Monthly Archives: June 2014

Spotlight on Spousal Elective Share

The BBA has been a part of many pieces of legislation over the years, especially those that have an impact on our core principles – facilitating access to justice, serving the community at large, and advancing the highest standards of excellence for the legal profession.  However, the BBA’s process to thoroughly examine, deliberate, and eventually take a position on a bill is an involved one, even for seemingly simple bills.  To complicate matters further, the legislative process going on across the street from us is equally – if not even more – harrowing and intricate.  So what does it take to champion a bill through the BBA and on to become a law?  In a word: patience.

Let’s take a closer look at a long-time BBA supported bill, currently with the number S705 – An Act relative to the elective share of surviving spouses.

The Bill

The bill is in the area of trusts and estates law, which is well-known among lawyers as a particularly dense practice area.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is entitled to one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s assets, multiplied by a percentage based on the length of the marriage – ranging from three to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is applied when a marriage ends in divorce.


The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill.

Here and Now

The bill was filed in the Senate in January 2013 by Senator Cynthia Creem and referred to the Joint Committee on Judiciary shortly thereafter.  Following an extension order filed in March, and a public hearing in April, at which Deb Manus testified on behalf of the BBA, the bill was reported favorably out of the Joint Committee on Judiciary in late June.  It was then referred to the Senate Committee on Ways and Means, where it currently sits.

We have been working and will continue to work with the other organizations interested in the bill – both in support and opposition – to pursue consensus.  We hope that this bill will garner enough support to pass in the last month left of formal session, but we recognize the hurdles it faces.  As you can see, this is a long and complex process, and the spousal elective share bill is only one example of many bills the BBA is working on.  We will keep you posted on the latest developments with this and all of our bills of interest.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Cell Phone Search and Seizure Case Update

In May, we wrote about a Boston case, United States v. Wurie, that was picked up by the US Supreme Court with a fact pattern that we thought could have major implications for the Fourth Amendment and personal privacy.  Today, the Court issued its ruling, holding unanimously that police must have a warrant to search cellphones of arrested individuals.  Read the decision here.

Energy and Environmental Legislative Session Review


Earlier this week, the BBA Environmental Law Section hosted its review of Energy and Environmental laws proposed during the 2013-14 legislative session.  The discussion featured three speakers with a wealth of experience in environmental law.  Dan Burgess, Deputy Commissioner of the Department of Energy Resources, Gary Davis Jr., General Counsel of the Massachusetts Executive Office of Energy and Environmental Affairs and Erica Mattison, Legislative Director of the Environmental League of Massachusetts provided brief reviews of a number of complex bills.

The presenters dove right in to their selected bills of interest:

H4164 – Following a 2013 study ordered by Senator Markey on gas leakages and based on the fact that Massachusetts has one of the oldest pipeline systems in the country, this bill lays the groundwork for expediting much needed repairs and updates to the natural gas pipe system.  The bill has been enacted in the House and the Senate.

S1970 – This bill creates incentives promoting the use of thermal energy.  It was reported favorably out of the Joint Committee on Telecommunications, Utilities and Energy and has passed the Senate.

S177 – This bill provides solutions geared towards encouraging large commercial enterprises to engage in major energy efficiency overhauls, namely by offering these enterprises more and improved financing options by leveraging their property.  This bill is before the Senate Committee on Ways and Means.

H3901 (but soon to be re-numbered) – As the state’s solar energy usage has greatly expanded in recent years, it has revealed some issues regarding net metering, the system by which solar energy customers can generate their own electricity for credits that they can then use to lower their electricity costs.  This bill is a combination of four previously drafted bills on the issue and seeks to offer greater fiscal certainty for solar users.  It is currently before the House Committee on Ways and Means.


