aid programs to open at least 4,000 new cases, assisting an estimated 10,300 additional low-income clients and their family members. Be sure to check out MLAC’s helpful issue-specific breakdowns on the importance of legal aid in Housing, Employment, Immigration and Domestic Violence cases. We hope that you will join the BBA in supporting civil legal aid by reaching out to your State Senator and Representative to ask them to support MLAC’s budget request. If you don’t know your legislator, look them up here, and if you’re not sure what to say, refer to these handy talking points and keep an ear out for a future Issue Spot Podcast on How to Talk to Your Legislators.

Trial Court

The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY2016 staffing and a 19% reduction since FY02. Despite these efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years.

As we’ve outlined, the Governor provided for about a 1% across-the-board increase in Trial Court appropriations, for a total of $646.8 million, which was slightly less than the court’s original maintenance budget request of $649.5 million but quite short of the revised request that accounts for the $11.7 million in pay raises that must be implemented as a result of the pay package that passed earlier this year. The Trial Court’s revised funding request for FY18, $661,368,224, would support a number of modules necessary to maintain a well-functioning court system, from IT updates to programs related to Alternative Dispute Resolution and Transition Age Probation. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

Statewide Housing Court

An especially striking example of the Trial Court’s work to improve both access and efficiency is the plan to expand Housing Court jurisdiction to the whole state. As we’ve mentioned in the past, Housing Court offers a number of key benefits, including operating as the only forum in the Commonwealth capable of handling all housing matters, from code enforcement to eviction proceedings, on a daily basis. Housing Court judges are exceedingly well-versed in all aspects of housing law, an area that can be quite complex, and have the specialized expertise to analyze federal, state and local laws on housing. Additionally, parties in the Housing Court have access to Housing Specialists, who mediate cases, facilitate settlements, and even provide on-site reviews to resolve issues with housing conditions. This, and programs like Lawyer for the Day, also make Housing Court especially adept at handling pro se litigants.

Currently, about one-third of the State does not have access to Housing Court, meaning litigants in those areas must take their matters to District Court, where they wait in line behind a full range of civil and criminal cases and eventually appear before judges who hear only an occasional housing matter. Some municipalities outside of Housing Court jurisdiction find that it’s not always worth sending code-enforcement officers into District Court because of the necessary time commitment. Parties also lack access to the Housing Specialists and therefore may miss an opportunity to settle and avoid the need, and expense, of trying the matter in court. In FY16, there were 27,487 eviction cases filed in the Housing Courts and a statewide expansion would allow the Court to increase its eviction caseload by approximately 6,000 cases.

Plus, the Housing Court is a model of efficiency, featuring the lowest cost per case of any Trial Court department. The Housing Court also offers programs like the Tenancy Preservation Program (TPP) – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping in preventing homelessness. Currently, conservative estimates show that the TPP saves the state from spending between $4 million and $8 million in shelter costs annually, and if Housing Court is expanded statewide, the TPP could save the state an additional $1.8 million.

While the $1 million earmarked to cover the expansion in the Governor’s budget is a good start, an allocation of $1.2 million would ensure the successful statewide expansion. Earlier this month, Representative Chris Walsh sent a letter to the House Ways and Means Committee, signed onto by 42 other Representatives, urging them to include the full $1.2 million in the FY18 Budget. In addition, Senator Spilka and Representative Walsh have refiled bills, both referred to the Judiciary Committee, for the Housing Court expansion.

If you want to join the BBA in advocating for the statewide expansion of Housing Court, refer to these resources and reach out to your legislators! Listen up for a future podcast on the Housing Court where we’ll take you behind the scenes with a visit to Lawyer for the Day and a conversation with a Housing Court Judge.

CPCS

As the agency responsible for representing those unable to afford an attorney in all matters where the right to appointed counsel attaches, CPCS plays a huge role in our justice system. The way that their state funding is appropriated adds to that burden, requiring them to seek additional money each year to cover shortfalls.

This year, CPCS is seeking $244 million to provide maintenance-level services in the coming year, plus $14.3 million to cover additional initiatives, with most of that earmarked for much-needed increases in the hourly rates paid to private assigned counsel, which have not been changed in 12 years, and increases to the base salaries of CPCS staff attorneys, as recommended in the recent report of a gubernatorial commission (on which the BBA sat).

We encourage you to contact your elected representatives on Beacon Hill regarding all of these BBA budget priorities. As noted above, we’ll be posting a podcast shortly on How to Talk to Your Legislators.

