Monthly Archives: December 2014

The Year in Review: Looking Back at 2014 (and Ahead to 2015)

We knew at the start of 2014 that this year would mark a turning point: Marty Walsh was set to be sworn in as the first new mayor of Boston in 20 years, and both Governor Deval Patrick and Senate President Therese Murray were entering their final full year in office.

We now know that Charlie Baker, former Weld Administration official and health-care executive, will be the next Governor, and long-time legislator Stanley Rosenberg of Amherst is expected to be chosen as the next Senate President when the Legislature reconvenes in early January for its 2015-16 session.  The only continuing member of top leadership at the State House will be Speaker Robert DeLeo, though the countdown has begun toward the 2017 end of his term, which is limited by House rules to eight years.

This fall’s elections also saw former BBA Executive Committee and Council member Maura Healey, in her first campaign for elective office, win the race to replace her former boss, Attorney General Martha Coakley.

Change was in the air on Beacon Hill well before Election Day, with a large number of members departing in the middle of their terms.  The session began in 2013 with Senator Katherine Clark and Representative Eugene O’Flaherty as co-chairs of the Judiciary Committee, but by early 2014, both were gone.  Clark won a special election last December for Ed Markey’s seat in Congress after his election to the U.S. Senate.  O’Flaherty gave up his chairmanship after 12 years to become Mayor Walsh’s Corporation Counsel.  William Brownsberger was named the new Senate co-chair, and House vice-chair Chris Markey filled in temporarily for O’Flaherty.  Stephen Brewer, chair of the powerful Senate Ways and Means Committee, is retiring – no word yet on his replacement.

Amidst this upheaval, the Legislature enacted sweeping changes to the state’s laws on domestic violence.  The changes, including a required minimum 6-hour hold before the release from custody of anyone accused of a domestic assault and a ban on publicly releasing  identifying information in such cases from police logs, were prompted in large part by the scandal surrounding the lengthy criminal history of Jared Remy, who pleaded guilty in May to the first-degree murder of his girlfriend.

After the tragedy in Newtown, Connecticut, the Legislature passed gun-law reforms that solidify Massachusetts’ place as one of the most-restrictive states in the country while also addressing the concerns of gun owners about the scope of police chiefs’ authority to deny them a license to own a weapon.

Offenders convicted of first-degree murder as a juvenile will face a 20-to-30-year minimum before parole eligibility, depending on the severity of the crime, under a new law.  The Legislature was on notice that the state’s pre-existing law – imposing mandatory life-without-parole sentences on juveniles and adults alike – was unconstitutional since the U.S. Supreme Court’s 2012 ruling in Miller v. Alabama.  But shortly after the BBA released its December 2013 principles opposing juvenile life without parole sentences, our own SJC followed with a pair of decisions last Christmas Eve (Diatchenko and Brown) that overturned any sentence of life without parole for juvenile murders.

And in a move mostly of interest to the legal community, the Legislature also created a limited right to attorney voir dire in state-court jury trials.  The new law takes effect in February, and an interim order – developed with the help of a committee that included BBA Secretary Mark Smith — is already in place.  (On January 21, the BBA will host a CLE program on the new rules.)

Although this session will conclude, for the first time since 2008, with no broad changes to mandatory minimum sentencing – which the BBA opposes — such reforms were a growing topic of discussion throughout the year.  Several candidates for statewide office, including the incoming Governor, expressed support for the elimination of mandatory sentences for non-violent drug offenses.  A standing state commission on criminal justice, including BBA representative Marty Murphy, wrapped up 2014 by voting for a similar recommendation.  And a bill to that effect is expected to be filed in January on behalf of a large new caucus of legislators supporting drug-law reforms.

Change was afoot as well at the Supreme Judicial Court, where Chief Justice Roderick Ireland stepped down shortly before reaching the mandatory retirement age of 70.  His colleague on the SJC, Ralph Gants, was elevated to the top position in the state’s judiciary, and Geraldine Hines was promoted to the SJC from the Appeals Court, becoming the first black female justice and putting women in the majority for the first time.  Governor Patrick made both selections, with the approval of the Governor’s Council.

