Monthly Archives: May 2016

Discussing the US Supreme Court from Inside and Out

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The Supreme Court is Like Mordor … One does not simply walk into it.  This and other insights – Special masters! Hotly contested rivers! Quills!  And everything you need to know to practice before SCOTUS  – emerged at Wednesday’s Conversation on the US Supreme Court program at the BBA.  Moderated by BBA Amicus Committee Chair Tony Scibelli, the event featured a lively discussion of the US Supreme Court by keynote speaker Ethan Torrey, Legal Counsel to the Court, Mark Fleming, WilmerHale, Traci Lovitt, Jones Day, Kevin Martin, Goodwin Procter, and Dalila Wendlandt, Ropes & Gray.

The Office of Legal Counsel

ET smallTorrey began his keynote address by giving attendees some insight into his job.  He is one of two attorneys for the Court, and they share the services of a single paralegal.  They are responsible for providing legal services to the Court as an institution and advising the Court on certain Court and case related matters.  More specifically, they advise the Justices and the Court on ethics, contracts, police and security issues, litigation (often involving protesters and First Amendment claims), and proposed amendments to the federal rules, as well as monitoring legislation of interest to the Court.

The Office of Legal Counsel also provides the Court guidance on petitions for extraordinary relief (such as writs of habeas corpus and writs of mandamus) and cases arising under the Court’s original jurisdiction, often involving disputes between states.  These disputes have a history dating back to before the Constitution and the Supreme Court’s original jurisdiction was contemplated in Alexander Hamilton’s Federalist Paper number 80.

Nowadays these cases often involve disputes about borders related to geographical and alluvial changes, interstate compacts (which are ratified by Congress and hold the force of federal laws), escheat claims (competing claims to abandoned property), tort claims (often akin to public nuisance claims, addressing such issues as river pollution), water rights, and claims challenging regulations in other states.  Procedurally, states seeking relief from the Court must first file a motion for leave to file, and the Court exercises this jurisdiction sparingly.  If the motion is accepted, the Court generally then appoints a “special master” who gathers evidence, hears testimony, and files a report with the Court.  The parties then file exceptions to the report, and the Court hears oral argument on the exceptions before making its decision, often considering not only the facts of the case, but also the equities involved before fashioning a remedy.

Getting to SCOTUS

KM smallKevin Martin talked about the first step in getting your case to the Supreme Court – the briefing process.  He urged attendees, as angry as you may be after an adverse ruling, to carefully consider whether they should actually file the case for certiorari (“cert”), asking whether there might be any potential strategic advantages to waiting, both from a business or practical perspective – where there’s a conflict among the circuits, might it be better to let an unfavorable ruling stand than to put favorable rulings elsewhere at risk – and also in terms of possible changes on the Court.  Once the decision is made, the most important element of any petition for cert is to convince the Court that there is a split in federal circuit courts that needs immediate resolution.  He suggested involving interested groups, potentially as amici at this early stage.

If you are rejected, don’t lose heart: roughly 10,000 certs are filed annually, and only 60-80 are actually heard by the Supreme Court, so the odds are stacked against you.  Mark Fleming pointed out that this situation is increasingly dire as the Court has recently taken fewer cases annually, and as of now has granted cert in only 12 cases for next Term.

If you are one of the lucky few to be granted cert, the merits briefing stage is similar to that in federal courts of appeals.  The Supreme Court took the case likely in recognition of the circuit split, so the Justices will be looking for you to make strong arguments based on precedent (mostly from the Supreme Court), and policy concerns.  Here again, amici can be helpful in making policy arguments and providing the Court with the information they need to understand complex issues and facts.

You Got There!  Now What…

MF smallMark Fleming gave a complete rundown of what it’s like to have your day before the Supreme Court.  It was a fascinating look at the nitty-gritty elements of this highest practice.  Here is his advice:

  • As with any appellate argument, you need to be ready for any questions . . . and for no questions. He anticipates questions by looking at the opponent’s briefs, lower court opinions, amicus briefs, and briefs and oral arguments in all prior relevant cases.  He also noted the value of moot courts.

