Monthly Archives: July 2017

BBA Council Endorses Two Access to Justice-Focused Policy Items

Last week, the BBA Council voted to endorse two proposals firmly rooted in the “facilitate access to justice” piece of the Association’s mission. One relates to the provision of counsel for immigrants in federal removal proceedings and the other relates to what a full switch to electronic reports of decisions by the Massachusetts SJC and Appeals Court would mean for access to justice in the Commonwealth.

ABA Resolution 115

First up on the Council agenda was a proposal seeking BBA support for the proposed American Bar Association (ABA) Resolution 115. In June, the BBA received a request to support the resolution and accompanying report in advance of the August ABA Annual Meeting, where the House of Delegates will vote on a number of resolutions, including this one.

In brief, the draft resolution contains three components: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Backers see the resolution as a “logical next step” in its incremental approach to endorsing the appointment of government-funded counsel for indigent individuals in adversarial civil proceedings “where basic human needs are at stake” and argue that support for the provision of counsel to all indigent individuals in removal proceedings “will not only help to ensure due process and fairness, but also has the potential to make the process more efficient.” They view the resolution as “especially timely” in light of the new federal enforcement priorities on immigration and increased recognition of the need for government-funded counsel in such cases across the country.

Similarly, the BBA itself had previously endorsed a number of very relevant proposals, including:

  • In August 2008, the BBA Council approved Gideon’s New Trumpet, a report drafted by the Task Force on Expanding the Civil Right to Counsel. The Task Force concluded “that representation should be provided in cases where individuals have the most at stake in terms of their liberty and their right to assert defenses to removal.” Specifically, the report identified three categories of individuals who fit these criteria: 1) those who have been detained, 2) those facing deportation as a result of a criminal offense, and 3) those seeking asylum.”
  • In February 2017, the BBA Council voted to endorse ABA Resolution 301 and its accompanying report. This resolution expressed ABA support for “the preservation and development of laws, regulations, policies, and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children.” The resolution also specifically urged Congress and the Administration to take a number of actions, such as maintaining the current statutory definition of “unaccompanied alien child,” ensuring children are held in custody for the shortest period possible, and increasing the annual number of Special Immigrant Juvenile visas allotted, among other things. Lastly, the ABA urged governments at all levels to “expand efforts to provide legal information and legal representation for unaccompanied immigrant and asylum-seeking children in removal proceedings.”

Overall, Resolution 115 is closely related to the above BBA positions, but does go a bit beyond both by expanding support for the provision of publicly-funded counsel to all immigrants in removal proceedings before the Immigration Court and the Board of Immigration Appeals, and not just in the more discrete categories mentioned in Gideon’s New Trumpet and ABA Resolution 301.

Upon distribution to relevant BBA Sections, members of the Delivery of Legal Services Steering Committee expressed support for BBA endorsement, and both the Civil Rights and Civil Liberties Section Steering Committee and Immigration Law Section Steering Committee voted to support BBA endorsement of the proposal. A statement made by the Civil Rights and Civil Liberties Section described the government-funded provision of counsel to indigent persons in removal proceedings as “a practical, legal, and moral imperative.”

The Council was fortunate to have former BBA President Mary Ryan, of Nutter, McClennen, & Fish LLP, present the proposed resolution. Ryan also serves, alongside Lisa Arrowood, as one of two BBA delegates in the ABA House of Delegates, and as co-chair of the ABA’s Working Group on Unaccompanied Immigrants, a co-sponsor of the proposed resolution. Ryan began by noting that she felt endorsement of the resolution was the “right and fair thing to do, as equal protection and the right to due process under the law applies to all people in the United States.” Her thorough and thoughtful presentation articulated the variety of ways the proposed resolution had a strong foundation in both ABA and BBA policy, highlighting specifically the work of the Task Force on Expanding the Civil Right to Counsel, which produced the above-mentioned Gideon’s New Trumpet Report, and which she also co-chaired.

After posing a few questions to Ryan, the Council voted to endorse ABA Resolution 115, and we are very pleased to be included in the list of supporters that will be read to the House of Delegates during consideration of the proposed resolution in August.

Proposed Change from Print to Electronic Reports

Next on the agenda were comments drafted by the Civil Rights and Civil Liberties Section in response to the Supreme Judicial Court’s recent invitation to comment on a proposed change from print reports to electronic reports. The invitation explains that the Justices of the Supreme Judicial Court (SJC) and the Court’s Reporter of Decisions are considering whether reports of both the SJC and the Appeals Court should be published only in electronic, and no longer in print, form–perhaps as soon as July 2019. Specifically, the invitation to comment sought information related to access to justice and the “anticipated impact of such a change on populations who may have limited access to the internet or little experience using the internet.”

