We do it every fall. Because of the primary importance to the BBA of the judicial system in Massachusetts, the incoming BBA President meets each year with the chief judges at every level—the heads of the SJC and the Appeals Court, the US District Court, Bankruptcy Court, and Circuit of Appeals, the Chief Justice and Administrator of the Trial Court (together), and the leaders of each of the Trial Court’s seven departments: Superior Court, District Court, Boston Municipal Court, Housing Court, Juvenile Court, Land Court, and Probate & Family Court.
As you can imagine, these thirteen meetings take up a great deal of the President’s time. But the effort is always worthwhile, for the opportunity it provides to discuss our mutual plans priorities for the coming year and where they overlap, to reaffirm our commitment to adequate funding and other support necessary to enable the Massachusetts courts to maintain their preeminent position in the nation, and to promote a free-flowing back-and-forth throughout the year.
BBA President Carol Starkey recently wrapped up her chief-judge meetings, and, as usual, some common themes emerged:
Funding for the Trial Court is always one of the BBA’s top priorities and a focus of our advocacy at the State House. The Court has recovered well from the budget setbacks that were necessitated by the Great Recession, becoming leaner and more efficient. But recent years have found budget-writers in the Governor’s Office and the Legislature tightening their belts once again, and the courts have not been entirely spared.
For the current fiscal year (FY17), the Trial Court’s final budget of $639 million represents $15.4 million less than what they would have required to maintain level services. As a result, they are making do by putting off some hiring, launching an early-retirement program, and accelerating efforts to do more with less, such as by shifting staff among courthouses, sessions, and responsibilities.
This budget crunch is taking its toll throughout the system, and we heard from several chief judges about its impact in their courts. Chief Justice Paul Dawley, who oversees 62 courthouses in the District Court system—many of them aging badly—knows as well as anyone how urgent the need is for adequate court funding.
Online access to court records
This past year, the Trial Court issued a new rule on public access to court records on-line. The process was challenging, as these debates are always fraught with tension over the competing interests of transparency and privacy. The rules seek to strike the proper balance by creating limited exceptions to the general rule providing for accessibility. Criminal cases, for instance, come with their own set of concerns, and the Court took steps to ensure that access to information on those cases did not undermine either the letter or the spirit of recent changes to laws on criminal offender record information (CORI)—changes designed to promote successful re-entry of ex-offenders.
Beyond that, the Court recognized that on-line access rules are a work in progress and that a one-size-fits-all approach will not succeed: The new rules provide for both a working group to oversee and study their implementation and for standing orders within each department that address their unique concerns. (In fact, just this week, the Probate & Family Court followed up with a standing order rendering both docket entries and parties’ addresses in a broad range of cases unavailable through the on-line portal.) Both the opportunity and the challenge presented to the judiciary, and court users, as records move on-line are clearly on the minds of many of the chiefs we met with.
Vacancies on the bench
We’ve written here before about how critical it is that qualified candidates apply for judgeships—and that lawyers who work with such people encourage them to do so. Right now, several court departments are facing significant shortfalls on their benches, and getting more applicants is one piece of the puzzle in filling those seats.
With 7 vacancies (out of 49) expected by the end of this year, Chief Justice Angela Ordoñez of the Probate & Family often has to place herself on special committees, rather than ask one of her overburdened judges to take on such work as well. At the Superior Court, Chief Justice Judith Fabricant has 13 openings and sees 7 more coming by the end of 2017.
In all, the Trial Court has more than 50 judicial vacancies at the moment. And while nearly half of that gap is being filled, for now, by recall judges, the need is still great. The Governor’s office, the Judicial Nominating Commission, and the Governor’s Council are all hard at work, playing their respective roles in nominating, vetting, and confirming qualified candidates, but we will need to keep an eye on the situation.
One aspect of the process that all players are focused on is diversity among judges—racial and ethnic diversity, as well as geographic diversity, gender balance, and a mix of backgrounds in terms of practice area and setting. Several chiefs told us they, too, are keeping a close eye on the diversity of their judges. Chief Ordoñez is taking on the problem by addressing the early end of the pipeline—pairing small groups of lawyers as mentors with minority students at not only local law schools but also colleges and even high schools, to help them see the law as a potential career path.
Each year we hear the same appeal from multiple chief judges: Please urge practitioners in their courts to fill out and submit judicial-evaluation forms! The information they produce can be invaluable in helping judges improve and making the chiefs aware of topics for continued trainings.
