Budget Update: Conference Committee Submits FY18 Budget to Governor

The budget process is finally nearing completion with last Friday’s release of the Conference Committee’s $40.3 Billion Fiscal Year 2018 (FY18) budget, H3800, which was followed by quick passage in both houses that same day. If you need a refresher as to how we got here, be sure to check out past posts on our advocacy on the initial Governor’s budget, the House’s Ways and Means Committee and final budgets, and the Senate Ways and Means Committee and final budgets. The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it.

Worth noting at the top — as the Legislature was piecing together its FY18 budget, it was receiving increasingly gloomy news about FY17 revenues – to the point that the Conference Committee was forced to revise downward its spending plans for next year in the face of a developing budget gap. In the end, the budget delivered by the six conferees slashed about $700 million from the budgets passed only weeks earlier by each house. The general rule was that individual line-items were level-funded or even cut, from last year’s appropriations.

The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it. Here’s a round-up of how our budget priorities fared in the Conference Committee:

Statewide Expansion of the Housing Court

We are happy to report great news for statewide expansion of the Housing Court, which the BBA has long supported as a key access to justice cause. If you’ll recall, for the second year in a row, the Governor included funding and authorization for the expansion in his initial budget, the House did not allocate funds or authorizing language, and the Senate included $1 million appropriation and authorizing language. This year, the measure survived the Conference Committee process and both the authorizing language and appropriation of $1 million were included in their final budget that was sent to the Governor. So a statewide Housing Court is only one step away from finally becoming a reality.

Currently, nearly one-third of Massachusetts residents must take their landlord/tenant matters to District Court – as do municipalities in those regions that are seeking to enforce health and sanitary codes. There they wait in line behind others bringing a wide variety of cases, they appear before judges who see such cases only occasionally, and they do not have access to housing specialists trained to successfully resolve these cases and avoid the need – and expense – of litigating in open court. In addition, Housing Court offers programs like the Tenancy Preservation Program – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping to prevent homelessness. These programs help make Housing Court a model of efficiency, featuring the lowest cost per case of any Trial Court department.

As mentioned, this year the Conference Committee included the $1 million appropriation (line-item 0336 – 0003) as well as the authorizing language (outside sections 78-82), so if the Governor continues his leadership on this issue and includes the language and funding, this may finally be the year that all of the residents of the Commonwealth will finally have access to the many benefits the Housing Court offers.

Trial Court

The expansion of the Housing Court is just one piece of the Trial Court appropriation, which is made up of about 15 different line-items. Within the context of the gloomy revenue news outlined above, the Conference Committee budget did reduce overall Trial Court funding, but nevertheless provided for a $13.7 million increase over last year’s appropriation – presumably in recognition of the fact that the court system still remains underfunded, despite a more than $8 million increase in FY17 – for a total of $652.6 million in FY18.

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. As a result of this work, they have been able to continue the efficient and effective operation of the courts even with a 19% reduction in staffing since FY02. Despite these transformational efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. For example, the installations of new technologies that will ultimately save on staffing and overhead costs nevertheless require large up-front investments. In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems. These upgrades 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.

The Trial Court, made up of seven different departments, handles nearly all of the cases in the Commonwealth and functions as the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved. As such, adequate funding is critical for the Commonwealth, and we hope the Governor will include the full appropriation in H3800 for all of the Trial Court line-items.

Massachusetts Legal Assistance Corporation (MLAC)

As you know, MLAC is the largest funder of civil legal aid in the Commonwealth. The Governor’s budget allocated for a 1% increase in MLAC funding, or $18,180,000. The House Budget, with the help of an amendment filed by Representative Ruth Balser, included a $20 million appropriation, and the Senate budget, with the help of an amendment filed by Senators Cynthia Creem and William Brownsberger, also included a $20 million appropriation for MLAC.

Unfortunately, however, the Conference Committee felt compelled, in light of the gravity of the revenue shortfall, to move the MLAC line-item (0321 – 1600) back down to $18 million, representing level-funding from FY17.

We’ve outlined the importance of MLAC funding, again and again, as legal aid touches so many of the biggest social problems facing the Commonwealth, including foreclosures and emergency shelter, immigration, the opioid crisis, and domestic violence. In addition, the recent BBA Report, Investing in Justice, revealed just how many Massachusetts residents needed this aid and how many were turned away due to lack of resources. Each year, MLAC-funded programs are forced to turn way around 64% of qualified clients, or about 57,000 individuals. Plus, with legal aid funding at the federal level in peril, the demand for state-funded legal services may increase even more in the near future.

In addition to outlining the great need for legal aid funding, the report also established that investment in legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. Indeed, 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.

We join MLAC and the Equal Justice Coalition in urging the Governor to protect funding for civil legal aid by approving the $18 million in MLAC funding in the FY18 Budget.

CPCS

Similar to the Trial Court, the Committee for Public Counsel Services (CPCS) also received some cuts to their budget line-items in the Conference Committee budget.

CPCS plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase compensation paid to private assigned counsel, as well as increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the recent Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and the appropriations outlined above would be a significant and beneficial step in that direction.

Given the importance of the services provided by CPCS, we hope the Governor will continue his recognition of the importance of providing adequate funding for CPCS and uphold the full H3800 appropriations of $58,896,644 for staff and operations (line item 0321-1500); $98,906,090 for private counsel compensation (line item 0321-1510), and $14,951,982 for indigent court costs (line-item 0321-1520).

On the heels of our letter to the Conference Committee, we sent a letter to the Governor this week urging him to include the Conference Committee appropriation in the above line-items. Watch this space for one last update when the Governor signs the official final budget for FY18 … pending any potential legislative overrides, of course, should he veto or cut any of these.

We also want to thank you for all the phone calls, letters, and conversations you’ve had with your legislators on behalf of such important issues like increasing civil legal aid funding and expanding the Housing Court. If you’re reading this before the Governor has acted, please contact his office to express your support for the items outlined above.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Criminal-Justice Reform Inches Forward

Whether or not you’ve been following Beacon Hill developments on criminal-justice reform as closely as we have, if it seems like that debate has been going on for a couple of years now, that’s because it’s been about that long since the state’s top leadership kicked off the review process by formally inviting outside experts to undertake an assessment of our criminal-justice system.  This month, legislation that emerged from that effort—along with more than 150 other bills on criminal procedure, sentencing, prison programs, and related issues—passed the first hurdle in the legislative process, with two heavily-attended public hearings of the Legislature’s Judiciary Committee.

