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

Debating Public Access to Court Records

You may have heard recently that the Trial Court held a public forum to solicit input regarding online access to court records.  This week, we present the story behind that event.

Historically, attorneys, pro se litigants, members of the press, and public were all able to access court docket information online at www.ma-trialcourts.org by requesting a username and password from the courts.  However, with the installation of the new www.masscourts.org program, there have been some limitations on this access.  The program initially required a Board of Bar Overseers (BBO) number to log in, meaning it was accessible only by attorneys.  However, as of earlier this month, two Superior Court counties, Middlesex and Barnstable, made their dockets publicly available on the MassCourts website.  In all other counties, as of the time of this post, access is limited to attorneys only, though the Courts have stated that they intend to expand full access statewide eventually.  The current access situation has created concerns, especially amongst members of the media, who have alerted the public.  The group tasked with creating a rule to address such issues, the Trial Court Public Access to Court Records Committee (Committee), responded, after 19 months of meetings, by announcing a public hearing for June 15.

The Committee is composed of 22 members and includes representatives from the Trial Court and all of its departments, as well as the Supreme Judicial Court, Appeals Court, and Probation Services.  As a number of individuals pointed out at the hearing, the Committee does not include anyone from outside the courts, such as members of the public, media, or bar.

The purpose of the hearing was to receive the views of interested individuals and organizations with regard to issues surrounding the public’s access to court case records, including their online availability.  The Committee promises to then consider these concerns when drafting a rule governing records access.  The BBA is particularly concerned about the limits to records access, especially the impact they will have on pro se litigants.  We submitted a letter to the Committee, noting our concerns and our hope to be a part of the continuing review process once a rule has been drafted.

On June 15, we attended the Committee’s hearing.  Twenty-three individuals and panels provided testimony that encompassed a wide range of ideas and positions.  But the main arguments discussed can be divided into two general camps – those in favor of broad access and those in favor of limiting access in certain instances.  Both sides have legitimate concerns, meaning the Committee has a tough task ahead of them.

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Broad Access

Those in favor of broad access noted that Massachusetts historically permitted online access to court records, and expressed the hope that the new policy would not be limiting.  They explained that a lot of case information is currently available at courthouses, and many felt that anything available there should also be online.  They argued that this would help the courts by lifting the burden on staff to provide visitors with paper files.  It would also help to provide a uniform process, as many offered anecdotes of widely differing policies by county or courthouse on accessing files at the court.  In addition, other states and the federal PACER online system provide broader access to court records and documents than Massachusetts.

A number of witnesses justified this request by noting that the media and public can serve as a check on fraud and corruption, and that everyone, from attorneys to pro se litigants to the public, deserves equal treatment.  Broad accessibility, they argued, would help facilitate court procedures by helping people access their dockets and schedules and would also help members of the public and media gather, compile, and disseminate useful data and statistical reports on the functioning of the justice system.  They countered fears of unintended negative consequences for litigants by putting the burden on attorneys to redact information and impound documents that could have negative implications or contain private information.

Limited Access

Those favoring limited access to online court records focused largely on those negative consequences the public sharing of case information can have, particularly for tenants, victims of domestic violence, and anyone with a criminal record.  For example, some landlords are said to use the system to search for prospective tenants’ names.  Even if an individual has gone to court only to force a landlord to fix a broken heater, or was merely named in a case against a roommate, they may be unfairly denied a lease.

Victims of domestic violence may be less likely to come forward if they know that potentially embarrassing details of their cases will be available online.  And if they do seek the help of the courts, putting their information online could jeopardize the safety of them or their children.  They may also face discrimination, especially in housing or employment.  The same may be true for criminal offenders whose case information would otherwise be sealed thanks to the 2010 CORI reform efforts.  Even though their records may no longer be available through official channels, witnesses expressed concern that their cases would always be available online once posted.  Many other types of cases can include sensitive mental health or financial information or highly personal family information that can be damaging if available publicly, or lead to identity theft or commercial uses by data brokers.

