Monthly Archives: November 2012

BBA Welcomes Professionally Diverse New Class of Legislators

With just 6 weeks to go before members of the Massachusetts Legislature are sworn into office on January 5, 2013, we decided to take another look at the number of lawyers serving in the Massachusetts House and Senate.  For the 2013-2014 legislative session, 60 of the 200 legislators are attorneys – 46 lawyer legislators in the House of Representatives and 14 in the Senate.  This marks a net gain of 6 lawyer legislators over the session that ends on December 31st of this year.

Why should the number of lawyer legislators be of concern to the Boston Bar Association? We count on legislators with legal training to play a role in helping their non-lawyer colleagues understand technical legal concepts – in the same way a physician might clarify medical issues or a business owner might explain economic development issues.

We fervently believe the legislature should reflect the diversity of the public it serves. We are pleased to see that in addition to attorneys, the incoming “freshman class” includes several small business owners, a real estate broker, a free-lance columnist, and a recent college graduate. We want all legislators to know – regardless of their professional experience – that the Boston Bar Association is a non-partisan organization always available to provide technical assistance – whether that means walking someone through the practical ramifications of a complex piece of legislation or explaining in plain English the unintended consequences of a particular proposal. For our legislature and especially for our non-lawyer legislators, the BBA strives to be an accessible resource on issues requiring legal expertise.

The BBA supports initiatives and promotes policy that will have a positive impact on the community, the law and the legal profession.  We wish there could be a Cliff Notes version of what is sometimes technical legislation, and try our best to provide summaries and more detailed explanations for those wanting to dig in. A recent example of this is House Bill 25 “An Act Making amendments to the Uniform Commercial Code (UCC) Covering General Provisions, Documents of Title and Secured Transactions.” As Issue Spot noted last month, the BBA supports this legislation because it will provide clarity and more certainty for commercial transactions in Massachusetts.

Even with lawyer legislators whose practices don’t necessarily deal with the UCC or other highly technical pieces of legislation, we understand nobody can be expected to vote on something with which they are not familiar. We care deeply about our credibility with all legislators, lawyer or non-lawyer, and remain committed to supplying them with as much information as they find helpful.

– Government Relations Department
Boston Bar Association

A Few Things We’re Thankful for this Season

Before we break to celebrate Thanksgiving, let’s pause to remember what we’re thankful for. . .

  • The fact that the Massachusetts Declaration of Rights provides for three co-equal branches of government: Executive, Legislative, and the Judiciary.
  • The work of our Amicus Committee in Bird and Fisher. Our Bird brief brought clarity and predictability to the estate planning process, and our Fisher brief articulated our long held commitment to diversity and inclusion in the legal profession.
  • The passage of the Massachusetts Alimony Reform Act, a great example of true grassroots activism, coalition building and collaboration. Democracy is not always efficient, but the process was exemplary, allowing stakeholders to speak and be heard.
  • The passage of the Transgender Equality Rights bill. This bill was 5 years in the making, and it was high time that Massachusetts provided important protections to the transgender community.
  • The CORI Sealing Order was made permanent by the Boston Municipal Court. This will allow multiple motions from different districts to be heard in one of the courts with jurisdiction over a case to be sealed.  More important it facilitates re-entry.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Nationwide Victories for Same-Sex Marriage

Amen!  We are at last seeing the changing tide of public opinion on same-sex marriage across the country.  This became especially evident last week on Election Day.  Four states considered ballot questions regarding same-sex marriage.  Equality and common sense prevailed when Maine, Maryland and Washington became the first states to legalize same-sex marriage by popular vote through a ballot initiative.  There was more to celebrate when Minnesota voters defeated a ballot question that would have defined marriage as between a man and a woman.

Before the 2012 election, same-sex marriage had appeared on ballots in 32 different states and was defeated all 32 times.  In Massachusetts we are ahead of the curve.  After all, it was almost ten years ago that Massachusetts became the first state to legally recognize same-sex marriages.  There are now ten U.S. jurisdictions in which same-sex marriage is legal – nine states and the District of Columbia.

Fortunately attitudes about same-sex marriage are shifting across the country.  In May, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA) violates the Constitution.  We’re still hoping that the Supreme Court will take this issue up this year.

Earlier this week, the Boston Bar Association honored the Massachusetts Office of the Attorney General and Gay & Lesbian Advocates & Defenders (GLAD) with its third annual Beacon Award for Diversity and Inclusion at the Liberty Hotel. The award recognizes these two organizations for their efforts challenging the constitutionality of DOMA in two parallel cases in the First Circuit.  The award was created to highlight exceptional leadership in creating a lasting impact and forging a new path towards a more diverse and inclusive legal profession and society in Greater Boston.

There is still work to be done in ensuring equality for all citizens, but this week’s Beacon Award event gave us the opportunity to pause and celebrate the outstanding work of those championing and to reflect on just how far we’ve come.

We await the Supreme Court’s decision of whether (or when) to take up the two federal cases challenging DOMA and we hope that the Supreme Court was listening when the people spoke on Election Day.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

One More Time…the Judiciary is a Separate Branch of Government and NOT a State Agency

We’ve said it before, and we’ll say it again:  The Judiciary is a separate and co-equal branch of government.  The other two branches are the Legislative and Executive branches and the purpose of this tripartite form of government is to prevent too much power from being amassed and brandished by any one branch.

