Monthly Archives: October 2014

How We Got Here

The BBA’s recent report on civil legal aid in the Commonwealth , “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts,” paints a dire picture.  In spite of generous monetary support from the private bar and Legislature alike, nearly two-thirds of those who qualify for legal aid are turned away due to a lack of resources.  It is a sad and frustrating state of affairs when some 54,000 qualifying individuals cannot obtain the legal help they need to secure necessities such as shelter or protection from a batterer. This predicament didn’t manifest overnight.  This is how we got here…

The Massachusetts Legal Assistance Corporation (MLAC) was established by the Legislature in 1983 to provide financial support for legal assistance programs in Massachusetts.  Shortly thereafter, in 1985, the Interest on Lawyers Trust Account (IOLTA) program was created by the Supreme Judicial Court.  The IOLTA program collects interest on funds held in trust by attorneys and uses them to help fund legal aid.  By 1990, MLAC’s total funding was just under $8.4 million.  This included nearly $3 million from IOLTA, $2.8 million from a surcharge on civil case filing fees, and almost $2 million from a legislative appropriation.

In 1994, the Legislature changed the law, moving the funds from the surcharge on civil filing fees from MLAC to the General Fund.  While the Legislature has since greatly increased its yearly appropriation to MLAC, up to $15 million in Fiscal Year (FY) 2015, it has never again given MLAC a direct source of revenue as it had from the filing surcharge through 1994.  This item has produced around $4 million of income for the General Fund in the last few years.

At the same time, IOLTA revenue was generally increasing, until it reached tens of millions of dollars annually in the early 2000s, including more than $16 million in FY 2007 and $17 million in FY 2008.  MLAC total funding in each of those years was over $25 million.  When the recession hit in 2008, IOLTA plummeted and the legislative appropriation dropped.  MLAC’s total funding decreased over ten million dollars in a single year.  Each year since then, IOLTA funding has continued to drop, and although the Legislature has continued to gradually increase funding for legal aid, and individuals — mostly lawyers — have continued to contribute tens of millions of dollars’ worth of pro bono services and monetary donations, legal aid funding lags behind the growing need.

One figure in particular helps highlight this gap: Turn-away rates, which were about 50% in the mid-2000s, have reached an estimated 64%, as calculated by the BBA’s Statewide Task Force to Expand Civil Legal Aid.  The funding decreases forced legal aid agencies to lay off experienced attorneys and implement hiring freezes.  Compounding the problem, the state experienced a nearly 25% increase in the number of individuals qualifying for legal aid in recent years, to almost 1 million people today.

Now that we know how we got here, we are excited to see where we can go.  “Investing in Justice” demonstrates, through the work of three independent economic analysts, that the state stands to save a significant amount of money by investing in civil legal aid.  The report recommends a $30 million annual increase in legal aid funding over the course of the next three years.  We know that amount is not even close to enough to solve all our problems, but it is a sound start.  We hope the Legislature will heed the advice of SJC Chief Justice Ralph Gants from his State of the Judiciary Address, asking them to carefully consider our findings and recommendations.  The money the state invests in legal aid will pay dividends, and not just for the state’s bottom line. The investments improve the administration of justice in the courts and, most importantly, they improve the lives of individuals in Massachusetts, allowing them to secure basic needs such as shelter, safety, and human dignity.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Long Road to a Roadmap

On Wednesday, October 15, the BBA released its Task Force report on civil legal aid issues – “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts.”  We are extremely proud of the report.  As far as we know, this is the first time data such as turn-away rates and a survey on judge’s observations has been so systematically gathered and examined.  In addition, the report features the outstanding work of three independent economic analysts, who, working pro bono, broke down the areas of housing, domestic violence, and federal benefits into cost-benefit analyses based on state funding.

The report’s findings paint a dire picture.  Roughly 64% or more than 54,000 income-qualifying people who sought civil legal aid in Massachusetts last year were turned away due to lack of resources.  In addition, more than 60% of judges said that lack of representation resulted in a negative impact on the court’s ability to ensure equal justice.

However, the economic analysts’ reports reveal a potential boon for the Commonwealth.  Conservative estimates showed that investment in civil legal aid would actually result in cost savings to the state and growth for our economy.  Taking these numbers into account, the task force recommends a $30 million increase in annual state funding to help bridge the gap between existing resources and what is needed to provide appropriate civil legal aid to all who are eligible.  Although that amount will not solve the entire problem, it would be a great start.

