Monthly Archives: May 2012

Fisher Decision Will Affect Diversity at Every Level

In August, the Supreme Court of the United States will hear arguments in Fisher v. University of Texas, an affirmative action case challenging the admission policies and practices of the University of Texas at Austin.  The Supreme Court granted certiorari on the question of whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the university’s use of race as a factor in undergraduate admission decisions.

In Fisher, the U.S. District Court for the Western District of Texas held that, under the Supreme Court’s decision in Grutter, the university had a compelling interest in attaining a diverse student body.  The District Court concluded that the university’s admissions program was narrowly tailored to serve that interest.  On appeal to the Fifth Circuit, the three judges on the panel all voted to affirm the district court ruling, relying on the Grutter decision.

The BBA’s Diversity & Inclusion Section has asked the BBA to weigh in on the issues raised in Fisher.

This isn’t the first time the BBA has been asked to take a position on race-conscious admissions policies.  The BBA was an amici in Grutterarguing that not having race-conscious admissions policies would harm efforts to diversify the legal profession.  Grutter involved the use of race-conscious admissions policies at the University of Michigan Law School. The BBA’s amicus brief in Grutter urged the Supreme Court to uphold race-conscious admissions policies as vital to integrating the legal profession.

The issues raised in Fisher and in Grutter are important to the BBA.  A diverse and inclusive legal community is central to the BBA’s mission — to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large. The BBA has consistently taken the position that race-conscious admissions policies are necessary to ensure that the legal community reflects the growing diversity of our population.  A legal community that accurately reflects the composition of the people it serves instills confidence and helps ensure that every person has equal access to justice.

Diversity as a concept is broader than just race and gender.  In the context of the BBA, valuing diversity means recognizing the unique professional contributions that different individuals can make, and creating an environment that maximizes the potential of all members.  The BBA has made diversity a part of its institutional culture in recent years, but we can do more.  Diversity is now an ongoing discussion and not a just an agenda item.

The Fisher decision promises to have serious implications for affirmative action policies, and ultimately our ability to integrate the legal profession.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Innocence Programs Poised for New DNA Law

As we reported last week, the new DNA law – now known as M.G.L.C. 278A – will provide post-conviction access to DNA and testing for those who assert factual innocence.  The new law not only provides access to DNA and testing but it also provides a roadmap for the preservation of evidence in cases.  We wanted to know how case screenings and assignment of counsel will be handled with respect to the new law.  We reached out to Lisa Kavanaugh, Program Director for the Committee for Public Counsel Services Innocence Program, and Gretchen Bennett, Executive Director at the New England Innocence Project, to learn more.

The CPCS Innocence Program and the New England Innocence Project (NEIP) are both supported by a grant from the Wrongful Conviction Review Program at the Bureau of Justice Assistance, a component of the Office of Justice Programs.  The Office of Justice Programs works in partnership with the justice community on the federal, state, local and tribal level to identify the most pressing crime-related challenges confronting the justice system and providing information, training and innovative strategies for addressing these challenges.  NEIP is also supported by generous private donations.

Under the new law, CPCS will receive requests from the courts and directly from inmates.  Initial requests of this nature go to the CPCS Private Counsel Appellate Division, and if the request is found to be premised on a claim of innocence, the request is referred to the CPCS Innocence Program.  Applicants are asked to complete a referral questionnaire before the case is then screened to determine whether it meets the criteria for the Innocence Program, and if so, counsel is assigned.  There are over 700 attorneys who are certified to handle appeals or post-conviction matters at CPCS.  Roughly 300 attorneys are considered “active” – attorneys that take at least one case assignment per year.  In order to be certified to handle these appeals, the attorney must complete an application process, a certification process and specific training coordinated through CPCS.

NEIP is an independent, nonprofit organization that was founded in 2000 to assist persons convicted of crimes who claim factual innocence.  Individuals seeking NEIP’s help must fill out a 26 page questionnaire to apply for assistance.  Screenings of these cases are handled by professor-led law clinics at local law schools where students sift through the requests and make recommendations as to whether NEIP should move forward on a case.  These recommendations are presented to the case review committee at NEIP, a group composed of law professors and expert attorneys with experience in prosecution or defense.   If the case review committee decides that NEIP should accept the recommendation for representation, NEIP draws on its network of private law firms who take these cases on a pro bono basis.  The most experienced appellate attorneys at these firms handle innocence issues for NEIP.  Included in the network of firms that are getting ready now to move forward with innocence cases under the new law are BBA Sponsor Firms Goodwin Procter LLP and Skadden, Arps, Meagher & Flom LLP.

