Monthly Archives: April 2016

BBA Advocacy in DC – ABA Day 2016

Last week, we made our annual trip to Washington, D.C., for the 20th ABA Day—the annual event that brings bar-association leaders to the capital for three days of meetings with members of Congress and their staffs, trainings and briefings, awards and speeches, and mingling with lawyers from across the nation.

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Mark Smith and Carol Starkey on the US Capitol Underground Tram 

This year, the BBA was represented by President-Elect Carol Starkey, of Conn Kavanaugh, and Vice-President Mark Smith, of Laredo & Smith.  They were joined in Washington by the MBA President Bob Harnais and Vice-President Jeff Catalano.  In one whirlwind 24-hour period (all right, make that 26 hours, to be precise), the group visited the offices of 10 out of our 11 Senators and Representatives, to advocate on issues of great importance to both the ABA and the Massachusetts bar.

One constant theme of ABA Day, year after year, is the importance of federal funding for the Legal Services Corporation (LSC), which in turn doles out support to legal-aid organizations at the state level.  In the current FY16 budget, the ABA was able to secure a $10 million increase in LSC’s appropriation—no easy lift at a time of fiscal restraint and polarization in Congress.  For FY17, with current funding still 15.7% lower than it was in 2010 (inflation adjusted), we argued for a substantial increase, from $385 million to $475 million.

In making this case to our delegation, we were helped once again by the October 2014 report of the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, which found that—in addition to being the right thing to do, to offer legal assistance to low-income residents in need and to reduce delays in our courts—increased funding for legal aid produces a return on investment, by saving the government on “back-end” costs such as health care for domestic-violence victims, emergency shelter after evictions or foreclosures, and foster care for children.  (We continue to use this report as the basis of our campaign for state funding for the Massachusetts Legal Assistance Corporation.  Stay tuned until next week for an update on this and all our other budget priorities.)

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Left to Right: Rep. Joe Kennedy, Bob Harnais, Mark Smith, and Carol Starkey

One of the leaders on this subject in Congress is our own Rep. Joseph P. Kennedy III (Brookline), who co-founded the bipartisan Access to Civil Legal Services Caucus this past fall, alongside a GOP colleague from Indiana, Rep. Susan Brooks.  At one of the ABA Day breakfasts, we heard Rep. Kennedy give an impassioned speech about the critical importance of legal aid.  Later that day, he ducked out of a committee mark-up session to meet with us.

The second issue we discussed with our elected officials was criminal-justice reform.  The ABA has endorsed legislation pending in Congress to address sentencing of both adults and juveniles.  This is an area that has seen tremendous movement in recent years, with dozens of states taking action to restructure their criminal-justice systems so as to relieve over-incarceration, reduce expenditures, and promote successful re-entry—all while protecting public safety.  (Here in Massachusetts, a similar effort is underway, with leadership from all three branches of government working with the Council of State Governments on a year-long comprehensive review that is expected to lead to legislation early next year.)

We were told by a number of legislators that there is a growing bipartisan consensus in support of such bills, with the main lingering questions being how to address the fine print, and whether enactment might happen in the near-term, during a Presidential campaign, or will have to wait until a lame-duck session after the election.

The last item on our agenda, in meetings with our delegation, is mandatory accrual accounting for law firms and other types of personal service businesses, which would have a deleterious effect, especially on smaller firms, by requiring them to book revenue, and pay taxes on it, even before it has actually been received.  This was proposed a few years ago, but thanks to a concerted campaign by the ABA—in which the BBA took part—it was shot down.  However, no idea is ever truly dead in Congress, and we must remain vigilant in case such language re-emerges.  For that reason, it’s important to convey to our representatives that the issue is still on our radar screens.

Fortunately, all Massachusetts Senators and Representatives who were in office during the last session signed onto a letter opposing mandatory accrual accounting, so we know we have their support on this should we need it.

