Monthly Archives: October 2011

Inadequate Funding Threatens Delivery of Justice in MA

When the BBA speaks publicly about the state budget, we are generally talking about funding that impacts the Massachusetts legal system.  Specifically, that means advocating for funding for: the Committee for Public Counsel Services (CPCS), District Attorneys’ offices, legal services and the Judiciary.  It is incumbent on us – the private bar – to ensure that these four groups receive the resources necessary to function properly.  The BBA advocates annually for these groups and, lately, our advocacy efforts have continued year-round.

The demand on the legal system has never been greater.  At a time when governments are forced to slash budgets, more people who depend on public services are being turned away.  The legal system is often a place of last resort where people exercise their constitutional rights to seek relief in areas of housing, children’s services, employment matters, etc.  All across the board – from public defenders to prosecutors, from legal service attorneys to the courts – the legal system has suffered heavy losses in resources while trying to stay on top of rising caseloads.

Here’s why we need these four areas of the state budget adequately funded:

The right to appointed counsel for indigent persons is fundamental under our federal and state constitutions.  Massachusetts is obligated to provide competent legal counsel to every indigent person charged with a crime punishable by imprisonment, and CPCS is the state agency that manages these responsibilities.  The size of the budget needed to fulfill this obligation is dictated by the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In line with our commitment to the right to counsel is our commitment to ample funding for the prosecutors’ offices that seek justice in every case.  Without adequate funding for the state’s eleven district attorneys’ offices the effective prosecution of crime in Massachusetts would surely be compromised.

State funding for civil legal services is, in part, appropriated through the Massachusetts Legal Assistance Corporation (MLAC) line item.  MLAC is the largest funding source for civil legal aid programs in the Commonwealth, funding 17 legal aid programs that provide information, advice and representation to low-income people with critical, non-criminal legal problems.  Though MLAC also receives money from IOLTA revenue, the decline in real estate transactions – the largest contributors to IOLTA accounts – has caused this source of revenue to fall dramatically.

At the core of our legal system is the Judiciary, without which justice simply could not prevail.  As a separate branch of the government, the Judiciary is fully dependent on tax dollars for its operation.  The Massachusetts state courts are funded through state budget appropriations.  Today, the Governor signed a supplemental budget that provides some additional money to our woefully underfunded courts. But it’s still not enough.  The additional funding gives the courts some relief from the mounting pressure to do more with less.  It is welcome news to those who have become accustomed to budgetary disappointment.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Let’s Be Smart About Sentencing and Parole

The stakes are high when we begin talking about public safety, crime prevention and the overall functioning of the Massachusetts criminal justice system.  Rhetoric like “tough on crime,” “three strikes and you’re out” and “if you do the crime, you do the time” are often bandied about when criminal justice reform appears on the horizon.

This week’s Boston Globe editorial, “Curb parole for violent crime, but rethink drug sentencing,” urged lawmakers “to create a stronger, fairer, and more economical criminal justice system.”  While saying this will necessitate an “approach that cracks down on violent offenders while taking a fresh look at nonviolent drug offenders,” the editorial  speaks to the importance of understanding the dynamic  relationship between mandatory sentencing, parole and prison cell availability.

A bit of background. . .

Even before the Boston Bar Association published its 1991 report, The Crisis in Corrections and Sentencing in Massachusetts,  the BBA has been on the forefront of discussions on how to make the MA criminal justice system more effective.  We have long taken the position that mandatory  minimums and their “one-size-fits-all” approach do not allow for judicial discretion to impose sentences that actually fit the crime.

We have yet to see the Senate bill to which the Globe editorial alludes.  All we know is that the bill is expected to be taken up for consideration and a vote by the full Senate soon.  While it’s unlikely there will be a public hearing on this particular bill, nobody can say it’s come out of left field.  Let’s review a bit of recent history:

  • December 2010 – A parolee released from a triple life sentence killed Woburn police officer Jack Maguire.
  • January 2011 – All five members of the parole board, including the Executive Director, resigned.  The governor, several legislators and a district attorney dusted off their own habitual offender bills and filed them in the legislature, producing an array of bills aimed at making changes to the current laws.
  • September – All of these sentencing bills generated hours of public testimony at a hearing before the Judiciary Committee.
  • Right now – A bipartisan group of senators, appointed by Senate President Murray over the summer, is at work producing a soon-to-be released parole bill.

What we do know from our more than 20 years of work in this area is that any parole reform or habitual offender bill that does not take into consideration mandatory minimum drug sentences is bad public policy.  Parole and habitual offender reforms should be a part of a comprehensive crime package – but one that should include sensible mandatory minimum sentencing reform for drug offenses – because of the interrelatedness of our criminal justice system’s components.  Parole reform, habitual offender legislation and sentencing reform are inextricably connected and the time has come for Massachusetts to implement measured change in this area.