He also stressed the importance of knowing EVERYTHING – in one case he argued, Fleming was well served by doing his homework when a Justice asked about a case cited in an amicus brief allowing him to clarify, to a judge who clearly hadn’t gone quite that deep into the record, that the entire opinion offered less than one-half a sentence of analysis on the issue at-hand.

  • Have a plan for oral argument. The Justices rarely let you speak for more than a few minutes at a time without interruption, but be prepared in case that happens.  Also, your plan can serve as a roadmap to help you get back to your main points in between questions.
  • Arguing before the Supreme Court is unlike arguing before any other court.   First off, you face at least 90 minutes of logistics.  Even if you are arguing the first case at 10:00 am, you need to get to the Court around 8:00 am to get through security.  Until 9:00 you are simply held in a public space full of tourist chatter, after which you are brought to a lawyers’ lounge for a briefing before you undergo a second security check (be sure to bring a quarter for the locker to store everything you’re not bringing before the bench!) and are brought to the courtroom.

At that point the fun is only beginning.  Once there, you need to figure out what side you will be arguing from – generally, from the bench’s perspective, the petitioner is on the judges’ right and the respondent is on the left . . . but if the federal government is arguing (even as amicus), it and any party it supports are always on the left.  At 10:00 the Justices enter, but you still don’t get to deliver your painstakingly prepared remarks – first, opinions are delivered, and then the court handles bar admissions (“a really nice ceremonial thing” that he recommends pursuing), all before oral arguments begin.  If you weren’t stressed out before, you certainly will be by that time.  And if your case isn’t first on the docket, get enough breakfast and/or coffee to keep you going.  After your 30 minute argument flies by, you at least get a keepsake – by tradition dating back to the Court’s earliest days, goose feather quill pens are laid out on the counsel tables , which lawyers are encouraged to take as souvenirs.  Fleming brought his to show to the group.

MF feather quills smallArguing Before the Court

Traci Lovitt spoke about her experience in the Solicitor General’s office and the techniques they teach their attorneys about arguing before the Court.  Dalila Wendlandt spoke about her experience of working on a Supreme Court case as a new lawyer – so new, she had to be pulled out of her firm’s orientation to start working on the brief.  Here are their pointers for argument:

  • Be ready to make the difficult case. When Wendlandt first read the case against the client, she knew they were facing an uphill climb and it was time to “roll up her sleeves.”  The argument in her case danced around a number of complex issues including flying in the face of popular and long-standing Supreme Court precedent and some challenging factual circumstances.

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  • Know your audience. Wendlandt stressed that the only way she was able to overcome the challenges noted above was by studying the positions of the Justices and attempting to carve out arguments that would earn them the support, one by one, of at least five, the magic number of majority.  Everything was in play and some inconclusive footnotes on obscure opinions ended up playing a major role in revealing arguments that would appeal to certain Justices.
  • Focus on an active bench – if you haven’t fielded any questions for 15 minutes or so, sit down! An absence of questions indicates a conviction for your side; don’t UN-convince them.  This rarely happens, especially recently when Justices often ask (and answer) questions, instead of letting the advocates speak, as they work to figure out their own positions.  Lovitt wondered aloud whether this dynamic might change with the passing of Justice Scalia, and noted that in one of her oral arguments, she fielded (or at least, was asked) 18 questions in the first 10 minutes.
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Thus, the order and form of answering is extremely important.  Lovitt was trained to give answers couched in explanation, first noting how many points she would make and even signaling the number of points with her fingers.  She then tries to give at least a short answer on each point before delving in deeper if given the time.  This roadmap answer format at least gives Justices who support your argument the tip that they can follow up if you are interrupted again, allowing you to complete your answer.

  • Unless you are very experienced, do not use the names of Justices in your argument. You will mess up leading to a sharp rebuke and often a joke.  Kevin Martin shared that when an attorney arguing in Bush v. Gore called Justice Stevens, “Justice Brennan,” and Justice Souter, “Justice Breyer;” Justice Scalia piped in, “I’m Scalia.”
  • Be assertive. Arguing before the Supreme Court is intimidating, but you need to make your points and answer the big questions.  This may mean giving Justices brief answers to their questions before returning to the larger points you want to make, or even *gasp* politely explaining that you need to explain another point before addressing their answer.  And if the light goes on to signal that your time is up, but you haven’t finished responding to the last question, you need to ask, deferentially, for a few seconds more.  Lovitt told the story of one practitioner who froze in that moment, like “a deer in the headlights,” failing to make one final, critical argument.

