Monthly Archives: July 2015

Near Final State Budget and Innovation in Civil Legal Aid Advocacy

We are pleased to start with some great news.  The FY2016 budget appears to be just about settled as the House and Senate are voting on their Legislative overrides to the Governor’s proposed vetoes (read more about the budget process and all our budget priorities here), and both houses agreed to restore vetoed funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), and the Land Court ($291,470).  All three provide essential services to people in Massachusetts.  At the time of writing, the House had also voted 143-11 to override the Governor’s veto of $3.7 million from the Trial Court’s administrative staffing budget.  We hope the Senate will do the same.

The Land Court Department has statewide jurisdiction over the registration of title to real property and foreclosure and redemption of real estate tax liens.  It also shares jurisdiction over matters arising out of local planning and zoning board decisions.  The Housing Court Department has jurisdiction over civil and criminal actions, including equitable relief, which involve the health, safety, or welfare of the occupants or owners of residential housing.  It hears summary process (eviction) cases, small claims cases, and civil actions involving personal injury, property damage, breach of contract, discrimination, and other housing related claims.  It also hears residential housing code enforcement actions.  We are currently advocating for the statewide expansion of Housing Court jurisdiction, as it now covers less than 70% of the state population.  This can be accomplished through the enactment of S901/H1656, and we hope restoration of this funding demonstrates the value the Legislature sees in Housing Court, and represents a first step towards passage of these expansion bills.

Thank you to all our members who responded to our social media action alert for Prisoner’s Legal Services (PLS)!  PLS provides legal assistance to incarcerated individuals and promotes the safe, humane, and lawful treatment of Massachusetts prisoners through civil rights litigation, administrative advocacy, client counseling, and policy outreach.  It receives well over 2,000 requests for advice or assistance each year and is one of the only organizations of its kind in the state, working to assure prisoner’s rights are upheld – that they get the medical attention they need, their confinement conditions are constitutional, and they are safe from assault.  PLS’s vital legal aid also safeguards prison staff, protects public health, and eases the burden on our courts.

Throughout the budget veto and override process, the additional $2 million received by Massachusetts Legal Assistance Corporation (MLAC), which funds civil legal aid programs across the state, remained untouched.  This substantial increase will help MLAC expand its important work and brings its total funding for FY2016 to $17 million, representing a 15% year-over-year increase, when the overall budget increased by only 3%.  This percentage increase demonstrates a clear commitment from the Legislature and Governor to support civil legal aid while also running a more efficient Commonwealth, thanks to the cost savings provided by civil legal aid as demonstrated in our Investing in Justice task force report.

Even as the FY2016 budget cycle comes to an end, our work never stops.  It is precisely this summer “down time” when we need to redouble our efforts and find new ways to spread our message on civil legal aid.  The need for legal aid is ever increasing, and we constantly see new stories highlighting the need for increased funding for legal services agencies and underscoring the value of the assistance they provide.

With this in mind, we are pleased to report on an innovative new way the private bar is becoming involved.  The idea is law firm breakfasts throughout the year, featuring presentations by members of the Equal Justice Coalition (EJC) and MLAC on civil legal aid and advocacy.  It is based, at least in part, on the model started at Nutter McClennen & Fish, which holds a breakfast for the entire firm around the time of Walk to the Hill, the annual lobbying event for civil legal aid, to promote the Walk and explain the importance of lawyers advocating for civil legal aid funding.

The breakfasts are being arranged by the EJC with the help of its private bar liaison, Louis Tompros of Wilmer Hale.  After a successful start at his home firm, the group recently paid a morning visit to Holland & Knight, where Ben Stern was host and past BBA President J.D. Smeallie presented to a full boardroom on the findings of the BBA Statewide Task Force on Civil Legal Aid, which he chaired.  The breakfast also included presentations by MLAC Executive Director Lonnie Powers, EJC Chair John Carroll, of Meehan, Boyle, Black & Bogdanow, and EJC Director Deb Silva.

The speakers talked about the history of legal aid and its funding, the importance of legal services, the budget process, tips for advocacy, and the key role played law firm attorneys, who, as Louis explained,  understand the issues and have the means to do something about it.  The presenters stressed the importance of not only being an engaged voter but also contacting legislators to inform them that their constituents care about legal aid.  Just this small act can go a long way and make a major difference.

