Monthly Archives: March 2018

BBA Submits Letter in Support of Full Bench Review of Petition Seeking Writ of Protection Against Courthouse Immigration Arrests

Today, the BBA submitted a letter to Justice Elspeth B. Cypher of the Supreme Judicial Court (SJC), requesting a full-bench review of a recently-filed petition that asks the Court to ban U.S. Immigration and Customs Enforcement (ICE) agents from making civil arrests in and around courthouses.

Background

Over a year ago, the issue of ICE targeting immigrants for arrest in and around courthouses came to national attention when ICE agents appeared at a courthouse to detain an undocumented woman who was seeking a protective order against her allegedly abusive boyfriend. The rise in accounts of these actions began following the release of new executive orders and instructions on immigration enforcement, which called for an increase in interior enforcement and the expansion of enforcement priorities to cover essentially all immigrants in the country without legal status.

A recent report from the Northeastern University School of Law Immigrant Justice Clinic highlights these increasing accounts, and harmful effects, of arrests of immigrants by ICE officials in and around Massachusetts courthouses. The report showed that ICE is indeed conducting arrests at numerous courthouses in the Commonwealth, and the data compiled in the report relates to ICE activity at twelve different courts. The report further concluded that “ICE is targeting both documented and undocumented immigrants, with no apparent regard for the seriousness of the pending charge. Many of those who have been arrested are longtime residents with U.S. citizen family members.”

It does not appear that immigration enforcement activities, including those in and around courthouses, are set to slow down in the near future. In fact, those jurisdictions that have previously extended protections to immigrants could very well see even more aggressive enforcement. In late September 2017, the Trump Administration announced and carried out enforcement activities specifically targeting regions where deportation officers were denied access to jails and prisons or where ICE detainers were not honored. In their statement on the raids, ICE officials specifically mentioned Massachusetts, in light of the SJC’s decision in Lunn v. Commonwealth, which held that honoring an ICE detainer would be tantamount to an arrest, and that no law in Massachusetts allows a law enforcement official to arrest someone without a warrant for an immigration violation, a civil offense. And in January of this year, ICE issued a directive that revealed its intent to continue these arrests, outlining a specific policy for actions in and around courthouses.

The Petition

On March 15, Greater Boston Legal Services (GBLS), the Committee for Public Counsel Services (CPCS), and the Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) filed a petition In the Matter of c. Doe & Others (SJ-2018-0119). The Petition asks that the Single Justice in the case, Justice Cypher, reserve and report the entire matter for full bench review, so that the SJC may grant a writ of protection that would ban civil arrests, including those civil immigration arrests conducted by ICE officials, for individuals in state courthouses or traveling to and from official matters with the courts.

Petitioners in the case include a juvenile defendant with a crucial noncitizen witness too fearful to appear in court, and seven noncitizen petitioners who are afraid to appear, including: 1) a mother seeking guardianship of her disabled daughter, 2) a tenant claiming to have been illegally evicted from her home, 3) a victim of an assault, 4) a mother entitled to unpaid child support, 5) a victim of domestic violence seeking a restraining order, 6) a long-time lawful permanent resident facing a criminal charge, and 7) a woman pursuing a claim of wrongful dismissal from her job.

The Petitioners “respectfully request that [the] court report the matter to the full bench, so the Court can rule on this matter of vital importance and grant a writ of protection from civil arrest.” Towards this end, the petitioners make four arguments:

  1. Under common law, all those present within the Massachusetts Trial Courts and their environs, and those having business before the courts who are coming to, attending, and returning from those courts, including petitioners, are privileged from civil arrest – including civil immigration arrest.
  2. The common law privilege against civil arrest in and around state courthouses falls squarely within the powers reserved to the states under the tenth amendment.
  3. Application of the common law privilege to civil immigration arrests is essential for noncitizens to exercise constitutional rights that can only be asserted by physical appearance in court.
  4. The Court should issue the writ of protection confirming that the Massachusetts common law privilege against arrest applies to civil immigration arrests as part of its broad, superintendence powers under G.L. C. 211, Section 3.

The BBA Letter

The BBA has been following the issue of ICE in courthouses since the reports first began over a year ago. Last April, at ABA Day in Washington, we had the chance to discuss our concerns with the Massachusetts Congressional Delegation, and we reported on passage of Resolution 10C, which called on Congress to codify courthouses as a “sensitive location” for immigration enforcement purposes, by the ABA House of Delegates at their Annual Meeting in August. We’ve been keeping such a close eye on this matter because of its connection to issues of access to justice and the administration of justice.