We know that some lawyers have concerns about the forms—that they aren’t used by the courts, that responses that could be read as criticism will make their way back to the judge in question with enough particulars to reveal the respondent’s identity. But the chiefs take pains to stress to us, time and again, that they do indeed rely on the forms, and that they make every effort to maintain confidentiality by scrubbing details before sharing them.
We have pledged to the chief judges that we will continue to help them with the evaluation process. At the same time, we are always interested in any questions or hesitations you may have about it, so please let us know! The chiefs are eager as well to hear informally, through the BBA, of any problems that have come to our attention, whether with individuals or more generally.
Another topic that came up time and again was limited-assistance representation (LAR), through which an attorney can take on a client for discrete parts of a case, without being tied to the client for the entirety of the case. The BBA is a strong supporter of LAR as a way to bridge the justice gap that leaves too many litigants without the means to pay for counsel yet unable to qualify for assistance from legal-services providers. It can also help new lawyers establish and grow a practice.
We are always seeking ways to help educate attorneys on LAR; we’ve conducted many trainings on it, and we are planning more. (We also recently submitted comments on new rules bringing LAR to Superior Court for the first time.) Our meetings with chief judges are a chance to assess how well LAR is working in their courts, to learn which types of cases are best suited for LAR in each court, and to ask how the BBA can further promote the program. We have also relayed fears shared by some would-be LAR practitioners that they will be unable to extricate themselves from a case after they’ve finished the limited work they signed on to handle.
According to Chief Justice Roberto Ronquillo, the Boston Municipal Court sees many cases (e.g., collections matters) that can be settled in one day with the assistance of counsel—yet often at least party is unrepresented. He also offered insight into LAR from a trial judge’s perspective, giving us useful advice on how to increase their awareness of LAR as an option to suggest to parties.
At the Land Court, where Chief Justice Judith Cutler presides, judges frequently recommend LAR. Yet they’ve encountered some problems in how it’s worked in practice—problems they were keen to get our help with. Specifically, they’d like to see LAR attorneys help with a case earlier in the process. A simple consultation with an LAR attorney at the outset can help prevent further problems down the line. Too often, pro-se litigants fail to even respond to motions, only to seek counsel late in the game. There is simply too much at stake in cases before the Land Court for that be a beneficial approach, and Chief Cutler is eager to see such problems averted.
Beyond these broad themes, the judges raised issues that are affecting their courts individually. For example, Chief Justice Amy Nechtem of the Juvenile Court spoke with pride about the work they’re doing to address racial disparities. Chief Justice Timothy Sullivan thanked us for our advocacy on behalf of expansion of his Housing Court to statewide jurisdiction—a battle that will continue in the new year.
From Chief Justice Scott Kafker, we learned of his initiatives to help Appeals Court justices work through their caseloads more efficiently and to get cases ready more quickly.
When we sat down with SJC Chief Justice Ralph Gants, it was clear that the state’s on-going effort to study our criminal-justice system, in conjunction with the Council of State Governments (CSG), was occupying much of his thinking. Chief Gants, along with Governor Charlie Baker and the Legislature’s two leaders, was a signatory to the letter inviting CSG to assist in this broad review of policies and practices, and, like the others, he is a member of the steering committee that is guiding their work.
CSG anticipates filing a report with recommendations by the end of this year, in time for legislation to be filed at the start of the 2017-18 legislative session, and Chief Gants foresees a role—as do we—for the BBA to play in analyzing and commenting on the report and resulting bills.
Our meetings with the chief judges in the federal system tend to highlight different issues. The Bankruptcy judges (whom we met with as a group, led by Chief Judge Melvin Hoffman) were proud of their new local bankruptcy rules and asked us to spread the word. Chief Judge Patti Saris told us the US District Court is looking into developing its own local rules of civil procedure. At both of these meetings, we heard laments about the difficulties new lawyers face in first passing the bar and then establishing themselves in their careers. And Chief Judge Jeffrey Howard of the First Circuit Court of Appeals shared with us that while his court has made advances in technology, it’s difficult to keep up. As a result, some attorneys bring their own equipment, which can put pro-se litigants at a disadvantage.
Finally, we had a bittersweet meeting with Trial Court Chief Justice Paula Carey and Court Administrator Harry Spence, because the latter will be retiring this April. He will clearly be racing through the finishing line, however, and he and Chief Carey updated us on a variety of projects they have before them, including training for staff on implicit bias, a restructuring of personnel to upgrade security, and the Court’s 20-year plan for capital spending to set priorities for new construction.
These annual meetings provide a window into the thinking of the leadership at the judiciary, and we will continue to share with you what we learn.
— Michael Avitzur
Government Relations Director
Boston Bar Association