Thank you to everyone who helped us advocate for our budget priorities in this budget cycle.  We will continue to keep you updated, and hope that you’ll be ready to answer the call again when the FY2017 budget process begins in January.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Justice Scott Kafker Confirmed as Chief Justice of the Massachusetts Appeals Court

On Wednesday, July 22, by a 7-1 vote, the Governor’s Council confirmed sitting Associate Justice Scott Kafker to be the next Chief Justice of the Massachusetts Appeals Court.  Justice Kafker succeeds Appeals Court Chief Justice Philip Rapoza, who retired from the bench on June 30. As Chief Justice, Kafker will oversee the 20 other Appeals Court judges and–as he put it—work as “the daily guardian” of the Commonwealth.

This marks the first judicial appointment by Governor Charlie Baker, whose administration was applauded by the Council before the vote for putting forward such an “outstanding nominee right out of the box.” Councilor Terrence Kennedy remarked that “if they’re all like that, we’re going to have an easy ride the next four years.”  It is also is the first judicial appointment to have come through the recently-reconstituted Judicial Nominating Commission (JNC), chaired by BBA past-president Paul Dacier.  The JNC played an integral part in reviewing the candidate and is equally deserving of praise for its role in this process.

Who Is Justice Kafker?

First appointed to the Appeals Court in March of 2001, Justice Kafker has heard almost 2,700 cases and written opinions in nearly 900.  Prior to joining the Appeals Court, he served as chief legal counsel for the Massachusetts Port Authority (Massport) and deputy chief legal counsel to Governor William F. Weld.  During his time in the Weld Administration, Kafker served alongside Charlie Baker and current SJC Justice Robert Cordy.

A graduate from Amherst College and the University of Chicago Law School, Kafker spent his first few years out of school as an associate at Boston’s Foley, Hoag & Eliot. He has taught at Boston College Law School, the National Judicial College, and serves on the SJC’s Advisory Committee on the Rules of Civil and Appellate Procedure.  Justice Kafker is a trustee of the Dana-Farber Cancer Institute and a member of the American Law Institute.

The Process of His Nomination and Confirmation

As you may recall, earlier this year we reviewed the procedure for the appointment of new judges and explained the first two crucial steps of the process: The screening of applicants for judicial office by the Judicial Nominating Commission and the review of successful candidates by the Joint Bar Committee (JBC). Once Chief Justice Rapoza announced his retirement plans in February, it was clear that finding a suitable replacement would be the first order of business for the JNC, and it was their work that led to Justice Kafker’s nomination by the Governor.

JNC diversity meeting

JNC staff meeting at the BBA on July 8 with affinity bar leaders on strategies to increase diversity of the bench

After his nomination, Justice Kafker was subjected to a final review by the Governor’s Council, which is an elected body consisting of 8 Councilors and the Lieutenant Governor. All judicial nominations are subject to review by the Council — the final step in this multi-layered selection process.

Last week, we attended Justice Kafker’s public confirmation hearing, with the Governor’s Council taking witness testimony in support and, from one individual, in opposition to Kafker’s nomination. They also heard from Justice Kafker himself and asked him questions that would better inform their vote.

governors council kafker

Justice Kafker sits facing the Governor’s Council

Testifying on Kafker’s behalf was a diverse and comprehensive list of witnesses.  Justice Cordy and Appeals Court Justice Elspeth Cypher—who have both worked extensively with Kafker in the past—spoke to Kafker’s professional qualifications, citing his extensive experience and background, his legal, managerial, and collaborative skills, as well as his calm and contemplative  temperament. Council members inquired about Kafker’s leadership qualities, his disciplinary ability, and his “non-trial lawyer” legal background. Amid an exchange of jokes from both sides, Cordy and Cypher made plain with utmost conviction their belief in the abilities of Justice Kafker.

Law clerk Brittany Williams and court officer John Harrison spoke to their positive experiences working for Judge Kafker. Williams described Kafker as a “first-rate supervisor, mentor, and judge” and further emphasized his collaborative and pragmatic nature. Court officer John Harrison began by stating that he didn’t realize Kafker was a judge because “he was a regular, nice person”— which was received humorously by the Council. Harrison also conveyed how all the employees like Justice Kafker because he treats them all with respect. Councilors noted how much they valued this testimony because it demonstrated Kafker’s civility and managerial abilities.

Striking a common theme, Dana-Farber’s general counsel Richard Bosky and Kafker’s longtime friend and law-school classmate David Abelman, further testified in support of Kafker’s collaborative skills. Bosky spoke to Kafker’s diligence in preparation for board meetings, his dedication, and the value of his advice. He also mentioned how Kafker made it his priority to diversify the board. Abelman added that Kafker is fair, passionate, and leads by example.