H3968 –While dense in content, this bill’s general goal is to provide developers with a clear pathway to work on clean energy projects in order to meet the Commonwealth’s greenhouse gas reduction targets and energy reliance goals.  This bill prompted the most discussion as practitioners were concerned about whether and how its language would accomplish its stated goals.  It was recently reported out by the Joint Committee on Telecommunications, Utilities and Energy.

H4150 – This environmental bond package allows the state to borrow funds to finance capital funding for Environmental and Energy Affairs agencies.  These investments complement built infrastructure with natural assets such as floodplains and barrier beaches, support scientific research that helps the state better understand environmental issues, and provide a return on investment in clean water and air.

S2021 – This bill attempts to improve drinking water and wastewater infrastructure through, most notably, increased funding, establishment of guidelines for water management, and allowing for “water banking,” a local option for cities and town to impose additional charges to fund mitigation measures for increased water withdrawals.  It passed the Senate in March and is currently before the House Committee on Ways and Means.

H4065 – This bill reforms the state’s outdated zoning laws.  It encourages prompt and predictable permitting, establishes useful criteria for variances, promotes coordination among municipalities, encourages compact development and land preservation, streamlines the appeals process, and creates a rational system for impact fees.  It is currently before the House Committee on Ways and Means.

In addition to all the bills discussed, the Environmental League of Massachusetts introduced its sustainable water initiative, Brownfields plan, and budget campaign, with the goal of securing 1% of the state budget for the environment.  In all it was a highly informative meeting and, as the list of bills summarized here demonstrates, it looks to be an exciting and active end of session for environmental law in the Commonwealth.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

College Finals: End of Session Legislative Update from the College & University Law Section


On Wednesday, the BBA’s College & University Law Section held its annual legislative update brown bag lunch program featuring speaker Rob McCarron, Vice President for Government Relations and General Counsel of the Association of Independent Colleges & Universities in Massachusetts (AICUM).  You may recall that McCarron shared his legislative wisdom and experience on Issue Spot before, speaking about his time as the former Director of Legal Affairs for the Massachusetts House Committee on Ways & Means.  This time, he shared his expertise on current legislation that could impact the states’ many higher education institutions.  The program was well attended and felt more like a vibrant discussion than lecture as the many in-house counsels for major Boston education institutions seated around the table actively participated with McCarron, sharing their concerns, anecdotes, and questions with the group to the benefit of all in attendance.


When last we explored legislative higher education issues a number of months ago, the issue of race conscious admissions was at the fore.  Now the focus has shifted, largely to address student loan debt and college disciplinary procedures, especially those related to sexual assault cases.

Student Loan Debt:  The Massachusetts Joint Committee on Higher Education’s Subcommittee on Student Loans and Debt recently released its report with a number of interesting proposals to make higher education more affordable.  McCarron highlighted a suggestion to expand and reform state aid by increasing MassGrant scholarship funds, a grant assistance program funded by the legislature that provides need-based financial assistance to undergrads who reside in Massachusetts.  He also noted a proposal to create tax incentives for families to use the Commonwealth’s 529 College Savings Plan, a direct-sold college savings plan managed by Fidelity Investments using Fidelity mutual funds.  McCarron explained that 30 other states currently have tax incentives for similar plans and is looking forward to working with incoming Senate President Stanley Rosenberg as well as other members of the Legislature on this measure.

College Disciplinary Procedures: Local, state, and national leaders have all expressed their interest in tackling the disciplinary problems colleges face, especially those related to sexual assault.  At the federal level, Senator Claire McCaskill is taking the lead on creating a “campus safety metric” to measure how well institutions are handling sexual assaults on campus.  Locally, the City of Boston expressed interest in working to solve sexual assault problems at Boston-area schools.

State lawmakers have taken a different track, looking at the issue from the perspective of students accused of wrongdoing, most recently with a student’s rights bill, H3942.  While this bill is currently under study, and thus unlikely to pass, McCarron explained that there are still a number of legislators concerned that students undergoing disciplinary proceedings at Massachusetts higher education institutions are not fully aware that their statements at institutional hearings can also be used against them in court if the victim presses charges.  With these three levels of government looking into the issue, McCarron hopes that the state and local governments will be patient and follow the federal government’s lead before passing different layers of regulations that could be confusing or even contradictory, and thus have limited effectiveness at solving the problem.