In fact, we enjoy support virtually across-the-board from our delegation on all these priorities.  So for the BBA and the MBA, unlike representatives from many other states, these visits are not about changing minds but rather about conveying our appreciation for their positions.  We have it relatively easy compared to, say, ABA President-Elect Linda Klein, who spoke at one event about the challenge of trying to persuade some members of Congress from her home state of Georgia.

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Left to Right: Lee Constantine, Jeff Catalano, Carol Starkey, Mark Smith, Sen. Markey, Bob Harnais, Mike Avitzur

Regardless of the circumstances, it is always a pleasure to have a chance to sit down with national leaders like Sen. Edward Markey, who spoke about two legal internships he held while at Boston College Law School.  Those experiences demonstrated to him first-hand the importance of providing legal representation to low-income residents, and they undergird his long-standing support for legal-aid funding.  He also expressed dismay that the crushing burden of law-school debt is driving too many new attorneys away from public service—the path he chose—after graduation.

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Left to Right: Bob Harnais, Jeff Catalano, Sen. Warren, Carol Starkey, Mark Smith

As an expert in bankruptcy, Sen. Elizabeth Warren understands how legal-services attorneys created the common law around the then-new bankruptcy law 25 years ago, back when there was much more funding; now, the federal government doesn’t provide money for legal services to take on bankruptcy cases.  Sen. Warren called the LSC appropriation “crumbs” in the context of the federal budget, and assured us that she’ll continue to fight for a justice system that “feels fair”—not one that works only for the wealthy.  Her commitment to legal services is demonstrated by her recent hiring of Stephanie Akpa as Counsel.  Stephanie previously worked for the Legal Aid Society of the District of Columbia and is advising the Senator on Judiciary Committee matters, such as the sentencing reform we had come to advocate for.  Sen. Warren noted that while most Senators use their limited office payroll for staffers to the committees on which they sit, she chose instead to assign Judiciary to Stephanie because of the priority the Senator places on those issues, even though she is not a member of that committee.

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Left to Right: Jeff Catalano, Carol Starkey, Bob Harnais, Rep. McGovern, Mark Smith

From Rep. James McGovern (Worcester), we heard stories from the night he recently spent in a homeless shelter in his district.  This issue is personal for him—he held a hearing on poverty earlier this month as well—so he understands the importance of lawyers in helping to keep people in their homes.  He also applauded our efforts on criminal justice, noting the need to focus on early intervention to help juvenile offenders turn their lives around, and re-entry efforts to give ex-offenders a real chance to “have a life.”

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Left to Right: Jeff Catalano, Carol Starkey, Rep. Capuano, Bob Harnais, Mark Smith

Rep. Michael Capuano (Somerville) called sentencing reform “the most hopeful thing we might work on this year,” saying this is the first time in his life that the potential exists for positive action.  He told us he’s always opposed mandatory minimums (as does the BBA): “I know the difference between a criminal and someone who made a mistake,” he said, but mandatory sentences ignore that distinction.  They also lead in some cases to criminalization of a health problem; the Congressman doesn’t want anyone to have to rob his mother’s house in order to feed their addiction.

During the foreclosure crisis, Rep. Katherine Clark (Melrose) saw how difficult it was for her constituents to get access to legal assistance, and how this led to many of them losing their homes.  So she knows all about the justice gap from her service in both the House and Senate in Massachusetts, where she worked tirelessly to try to close it.  Now, she’s brought that commitment with her to D.C.  Indeed, she won the Equal Justice Coalition’s Champion of Justice award in 2014 for her work on behalf of legal-aid funding at both the state and the federal level.  We have her support on this, as well as on sentencing reform.

As the 114th Congress continues its work, we’ll keep an eye on all these issues, and we’ll be back in D.C. again in 2017 for the 21st annual ABA Day.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Focused on the Budget – BBA Update

In addition to yesterday’s budget member alert, we have been busy with advocacy of our own.  At the same time we asked you to contact your Representatives, we sent a letter to Speaker of the House Robert DeLeo, explaining the need for adequate funding for the three issues described above.  We have also been meeting with state and national leaders to discuss our budget priorities.