The only person to speak in opposition to the nomination was Patrick McCabe of the Fatherhood Coalition. While McCabe was quick to praise the justice’s legal writing ability, he raised questions about Kafker’s leadership ability based on child-custody decisions to which the Coalition has objected. McCabe expressed concern over the fact that judges—including Kafker—routinely grant sole custody to one parent without any explanation.

In his address to the Council, Justice Kafker stated that if he were confirmed, his mission would include speeding up the issuance of decisions, creating more specialized expertise for better collaboration, promoting diversity on staff, and pioneering a new system of technology in the courts for improved efficiency. Kafker described himself as responsive and respectful, saying he respects everyone from all branches of government and tries to treat everyone with dignity. The hearing was cordial and flowed smoothly, with little debate, and several Councilors declared their support for Justice Kafker.

The Governor’s Council reconvened yesterday to vote on Justice Kafker’s confirmation, with Lieutenant Governor Karyn Polito presiding. Polito, who takes part in the selection process and facilitate the Governor’s Council review, pledged that only the best candidates will come before the Governor’s Council, after Councilor Jennie Caissie offered congratulations to the Administration and all those involved in the process that produced the newly-sworn-in Chief Justice Kafker.  We echo this sentiment and are pleased to see the JNC’s hard work beginning to bear fruit.  We hope this is only the first of many strong appointments, and encourage everyone with any interest in a judgeship to apply, as the only way to assure we have great judges is to start off with great candidates.

– Jing Li
Summer Intern
Boston Bar Association

Breaking Down the SJC Ruling in BBA Amicus Case Wong v. Luu

On Tuesday the SJC released its decision in Wong v. Luu, and we were gratified by the results.  As you may recall, our Amicus Committee filed a brief in this case that played a major role in oral argument.  As it turned out, it played a role in the final holding, too.  Although our brief is not cited, the SJC held, as we had advocated, that the trial judge did not have power to assess nearly $240,000 in sanctions against an attorney for his alleged role in breaking up a potential settlement agreement.  The case helps to clarify the sanctioning power of judges going forward.

How We Got Here

We first learned about this case at the end of 2014, after the SJC granted direct appellate review and issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.  Our Amicus Committee, chaired by Mark Fleming of WilmerHale, reviewed this request and gathered feedback from the BBA’s LitigationCivil Rights and Civil Liberties, and Bankruptcy Law Sections and Ethics Committee, as well as the parties involved in the case.  They ultimately decided to recommend filing a brief, concluding that the case raised serious concerns regarding the practice of law.

The case arises from two orders issued by a Superior Court Justice for sanctions of $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based supermarkets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain – including some who were parties to the case and were already represented by counsel — informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction in order to compensate the other lawyers for their time after the breakdown of settlement discussions, explaining that the attorney had acted unreasonably, wasted court and attorney resources, delayed the administration of justice, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

Through the early part of 2015, the Amicus Committee worked with the BBA’s Executive Committee and Council and their chosen drafter, Debra Squires-Lee, Sherin & Lodgen, LLP, to finalize the BBA’s amicus brief.  We were excited about the final product, crafted by Debra with help from Sherin & Lodgen associate Jessica Gray Kelly, which, while taking no position on the underlying facts of the case, requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order.  It further argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

On March 3, 2015, the SJC heard oral argument in the case.  We hope you will watch the brief video, available here as it was clear that our brief played an integral part.  The brief is mentioned immediately, as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and at the 10:00 minute mark, when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 minute mark, when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), that the Superior Court still did not have authority to sanction the attorney for his actions.

The SJC Decision

In an opinion authored by Chief Justice Ralph D. Gants, the SJC appeared to agree with some of our brief’s major points, most notably that the judge here abused his discretion by imposing the harsh sanctions and that the attorney’s conduct was more appropriately addressed by referral to the Board of Bar Overseers.

