Monthly Archives: August 2014

Summer Summaries

As we at the BBA prepare to usher in a new program year and new president, Julia Huston, we’ve been keeping an eye on some recent legal events that may be of interest.

Civil Legal Aid

New American Bar Association (ABA) President William Hubbard announced that he will use his post to find ways to provide legal services to low-income individuals.  This is particularly timely for us given the impending release of the report authored by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.   The Task Force’s report is expected to be released in September, and its members will be honored at this year’s Annual Meeting on September 12.

Hubbard’s initiative is already underway with a Commission on the Future of Legal Services approved in June by the ABA Board of Governors.  In addition, in late spring of 2015, the ABA is planning to host a national conference on legal services delivery.  The ABA seeks to identify the most innovative practices from across the country with a focus on the use of new technology, especially in the field of communications, where a recent Legal Services Corporation study found that an overwhelming majority of individuals below the poverty level have cell phones, and nearly half have smartphones.

The ABA is also committed to continuing the Legal Access Job Corps program started by its former president, James R. Silkenat.  This program seeks to bring together two communities – those in need of legal aid and the growing ranks of unemployed and underemployed lawyers.  This summer the Legal Access Job Corps gave out “catalyst awards” to legal services offices, bar associations, and law schools to help fund projects employing new lawyers in innovative ways to address the legal needs of poor or moderate-income people.

We applaud the work of the ABA on this issue, and look forward to the findings of the conference.  Keep an eye out for our Task Force Report coming soon.

Marriage Equality

A few weeks ago we wrote about a Fourth Circuit case striking down Virginia’s ban on same-sex marriage which appears bound for the Supreme Court.  In addition we noted a positive trend, a string of state and federal rulings supporting same-sex marriage over the last 14 months following the Supreme Court ruling’s ruling in the Windsor and Perry cases.  The BBA has long been a supporter of marriage equality, having filed amicus briefs in its defense in 2002, 2005, 2011, and for two cases in 2013.

It looks like another Circuit is following this trend.  This time the good news comes from the 7th Circuit Court of Appeals where a three-judge panel struck down same-sex marriage bans in both Wisconsin and Indiana.  This was especially noteworthy due to the 7th Circuit’s traditionally conservative tone and the judges’ challenging questions to attorneys at oral argument, including what benefits society gained from barring same-sex marriages and whether children of same-sex couples might suffer psychologically if their parents had to try to explain why they were not allowed to be married while other children they interacted with had legally married parents of opposite sexes.

We are tracking these cases and keeping an eye on the U.S. Supreme Court docket to see whether they will weigh in next session.

From the SJC

On Monday, the Massachusetts Supreme Judicial Court (SJC) ruled, in the case of Commonwealth v. Jose A. Guzman, that a law requiring GPS monitoring during probation for those convicted of certain “noncontact” sex offenses involving a child did not give a judge discretion on whether to impose GPS monitoring.

In that case, a Superior Court judge had declined to include GPS monitoring as a condition of probation, despite the fact that the defendant plead guilty to a sex offense involving a child, an offense requiring GPS monitoring as a condition of probation by law.  The defendant claimed that the law violated procedural due process rights and protections against unreasonable search and seizure by requiring the same probationary measure for any sex offense involving a child, from pornography (as was at issue in this case) to sexual assault.  The SJC rejected these arguments, finding that the law was Constitutional and the Superior Court judge erred.

We are looking forward to seeing many of you in the coming weeks here at 16 Beacon and at the Westin Copley for Annual Meeting while we get back into the swing of things for the 2014-15 program year.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Brockton, Bill, and Budget: Intra-Governmental Efforts to Eliminate Substance Abuse

This past year, we witnessed a proliferation of substance abuse emergencies in our communities, prompting the Governor to declare a public health emergency.  At the same time, our understanding of best treatment both scientifically and criminally continues to evolve.  Thus, we are pleased to see the response of our government, which has come together across branches and politics to make some major changes in an attempt to address the problem.   Through the budget, legislation, and judicial innovation, the Commonwealth is taking on this issue in new and creative ways.