Thank you again to our panelists and moderator and to everyone who attended this fascinating discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

Law Day Dinner: Celebrating and Discussing Innovation

We hope you were able to join us last week for our annual Law Day Dinner.  Much was written in this space about the honoring of Specialty Courts, and we were thrilled to be able to promote the remarkable work of the judges running these sessions and the positive outcomes they are able to achieve for individuals suffering from some of the most pressing challenges facing society today such as substance abuse, homelessness, and mental health and veterans issues.  Ten Specialty Court judges accepted the President’s Award on behalf of the full Specialty Court system as more than 1,000 attorneys looked on.

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We also honored Professor Daniel Nagin with the John G. Brooks Legal Services Award, Supreme Judicial Court Justice Margot Botsford with the President’s Award, and Jack Regan with the Thurgood Marshall Award.

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Professor Nagin is the Vice Dean for Experiential and Clinical Education and serves as the Faculty Director of the WilmerHale Legal Services Center & Veterans Legal Clinic at Harvard Law School. The John G. Brooks Legal Services Award was established to recognize professional legal services attorneys for their outstanding work on behalf of indigent clients in greater Boston, and Prof. Nagin’s work has embodied the spirit of the award, on both the local and national level.

In 2012, Prof. Nagin founded the Veterans Legal Clinic, where students gain hands-on experience while representing veterans and the families of veterans who would not have access to legal representation otherwise. Prof. Nagin has also written articles and sat on panels discussing legal issues of particular concern to veterans, including access to benefits.  Most recently, Prof. Nagin started the Low Income Tax Clinic (LITC) at the Legal Services Center, supported in part by the Boston Bar Foundation.

Prof. Nagin has been an active member and currently co-chairs the BBA’s Active Duty Military, Family Members & Veterans Committee. He has also planned a number of pro bono trainings to assist veterans with discharge appeals and to support the pro bono panel of the new LITC.

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The BBA honored SJC Justice Margot Botsford with the President’s Award for her many contributions to the judiciary and legal profession over the course of nearly three decades on the bench.  She was appointed to the Superior Court in 1989 and the Supreme Judicial Court in 2007.  She has a long history of involvement with various court working groups and committees to effectuate changes and innovations for legal practice, increasing access to justice, and educating judges on best practices.

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We presented the Thurgood Marshall Award to Jack Regan of WilmerHale for his work to improve access to justice for veterans and other vulnerable populations. The Thurgood Marshall award was established to recognize attorneys in private practice in greater Boston whose extraordinary efforts have enhanced the human dignity of others through improving or delivering civil or criminal legal services to the Commonwealth of Massachusetts’s low-income population. Mr. Regan has been practicing for nearly four decades, and during that time, he has shown a deep commitment to delivering pro bono services to veterans, active duty military personnel, and their families.

During his term as BBA President, Mr. Regan created the Task Force on Legal Services for Military Personnel, Veterans and their Families. The task force oversaw the creation of BBA’s Military & Veterans Committee, which founded the Military and Veterans Legal Helpline, now housed at the Boston Bar Association’s Lawyer Referral Service, with assistance from the Legal Services Center and Veterans Legal Clinic at Harvard Law School, the Volunteer Lawyers Project of the BBA, Veterans Legal Services, and the Legal Advocacy Resource Center. Mr. Regan also co-chairs WilmerHale’s Pro Bono and Community Service Committee, which oversees the firm’s extensive pro bono and community service programs, as well as its relationship with the Legal Services Center at Harvard.

