Monthly Archives: June 2011

Behind the Budget — Important Business Law Updates

As of this writing, it looks like Massachusetts will finally have a budget just in time for Fiscal Year 2012.  The budget conference committee needs to file the final budget bill by 8 p.m. tonight in order to bring the budget to the House and Senate floor for final approval Friday.  With a big focus on the state budget, progress on other important bills could be stalled. As you know, an essential component of the BBA’s work is improving the quality of Massachusetts’ laws. Take, for example, a piece of legislation providing technical corrections to the Business Corporations Act of 2004.

A little background. . . In 2004, the Legislature completely rewrote the corporate business laws, which had not been updated for more than 30 years.  Simply put, chapter 156B was replaced by chapter 156D.  But chapter 156B was not repealed, nor did the legislature update all of the cross-references in the Massachusetts banking statute.  The unfortunate upshot is that today, a lawyer planning a corporate transaction for a Massachusetts bank must now refer to at least three chapters of the General Laws to decipher the cross-references in the banking law.

The proposed technical corrections bill, originally drafted and filed in 2008 by lawyers at Pierce Atwood as a pro bono project, was referred to the Joint Committee on Financial Services and placed into a study order last session.  In April 2010, the proposed technical corrections legislation was endorsed by the BBA Council.  We’re now working together on this with Pierce Atwood and our partners at the Mass Bankers Association.

And there’s even more work to do on chapter 156D.  Stan Keller, an original drafter of chapter 156D and a partner at Edwards Angel Palmer & Dodge, has asked the BBA to assist in his efforts to make other corrections to chapter 156D that will clarify various sections, reconcile inconsistencies, and fix omissions found in the current statute.  These technical corrections are contained in H 2774.

The difficulty here isn’t convincing the legislature that the two housekeeping proposals are beneficial to the Massachusetts business climate. The real challenge is drawing the legislature’s attention to these common sense and important updates.

– Kathleen Joyce
Government Relations Director
Boston Bar Association

Myths of Mandatory Sentencing

It seems everyone agrees that Massachusetts’ criminal sentencing laws need improvement.  Public safety, crime prevention, and punishment are important things to consider when contemplating any reforms in this area.  Yet it’s also important to understand that laws aimed at significantly lengthening prison sentences and making them mandatory, or changing parole eligibility, will impose more costs on our criminal justice system.

For the first time, the Legislature may be debating a habitual offender bill this session.  Earlier this week, we learned that these habitual offender bills, though seemingly losing steam after an emotional hearing before the Judiciary Committee in March, have been actively considered behind the scenes.

At the public hearing on March 16th, there were three bills under consideration that dealt with mandatory minimum sentences for serious crimes, including one that would eliminate parole for repeat violent criminals, with no regard to the facts of an individual case.  The other two bills, as currently drafted, would expand mandatory minimum sentencing to non-violent offenses including drug crimes, check fraud, and even tax evasion.  Although well-intentioned, these proposals capture crimes that, while being harmful to society, do not present a danger to the general public.

Because of time constraints, the BBA did not analyze the details of each of the bills.  But the BBA does oppose mandatory minimum sentences, with the exception of crimes mandating life imprisonment for murder.  The bills are overly broad, do not exclude nonviolent drug offenses, and would undoubtedly result in lengthy and costly sentences.  Here are some of the reasons the BBA opposes mandatory minimum sentences:

  • they have caused prison and jail overcrowding;
  • they have resulted in an increase in court congestion;
  • they have not reduced our serious crime problem;
  • criminal sentences need to correspond with each offender’s individual culpability and still give judges discretion.

Mandatory minimum sentences in drug cases are notoriously unjust because the laws do not differentiate between the drug kingpin and the first time drug offender.  As a result, prisons are being filled with low-level drug offenders serving protracted sentences.

Currently in Massachusetts, convicted felons are eligible for parole after serving half of their sentence, except for first-degree murderers, who are not eligible for parole.  Those convicted of second-degree murder must serve 15 years of a life sentence before they are eligible for parole.