We’ll be checking in with more budget updates as the process unfolds, and if you need a refresher on the budget process generally, head over to our Geeking Out on the State Budget Podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

Issue Spot Podcast Episode 4: Gender Identity and Public Accommodations in Massachusetts

At a BBA-hosted event held on March 8, an expert panel discussed a recently-enacted law—which the BBA supported—prohibiting discrimination on the basis of gender identity in places of public accommodations.  Jill Zellmer (Tufts University), Mason Dunn (Massachusetts Transgender Political Coalition), and Catherine Reuben (Hirsch Roberts Weinstein), offered insight into the issues addressed by the law, dispelled common misinterpretations, and informed attendees on what “public accommodations” does – and doesn’t – include.

Mason Dunn, MTPC’s executive director, explained that a person’s sex is determined biologically, but gender is more complex. He also spoke about the importance of the prior transgender-rights law, adopted in 2011, which barred discrimination on gender identity in a variety of areas—but not public accommodations, which were left out until 2016.

What does the new law cover?  Attorney Catherine Reuben provided some examples, including colleges and universities, municipal-run facilities, and some business offices. Reuben added that transgender discrimination violates Title VII, and although the new Administration has withdrawn an advisory letter from the Obama Administration saying that transgender discrimination violates Title IX, the case law still supports that view.

Jill Zellmer, from Tufts’ Equal Opportunity Office, offered practical guidance on what schools and other places of public accommodation can do to increase inclusion.  She advises facilities to consider creating or reconfiguring bathrooms or changing rooms, for example, that are both gender-neutral and can serve people in wheelchairs—complying with two sets of regulations at once.

But what if a facility lacks the capacity, or the money, to create an entirely new set of gender-neutral accommodations?  Zellmer counseled that users should choose the option they feel the most safe and comfortable with, and the facility should do the best they can, while taking into account the individual concerns of users.  “It’s all about the interactive dialogue,” says Reuben, as is the case with the Americans with Disabilities Act.

What Will Become of Your Digital Assets?

If you’re reading this, that’s a good indication that you have an e-mail account.  You probably have a number of other on-line accounts, too—Facebook, Twitter, Instagram, and so on.  You may conduct a great deal of business exclusively on-line as well.  Perhaps you have money saved with a bank that exists only on-line, or you may have chosen to receive financial statements only via e-mail.  But have you given much thought to what will become of all these electronic communications and other digital assets (and they really should be thought of as assets) after you die or become incapacitated?

Chances are you haven’t … unless you’re a trusts-and-estates practitioner, in which case you can’t help but have noticed the lack of guidance on this issue from either the Legislature or the courts—even as we’ve come to live more and more of our lives “in the cloud,” so to speak.  Few decedents leave clear guidance as to their wishes regarding their digital assets, and policies are varied and often difficult for users to find (if they even exist) among the companies that act as custodians for on-line accounts.

All of this adds up to a growing problem, but one that the Uniform Law Commission set out to address by promulgating the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2016.  This week, the BBA Council, acting on the recommendation of our Trusts & Estates Law Section, voted to endorse that Massachusetts adopt RUFADAA.

Joe Bierwirth, of Hemenway & Barnes, presented the proposal to the Council alongside his Trusts & Estates co-chair, Andy Rothstein of Goulston & Storrs.  “This is an area of the law where we very much need some guidance, given the absence of statutes or case law,” Bierwirth told Issue Spot.  “While practitioners may not agree 100% on the ideal approach, adoption of RUFADAA would be helpful in setting the ground rules.”

This proposed uniform act, which has already been adopted in some form by at least 24 other states, would modernize fiduciary law for the Internet age.  It would provide some clarity to the law concerning a growing problem, helping Internet account providers, users, their fiduciaries, and the courts by creating a formal process to determine a fiduciary’s authority to access digital assets, while allowing a user to have control over how that process will play out in their case.

Fiduciaries are the people appointed to manage our property when we die or lose the capacity to manage it ourselves.  The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

Nearly everyone today has digital assets, such as documents, photographs, e-mail, and social media accounts, yet fiduciaries are often prevented from accessing those accounts by password protection or restrictive terms of service.  Digital assets may have real value, both monetary and sentimental, but they also present novel privacy concerns.  RUFADAA seeks to balance the interests of fiduciaries in managing digital assets in furtherance of their responsibilities with the privacy interests of the user—and potentially those with whom they communicated—against unwarranted disclosure.

The bill does so in part by establishing a hierarchy to determine the preferences of the user: First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.

Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access.  Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.

The other way the bill balances interests is by granting a fiduciary full access to the content of electronic communications, in particular, only when authorized by the user, or when the user was the originator of the communication.  In other instances, unless a court orders otherwise, the fiduciary’s access is limited to a catalog of the communications, including such information as the addressee, sender, and date and time—rather than the full content.

It should also be noted that RUFADAA leaves unaffected other laws, such as fiduciary, probate, trust, banking, investment securities, agency, and privacy law.  Any fiduciary would still be prohibited from violating fiduciary responsibilities by divulging or publicizing any information obtained through RUFADAA.  It also does not grant a fiduciary access to an employer’s internal e-mail account that was used by the user.