As a result, many called for safeguards such as the use of initials in place of party names, a protocol to correct errors, and resources devoted to assuring accuracy.  They were hesitant to place the burden on lawyers to redact and impound information because of fears that pro se litigants would disproportionately bear the consequences of a failure to do so.

In sum, the hearing provided a great opportunity for many people to be heard and for the Committee to gather valuable feedback on the issue before them and their process.  We look forward to seeing the rule they draft, and to continuing to be part of this process.  We will keep you updated on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Amicus Committee Program Year in Review

With our 2014-15 program year coming to an end, we would like to take a moment to reflect on the extremely productive past ten months for Ethics and Amicus, the two committees overseen by the Government Relations Department.  Both groups are comprised of hard working and highly-regarded attorney volunteers.  Steve Kasten and Ellen Messing co-chair the Ethics Committee, and Mark Fleming chairs the Amicus Committee.

Amicus Committee

The BBA files amicus briefs primarily on issues related to the practice of law or the administration of justice and accepts requests for such submissions through our website, which also lays out the detailed policy requirements.  We have a strong history of providing briefs on important issues, ranging from protecting marriage equality to defending attorney client privilege, and our arguments are often cited during oral arguments and in final decisions.

The BBA’s Amicus Committee had a busy program year.  They signed onto one brief, drafted an original brief in another case, and closely reviewed numerous submissions that ultimately didn’t make the cut for a host of reasons.

The Amicus Committee’s first brief this year was In Re Guardianship of V.V..  In this case, the petitioner was a young woman who originally sought to vacate a guardianship decree that had given sole custody of her child to her own grandmother.   The mother represented herself during the Probate Court proceedings, while her grandmother had legal counsel.  The state was not involved in this strictly private proceeding.  The underlying case was rendered moot when the child was returned to the mother before appellate review.  However, the case went forward because of the significant legal questions it raised, and the SJC requested amicus briefs.

The BBA signed onto a brief authored by a team from the Massachusetts Law Reform Institute, Russell Engler of New England Law Boston (and our task force on civil legal aid), and a group of Nutter, McClennen & Fish lawyers, including former BBA President Mary Ryan.  We were joined on the brief by a host of legal and social organizations, including the MBA, WBA, Greater Boston Legal Services.  The brief argued for a right to counsel appointments for indigent parents in private guardianship proceedings and quoted extensively from three BBA task force and working group reports, including our recent Investing in Justice report on civil legal aid.

The brief argued that appointment of counsel in these cases is required under the due process and equal protection provisions of the Massachusetts Constitution.  It also made policy arguments that appointing counsel in these cases promotes a sound child welfare system and follows the national and state policies for counsel appointments generally.  In addition, the brief pointed out the incongruity that in essentially identical cases where the Department of Children and Families is a party, the right to counsel already exists for indigent parents, so it makes little sense that they should be denied counsel when facing a private party.

Following oral argument in January, the SJC took the position, as the amicus brief argued, that a right to counsel exists in these cases.  The full decision is available here.  We were pleased to be part of the brief that contained the argument that ultimately carried the day and pleased that the SJC took a stand promoting access to justice.

The Amicus Committee also drafted a brief in the case of Wong v. Luu.  Though the facts are complex and often somewhat unclear from the record, the appeal 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 Asian food markets.  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 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.

Several of these other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached both 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.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC 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.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, of Sherin and Lodgen LLP, to draft the BBA’s brief.  The brief 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. In addition, it 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.

While we are still waiting on a final decision from the SJC, it is clear that our brief played an important role in oral argument as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and later the 10:00 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 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), the Superior Court still did not have standing to sanction the attorney for his actions.  Our brief and the appellant’s attorney argue that it does not.

We look forward to a final decision from the SJC and will keep you updated.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Ethics Committee Program Year in Review

The Ethics Committee took a leading role in two major court comment requests – the Massachusetts Rules of Professional Conduct and the Code of Judicial Conduct.  The revised rules of professional conduct are the culmination of months of consideration, revision, and even oral argument that began more than a year ago.  In July 2013, with the SJC’s permission, the SJC Standing Advisory Committee on the Rules of Professional Conduct (“SJC Committee”) published its proposed rules for comment.