The Civil Rights and Civil Liberties Section Steering Committee took this charge to heart, drafting detailed and eloquent comments on this anticipated impact. The comments, composed principally by Joshua Daniels, with the support from the Section’s comments subcommittee, noted the Section’s support for broad public access to the decisions of the Massachusetts courts but also a concern that discontinuation of the printed version “may have unintended adverse consequences for many people who rely on the print edition as their primary or even sole means of obtaining Massachusetts appellate decisions.” Specifically, the comments highlighted the consequences such a change may have on already especially vulnerable populations, including low-income, homeless, elderly, and incarcerated individuals.

Relying on case law and statute, the comments explore the Commonwealth’s existing commitment to ensuring that the public have access to those sources of law, like decisions and statutes, that are binding upon them. In light of this, the Section relies on local information and data to highlight those whose access may suffer as a result of the change, first noting that around 14% of Massachusetts residents either lack access to, or do not use, the internet. While Court Service Centers, Trial Court Law Libraries and potential partnerships between the courts and the public library system do a great deal to expand public access to judicial decisions, certain limitations persist. For example, resource constraints limit the number of public-library computers available and the amount of time allowed on computers printing is very rarely free and can cost as much as $0.15 a page, and access to public libraries often requires a form of ID and address verification that many homeless individuals do not possess. In addition, the nearly 10,000 individuals currently incarcerated in Massachusetts lack access to these services and, as a matter of policy, the internet.

The Section comments concluded with a statement “encourag[ing] the SJC and the Reporter’s Office to work closely with the Legislature, the Department of Correction, and individuals and organizations representing those who might be adversely affected by the Proposal, so that these concerns are addressed.”

Upon an initial presentation the week before by Joshua Daniels and Section Co-Chair Kate Cook of Sugarman Rogers, Barshak & Cohen, P.C., the Executive Committee was struck by both the quality of the comments and the firmly-rooted “access to justice” angle and requested Cook and Daniels return to present the comments to the full BBA Council for potential full BBA endorsement, rather than by the Section alone. Once again, Cook and Daniels eloquently explained the potential implications of the shift outlined in their comments. The Council agreed that, given the BBA’s mission to “facilitate access to justice,” and the strength of the comments, they could and should be endorsed by the Association as a whole. Last week, we mailed the comments with a cover letter explaining this endorsement, and we hope it will assist the Justices and Court’s Reporter of Decisions as they consider the proposed change.

We want to send a special thanks to Mary Ryan, Kate Cook, Joshua Daniels and the Civil Rights and Civil Liberties Section for making the above policy proposals possible! Be sure to watch this space for more updates on the House of Delegates vote on ABA Resolution 115 and the proposed change to electronic reports.

Housing Court Set to Expand to Statewide Jurisdiction

Finally, a quick update on an issue we’ve discussed here several times before: We are happy to report that the Legislature and Governor Charlie Baker have agreed, through the state-budget process, on statutory language and funding to allow the Housing Court to expand to full statewide jurisdiction. No longer will nearly one-third of the state’s population be denied access to the Housing Court—along with its expertise in housing matters, its specialized programs to help prevent homelessness, and its unique efficiencies—merely because of the town they live in.

This would not have become a reality absent the tireless work of Annette Duke and the Massachusetts Law Reform Institute, who assembled a coalition in support of expansion that the BBA was proud to be a part of. In keeping with the theme of this post, this change is a big victory for access to justice, which is why the BBA has been advocating for it for years.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Conference Committee Submits FY18 Budget to Governor

The budget process is finally nearing completion with last Friday’s release of the Conference Committee’s $40.3 Billion Fiscal Year 2018 (FY18) budget, H3800, which was followed by quick passage in both houses that same day. If you need a refresher as to how we got here, be sure to check out past posts on our advocacy on the initial Governor’s budget, the House’s Ways and Means Committee and final budgets, and the Senate Ways and Means Committee and final budgets. The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it.

Worth noting at the top — as the Legislature was piecing together its FY18 budget, it was receiving increasingly gloomy news about FY17 revenues – to the point that the Conference Committee was forced to revise downward its spending plans for next year in the face of a developing budget gap. In the end, the budget delivered by the six conferees slashed about $700 million from the budgets passed only weeks earlier by each house. The general rule was that individual line-items were level-funded or even cut, from last year’s appropriations.

The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it. Here’s a round-up of how our budget priorities fared in the Conference Committee:

Statewide Expansion of the Housing Court

We are happy to report great news for statewide expansion of the Housing Court, which the BBA has long supported as a key access to justice cause. If you’ll recall, for the second year in a row, the Governor included funding and authorization for the expansion in his initial budget, the House did not allocate funds or authorizing language, and the Senate included $1 million appropriation and authorizing language. This year, the measure survived the Conference Committee process and both the authorizing language and appropriation of $1 million were included in their final budget that was sent to the Governor. So a statewide Housing Court is only one step away from finally becoming a reality.