Five of the seven current justices on the SJC were appointed by Governor Patrick, who named the first Jewish (Gants) and black (Ireland) chief justices, and the first Asian-American (Fernande Duffly), and openly-gay (Barbara Lenk) justices.  His imprint on the judiciary extends well beyond the high court, as he appointed 188 of the state’s 411 sitting judges.  Recent retirements, spurred by long-overdue pay raises for judges phased in by the Legislature over 2013 and 2014, created some of that turnover.  For the historic diversity of his selections, the BBA gave Governor Patrick its Beacon Award for Diversity and Inclusion.  With Justices Hines, Spina, and Botsford turning 70 in the next four years, Governor Baker will have the opportunity to place at least three justices on the SJC.

Here at the BBA, we proudly released Investing in Justice, the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, chaired by former BBA President J.D. Smeallie.  The report received universally positive attention from the press, including a front-page story in the Boston Globe.  The Globe followed up with two supportive editorials and an editorial cartoon.

Our work in this area is far from done, as both J.D. and current BBA President Julia Huston have begun meetings with key legislators, making the case for a $30 million increase in legal-aid funding over the next three years.  The Task Force concluded that such an increase in legal-aid funding is crucial to alleviating the justice gap that sees 64% of qualified applicants turned away and has created a troubling influx of pro-se litigants in our courts.  Backed up by three independent reports from economic analysts, the Task Force Report also demonstrates that an investment in legal aid will grow the economy and will more than pay for itself in the form of reduced state costs in a variety of areas, such as shelter for the homeless, medical expenses, and foster care.

This year, the BBA also argued against a shift in accounting practices being considered by Congress – one that could have had a devastating impact on law firms.  We advocated for the uniform guardianship bill that passed the Legislature on the final day of formal sessions; supported by our Trusts and Estates Section and the BBA Council, the bill will streamline cooperation between courts of different jurisdictions on guardianship and protective proceedings, making these cases more efficient, saving the time and resources of the probate court and attorneys that practice there.  Our death-penalty working group led to a broadening of our long-standing opposition to the death penalty to include federal cases.  A BBA task force looked into the fall-out from the drug-lab scandal triggered by state chemist Annie Dookhan’s criminal misconduct and called for increased funding, stricter oversight, and a prompt resolution of all open cases.  And we learned that the SJC had largely adopted the position of our amicus brief in Commonwealth v. Taylor, in which we called for clarification of the speedy-trial rule.

In 2015, we will continue to engage with all three branches of government to promote our agenda.  In January, bills will be filed on our behalf on a broad range of issues, including an update to our estate law on the spousal elective share, a uniform law on intellectual property, and technical changes to title protection rules.  The new Governor will file his first budget in March, and we will be seeking continued increases to the judiciary budget, which grew to $612 million this year, as well as expansion of their specialty courts for veterans, substance abuse, and mental health.

In short, we look forward to an exciting and productive 2015.  Happy New Year!

— Michael Avitzur
Government Relations Director
Boston Bar Association

Housing Court For All

The BBA is pleased to add its name to the large and growing list of supporters for a statewide housing court, following unanimous Council approval earlier this week.The proposal had earlier received recommendations from our Real Estate and Delivery of Legal Services Sections.  Housing Court is a special court session conducted by experienced and expert judges.  They operate out of already existing court houses, providing landlords and tenants with a special legal forum to resolve disputes, as well as code enforcement, mortgage fraud, and numerous complex housing matters.

Housing Court was first established in 1972 for the City of Boston.   Since then, it has gradually expanded through the advocacy work of local constituencies to its current makeup consisting of five divisions covering approximately 80% of the state geographically.  Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis.  Its judges have the expertise to analyze the federal, state, local laws, and codes on housing.

Housing Court is also the only forum to use Housing Specialists, individuals who mediate cases, saving potential litigants time and money they would otherwise spend to have their case heard in court.  Over half of Housing Court cases were resolved in this way last year.  Specialists also perform on-site reviews of property to resolve issues concerning housing conditions.  In part because of these services, Housing Court is extremely efficient, featuring the lowest cost per case of any Trial Court department.

Finally, Housing Court is adept at serving pro se litigants and individuals facing evictions.  It is home to the Tenancy Preservation Program (TPP), a counseling service designed to intervene in cases affecting individuals with physical and/or mental disabilities to help prevent homelessness, as well as volunteer lawyer-for-the-day and other self-help forums.