Many of the proposed changes were based on the model rules proposed by the ABA Ethics 2000 Commission and the ABA Commission on Ethics 20/20.  The BBA’s Ethics Committee carefully reviewed the rules and composed six comments along with the BBA’s Bankruptcy Law Section, which were submitted to the SJC Committee in February 2014.  Following careful review of these and other comments, the SJC Committee submitted revised proposed rules to the Justices of the SJC on May 14, 2014.

In October, the SJC Justices announced their decisions regarding some rules and requested oral argument on certain issues for some others in December.  In late March, the SJC posted the revised MRPC online.  We were particularly pleased to see some revisions in line with the BBA’s comments.  Most notably, the BBA’s Ethics Committee encouraged adoption of Model Rule 3.5, lifting the old MRPC prohibition on all juror contact, even after the jury is discharged.  The new adopted rule follows this recommendation with significantly fewer limits on juror communication after discharge, barring contact only if the communication is prohibited by law or court order, the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

Another notable rule change in keeping with recommendations from the BBA’s Ethics Committee was incorporation of the ABA Model Rule into MRPC 7.2, deleting the requirement to retain advertising materials.  The old MRPC required lawyers to keep a copy or recording of all advertisements for two years after its last dissemination.  In their meetings, the Ethics Committee discussed the anachronistic elements of the old rule, and the challenges facing lawyers and law firms with web sites and social-media platforms.  The definition of lawyer advertising materials is broad enough to include web and social media communications, making it almost impossible to accurately keep such records.  The new rule is less burdensome and easier to follow.

Finally, the new rules reflect the Ethics Committee’s recommendation to include the “catch-all” category in MRPC 8.4(h), which states that it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on his or her fitness to practice law.”  The Standing Advisory Committee had proposed deleting that language.  While the Ethics Committee expressed concerns about the vagueness of this standard and the potential for its inconsistent application, Committee members were more troubled by the thought that egregious attorney conduct that was not a crime or fraud and not otherwise in violation of a provision in Rule 8.4 would therefore go undisciplined because it was not specifically included in the definition of professional misconduct.  Their comments also noted that the Committee was unaware of any reported abuse of this provision, and that the facts of reported cases under this provision merited discipline.

In late May, the Ethics Committee held its first CLE, breaking down these rules changes to a packed house in advance of the July 1 effective date.

The Ethics Committee also took a leading role in considering the proposed revised Code of Judicial Conduct.  Posted in late March, the SJC Committee to Study the Code of Judicial Conduct (SJC Committee) drafted a near complete overhaul on the rules governing judges’ conduct.  In late April, the BBA was treated to a comprehensive briefing on the revisions by Justice Cynthia Cohen, chair of the SJC Committee, SJC attorney Barbara Berenson, and SJC Committee and BBA Council member Lisa Goodheart.  Their in-depth explanation of the revisions paved the way for the BBA to provide meaningful comments.

The proposed revised code generally follows the organization and many of the provisions of the 2007 ABA Model Code.  This improves clarity, making the proposed revised code easier to follow and allows Massachusetts to consider interpretations already completed by other states when addressing any potential problems or loopholes.

The revised provisions are broken down into canons, rules, and comments.  Canons are overarching principles – the lens through which the code should be understood.  The most important is Canon 1, containing the so-called “three I’s” – “a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”  There are too many changes to name them all, but in general, the proposed revised code endorses judicial outreach and civic participation and recognizes many roles for judges, including working in specialty courts, assisting pro se litigants, acting as resources on court administration, and as liaisons to the bar and community.

In late May, the BBA, along with the Ethics Committee and the Delivery of Legal Services and Litigation Section Steering Committees, submitted comments to the Committee.  We are pleased to have taken part in this process and look forward to seeing the final revised Code and sharing it with you.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

What Caused the Crime Decline? (Hint: Not Mandatory Minimums)

As we’ve noted here previously, the BBA has a long-standing position opposing the imposition of mandatory minimum sentences.  This Tuesday, June 9th, we’ll have the opportunity to express that opposition to members of the Legislature’s Joint Committee on the Judiciary, as they hold a public hearing on a variety of bills dealing with mandatory minimums.