Other issues addressed at the program included the impact of the minimum wage increase on higher education institutions, research and innovation funding, workplace bullying bills, a proposal on joining a multistate regulatory program governing distance education programs, and many more.  The talk was comprehensive and informative.  To read more, see the program handout, which includes all the significant issues McCarron covered.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

End of Session Rush

July 31st marks the end of formal sessions for the second half of the two-year 2013-2014 legislative session.  With only 56 days left, the Legislature will continue to meet in informal session through December.  This generally means that the legislature will only consider non-controversial matters until the next two-year legislative session begins again in January 2015.

There’s a lot of work to be done in the next eight weeks – and state budget conferees met for the first time on Tuesday.  In addition to the two Chairs of the Joint Committee on Ways and Means, the other members of the conference committee are Representatives Kulik and deMacedo and Senators Flanagan and Ross.  This group is charged with devising a consensus fiscal 2015 budget based on the previously approved House and Senate budgets.  One issue before the conference committee is funding for the MLAC line item.  The House recommended $15 million and the Senate recommended $14 million.  We hope that the conferees will decide to hold onto the House recommended appropriation of $15 million.  The final recommendations of the conference committee are not subject to amendments when presented to the House and Senate for final approval.

While the conference committees work, the legislative committees –including the Joint Committee on the Judiciary – are reviewing the hundreds of bills that are still active before them.  In the upcoming weeks we hope to see some movement on bills that we have been working on all session.

Governor’s Council Update

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Last week was the second day of Justice Ralph Gants’s Governor’s Council hearing on his nomination for Chief Justice of the SJC.  This provided Justice Gants an opportunity to directly address the Governor’s Councilors.  He began with a presentation, talking about his family (the above video starts about a minute into his speech, as he discusses his mother), his love of baseball, his work on access to justice issues, and his growth as an individual and jurist.  He broke his judicial philosophy down to the following three points:

  • It is important to look at the language of the statute along with the legislative history and its context in order to fulfill legislators’ wishes.
  • The Constitution is a “living, breathing” document that remains relevant with modern interpretations.
  • Society needs clear lines in administering law in the real world and the assurance of actual justice, not just the illusion of justice.

Questions from the Governor’s Councilors took the rest of the day.  Topics ranged from the specifics of court administration to exploring the need for oversight of the Chief Justice of the SJC, the Chief Justice’s role as a lobbyist for the Courts, and Gants’s philosophical opinions on the death penalty, gay marriage, abortion, the citizen petition process, and drug addiction.

This week was the third day of his confirmation hearing before the Governor’s Council.  Justice Gants was asked about recent SJC decisions on juvenile life without parole as well as his position on privacy issues that might be raised in gun reform legislation.

Speaker’s Gun Control Bill

Speaker Robert DeLeo’s gun violence prevention legislation, House Bill 4121, was the subject of a public hearing this week and is expected to be taken up by the full House of Representatives as early as next week.  Senate President Therese Murray has also said publicly that the Senate will debate gun reform before the session ends.

The BBA’s Gun Control Working Group also conducted a lengthy study on gun reform.  The BBA’s group met between April and July 2013, and reviewed all of the then-filed gun control legislation, roughly 60 bills.  The BBA’s Working Group was comprised of attorneys with diverse backgrounds including gun owners, civil libertarians, a prosecutor, criminal defense attorneys, a law professor, and health law experts.  The Working Group came up with a set of principles designed be a lens through which any new gun law should be considered.

We will continue to monitor the gun control bill as it goes through the legislative process and the nomination process for the new SJC chief justice.  Justice Gants’s nomination could come up for a vote as early as June 11.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association