Monthly Archives: November 2015

Giving Thanks for Civil Legal Aid – MLAC at BBA Council

As we gear up for the coming state-budget season, and prepare once again to advocate for civil legal aid, the BBA was pleased to welcome Lonnie Powers, Executive Director of the Massachusetts Legal Assistance Corporation (MLAC), Deb Silva, Director of the Equal Justice Coalition (EJC), and Lauren Song, Housing Attorney with Greater Boston Legal Services to its November Council meeting.  Powers began his presentation with a brief history – established in 1983, MLAC’s mission has always been to ensure that low-income people with critical non-criminal legal problems have access to legal information, advice, and representation.  It is the largest funding source for civil legal aid program in Massachusetts, distributing money to fifteen legal aid organizations throughout the state, largely based on the regional population of income-eligible people.

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MLAC Executive Director Lonnie Powers

The BBA has long taken pride in supporting MLAC’s work, both through our partnership in the EJC and also through our funding advocacy.  This effort resulted in the release of the BBA’s Investing In Justice report in late 2013 following nearly 18 months of study by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  The report revealed that 64% of income-eligible individuals who seek legal aid are turned away due to lack of resources.  This circumstance has a significant impact, not only on these individuals, but also on the justice system as a whole.  A survey of judges conducted by the Task Force revealed that roughly 6 out of 10 judges felt that a lack of representation negatively impacts the courts’ ability to ensure equal justice.  Many also reported that the increasing number of pro se litigants has bogged down court procedures.  Finally, the report demonstrated that increased investment in civil legal aid can result in cost savings to the Commonwealth of anywhere from $2 to $5 for every $1 invested.  So not only is increasing funding for legal aid the right thing to do, it is also the fiscally responsible thing to do.

With this report as the basis for our advocacy, we were pleased when the Legislature demonstrated their support for legal aid, and their understanding of the Task Force report’s findings, by appropriating $2 million in additional funds, bring the total MLAC line item to $17 million – a substantial increase in a year when the overall budget growth was otherwise quite constrained.  Powers revealed that the MLAC board approved a request this year of an additional $10 million, to bring total MLAC funding to $27 million.  He explained that the $2 million increase enabled MLAC to handle almost 1,100 more cases to the benefit of some 4,300 people.  With potentially almost one million people qualifying for legal aid, there is still a very long way to go to serve the need and bring down that nearly-2/3 turn-away rate, but we are headed in the right direction.  Furthermore, this requested $10 million investment will likely return at least $20 million in savings by avoiding back-end costs such as police, shelter, and medical expenses to the state in domestic violence, homelessness, and other cases.

Lauren Song spoke next.  She is an attorney for the GBLS Housing department, which she describes as requiring near-24/7 work.  She told a story of her representation of the families and individuals affected by an East Boston building collapse.  She explained her calm reaction to a text late one Saturday afternoon – her experience with the current homeless crisis in Boston makes this sort of thing a routine occurrence.  In this case, 22 adults and 9 children from 11 households were evacuated when the building collapsed.  Instead of repairing the building to let these people continue living there, developers attempted to evict them and turn the buildings into luxury condos.  GBLS is fighting for their rights – to return to their homes and, in the meantime, to gain shelter housing.
MLAC at Council cropped 1Deb Silva then presented on the EJC campaign.  Walk to the Hill, the annual lobby day for civil legal aid will take place on January 28th at the State House.  Many law firms send teams, and hundreds of lawyers visit the State House to hear speeches from government leaders and speak to their elected officials about why civil legal aid is important.  Here is our write-up from last year’s program.

The EJC campaign is also responsible for broader advocacy, such as sign-on support letters from law firm managing partners, general counsels of major Massachusetts businesses, and law school deans.  It also solicits support from a coalition of individuals and organizations, including social services providers that refer clients to legal aid and recognize its importance.  This year, they are also working on putting together teams from local law schools to participate in the walk.  Finally, they are facilitating the involvement of local bar associations, particularly in the western part of the state for a “Talk to the Hill,” where lawyers who live and work too far from the city to participate in the walk, call their elected officials.