“Investing in Justice” was released to some fanfare, with an exclusive article on the cover of the Boston Globe, radio coverage on WBUR and WBZ, and continuing media coverage, including a feature-length story in the MetroWest Daily News.  However, it is important to remember that this did not all happen at once.  The report is the result of more than 18 months of hard work by a devoted group of task force members.  Even beyond that it is the result of the foresight of task force chairman and former BBA president J.D. Smeallie, Holland & Knight, who decided to tackle the gargantuan issue of civil legal aid funding as his presidential initiative almost two years ago.

When J.D. Smeallie became president of the BBA in 2013, he took note of the revolution occurring in New York State surrounding funding for civil legal aid.  Since 2010, the state had been massively expanding its legal aid funding, based largely on reports issued by its Task Force to Expand Access to Civil Legal Services, chaired by Helaine Barnett and created by Chief Judge Jonathan Lippman.

Each year, the task force was comprehensively exploring different aspects of legal aid.  It gathered testimony from legal aid clients and business leaders and solicited the work of economists to examine potential cost-savings from legal aid funding.  It examined pro bono initiatives and ways law schools could get involved to meet the unmet needs for legal aid.  Finally, it made findings and recommendations for action, many revolving around state funding . . . and the state was listening.  In FY 2012, Judge Lippman demonstrated his personal commitment to civil legal aid, setting aside $27.5 million from his general court operating budget for civil legal services.  That allocation increased with the support of the state legislature to $55 million in FY14 and to $70 million in FY15.

Smeallie looked to New York’s task force as a model and began crafting his own team in Massachusetts.  He had a few priorities – to include representatives from all parts of the state and to make sure they had diverse interests.  In the end, his efforts produced the 28-member BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts:

Susan Alexander – Executive Vice President and Chief Legal Officer at Biogen Idec Inc. 
Lawrence Bacow –
Former President of Tufts University 
Chris Barry-Smith

Manisha Bhatt
 – Senior Attorney at Greater Boston Legal Services
Jonathan Chiel – Executive Vice President and General Counsel at Fidelity Investments
Hon. Martha Coakley – Attorney General of the Commonwealth of Massachusetts
Katherine Cook – Chief Legal Counsel at The Office of the Governor
Paul T. Dacier – Executive Vice President and General Counsel at EMC Corporation, Past-President of the Boston Bar Association
Lawrence S. DiCara – Partner at Nixon Peabody LLP
Russell Engler – Professor of Law at New England Law | Boston
Hon. John V. Fernandes – State Representative at the Massachusetts House of Representatives
Robert Holloway – Past-President of the Massachusetts Bar Association
Kathleen Joyce – Senior Counsel at Boston Redevelopment Authority
James C. Kennedy – Chief Legal Counsel at the Massachusetts House of Representatives
Joan Lukey – Partner at Choate, Hall & Stewart LLP
Hon. Richard J. McMahon – Justice at Probate and Family Court, Bristol County
Martha Minow – Dean of Harvard Law School
Alice Moore – Counsel to the Massachusetts Senate
Susan Murley – Co-Managing Partner at Wilmer Cutler Pickering Hale and Dorr LLP
Joseph Nauman – Senior Vice President and General Counsel at Acushnet Company
Lon Povich – General Counsel at BJ’s Wholesale Club
Lonnie Powers – Executive Director of Massachusetts Legal Assistance Corporation (MLAC)
Mary Puma – Chief Executive Officer of Axcelis Technologies
Faye Rachlin – Deputy Director of Community Legal Aid in Worcester, MA
Elizabeth Soule – Executive Director of MetroWest Legal Services
Veronica Turner – Executive Vice President at 1199SEIU United Healthcare Workers East in Massachusetts
Hon. David Weingarten – First Justice at Boston Municipal Court, Roxbury Division
Hon. Jim Welch – State Senator at the Massachusetts State Senate, Hampden District

A look at their affiliations above shows how well he succeeded.  The group includes representatives from across the state, bringing together leaders from business, academia, and all three branches of government; attorneys from legal services, private practice, and in-house staffs.  In addition, the task force recruited three independent economic analysts, who provided pro bono services.  Analysis Group studied potential cost savings to the Commonwealth from civil legal aid funding in the area of housing, foreclosures, and evictions.  Alvarez & Marsal looked at domestic abuse issues, and NERA Economic Consulting calculated the potential for economic growth from investment in civil legal aid in the area of federal benefits.