First, though, in the run-up to that hearing, an important event was held this past week at the State House that also relates to the issue.  The Criminal Justice Reform Coalition hosted a public forum to explore possible reasons behind the historic decrease in crime the nation has experienced over the past two decades, with rates of both property and violent crime roughly half what they were in 1990.

As you may know, this decrease has coincided with an equally-dramatic increase in the populations of our state and federal prisons and jails – up 61% in that same time-frame (though it has leveled off since the turn of the century).  It is tempting, perhaps even instinctive, to draw a straight line between the two – and indeed many have argued that by locking away more individuals, we have prevented them from committing crimes that would otherwise have taken place … case closed.  That may seem like a common-sense interpretation.  But the evidence strongly suggests otherwise.

At this week’s forum, Lauren-Brooke Eisen, Senior Counsel at the Brennan Center for Justice at New York University, presented findings from her empirical research demonstrating that increasing incarceration – a phenomenon driven to a great degree by mandatory minimums — long ago reached the point of diminishing returns.  The exhaustive paper she co-wrote on this topic, What Caused the Crime Decline, was published in February and shows that this incapacitation of potential future criminals accounts for a mere 5% of the drop in crime seen in the 1990’s, and accounts for none of the drop in the years since.

It turns out that as more and more people are incarcerated, each additional inmate is, on the whole, less and less likely to commit another crime in the future.  And in fact, putting him or her in jail – rather than using community corrections, probation, monitoring, and other alternatives – can actually increase the likelihood that the inmate will recidivate upon returning to society.  This is because incarceration (a) introduces an individual to more-hardened criminals; (b) presents roadblocks to successful re-integration; and (c) disrupts his or her family, personal, and professional lives – all while too often failing to treat underlying problems with substance abuse, mental health, or frequently both.

So if we didn’t solve – or at least greatly reduce – our crime problem of the late 20th century by jailing more people, then how did it happen?  Here the picture is a bit murkier.  Eisen and her team looked at 14 causes that have been theorized – ranging from the abatement of the crack epidemic to increased access to abortion services to decreased childhood exposure to environmental lead.  But in the end, they found that they could identify only four significant factors:

  • Changing demographics that result in a smaller share of the population within the prime cohort (15 to 30 years old) for engaging in criminal behavior.
  • Declining alcohol consumption.
  • Increasing household incomes and perhaps the concomitant reduction in unemployment levels.
  • New policing models (namely, use of data-analysis tools such as CompStat) along with a hike in the numbers of police.

Still, they determined that even these causes, taken together, could account for only about one-third of the drop in crime.  The reasons behind the remaining two-thirds remain unknown – perhaps to be the subject of further study.  The report concludes that considering the immense costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, could all offer a better public safety investment.

Where does this leave us?  Well, with regard to mandatory minimums, this new paper certainly strengthens our case against them:  If they are not helping to reduce crime, then why are we removing discretion from the trial judge, whose job it is to determine the best sentence – both for the offender and for society – based on the unique circumstances of each case and each individual?  If they extract a fiscal, economic, and social toll by separating workers from jobs and parents from children (consider that 1 in 28 children in America have a mother or father who’s behind bars), then why are we insisting on longer sentences than defendants would otherwise receive — at a cost of upwards of $40,000 per year to house, clothe, feed, and care for them?

These are some of the questions the BBA, and others, will be raising at Tuesday’s Judiciary Committee hearing.  We hope this will be an important step on the path to sentencing reform during this legislative session, and we will continue to update you as it progresses.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Seeking Great Judges Part 2: An Inside Look at the Joint Bar Committee

Last month we explained the work of the Judicial Nominating Commission (JNC) – the first layer of review for judicial nominees.  Here, we take a closer look at the Joint Bar Committee (JBC), the next critical step in the process.

If the JNC, after their thorough review and vetting process, recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the JBC.   The JBC, formally established in 1961, acts as an independent reviewer to check the qualifications of individuals under consideration for appointment to judgeships by the Governor.  It is governed by a set of rules, which state its purpose is to “review, evaluate and report” on the qualifications of potential appointees, in order to assure a “competent, principled judiciary.”

