Monthly Archives: February 2011

D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

LSC Fighting Off Federal Cuts

Legal services providers face another yet another blow – following last week’s announcement that the new House Appropriations Committee has proposed a $70 million cut to the Legal Services Corporation (“LSC”) for Fiscal Year 2011.  This immediate cut would be catastrophic to the delivery of legal services in Massachusetts because it would mean an 18% reduction in LSC’s annual funding.  (Because we are already half way through the current fiscal year, legal services providers tell us this actually translates to a 36% cut.)

There have already been serious reductions in other funding sources upon which LSC-funded programs also depend – especially Interest on Lawyers’ Trust Accounts (“IOLTA”). As we noted in a previous post, record low interest rates and reductions in the number of real estate transactions have resulted in dwindling IOLTA revenues.

What the House Appropriations Committee proposed last week is in contrast to what President Obama’s unveiled his budget this week.  For Fiscal Year 2012, President Obama actually proposed an increase of $30 million for LSC.

LSC provides grants to independent local programs and currently funds 137 local programs, serving every county and Congressional district in the nation. LSC distributes 97% of the funds it receives to these programs.  Massachusetts has four LSC-funded programs: the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy.

If this mid-year cut goes through, the entire legal aid delivery system in Massachusetts will suffer.  LSC has a big budget battle ahead of it. The BBA has already tried to do its part.

Today (February 17th), BBA President Don Frederico sent every member of the Massachusetts Congressional Delegation a letter urging no cuts in LSC funding. We will also join the American Bar Association in D.C. this April to lobby for funding for Fiscal Year 2012.  We urge Congress to adequately fund legal services to provide access to justice for poor people in the United States.

N.B. Some organizations in Massachusetts, such as Greater Boston Legal Services, do not receive LSC funding, and they still need our help.  That budget battle – to hold onto level funding – has just begun in the state Legislature.  Please be sure to join us next week at Walk to the Hill.  The event has been rescheduled for Tuesday, February 22nd at 11:00 AM in the Great Hall at the State House.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

Debunking Legal Aid Myths

On Monday, the Boston Herald’s website ran an item from the Associated Press mentioning Supreme Judicial Court Chief Justice Ireland’s support for civil legal aid and his appearance at the Equal Justice Coalition’s annual Walk to the Hill.  The 4-sentence story generated a few reader comments demonstrating how little some people know about the important work of legal service lawyers in Massachusetts.

Sure, lawyers can be easy targets for people venting their frustrations, but sometimes that venting defies reason.  “If you (Chief Justice Ireland) and all your lawyer buddies who make mad money by charging crazy amounts/hour are so into helping the poor, then do it for free,” wrote Boston Dave.

Some lawyers certainly make good money working at private law firms. But really, BostonDave, those who dedicate each of their days to providing legal services to the poor barely enough to make ends meet.  Legal services organizations are hurting and the poor people that need legal services the most are hurting badly.

Another ill-informed Herald reader referenced the recent coverage of the MBTA putting cameras on buses and trains to stop people from filing frivolous law suits:  “I suppose that the MBTA can expect to see a gigantic rise in the filing of lawsuits, despite the presence of cameras in the buses,” wrote Jestme7284. “Now the people with the free lawyers will check to see if there is a camera before falling down.”

Just for the record, Jestme7284, legal service lawyers don’t do personal injury cases, which are handled by the private bar, typically on a contingency fee basis. Legal services lawyers represent clients in cases involving fundamental sustenance, such as housing, employment, access to government benefits, and domestic violence.

A word about the attorneys at big firms that show up at Walk to the Hill…Many of these lawyers give generously of their time, accepting pro bono assignments from organizations such as the Volunteer Lawyers Project. They also give generously of their money to charities providing legal aid for poor people.

At the Walk to the Hill event, they will take the time to meet with their legislators to talk about the importance of public funding for legal services.  Walk to the Hill is a symbolic showing of the legal profession’s solidarity in recognizing that everyone deserves access to justice – and not just those that can afford lawyers.

Unfortunately dumb jokes and ill-informed comments about lawyers are nothing new. But legal aid for the poor should be the one thing that all of us can agree is a good thing.  Alas this year the weather didn’t cooperate, and Walk to the Hill has been rescheduled for Tuesday, February 22nd.  We hope you’ll show up and demonstrate your support for legal services.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org