By failing to take a nuanced approach we could end up with very serious and unintended consequences.  Massachusetts needs to be both tough, but also smart, on crime.

Any habitual offender law that the Legislature considers needs to be drafted so that only the most violent offenses are targeted.
– Kathleen Joyce

Government Relations Director

Boston Bar Association

All Politics Really is Local

Tip O’Neill once said “all politics is local,” when asked to describe how the problems and concerns of towns and cities around the country affect the actions of their Congressmen and Senators in Washington, D.C.  This remains as true today as it was then.

Big-city politics start with small-town political issues.  Or said another way, what may seem important to only a discrete group of people – like lawyers – can actually end up being good policy for everyone.  For example, the new Massachusetts Homestead Reform Act is good consumer policy for all.  Similarly, this year’s effort to keep the probation department in the judicial branch where judges can closely monitor probationers is important to every city and town in Massachusetts.  But the wisdom in the late Congressman’s phrase isn’t limited to how politics works on Capitol Hill or Beacon Hill.  The phrase can also apply to building an effective campaign strategy.

On June 22nd, the BBA’s Public Interest Leadership Program (“PILP”) will host their annual “All Politics is Local” program.  Every year PILP participants put this program together to inspire and encourage attorneys to run for office.  Panelists often talk about what it means to be a lawyer and to be actively involved in local politics.  They’ll describe the basics of starting a campaign and the challenges of balancing an active law practice with what it takes to run for office.  This year’s panel includes: the Honorable Maura Doyle, the clerk of the Supreme Judicial Court for Suffolk County; William Kennedy, a former chief legal counsel to the Office of the Speaker of the House and now a partner at Nutter, McClennen & Fish; Joseph Driscoll, a former state representative and now a senior vice president at O’Neill and Associates; and Michael Day, an associate at Mintz Levin who ran for state senate in 2010.

A race for public office at the local level does not usually depend on huge campaign budgets, prime time television ads, or highly publicized debates.  It’s more common to hear stories of worn out shoes, scoured rolodexes and hours spent knocking on doors.  Running for office is daunting, but serving in public office can be gratifying.  A campaign provides only a limited amount of time to capture the imagination of voters and differentiate your vision from that of your opponents.

While the practice of law has long been seen as a launching pad for political candidates, that’s no longer true. This past election cycle saw a 20 percent drop in lawyer-legislators at the State House.  The number fell from 65 to 53 out of a total of 200 legislators.  Still, lawyers need not run for office in order to be involved in local politics.  After all, part of being a lawyer is being an active citizen.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

State House Update

With less than 8 weeks left for formal legislative sessions, the Legislature’s focus has shifted away from the state budget and onto other, significant policy issues.  Last week two conference committees were named to reconcile the differences between the House and Senate versions of the state budget and the court reorganization bill.  This week the Judiciary Committee heard testimony on two bills of importance to the BBA.  Here’s a snapshot of some of the things we’re keeping our eyes on.

Court Reorganization Bill in Conference

The Court Management Conference Committee has been appointed to come up with a single version of H 3395 and S 1911.  In May, both the House and Senate advanced the court reorganization bills with unanimous votes.  While both bills would split trial court oversight between civilian court administrators and judicial managers and impose stricter hiring standards with wide reforms relative to job recommendations, there are differences between the bills.  For instance, the Senate’s bill eliminates several new management positions proposed by the House bill.  The six members of this conference committee are Senators Creem, Joyce and Tarr and Representatives O’Flaherty, Dempsey and Winslow.

State Budget in Conference

With budget deliberations complete in both branches, the Budget Conference Committee, the group tasked with negotiating the differences into a single budget bill, met for the first time on Wednesday.  The final budget has to be in place by July 1st, but their work must be resolved before that in order for Governor Patrick to have the required statutory 10 days to review the budget proposal and offer amendments and vetoes.  The six members of the Budget Conference Committee are Senators Brewer, Baddour and Knapik and Representatives Dempsey, Kulik and deMacedo.