 

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Probate Bills Move Forward

Last Wednesday, in hearing room A-1 of the State House, the Judiciary Committee heard public testimony on 164 bills related to the broadly defined category of “crimes.”  Spanning the better part of the afternoon, the testimony addressed issues ranging from Governor Patrick’s high-profile gun crime bill to reinstating the death penalty to strengthening animal abuse laws.

Meanwhile, upstairs on the floor of the House, the details of a supplemental budget appropriation, which included $12 million in direct funds and $8 million in retained revenue fee collections for the Trial Court, was taken up and passed with a vote of 149-1.

While the supplemental budget and the crime bills captured the headlines the next day, the Judiciary Committee polled its members on the Massachusetts Uniform Probate Code (MUPC) technical corrections bill and the Massachusetts Uniform Trust Code (MUTC).  Both bills were ultimately reported out of committee favorably today.  These two pieces of legislation have been at the forefront of the BBA’s public policy agenda for years and represent the culmination of the efforts of task forces and a significant number of stakeholders.  We are encouraged that both bills have begun to move, particularly during such a busy and pressure-filled week for the legislature.

As of today, just 80 days remain until the estates portion of the MUPC takes effect; the guardianship portion became effective on July 1, 2009.  A delay in passing both the MUPC technical corrections and the MUTC legislation will result in unnecessary compliance costs, while also putting greater strain on an already overburdened Probate & Family Court.  The Court has been working around the clock to prepare for the implementation of the MUPC and any delays will only undermine their efforts to achieve a smooth transition.

Both bills address some of the shortcomings of the Commonwealth’s current trusts and estates statutes.  Although the two pieces of legislation are neither flashy nor easy to explain to non-lawyers, both are much-needed, commonsense measures seeking to ensure that soundness and equity prevail in Massachusetts law.  It is critically important to the bench, bar and the public that the legislature acts soon.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

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Chapter 11 Bankruptcy Venue Reform Gains Momentum

This week, Wilbraham-based Friendly’s Ice Cream Corporation announced that it would close 63 locations as it seeks to reorganize under Chapter 11 bankruptcy protection.  Friendly’s has a long history in Massachusetts, starting with its founding in Springfield in 1935.  Despite its local roots, Friendly’s joins a growing list of Massachusetts companies – including Polaroid and Evergreen Solar – who have filed for bankruptcy protection in Delaware.

Once upon a time companies were required to file for bankruptcy where their corporate headquarters or corporate assets were located.  Then Congress expanded those choices to also include where the company is incorporated or the place a corporate affiliate has previously filed.  While the expanded statute gives courts the power, on request, to overrule venue choice if it is inconvenient or unfair, an employee trying to save her job or pension is ultimately unlikely to petition the courts.

Since 2005, federal legislation to curb venue shopping has been filed and H.R. 2533, The Chapter 11 Bankruptcy Venue Reform Act of 2011 was introduced again this session.  The bill would require corporations to file for bankruptcy protection in the judicial district where they have their principal place of business.

Supporters of the bill say that companies should be forced to reorganize close to home, so that local employees and creditors can more easily participate in the bankruptcy process.

Opponents have pointed to the fact that anyone can file a motion for change of venue.  In reality, doing so is not only inconvenient but expensive.  In previous sessions, a notable opponent was former Delaware Senator Joe Biden.  This session, the Bar of the City of New York has opposed the bill.  Both Delaware and the Southern District of New York seem to enjoy a monopoly on these types of cases.  It is said that an overwhelming majority of these cases are filed in those two districts.

Early indications suggest that this legislation may actually have the momentum to pass this session.  In September, the House Subcommittee on Courts, Commercial and Administrative Law held a hearing on the bill.  Among those who testified was Chief Judge Frank J. Bailey of the United States Bankruptcy Court for the District of Massachusetts.  Chief Judge Bailey testified on his own behalf, travelling to Washington D.C. at his own expense, and pointed to the serious unintended consequences of the current law.

The BBA is reviewing this legislation.  The Bankruptcy Section has already voted to support the legislation and it should be on the BBA Council’s agenda next month.

By filing hundreds or thousands of miles away from their headquarters, companies disenfranchise employees, marginalize pensioners and disregard stakeholders who have invested heavily in the corporation.

Big corporations like Friendly’s really are part of their local communities – they employ residents, contribute to the local economy and pay taxes to local governments.  Communities, like Wilbraham, take pride in their association with and commitment to their businesses.  Bankruptcy venue shopping is not just a loophole – it violates a community’s trust.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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