Currently, nearly one-third of Massachusetts residents must take their landlord/tenant matters to District Court – as do municipalities in those regions that are seeking to enforce health and sanitary codes. There they wait in line behind others bringing a wide variety of cases, they appear before judges who see such cases only occasionally, and they do not have access to housing specialists trained to successfully resolve these cases and avoid the need – and expense – of litigating in open court. In addition, Housing Court offers programs like the Tenancy Preservation Program – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping to prevent homelessness. These programs help make Housing Court a model of efficiency, featuring the lowest cost per case of any Trial Court department.

As mentioned, this year the Conference Committee included the $1 million appropriation (line-item 0336 – 0003) as well as the authorizing language (outside sections 78-82), so if the Governor continues his leadership on this issue and includes the language and funding, this may finally be the year that all of the residents of the Commonwealth will finally have access to the many benefits the Housing Court offers.

Trial Court

The expansion of the Housing Court is just one piece of the Trial Court appropriation, which is made up of about 15 different line-items. Within the context of the gloomy revenue news outlined above, the Conference Committee budget did reduce overall Trial Court funding, but nevertheless provided for a $13.7 million increase over last year’s appropriation – presumably in recognition of the fact that the court system still remains underfunded, despite a more than $8 million increase in FY17 – for a total of $652.6 million in FY18.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less. As a result of this work, they have been able to continue the efficient and effective operation of the courts even with a 19% reduction in staffing since FY02. Despite these transformational efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. For example, the installations of new technologies that will ultimately save on staffing and overhead costs nevertheless require large up-front investments. In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems. These upgrades are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

The Trial Court, made up of seven different departments, handles nearly all of the cases in the Commonwealth and functions as the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved. As such, adequate funding is critical for the Commonwealth, and we hope the Governor will include the full appropriation in H3800 for all of the Trial Court line-items.

Massachusetts Legal Assistance Corporation (MLAC)

As you know, MLAC is the largest funder of civil legal aid in the Commonwealth. The Governor’s budget allocated for a 1% increase in MLAC funding, or $18,180,000. The House Budget, with the help of an amendment filed by Representative Ruth Balser, included a $20 million appropriation, and the Senate budget, with the help of an amendment filed by Senators Cynthia Creem and William Brownsberger, also included a $20 million appropriation for MLAC.

Unfortunately, however, the Conference Committee felt compelled, in light of the gravity of the revenue shortfall, to move the MLAC line-item (0321 – 1600) back down to $18 million, representing level-funding from FY17.

We’ve outlined the importance of MLAC funding, again and again, as legal aid touches so many of the biggest social problems facing the Commonwealth, including foreclosures and emergency shelter, immigration, the opioid crisis, and domestic violence. In addition, the recent BBA Report, Investing in Justice, revealed just how many Massachusetts residents needed this aid and how many were turned away due to lack of resources. Each year, MLAC-funded programs are forced to turn way around 64% of qualified clients, or about 57,000 individuals. Plus, with legal aid funding at the federal level in peril, the demand for state-funded legal services may increase even more in the near future.

In addition to outlining the great need for legal aid funding, the report also established that investment in legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. Indeed, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

We join MLAC and the Equal Justice Coalition in urging the Governor to protect funding for civil legal aid by approving the $18 million in MLAC funding in the FY18 Budget.

CPCS

Similar to the Trial Court, the Committee for Public Counsel Services (CPCS) also received some cuts to their budget line-items in the Conference Committee budget.

CPCS plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase compensation paid to private assigned counsel, as well as increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the recent Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and the appropriations outlined above would be a significant and beneficial step in that direction.

Given the importance of the services provided by CPCS, we hope the Governor will continue his recognition of the importance of providing adequate funding for CPCS and uphold the full H3800 appropriations of $58,896,644 for staff and operations (line item 0321-1500); $98,906,090 for private counsel compensation (line item 0321-1510), and $14,951,982 for indigent court costs (line-item 0321-1520).

On the heels of our letter to the Conference Committee, we sent a letter to the Governor this week urging him to include the Conference Committee appropriation in the above line-items. Watch this space for one last update when the Governor signs the official final budget for FY18 … pending any potential legislative overrides, of course, should he veto or cut any of these.

We also want to thank you for all the phone calls, letters, and conversations you’ve had with your legislators on behalf of such important issues like increasing civil legal aid funding and expanding the Housing Court. If you’re reading this before the Governor has acted, please contact his office to express your support for the items outlined above.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association