The JBC is a 25 member committee chaired on an alternating basis by representatives of the Boston Bar Association and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for staggered three-year terms.  Participating bar associations are encouraged to appoint persons of diverse gender, age, race, color, creed, ethnic origin and sexual preference, as well as persons with disabilities and attorneys of varying experience.  The BBA’s representatives are currently Edward Colbert, the Committee’s Chair, Sara Shanahan, and Adam Sisitsky.  (Here is a full list of the Committee’s members.)

The JBC assists the Governor and the Governor’s Chief Legal Counsel by conducting its own independent review of judicial candidates in a confidential capacity, evaluating their integrity, character and reputation, knowledge of the law, professional experience, temperament, diligence, financial responsibility, and public service.   Upon completion of its due diligence process, the JBC calls a confidential, blind vote of its members to determine whether a candidate is “well-qualified,” “qualified,” “not qualified,” or there is “insufficient information to evaluate” the candidate.  A quorum of 13 members of the JBC is required to vote on a judicial candidate’s qualifications.

In the event that the JBC has returned a vote of “not qualified” or “insufficient information,” the chair must then immediately notify the candidate of the vote and afford the candidate an opportunity to be interviewed by the committee.  Following an interview, the JBC members may then reconsider their prior vote, if the majority of the members present and voting elect to conduct a revote.

After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Judicial Nominating Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council for their approval.

As we said in last month’s post, the process is built to ensure that only the best candidates become judges.  However, it all begins with you.  In order to have the best judges at the end of the process, the best candidates need to apply at the beginning.  We hope that you will spread this message to anyone who may be considering applying to become a judge in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Sentences on Sentences: Reform and Dookhan Update

It was a week for sentencing discussions at the BBA.  First, an update on the Dookhan drug lab scandal, an issue we’ve spoken on a number of times (see past posts: Drug Lab Crisis Points to Larger Issues in the Criminal Justice System, Getting it Right: A Bargain at Any Price, Catching Up: Have  You Heard?), especially through the work of our Drug Lab Crisis Task Force.  The Task Force examined the facts regarding the lab crisis and related matters and released their report in early 2014, just months after chemist Annie Dookhan pled guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence for her deliberate mishandling of evidence in the Hinton drug lab.

Our Task Force made three recommendations:

  • Prosecutors, defense counsel, judges, and policy makers should continue the extraordinary joint efforts that were mounted in the aftermath of the Dookhan misconduct to promptly resolve open criminal cases related to Dookhan’s misconduct.
  • The Commonwealth needs to further enhance the auditing and oversight of drug labs and consider similar steps regarding all forensic services.
  • The Governor and Legislature ought to review funding levels for forensic services to ensure that these services are adequately funded and staffed and that effective auditing and oversight is maintained.

On Monday, in keeping with our report’s first recommendation above, the SJC held in Bridgeman v. District Attorney for the Suffolk District that individuals who pled guilty in cases with evidence that was affected by the Dookhan scandal cannot be charged with a more serious offense, nor can they receive a harsher sentence than they were originally given, if they are granted a new trial.  According to the Globe, the holding was celebrated by the defense bar and civil libertarians, but was a source of concern for prosecutors, as “ ‘convicted defendants now have nothing to lose by withdrawing their evidence-based admissions of guilt.’ ” We will continue to monitor developments related to this situation and ongoing litigation.

Shortly after learning of this decision, we were pleased to welcome Chief Judge Patti Saris of the U.S. District Court, District of Massachusetts to our Council meeting.  Having previously worked for U.S. Senator Ted Kennedy, and as a Magistrate and Massachusetts Superior Court Judge before her nomination to U.S. District Court, Judge Saris spoke with a wealth of knowledge about sentencing issues from both legislative and judicial perspectives and with state and federal experience.

In addition, she chairs the U.S. Sentencing Commission (“Commission”), an independent agency in the federal judicial branch established in 1984 and tasked with establishing sentencing guidelines and practices for federal courts, advising and assisting Congress and the executive branch in developing effective and efficient criminal policy, and collecting, analyzing, researching, and disseminating a broad array of information on crime and sentencing issues to all branches of government, academia, and the general public.  It is bipartisan by design in order to consider all viewpoints and to effectively gain buy-in from all legislators.