To recap: In July 2015, Governor Charlie Baker, SJC Chief Justice Ralph Gants, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo jointly penned a letter asking for technical assistance from the Council of State Governments’ (CSG’s) Justice Center—which had already provided such help to more than a dozen other states—in using “a data-driven approach to continue to improve criminal justice outcomes”.  The request was greeted with wide acclaim from stakeholders in the system and outside advocates, who saw it as an opportunity to address long-standing inefficiencies and inequities, and to provide a framework for substantial reforms in a variety of areas that have been discussed at the State House for years—but acted on only fitfully and incrementally.  The seeds of future discontent were planted, however, by the letter’s focus on recidivism, re-entry, early release, and post-release supervision—the so-called “back end” of the system, with no mention of such “front-end” ideas as diversion, bail reform, and sentencing reductions.

Fast-forward to this past February, when the CSG group—consisting of a team of national experts alongside a star-studded panel of leaders from throughout the Massachusetts system—released its final report after 18 months of hard work.  As with the initial invitation, the report’s recommendations, which had achieved unanimous internal consensus, met with near-universal approval once made public, and a bill was filed to implement those that required legislative endorsement.  Still, some observers expressed frustration with the bill’s limited scope, pointing out missed opportunities and calling for lawmakers to expand on it when they take up the issue during the current two-year legislative session.

The first real chance to speak directly to legislators on these issues—well, the first two chances, I guess—came on June 5 and again June 19, when the Judiciary Committee, which oversees criminal-justice legislation (among many other areas), held hearings to take testimony on those bills in particular.

The BBA was there both days, along with hundreds of other interested parties, as witnesses spoke on a wide variety of proposals, including limits on how criminal-justice fees and fines are imposed on the indigent, efforts to make the bail system more evidence-based, and steps to reduce the debilitating effects of the web of collateral consequences facing ex-offenders upon re-entry to society.  (For its part, Commonwealth Magazine has been providing strong coverage of the on-going debate, including both hearings—while also weighing in itself from time to time through its MassINC research arm.)

At the June 19 hearing, Marty Murphy of Foley Hoag—BBA Secretary and an experienced criminal lawyer—testified on our behalf, focusing on mandatory minimums, which the BBA has opposed for decades in all cases except first-degree murder.  With the Committee imposing a three-minute limit on oral testimony, in order to allow everyone present an opportunity to be heard, Murphy used his time to make four key points to the panel:

  1. Mandatory minimum sentences fail every test by which we should measure the strength of our justice system: In place of proportionality—a system where the punishment fits the crime—they offer one-size-fits-all justice.  They frequently require incarceration for longer than the judge believes is either necessary or just, as demonstrated by the prevalence of “and a day” sentencing.  These overly-long sentences, in turn, delay the possibility of re-integration, restrict access to the very programs shown to help make that process a success, and often turn prisoners back to the street without support, supervision, or help to find employment or housing.
  2. Mandatory sentencing statutes effectively turn over the reins of the criminal justice system to prosecutors and strip judges of their power to impose the kind of individualized sentences that would in fact make the punishment fit the crime. Mandatory sentences are mandatory only when prosecutors want them to be; in practice, prosecutors often use them as bargaining chips in the plea bargaining process. When prosecutors use the threat of mandatory sentences to drive the plea-bargaining process, there is no transparency and no accountability. Instead, the result is justice produced behind closed doors, with the prosecutor choosing both charge and sentence.
  3. The evidence shows that mandatory minimum sentences help drive one of the most deeply disturbing aspects of our state’s criminal justice system: the problem of racial disparity. Massachusetts may have one of the lowest incarceration rates in the nation; but our criminal justice system’s record on race is nothing to be proud of.  Massachusetts rates of racial and ethnic disparity are among the highest in the United States.  For African-Americans the rate of disparity (that is, incarcerations rates of black compared to white residents) was the 13th highest in the country. For Latinos, Massachusetts ranked first.  Mandatory minimum sentences help drive that rate of disparity: Three out of every four defendants sentenced to mandatory minimum sentences are defendants of color.  As recent studies have confirmed, and as our own experiences teach, these sentences tear lasting holes in defendants’ families, and in entire communities.
  4. There is no time better than the present to address this issue. Massachusetts reduced mandatory minimums in both 2010 and 2012 without the kind of harm to public safety opponents of reform predicted. Since then, we have watched crime rates continue their historic decline. There is certainly much to praise in the CSG’s framework, and in the CSG bill.  The BBA thanks all of those who devoted so much of their time, over so many months, to producing a strong outcome.  But it is our hope that the best and longest-lasting legacy of the CSG process will be the foundation it lays on which to build additional criminal-justice reforms, continuing the work begun in 2010.

As Murphy’s prepared remarks go on to say:

Massachusetts taxpayers deserve to see their money spent wisely.  No one disputes that certain offenders deserve to be incarcerated—sometimes for a long time.  But the length of that sentence should be determined by a well-qualified judge, ruling on the unique facts and circumstances of the case, and the individual defendant’s history and background—not by the cold calculus of arbitrary justice, which is all that mandatory minimums can ever offer.

These hearings were the Legislature’s first official step toward criminal-justice reform in this 2017-18 session.  Much remains unclear at the moment: When will the Judiciary Committee report out legislation?  What form will it take?  Might they, as some have urged, report the CSG bill out first and leave the harder work of fashioning further reforms until later?  Which house will debate these issues first?  And ultimately, how far will the Legislature go in expanding on the narrow scope of the CSG recommendations?

As it happens, Murphy and former BBA President Kathy Weinman, of Collora LLP, are heading up a BBA working group that is currently exploring potential avenues for reform that were left untouched by the CSG report, but where the BBA can recommend improvements to current law and practice.  We expect the group to make those recommendations to the BBA Council soon—and that they will help shape the criminal-justice debate as it develops in the State House.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

In the fall of 2015, the BBA Council voted to support legislation that would ban licensed health care professionals from engaging in efforts to change sexual orientation and gender identity, often called conversion or reparative therapy. The BBA has a long history of defending principles of non-discrimination and equal protection, and as an organization of attorneys, we recognize that young people should enjoy the fundamental human right to be free from harmful and ineffective “treatments” intended to change their sexual orientation or gender identity.