One complication in all this has been the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act (18 U.S.C. Section 2701, et seq.)  Created in a pre-World Wide Web era, when few people held on-line accounts, that law set out to protect the content of a user’s electronic communications by prohibiting service providers from voluntarily disclosing a user’s content unless authorized, or under certain exceptions.  One of those exceptions has to do with “lawful consent” of the user, but the SCA is silent as to whether fiduciaries should be considered to have the consent of the users for whom they act.

As a result, the Supreme Judicial Court recently heard arguments in a case (Ajemian v. Yahoo!, Inc.) that pits Yahoo! against a user’s next of kin, who are seeking access to his Yahoo! account.  That case turns on whether the Act prohibits disclosure of the contents of a deceased e-mail account-holder’s account, including the communications contained therein, to the administrators of his or her estate—in this instance, represented by his two siblings, who argue that they should have access, under one of the Act’s exceptions, as their late brother’s agents.  Yahoo! asserts that the exception does not apply, and that the company is therefore barred from disclosing the contents of the e-mails at issue.

We will know soon what the Court decides, and how the Legislature chooses to address the issue (if at all).  But we appear to be a bit closer to finally having some clarity in this area.  In any event, as Trusts & Estates Section co-chair Andy Rothstein points out, “Regardless of what is ultimately enacted, it’s simply good practice to include decisions about digital assets as part of the estate-planning process.”

—Michael Avitzur
Government Relations Director
Boston Bar Association

Recent Developments in the Law on Jurors

Sometimes a series of news items come across our desk in quick succession and we can’t help but see connections.  And sometimes, like the Globe’s sports columnist Dan O’Shaughnessy, we’re just trying to string together a number of random ideas on deadline.  In the hope that you’ll view this more in the first category than the second, here’s the scoop on three recent developments regarding juries:

 

Racial Bias in the Jury Room

In a case that tested the sanctity of juror deliberations, the U.S. Supreme Court ruled in Pena-Rodriguez v. Colorado that a defendant could seek a new trial based on a showing that one of the jurors who convicted him was racially biased, even though this information emerged from the jury room rather than voir dire.  The 5-3 decision, released on March 6, held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the common-law no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury-trial guarantee.

Jury deliberations are presumed to be secret, and jurors generally cannot testify after a verdict that improper considerations had swayed the jury.  Over the years, that rule has been codified in state and federal rules of evidence, but it falls short of a blanket prohibition on piercing the veil.  In fact, juror testimony was already permitted to show that (1) the jury was given improper information from outside about the case, (2) someone tampered with the jury with bribes or threats, or (3) someone on the jury wrote down the wrong verdict on the official form.

The facts in Pena-Rodriguez are troubling and disheartening, to say the least: After the defendant was convicted of a sex offense, two jurors came forward to allege that another juror had injected into deliberations his own opinion—as a former police officer, no less—that the defendant must be guilty of a sex offense “because he’s Mexican, and Mexican men take whatever they want”—and that that “nine times out of ten,” Mexican men are guilty of “being aggressive toward women and young girls.”  Nevertheless, following the Colorado rule, the trial court refused to hear the evidence, and an appellate court affirmed the conviction.

In previous cases, the Court had declined to allow testimony from former jurors regarding either fellow jurors’ drug and alcohol use or their lies during voir dire about impartiality.  Here, though, the Court ruled that racial animus is different.  Writing for the majority, Justice Anthony Kennedy called it “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice,” and one that “implicates unique historical, constitutional, and institutional concerns.”  Thus, a “constitutional rule that racial bias in the justice system must be addressed … is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”  The defendant was granted a new trial.

 

Trial Judge’s Discretion on Peremptory Challenges

Meanwhile, the Supreme Judicial Court of Massachusetts (SJC) issued a decision on February 28 in the closely-watched case of Commonwealth v. Oberle (SJC 12149).  A unanimous high court let stand a conviction in spite of the defendant’s claims that the trial judge had improperly denied his use of a peremptory challenge.

The defendant faced charges of domestic violence against his girlfriend.  Seven of the first eight venire members called for individual voir dire were women.  After defense counsel exercised his third peremptory strike, all to exclude women, the trial judge sua sponte found a pattern of discrimination and determined that the defendant could not justify two of his three challenges.  When counsel next used a peremptory strike on a female prospective juror, the judge disallowed it, even though the juror had specialized training in detecting and reporting domestic abuse and had done so on three occasions.  In response to counsel’s articulation of this rationale, the judge decided, without further explanation, that this rationale was a pretext, and the juror was seated notwithstanding the defendant’s objection.