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Following these awards was no small task, but keynote speaker Rebecca Love Kourlis was more than prepared.  A former Colorado Supreme Court Justice, Kourlis now serves as Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver.  In the last ten years, IAALS has become a widely-recognized, national, independent research center working on solutions to some of the most important issues facing the legal profession.  A consortium of 33 law schools around the country, including Boston College Law School, Northeastern University School of Law, and Suffolk University Law School, have joined IAALS in an ongoing discussion about the best ways to prepare lawyers to serve clients in the real world.

Kourlis’s speech focused on “Laying the Foundations for Tomorrow’s Lawyers” and was presented in three parts – recognizing a problem, finding a solution, and identifying the role lawyers can play in affecting change.  She explained that law schools are facing many challenges.  Law firms claim to want lawyers with more practical skills, but at the same time, prospective students are taken-aback by the high costs of law school and are interested in reducing its three year length.  Meanwhile starting salaries are flat and hiring at the largest firms has decreased, while the cost of legal education continues to climb, resulting in a drop of 29.4% in law school enrollment since 2010.

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IAALS (described by Kourlis as a “think-DO tank”) assessed this status quo and decided they had to rethink the foundations of practice.  Their “Foundations” project has three objectives:

  1. Identify the Foundations that entry-level lawyers need;
  2. Develop measurable models of legal education that support those Foundations; and
  3. Align market needs with hiring practices to incentivize positive improvement.

IAALS recently completed the first phase, which included a 37 state survey (including data from all 50 states) with over 24,000 responses.  The survey listed individual characteristics, competencies and skills on a continuum of when they are most important to a lawyer – from right out of law school to being development over time.

The survey revealed that lawyers are most interested in hiring individuals possessing strong upstanding character.  When asked to select experiences and accomplishments that suggest job candidates have the right foundations, respondents ranked experience over traditional accomplishments, such as law school attended, class rank, and participation on law review. The best way to build on these characteristics may be through experiential education such as externships, clinics, and clerkships which yield life experience rather than simply classroom knowledge.

Kourlis went on to explain that the challenge going forward is to resolve the apparent disconnect between these results, the market’s hiring practices, and law school’s preparation of students.  According to the survey, the market is identifying that it wants students with character, but according to hiring statistics, they may not be hiring it, and law schools may not be sufficiently producing it.  That brings up steps 2 and 3 of the Foundations project and IAALS is hard at work on turning its research into outcomes.  In the meantime, Kourlis left our audience with some homework, telling them that they play a role and possess more power than they think.  She encouraged lawyers to help law students and recent graduates to create a bridge to practice through programs such as residencies and mentoring, by offering their assistance to law schools, and to think hard about hiring practices because law schools take note.  If firms hire from law schools that are innovating and providing the character-building experiential education that is most valuable in producing successful lawyers, they can achieve change.

In all, the Law Day Dinner was a great event and we thank you for attending (want to relive it?  Check out our photo album here).  We hope you can join us next year for another thought provoking discussion!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

The Senate is finalizing its budget and we have the latest updates below.  After that it is on to a conference committee to settle discrepancies between the House and Senate. Here is a breakdown of where things currently stand (updated to reflect the latest Senate budget debate):

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000

The Senate adopted a $1 million amendment (#1000) co-sponsored by Senators Creem and Brownsberger during its budget debate.  MLAC funding will now be debated in Conference, where we hope the House number of $18,500,000 will be adopted.

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)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303

We were pleased to see that the Senate budget proposal is roughly $3.5 million higher than the proposed House appropriation.  We were also pleased to see that it included language and funding for statewide expansion of the Housing Court (more on that below).

However, we were disappointed that the Specialty Court module, funded by the House, was left out of the Senate’s budget plan.  We were proud to recognize the remarkable work of the Specialty Courts at last week’s Law Day Dinner, and the $2.8 million Specialty Courts module would allow for their expansion statewide, giving access to justice for some of the most vulnerable populations and helping to treat issues underlying criminal behavior, such as homelessness, drug abuse, and mental health or veterans issues with support and dignity in order to curb recidivism.  We hope that the final budget can include adequate funding for the Trial Court as well as funding for statewide expansion of both the Housing and Specialty Courts.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases which involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strength is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

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 operational for 6 months, but the House did not follow his lead, leaving this measure out of its budget entirely.  We were pleased to see that the Senate provided similar language and funding to the Governor’s proposal, and we hope that this will remain in the final state budget and be included in the final budget.