Thanks in part to the new law, NEIP has 10 cases ready to go forward.


-Kathleen Joyce
Government Relations Director
Boston Bar Association

State House Happenings

Today, May 17th, marks the day that Massachusetts joins the 48 other states that provide post-conviction access to DNA and testing.  Getting to this point has been a long time coming as bills providing for such testing have been filed for years in the legislature.  The BBA’s involvement began in 2008 with the formation of the Task Force to Improve the Accuracy and Reliability of the Criminal Justice System.  Since then, the BBA and our partners have been working on this issue and we’re pleased that the standard now in Massachusetts will be a statutory right for a defendant to obtain access to forensic and scientific evidence in their case.  To read more about the new law check out this article by Professor David Siegel of New England Law | Boston and Gregory Massing, Executive Director of the Rappaport Center for Law and Public Policy.

Come on Oklahoma, make it 50 for 50!

*    *     *

Yesterday, May 16th, the Massachusetts Senate Ways and Means Committee released its proposed budget.  Senators have until Friday, May 18th to file any amendments either on behalf of themselves or their constituencies.  The full Senate will debate the budget beginning the week of May 23rd.

The BBA views funding for the justice system as more than just the sum of its parts.  From our vantage point, adequate funding is a fundamental challenge facing the entire justice system – Committee for Public Counsel Services, District Attorneys, civil legal services providers and our state courts.  As we continue to look at the needs of the entire system and exactly what is needed to serve the people of the Commonwealth who rely on the justice system every day, we will keep a watchful eye on what happens in the Senate next week.

While the salaries for assistant district attorneys are still abysmally low, D.A.’s fared marginally better in the Senate budget proposal than they did in the House.  Below is a closer look at the other pieces of the justice system’s budget – the Trial Court, the Massachusetts Legal Assistance Corporation and CPCS:

The Massachusetts Trial Court – The Trial Court’s request for FY13 was $593.9 million

  • Senate budget proposal – $561.9 million
  • House budget – $560.9 million
  • Governor’s budget – $429.7 million (moved the Probation Department to the Executive Branch)

* The Trial Court estimates that the Governor’s budget for the Trial Court with the Probation Department included would be $568 million

The Massachusetts Legal Assistance Corporation – MLAC’s request for FY13 was $14.5 million

  • Senate budget proposal – $11 million
  • House budget – $12 million
  • Governor’s budget – $12 million

Committee for Public Counsel Service – CPCS’s request for FY 13 was $186.4 million.

  • Senate budget proposal – $162.4 million.  Neither the Senate Ways and Means budget proposal nor the House budget includes a mandated staff expansion that the Governor’s budget proposed.
  • House budget: $162.6 million
  • Governor’s budget: $164. 5 million – proposes a CPCS expansion increasing the 25% staff model to a 50% staff model to handle indigent criminal cases.

We urge you to call or email your state senator (if you don’t know who your state senator is, look it up here).  Ask your state senator to co-sponsor and support Senator Creem’s amendment to increase the MLAC line item to $14.5 million.  Also, ask your state senator to urge Senate President Murray and Chair of the Senate Ways and Means Committee Brewer to support Senator Creem’s amendment.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

The Low Down on Judicial Salaries

Next Wednesday, May 16th, the Massachusetts Senate will release its proposed Fiscal Year 2013 budget.  The Senate debate on the budget will begin the week of May 21st and the BBA is still pressing for more money for our justice system – in particular for our state courts and for civil legal aid.  The need for increased funding and the impact of an inadequately funded judiciary have been described most recently here and here.  Fundamental to the administration of justice – and an important piece of the justice system puzzle – is the full and fair compensation of our state court judges.  Being able to recruit and retain the highest caliber of judges is an integral part of our ability to provide the highest quality of service to all people who use our courts.

While we appreciate the gravity of the current economic conditions, especially when it comes to the state budget, it’s of serious concern that salaries for Massachusetts trial court judges rank 47th in the country.

Some sobering facts…

  • The last salary increase for Massachusetts state court judges was in 2006.  The previous salary increase was in 2000.
  • In 2008, Governor Patrick appointed the Advisory Board on Compensation, now known as the Guzzi Commission, to study the adequacy of compensation of high-level officials in the executive, legislative and judicial branches of state government.  The Guzzi Commission’s recommendations included a salary increase for judges indexed to the Consumer Price Index for Urban Workers for the Northeast Region.
  • The National Center for State Courts released its latest Survey of Judicial Salaries in July 2011 with alarming news for Massachusetts.  The report found that Massachusetts judges’ salaries ranked in the bottom half nationally for judges in the highest court, appellate court and trial court.  With cost of living adjustments, Massachusetts Trial Court judges’ salaries rank 47th in the U.S.