As such, we are proud to be able to continue our advocacy on the ban by supporting H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny, two identical bills that would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. This week we had the opportunity to present testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities.

Why we support H.1190 and S.62

As we’ve outlined in the past, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought, and poses a high risk of seriously harming patients, especially minors.

The use of conversion therapy typically occurs within the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will typically be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes. These youth experience significantly higher rates of depression, substance use, suicide attempts, as well as homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” To date, nine states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the tenth state to enact these protections.

Legislative Hearing

At a hearing on June 6, many proponents of the bill, including psychiatrists, pediatricians, social workers, survivors of conversion therapy, LGBTQ-rights advocates, and legislators showed up to support the conversion therapy ban for minors. Following testimony from these supporters, opponents of the ban expressed concern that the bills would restrict legitimate therapies and infringe on First Amendment rights of free speech and free exercise of religion.

The testimony from supporters lasted for more than two hours and included deeply personal stories presented by those who had survived the use of conversion therapy methods like physical aversion and electroshock therapy. The harms that result from the use of these and other practices aimed at changing one’s sexual orientation and gender identity were addressed by a number of the witnesses, including a clinical child psychologist, representatives from the Boston Children’s Hospital, and pediatricians from the Massachusetts Chapter of the American Academy of Pediatricians. Witnesses from MassEquality, PFLAG, the Children’s League of Massachusetts, and the Massachusetts Teachers Association presented further reasons why passage of these bills is necessary to protect the youth of the Commonwealth. In addition, a panel made up of 12 representatives presented on the need for the legislation and the broad support these bills have in the Legislature. Ninety legislators have signed on to H.1190 and twenty-eight have signed on to S.62 this session.

We were lucky enough to be joined by Elizabeth Roberts of Roberts & Sauer, a member of the Family Law Section Steering Committee, who presented testimony on behalf of the BBA alongside Ben Klein a Senior Attorney  with the GLBTQ Legal Advocates and Defenders (GLAD).

 

Elizabeth Roberts presents testimony in support of H.1190 and S.62 before the Joint Committee on Children, Families, and Persons with Disabilities.

While deferring to the many experts and survivors to explain the psychosocial harms that result from the use of conversion therapy on minors, Roberts and Klein spoke on the legal aspects of the legislation. First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power.

For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, just last month, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, as both Roberts and Klein told the Committee, the existing case law makes it clear that the bills, like H.1190 and S.62, are valid exercises of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. As noted above, the BBA recognizes the  fundamental human right to be free from abusive practices meant to change one’s identity or expression of that identity and will continue to advocate for these bills to protect this right for minors in the Commonwealth.

We appreciated the opportunity to share support of the bills with the Committee and will keep you posted on the status of this important legislation.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Senate Approves FY18 Budget

From the release of the Governor’s proposed budget to the House Ways and Means and final budgets and our advocacy in between, we’ve been keeping you posted as the Commonwealth moves closer to a final Fiscal Year 2018 (FY18) budget.  This time, our attention turns to the Senate, which has been busy with its own budget process over the past few weeks. First, the Senate Ways and Means Committee released their version of the budget, then amendments were filed and debates took place, and finally, last Thursday, the Senate approved its $40.4 billion budget. Now, it’s on to the Conference Committee to reconcile the differences between the House and Senate budget, and, once this version is approved by both chambers, it will be on to the Governor to review and either sign as is, sign with line-item vetoes and proposed amendments, or veto.

Two BBA budget priorities were the focus of some debate during this process:

Massachusetts Legal Assistance Corporation (MLAC)

If you’ll recall, MLAC, the largest funder of civil legal aid in the Commonwealth, initially requested a $5 million increase to a $23 million appropriation in the FY2018 budget. The Governor’s budget allocated for a 1% increase, or $18,180,000. The House Ways and Means Committee proposal appropriated $1.5 million, which, with the help of an amendment filed by Representative Ruth Balser and approved unanimously, grew to $20 million in the final House budget.

Initial news coming out of the Senate budget process was not quite as positive, however, as the Senate Ways and Means Committee proposal only provided for an $18 million appropriation for the MLAC line-item (0321-1600).  Thankfully, civil legal aid has a great number of strong supporters in the Senate, and Senators Cynthia Creem and William Brownsberger filed Amendment #896, asking for a $2 million increase to the  MLAC appropriation.

Thanks to all of you who reached out to your Senators urging them to support  civil legal aid and sign on to this Amendment! In the end, Senators Barrett, Chang-Diaz, Rush, Eldridge, Cyr, Moore, L’Italien, McGee, Lewis, Welch, Gobi, Lesser, Brady, Flanagan, Lovely, and Boncore signed on as co-sponsors of the $20 million MLAC appropriation.

During the debate, Senator Creem explained why funding for civil legal aid matters. She pointed to the much needed assistance it provides to some of the Commonwealth’s most vulnerable individuals and communities, including those who facing domestic violence, eviction, deportation, inadequate health care, wage theft, and discrimination. She also noted that nearly two-thirds of eligible residents are now turned away and that every dollar invested saves the state between $2 and $5. Be sure to check out the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts Investing in Justice Report for full details on how civil legal aid helps and why it’s a smart investment, including the full econometric basis for the return-on-investment figures that Senator Creem cited. Senator Brownsberger concluded the debate by stating that, given what is happening at the federal level, with the White House proposing to eliminate federal funding for civil legal aid, state funding is needed now more than ever.

We are happy to report that, thanks to your outreach and the strong support from the full Senate, the Amendment was adopted unanimously and the final MLAC line-item came in at $20 million, matching the House budget!

Statewide Expansion of the Housing Court

As you know, the statewide expansion of the Housing Court, with all its accompanying benefits,  started off the budget process with a $1 million appropriation in the Governor’s budget, slightly below the Trial Court’s requested $1.2 million. Unfortunately, however, the House budget did not allocate any funds for this expansion, nor did it include language authorizing the expansion.

We are pleased to report that the Senate Ways and Means budget brought back the $1 million appropriation for the statewide expansion of the Housing Court line-item item (0336-0003). However, this line-item was up for debate as Senator Bruce Tarr filed Amendment #897, to zero out the Housing Court expansion appropriation. During the debate, Senator Tarr began by noting that he believes in the Housing Court and thinks it is a cost-effective resolution but was merely concerned about balancing the budget.