State Representative Meetings

Earlier this week, former BBA President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, met with Speaker Pro Tempore Patricia Haddad’s office and Assistant Majority Leader Byron Rushing.  More meetings are scheduled in the coming weeks.  Smeallie has spent the last 18 months educating legislators on the findings of the Task Force’s Investing in Justice Report and is devoted to raising awareness of the need for increased legal aid funding.  Through surveys of civil legal aid agencies, the Task Force found that 64% of those eligible for legal aid, at 125% of the federal poverty level, are turned away annually due to lack of resources.  This lack of resources is due in-part to the nearly $30 million decrease in IOLTA funding over the last decade due to fewer deals and plummeting interest rates (more on this below).

This drop in funding caused legal aid organizations to lay-off attorneys and support staff, resulting in an increased number of pro se litigants navigating the courts.  Unrepresented litigants cause delays, take up the time and efforts of judges and court staff, and often struggle to access justice, as demonstrated in a survey of judges conducted by the Task Force.  Finally, the Report demonstrates that investment in civil legal aid yields positive returns, helping the state to save on back end costs such as shelter, police, and medical expenses, as well as bring money into the state through federal benefits.  The Report demonstrate that every $1 invested in civil legal aid serving evictions, domestic violence, and federal benefits, yields $2-$5 dollars in returns to the state.

Congressional Delegation Meetings

At the same time, BBA President-Elect Carol Starkey, Vice President Mark Smith, and Director of Government Relations and Public Affairs, Mike Avitzur, have spent the last two days in Washington, DC, at ABA Day with their counterparts from the MBA.

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From Left to Right: MBA President Bob Harnais, MBA President-Elect Jeffrey Catalano, Senator Elizabeth Warren, BBA President-Elect Carol Starkey, BBA Vice President Mark Smith

In addition to discussing mass incarceration issues and opposition to accrual accounting for law firms, our delegation is advocating for increased funding for the Legal Services Corporation (LSC), the federally funded non-profit corporation the promotes equal access to justice and provide grants for high-quality civil legal assistance for low-income Americans.  LSC provided four legal aid programs in Massachusetts with just over $5 million in FY2016.  In recent years, similar funding has yielded roughly 11,000 to 13,000 cases closed annually.  Stay tuned for a longer write-up on our ABA Day meetings on this blog next week.

Council Meeting

On Tuesday, we heard from MAIOLTA Director Jayne Tyrrell who spoke to the BBA Council about ways lawyers and law firms can maximize their IOLTA contributions, which in turn benefit civil legal aid organizations.  As noted above, IOLTA is one of the largest funders of civil legal aid, but due to historically low interest rates, its funding amounts have decreased dramatically.  While federal interest rates remain low, banks vary in their individual offerings, thus it matters where lawyers and law firms do their banking.  In Massachusetts, more than 40 banks have signed-on as Leadership Banks, agreeing to pay a minimum of 1% interest on IOLTA accounts.  Here is the full list.  Tyrrell encouraged all lawyers and law firms to consider banking with one of the listed banks for the benefits their interest rates will provide for civil legal aid.

At the same meeting, we heard from Governor’s Chief Legal Counsel, Lon Povich.  He spoke on the budget as well, noting that both the Governor’s proposed budget and the budget issued by the House Ways & Means Committee contain no new taxes or fees.  The Governor’s FY17 budget proposal contained a 1% increase for civil legal aid and the courts, in addition to $1 million and enacting language for statewide expansion of the Housing Court.  While the House Ways & Means budget proposal included slightly larger increases for the Trial Court and MLAC, it did not include language or funding for Housing Court expansion.

Povich also discussed the work of the Massachusetts Criminal Justice Review undertaken by the Council of State Governments, and under the sponsorship of the Governor, Chief Justice of the SJC, Senate President and Speaker of the House, as well as the process  to fill vacancies on the SJC and other courts.  Both are still ongoing and we look forward to their forthcoming results.