We look forward to all of these efforts coming together and hope that they will achieve the BBA and MLAC’s shared goal of an additional $10 million in funding for civil legal aid.  We hope you will join us at this year’s Walk to the Hill, and that you will be on the lookout for various budget alerts from January through July during the lengthy budget process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Forum Follow-up: Report on the BBA Chapter 180 Working Group Forum

A couple of weeks ago we previewed our Chapter 180 Working Group Forum.  The Forum was held at the BBA on November 12 and we couldn’t be happier with the outcome.  Around forty attendees representing a broad array of stakeholders took part.  There were representatives from law firms of all sizes, academia, organized labor, health care, state legislators’ offices, a large number of non-profit and charitable organizations and related trade groups as well as government agencies including the Attorney General’s and Secretary of State’s Offices.

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By way of review, nonprofits are a major part of the Massachusetts economy.  According to a 2012 Bureau of Labor Statistics report, they employ 17.7% of the state’s total private work force, one of the highest such percentages in the country.  Chapter 180 is the principal corporate statute that applies to nonprofits in Massachusetts.  It has existed generally in its current form since the early 1970s, and the last round of minor revisions were completed in early 1991.  In the late 1990’s a BBA task force studied Chapter 180, and in 2000 proposed a series of significant amendments to modernize and streamline the law.  Although at that time there was significant consensus on most individual items, there were a few major items that divided practitioners and resulted in putting the entire proposal aside.  Fifteen years later, it is overdue for a fresh consensus look.

As it applies to nonprofit corporations, Chapter 180 largely cross-references governance provisions from Chapter 156B, the outdated business corporation law.  In 2004, Chapter 156D, which is based on the American Bar Association Model Business Corporation Act, replaced Chapter 156B as the business corporation statute.  However, Chapter 156B remains on the books, mainly because of the cross-references contained in Chapter 180 and for its application to insurance and banking corporation laws.

Many Massachusetts nonprofit leaders, as well as lawyers who practice in this field, are frustrated with this construct.  Not only are the laws regarding nonprofits cumbersome and difficult to find, cross-reference, and interpret, but they are also seriously outdated.  For example, Chapter 180 does not address modern technology, such as email communication, or the current understanding of fiduciary obligations.  Other provisions permit overbroad access to members’ personal contact information and make mergers and amendments to articles of organization exceedingly difficult in certain circumstances.  For practitioners who deal with nonprofits only occasionally, the existing laws can easily be subject to misunderstanding or misinterpretation.  For non-lawyer directors, officers, and organization members, the primary audience for the statute, it is an exemplar of obscurity and inscrutable legalese.

In 2008, the ABA updated its Model Non Profit Corporation Act in 2008 (3rd ed.).  This update and other past versions of this model act serve as a principal source for many state nonprofit corporation laws.  Several states, including New York and California, have recently enacted significant updates to their nonprofit corporation laws.

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At the forum, the Working Group Co-Chairs Melissa Sampson McMorrow, of Nutter, McClennen & Fish, and Michael Malamut, an attorney-at-law with a practice in nonprofit governance, discussed this history as well as the Working Group’s subgroups, which are studying various materials with an eye towards updating the statute.  The subgroup issues include:

  • History of Amendment Proposals to Chapter 180
  • Useful provisions of the American Bar Association Model Nonprofit Corporation Act (3d ed. 2008, with 2013 & 2015 amendments), including modifications in the D.C. Code §§ 29.401 et seq., Nonprofit Corporation Law (2010)
  • Thorough review of Chapter 180, with concerns raised by practice
  • Review of parallel provisions of Chapter 156B cited in Chapter 180 and Chapter 156D
  • Useful provisions in Chapter 156D not addressed in the current cross-references to Chapter 156B in Chapter 180

They then opened the floor for discussion.  They discussed a range of policy issues such as:

  • Mergers of charitable organizations, especially with out-of-state organizations
  • Voting powers of directors
  • Defining members and membership
  • Regulation when there is a change of a charitable or primary purpose
  • Ability of board of directors to consider larger societal impacts in their decisions, even if they are at odds with the purposes of the organization
  • How to revise Ch. 180 without losing the wealth of existing case law
  • Duties of boards to a family of charities
  • How labor and trade organizations work under Ch. 180

And these are only the beginning.  Since the forum, we have already received follow-up contacts, both from those who attended and would like to remain engaged with our effort and from others who were unable to attend but would like more information.