In response, Senator Karen Spilka, Chair of the Senate Ways and Means Committee, noted that her district, along with one-third of the state’s population overall, does not have access to Housing court, which specializes in complex housing issues, enforces codes, protects people from homelessness,  and addresses mortgage fraud among other important matters.  She further provided that Housing Court is both effective and efficient, as it has the lowest cost per case of the whole Trial Court and houses programs like the Tenancy Preservation Program, which saves the State millions of dollars each year by reducing the prevalence of expensive emergency shelter stays. Senator Tarr ultimately accepted this justification and withdrew his amendment.

Facing no other objections, the statewide expansion of the Housing Court ended up with a $1 million appropriation in the Senate budget!  Now the Conference Committee will have to consider whether to adopt the Senate’s version.

As the budget moves on to the Conference Committee, we’ll keep you posted about these items and any changes in our other priority areas, including the Trial Court and the Committee for Public Counsel Services (CPCS), which remained relatively level through the Senate process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Law Day Dinner: Celebrating the Leaders who Shape and Protect the Rule of Law

Last week, the BBA hosted its annual Law Day Dinner, which brings together members of the bar, the bench, and the business communities to recognize leaders who shape and protect the rule of law. The event is always one of the highlights of the year here at the BBA, and this time was no exception. The dinner included a keynote speech delivered by Congressman Seth Moulton and presentations of the Thurgood Marshall Award to Elaine Blais of Goodwin and the John G. Brooks Legal Services Award to Anne Mackin of Greater Boston Legal Services (GBLS).

To kick things off, BBA President Carol Starkey, of ConnKavanaugh, addressed the crowd, reflecting on the reason behind this annual event and the original proclamation of Law Day by President Eisenhower 59 years ago. She noted that all in the room were bound by their dedication and commitment to the law and its role in protecting individual rights, preserving justice, and ensuring equality. She took a moment to recognize the judges, custodians of the rule of law, in attendance and expressed gratitude to all members of the Boston legal community for their consistent selfless volunteerism, thoughtful policy contributions, intelligent debate, and persistent advocacy. She concluded her opening remarks by noting that the bar, collectively, continues to ensure, just as President Eisenhower said, that “the importance of law in the daily lives of our citizens is a source of national strength.”

BBA President Carol Starkey (ConnKavanaugh) addresses the crowd.

She went on to present the Thurgood Marshall Award to Elaine Blais, partner and head of litigation in Goodwin’s Boston office. The award recognizes attorneys in private practice in Greater Boston for their extraordinary efforts in enhancing the human dignity of others by providing legal services to Massachusetts’ low income population. Attorney Blais has been representing adults seeking asylum through Political Asylum/Immigration Representation (PAIR) and Immigration Equality for nearly a decade and representing unaccompanied immigrants and refugee children in their deportation proceedings through Kids in Need of Defense (KIND) for the past five years.

BBA president Carol Starkey (ConnKavanaugh) presents honoree Elaine Blais (Goodwin) with the Thurgood Marshall Award.

In a moving acceptance speech, Blais told the story of one particular child she and her team were able to assist in remaining in the U.S., a nine-year-old girl who had been living with her grandmother in El Salvador after her parents fled when they were threatened for standing up to a local gang. This young girl was forced to flee as well when the attention of the gang became directed toward her. Thanks to the hard work and dedication of Blais and her team, the girl was found eligible for asylum, and Blais is now helping to work on the green card application. This story highlights what a difference dedicated pro bono work can make, and Blais herself concluded with a call to action, asking members of the bar to use their unique positions as lawyers to assist those most in need.

Carol Starkey then returned to the stage to present the John G. Brooks Legal Services Award to Anne Mackin of GBLS. This award is presented to professional legal services attorneys for their outstanding work on behalf of indigent people in the Boston area. Attorney Mackin has worked in legal services for nearly 30 years, and joined GBLS’s Immigration Unit in 2013. Since then, she has helped people from all over the world who have witnessed or experienced unspeakable tragedies and faced severe persecutions. Her efforts have ensured that many who are fleeing extreme discrimination and danger are able to seek justice and safe harbor.

BBA president Carol Starkey (Conn Kavanaugh) gives honoree Anne Mackin (GBLS) the John G. Brooks Legal Services Award.

In an acceptance speech that displayed her humility and passion, Mackin discussed how privileged she feels to be able to work in legal services and specifically to be able to meet the brave and resilient individuals and children who have decided, as a matter of survival, to make the hard decision to pursue safety. In her work, she regularly takes on cases with individuals, often young children, who have endured unspeakable torture and abuse, wars and natural disasters and persecution on account of their race, gender, sexuality, or beliefs. She offered several harrowing stories, all of which revealed just how important the law and legal help is for these individuals. After making the often devastating decision to flee the only home they’ve ever known, many face a daunting bureaucracy with complicated and convoluted procedural and substantive rules upon reaching the U.S. Though not every attorney can dedicate their life to this work as Mackin has, her inspiring career reaffirms how crucial it is for all attorneys to take up Blais’ call to action in whatever way they can.

Following these moving speeches, Carol Starkey introduced keynote speaker U.S. Representative Seth Moulton. Congressman Moulton was elected to the represent the 6th District of Massachusetts in 2014, and he currently serves on the House Armed Services Committee and the House Budget Committee. After graduating from Harvard in 2001, Moulton joined the United States Marine Corps, where he served four tours in Iraq as a Marine Corps infantry officer, including two as an infantry platoon commander and two as a Special Assistant to General David Petraeus. After leaving the Marines in 2008, with the rank of Captain, Moulton attended Harvard Business School and the Kennedy School of Government, and worked in the private sector as managing director of the Texas Central Railway.

We welcomed Moulton to the Boston Bar once before, in 2015, when he attended the first of an ongoing Veterans Day reception series, where BBA members who are also current or former members of the military gather to share common experiences and challenges. This time, Congressman Moulton presented a captivating keynote speech that highlighted the notion that the role of lawyers and the rule of law is more important than ever.

Congressman Seth Moulton delivers the keynote speech.