We noted in our budget updates that the Trial Court’s budget request included a $2.7 million “module” for the creation of specialty courts.  Although the final budget was about $3 million below the Trial Court’s $615 million request, it specifically included funding earmarked for this project.  In fact, this module was provided for in each step of the budget process across the Executive and Legislative branches – first by the Governor, next by the House and Senate, and finally in the Conference Committee budget signed by the Governor.  The Senate even called for an additional $300,000 in funding beyond the Trial Court’s request to help fund continuing examination and analysis of specialty court functioning.

At the end of formal session, the legislature passed its own measures to combat drug abuse in the bill S2142, An Act to increase opportunities for long-term substance abuse recovery, which Governor Patrick signed into law on August 6th.  The bill is intended to prevent drug abuse by increasing oversight on prescriptions while also making treatment easier to obtain and afford.  Most notably, the bill includes provisions requiring insurance providers to cover deterrent drug products and substance abuse treatment in some cases.  Other parts of the bill increase oversight and monitoring of patients prescribed certain drugs and require coroners to report opioid-related deaths to the Department of Public Health (DPH) and the U.S. Food and Drug Administration (FDA).  In addition, the bill gives DPH new authority to monitor potentially dangerous substances.  Although the bill costs $20 million and caused some concerns for insurance companies, it passed with bipartisan support and has been touted as a potential model for federal legislation.

Around the same time the bill was passed, the Trial Court announced its plans to open a new specialty drug court in Brockton, funded by the $2.7 module appropriated by the legislature.  BBA President Paul T. Dacier examined the specialty court system and drug courts in particular this year.  In his blog, he notes that the specialty court model achieved remarkable results nationwide, reducing recidivism and helping people recover from addiction.  Specialty Court sessions feature judges trained and peer-reviewed in handling certain issues.  The Courts focus on rehabilitative treatment programs and probation, sometimes lasting up to two years.  This approach has resulted in seventy-five percent of rehabilitation program graduates remaining arrest-free two years out of the program – quite an achievement, especially considering that Specialty Courts handle the cases of those individuals considered most at risk of recidivism.

While the issue of substance abuse is extremely complex and constantly changing, we were pleased to see – from the budget, to a bill, to the execution of specialty courts – that each branch came together in an attempt to solve a problem and improve the lives of people in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Are Prosecutors and Public Defenders Paid Enough?

After a back-and-forth with the Legislature during the Fiscal Year 2015 budget debate, Governor Deval Patrick issued an executive order to create a new commission that will study the question of appropriate salaries for prosecutors and public defenders. 

Earlier this year, the Legislature sent the Governor a budget that increased District Attorney (DA) salaries by 15%, from $148,843 to $171,561.  The Chief Counsel for the Committee for Public Counsel Services (CPCS), whose pay is statutorily tied to that of the DA’s, would get the same raise.  The budget did not change salaries for Assistant DAs (ADAs), though it included a statewide pool of $500,000 to be used, largely at the DAs’ discretion, toward raises intended to help retain ADAs with more than 3 years of experience – a group that numbers in the hundreds.

Governor Patrick expressed his support for this $22,718 pay increase for DAs – their first in 7 years – but returned the provision with a proposed amendment that would also create a commission to study the salaries of ADAs and CPCS staff attorneys.  The Governor wrote, “These dedicated public servants deserve a salary reflective of their indispensable contribution to the Commonwealth and the fair and equitable dispensation of justice in our courts.”

The Legislature rejected this amendment, overriding the Governor and enacting the pay raise with no commission.  But the Governor created one anyway through an executive order and tasked it with comparing salary structures within DA offices and CPCS to those in other states, as well as to salaries of attorneys in law firms and other government offices.   In addition, the commission will look into the possibility of cost-of-living increases and try to put a figure on how much money the state will need “to address inadequate salaries”.