The budget process continues through June, and we will continue to advocate for adequate funding for our priority issues and hope that you will as well – starting with contacting your Representative as explained above.  We will keep you updated on how the budget progresses and will likely be reaching out at other key points to request your help again.  Thank you in advance!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

A Call to Action on the Budget

Yesterday we hope you received our budget alert – a call to action advocating on behalf of funding for civil legal aid, the Trial Court, and statewide expansion of the Housing Court.  With budget debate in the House forthcoming next week, now is the time to contact your Representative on these issues.  Here are some quick notes for you to share with them (Don’t know who to call?  Look up your Representative here.):

Massachusetts Legal Assistance Corporation (MLAC)
• Request: $27,000,000
• Governor’s Budget: $17,170,000
• House Ways and Means Budget: $18,000,000

Representative Ruth Balser has filed amendment #847 asking for an additional $9 million.  If adopted, it would bring the total MLAC line item to $27,000,000.  The amendment is currently co-sponsored by more than 70 Representatives, and the list keeps growing.  If you see your Representative on that list, call them to express your thanks and ask them to continue pushing for the amendment.  If you don’t see their name on that list, click here to ask them to sign on.

Trial Court
• Request: $654,374,856 + Modules
• Governor’s Budget: $638,606,000
• House Ways and Means Budget: $639,900,000 (including Specialty Courts module)

As you can see above, the Trial Court is being funded at far below its maintenance amount.  Amendment #474, filed by Representative John Fernandes, seeks an additional $17 million.  If the Trial Court does not receive this funding, it will likely have to lay off around 300 individuals, resulting in decreased service at courthouses already stretched thin.

The courts have recently made great strides toward modernizing and enhancing efficiencies under the new management structure put in place by the Legislature, as evinced by their request for maintenance funding of only 6,520 staff positions, a 17% reduction in staffing levels since FY02.  Furthermore, in the last eight years, while the state budget has increased 43.3% overall, funding for the Trial Court, a major piece of the third co-equal branch of government, has increased by only 7.9%.  More funding is essential to maintaining the high quality of justice to which we in Massachusetts are accustomed.

Statewide Housing Court Expansion
• Request: $2,400,000
• Governor’s Budget: $1,000,000
• House Ways and Means Budget: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. 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.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget included $1 million for Specialty Court, enough to get it started and start phasing it in to the areas not currently covered.  Unfortunately, the House Ways and Means Budget did not, potentially stifling this much-needed measure.  As a result, Representative Chris Walsh has filed amendments #1180 (to fund with $1,200,000) and #1176 (to include enacting language) creating Housing Court.

Housing Court covers 80% of the state geographically – but only about two-thirds of the population.  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.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

Funding Justice: BBA FY17 Budget Advocacy

On Wednesday, the Legislature took the second major step in the FY2017 budget process, releasing the House Ways and Means budget recommendation, roughly 2.5 months after the January 27 release of the Governor’s budget recommendation.  The BBA has been advocating for adequate funding for the judiciary through the Trial Court line items, civil legal aid through the Massachusetts Legal Assistance Corporation (MLAC) line-item, and statewide expansion of the Housing Court.  We sent a letter to Brian Dempsey, Chair of the House Ways and Means Committee detailing the funding needs in these areas.

Here is where things currently stand as to each of these BBA budget priorities:

MLAC

Funding for civil legal services has never been more crucial, in large part because legal aid helps address many of the most pressing social issues facing the Commonwealth today.  Every day, legal aid helps prevent unjust foreclosures and evictions, protect victims of domestic violence, and assure access to essential care and services, including life-saving treatments to combat addiction.  And that is only a small piece of what they do.  They provide advice and representation in many and diverse legal areas, including helping set up small businesses and organizing mentoring nonprofits.