The case presented two questions regarding voir dire: What standards, if any, govern a judge’s finding of a pattern of discriminatory strikes early in voir dire when all but one potential juror called for questioning are part of the same discrete group, and that group comprises half the venire; and what restrictions, if any, the Supreme Court’s recent decision in Foster v. Chatman places on a trial court’s authority to decide that an unquestionably adequate, group-neutral explanation for use of a peremptory challenge is nevertheless a pretext for impermissible discrimination.

The SJC noted the trial judge’s “considerable discretion” in ruling whether a permissible ground for the peremptory challenge was shown.  After a prima facie showing of a discriminatory pattern is made, the party exercising the challenge bears the burden of showing a “group neutral” explanation for the challenge.  The judge then considers whether the explanation is both “adequate” and “genuine.”  The Court found that “unfortunately” no specific findings on whether the challenge was “adequate” were made here, but even assuming the explanation was adequate, “the judge was not thereby obligated to accept that explanation as genuine.”  Therefore, the judge did not abuse his discretion by finding a lack of genuineness and denying the defendant’s peremptory challenge on this basis.  The defendant’s claim was rejected, and the conviction was upheld.

 

Post-Verdict Juror Contact by Attorneys

Those two cases dealt with the end (deliberations) and the beginning (voir dire) of jury service, respectively.  But what about after jury service has concluded?  Specifically, when and how can a trial attorney make contact with jurors after they have rendered a verdict and been dismissed?  That is the subject of a new set of amendments to the M.R.P.C. as proposed by the Standing Advisory Committee on the Rules of Professional Conduct.  Specifically, the changes to Rule 3.5, which addresses post-verdict juror contact, would add a new subparagraph (4) to Rule 3.5(c), as well as replace Comment 3 to Rule 3.5(c).  The proposed amendments are ultimately meant to conform the rule to the SJC’s decision last year in Commonwealth v. Moore.

A little background is in order: In 2014, the BBA’s Ethics Committee submitted comments to the Standing Advisory Committee on its then-proposed amendments to Rule 3.5, expressing support for the changes, which would permit post-verdict contact in the absence of a contrary order and subject to certain restrictions—but also noting that the rule might not immediately apply because of existing common law to the contrary.  The revisions to Rule 3.5 were adopted and became effective in July 2015.  But the Moore case, as anticipated by the Ethics Committee’s comments, raised questions about whether the amended rule effectively superseded common law, and if so, whether the rule allows for contact with jurors discharged prior to the effective date of the amendment.

Ultimately, the SJC held that the new Rule 3.5 did overrule the previous common-law rule requiring attorneys to seek the leave of court before post-verdict contact, but did not overrule other common-law principles, such as those limiting post-verdict inquiry of jurors to matters relating to extraneous influences.  The Moore court also offered guidelines for post-verdict contact, including a requirement of notice to opposing counsel before seeking juror contact.  The amendments to Rule 3.5 reflect this holding with new language preventing a lawyer from communicating with a juror after discharge if “the communication is initiated without the notice required by law.”  The proposed comments explain in more detail the specific notice requirements, outlining how much notice must be given and what content must be included.

Providing comments on these sorts of changes is an important service we provide to the court system.  Just last week, we wrote here about a series of comments we submitted recently.  And we are currently working to gather the input of our steering committees on not only the proposed rules on juror contact but also changes to the M.R.P.C. rule governing retention of client files.  Both are due on May 1, and we will follow up to find out what the final rules, as adopted by the SJC, ultimately look like.

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

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

February was a busy policy month here at the Boston Bar Association (BBA), as we submitted five sets of comments on proposed new rules and proposed amendments to rules. We’ve often highlighted the hard work of our Sections in submitting these comments. This process allows members to leverage their specific expertise and offer constructive feedback on items that will influence their own practice of law. The courts have long shown an interest in taking a close look at these comments, and the insights offered by the Sections are often reflected in the final iterations of the rules. In fact, keep reading to the end for an example of BBA Section concerns that were just addressed in a recently promulgated rule!

Last month’s BBA Section comment submissions included:

Board of Bar Overseers Proposed Rule Changes

                The Board of Bar Overseers (BBO) solicited comments related to amendments to Rule 3.18 and related rules on the conduct of adjudicatory proceedings. The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will now be reserved exclusively for Board members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

                The Ethics Committee and the Business and Commercial Litigation Section Steering Committee drafted the comments to the BBO, unanimously agreeing that the proposed rule changes were “welcome and necessary.” Paul Lannon, Partner at Holland & Knight and Chair of the Ethics Committee, noted that “[t]he BBO provides a vitally important service to the Massachusetts bar and the general public” and “[t]he proposed rule changes should significantly improve that service, especially with respect to motions for protective orders and discovery.” The Ethics Committee and Business and Commercial Litigation Section Steering Committee agreed that because hearing officers have less experience than Board members, certain motions, like those on protective orders and discovery, should be decided only by Board members. Hearing officers may hear only one or two matters in their tenure, so leaving motions that serve important public functions and have significant impacts to more experienced Board members is best.