There is no question the Working Group will have a busy year trying to address all stakeholder concerns and improve the law.  The Working Group wlecomed the opportunity for people outside the Working Group to share their views and help shape its pracitce.  We look forward to gathering more feedback from Forum attendees and others as we continue to move forward with this process and will keep you updated on all of the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Helps Achieve Access to Justice for Abused Youths

It has been a momentous last few weeks for our Amicus Committee.  Most recently, they worked on a brief in the Recinos v. Escobar case that ultimately played a major role in achieving a positive outcome facilitating access to justice.  Recinos, which was initially before the Appeals Court, and was taken up sua sponte by the Supreme Judicial Court (SJC) in expedited fashion, deals with the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

In brief, since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there is a small class of individuals – roughly estimated to be about 60 in number — that would otherwise qualify for SIJ status, but may be barred from doing so because the Probate and Family Court will not make a finding because they are aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extends equity jurisdiction to hear these cases, but this is not uniform and judges have no guidance on the matter.

The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Probate and Family Court has equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argues that the pathway to permanent legal residency for immigrant youths requires the state courts to play an essential role and that the Probate and Family Court has equity jurisdiction over these cases.  First, it argues that the Court’s equity jurisdiction is not limited by statute and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argues that children who have been abused, abandoned, or neglected are dependent on the court to make such a finding since they have been mistreated and because such a finding is required to qualify for SIJ status.

It is also important to note that the BBA has previously considered this issue.  In 2014, the BBA Council approved a bill, entitled “An Act relative to abused, abandoned, or neglected immigrant juveniles,” which would have statutorily extended Probate and Family Court jurisdiction to this discrete group of individuals.  The BBA’s Immigration Committee was the force behind this action, and current Co-Chairs Iris Gomez and Prasant Desai, along with former Co-Chair Bill Graves, were a great help in vetting the current case.

Thus, the brief here was a means to the same end, and footnote 15 on pages 43-44 of the brief addresses the interplay of the case and legislation.  It notes that the Legislature is currently considering this session’s refiled versions of those bills (H1418/S740 – currently before the Joint Committee on the Judiciary) and argues that the fact that there are proposed bills pending “is not determinative of whether the court has equity jurisdiction without legislative action.  In light of inconsistent positions held by lower court judges, both routes have been pursued to ensure that these vulnerable youth have the access to the courts they desperately need.”

On Thursday, November 5, the SJC heard oral argument on the case.  The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on case law where the Probate and Family Court exercised equity jurisdiction under very different factual circumstances.  They also referenced our amicus brief.  Justice Hines explains at about the 12 minute mark that she found the brief “extremely helpful” and noted that she felt the brief clarified the dependency issue.  The Justices also asked about the pending legislation, and we hope that the explanation provided in the amicus brief and spelled out above helped them see the necessity of their action in this case.

As it turned out, on Monday, November 9, the SJC released their order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant may have time to apply for SIJ status before her 21st birthday.  We applaud the SJC for their work on this case, first taking it up sua sponte, and then handling it in such an expedited manner in order to assure justice for an individual in need and clarify the law for a small class of dependent youths.  We would also like to thank former BBA President Mary Ryan, and Cynthia Guizzetti, Nutter McClennen & Fish, LLP, and their team for drafting the brief and working with us to facilitate our participation.

In all, the BBA was proud to be involved with this case and couldn’t be more pleased with the outcome.  We look forward to keeping you up to date on all the fine work of our Amicus Committee as they continue to review and consider cases locally and nationally.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Expanding the Conversation: BBA Chapter 180 Working Group Forum

This week we want to take the opportunity to highlight the exemplary work of a BBA group operating somewhat behind the scenes to serve the Commonwealth.  The Chapter 180 Working Group has been meeting for a number of months now, discussing an overhaul of the law governing Massachusetts nonprofit corporations.  The Working Group has accomplished a lot over the last few months, but they still have a long way to go.  Their ultimate goal is to revise the nonprofit corporation law in the most inclusive manner possible with input from all stakeholders.

