Monthly Archives: October 2012

Expanding the Forensic Sciences Advisory Board is a Step in the Right Direction

The breadth and depth of the fallout from the state drug lab crisis won’t be known for years. By most accounts this is the biggest crisis our justice system has ever faced. The review process, expeditiously put in place by Governor Patrick, has been encouraging. So far there’s been transparency and cooperation as stakeholders work towards ensuring that justice is done in all cases.  Investigations into the what, why, how, and when are ongoing.  Special court sessions are underway, and Governor Patrick plans to file a supplemental budget request with the Legislature next week for funding to cover the expenses associated with the drug lab crisis.

It’s impossible to conjecture what the price tag is going to be for sifting through years of drug cases, hearing them in court and then putting appropriate reentry programs in place to ensure public safety. Mayor Menino requested $15 million from the Patrick administration to cover the potential flood of inmates who may be released – and that’s just for the City of Boston.

House Judiciary Chairman O’Flaherty has said that as a result of the drug lab crisis, new legislation may have to be filed to prevent the crisis from being repeated. A good place to start is S 1204, An Act Relative to the Forensic Sciences Advisory Board – a companion to the BBA’s DNA access bill passed earlier this.  The BBA filed this companion bill in 2011 and we plan to re-file an updated version of it next session.

This legislation would expand the composition of the Massachusetts Forensic Science Advisory Board (FSAB) to include members of the defense bar and scientists. You read that correctly – the Forensic Sciences Advisory Board does not have any forensic scientists. The current membership of the FSAB, as determined by Chapter 6 Sec. 184A, really only reflects one side of the criminal law spectrum. Members include the Undersecretary of Forensic Sciences and Technology, the Attorney General, the State Police Colonel, the President of the MA Chiefs of Police Association, the President of the MA Urban Chiefs Association, the President of the MA District Attorney’s Association (MDAA), a district attorney designated by MDAA and the Commissioner of Public Health or their designees.

Taking a giant step back from what actually happened at the state drug lab, it’s unbelievable how much havoc a single person can wreak on our system of justice.  Surely, the criminality of this one person is egregious, but this may actually point to a more fundamental problem in the entire justice system – inadequate resources.  Decades of underfunding our courts, district attorneys’ offices, crime labs, public defense counsel offices and civil legal service organizations has contributed to an overburdened system where everyone is struggling to find efficiencies, do more with less and provide every single person equal access to justice. One of the most unsettling results of the drug lab crisis is that it exposes  a broader potential flaw – that there may be other areas in our justice system that are just as vulnerable due to inadequate resources.

Regardless of the financial cost or reform measures that are put into place, the damage has already been done to the integrity of Massachusetts’ justice system. The premise of that system – that everyone has equal access to justice and that justice is carried out in a fair and timely manner – has been shaken. As the next few weeks and months unfold and we learn more about what happened at the state crime lab, we need to use this crisis as an opportunity for change.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

UCC Update Bill: Primed to Pass During Informal Session

This month the BBA Council voted to support House Bill 25 “An Act Making amendments to the Uniform Commercial Code Covering General Provisions, Documents of Title and Secured Transactions.”  This legislation was filed in January 2011 at the beginning of the 187th legislative session.  House Bill 25 will modernize provisions of Articles 1, 7 and 9 of the Uniform Commercial Code (UCC).  These updates will bring Massachusetts in line with the national model.  The revisions to the UCC include things like providing for electronic bills of lading and warehouse receipts and addressing technical corrections in personal property secured transactions.

House Bill 25 has broad support from groups representing creditors and debtors alike – including the Massachusetts Bankers Association and the Associated Industries of Massachusetts.  Last October, the Financial Services Committee held a public hearing on the bill, and it is now before the Economic Development and Emerging Technologies Committee.

