2016-17 Program Year Begins!

Welcome to the new program year!  As Section Steering Committee meetings enter full swing, and the BBA again hums with activity, we wanted to take the opportunity to review some of our public-policy procedures while taking a look back on some highlights of our work from last year.

We are always interested in getting involved with matters of public policy to:

  • Increase access to justice
  • Provide fair and efficient administration of justice; and
  • Enhance the quality and practice of the law

While this sometimes entails the BBA taking a formal position in support or opposition of a bill, policy, or rule, more often than not we take a more nuanced stance.  Be it through amicus briefs, comments to the courts, or work on legislation, the BBA strives to represent reasoned positions of legal experts and to offer a unique perspective.  Sometimes that means we present conflicting views together, and we are comfortable with that.

For example, in April, BBA Council approved submission of comments from the Association and a number of Sections to the Trial Court Committee on Public Access to Court Records regarding the Proposed Uniform Rules on Public Access.  We have documented our involvement with this issue a number of times here on the blog.  In brief, we have been involved with this issue for over a year, and called together a special working group to scrutinize the proposed rule over a three month period early this year.  What may have been lost in the shuffle is that our comments reflect the existing oppositional views of the bar.  While practitioners in some areas had specific concerns, the major divide was between those wanting broad online access and those focused more on the privacy concerns that elicits.  We strove to adequately present both views to the courts for their consideration in drafting the rule and were pleased with the results, as the final rules appear to contain a number of amendments based on our suggestions.

In our policy work, one of the biggest consistent challenges we face is timing.  Our policy procedures have at times generated frustration, because it can sometimes take months for us to reach an official position.  We believe, however, that a process allowing us to get input from all our interested Sections, and to register viewpoints that may not initially have been apparent, helps us come to the best outcome.  This is especially important because one of our hallmarks is to stand by our positions, often for decades.  Therefore, we urge you to bring your policy or amicus requests to us with as much time as possible – it makes the process better for everyone.  However, that’s not to say we can’t speed things up when our voice is needed…

In mid-October, when we learned of Recinos v. Escobar, we knew it was a case that aligned with our principles, and that we had something to add to the discussion.  The case was taken up sua sponte by the SJC in expedited fashion to address 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.

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 was a very small class of young people that would otherwise qualify for SIJ status, but could be barred from doing so since the Probate and Family Court would not make a finding because they were aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but that was not uniform and judges had no guidance on the matter.

We activated our Amicus Committee to promptly review the case and were able to get their affirmative recommendation and approval from BBA Council within a week to add our voice to the amicus brief just in time for the November 4 filing deadline.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argued that the Probate and Family Court had equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argued that the pathway to permanent legal residency for immigrant youths required the state courts to play an essential role and that the Probate and Family Court had equity jurisdiction over these cases.  First, it argued that the Court’s equity jurisdiction was not limited by statute and made the case that the Massachusetts Declaration of Rights supported this sort of equitable remedy.  The brief further argued that children who have been abused, abandoned, or neglected were dependent on the court to make such a finding since they had been mistreated and because such a finding was required to qualify for SIJ status.

On November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court had equity jurisdiction to decide the case – and remanding to that court for further proceedings on an expedited basis, so that the appellant could have time to apply for SIJ status before her 21st birthday.  Four months later, the SJC released its full opinion, making clear that the Probate and Family Court has equity jurisdiction over youths between the ages of 18 and 21 for the purpose of making the necessary SIJ findings.

In addition to signing onto amicus briefs, we sometimes draft our own.  Two such cases that we’re especially proud of from this past year are Fisher v. Univ. of Texas (supporting affirmative action in higher education) and Comm. v. Wade (defending attorney-client privilege and access to post-conviction forensic testing). Of course, this requires even more time and work on our part.  Which brings us to…

Finally, we urge you to be flexible.  Especially when working with the Legislature, we only have so much control over the process and outcome.  We will do our best to streamline things as much as possible, but sometimes this means long waits to testify or last minute changes to legislation.  Or both, as was the case with our zoning reform bill, H3611, An Act relative to non-conforming structures.  We were very pleased when the Governor signed the bill into law on August 5, but that was only the final step in a long history.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with it) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

But we could not have achieved this success without the devoted efforts of last year’s Section Co-Chairs, Hannah Kilson and Matthew Lawlor, along with Council member (and former Section Co-Chair) Michael Fee.  After the Real Estate Section Steering Committee reviewed the bill and decided to refile it around this time in 2014, we waited until mid-May 2015 for a Judiciary Committee hearing, at which Mike Fee testified.  In June 2015, the bill was reported out of the Judiciary Committee and referred to the House Committee on Ways and Means and shortly thereafter reported to the floor of the House, where it passed 151-0 before being delivered to the Senate Committee on Ways and Means.  There, the bill underwent further review and over the course of a number of emails, phone calls, and meetings, BBA staff and Mike Fee heard legislators’ concerns and worked with them to craft amendments in order to win the support of the full Senate for final approval.  On May 5, the bill was debated and amended on the floor of the Senate and ultimately passed unanimously.  From there it was back to the House, which in late July concurred in the Senate amendment, finally being laid before the Governor on July 26, 2016.  Ten days later it was enacted – with a few tweaks and 20-plus years after initial endorsement by the BBA.  It was a long road, but well worth it.

Hopefully this has given you a bit of a window into the work we do and how it happens.  Patience, flexibility, and nuance are all key aspects of successful policy development at the BBA.  With that, welcome back one and all – we hope to be seeing you around the BBA and look forward to working with you on policy issues!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association