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