The Commission was a driving force behind the 2010 Fair Sentencing Act, which made a number of reforms to federal sentences for drug offenses, most notably reducing the disparity between sentences involving crack versus those involving powder cocaine.  When preparing this bill, the Commission examined mandatory minimum sentences and found that they were mostly affecting small-time criminals – drug couriers and street dealers — not the drug kingpins that Congress intended to target.  Other considerations, such as the expense of prisons and the exceedingly high rate of incarceration in the United States, also led to those reforms.

As a result the bill reduced sentence lengths, up to 20-25% for some offenses.  It also had a built-in one-year delay until its effective date, so probation offices could increase their staffs, because shorter sentences are most effective at reducing recidivism when prisoners are released into a system of support and monitoring.

Since the Act’s enactment, the Commission has studied outcomes, finding that the recidivism rate is no higher for people released from prison up to two years earlier than they would have been under the old sentencing regime.  In addition, they found that the rate of guilty pleas and cooperation with plea agreements remained the same, meaning shorter sentences did not have a negative effect on prosecutorial bargaining power or result in more trials.  In all, the Commission’s process and the bill’s provisions have been a clear success.

Chief Judge Saris also told the Council about three major sentencing reform bills gaining traction with Congress.

  • The Smarter Sentencing Act of 2015 would further reduce mandatory minimums and its reductions would also have retroactive effect. In addition, it would provide a safety valve for low-level, non-violent offenders who admit to their role in crimes, lifting the mandatory minimum sentence in favor of judicial discretion.
  • The Corrections Oversight Recidivism Reduction and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act creates a system similar to a parole board, permitting the bureau of prisons to return to the sentencing judge and ask for a reduction in sentence length. The idea is to give a second chance to people who have reformed in prison and, as a result, save money by shortening their sentences.  The bill has already passed the Senate Judiciary Committee, yet there are some concerns about the risk assessment tool it uses to determine which prisoners are best suited for sentence reductions.  The tool relies heavily on socioeconomic factors such as whether the prisoner is educated or has a home or supportive family.  It also puts a lot of pressure on judges, who have the final say (and potentially blame) as to who qualifies for a sentence reduction.
  • The Justice Safety Valve Act of 2015 retains mandatory minimum sentences, but gives judges the freedom to stray from the mandatory terms if they find strong mitigating factors.

These bills provide legislators with different options for sentencing reform.  Not everyone is opposed to mandatory minimum sentences.  Many support the uniformity they provide.  However, there appears to be consensus that reform is necessary because current mandatory minimum sentences are too long and applied too broadly.

Underlying this debate are concerns about recidivism and new evidence that longer prison sentences may actually be detrimental to a person’s ability to re-enter society and avoid future criminal activity.  Some states are working on diversion programs, giving people who have committed serious crimes, but who don’t have major records, the ability to take part in lengthy probation terms.  If they successfully complete all of the tasks required of them, these individuals can have their records wiped clean.

In addition, collateral consequences play a role in recidivism discussions.  These include limits on securing housing and jobs, as well as other obstacles that prisoners face upon their release.  There is an increasing understanding that these collateral consequences may be so harsh that they prevent people from successfully re-entering society.  Addressing these problems may become a focus of future bills.

In all, we learned a lot about sentencing this week, from an update on the Dookhan case to a Council presentation by Chief Judge Saris on federal legislation.  We at the BBA continue to oppose mandatory minimum sentences and advocate for sensible, cost-effective reforms.  We are committed to monitoring reforms in this area and keeping our members informed of any progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

The Public-Private Pairing Behind Civil Legal Aid

As we look forward to the Boston Bar Foundation’s (BBF) popular Passport to Pairings event (for a fun two minute diversion, our Voices of the Bar page asks, “What Is Your Favorite Dynamic Duo?”), it is worth considering legal aid from the same perspective.  In many ways, both monetarily and in service, civil legal representation is a public-private partnership.