The “pathetic” pay for new ADAs was the subject of an editorial in the Boston Globe earlier this year, and salaries for incoming CPCS defenders are only marginally higher.  The Globe pointed out that most law-school graduates in Massachusetts must weigh heavy student debt and the high cost of housing in making job decisions, and that low salaries lead to unnecessary turnover.  The Commission will undoubtedly find – as the Massachusetts Bar Association’s task force on this subject recently did – that pay scales for these critical jobs are well below those in surrounding states. 

The Governor’s commission must report its findings and recommendations by December 15, 2014, and we will continue to monitor its progress until then.  The BBA has long supported efforts to advance the cause of justice, and attracting and retaining skilled prosecutors and defenders can be an important part of that equation – so long as the funds don’t come at the expense of other essential components of the justice system.  Incoming BBA Vice President Carol Starkey will represent the BBA on the 15-member commission, and we look forward to reviewing its report.


Finally, a personal note: This is my first Issue Spot entry, having started last week as the BBA’s Government Relations Director.  I look forward to using this space to keep you updated on matters of interest to the BBA, and I hope to have the opportunity to work with as many of you as possible.  Please don’t hesitate to get in touch with me if you have any questions or concerns.

– Michael Avitzur
Government Relations Director
Boston Bar Association

Summer SCOTUS Update

The latest session of the Supreme Court may have ended several weeks ago, but there have still been some recent developments on cases of BBA interest, namely marriage equality and the use of affirmative-action measures in higher education.

The BBA has long been a supporter of marriage equality both in the Commonwealth and federally, filing amicus briefs in its defense in 2002, 2005, 2011, and most recently in 2013 in the Supreme Court cases U.S. v. Windsor and Hollingsworth v. Perry.  Windsor challenged Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman, while Perry challenged California’s Proposition 8, a gay-marriage ban approved by a 2008 ballot initiative.  Our brief for these two cases argued that sexual-orientation classifications warrant heightened scrutiny under the Equal Protection Clause.  We were pleased that the Supreme Court’s ruling affirmed that all married couples deserve equal treatment from the federal government.

The Supreme Court’s opinion may be sought again, this time in a case from the Fourth Circuit striking down Virginia’s ban on same-sex marriage as well as a similar case from Utah.  The Virginia case concerns both a state’s power to forbid same-sex marriage within its boundaries and its power to decide whether to recognize same-sex marriages legally performed in other states.  These are just two cases in what has been, by one count, a string of 35 consecutive state and federal rulings on the side of same-sex marriage in the 14 months following the Supreme Court ruling.

It appears likely that the local Virginia county clerk will file a petition for SCOTUS review of the case by the end of October.  The next Supreme Court term begins on October 6, and while the Court has complete discretion on whether to take up this or any other case, it seems inevitable that the justices will weigh in again, probably sooner rather than later, on this fast-moving issue.

Another case of BBA interest, Fisher v. University of Texas, continues to evolve.  The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, a position that inspired amicus briefs in the 2003 case, Grutter v. Bollinger, and 2012’s Fisher v. University of Texas.  In each case, the BBA’s amicus briefs argued that race-conscious admission policies are constitutional as well as positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher brief:

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.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  This session, in Fisher, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in mid-September, but the issue remains open to discussion and interpretation.

In July, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan.  The same procedural course of events transpired in the initial case, which was taken up by the Supreme Court after a three-judge panel upheld the University’s policy and the Fifth Circuit denied an en banc review.  Given this latest ruling, it looks like the plaintiffs may again seek SCOTUS review.  Perhaps anticipating this move, the University of Texas President penned an op-ed posted online by the National Law Journal earlier this week, arguing that higher-education institutions still need affirmative-action policies.  We agree.

The BBA is always interested in drafting or signing on to amicus briefs that fall within our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  Both improved diversity in the legal profession through equal access to higher education and marriage equality fall squarely within these goals.  We will continue to keep an eye on both of these issues going forward.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association