His speech began with a compelling story about a refugee, Mohammed, who was his interpreter in Iraq. The two spent a great deal of time together, even going on to host a popular local TV show together as part of a media and free press initiative. Moulton explained that Mohammed put his life on the line, in an incredibly public way, to aid the U.S., and when he received a Fulbright Scholarship and left Iraq, his family faced such great threats that they had to flee their hometown. If Mohammed returned, he would be facing a life-threatening situation, so he decided to seek asylum, and Moulton helped him secure an attorney who made it possible for him to stay in the U.S. Moulton noted that, through all of the trials, Mohammed still maintained an amazing faith in the system. Moulton highlighted just how crucial it is for Americans to uphold and maintain this trust in the system, as the core of our democracy is respect for the rule of law and its fair application to all.

Lawyers, of course, play a unique role in maintaining the trustworthiness of the system, and, like Attorney Blais, Congressmen Moulton presented a call to action. He urged the crowd to use their authority as members of the Bar to speak up for the rule of law. He even harkened back to a quote from Ross L. Malone, President of the American Bar Association in 1959, who stated “tyrants throughout history have recognized in lawyers a constant threat to their tyranny.” Because lawyers and the judiciary are those charged with upholding the rule of law, he explained that bar associations are important pillars of our civil society and cited current examples of countries where human-rights lawyers are routinely jailed as “dissidents”.

Following this call, he turned his attention to the two award recipients, who are clearly prime examples of lawyers already going above and beyond this call. He spoke on the deep importance of pro bono and legal services work, like that undertaken by Blais and Mackin. This work is critical in instilling trust in the system that Mohammed relied on when carrying out his service for the U.S. and that the attorney fulfilled when taking on Mohammed’s case and ensuring the rule of law was fairly applied.

The Congressman concluded by recalling the most frequent question he got when he first decided to run in 2014: Why would you want to give up your work in the private sector to pursue public service? He said he no longer hears this question because it’s very clear why this service is crucial. He affirmed that no one should question the services of the members of the bar either, as it also is more important than ever.

Overall, it was a wonderful evening that highlighted the significance of the role of lawyers and the rule of law in upholding democratic ideals and ensuring justice for all. Be sure to check out our photo album and join us next year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Testimony at Judiciary Committee Hearings

We’ve recently reported on our testimony in support of H.2645 (tax basis for certain decedents’ beneficiaries), at the Joint Committee of the Revenue (which later reported the bill favorably to the House Committee on Ways and Means) and our testimony in support of full RUFADAA language (access to digital assets) before the Joint Committee on the Judiciary.  Lest you think our public hearing participation is limited to Trusts and Estates issues, we’ve also had the opportunity to present testimony on three other legislative items at Judiciary Committee hearings held the past few weeks.

Housing Court Expansion

On Tuesday, May 2, the Judiciary Committee heard from the public on bills related to Court Administration, including legislation that would expand jurisdiction of the Housing Court to the full state, which the BBA supports.  We’ve spoken often in the past on the importance of this expansion, identified this as a budget priority, and even recorded a podcast on the matter.

Two identical bills were before the committee, H.978 sponsored by Representative Chris Walsh, and S. 946, sponsored by Senator Karen E. Spilka. These bills would expand access to the Housing Court, and all its accompanying benefits, to all residents of the Commonwealth, including the close to one-third who currently lack such access.

Interestingly, H.978 and S.946 were two of the most highly testified-upon bills at the hearing. Representatives Paul J. Donato and Jay R. Kaufman, Senator Sal N. DiDomenico, and Chief Justice of the Housing Court Judge Tim F. Sullivan all testified in support of the bills.  In addition to these public officials, the Committee heard testimony from a number of key advocates, including Annette Duke of the Massachusetts Law Reform Institute, Elizabeth Soule, Executive Director of MetroWest Legal Services and Laura Rosi, Director of Housing and Advocacy of Housing Families.

We were lucky enough to have Julia Devanthery, Attorney and Clinical Instructor in Housing Clinic of the Legal Services Center of Harvard Law School and member of the BBA Delivery of Legal Services Section, presenting testimony on behalf of the BBA as part of a panel, alongside Jeff Catalano of Todd & Weld, president of the Massachusetts Bar Association, and James T. Van Buren, Commissioner of the Access to Justice Commission.

Attorney Devanthery offered specific insight from the perspective of her extensive work supervising the Lawyer for the Day Program in Housing Court, which, since 1999, offers advice, mediation, and case litigation for unrepresented tenants and landlords on Eviction Day at the Housing Court.  She spoke to the importance of expanding this service statewide given the complexity of housing cases, the lack of alternative affordable housing options, and the vulnerability of many pro se tenants and landlords.  She also spoke movingly about her experience representing victims of domestic violence, noting that this clientele, which is uniquely vulnerable, is able to have their cases adjudicated by Housing Court in a manner which takes into account abuse, while taking advantage of the specialized legal protections in place to defend survivors and their children.

We’ll keep you updated on the report of the Joint Committee on the Judiciary on H.978 and S.946, and be sure to watch this space for our soon-to-come Senate budget update (Spoiler Alert: Unlike the House Ways and Means Budget proposal, the Senate Ways and Means budget does include funding and authorizing language for Housing Court Expansion).

UCCJEA

Earlier this week, the Committee held its second day of hearings on Probate and Family matters, this time taking up two topics on which the BBA has worked for a number of years. First up, An Act relative to the Uniform Child Custody Justice Enforcement Act (UCCJEA), S.806, filed once again by Senator Cynthia Stone Creem.  As we’ve outlined in the past, enactment of this bill would remedy conflicts that occur under current Massachusetts law when one of the parents of the child moves to another state. Currently, Massachusetts is the only state in the US which has not enacted the UCCJEA!

As it stands now, Massachusetts law cedes jurisdiction over our own custody orders to the home state of the custodial parent and child after six months of their residency in the new venue.  But under the UCCJEA, once a state has exercised jurisdiction over custody, that state retains exclusive jurisdiction as long as a parent, the child, or someone acting as a parent remains in the original issuing state. Overall, adoption of the UCCJEA would help to prevent one parent from forum-shopping by seeking a more favorable outcome in another state and also prevent the problem of dueling lawsuits in different jurisdictions.