We look forward to keeping you updated on the latest budget developments and, as always, urge you to make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Picking up the Pace: Latest Developments on Two Key Bills

The pace of activity at the State House has ramped up lately, as the July 31 deadline for formal legislative debate approaches.  This week we have updates on two particular bills of interest to the BBA…

Zoning Law

For 20 years, the BBA has supported a bill designed to clarify the original intent of a portion of G.L. c. 40A, § 7 which effects the status of structures and uses that do not comply with a zoning ordinance or by-law. Last week, legislation to achieve this goal passed both the House and Senate.

Over the past two decades, a variety of real-estate practitioners have advocated for this change on behalf of the BBA. During this legislative session, BBA Council member Michael Fee, of Pierce & Mandell, P.C.—a former co-chair of our Real Estate Law section—testified on the bill before the Judiciary Committee and helped explain it to legislators and staff. Current section co-chairs Hannah Kilson, of Nolan Sheehan Patten LLP, and Matthew Lawlor, of Robinson+Cole, also provided invaluable expertise.

Current law prohibits municipalities from taking any action to compel zoning compliance by owners and operators of non-compliant structures or uses, after six years have elapsed since inception of the alleged violation for permitted structures and uses, and ten-years for non-permitted structures. The original legislative intent was to give local authorities a reasonable time period within which to pursue enforcement of local zoning ordinances and by-laws, while offering some certainty that after that time elapsed, these non-compliant structures could be rebuilt if damaged or destroyed, and for such properties to be conveyed.

However, the language of Section 7 leaves structures or uses that survive the applicable limitations period in a kind of limbo—barring enforcement action but not granting them formal, legal status as pre-existing non-conforming structures or uses subject to protection under G.L. c. 40A, § 6. The result is that, in case of loss, buildings may need to be rebuilt in accordance with new zoning requirements, which may prove too costly. Redevelopment can be forestalled by this oversight, and the uncertainty it produces. The statute’s ambiguity is glaring in this context, leading several Appeals Court panels to interpret Section 7 in divergent ways.

As passed by the House last June, H. 3611would correct this problem by giving the non-conforming structures described above special legal status subject to the provisions of G.L. c. 40A §6 as well as local ordinances or by-laws. This would, as the statute contemplates but does not now explicitly spell out, provide clear legal status in these instances, thus offering protection to property owners and their lenders.

Last Thursday, the Senate passed a slightly-different version of the bill (S. 2259), but one that nevertheless would accomplish the same result we seek. These two versions will now need to be reconciled before the legislation can advance to the Governor for signature.

We will continue to work with the Legislature to try to (finally) provide the needed certainty in this area of the law.

Wiretap Reform

While the Senate was tackling the intricacies of zoning, the Judiciary Committee released a redrafted bill on wiretap reform.  The product of many months of work, the new legislation (H. 1487) would bring a much-needed update to a statute (G.L. c. 272 §99) that was initially crafted to deal specifically with mob-oriented organized crime but has remained essentially unchanged for more than four decades.

Led by our Criminal Law section, and with valuable input from the Civil Rights & Civil Liberties section, the BBA earlier this year released a statement recommending principles that should be followed in any update to Section 99.  The new committee redraft incorporates many of the BBA’s suggestions and represents a meaningful advance toward modernization of the wiretap law.

For example, as the BBA recommended, the bill adds several crimes to the list of “designated offenses,” in Section 99(B)(7), that can, upon a showing of probable cause, serve as a predicate in an application for a wiretap warrant.  (An applicant must also show “that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried” and “that oral or wire communications of a particularly described person will constitute evidence of such designated offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit a designated offense”.)

Specifically, the bill would add certain crimes involving (a) human trafficking, (b) money laundering, and (c) the illegal use, possession, or carrying of certain guns and other weapons—all in keeping with the BBA’s position.  It also includes certain gambling crimes as designated offenses but does not add the manufacture of child pornography, as the BBA recommended.