When Governor Patrick filed a $30 million supplemental budget with the House of Representatives this week, we paused.  The $30 million supplemental budget request asks for money to cover the investigation and response costs for “state agencies and municipalities” associated with the state drug lab crisis.  The $30 million supplemental budget request refers to “state agencies and municipalities” four separate times.

So where do the costs to the Judiciary associated with the drug lab fit into all of this?  Nowhere in the supplemental budget document does the Governor refer to the costs the Judiciary is incurring due to the drug lab crisis.  We do know that the Governor meant well and is committed to addressing these costs to ensure justice and public safety.  We also know that the Governor did contemplate the costs to the Judiciary when he asked for $30 million to cover the costs from the drug lab mess.  But we’re left scratching our head as to why the Judiciary is being lumped into “state agencies and municipalities.”

The legislation even goes on to define “state agency” as “a state agency, board, bureau, department, division, section, or commission of the commonwealth.”  The Judiciary isn’t a department or a division of the commonwealth.  We’re saying it again – the Judiciary is a separate and co-equal branch of government.

Governor Patrick wants the supplemental money for the state drug lab to be appropriated into an account under the control of his Secretary of Administration and Finance.  The Governor wants his administration to be in charge of the various transfers to ensure that this extra money does indeed go to costs associated with addressing the drug lab fiasco.  But it appears that this scenario, at the very least, raises some important separation of powers issues.

It would be great to see the Legislature sign off on this $30 million request in a timely way, but the Legislature should be open to some friendly amendments that would allow the Judiciary to receive the state drug lab money directly.  This is simple.  The amendments should give the Judiciary the money they need to cover the costs from the drug lab while requiring them to provide a full accounting to the Legislature as to how the money is being spent.  We are confident that the Judiciary will cooperate and be fully transparent every single step of the way.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Focus Needed on Entire Criminal Justice System

When the next legislative session begins on January 2nd, you can expect to see us working on proposals that are not necessarily flashy but which are designed to address flaws in existing Massachusetts laws. For example, we will refile bills regarding the Uniform Child Custody Jurisdiction Enforcement Act, the Forensic Sciences Advisory Board, and an update of certain banking laws. Our ongoing public policy agenda also focuses on continuing to work on improving our justice system as a whole. In this context, criminal justice issues become salient. As a big picture thinker, the BBA likes to tackle issues holistically.

Say the word “holistic” and healthcare springs to mind. But many of the same principles apply across disciplines.  In the medical world, a holistic approach means considering all elements of a patient’s health: physical, mental, emotional, and spiritual.  Patients actively participate in their own medical care by taking preventative measures. Long gone are the days when a doctor would simply prescribe a patient medication or perform an operation hoping to cure an ailment. Now, doctors and patients work collaboratively to determine the best course of action and to make healthy life choices that promote overall good health.

A similar approach should be applied to the criminal justice system. As with health, it is dangerous to ignore indicators that the system is not living up to its potential.  When something does go seriously wrong, it can take something akin to radical surgery to fix. This could mean more financial resources, more oversight, an investigation, or some other type of reform.

The justice system is complex.  It’s made up of interconnected yet individual departments, agencies, and branches.  Problems in one area will almost always have ramifications on other parts of the system. The BBA takes a holistic approach to criminal justice because success isn’t measured just by securing more resources or the passage of a single piece of legislation.  Success should also be measured by reducing our recidivism rates, improving public safety and reintegrating individuals into society.

The BBA works to identify areas for improvement that would contribute to the overall wellness of the entire system.  Over the years, the BBA’s reports and recommendations have covered a wide array of topics such as the Report of the BBA Task Force on Children in Need of Services, the Report of the Task Force on Parole and Community Reintegration, and Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.

Additionally, the BBA actively works with several outside groups tasked with identifying problems while recommending measures that would provide more efficiency to the justice system.  We have a BBA member on the Massachusetts Civil Infractions Commission – a group charged with recommending permanent changes designed to reduce the number of lesser criminal cases in which public counsel would be required.  We also have a member on the Criminal Justice Commission – a group commissioned to study and make recommendations on the entire criminal justice system in Massachusetts.

But there’s more to be done. Building on the successes over the last four years in the area of CORI reform and sentencing reform, the BBA will continue to work towards eliminating mandatory minimum sentences for non-violent drug offenders.

The criminal justice system should function in a way that does more than just punish those who break the law. Improving public safety needs to mean more than just incarcerating people. Moving away from a philosophy of being “tough on crime” to one of being “smart on crime” requires taking a good look at the underlying problems that contribute to criminal behavior.  There needs to be a change to the culture of crime and punishment.  Fair and appropriate punishment is important, but real rehabilitation and reintegration into our society is going to be what it takes to break the cycle of recidivism.  To be “smart on crime” we need a comprehensive – and holistic – approach to improving the overall criminal justice system.

-Kathleen Joyce
Government Relations Director
Boston Bar Association