However, because of their outstanding reputation and the overwhelming need for legal aid, MLAC agencies had to turn down 64% of the qualified clients seeking their services in 2013 according to the findings of the BBA’s Investing in Justice Task Force Report.  And that was only the people who actually got through the long wait times to have their issues considered.  As a result, the courts have to bear the weight of pro se litigants who often do not understand court procedures, bogging down the justice system and creating added work for already overburdened judges and court staff.  Most importantly, it also often leads to an unjust outcome, particularly where one side has representation and the other does not.  In a recent survey of judges, more than 60% responded that the influx of pro se litigants hindered the fair administration of justice.

Here is a breakdown of MLAC funding:

FY16 Final Budget Amount$17,000,000
FY17 MLAC Request$27,000,000
FY17 Governor’s Budget$17,170,000
FY17 House Ways & Means$18,000,000
FY17 House FinalHouse budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Representative Ruth Balser will be filing an amendment requesting an additional $9 million in MLAC funding.  We hope that you will call your Representative or email them directly and ask them to support her amendment (Don’t know your legislator?  Look them up here), not only for the great work legal services agencies provide, but also because they can essentially pay for themselves.  Investing in Justice demonstrates that in the areas of evictions, domestic violence, and federal benefits every dollar invested in legal aid returns $2 to $5 to the state.  Be sure to thank them for the House’s generous $2 million funding increase last year!  Legal aid is already putting that investment to good use, to handle an additional 1,230 cases, benefitting some 3,295 residents.  With $10 million more this year, they can expand their reach to more than 16,000 additional people.

Trial Court

The Trial Court is comprised of seven departments which handle nearly all of the cases in the Commonwealth and represent the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved.  Thus it is essential that courts are adequately funded.  The Trial Court provides an annual budget breakdown wherein it asks for a maintenance funding amount, which is what is required to continue providing current services, and a host of modules for the budget-makers to consider with additional funding.  This year’s maintenance budget request is around $654 million, and the nine modules range in price from $785,000 to $10 million.

In the budget, the Trial Court is represented by 15 line items.  It received a generous increase of nearly $20 million in last year’s budget, but the judiciary is still underfunded.  The courts have made great strides toward modernizing and enhancing efficiencies under the new management structure put in place by the Legislature, as evinced by their request for maintenance funding of only 6,520 staff positions, a 17% reduction in staffing levels since FY02.  Furthermore, in the last eight years, while the state budget has increased 43.3% overall, funding for the Trial Court, a major piece of the third co-equal branch of government, has increased by only 7.9%.

However, the Trial Court still has a major need for increased funding in order to continue improving.  For example, the installation of new technologies, which can ultimately save on staffing and overhead costs, requires large up-front investments.   In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems, to preserve the safety of court employees, users, and the general public — a $4.1 million module.  Furthermore, innovations such as the successful Specialty Courts, a $2.8 million module, increase access to justice for vulnerable populations, but need adequate staffing and funding to thrive and expand, so that all residents who can benefit from participation in the Specialty Courts have access to them.

As shown in the table below, the Governor’s budget included roughly a $7 million increase over last year’s funding level, but is still $17 million below the Trial Court’s maintenance funding needs.  Funding at this level would result in layoffs of approximately 300 Trial Court employees according to a statement from SJC Chief Justice Ralph Gants.  The House Ways and Means budget matched that amount but also included the Specialty Courts module.

FY16 Final Budget Amount$631,500,000
FY17 Maintenance Budget Request$654,374,856
FY17 Governor’s Budget$638,606,000
FY17 House Ways & Means$639,900,000 (includes Specialty Courts module)
FY17 House FinalHouse budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Housing Court

The BBA has been advocating for the statewide expansion of Housing Court for the last year. 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 – but only about two-thirds of the population.  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.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget included $1 million for Specialty Court, enough to get it started and start phasing it in to the areas not currently covered.  Unfortunately, the House Ways and Means Budget did not, potentially stifling this much-needed measure.  As a result, Representative Chris Walsh will file an amendment on April 15 to include $1.2 million and the authorization for statewide housing court in the House budget.  We hope that you will call your Representative and ask them to support his amendment (Don’t know your legislator?  Look them up here).