Although the Court rejected our argument that inherent sanctioning powers should be limited to cases where it finds “bad faith,” it adopted a similarly significant limitation – that sanctioning must be “necessary to preserve the court’s authority to accomplish justice” (Wong v. Luu, SJC-11789, p. 17) or “ensure the fair administration of justice” (20).  Expanding on this standard, the Court includes examples of sanction-worthy conduct including:

  • Failing to comply with an order of the court (18)
  • Undue delay in compliance (18)
  • Making knowingly false misrepresentations to the court, intentionally misleading the court, or knowingly concealing information that an attorney has a duty to provide to the court (19)
  • Engaging in conduct in the courtroom that interferes with a judge’s ability to manage the courtroom fairly, efficiently, and respectfully (20)

Analyzing the attorney’s conduct at issue here, the Court concluded that

“the fair administration of justice does not require the settlement of a case; although the parties are free to settle their case, their entitlement under law is to a trial, not to a settlement in lieu of a trial . . . the failure of settlement negotiations does not threaten a judge’s ability to ensure the fair administration of justice [and] the inherent powers of the court do not extend to claims that an attorney during settlement negotiations did not act honestly.” (22-25).

The case has already garnered national attention and we hope that the SJC’s leadership will help set sound precedent for courts in the Commonwealth and across the country.  We are proud to have been part of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Process Nearly Complete

This week, the Legislature’s Budget Conference Committee approved a final FY2016 budget and yesterday it was enacted in both the House and Senate.  Let’s take a look at where our items of interest ended up and how they got there:

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

We made a historic push for increased funding of this line item.  Following the release of our Investing in Justice task force report, we implemented an intensive and far-reaching educational campaign, which resulted in media coverage from national to local newspapers to radio and television coverage.  We also held meetings with over 50 public officials including state Executive Branch leaders, state and federal legislators, the Attorney General, and the Chief Justice of the Supreme Judicial Court.

We helped spread the word that 64% of qualified people seeking legal aid are turned away due to lack of resources.  That doesn’t even take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.  We also were proud to share the accomplishments of the private bar, which operates in a public-private partnership with legal aid, donating immense amounts of time and money to the cause.

Finally, we discovered that up-front investments in legal aid will yield back-end savings from social welfare expenses.

  • For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69, primarily on shelter costs
  • For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in Medicare savings.
  • For every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.

We are pleased to see that MLAC received $17 million in the Conference Committee budget, a $2 million (14%) increase over last year.  Thank you to everyone who responded to our many action alerts asking you to contact your Legislators to let them know the importance of funding legal aid.

Here is the final breakdown:

FY2015 Final: $15 million (before mid-year cut of 1.79%)

FY2016

  • Request: $25 million
  • Governor’s Budget: $15 million
  • House Final: $17 million
  • Senate Final: $17.1 million
  • Conference Committee: $17 million

The BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts recommended a $30 million increase over three years, so our work in this area is certainly not done.  But in the context of an overall budget increase of 3.5% and a $1.8B budget gap that confronted the new Governor, this budget lays a good foundation.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the Legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples included funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

We were satisfied with the final funding amount of $631.5 million and grateful for legislative support.  Within that number there were some particularly bright spots including increases to specialty court funding and the courts’ HOPE/MORR intensive probation program. Unfortunately, statewide expansion of Housing Court jurisdiction did not make it into the final budget.  However, we still hope to accomplish this legislatively through bills H1656/S901.

This is how the funding breaks down:

FY2015 Final: $612 million (before mid-year cut of 1.79%)

FY2016

  • Request: $642.6 million + modules
  • Governor’s Budget: $603 million
  • House Final: $622 million
  • Senate Final: $633 million
  • Conference Committee: $631.5 million

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS’s budget is comprised of four line items that include compensation for its own attorneys as well as private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, which made a convincing case that public defenders, bar advocates, and assistant district attorneys merit higher salaries, and a state commission unanimously agreed with that proposition.  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfunded CPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  The FY16 budget does not propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breakdown:

FY2015 Final: $168 million

FY2016

  • Governor’s Budget: $186.7 million
  • House Final: $170.5 million
  • Senate Final: $173.6 million
  • Conference Committee: $170.6 million

Next Steps

The Governor now has a total of 10 days to review the budget (9 days left at the time of posting).  He can approve or veto the entire budget, veto or reduce specific line items, veto outside (i.e., non-monetary) sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We hope the Governor will approve all of our line items of interest without change and we look forward to keeping you updated on the latest budget news.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equality: Making Great Strides, but a Long Way to Go

Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states.  The BBA has long been a supporter of marriage equality.  We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage.  Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court.  The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:

However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality.  Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications.  The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.

  • The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
  • The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
  • Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.

In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation.  While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.

Massachusetts has long been a leader in legislating equality.  The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application).  Remarkably, more than 25 years later, residents in many other states still lack these protections.

Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality.  As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples.  For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood.  They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples.  In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.

In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment.  However, we recognize that there is still a long way to go.  In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves.  In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity.  Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association