We talk all the time about the importance of legal services funding and the findings of our Investing in Justice report.  The report gives the full picture of legal services funding, explaining how a drop in IOLTA, due largely to low interest rates, coincided with a growing number of residents struggling to get by, and the increased complexity of laws and the courts.  All of this combines to place significant limits on access to justice for many individuals facing challenges relating to life necessities, such as shelter or personal safety.  These problems persist despite the combined efforts of the public-private partnership.  The report also proves that additional funding for legal aid results in a positive return on investment, saving the state on back-end costs such as emergency shelter and medical services, while also stimulating the economy by bringing more money into the state through federal benefits.

The Legislature, representing the public aspect of this partnership, has long supported civil legal aid.  On Tuesday, the Senate Ways and Means Committee released its budget proposal.  We were pleased to see increases over the House budget for CPCS ($3 million more) and the Trial Court (about $11 million more – enough to rule out the need for staff reductions) and a slight increase over last year’s funding level for legal services funding ($268,500).  The Senate process continues with floor amendments.  Senator William Brownsberger is sponsoring a $5 million amendment, seeking a total of $20 million, for the MLAC line item (0321-1600) from the Senate.  We strongly urge you to contact your Senator today and ask him or her to vote for the Senator Brownsberger MLAC amendment.  This may be our last chance to make the case for civil legal aid during this budget cycle.

From a funding perspective, both the Legislature and the bar support legal aid.  To start with, attorney registration contains an “opt-out” contribution whereby attorneys donate $50 to support legal aid unless they opt-out.  This alone raises about $1.1 million annually for MA IOLTA.  Some attorney fees also provide modest additions, such as roughly $200,000 for pro hac vice admission of out-of-state attorneys to take cases in Massachusetts.

While the Legislature has generously funded civil legal aid for decades, attorneys also voluntarily contribute millions of dollars.  They give this money to fundraising drives of agencies like Greater Boston Legal Services (GBLS) and Community Legal Aid (CLA) as well as to foundations like the BBF and the Massachusetts Bar Foundation.

Unfortunately, these foundations historically granted money they received from IOLTA funds.  They continue to do so, but as IOLTA has dropped, so has their funding capabilities.  As a result, the total legal services grants awarded by the BBF have plummeted from just under $2 million in FY2007 to $825,500 in FY2014.  To address this huge shortfall, the BBF increased the amount of its own funds directed to civil legal aid grants by over $100,000 in each of the last several years, to the point that it funded over 46% of its FY14 grants.  Since 2009, the BBF has dedicated over $2.2 million of its own funds to legal services grants.

In addition, the private bar also donates millions of dollars’ worth of pro bono hours.  Under the Massachusetts Rules of Professional Conduct, lawyers are expected to donate at least 25 hours per year of their time to provide free legal services to those in need.  Very few professions have any comparable standards, and Massachusetts lawyers embrace this role.  We conservatively calculated that in 2013, lawyers in the state provided in excess of 82,000 pro bono hours through four legal aid providers alone, at a value of more than $17.6 million.  This is likely only a fraction of the full amount of pro bono services provided in the state.

As you can see, both sides are doing their part:  The Legislature generously increases MLAC funding each year, even during tough economic times, and the private bar donates its time and money.  Yet there is still a long way to go.  With 58,000 individuals turned away from legal services providers in the last year due to lack of resources, everyone needs to step up.  We applaud the Legislature for the generous monetary support we know they will provide in FY16.  We urge the bar to keep up the great work and to take on one more task – please ask your Senator to vote for Senator William Brownsberger’s $5 million budget amendment in the Senate.  With this public-private partnership, we know civil legal aid can’t lose!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Essential to our Mission: Funding the Judiciary

Amid all the talk of civil legal aid thanks to the buzz created by our Investing in Justice report, we wanted to take a moment to examine one of the BBA’s other long-term priorities, the court system.  Advocacy for the courts has long been at the top of our agenda, as it so clearly fits into our mission – advancing the highest standards of excellence for the legal profession, facilitating access to justice and serving the community at large.  The courts are absolutely essential to all three of those efforts and of course make up one of our three co-equal branches of government.  BBA President Julia Huston emphasized all of this in her speech last week at an SJC event for bar association presidents, which you can read more about in next week’s Let the Record Show.