Our letter, which does not weigh in on the specific arguments in the petition, but urges for review by the full bench, points to this interest:

For decades the BBA has advocated fiercely for [access to justice and the fair administration of justice] by, among other things, producing reports that make the case for expanding access to attorneys to those who cannot afford it, and by calling for an adequately funded judiciary in the state budget—all because we recognize that fair and equal access to the courts is a core requirement of a well-functioning democracy.

Over the past year, many in the legal community, including bar associations, judges, prosecutors and defense attorneys, and advocacy organizations and elected officials have expressed grave concerns about what ICE enforcement will mean for justice systems throughout the U.S.

For example, Washington Chief Justice Mary Fairhurst wrote in a letter to DHS that “when people are afraid to appear for court hearings, out of fear of apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner, who wrote to then-Secretary of Homeland Security John Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey also expressed the potential adverse consequences of courthouse arrests by ICE, writing in a letter to an ICE Special Agent last February that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action.  If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity.  Further, individuals who currently come to our Courts to help themselves or a loved one in obtaining a civil commitment for detox or treatment will be reluctant to come forward if they fear immigration consequences. Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety.  In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

Our letter highlights these concerns, shared by so many across the country, and in a statement on the letter, BBA President Mark Smith stated:

Given the BBA’s long tradition of working to expand and protect access to justice and the fair administration of justice, and the gravity of the issues at hand here, we believe it is important for this petition be reserved and reported to the full SJC bench.

We are grateful to have had the opportunity to weigh in on this important matter and will be following the development of the petition closely. Continue to watch this space for more updates!

 —Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Chief Justice Ralph Gants Makes His Annual Appearance at the BBA Council

Last week, the BBA Council was honored with the presence, at their monthly meeting, of Chief Justice Ralph D. Gants of the Supreme Judicial Court (SJC), who spoke on matters of importance facing the state courts.  As a matter of practical concern, the judiciary budget is always on Chief Gants’s mind, and that was certainly the case at this presentation.

The debate on the Fiscal Year 2019 (FY19) budget formally began last month with the filing of Governor Charlie Baker’s proposal, known as House Bill 2 (or H. 2).  The court system had requested a 2.2% increase this year for maintenance-level funding, which does not include the cost-of-living increase demanded by the unions with which the courts are currently bargaining.  What the Governor has suggested amounts to a 1.8% increase—$3.4 million short of their goal, but still the best starting point that the Chief Justice says has seen in his three-and-a-half years in that position.

However, he noted that the court system is still seriously short-staffed, particularly with regards to probation and courthouse security.  He said his highest priority is hiring more probation officers, especially as the courts are now asking them to be more involved in helping judges craft sentences, providing resources on diversion programs and pre-trial release, and spending more time with individuals suffering from mental-health and substance-use problems.

He said that apart from the maintenance budget, the courts were seeking funding for several modules, including for the specialty courts; for a program to address racial bias in the court system; and for an effort to create a triage program in the Family Court, which would provide initial case management in order to seek alternative resolutions that don’t involve litigation.  Chief Justice Gants noted that the Governor’s proposed budget would fund the Housing Court module, but would do so by taking it out of the rest of the Court’s budget.

On criminal-justice reform—another priority of both the Chief Justice and the BBA—he said that, with the omnibus legislation pending in the State House now in a conference committee, where discussions are being kept confidential, he remains a spectator like almost everyone else.

Chief Justice Gants said that a key area in which the BBA could offer assistance is in advocating for reform to mandatory minimum sentences, to which some of the Commonwealth’s District Attorneys object.  Chief Justice Gants noted that both proposed bills before the conference committee offer some reform in this area, with the Senate’s bill going further than the House’s.  For example, the two bills differ with respect to whether or not separate mandatory minimums for dealing drugs in school zones should be maintained.  Chief Justice Gants noted that there is another stand-alone crime for selling drugs to minors, and that he believes the mandatory minimum sentence should be removed, telling the Council he’s never seen an appropriate case for a separate school-zone charge—one which is used only as leverage in plea negotiations.