At the same time, the proposed bill strikes a handful of crimes from the designated-offense list, such as assault and battery with a dangerous weapon, mayhem, prostitution, and all drug offenses other than trafficking—while also limiting Section 99’s applicability in burglary and larceny investigations to the felony level of those crimes.

Another area where the bill comports with BBA principles is in creating a carve-out, for first-degree murder cases, from the statute’s requirement that there be a nexus to organized crime.  This limitation has been labeled outdated and not reflective of an era in which crimes are less likely to be mob-oriented and more likely to spring from loosely-connected gangs that may not rise to the level of organized crime.  (The bill would include human trafficking in this carve-out.)

Two other items proposed by the BBA that were not part of the bill are modernizing the statute to recognize developments in wireless communications technology, and enhancing the statute’s existing reporting requirements to provide for electronic filing and Web-posting of more substantive information.

Now that the Judiciary Committee has weighed in, we will continue to advocate for the BBA’s principles on wiretap reform, seeking to improve the legislation even further as it advances.

Stay tuned for further legislative developments in this space, as the Legislature enters the final three months of its formal session…

— Michael Avitzur
Government Relations Director
Boston Bar Association

Honoring Specialty Courts at Law Day Dinner

As you can see with a quick scroll through our recent posts, the budget has lately been at the forefront our time and advocacy efforts.  Here is a link to our latest post on the subject which includes the most updated numbers on where things stand for our budget priorities – civil legal aid, the Trial Court, and statewide expansion of the Housing Court.  Amidst all the funding talk, it is still of the utmost importance to keep our eyes on our mission, including facilitating access to justice.  Nowhere is this more clearly illustrated than our support of the Specialty Courts.  As you may have heard over the last few months, BBA President Lisa Arrowood completed visits to each type of Specialty Court available in Massachusetts – Drug, Mental Health, Veteran’s Treatment, and Homeless Courts and on May 12, we will be honoring the Specialty Courts by bestowing the BBA President’s Award on all Specialty Court Judges at our annual Law Day Dinner.

As explained by the Trial Court, Specialty Courts, “are problem-solving court sessions which provide court-supervised probation and mandated treatment focused on treating the mental health or substance abuse issues underlying criminal behavior.”  Judges balance treatment and accountability for participants – considering the entirety of issues they face and meeting with them frequently to monitor and work on solving the problems underlying criminal behavior.  Judges provide support and oversight, working with probation officers who provide intensive supervision and Department of Public Health clinicians who help participants to access effective treatment and therapy.

The different sessions focus on different populations in-need and provide individualized treatment for each participant.  With the Judges leading the charge, all the staffers work as a collaborative team from the district attorney and defense attorney to clinicians and probation – everyone is committed to the success of program participants.  Judges make clear that the team is there to help and support the participant with determination and dignity, and that they expect the same level of commitment from the participants as well.  Successful participation and graduation from these sessions can mean the removing of default warrants and dismissal of criminal cases, not to mention major life and lifestyle changes as participants learn how to confront and overcome some of the most significant challenges they face.  For more details on how these sessions operate see our prior posts on Specialty Courts here and here.

The results clearly show the effectiveness of these sessions as they have resulted in some of the highest risk individuals turning their lives around.  For example, Mental Health Courts have a recidivism rate in the high teens (17-20%), less than half the rate of traditional courts.  In the last nine years, 70 people have graduated from Mental Health Court programs in Massachusetts.

However, Specialty Courts, like the entire justice system, require funding to achieve these results.  The legislature and Governor have been extremely generous in their support of these sessions in recent budgets.  This year has presented more challenges.  The Governor did not include funding for the $2.8 million specialty court module in his budget, and though the House did, it was in place of other funding.  Both the Governor and House budgets contain roughly a $17 million shortfall in court funding from the court’s maintenance requirements.  As SJC Chief Justice Ralph Gants, Trial Court Chief Justice Paula Carey, and Court Administrator Harry Spence pointed out, the shortfall and attendant layoffs of nearly 300 court employees will challenge specialty courts, even if the Specialty Court module receives funding as the Courts’ effectiveness “depends on the effective functioning of the of the underlying criminal justice system” which the current FY17 budget proposals do not fund sufficiently to support day-to-day operations.

