Monthly Archives: September 2013

Getting It Right: The BBA Seeks Reform of Drunk Driving Law

On Wednesday, September 25th, the Joint Committee on the Judiciary held a public hearing with 52 bills on the agenda.  The hearing had a serious and often somber feel.   A number of elected officials and 86 Massachusetts Police Chiefs testified.  Perhaps the most gripping testimony came from family members of young people injured or killed in drunk-driving accidents.

The majority of oral testimony focused on a bill giving police officers authority to make stops in cities or towns bordering their own.  A handful of other bills proposed to raise the mandatory minimum sentences for drunk-driving offenders.

The BBA co-sponsored S655, An Act to Protect the Citizens of the Commonwealth from Drunk Drivers, which provides straightforward clarifications to the current law.  In addition to our written testimony, Cape and Islands District Attorney Michael O’Keefe and a representative of the Massachusetts Bar Association both testified in favor of the bill.   O’Keefe offered especially persuasive testimony, quoting a recent Massachusetts Appeals Court decision that described the current state of handling cases under Massachusetts OUI laws as “akin to driving a car without windshield wipers on a dirt road on the side of a mountain at night during a blizzard.”

Our bill is not new.  The BBA Council unanimously endorsed this bill in 2007, when it was first filed in the House of Representatives.  The bill has been re-filed every session since then.  It is easy to ignore a bill like S655.  It is not precipitated by any recent event and it generates little publicity, but that doesn’t mean it shouldn’t become law.  Furthermore, this bill does not offer any substantive changes to the law.  However, the current Massachusetts drunk driving laws are contained in Massachusetts General Laws Chapter 90, a mess of language that has been amended 69 times over the last 100 years in a piecemeal manner.  Its structure leaves judges, prosecutors, and defense attorneys struggling to interpret how the statute should be applied to various cases.  Therefore, S655 provides a concise, clear, and much-needed restatement of the existing laws, breaking each portion down into understandable definitions and logical sections.  The BBA believes this bill will streamline the administration of justice, benefitting both interested parties and the general public alike.

We at the BBA are proud to have fulfilled our mission, facilitating access to justice by providing legislative guidance on an issue on which we have credibility and expertise.  Now it’s in the legislature’s hands.  We hope they will heed our testimony and pass this law to improve the administration of justice in the Commonwealth.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Gun Law Reform Back in the News Again

Ironically the tragic navy yard shootings in Washington, D.C. came just 48 hours after the long-awaited State House hearing on proposed changes to Massachusetts gun laws. While no single piece of legislation is going to be able to prevent such tragedies from happening again, there is room for improvement in our current laws, especially when it comes to background checks. What, if any, impact the D.C. rampage will have on changes to our own gun laws is not really known.

Massachusetts is one of a handful of states that does not require courts and state agencies to share mental health information through the National Instant Criminal Background Check System (NICS).  The NICS registry checks available records in three databases to determine if prospective gun buyers are disqualified.  Massachusetts has no statutory authority to transfer mental health records to NICS.  That means this information is not available during background checks when an individual goes to buy a gun from a licensed gun dealer.  While this might sound alarming, there is a lot of apprehension about delivering personal information like mental health records to a federal database.  There are legitimate concerns about accurate information gathering and questions about privacy surrounding the use of that information.

At the hearing, Governor Patrick advocated for the state to contribute information to the NICS database, limit and monitor gun purchases, and increase penalties for illegal firearm possession.  Mayor Menino pushed for stricter gun penalties.  Parents of victims from the Sandy Hook Elementary school shooting asked for the state to build on its already strong gun control laws.  Second Amendment advocates spoke out against laws they felt would infringe on their rights.

The BBA’s gun study group was convened in March, 2013 and includes a diverse group of attorneys including gun owners, gun law experts, civil libertarians, a prosecutor, criminal defense attorneys, a law professor, and health law experts.  The group reviewed many of the proposals now under consideration and sought comments, feedback and input from the Health Law, Criminal Law, and Civil Rights and Civil Liberties Sections of the BBA.   We will sit down with the Chairs of the Joint Committee on Public Safety and Homeland Security soon to discuss some of the principles that the BBA feels can inform policy-makers about the legal implications of their legislative decisions.

In the few days since the hearing and the Navy yard shootings, the dialogue about examining gun control laws has been amplified.  As to what gets accomplished, we will need to wait and see.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Full Circle On Fisher

On Wednesday, September 11th, the College & University Law Section sponsored “Diversity in Higher Education: The Legal Landscape after Fisher v. University of Texas,” a discussion of compliance and strategic planning issues for academic institutions.  This program comes just over a year after the BBA filed an amicus brief in Fisher v. University of Texas in the wake of the U.S. Supreme Court’s ruling.

In Fisher v. University of Texas, the U.S. Supreme Court vacated and remanded the Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The case featured Abigail Fisher, a white woman who was denied admission, alleging that the University of Texas discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause in its admissions decision.  The Court’s ruling in effect upheld race-conscious admissions, but also muddied the waters.

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies.  The brief specifically focused on the need for a diverse pipeline of students for law schools and for the entire legal community.  The BBA’s brief warned that:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

This week’s program provided attorneys with an opportunity to discuss the intricacies of Fisher and also its implications.  It changes how courts review affirmative action policies and creates compliance challenges for educational institutions.  Fisher put universities and race-conscious admission programs on alert.  Three major compliance challenges for colleges and universities are:

  • establishing a quantifiable interest in the educational benefits of a diverse student body;
  • proving that “workable, race-neutral alternatives” will not suffice; and
  • demonstrating that consideration of race is narrowly tailored.

And with that, it all came full circle.  From amicus brief, to Supreme Court decision, to informational program, the BBA stayed on top of this important issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Building Bridges Between the Statehouse and Courthouse

It’s been almost five years since the Massachusetts Trial Courts instituted a hiring freeze resulting in staff reductions, processing delays, personnel shortages, and strained clerk and registers offices.  It came as no surprise in September 2011 when the Trial Court announced that it was reducing public access to clerks and registers offices in an effort to deal with the impact of the freeze.

With clerks and registers offices closed at certain times, staff had the opportunity to prepare cases for court sessions and to complete case processing — including filing, docketing, and scanning.  The changes in public hours helped more than 30 court locations get back on track.  In some Probate and Family Courts, registry counter and phone hours were restricted after 3 p.m.  In Lawrence Probate and Family Court, the registry closed from 1-2 p.m. and in several district courts, counter and phone coverage was restricted.

This week, the Trial Court announced that all offices will return to a full schedule of public office hours as of September 3rd.  That is welcome news and reflects the court’s commitment to rethinking its operations without increasing its budget.

With a capable management team led by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence, the Trial Court is working to implement its recently approved strategic plan.  The plan focuses on increasing effectiveness and addresses the current and future needs of our judiciary as it continues to serve the people who use the courts each day.  Thanks to these and other steps, productive conversations about efficiency, effectiveness, and the administration of justice with legislators and lawyers are now moving forward.

Perhaps most importantly, these developments have built a bridge between the courthouse and the state house.  The judiciary will finally see its first salary increase in the last sixteen years thanks to recently enacted legislation.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association