In furtherance of that end, we are excited to be hosting the Chapter 180 Working Group Forum on Thursday, November 12, 2015, from 3:00 to 5:00 pm at the BBA.  Leaders of the Chapter 180 Working Group will briefly discuss their progress and are eager to hear from forum attendees about their interests and concerns.  We hope that you will join us and help spread the word.  Please click here to learn more and RSVP if you are interested in attending.  The forum is free and open to everyone.

Nonprofits, which include institutions of higher education and many hospitals, are a major part of the Massachusetts economy.  According to a 2012 Bureau of Labor Statistics report, they employ 17.7% of the state’s total private work force, one of the highest such percentages in the country.  Chapter 180 is the principal corporate statute that applies to nonprofits in Massachusetts.  It has existed generally in its current form since the early 1970s, and the last round of minor revisions were completed in early 1991.  Almost twenty-five years later, it is overdue for a fresh look.

As it applies to nonprofit corporations, Chapter 180 largely cross-references governance provisions from Chapter 156B, the outdated business corporation law.  In 2004, Chapter 156D, which is based on the American Bar Association Model Business Corporation Act, replaced Chapter 156B as the business corporation statute.  However, Chapter 156B remains on the books, mainly because of the cross-references contained in Chapter 180 and for its application to insurance and banking corporation laws.  Confused yet?

Many Massachusetts nonprofit leaders, as well as lawyers who practice in this field, are frustrated with this construct.  Not only are the laws regarding nonprofits cumbersome and difficult to find, cross-reference, and interpret, but they are also seriously outdated.  For example, Chapter 180 does not address modern technology, such as email communication, or the current understanding of fiduciary obligations.  Other provisions permit overbroad access to members’ personal contact information and make mergers and amendments to articles of organization exceedingly difficult.  For practitioners who deal with nonprofits only occasionally, the existing laws can easily be subject to misunderstanding or misinterpretation.  For non-lawyer directors, officers, and organization members, the primary audience for the statute, it is an exemplar of obscurity and inscrutable legalese.

Having identified these issues, the Working Group, which is comprised of leading lawyers from many nonprofits and government entities and is co-chaired by Michael Malamut, an attorney-at-law with a practice in nonprofit governance, and Melissa Sampson McMorrow, of Nutter, McClennen & Fish, created a number of sub-groups to examine specific aspects of the issue.  In preparation for the revision, Working Group members looked at the current text of Chapter 180, the language of 156D, the cross-references to 156B, and the ABA’s Model Nonprofit Corporation Act.  They are attempting to identify all the problems with the statute as currently written and devise the best fixes that will maximize the statute’s utility while minimizing disruptions to current practice, existing corporate by-laws, and the surrounding case law.

At the same time, members of the Working Group are continually reaching out to those stakeholders with particular interests in the potential revisions.  They have already met with a number of representatives of Massachusetts nonprofits, including foundations, hospitals, universities, religious groups, social service agencies, cultural institutions, conservation organizations, sports leagues, government employee unions, and business and trade associations.  These meetings have been extremely beneficial in gathering input and determining how best to take on the daunting challenge of redrafting an entire statute, and the chairs anticipate having more similar meetings to come.  Many individuals have expressed their support for the Working Group’s goal and shared their insights on ways to fix the law as well as anecdotes about frustrations caused by Chapter 180’s myriad problems.  The members of the Working Group are working to compile all the information from these meetings as evidence for why the law needs to be changed and also as inspiration for aspects of the law to streamline, modernize, and improve.  The Forum is the next step in these efforts.

As for officials from state government, representatives from the offices of the Attorney General and the Secretary of State are part of the Working Group.  In addition, the Chairs have been in communication with the staff of the state legislature’s Joint Committee on Economic Development and Emerging Technologies and the Executive Office of Housing & Economic Development’s Office for Business Development and International Trade.

So what’s next?  Following the Forum, the Working Group will start the initial drafting of legislation that incorporates all of the concerns they have heard.  Their work so far offers a model for how to pursue major statutory revisions, and we are confident that their reasoned, methodical, and comprehensive process will be effective in producing — and securing consensus around — the right bill for the Massachusetts nonprofit sector, one that can ultimately win approval at the State House.  We look forward to seeing you at the Forum, keeping you updated on the Working Group’s progress, and making Massachusetts, a state known for the significant role of its nonprofits, into a legislative leader in this area.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association