We are proud to have watched this process from the beginning – the inspiration, the drafting of the task force, 18 months of intensive study, and finally the release of the report and resulting media and public reactions.  We hope that you will take the time to read “Investing in Justice” for yourself – contemplate the problem and consider the proposed solutions.  We hope that it will has profound an effect for you as it does for us.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Governor Patrick and the Importance of a Diverse Judiciary

On October 14, we will honor Governor Deval Patrick with the 2014 BBA Beacon Award for his commitment to diversity on the bench.  It is important to reflect on the immensity and breadth of his impact, because his work certainly transcends the judicial branch.   For example, most executive-branch employees are now women, and more than a quarter are people of color.  During his time in office, there has been a 10% increase in the number of women holding managerial positions in the executive branch, and a 57% increase for racial minorities.

These changes are not happenstance; they were the direct result of a concerted effort by the Patrick Administration to overhaul the executive branch.  During his first month in office, Governor Patrick enacted Executive Order 478, declaring his commitment to diversity.  In 2011, he reaffirmed this commitment with Executive Order 526.  The orders spell out the means to achieving diversity through hiring.  Some of the highlights include:

  • Section 2 – declares “non-discrimination, diversity, and equal opportunity” as policies of the executive branch “in all aspects of state employment, programs, services, activities, and decisions.”  It charges each agency to consider the effects of its actions on achieving this policy.
  • Section 4 – calls for the protection and affirmative promotion of equal opportunity and diversity in all state, state-assisted, and state-regulated programs, activities, and services.
  • Section 10 – requires diversity training for current executive-branch employees at all levels and for all future new hires.

Similar to the executive branch, the judiciary has changed markedly over the past seven years as well.  It is currently at a high point of diversity.  Earlier this year, the Supreme Judicial Court’s first Chief Justice of color, Chief Justice Roderick Ireland, was replaced by the first Jewish Chief Justice, Ralph Gants.  In addition, with the appointment of Geraldine Hines, the first black woman to serve on the SJC, the state’s highest court has a majority of female justices for the first time.  Governor Patrick also appointed the first openly gay SJC justice, Barbara Lenk, and the first Asian-American justice, Fernande R.V. Duffly.

Diversity on the bench is important for a number of reasons.  A jury trial calls for a set of one’s peers gathered from the community, yet there is no such ideal in place for judges.  Thus, those who preside over cases may not be as representative of the population they serve.  As a recent Boston Globe article explored, this arrangement could be a source of bias, a troubling thought even if it is likely unintentional.  As one scholar contends, true impartiality requires judges from diverse backgrounds and viewpoints to avoid a situation where one perspective dominates.  Consider as well that people who come in contact with the judicial system may feel a lack of confidence in, or out of touch with, the court if the judges, clerks, attorneys, and others they encounter do not reflect the broader community outside the courthouse.

Achieving a diverse judiciary is a major problem across the U.S.  In most states, racial and gender diversity on the bench lags behind not only that of the state population, but also the diversity of the bar, suggesting possible bias in judicial selection.  In fact, a 2010 Brennan Center study, which advocated for improved judicial diversity, made grappling with implicit bias its top best-practice recommendation for judicial nominating committees.  The problem here is two-fold: first, bias limits the diversity of the bench, and second, in a state like ours where citizens can apply for judgeships, it could have a chilling effect on qualified minority candidates.  Governor Patrick has worked to make sure that this doesn’t happen in the Commonwealth.  His Executive Orders and judicial appointments have fulfilled a myriad of the Brennan Center study’s suggestions and made Massachusetts a leader of judicial diversity.

