2015 Year in Review, Part Two

This week we conclude our look back at 2015 in the Government Relations Department.  (Here’s Part One from last week, in case you missed it.)

Summer

Although summer marks the end of our program year, the work of Government Relations never stops!  In July, we made one last push for increased funding of civil legal aid, as the budget debate reached the final stage.  In the end, MLAC received an additional $2 million in funding, bringing its total to $17 million – not the full $10 million raise we sought, but a massive year-over-year percentage increase of 15% considering the overall budget increased by only 3%.  (We’ll be back this year, again seeking a $10 million increase, highlighted by our participation in Walk to the Hill on January 28. Please join us!)

We were also pleased when the House and Senate overrode the Governor’s proposed vetoes on certain funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), the Land Court ($291,470), and administrative staffing of the Trial Court ($3.7 million).  All provide essential services to people in Massachusetts.

September

AM4

BBA President Lisa Arrowood with  Annual Meeting Keynote Speaker, Governor Charlie Baker

September marks the beginning of our new program year – it’s an extremely busy and exciting time at the BBA as it sees the beginning of a new presidency (this year, Lisa Arrowood’s), the return of the Sections (most with new leaders), and the start of new initiatives.  For Government Relations, two events were at the top of the agenda: We hosted a ceremony to honor retired Appeals Court Chief Justice Phillip Rapoza with the Haskell Cohn Award.  And at the BBA’s Annual Meeting, we gave the Presidential Citation to Speaker of the House Robert DeLeo, and House Judiciary Chairman John Fernandes was given the Distinguished Legislator award, followed by a keynote speech from Governor Charlie Baker.

Read all about their respective remarks and see more pictures from the event here.

October
Marilyn Wellington at Council

Executive Director of the BBO, Marilyn Wellington, speaking at BBA Council Meeting

In October, we filed an amicus brief in a pair of cases that follow-up on the Guardianship of V.V. case discussed last week.  Though the single justice ruled in accordance with our brief in that case, that a right to counsel exists for indigent parents in private guardianship cases, the Administrative Office of the Probate and Family Court subsequently read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC.

The BBA-supported brief argues that the statute as a whole makes it clear that any post-appointment motions of necessity concern a child who is still the subject of a guardianship proceeding.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process requires that indigent parents enjoy the benefit of counsel when a third party seeks to deprive them of this relationship through a guardianship.  Parents have the same fundamental constitutionally protected interests in their relationships with their children in post-appointment guardianship proceedings as they do in initial appointment proceedings.

The brief also argues the Court’s interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution in two ways: (1) Parents are treated differently from those in guardianships at the initial petition stage, and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  We are still waiting for a ruling from the SJC in this case and look forward to reporting back to you.

In the same month, we also heard about forthcoming developments in the courts from Chief Justice Gants at his State of the Judiciary Address (read more here) and from Marilyn Wellington, Executive Director of the Board of Bar Examiners about the bar exam and recent trends in results (read more here).

November

In November our Amicus Committee celebrated again, this time in Recinos v. Escobar, a case which was taken up by the SJC sua sponte in expedited fashion to hear the argument of a young plaintiff seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

Since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to qualified 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 otherwise-eligible individuals who are 18, 19 or 20.

Thus, in Massachusetts, there was a small class of individuals – roughly estimated to be a few dozen in number — who might otherwise qualify for SIJ status, but appeared to be barred from doing so because the Probate and Family Court would not make a finding.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Court has equity jurisdiction over youths up to the age of 21 to enter the necessary findings and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argued 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.

On 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, with Justice Hines saying she found the brief “extremely helpful,” and that she felt the brief clarified the dependency issue.

As it turned out, on Monday, November 9, the SJC released its 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 would have time to apply for SIJ status before her 21st birthday.

In the same month we:

  • Filed an amicus brief with the U.S. Supreme Court in Fisher v. University of Texas at Austin, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, because under-representation of lawyers of color harms the legal profession and society as a whole.
  • Held the Chapter 180 Working Group Forum. The Working Group is examining Chapter 180, 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.  Twenty-five years later, it is overdue for a fresh look, and the forum served an invaluable function, giving the Working Group an opportunity to share their progress and solicit input from the attendees.

December

This month, we filed perhaps our most anticipated amicus brief in Commonwealth v. Wade (SJC-11913).  The SJC requested amicus briefs in the case advising whether, in order to obtain postconviction DNA testing under G. L. c. 278A – and specifically, in order to support a finding under c. 278A, § 7 (b) (3), that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in [c. 278A, § (3) (b) (5) (i)-(v)] – it is sufficient for the defendant to establish that the requested analysis had not yet been developed at the time of the conviction, or whether the defendant must also show that a reasonably effective attorney would have in fact sought the analysis had it been available.

The BBA’s brief makes two major points – that the lower court judge erred in interpreting the requirements of G.L. c. 278A and that, in doing so, the judge erroneously forced counsel for the defendant to violate attorney-client privilege.  The BBA has a particular interest in Chapter 278A because it is a product of our advocacy, stemming back to our Task Force to Prevent Wrongful Convictions, whose 2009 report included a draft law nearly identical to what was eventually enacted in 2012.  The purpose of the law, as best articulated in that report, is to “remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.”

Oral argument is scheduled for January 11, and we hope our brief proves helpful to the Justices.  We look forward to watching the broadcast and reporting back.

Finally, just a couple of weeks ago, we sent a letter to the Massachusetts Congressional delegation regarding discrimination in federal refugee legislation and policy.  The BBA has long defended principles of non-discrimination and equal protection, and was particularly concerned when the American Security Against Foreign Enemies Act (H.R. 4038), which specifically targets inhabitants of Iraq and Syria for disparate treatment as part of the federal refugee admissions process, passed the U.S. House of Representatives.  The letter explains that we hope our elected officials will continue to keep equal protection and non-discrimination principles at the fore of all legislation and policy decisions, and reject H.R. 4038 and similar proposed legislation.

As you can see, it’s been a busy twelve months.  For a fuller picture of our work, we invite you to read the companion “year in review” piece on BBA Comments as well.  While you’re at it, how about adding Everything You Need to Know for Walk to the Hill, to bring this story full circle, as we are already preparing for the FY17 budget campaign and would love your help!

Thanks for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association