A panel with representatives from the BBA, MBA, and the Women’s Bar Association (WBA), all of whom support passage of the bill now that domestic-violence concerns have been addressed with new language in the bill, presented testimony on behalf of the UCCJEA.  Judge Edward Ginsburg spoke on behalf of the BBA, and as usual offered compelling reasons for Massachusetts adoption.  If you’ll recall, Judge Ginsburg has spent nearly twenty years advocating for Massachusetts to change the law.

Stay tuned to find out if this will finally be the year that Massachusetts becomes the 50th state to adopt the UCCJEA!

Shared Parenting

Finally, Jessica Dubin of Lee & Rivers, our Family Law Section co-chair, spoke about a number of bills being heard that would amend Section 31 of Chapter 208 of the Massachusetts General Laws, dealing with child custody and shared parenting.  While the BBA has not specifically endorsed any of the bills pending in the Judiciary Committee, in 2015, the Family Law Section Steering Committee worked hard to develop principles related to shared parenting that would guide the BBA’s analysis of all related legislation. For example, the principles call for the availability of alternative terminology such as “parenting time”, “residential responsibility” and “decision-making responsibility,” in place of the divisive and outdated terms, “visitation” and “custody.”  The principles also offer support for provisions that provide increased guidance on the content to be included in parenting plans and oppose any provision that takes any focus away from the best interests of the child or ties the hands of judges.

Attorney Dubin offered the BBA’s appreciation to the Judiciary Committee for its consideration of the similar legislation last session and its openness to the input of the bar on the pending bills.  She expressed a hope that the BBA would have the same opportunities this session and relayed the current work being done to study Senator Will Brownsberger’s bill, S.775, An Act relative to determining the best interest of children in Probate and Family Court.

As usual, watch this space to find out what happens!

Many more hearings are set to be scheduled for the coming months, and we’ll report back on our continued activity!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

In March, we updated you on the BBA’s endorsement, at the request of the Trusts and Estates Law Section, of the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the Commonwealth.

To briefly recap, RUFADAA was promulgated by the Uniform Law Commission in 2016 in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, Instagram, online banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies, if they have any policies on the matter at all. RUFADAA helps to add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 30 other states have adopted RUFADAA in some form. (Check out our previous blog post on this for a full refresher on the contents of RUFADAA.)

On Monday, the Joint Committee on the Judiciary (“the Committee”) heard testimony from three different panels on bills that deal with access to digital assets.

The Committee first heard testimony from the Ajemian siblings in support of, S.822, “An Act Relative to Access to a Decedent’s Electronic Mail Accounts,” sponsored by Senator Cynthia Stone Creem. As you’ll recall, the Ajemian siblings are parties to Ajemian v. Yahoo!, Inc., regarding the contents of an e-mail account established by their late brother.  There, the Supreme Judicial Court is currently determining whether the federal Stored Communications Act (SCA), 18 U.S.C. § 2702, prohibits disclosure of the contents of a deceased e-mail account-holder’s account to the administrators of his or her estate. In that case, the Ajemian siblings, the administrators of their brother’s estate, argue, in part, that they should have access under an exception to the Act, as agents for the decedent.

S.822 applies only to e-mail accounts but allows greater access to those accounts than the requirements set forth in RUFADAA. The bill allows personal representatives to gain access to the contents of an e-mail account upon a notarized written request by the personal representative or an order of the probate court that has jurisdiction over the estate of the decedent. Upon receipt of the request, the service provider has 60 days to comply, and this requirement supersedes provisions in e-mail service provider contracts, terms and conditions, or privacy policy unless the provider can show “by clear and convincing evidence, that it offered opt-out language, separate and distinct from the standard agreement or terms of service, whereby the decedent affirmatively declined to have the decedents electronic mail account released after dead.”

Next up, representatives from Facebook and NetChoice testified in opposition to S.822 and in support of Senator Lesser’s S.885, “An Act Relative to the Privacy of a Decedent’s Electronic Communication” (and Representative Livingstone’s identical H.3083, “An Act for Uniform Fiduciary Access to Digital Assets”). These bills are largely the same of RUFADAA, except the language limits the definition of “fiduciary” to a personal representative, while RUFADAA would cover personal representatives, conservators, trustees, and agents acting under the power of attorney. Notably, the Facebook witness also stated that they would be completely comfortable with the adoption of the full RUFADAA language instead of the more narrow S.885 or H.3083. These witnesses opposed S.822 because of the broader access to accounts the bill allows, as they worry it will push them to violate privacy guarantees, put them in conflict with the federal SCA, and tie them up in litigation.

This brings us to the final panel, which instead of testifying in support of any of the current bills, called for adoption of the full RUFADAA language, even though it hasn’t yet been filed in Massachusetts. BBA Trusts and Estates Section Co-Chair Joe Bierwirth, of Hemenway & Barnes, testified on behalf of the BBA, alongside Colin Korzec, of U.S. Trust, and Marc Bloostein, of Ropes and Gray, on behalf of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (“Standing Committee”).

Joe Bierwirth, Colin Korzec, and Marc Bloostein (right to left) testify in support of RUFADAA at Joint Committee on the Judiciary hearing. 

Overall, the panel presented the reasons for adoption of the complete RUFADAA language, including the balance it strikes in allowing access while also protecting privacy, and the clarity and certainty it will offer for fiduciaries, digital account users, and digital account service providers. The witnesses also stressed the unified support this language has achieved, both nationally, with adoption by more and more states in rapid succession over the past two years, and locally, with the BBA, the Massachusetts Bar Association, and the Massachusetts Bankers Association having all officially endorsed the RUFADAA language. (The written testimony offered by the panel also included the Standing Committee’s Massachusetts-specific analysis of RUFADAA, complete with proposed edits to the ULC’s model language in order to ensure it complies with the Massachusetts General Laws).

One thing all witnesses agreed on is that this is an issue crying out for action from the Legislature, in order to provide some clarity to what is now quite a grey area. As always, we’ll keep you posted on RUFADAA throughout the legislative session!

In related news, the BBA isn’t just sticking with legislative testimony to get the word out about RUFADAA. You won’t want to miss our podcast featuring Trusts and Estates co-chairs, Joe Bierwirth and Andy Rothstein, of Goulston & Storrs.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA at ABA Day 2017

Each April, BBA leadership treks to Washington, D.C., along with bar leaders from all 50 states, for ABA Day, the American Bar Association’s annual lobbying event.  This year, as usual, the primary focus of our efforts was on funding for civil legal aid.  And though federal appropriations were under threat at the time of our trip last week, by this week we had received welcome news—from both the Capitol and the State House.