The Legislature is in informal session through December. In order for bills to pass during informal session there cannot be any opposition – even a single member can derail a piece of legislation. This means that typically only non-controversial proposals would have a chance of advancing in the next two months.  Passage of a bill during an informal session is generally a win-win for everyone – because legislators get credit for passing sensible reforms and supporters are rewarded for their hard work.

Despite the fact that the Legislature only meets in informal sessions between now and the end of the year, House Bill 25 is still alive and there is a good chance that it will find its way to the Governor’s desk before January.  Here’s why….it’s a good bill, it’s non-controversial, and it has broad support and no known opposition.  Probably even more important than all of that is the fact that during informal sessions there is a much smaller queue of bills vying for placement on the legislative calendar.

A legislative victory by the end of December – and during an informal session – wouldn’t be the first time the BBA has seen a flurry of activity in the waning months of a legislative session.  In December 2010, when the last legislative session was coming to an end, the BBA was pleased to see homestead reform and an update to the bankruptcy exemptions statute in Massachusetts become law.  Similar to the updates of the UCC, these bills made sensible improvements to existing laws that were widely supported. Both bills progressed quickly in the final days of session but actually took years to gain traction to advance in the Legislature.  The BBA had been working on homestead reform for numerous legislative sessions and on various iterations of the bankruptcy exemptions statute for several years.

Controversial and contentious bills often grab headlines during formal session.  Informal sessions can present opportunities for the Legislature to turn attention to seemingly mundane but important issues like House Bill 25.  With more time to fully vet and promote passage, bills in this category often become law before the session ends.  The BBA will now focus on getting this bill on legislators’ radar screens in an effort to secure passage before the end of the year.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Taking Advocacy on the Road

This year we’d like to take our advocacy on the road and actually visit courts throughout Massachusetts with our state legislators. BBA President J.D. Smeallie hopes to start with the court closest to his home – Salem District Court – accompanied by his state representative and state senator.  Currently, J.D.’s district is represented by State Representative Jerry Parisella – a lawyer legislator – and outgoing State Senator Fred Barry. (Running to replace Senator Barry are Joan Lovely, an attorney and Salem City Council President, and Richard Jolitz, a paramedic and dispatcher.)

Here’s why: The BBA wants the opportunity to ask questions, share concerns and ideas on a friendly, informal basis with judges and legislators at the same time. The visits may also be a tutorial on how particular courts operate and the role they play in the lives of their constituents.

We want legislators to be able to experience in person the volume and complexity of judges’ work and to see how our courts have been faring during the last few years of fiscal uncertainty. We hope to create a shared understanding between these two co-equal branches of government about the need for adequate funding of our justice system.

Salem District Court is just the starting point. Enlisting our bar leaders, we plan to invite legislators to join us on visits to a number of other courts serving the communities in which our leaders live.

So despite the perception that the Legislature is dominated by lawyers, the numbers tell a different story. As of right now we have 54 lawyer legislators; 42 in the House and 12 in the Senate. Considering the House has a total of 160 members and the Senate a total of 40, the number of lawyer legislators is relatively small.

With Election Day less than one month away, these numbers could shift. We’ve said this before and we’ll say it again: The BBA is a nonpartisan organization, and we do not endorse parties or candidates.

However, we are keenly interested in the makeup of the Massachusetts Legislature, and the impact that has on court funding. As the number of lawyers in the legislature declines, it is incumbent on us to help frame the debate in terms of the important role courts play in the lives of constituents.

Advocating for our state courts is one of the BBA’s top priorities. We’ve done it in the past (see our work on Court Advocacy Day and our report on the court’s budget) and we’ve done it well. But this is a permanent campaign requiring that we continue our advocacy efforts.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

SCOTUS Fall 2012 Starting Lineup

Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st.  At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.

Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th.  The issue at hand in the Fisher case is the diversification of student bodies in higher education.  However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.

Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School.   Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.

We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities.   This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.

This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.

Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM.  These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA).  DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.

Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA.  DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.

Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues.  As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.

We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions.   We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.