Proposed Amendments to Superior Court Standing Orders and Rules

                The Superior Court invited comments on a range of proposed amendments to Superior Court Standing Orders and Rules, including the addition of a new section calling for a “Final Trial Conference Before Jury Trial” to Standing Order 1-88. In that conference, parties would discuss matters in the new Rule 6.2(a) that relate to a range of empanelment issues like the statement of the case to be read to the venire and the process and content of the judge’s intended voir dire.

                The Business and Commercial Litigation Section Steering Committee provided comments on the proposed Amendments to Standing Order 1-88, expressing that members of the Section were generally supportive of the proposed changes. Paula Bagger, of Cooke Clancy & Gruenthal LLP and a member of the Steering Committee, who was kind enough to present the comments to the BBA Council for their approval, noted the Steering Committee members “unanimously agreed that the formal addition of a ‘final trial conference’ in the Superior Court conforms the rules to an existing ‘best practice,’ which helps civil trials get started promptly and efficiently.”

                Given the new Superior Court Rule 6, members expected the final trial conference would allow for much of the foundation of voir dire to be set in the conference, and some members noted that many Superior Court judges already regularize many of the issues that would be addressed in this new process, but it will likely benefit litigants to have this process formalized in a final trial conference. The comments also addressed a potential ambiguity in the proposed requirement that parties submit a “final joint witness list,” and suggested that there could be a clarification that this does not authorize unilateral additions to a party’s witness list.

Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicited comments on amendments to Mass. R. Civ. P. 26(b)(5), which would make the Massachusetts rule on privilege logs the same as the federal rule. The current Massachusetts rule requires a log that presents certain information when a party does not provide, on the basis of privilege, otherwise discoverable information. Unlike the current Mass. Rule, the federal rule does not require a document-by-document log, though parties are still required to describe the nature of the material withheld in a manner that would provide the other party an ability to assess the merits of the reason for withholding the requested material.

                The Business and Commercial Litigation Section Steering Committee also offered comments on these amendments to Rule 26. Paula Bagger noted that “whether the rules should mandate the preparation of privilege logs turned out to be an issue close to the hearts of our Steering Committee of business litigators and generated active discussion. Our comments reflected both the views of the majority, which favored the proposed rule, and those who believed the present rule better reflects practice in our state courts.”

                Some members, for example, welcomed the change in the rule, noting that the current rule on privilege logs is often time-consuming, expensive, and even potentially creates a means for a party with fewer privileged documents to aggressively insist the party with more documents follow the rule completely or risk waiver. Others, however, felt the current rule, even if burdensome, offers more safeguards as it makes it more difficult to “slip something past” opposing counsel than would be the case with more generalized descriptions. They also acknowledged the benefits of harmonizing state and federal law but warned that certain key differences in practice, like the availability of early judicial intervention in federal courts, make the new rule less suitable to Massachusetts. Finally, other members noted the new rule could be improved by requiring accompanying information to be provided with the categorical description and clarifying that a judge can order production of a privilege log when a particular case or circumstance would benefit from it.

Proposed Amendments to the Mass. Rules of Civil Procedure Regarding Credit Card Debts

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure also invited comments on two new proposed rules related to actions for money damages against individuals arising from credit card debt. The proposed amendments were specifically meant to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Proposed Rule 8.1 would require plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Proposed Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1.

                The Bankruptcy Law Section offered comments on the proposed rules, expressing general support for the provisions and noting that the rules would help to address common abuses within credit card debt collection cases. The comments also raised one concern about the requirement that an affiant attest under oath that action is not barred by the statute of limitations, proposing that instead, perhaps the affiant could be required to attest the he or she believes after reasonable investigation that his or her client has a good faith basis for asserting the action is not barred by the statute of limitations.

Proposed Rules Governing Bail Magistrates and Bail Commissioners

                The Trial Court Bail Committee invited comments on proposed Trial Court Rules Governing Bail Magistrates and Bail Commissioners, intended to replace the 2014 Superior Court Rules Governing Persons Authorized to Admit to Bail Out of Court. The new rules would apply to all Clerks of Court, Clerk-Magistrates and Assistant Clerk-Magistrates who participate in the overnight bail process and Bail Commissioners, and remain similar in many aspects to the 2014 rules. The changes in Proposed Rule 14, however, were taken up by the Criminal Law Section Steering Committee.