June Judiciary Hearing

Yesterday the Judiciary Committee held a public hearing lasting nine hours in a packed Gardner Auditorium.  The BBA participated in the hearing by supporting two bills on the agenda.  The BBA submitted written testimony in support of the Transgender Equal Rights bill, joining with advocates from theMassachusetts chapter of the ACLU.  The Transgender Equal Rights bill will extend explicit protection in discrimination and hate crimes cases to transgender people.

The second piece of legislation, S 753 and H 2165 the Access to DNA bill, will provide post conviction access to DNA evidence.  David E. Meier, Martin F. Murphy, Gregory J. Massing, and David M. Siegel, all experts in the criminal justice system and members of the BBA Task Force to Prevent Wrongful Convictions, testified on behalf of the BBA in support of legislation that would put in place a mechanism for post conviction DNA evidence testing.  The panel discussed their work on the Task Force, presented the need for this statute and set the stage for a group from the New England Innocence Project which followed with compelling stories of how Massachusetts’ lack of an access to DNA testing statute has harmed them.

Betty Anne Waters shared her story.  Her brother Kenny was wrongfully convicted of murder and robbery in 1983, and spent 18 years in prison while Betty Anne earned her college and law school degrees in order to represent and exonerate him.  The Committee also heard from Dennis Maher who was wrongfully convicted of two rapes and an attempted rape.  Dennis was sentenced to 20 to 30 years in prison but was finally released after DNA proved he did not commit those crimes.  Dennis’ Op Ed describing what happened to him appeared in yesterday’s Boston Herald.

Alimony Reform Moves Favorably from Judiciary

The Alimony Reform Act, S 665, was reported favorably by the Judiciary Committee last week.  It is expected that the House will debate the bill next Wednesday.  The bill will move on to the Senate soon after the House finishes its debate.  You can read more about the BBA’s efforts on the Alimony Reform Act from our coverage here on Issue Spot.

Human Trafficking Bill Moves to the Senate

One bill that the BBA is watching but has not yet taken an official position on is the Human Trafficking bill.  This bill would establish state crimes of human trafficking and has already passed the House.  Attorney General Martha Coakley and Suffolk County District Attorney Dan Conley have been champions of this legislation.  Our Criminal Law Section began discussing this issue after the AG outlined her legislative priorities at a BBA program held in early April.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Let’s Extend Equal Rights to Everyone in Massachusetts

Think about it!  EMC, Harvard University, Harvard Pilgrim Health Care, and John Hancock – to name just a few – are among the growing number of Massachusetts employers providing equal opportunities and protections to transgender people.  Shouldn’t our state laws do the same?

Since legislation was first filed in 2007, the BBA has supported adding “gender identity and expression” to the state’s civil rights laws and to the list of offenses that are treated as hate crimes. A simple update to the Massachusetts discrimination laws, An Act Relative to Transgender Equal Rights really is a civil rights bill that would provide explicit protection to transgender people. Current Massachusetts civil rights laws prohibit discrimination only on the basis of age, race, creed, color, national origin, sexual orientation, sex and marital status.

Isn’t it about time that Massachusetts joins the growing number of states that already have laws protecting transgender people? A June 8th Judiciary Committee hearing is the next step in that process.  The Judiciary Committee will hear testimony on H 502 and S 764, filed in the House by Representative Carl Sciortino and in the Senate by Senator Benjamin Downing.

We have made progress in this area.  The Boston City Council passed a transgender protection ordinance nine years ago and earlier this year Governor Patrick signed an executive order banning discrimination against transgender state workers.  With this order, Massachusetts joins several other states with executive orders protecting transgender state workers.

While these are significant steps, Massachusetts should protect all workers and not just state workers.

As in past legislative sessions, supporters of this proposal will probably far outnumber opponents.  Even so, next week’s Judiciary Committee hearing is important.  If this bill is passed, Massachusetts won’t be just joining a growing number of jurisdictions around the country that are enacting transgender-inclusive laws, but will be making a significant statement — that discrimination against transgender individuals is inconsistent with our common desire to live in a just society.

-Kathleen Joyce

Government Relations Director

Boston Bar Association