Despite all these benefits, nearly one-third of Massachusetts residents do not have access to a housing court.  Currently, there is no Housing Court for all of Barnstable, Dukes and Nantucket Counties, most of Norfolk County, and a large portion of Middlesex County.  These areas include cities such as Chelsea, Framingham, Malden, Cambridge, Medford, Somerville, Watertown, Woburn, and Waltham, which have some of the highest number of rental units.  As a result, any housing or code enforcement issues in these counties are heard in District Court, where judges may not have any special housing expertise and housing cases are simply a drop in the bucket of a high volume caseload.  One consequence we’ve heard is that municipalities not covered by the Housing Court sometimes don’t even bring code-enforcement actions to District Court, because they know the inevitable delays make it not worth the effort.

Another interesting element of this proposal is the simplicity with which it can be accomplished.  Because the Housing Court is simply a special sitting, it will continue to operate out of existing court houses.  A handful of support staff is all that is needed to make it a reality.  The total cost to the state is estimated to be roughly $2.4 million per year.  However, funding is a secondary element, as the current proposal seeks only approval of the policy issue of expanding Housing Court statewide. With the support of SJC Chief Justice Ralph Gants, the court will pursue funding on a separate track.

We hope that lending the BBA’s voice to the chorus of supporters will help put this proposal over the top.  We will do our part to make the case in the Legislature that expanding the Housing Court is a step toward greater efficiency and a move in the right direction not only for lawyers and the judiciary but also for two million people, many of whom are renters, in the communities that currently lack the special services only Housing Court provides.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Expanding Access to Justice: Right to Counsel Amicus Brief

The BBA is committed to facilitating access to justice.  Of late, much of our discussion on this topic has focused on Investing in Justice, the report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, and its recommendation for an additional $30 million in civil legal aid funding to help cover the deficit in legal aid services for those in need.  However, this week we are pleased to report on an amicus brief we joined.

Filed yesterday, in the case of In re Guardianship of V.V., the amicus brief argues for a right to counsel for indigent parents of a minor child in private guardianship actions where someone other than the parent seeks to have him or herself appointed by the court as the child’s guardian.  In the case at hand, a 19-year-old self-represented mother, lost custody of her one-year-old son to her grandmother, who had counsel.  The child has since been returned to his mother, so the underlying case is moot, but the Supreme Judicial Court has requested amicus briefs on the right-to-counsel issue.

As the brief notes, this case reflects a gap in counsel rights.  Currently, indigent parents have a right to counsel in other guardianship proceedings, such as those between an individual and the Department of Children and Families – a legal proceeding with the “same fundamental parenting issue at stake”: the potential loss of child custody to a non-parent.  In addition, the brief argues that appointment of counsel is required under due process and equal-protection rights granted in the Massachusetts Constitution, promotes a sound child welfare system, and follows pre-existing national and state policy.

Specifically, the circumstances of this case meet the three-part analysis required for appointment of counsel in Massachusetts, which asks a court to consider: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the Government’s interest.  The private interest here is that of a parent’s relationship with her child, an interest which has been deemed fundamental in Massachusetts case law.

There is a significant risk of erroneous deprivation of this interest due to the imbalance of power, as explained in the BBA’s Gideon’s New Trumpet report from 2008, because the parent faces a potential loss of custody and a represented opponent.

Finally, although the Commonwealth is not a party in these proceedings, the state still plays a role through the Department of Children and Families (DCF), which frequently refers potential guardians to Probate and Family Court to prevent the agency from having to file a Care and Protection case in Juvenile Court and also advises potential guardians to seek guardianships.

In addition, the brief explains how failure to provide counsel violates constitutional equal protection rights.  It compares private guardianship cases with Care and Protection proceedings, noting that they are nearly identical in many facets, except that both state and federal law provide parents with numerous procedural protections in in the latter.  The brief goes on to state that there is no legitimate or compelling government interest that can justify this differential treatment.

Finally, the brief examines policy aspects of the right to counsel.  It demonstrates that providing a right to counsel in private guardianship cases would be good for the justice and child welfare systems, noting that judges surveyed in Investing in Justice witnessed problems due to lack of representations and observed the problem worsening.  It also prospectively examines the process for implementing the right to counsel, warning about a potential for unknowing waiver of substantive rights by vulnerable parents. The brief recommends a “Targeted Representation” approach as set forth by the BBA’s Task Force on Civil Right to Counsel in both Gideon’s New Trumpet and The Importance of Representation in Eviction Cases & Homelessness Prevention, whereby the Court should recognize a right on a case-by-case basis, and ensure that a parent’s decision on whether to retain counsel is voluntary and informed.

