Monthly Archives: August 2012

Bird Decision is Another Victory for T&E Attorneys

Tuesday’s  SJC decision in Rachel A. Bird Anderson vs. BNY Mellon, N.A. trustee and others, helped reinforce our belief that there’s no one tool for achieving public policy goals. When we failed to secure the passage of legislation that would repeal an overly broad 2009 amendment to the adopted children statute yielding unintended consequences, we turned our energies to an amicus brief. Our brief identified the confusion resulting from the 2009 amendment; in its decision in Bird, the SJC provided essential clarification.

It’s rewarding to read the SJC’s decision on many levels.  It settles a family dispute, provides trustees with much needed assurances and also means that the BBA won’t need to re-file legislation we’ve supported since 2009.  The BBA’s bill, An Act to Repeal the Adopted Children Statute, was drafted as a statutory fix to the problem that the Bird decision just solved.

When this issue was first brought to our attention, the BBA worked quickly to file legislation that would repeal language that had broad and far reaching implications on trust instruments dealing with adopted children.  As we described in Issue Spot, the BBA succeeded in obtaining a one year postponement of the original effective date of this new law and has been working since then to repeal it.

This past legislative session, the BBA’s repeal of the adopted children statute became part of a number of pieces of legislation to address various trusts and estate problems.  These bills included a proposed Massachusetts Uniform Trust Code (MUTC), technical corrections to the Massachusetts Uniform Probate Code (MUPC), and an estate tax patch.  Now that the SJC has weighed in on the adopted children statute, we can claim victory for all but a small portion of our trusts and estates agenda. Earlier this summer Issue Spot reported on the passage of the MUTC and technical corrections to the MUPC.

Our success is particularly gratifying because it can be difficult to catch the attention of the Legislature on trusts and estates matters.  They aren’t splashy or as headline grabbing as, say, casinos or health care reform. Our dedicated and highly knowledgeable members deserve the credit for volunteering their time to testify, meet with legislators and draft impeccable amicus briefs. We will next focus our trusts and estates energies on the estate tax patch and any other emerging issues in this area.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Participating in the Process Means Commenting on SJC Rules Changes

The Massachusetts Supreme Judicial Court, the highest appellate court in Massachusetts, renders about 200 written decisions each year and the single justices decide another 600 more cases.  The SJC has general superintendence powers over the judiciary and the bar, and in certain cases will provide advisory opinions to the Governor and the General Court.  The SJC also promulgates rules for the operations of all the state courts.

Court rules are so numerous that in order to effectively review them, the SJC has put together several committees to examine issues and proposals that effect court rules.  Two of them – the Standing Advisory Committee on Rules of Civil Procedure and the Standing Advisory Committee on the Rules of Criminal Procedure – are currently reviewing rules and report to the SJC’s Rules Committee.  This is where the BBA comes in.

Feedback from the bar on the practical implications of rules changes is important.  And our Sections provide a useful vehicle in which to discuss proposed amendments or changes to such things like procedural rules.

The BBA’s comments to the courts reflect our membership and their various practice areas.  Two recent examples of comments submitted to the SJC are the Criminal Law Section’s comment on the Model Jury Instructions and the proposed amendments to Rule 12 and 29 of the Massachusetts Rules of Criminal Procedure.

Our Criminal Law Section has over 600 members and its Steering Committee is a group of 30 attorneys including both prosecutors and defense counsel with a wide range of criminal law practices.  This means that veteran criminal law attorneys get an opportunity to review rule changes and provide comments, suggestions, feedback and at times even anecdotes from their own experiences to the SJC.

The BBA process that resulted in comments to the SJC on the proposed amendments to Rule 12 and 29 included discussion at a steering committee meeting several months ago.  Input was solicited from other veteran criminal lawyers in the district courts.  After discussion at the Steering Committee, the comments were synthesized into one document that was sent over to the SJC on Monday.

Consensus isn’t the goal – and often not possible – when we provide comments to the courts.  What we are really trying to provide to the courts are practical recommendations that will assist in adding clarity to proposed amendments or rules changes.

As often happens in the Criminal Law Section there are areas of agreement and areas where there will most likely never be agreement.  However, the reasoning and the explanations for such differing views is still very useful the courts.