Estimated Cost$2,400,000
FY17 Governor’s Budget$1,000,000 (to cover the first 6 months)
FY17 House Ways & Means$0
FY17 House FinalHouse budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Please keep an eye out for a budget alert next week.  We hope that you will take the time to contact your legislators and run through some talking points with them on why this funding is important.  Below are some quick bullet points for you to raise:

MLAC – Line Item 0321-1600

  • Seeking $10 million, for a total of $27 million. The House Ways & Means budget included a $1 million increase.  Representative Ruth Balser is filing an amendment to secure the additional $9 million.  Please support her amendment!
  • Provides civil legal aid for indigent individuals for essential life services such as eviction prevention and protection from domestic abuse
  • 64% of qualifying individuals are turned away annually – more than 54,000 individuals
  • Pro se litigants place a burden on the courts and struggle to access justice
  • Civil legal aid is a good investment, providing a positive return on investment by saving the state in areas such as shelter and medical costs.

Trial Court (15 Line Items)

  • Seeking $654 million, $17 million more than included in the House Ways & Means budget. If funding remains at the current proposed level, the Trial Court will have to lay off 300 essential staffers.
  • Despite being chronically underfunded — in the last eight years, while the state budget has increased by 43.3%, funding for the Trial Court has only increased by 7.9% — the courts have made great strides in efficiency. Today they operate at full capacity with 17% fewer employees than in FY02.
  • Lack of funding will stifle innovations and potentially endanger court users. As demonstrated by the module requests, the courts deserve increased funding for programs such as overhauling outdated security systems and expanding the groundbreaking Specialty Court sessions, which provide support and treatment for the issues underlying criminal behavior and have produced great results in reducing recidivism.

Statewide Housing Court Expansion – Line Item 0036-0003

  • Requires $2.4 million to operate yearly, but could ramp up to full capacity with the $1 million proposed by the Governor. Unfortunately, the House Ways & Means budget includes no funding for this initiative.
  • Nearly two-thirds of residents are deprived of this resource. Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis with specialized judges, housing specialists who mediate cases to avoid costly trials, and the Tenancy Preservation Program, providing counseling and intervention for individuals with physical and mental disabilities to prevent homelessness.

Thank you for your help and we hope you will check in again as we continue to keep you updated no the latest budget developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Recommends Modernization and Reform of Wiretap Statute

In recent years, it has become clear that the Massachusetts wiretap statute, G.L. c. 272 §99, which has existed in substantially the same form since 1968, is in need of reform.  In 2011 and 2014, the Supreme Judicial Court issued opinions noting their concerns about the restrictions of the current statutory regime, which limits the use of designated offenses to those with a “connection with organized crime,” thereby preventing the use of a wiretap warrant in the investigation of many gang-related shootings.  See Commonwealth v. Burgos, 470 Mass. 133, 149 (2014) and Commonwealth v. Tavares, 459 Mass. 289, 304-305 (2011).

This position was echoed by Attorney General Maura Healey in a statement before the Joint Committee on the Judiciary at its hearing in September 2015, when she called for “thoughtful and necessary updates” including “remov[ing] the connection  to organized crime, update[ing] the list of designated offenses, and redraft[ing] the definition of what devices are subject to a wire interception warrant.”

Considering the pending bills on this issue, the BBA’s Criminal Law Section – along with the Civil Rights and Civil Liberties Section – drafted a statement of principles for the legislature.  The statement was reviewed by all other BBA Section Steering Committees and approved by the BBA’s Council in March.  It makes the following recommendations for any potential revisions to the wiretap statute:

(1) modernize the statute to recognize developments in wireless communications technology;

(2) add to the list of “designated offenses” the serious profit-driven organized crime offenses of human trafficking, trafficking in firearms, manufacturing child pornography, and money laundering; and

(3) add first-degree murder without regard to whether or not committed in connection with organized crime, so as to make wiretap authority and investigatory one-party consent recordings available in the investigation of any first-degree murder offense

In addition, it calls for updating and modernizing sub-section R to require that reporting on wiretap use be more accessible and informative for the public.