We are proud to be a part of this brief and this effort to improve access to justice for parents in these cases and applaud the drafters for all of their hard work to make this brief a reality.  We look forward to its upcoming review by the justices of the SJC on January 5, 2015, and hope they reach the same conclusions explained here.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Working Together: The BBA and The Courts

The BBA and our judiciary are committed to the fair and efficient administration of justice as well as the functioning of the judiciary as a co-equal branch of government.  So with  December upon us, we took the opportunity to do some reflecting on the past year, and particularly on the breadth and depth of judicial involvement with the BBA.

The BBA and the judiciary have historically had a close relationship.  We are proud to support the judiciary, and the BBA President annually meets with the chief justices of all the Trial Court departments, in addition to the Chief Judge of the U.S. District Court, District of Massachusetts; the Chief Judge of the U.S. Bankruptcy Court, District of Massachusetts; and the Chief Judge of the U.S. Court of Appeals for the First Circuit.  At these meetings we discuss the issues facing each individual court and various BBA and court initiatives.

This commitment goes far beyond one-on-one meetings with the chief justices, however, and we are especially grateful for their contributions to the bar.  As the Code of Judicial Conduct correctly notes, judges are in a “unique position to contribute to the integrity of the legal profession and to the improvement of the law, legal system, and administration of justice.”  One way they do this at the BBA is through participation in the Boston Bar Journal, both as article authors and as members of its Board of Editors.  And beginning in January, you’ll find more articles penned by judges and a “Voices of the Judiciary” feature in future issues of BBA Week.  Another way they contribute is by speaking at BBA programs – educating the bar and sharing ideas – all in an effort to improve the administration of justice.  In the last two years, over 100 BBA programs have featured active judges sharing their thoughts, opinions, and practice tips.

The BBA is pleased to work hand-in-hand with the courts on a number of important initiatives promoting diversity and improving access to justice.  A couple of examples:

Projects by the Public Interest Leadership Program (PILP). The BBA’s PILP promotes civic engagement and public service of young lawyers in the community.  The 2012-13 PILP class worked with the Trial Court to draft documents used for the first Court Service Center pilot program in the Brooke Courthouse.  These included a resource guide for self-represented litigants, FAQ sheets, and multilingual cover sheets for legal forms.  The Court Service Centers have already been making a difference for pro se litigants and the courts – helping to streamline the process for both the litigants and court staff, all of which benefits court efficiency and the administration of justice.

The 2013-14 PILP class is partnering with the BBA’s Community Re-Entry and Readiness Program Standing Committee to expand upon its work with the District Court’s Court Assisted Recovery Effort (“CARE”) and Reentry: Empowering Successful Todays and Responsible Tomorrows (“RESTART”) programs.  Both programs operate out of the District Court of Massachusetts and supervise federal probationers reentering the community.  CARE serves a population of probationers who struggle with drug addiction, and RESTART serves probationers who present a particularly high risk of recidivism.  Both programs feature increased supervision, including periodic meetings with the Court, swifter sanctions for non-compliance, regular drug testing, and tight coordination among service providers, the Probation Department, the Federal Defender’s office, the U.S. Attorney’s Office, and the Court.

 Judicial Internship Program. Launched by the BBA’s Diversity and Inclusion Section, the Judicial Internship Program provides professional experience of working in the court system to law students finishing their first and second years of legal education.  The Diversity & Inclusion Section’s Pipeline and Recruitment Committee works to connect the judges with potential interns, and BBA staff facilitates the program.  The internships have been served at the Boston Municipal Court, Massachusetts State District Courts, the Probate and Family Court, and the U.S. Bankruptcy Court for the District of Massachusetts.  Since the BBA began this program in 2010, 100 law students have taken part.  In the summer of 2014 alone nearly 3,000 hours of work were logged by the BBA’s 26 law student interns.

Finally, BBA members work with the courts on numerous issues related to legal practice and court procedure.  The BBA regularly reviews and comments on court rules, procedures, and the work of various court committees.  In the last year, our sections and committees examined everything from proposed amendments to the rules of professional conduct to the Report of the SJC Ad Hoc Committee on Bosch Litigation.  BBA Sections studied eyewitness evidence issues and rules of civil and criminal procedure, and submitted their comments to the Courts.

All of these connections strengthen the BBA and, we believe, the judiciary as well.  They give our members unique opportunities to advance personally and professionally and help us further each piece of our mission – to advance the highest standards of excellence in the legal profession, facilitate access to justice, and serve the community at large.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association