First, a refresher: The Legal Services Corporation (LSC) is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million, of which about $5 million comes to four different providers in Massachusetts.  That budget is not nearly enough: It’s been essentially level-funded for years, even as the need for legal services has increased significantly, and one result is that an estimated 50 to 80% of qualified applicants must be turned away merely for lack of resources.

That’s why it’s critical that lawyers, who are at the front lines of this crisis, continue to make the case for LSC and civil legal aid.  The threat was even greater this time, after a White House budget plan proposed eliminating (or “zeroing out,” in budget-speak) LSC funding altogether.  A $5 million hit to legal services in Massachusetts alone would have been devastating—all the more so when you consider that the budget also sought deep cuts in services elsewhere, cuts that would’ve further increased the need for legal services.

All of this had legal-services providers on edge and lent a sense of urgency to this year’s ABA Day (which, full disclosure, takes place over three days). So it was nice to kick the event off with an awards ceremony for four members of Congress who’ve led the fight on ABA priorities, including our own Representative Joe Kennedy.

 

Rep. Joe Kennedy receiving the ABA Justice Award, alongside (left to right)
MBA President Jeff Catalano, ABA President Linda Klein, MBA President-Elect Chris Sullivan,
BBA President-Elect Mark Smith, and BBA President Carol Starkey

We’re proud of Rep. Kennedy for making this a priority and we were not only delighted to nominate him, along with the Massachusetts Bar Association, for an ABA Justice Award in recognition of his steadfast work to promote funding for legal aid and to end discrimination, but also thrilled to learn he’d been chosen as one of this year’s honorees.  To cite just one example of his commitment, Rep. Kennedy established a bipartisan Access to Civil Legal Services Caucus.  (The next morning, at an ABA breakfast, we heard from his caucus co-chair from across the aisle, Rep. Susan Brooks of Indiana.)

In receiving the award—after needling ABA President Linda Klein, of Atlanta, about the Super Bowl—Rep. Kennedy told the audience how his time as a young attorney with Greater Boston Legal Services had opened his eyes, allowing him to see the justice system through the eyes of his clientele: that is, as a complex maze that they couldn’t always navigate successfully without legal assistance.  He spoke of civil legal aid as a lifeline for working families—one that we need to fight for now more fiercely than ever before.  He thanked the BBA and MBA for making it such a priority, and he closed by saying, “Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”  (Of course you already know this, because you followed my live-tweeting, right?)

“Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”
—Rep. Joe Kennedy, ABA Justice Award recipient

With that event fresh in our minds, we headed off the next morning for a full day of meetings with the Massachusetts Congressional delegation.  To be clear, we have it much easier than the ABA Day participants from most other states, in that all our representatives stand with us four-square on LSC funding.  Our counterparts from elsewhere had their work cut out for them, educating their elected officials on the importance of, and the imminent threat to, the appropriation for civil legal aid.  Meanwhile, our group—including the BBA’s President, Carol Starkey of ConnKavanaugh, and President-Elect, Mark Smith of Laredo & Smith, along with their opposite numbers from the MBA, Jeff Catalano of Todd & Weld and Chris Sullivan of Robins Kaplan—had the opportunity to convey our appreciation for the delegation’s consistent support on our issues.

This extends not only to LSC, but also to the other top priority for ABA Day this year: access to justice for homeless veterans.  While the nation has made progress in recent years toward eliminating homelessness among our veteran population, there remain 39,000 homeless vets on any given night—and a staggering 1.5 million who live in poverty.  They face legal problems that are common to the poor, but also problems that stem directly from their service.  For example, time overseas—and, in particular, service-related disabilities, both physical and mental—can undermine a veteran’s ability to address legal issues when they arise, and if allowed to persist, these legal problems can become total barriers to critically-needed help.

 

Carol Starkey and Jeff Catalano with Rep. Mike Capuano,
a strong supporter of civil legal aid, as well as access to justice for homeless veterans

So on behalf of the ABA, we urged our members of Congress to enact the Homeless Veterans Legal Services Act, which would expand access to legal services for homeless veterans, and veterans at risk of homelessness, by authorizing the VA to partner with public and private entities and fund a portion of the cost of legal services.

That night, we attended an ABA reception at the Supreme Court, where Justice Elena Kagan spoke from the heart about advocacy for legal aid (“You are doing the Lord’s work,” she said), awards were given to Kids in Need of Defense (KIND) and long-time supporter Edwin Harnden of Barran Liebman (Portland, Oregon), and attendees more or less had the run of that historic building.

 

Carol Starkey and Mark Smith outside the US Supreme Court

ABA Day closed with a breakfast on our third day, where we got to hear from James Burnham of the Office of White House Counsel, who spoke about the work of his office, including the appointment of federal judges.  (We’ll have a new nomination for the bench in Massachusetts, with Judge George O’Toole, Jr., moving to senior status after 35 years as a state and federal judge.)  And finally, we were entertained by Minnesota Senator Al Franken, who made clear his fierce opposition to zeroing out LSC funding, calling such a move “callous”, “short-sighted”, and “penny-wise and pound-foolish.”   “We’re not gonna let that happen!” he pledged.

 

Sen. Al Franken speaking at an ABA Day breakfast

Sen. Al Franken: Eliminating LSC funding would be “callous”, “short-sighted”, and “penny-wise and pound-foolish” and “we’re not gonna let that happen!”