The Standing Advisory Committee will review all comments pertaining to the issues raised by their proposed changes to Rule 12 and 29.  Ultimately the Committee will make a recommendation to the SJC.  Thanks to our members’ hard work and professional expertise the BBA had an opportunity to play an important role in the process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Fisher: Continuing the BBA’s Amicus Tradition

On Monday, the BBA joined more than 70 other amici when it filed its brief in Fisher v. University of Texas, et. al, a case examining whether the use of race in the admissions policy at University of Texas (Austin) is permitted under the Equal Protection Clause of the 14th Amendment.  According to a statement released by the University of Texas, the BBA is in the company of a wide range of other amici, including the Association of American Medical Colleges, a group of 57 Fortune 100 American businesses and 17 United States Senators, including Massachusetts’ own Senator John Kerry.

Fisher is the first federal litigation challenging the use of race in university admissions since the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s race-conscious admissions process in Grutter v. Bollinger.  The BBA also submitted an amicus brief in Grutter.

The BBA’s brief in Fisher was drafted by Jonathan M. Albano, a partner at Bingham McCutchen and member of the BBA’s Council, along with his colleagues Deana K. El Mallawany and Caleb Schillinger.  In its brief, the BBA supports the limited use of race in the admissions process on the basis that this practice is crucial to advancing diversity and inclusion in the community and, specifically, in the legal profession.

The BBA considers the strategic use of amicus briefs an important public policy tool.  At the same time the BBA has a stringent test to determine whether to file an amicus brief – does it affect our membership, the legal profession or our community in a significant way.  The topics on which we file amicus briefs are broad and varied and are connected to what we do as an institution daily — facilitating access to and the administration of justice for all, improving the laws of the Commonwealth and advancing diversity and inclusion.  A sampling of our amicus briefs filed in the past reflects these values.

Access to and the administration of justice for all-

In 2010, Jonathan Albano wrote another amicus brief for the BBA in REBA v. National Real Estate Information Services (NREIS) and NREIS Inc.  The BBA’s brief focuses on the First Amendment rights of private parties, including bar associations, to file reasonably based claims for judicial relief without being held liable for damages or attorneys’ fees.

In June of 2004, the BBA submitted a brief in the case of Lavallee et al v. The Justices of the Hampden Superior Court and Carabello et al v. In this brief the BBA notes the failure of the Commonwealth to sufficiently fund criminal defense services for indigents and urged increased compensation to ensure competent defense for all.

Improving the laws of the Commonwealth-

In April of 2012, the BBA filed an amicus brief in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al. urging the Supreme Judicial Court to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute amends the definition of “issue” to include adopted children in pre-1958 trusts.

In January of 2011, the BBA filed an amicus brief in the case of Fathers & Families, Inc. v. Chief Justice for Administration and Management.   The brief was filed in support of maintaining the Child Support Guidelines, which the BBA felt had been filed in compliance with the Massachusetts Constitution and allowed for certainty and stability in determining child support awards.

Advancing diversity and inclusion-

The BBA’s briefs in Fisher and Grutter aren’t the only examples of briefs we’ve filed to advance diversity and inclusion.  In November of 2011, the BBA signed onto a brief in the cases of Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, et al. No. 10-2204, and Nancy Gill et al v. Office of Personnel Management et al., No. 10-2207.  In the brief the BBA supported heightened scrutiny of classifications based on sexual orientation in order to ensure that the Constitution effectively guarantees protection for all people from invidious discrimination, whether on account of race, gender, national origin, religion, alienage, or sexual orientation.

Our amicus brief in Fisher is an important statement of values for the BBA as an institution and resonates deeply with our membership.  We are especially thankful to the 38 law firms and legal offices that joined us on the BBA’s brief.  Fisher will be argued on October 10th.

Advances for the BBA’s legislative agenda

The Massachusetts Legislature wrapped up the formal part of the 2011-2012 legislative session on Tuesday, July 31st.  The energy, excitement and hurried atmosphere at the state house during the waning days of formal session is a contrast to the quiet and routine informal sessions that will continue through December.

The difference is that when the House and Senate meet in informal sessions there are no recorded votes and a bill can only advance if there is unanimous approval by the members of the Legislature that are present.   During these informal sessions, it takes just a single objection by a member of the Legislature to derail a bill’s progress.  This makes it unlikely that anything major will advance in the coming months.