The BBA has been looking at this issue for more than twenty years, and this issue has come into focus again with legislation that has been filed by Representative Ellen StoryH 2265, An Act relative to the compensation of judicial officers and cost of living adjustments, would provide our state court judges with adequate salaries and a mechanism for keeping them consistent with the cost of living.

In 1992 the BBA’s Committee on Judicial Compensation issued a report, A Call for Continued Excellence: Fair Compensation for Our Judges and Judicial Employees, concluding that by almost every relevant statistical measure, compensation levels for judicial system employees are inadequate.  The Report went on to say that the inadequacies in compensation levels have a negative impact on the ability to retain experienced judges and court personnel, efforts to recruit qualified candidates and morale of court personnel.  The Report also recommended that a permanent mechanism be established whereby judicial salaries would be indexed to the inflation rate or to cost of living increases.

The BBA revisited the issue in 2000.  That group’s report, Judicial Salaries in Massachusetts, concluded that judges in Massachusetts remain under compensated compared to judges in other states, the federal system and to junior attorneys.

H 2265 is consistent with the principles that the BBA supports on this issue: adequate compensation of judges and the institution of a permanent mechanism that makes annual adjustments to reflect cost of living increases.  These things are fundamental to the administration of justice and need to remain a high priority regardless of the economic straits of the Commonwealth.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief on Adopted Children Statute

The latest BBA amicus brief was filed on Monday, April 30th in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  The Bird case, currently before the Supreme Judicial Court (SJC), deals with ambiguities regarding adopted children as beneficiaries of a family trust.  The Bird case is an opportunity for the SJC to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute, which became effective on July 1, 2010, retroactively changed the understood rule of construction of terms like “child,” “grandchild” and “issue” to include adopted children, even for instruments created when the law did not include adopted children within those terms.

In its amicus, the BBA urges the SJC to rule on whether retroactive application of Chapter 524 (as currently interpreted) is constitutional and, if so, to provide guidance on the consequences for actions taken by fiduciaries relying on Chapter 524.

Filing amicus briefs is just one way that the BBA makes its views on matters of policy known.  We also draft legislation, comment on proposed government actions and legislative proposals developed by other groups, and publish reports and written statements.

The BBA gets several requests to file amicus briefs each year.  In the last three years we’ve filed four briefs.  However, we’ve received at least twice that many requests.  The BBA’s standard for filing an amicus brief or signing onto an amicus brief prepared by another entity is that the position sought to be advanced must relate to (a) the practice of law; or (b) the administration of justice – exceptions to this rule are considered on a case-by-case basis.  In the Bird case, the brief relates to “the practice of law.”

The BBA has been an amicus curiae in cases that have altered the policy landscape in Massachusetts and the United States.  Here are just some examples of our work in this area in the last few years:

  • Grutter v. Bollinger – The Michigan affirmative action case holding that race conscious admission policies are vital to integrating the legal profession.

Brief Background on the BBA’s Interest in the Bird Case

In May 2009, the BBA Council voted to support An Act to Repeal the Adopted Children’s Act which, if passed, would repeal Chapter 524 of the Acts of 2008 (as would a ruling by the SJC in the Bird case that Chapter 524 is unconstitutional).  During this current legislative session, the BBA filed An Act to Repeal the Adopted Children’s Act, known as H 2262.  H 2262, now under consideration by the Joint Committee on the Judiciary, would also provide that such repeal would not affect the validity of any action taken or distribution made pursuant to Chapter 524 while Chapter 524 was in effect.

While seeking a legislative fix, we learned of the Bird case.  The decision to file an amicus brief in this case came after a vetting process that began with debate and discussion in the steering committee for our Trusts & Estates Section.  The steering committee of the Trusts & Estates Section felt strongly that retroactive changes in the law which affect vested property interests, including beneficial interests in trust, raise serious constitutional concerns.  They requested the BBA’s Amicus Committee review and consider their request to file an amicus.

The BBA’s Amicus Committee, responsible for reviewing amicus requests and making sure that any potential brief fits into the BBA’s established criteria, discussed the request and also invited opposing counsel to provide input as to whether or not the BBA should weigh in on this issue.  In this situation the Amicus Committee decided to recommend to the BBA’s Executive Committee and Council that the BBA weigh in as amicus curiae in the Bird case.

The SJC is set to hear arguments on this issue on May 7th.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association