                The Steering Committee comments noted that, overall, members of the Section believed the Proposed Rules represent a commendable effort to improve the process and quality of out-of-court bail determinations. However, some members expressed a concern over the lack of clarity as to whether the standards found in Proposed Rule 14 were fully consistent with applicable substantive law. The comments pointed out the specific provisions of the rule which may conflict with provided statutory and case law, suggesting that the Trial Court Bail Committee ensure these particular points were consistent with the relevant statutes and cases. Eric Haskell, of the Massachusetts Attorney General’s Office and the member of the Steering Committee tasked with drafting the comments, was pleased the Committee was “able to identify several specific areas where we believed the Proposed Rules could benefit from provisions” and “add value to these proposed rules.”

 

While we were busy preparing and submitting the comments above, the BBA also got word of a final order that reflected the concerns of past comments submitted by a BBA Section:

Parenting Coordination Standing Order

                On February 1, 2017, the Probate and Family Court promulgated the final Parenting Coordination Standing Order 1-17, related to the procedures and requirements for parenting coordinators either assigned by agreement between parties or appointed by the Court.

                Last year, the Family Law Section Steering Committee provided comments raising a number of concerns, including the uncertainty surrounding what happens when the parties disagree with a parenting coordinator, whether or not the Court has the power to grant the parenting coordinator binding decision-making authority without agreement of the parties, and what payment procedures apply if the Court appoints a parenting coordinator but both parties refuse to pay.

                Many of the concerns expressed in the comments were ultimately addressed in the final version of the Order. The Court clarified that parties always had a right to access the Court, even when they had submitted to the binding decision-making authority of the parenting coordinator. Additionally, the Order now provides that the binding decision-making authority of the parenting coordinator could apply only upon agreement of the parties and that a parenting coordinator could not be appointed by the Court if both parties refused to pay.

 

We look forward to being part of many more opportunities to comment this year (right now we’re gathering input on post-verdict juror contact and file retention) and will keep you up to date on the important insights and hard work coming out of our Sections.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Chief Justice Gants Addresses the BBA Council

The Chief Justice of the Massachusetts Supreme Judicial Court (SJC) was once again kind enough to address the BBA Council at its most recent meeting. He spoke on a number of important issues facing Massachusetts, including criminal justice reform, the state budget, and civil legal aid.

From his appointment to the Superior Court two decades ago, to his appointment as Chief Justice of the SJC in 2014, and beyond, Chief Justice Gants has consistently shown his analytical rigor and intellectual scrupulousness. In addition to his unmatched legal analysis, he is well-known for his community outreach, regularly taking the time to address the public about the Massachusetts court system and the real impact it has on individual and community experiences.  Chief Justice Gants also has a long history of offering numerous platforms for discussion and critical insights on many of the causes near and dear to the BBA, including access to justice and pro bono legal services. He was a member of the SJC’s Standing Committee on Pro Bono Legal Services and also served as co-chair of the Massachusetts Access to Justice Commission from 2010 to 2015. The BBA recognized Chief Justice Gants with the Citation of Judicial Excellence in 2012.

At the Council meeting, Chief Justice Gants spoke on:

Immigration Issues

Chief Justice Gants began by thanking BBA President Carol Starkey, and the BBA as a whole for the recent leadership shown in response to current events impacting immigrant communities. He noted that complex issues like these will likely not be going away anytime soon, and he is hoping to see members of bar associations stepping up and remembering why they chose to enter the legal profession in the first place. The Chief Justice also pointed to an instance in Texas where a woman was detained by ICE while filing for a protective order from her allegedly abusive boyfriend, noting that the courts in Massachusetts will be keeping a watchful eye on these issues. He remarked that even though these events may be happening far away, the impacts can still be experienced by Massachusetts residents and Massachusetts courts, potentially creating a chilling effect that discourages victims from pursuing redress. Once again, he noted how important it will be for lawyers, and specifically bar associations, to step up and reach out. Underserved populations need this outreach to ensure they understand the availability of legal assistance and know when and how to access their rights and seek assistance and justice through the courts. For its part, the court system has been sending the message that all are welcome and no one’s status will be questioned.

Criminal Justice Reform

Chief Justice Gants next discussed the Council of State Governments (CSG) report on criminal justice reform, which had been released earlier that morning.  Check out last week’s Issue Spot for our full run-down of the released report and a BBA event with an all-star panel discussing the final recommendations.  Similar to his last speech to the Council where he compared the budget process to a baseball game, Chief Justice Gants employed a sports analogy to describe the report, comparing the CSG process and report to a football game. He stated that the final report and proposed legislation were the equivalent of a first down: it advanced the ball down the field and did not require the team to resort to a punt. However, the CSG process did not produce a touchdown, so there is still more work to be done on criminal justice reform.  Overall, the Chief Justice saw the CSG procedure as a great learning opportunity, especially important as the previous nationwide reluctance to pursue substantial criminal justice system reform is beginning to shift and more and more other states are comprehensively addressing these issues. Finally, he provided that the CSG report and proposed legislation is particularly strong in certain areas, including its findings on wrap-around services and the specific reentry needs of 16 to 24 year olds that work to reduce barriers to housing, employment, and education. On that last point, the court system is developing a pilot project dedicated to those young people.