We are proud of the progress Massachusetts has made under Governor Patrick’s guidance.  We look forward to honoring him next week and hope that whoever follows him in office will build on his progress on diversity in both the judicial and executive branches.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

Annual Judges Meetings: The BBA Meets with the Courts

Over the past two weeks, we began our annual series of presidential meetings with the chief justices of various courts and court departments in Massachusetts.  Thus far, BBA President Julia Huston and staff have met with Chief Justice of the Trial Court Paula M. Carey and Trial Court Administrator Harry Spence, Chief Justice of the Probate & Family Court Angela M. Ordoñez, Chief Justice of the Housing Court Steven D. Pierce, and Chief Justice of the U.S. District Court for the District of Massachusetts Patti B. Saris.  In keeping with our commitment to appropriate funding for the courts, and to access to justice, we discussed ways the BBA can assist specific court departments in achieving their goals for the upcoming fiscal year and beyond.  Here are some takeaways from these sessions:

  • Access to Justice: The Trial Court is looking to expand on the successful Court Service Center (CSC) programs. The Brooke Courthouse CSC alone served 1,500 people in the last three months, mostly for domestic cases.  The Probate & Family Court is working on the same front, attempting to expand its Family Court Workshops to help those in need with their legal problems.

 

  • Funding: The Trial Court continues to implement elements of its Strategic Plan. Part of this plan calls for the creation and expansion of specialty courts.  This year, the Trial Court received $2.7 million for the administration of specialty courts, and it is working to get these up and running. The court hopes to install eight more specialty courts this year and 24 over the next three years, possibly adding a domestic violence specialty court to the four types currently in operation – mental health, substance abuse, homelessness, and veterans courts.

 

  • Technology and Modernization: The Trial Court is building a strong foundation for the future through innovation. To streamline practice for attorneys and pro se litigants alike, it is seeking to expand Alternative Dispute Resolution and Limited Assistance Representation programs.  The Court is also integrating technology into its daily practices, including electronic applications for criminal complaints and e-filing.  It recently launched a pilot program in Bristol County that gives attorneys online access to dockets and calendars; this program has resulted in a marked reduction in calls to the court office.  The next step for the Trial Court will be to roll-out “Court View to Go,” an application that provides attorneys instant case updates on smartphones.  The Probate & Family Court is working on similar projects, including a new status-inquiry form and a pilot program on limited-issue settlement conferences.

 

  • Court Practice and Procedure: The Trial Court and Probate & Family Court are examining internal practices. The Trial Court is revising its judicial evaluation process, in order to better assess and train its judges.  The Probate & Family Court expressed concerns over a lack of civility exhibited by attorneys and is working with the Massachusetts Bar Association to update their civility guidelines and examine ways to help attorneys reform their behavior, such as sending offending attorneys to a civility education program in lieu of the monetary sanctions that can currently be imposed.

 

  • Housing Court Expansion: We spent most of the Housing Court meeting discussing a possible statewide expansion. Currently, almost 1/3 of the state’s population is unable to access the Housing Court, including the Cape and Islands; almost all of Norfolk County; South and West Middlesex County; and the towns of Revere, Chelsea, and Winthrop.  The potential expansion would not require any new courthouses; it would simply mean adding judges to sit at regular weekly sessions.  This plan would ease some of the District Court’s caseload, while preserving the District Court’s concurrent jurisdiction.

 

District Court Sentencing and Release Concerns: Sitting down with the Chief Justice of the U.S. District Court for the District of Massachusetts, Patti Saris, we spoke about sentencing – a topic she is thoroughly familiar with, as chair of the U.S. Sentencing Commission.  She expressed concerns about mandatory minimum sentences.  The BBA has long opposed such sentences, because judges should have discretion to consider the nuances of each case and the individual defendant when making sentencing decisions.  Although achieving consensus on eliminating these sentences may prove difficult on the federal level, it is possible that the sentences could instead be decreased, and the Chief Justice briefed us on some pending legislation in Congress to do just that.

We spoke as well about re-entry programs for people released from incarceration; these are critical to reducing recidivism, and Chief Justice Saris had suggestions about how our Public Interest Leadership Program (PILP) could help work with the state on successful reentry.  For individuals recently released from prison, housing concerns go hand-in-hand with finding a job, since low-wage employment may not be enough to sustain housing.  Meanwhile, affordable Section 8 housing is rife with restrictions, often barring convicted felons — which can lead them to stay instead with the very people they should be avoiding as part of a successful reentry plan.

As for court funding, the Chief Justice explained that the federal court budget crisis is resolved, if only for now, and the Court has filled vacancies created during a hiring freeze.  However, the Court remains wary that these issues could arise again.

We have more meetings scheduled for the coming weeks and will continue to keep you posted on our discussions as we seek to learn more about how we can work to assure the continued excellence of the Massachusetts judiciary.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association