This past session was a success for the BBA’s legislative agenda and amidst the backdrop of casino legislation, foreclosure reform and health care cost containment, several of the BBA’s bills became law.

The BBA celebrated…

  •  When the Massachusetts Uniform Trust Code (MUTC) became law along with important revisions to certain components of Massachusetts Uniform Probate Code (MUPC).  These two pieces of legislation follow more than twenty years of advocacy at the BBA that resulted in the MUPC finally being signed into law in 2009.  The guardianship provisions of the new law became effective in July 2009 while the rest of the MUPC became effective on March 31st, 2012.

    These bills propelled Massachusetts into a new era with respect to the administration of wills and estates.   They improved the laws of the Commonwealth and transformed what was once a cumbersome process for both families and the Court into a simple and expedited process.  In addition, the MUTC — which governs trust administration — provides trustees with greater flexibility in the administration of trusts and reduces the necessity of court intervention.   The MUTC and the revisions to the MUPC are a welcome refinement to the BBA’s larger body of work in this area.

  •  The highly touted Alimony Reform Act of 2011 took effect on March 1st, greatly enhancing the capacity for judicial discretion in the determination of the duration of alimony.  Judges now have greater ability to determine the duration and amount of alimony payments.  The new law also allows them to amend previous alimony decisions that had no termination point.  This capped off several years of work by the BBA on this issue and strengthened Massachusetts’ alimony laws.
  •  In February, when the House passed “An Act Providing Access to Forensic and Scientific Analysis” which the Senate unanimously passed in July 2011.  This highly anticipated new law adds a much needed piece of integrity to our criminal justice system.  Not only does this new law provide post-conviction access to DNA evidence for those whose assert factual evidence of their innocence, it also designates a procedure for the preservation of such evidence.

    This bill stemmed from the BBA’s Task Force on Preventing Wrongful Convictions and its 2009 report, “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.”

  •  When the Transgender Equal Rights bill was signed last November and finally took effect on July 1st.  The law prohibits discrimination based on gender identity in jobs, housing, insurance, mortgage loans and credit, in addition to making offenses against transgender people subject to treatment as hate crimes.  The BBA has worked with the Transgender Political Coalition since the legislation was first introduced in 2007 and has testified in support of the legislation at various public hearings.  This is a gratifying victory for us because the BBA is committed to diversity in our legal profession and, like diversity in our society at large, this is a tremendous asset.

With less than a month to go before the state primary on Thursday, September 6th, lawmakers are focused on their re-election.  Next January will mark the beginning of the next two-year legislative session and the BBA will pick up where we left off.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Sentencing Reform to be Signed by Governor

**UPDATE – On August 2nd, Governor Patrick signed the Sentencing Reform legislation**

As the Rolling Stones once sang, “You can’t always get what you want.” Years of activism, months of negotiation and a flurry  of advocacy in recent days came to an end on July 31st when Governor Patrick announced he will sign into law sentencing reform legislation as imperfect as it is. His decision to sign the bill came one day after the House and Senate vetoed his amendment that would have provided for judicial discretion in the sentencing of habitual offenders (Issue Spot made the case for judicial discretion last week).

This legislation, H 4286, is an improvement over previous versions of the bill that were considered during this session.  In addition to reducing some mandatory minimum sentences and increasing the quantity of drugs needed to trigger certain low-level trafficking offenses, the new law includes some good things that the BBA has supported for years (we covered the BBA’s history of this back in October 2011).  For instance, the new law permits nonviolent drug offenders in prison to become eligible for parole, work release and earned “good time” sentence reductions for their participation in prison programs.  It also shrinks the school zone for drug offenses from 1,000 to 300 feet.

The BBA was disappointed that the House and Senate rejected Governor Patrick’s amendment that would have provided for important judicial discretion in the sentencing of habitual offenders (despite our members’ efforts).  Governor Patrick did indicate he would like to take up the judicial discretion piece again next session and we look forward to taking a leadership role in this discussion.  So while we celebrate the victory of reduced mandatory minimum sentences for nonviolent drug offenses, it is tempered by knowing there’s still a lot of room for improvement.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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