Under the leadership of Chief Justice Paula Carey and Court Administrator Harry Spence, the Trial Court is well on its way to implementing its strategic plan and has long maintained the high level of justice to which people in Massachusetts are accustomed.  With recent advancements such as court service centers, specialty courts, and the increased use of technology, it is easy to forget that just a few years ago the courts were in severe trouble.  Taking a huge funding hit in the Great Recession, the courts are only just emerging from some of the toughest times they have ever faced.  Some key information on these struggles (even more available here):

  • Trial Court staffing levels are still 16.5% lower than they were in FY08, dropping from 7,565 to 6,316. Clerical (26.7%) and probation (32.5%) positions have each plummeted since 2001.  This is a major problem as both positions are critical to the smooth functioning of the justice system.  In particular, probation officers are now tasked with doing more than ever before.  This is due in large part to current social sciences research demonstrating that probation supervision, when properly administered, can be more effective at reducing recidivism than incarceration.  However, with such low staffing levels, probation officers are pushed to their limits.  With ever expanding caseloads they struggle to give all their probationers the time and oversight they need.  Limiting the Trial Court budget not only hurts probationers, who receive less individualized attention, but also creates a potential public safety crisis.
  • Reduced funding and staffing levels have decreased the amount of service courts can provide. In 2011, due to insufficient staffing in roughly 40 clerks’ offices, courts began limiting their public hours of operation.  The hours reduction was required so that court staff could address backlogs and process new business, prepare cases for court sessions, and complete case reviews, docketing, and case processing.  While the reduced public hours scheme allowed the courts to limp along, it was not without an attendant reduction in access to justice for the public.  Such measures can save money, but they also place a burden on the public, reducing access and the courts’ physical presence in the community.  The courts were unable to resume full functionality until September of 2013, and without continued funding to retain current staff, it may become more difficult to maintain courthouses.
  • Shoestring budgets can limit the courts’ ability to build on successfully-implemented innovations. To cite two recent examples, specialty courts and programs such as HOPE/MORR, an intensive probation model that has been proven effective at reducing recidivism by providing immediate short term sanctions for probation violations, are wonderful, but not free.  Limited resources have also curtailed the expansion for Court Service Centers, which help self-represented litigants navigate the justice system, and limited language access programs, meaning non-English speakers may face even more challenges in presenting their cases.  Finally, a lack of funding has delayed technology deployment such as e-filing and digital document preservation services as well as electronic public records access.

So where are we now?  The Trial Court requested $642.4 million as a maintenance budget (the amount required to continue normal service) and offered up a number of additional “modules” (optional items to help bolster innovation, with funding tied to each specific program).  The Governor’s budget, which generally level funded nearly all line-items in an effort to fix a $1.8 billion deficit, provided only $603.3 million for the Trial Court.  The Courts responded with a statement explaining that this funding amount would jeopardize the jobs of roughly 550 employees and severely limit its ability to deliver justice.

The House Ways & Means Committee provided a substantial increase over the Governor’s proposal at $620.4 million.  After its members adopted a floor amendment for an additional $2 million, the final House budget for the Trial Court was $623.0 million.  While we were pleased to see $20 million more in the House over the Governor’s budget, this funding level would likely result in disruptions in court operations and services.

With the Senate set to release its Ways & Means budget next week, we are hoping to see further increases on that side, with $628.4 million being the minimum necessary to maintain current staff levels, though additional funding for modules would allow those important programs to move forward.  There is a possibility that the Trial Court budget will be before the Conference Committee which will ultimately determine the final funding amount from the Legislature.  After that it’s on to the Governor who will have ten days to review the budget.  He can approve or veto the entire budget, veto or reduce specific line items, veto outside 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.

There are still a number of steps left in the budget process, but the end is fast approaching.  We ask that you take a moment this week or next to contact your State Senator (Don’t know who that is? Look them up here) and urge him or her to support appropriate funding for the courts.  We will, as always, continue to advocate for court funding and keep you updated on the latest budget developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association