On March 21, the BBA sent its statement to the Chairs of the Joint Committee on the Judiciary, Representative John Fernandes and Senator William Brownsberger, whose committee is considering the handful of bills on this issue.  We hope that they will keep our statement in mind as they work through this issue and look forward to keeping you apprised of any developments on this issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Weighs-in on Proposed Superior Court Practice Changes

Ever since he became Chief Justice of the Supreme Judicial Court, Ralph Gants has been talking about reforming civil litigation.  In his first State of the Judiciary address in late 2014, he laid out a plan to form working groups in various Trial Court departments that would examine creating a “menu of options” for cost effective civil litigation.  Soon thereafter, we began fieldling calls from the various departments requesting the service of BBA members.  We were pleased to place a number of interested individuals on these panels.  They spent the next year meeting and discussing ways to improve practice in the courts, and now we are beginning to see the results.

Superior Court was the first to submit its working group’s draft proposal to the public comment process.  The proposal consists of three parts:

  1. Menu of Options – provides a right to individual case management and tracking at the option of the parties and with approval of the Court. The parties would have the opportunity to agree to vary standard procedures in one or more ways, including the procedures that otherwise govern discovery, trial, and post-trial events.  For example, the parties could agree to an early and firm trial date, with or without a jury, and with a variety of limits on the quantity and kind of evidence.
  2. Pilot Program for Early Case Management Conferences – would require an early case management conference in four case categories: real estate, construction, products liability, and employment discrimination. The proposed pilot program would provide an opportunity to assess the value of early case management conferences and the time required to conduct them.  In each case included in the program, the Court would convene a conference with the judge and counsel within 90 days after service of process.  Prior to the conference, the parties would be required to confer, to exchange written settlement proposals and responses, and to complete a standard form addressing case management.  An amendment to Superior Court Standing Order 1-88 would establish procedures for the conferences, and provide the form for the parties to prepare and submit. In addition, to facilitate conducting the conference early in the life of the case, as provided in the proposed amendment to the standing order, the Superior Court would recommend that the Supreme Judicial Court amend Rule 4(j) of the Massachusetts Rules of Civil Procedure to reduce the time limit for service of process from the present 90 days to 30 days, or to provide for a more expeditious alternative similar to the process now used in federal court, where service is required only when a defendant fails to respond to notice by mail.
  3. New Rule on Expert Disclosure – as is already required by the court’s “Notice to Appear for Final Pre-Trial Conference” in Superior Court Standing Order 1-88, the new rule would require that unless the parties agree, or the court orders otherwise, each party shall set forth certain information in the final pre-trial conference memorandum relating to any expert that a party intends to call at trial.

The proposed Superior Court initiatives were reviewed by all BBA Sections.  The Business and Commercial Litigation and Insurance and Tort Litigation Sections drafted comments that were reviewed and approved by BBA Council and submitted to the Court on March 16.  Members of both Sections were generally supportive of the proposals and felt that proposal #2 had the most potential.

They also had some specific concerns.  For example, on proposal #1, some members felt that it was unclear how the rules would work within the Superior Court’s judicial circuit system, in which judges rotate through courts, despite that fact that the proposal calls for increased judicial involvement.  Members also voiced concerns about the implications of the non-binding judicial case assessments in which it was unclear whether the judge would just be giving their “off-the-cuff” thoughts about the case, how wedded they might be to those early opinions, whether there would be any uniform formal process, or whether procedural decisions would all be in the hands of the individual judge and attorneys.

Some members voiced concerns about the reduction of time to effect service of process from 90 days to 30 days contemplated in proposal #2, which would cut down on the time often used for case resolution.  Finally some members felt that proposal #3 would not make a significant change in practice.  To read the full comments, click here.

We look forward to keeping you updated when the Superior Court releases its final plan for more cost-effective civil litigation, and analyzing the implications for practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association