We look forward to being a resource for you on the budget as the process continues over the coming months and may be reaching out to request your help in the Senate budget debate and beyond with targeted requests for court funding.  In the meantime, we hope to see you at the 2016 Law Day Dinner on May 12.  In addition to honoring the Specialty Courts, we will have a keynote address from Justice Rebecca Love Kourlis, an advocate for justice and the legal system.  It promises to be an uplifting and inspiring evening as we celebrate access to justice and the outstanding work of all Specialty Courts in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

As you know, we have been working to advocate for our budget priorities and to keep you updated along the way.  The House debated and finalized its budget last week.  The final House numbers for our line-items of interest are included below.  Next step is for the Senate Ways and Means Committee to release its budget on May 17, followed by debate in the Senate starting May 24.  Keep your eyes open for forthcoming alerts and updates.

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000

Representative Ruth Balser filed amendment #847 seeking for an additional $9 million.  Though it did not pass, the amendment was co-sponsored by 94 (!!) Representatives, about 60% of the chamber, and likely helped pave the way for the extra $500,000 that came by way of the final “Perfecting Amendment,” #1293.  Thank you to everyone who contacted your Representatives and requested their support – it clearly made a difference and thank you to the House for demonstrating its commitment to this issue!

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)
  • House Final Budget: $639,900,000 (including Specialty Courts module)

The House budget ended where it began for the Trial Court, roughly $17 million below its maintenance request.  We are hoping to see more from the Senate, otherwise, the Trial Court will likely have to lay off around 300 individuals, resulting in decreased service at courthouses already stretched thin.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final 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 operational for 6 months, but the House did not follow his lead, leaving this measure out of its budget entirely.  We hope the Senate will follow the Governor’s lead and include funding for this important expansion.

We look forward to keeping you updated on the latest budget development and will likely be asking you to contact your Senators at key moments of the Senate budget process in the coming weeks.  We will continue our advocacy as well, and have meeting lined up with a number of Senators to spread the word on our budget priorities.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

Real Estate Law Section Comments on Land Court Efficiency Proposals

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Last week, the Boston Bar Association (BBA) submitted comments to the Land Court in response to its request for feedback on proposed Rule 14 and Standing Order 1-16. These proposals grew out of the Supreme Judicial Court and Chief Justice Ralph Gants’ efforts to improve judicial efficiency by offering litigants a “menu of options” for civil litigation. Both proposals are the work of the Land Court’s Alternative Litigation Options Working Group (Working Group), which included three current and former members of the BBA’s Real Estate Law Section – Daniel Dain of Dain Torpy, Michael Fee of Pierce & Mandell, and Johanna Schneider of Rackemann, Sawyer & Brewster.

Proposed Land Court Rule 14 would permit the Court to make binding summary decisions without making findings of fact and without stating separately the Court’s conclusions of law following a trial or evidentiary hearing, and only upon voluntary stipulation by the interested parties. Proposed Standing Order 1-16 authorizes the Court, after discussion with counsel, to order limited discovery and schedule an early trial.

The BBA’s Real Estate Law Section Steering Committee discussed all of the Working Group’s proposals and drafted comments, noting their general approval of the increased efficiency these proposals may allow as well as some specific comments they hoped the Court would consider, including:

  • Urging the Court to consider, in order to protect client interests, requiring both counsel and clients to execute stipulations to allow the Court to make expedited Proposed Rule 14 decisions.
  • Expressing concerns about how decisions under Proposed Rule 14 would be reviewed at an appellate level.
  • Requesting that the Court clarify its discretion under Proposed Rule 14 on when it can disregard the parties’ stipulations.
  • Requesting more guidance on the Court’s power to accept or reject undisclosed documents under Proposed Standing Order 1-16, specifically questioning whether the Court could hold as inadmissible, witnesses or documents that were not initially disclosed, and also whether parties discovering a claim or defense that was not initially contemplated could be barred from asserting them.

Read the full comments here.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association