The Budget

Next, the Chief Justice addressed budget issues, beginning with a discussion of Governor Charlie Baker’s allocation of $1 million for a state-wide Housing Court. He noted that currently only two-thirds of the state has access to the Housing Court and that it “just makes sense” to extend access to the entire state. As the BBA has written in the past, proponents of a Housing Court expansion point to the expertise of the judges who are equipped to handle the range of housing issues, the specialists at Housing Court who offer mediation and save potential litigants time and money, and the special services in place that make the Court adept at serving pro se litigants and handling municipal code enforcement.  Additionally, the Housing Court operates at the lowest cost per case of any Trial Court department, making it an efficient option. Make sure to keep an eye out for future BBA updates on this issue.

Chief Justice Gants also addressed the Trial Court’s budget prospects. As we outlined a few weeks ago, the budget process is only just beginning, but the Governor called for a 1% increase in appropriations for the Judiciary for Fiscal Year 2018.  Chief Justice Gants specifically spoke about the likelihood of an increase in Probation staff in light of the CSG report that will call upon more comprehensive supervision to ease reentry and reduce recidivism. He also pointed out that the increase provided in the Governor’s budget would not be enough to allow for an expansion in specialty courts, including Veteran’s Treatment Courts, Drug Courts, Homelessness Courts, and Mental Health Courts. Overall, the Chief Justice noted that BBA support would be crucial on these budget issues, and the BBA has a long history of offering that support.

Civil Justice Reform

The Chief Justice concluded his remarks by reminding members of the Council of the recently-created “menu of options” now available that give lawyers more practice options and allow them to craft their own case in a way that makes the most sense for the particulars of the specific situation.  Chief Justice Gants stressed, as he did previously, that these increased options will only work if lawyers choose to employ them. In many other jurisdictions, the use of these options is imposed by the court, but the Chief Justice is hoping that here, more lawyers will step up and pursue the options independently now that they have the choice.

As expected, the Chief Justice offered important insights into a range of issues, displaying both his impressive expertise and his constant passion for reform that will improve the efficiency, effectiveness, and accessibility of the Massachusetts court system.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

 

Let the Criminal-Justice Reform Debate Begin

After months of anticipation, the Council of State Governments’ Justice Center (CSG) finally released its report and recommendations on the Massachusetts criminal-justice system.  Eighteen months ago, the leaders of all three branches of government — Governor Charlie Baker, Chief Justice Ralph Gants of the Supreme Judicial Court, Senate President Stanley Rosenberg, and Speaker of the House Robert DeLeo — formally invited CSG to undertake such a review, and a Tuesday-morning press conference attended by all four leaders heralded the end product.

Governor Baker immediately filed legislation to implement some of CSG’s recommendations, while emphasizing that the full report represents a consensus among all the leaders, who collectively made up the steering committee that worked closely with CSG staff throughout the process — as did a broader working group of 25 additional stakeholders.  The legislation will be taken up by the Legislature, as will additional bills to address issues that were not included in the report.  Collectively, this criminal-justice reform debate will be one of the top priorities on Beacon Hill between now and the July 2018 end of this legislative session.

Look back at the July 2015 letter that started the review process — with Massachusetts now one of 26 states to have brought CSG in for their technical assistance and data-driven approach to help improve efficiencies and outcomes in criminal justice.  You’ll see that it was carefully crafted to achieve initial consensus among the signers, with language targeted at very specific aspects of the system and discrete goals for the project.  Here’s the key sentence:

“Without limiting the scope of your data analysis, we hope, looking at the data as a whole, to better understand how we can further reduce recidivism and enable successful re-entry, and whether we can further reduce our prison and jail populations through early release programs while ensuring appropriate punishment and preserving public safety.”

Reform advocates were concerned from the outset that the scope of the review would thus be too limited — in particular, that it would be focused on the so-called back-end of the system, recidivism and re-entry, to the exclusion of “front-end” issues such as diversion, bail, and sentencing.  As it turned out, there is indeed more or less a straight line from the request letter to the final report, which doesn’t extend the scope beyond what was initially proposed.  State leaders argue that this was the only way to achieve consensus, and that there will be time this session for both houses to consider the many legislative proposals for further action.