And with that, we were off.  But, oh yeah, I saved the best news for last:

  1. The same week we were traveling to D.C., the Massachusetts House was taking up its debate on the annual state budget—where, of course, the appropriation for civil legal aid is a top BBA priority. Here, the leading provider of funding is the Massachusetts Legal Assistance Corporation (MLAC).  We’ve covered that issue extensively in this space, but the update is that not only did the House Ways & Means Committee provide for a $1.5 million increase in the MLAC line-item, but thanks to a floor amendment last week from Ruth Balser, long-time champion of civil legal aid, the final House budget increased that figure to $2 million.  That would bring the total to $20 million, but now the debate shifts to the Senate, which will put forth their own plan later this month.  We will of course keep you updated…
  2. This week we learned that the Congress had worked out a spending plan to cover the remainder the current federal fiscal year, ending September 30. And we were relieved to see that it level-funds LSC at $385 million once again.  That’s well short of the $450 million we were asking for, but still far, far better than the $0 that the White House had recommended.  So the news came as a relief … but also a spur to continue our advocacy on this, because the justice gap is not going away any time soon.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Council Hears from the Governor’s Chief Legal Counsel

Last week, we were happy to welcome back Lon Povich, Governor Charlie Baker’s Chief Legal Counsel and former member of the BBA Council and the Statewide Task Force to Expand Civil Legal Aid. On his annual visit to Council he provided an update on three key areas of interest to members of the Bar:  1) Criminal Justice Reform, 2) the Budget, and 3) the Judicial Nominating Process.

Criminal Justice Reform

Lon Povich first spoke on criminal justice reform, highlighting the recent report released by the Council of State Governments (CSG).  We’ve been following the report, and related legislation filed in February by the Governor, closely. Overall, the report and bill focus on reducing recidivism in the Commonwealth, which is currently at about 40%. The Governor’s Proposed Budget allocated $3.5 million to fund the costs of implementing the recommendations in the report for the first year.

With the reducing recidivism goal, the proposed reforms include increasing programming for incarcerated individuals, providing more training for corrections officers, expanding the availability of behavioral health services, increasing credit for “good time served”, allowing good time to apply to some mandatory minimum sentences, strengthening the coordination between prisons and the Parole Board, and improving data collection. Overall, Povich characterized the bill as a start to criminal justice reform, but he thought it would attack recidivism head on. One member of Council expressed concern that if the legislation coming from the CSG report is rushed through the legislative process, momentum will be lost for more sweeping reforms, including front-end reforms that many stakeholders believe important, like those related to bail, collateral consequences, and mandatory minimums. In response, Povich said he did not see the CSG bill as a barrier, but instead a starting point. The narrow nature of the current proposed legislation reflected what it took to gain consensus among the sponsors of the CSG project, the Governor, the Speaker of the House, the Senate President and Chief Justice Gants, so he was worried if too many additional proposals were attached, it might not pass at all.

In addition to the above, Povich mentioned four other pieces of criminal justice legislation coming from the Governor’s Office this session. One relates to “fine time,” which is the practice of incarcerating individuals when they are unable to pay court fines and fees. The new bill would provide other options for defendants that cannot afford a fine and would provide counsel for indigent defendants facing fine time. The next bill would increase the penalty for assault and battery on police officers. The third bill would reform the current laws on the sharing of sexually explicit material, including “sexting” and “revenge porn.” The final piece of legislation he mentioned would update the wiretap statute, which was drafted in 1965, to account for modern technology and reform the types of crimes it covers. (Here at the BBA, we’ve also called for updates to the current wiretap laws.)

Budget Update

Next, Povich discussed the state budget, first noting that money is very tight right now, especially given the rising MassHealth costs. He spoke on funding for the Trial Court first, noting the 1% increase provided for in the Governor’s proposed budget as well as the inclusion of $11.7 million in the more recent House Ways and Means proposed budget to cover the pay raise legislation enacted since the Governor’s budget was released. He also mentioned the additional $1.5 million provided for the Massachusetts Legal Assistance Corporation (MLAC) in the House Ways and Means proposal. Finally, Povich noted that while the Governor’s budget allocated $1 million for expanding the jurisdiction of the Housing Court to the whole state, the House Ways and Means budget did not include any funding for this expansion. To wrap up his budget update, he discussed the rest of the budget process, which we’ve also covered in a podcast, and highlighted the significant impact BBA advocacy has on funding for the judiciary and civil legal aid.

To learn more about the funding of the Judiciary, civil legal aid, and statewide expansion of the Housing Court, check out our numerous updates on the budget!

Court Nominating Process

Finally, Lon Povich discussed court nominations under the Baker Administration, first noting that 53 judges had been appointed since the Governor took office. Around 33 vacancies remain in other courts, but nine are currently being scheduled for Governor’s Council hearings and six letters of nomination are about to be sent, so there are 18 positions for which nominees have not yet been identified. He called on the Council and the private bar to help in filling these vacancies by encouraging qualified attorneys to apply for these positions. He also highlighted that of the 53 new judges appointed during Governor Baker’s time in office, around 50% are women and around 20% are considered diverse, meaning they are members of racial or ethnic minority groups or members of the LGBTQ community.

In a follow-up question by a member of Council, Povich addressed whether the Governor’s Office would consider making the process to become a judge less arduous, in order to encourage more applications. Interestingly, when Povich previously addressed Council, it was on the heels of an Executive Order reforming the nominating process, which we outline in full here.  To summarize, the applications for judicial and clerk-magistrate positions are first reviewed by the Judicial Nominating Commission (JNC), a 21-member, statewide, non-partisan, non-compensated body currently chaired by former BBA president Paul Dacier and vice-chaired by former BBA Council member Roberto Braceras. Then, the Commissioner’s interview approved candidates and at least ½ of the Commissioners casting a vote amongst a quorum must agree to continue the application of the potential nominee. Following a period of thorough research and evaluation, a two-thirds vote is required for the JNC to forward an applicant’s name to the Governor’s Office to be considered for nomination. Typically, the JNC forwards between 3 and 6 potential nominees to the Governor’s Chief Legal Counsel, who then seeks input from the Joint Bar Committee (JBC). The JBC determines whether a candidate is well qualified, qualified, not qualified or there is insufficient information to evaluate the candidate. The JBC communicates its vote to the Governor’s office, and the Governor can nominate the applicant, deny the application, seek further commendation from the JNC, or re-open the application process.

In response to the question on whether the process could be simplified in order to encourage more applications, Povich responded by saying that he served on the JNC in both the Romney and Patrick administration who followed the same JNC process and that he believes the current three-step process is effective in ensuring that only top-quality candidates receive judgeships. Ultimately, he acknowledged the “triathlon” (JNC, Governor’s Office and Governor’s Council) that applicants must go through, but maintained that the work, by the applicants, the JNC, the JBC, and the Governor’s Office is all worth it to get the most qualified nominees.

With his earlier call in mind, if you’ve considered pursuing judgeship, or know someone who would make a great judge, now is the time to apply!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

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