These proposals cover not only the three areas cited above but also issues like:

  • further reform of the state’s laws on criminal offender record information (CORI)
  • relieving the burden of fees and fines on defendants and ex-offenders
  • lifting or alleviating more of the hundreds of collateral consequences that are tied to criminal records and, like the above two, create roadblocks to successful reintegration after release from incarceration — or any involvement with the justice system, even short of incarceration — by making it difficult to secure employment, housing, government benefits, and so on
  • allowing greater opportunity to seek expungement of criminal records
  • providing a way for elderly or disabled inmates to obtain extraordinary release, as in the federal system
  • increasing the threshold for felony-level larceny, which has remained unchanged for decades, in spite of erosion by inflation
  • making parole a presumption to be denied only when justified

Despite growing political pressure, as it became clear that the report would likely hew to its original narrow scope, the report unveiled this week was silent on all of the above.  On perhaps the biggest such flash-point, efforts to roll back some of the state’s mandatory-minimum sentences, however, state leaders were quick to point to a recommendation that had not been publicly-broached before — one that would offer all inmates, including those serving mandatory sentences for certain drug offenses (not involving opioids, minors, firearms, or violence), a greater opportunity to accrue “earned time” for participation in programs designed to improve their chances of successful re-integration.  This would, in turn, reduce recidivism.

It gets somewhat complicated here, but basically, earned time will be available, within limits, to move up a DOC inmate’s parole-eligibility date.  Those who are not paroled and instead “wrap up” their sentences will also be released earlier based on earned time, but they will be under supervision for the remaining period of their sentences.  This addresses one key CSG finding — which was not exactly a secret beforehand: Too many inmates are serving out their sentences and being released directly to the street with no supervision — a recipe for unnecessarily high recidivism rates.  But it also addresses the concern that any mandatory post-release supervision program not have the effect of extending an inmate’s time within the system.

Many questions remain about this approach: Will it have the effect of reducing time served under mandatory sentences without actually changing the statutes that impose them?  Will prison programming be made available to meet the anticipated increased need that this change seeks to create?  Will judges modify their sentencing practices by reducing the use of “and a day” sentences — those in which the minimum is set at the mandated level but the maximum is only one day later?  (These are viewed by some as a judicial expression that the mandatory minimum in a given case is too high, but they also result in releases without supervision, because parole is not a real possibility.)

These contours of the debate to come at the Legislature were explored by an all-star panel at a BBA event held the day after the CSG report — with both praise for the final recommendations and some calls for further action on display from panelists, all of whom worked with CSG.  For his part, Michael O’Keefe, District Attorney for the Cape & Islands, argued that with incarceration rates near the bottom in the US, and continuing to decline, the CSG focus on recidivism — what he called the “weak point” in our justice system — was properly placed.  Massachusetts recidivism rates are in the middle of the pack, but we can do better, he argued, if we invest in programming and supervision.

State Senator Will Brownsberger, Senate Chair of the Legislature’s Judiciary Committee, told attendees that the system isn’t broken, yet it does create a footprint that’s too big.  He sees prisons and jails that are too full by historical standards, and in comparison to other developed democracies, and he wants to try to reduce collateral consequences as well.

To Randy Gioia, Deputy Chief Counsel of the Public Defender Division at the Committee for Public Counsel Services (CPCS), the CSG report creates a “once in a lifetime opportunity” to do something big on criminal-justice reform but won’t generate enough savings by reducing incarceration.  Those savings are needed, he says, to invest in the same high-risk communities that have been devastated by the upswing in imprisonment over the past several decades.  Only then will the cycle of recidivism be broken.

Former State Representative John Fernandes, recently retired as House Chair of the Legislature’s Judiciary Committee, pointed out that the report had to be as limited as it is, so that all participants could emerge pledging to see its recommendations through to execution.  The review, he said, “was never intended to change everything in one package.”  Nevertheless, it represents a first step that can be built upon later.

Lon Povich, Chief Legal Counsel to Governor Baker, noted that the Governor’s recent budget already provides $3.5 million to fund the first-year costs of implementing the report’s recommendations.  He’d like to see the CSG legislation passed soon, with further reform efforts taken up thereafter, and he particularly pointed to collateral consequences as an important area to work on in order to drive down recidivism rates.

Superior Court Judge Jack Lu took part in his role as chair of the Sentencing Commission, which is working on a rewrite of the state’s sentencing guidelines.  Those guidelines remain advisory, because they have never been enacted.  Judge Lu promised the Commission would offer “state of the art” data-driven guidelines but predicted that they would “move the needle” rather than call for sweeping sentencing changes.

Judge Paula Carey, Chief Justice of the Trial Court, praised the CSG’s work as an unprecedented cooperative effort by all three branches, resulting in a three-pronged approach going forward: legislative (in the form of the bill filed by the Governor), but also administrative and budgetary.

So implementation is now in the hands of the leaders who kick-started this effort a year-and-a-half ago.  How it plays out over the year-and-a-half (actually a little less) remaining in the 2017-18 session — and beyond — remains to be seen.  But with an internal working group already reviewing the CSG report and contemplating recommendations for reforms that would go further toward improving our system of justice, you can be sure the BBA will be a part of that debate.

—Michael Avitzur
Government Relations Director
Boston Bar Association