He expressed his concern about racial disparities in sentencing, particularly for drug crimes with mandatory minimums.  As he reminded the Council, each department of the Trial Court with criminal jurisdiction has recently developed best practices for sentencing, which the Court is now training judges and probation officers on.

Ralph Gants, Chief Justice of the Supreme Judicial Court, speaking to the BBA Council last week

Another area where Chief Justice Gants and the BBA both lobbied the Legislature is the statewide expansion of the Housing Court.  That effort produced results last year, effective July 1, 2017, and the build-out is well underway.  He said that the Court is in the process of staffing the expansion, and that there would be a new Metro-South division, to be based in Brockton (with discussion ongoing in the hope of opening a housing session in Framingham), while Cape Cod and the Islands would be incorporated into the Southeast Housing Court.

Returning to an issue that has been much in his thoughts of late, Chief Justice Gants said that of the seven Trial Court departments, the Family Court is currently under the most stress.  He noted that this was the department with the second highest percentage of pro se litigants (after the Housing Court), and that the matters litigated in this court are often complex and emotionally taxing.  Furthermore, unlike in other courts, “it’s always Groundhog Day”: Even after a case is closed, the parties often return to court seeking modifications in their situation.  Finally, written decisions in this court are required by law, meaning that judges in the Family Court have a heavy load of writing.  He said that he had asked retired SJC Justice Margot Botsford to study problems in the Family Court and consider what could be done to address them.

Another issue making the Chief Justice uneasy at the moment is the dearth of lawyers to take on care-and-protection cases in the Juvenile Court, particularly in Western Massachusetts.  He said that in cases where the Department of Children & Families seeks to remove a child from the parents’ custody, they have the right to a hearing within 72 hours.  If the parties are indigent, both parents and the child have the right to state-appointed counsel.  However, Chief Justice Gants said that as of October, approximately half of the mandatory hearings in the western part of the state were being postponed, often for one to two months, due to lack of counsel.

Chief Justice Gants expressed his deep concern about this problem, saying that it is unacceptable that people’s rights are not being met due to lack of access to counsel.  He noted that some attempts had been made to address the problem; the Legislature temporarily increased the hourly rate for attorneys in these cases to $75 per hour once 350 hours of casework have been completed, and judges now mention the importance of doing this type of work at all new-lawyer swearing-in ceremonies.  However, it is sometimes difficult to interest attorneys in taking on these cases, as they take place in a closed courtroom, without the opportunity for professional publicity, and can be emotionally draining.  Chief Justice Gants expressed his commitment to solving the problem, saying that the state should not set a precedent of allowing people’s rights to be violated due to lack of counsel.

Chief Justice Gants also said that each court with civil jurisdiction had created a menu of options for alternative dispute resolution—an undertaking he spearheaded, and to which the BBA contributed.  He encouraged Council members to spread the word to colleagues and clients that these options are available.

Chief Justice Gants also mentioned that he was troubled by a recent American Bar Association report on lawyer and law-student well-being, which showed that a disproportionately high percentage of third-year law students experience depression compared to the general population, and that lawyers have one of the highest suicide rates of any profession.  He noted that lawyers and law students may hesitate to seek mental health assistance, especially as in some states mental-health concerns can preclude bar candidates from passing the character-and-fitness test.  He also observed that the bar as a whole may be less community-oriented than it used to be, and that in general people are becoming increasingly isolated due to changes in technology.  He said that he was considering whether the Massachusetts courts should do anything to address this problem.

Finally, Chief Justice Gants spoke about the Massachusetts Access to Justice Commission, which he co-chairs with Susan Finegan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  He said that the Commission had created the Massachusetts Justice for All Strategic Action Plan with the help of a grant from the Justice for All project, and that the report was available for viewing on the Commission’s website.  He noted that the report focuses in particular on debt collection, housing, and the Family Court, and said that the Commission will likely seek additional grants to help implement access-to-justice solutions in these areas.  He said that the state cannot continue to rely solely on legal aid organizations to provide access to justice, noting that the Legal Services Corporation is chronically underfunded and that its budget is particularly threatened under the current federal administration.  He said that the Commission hoped to create a virtual court service center, and that he hoped to draw other agencies, such as public libraries and social services organizations, into the process.

In response to a question, Chief Justice Gants said that the annual cap on hours for private attorneys handling care-and-protection cases through CPCS had been raised a few years ago from 1,650 to 1,800 hours per year, if CPCS finds that certain conditions are met.  (Just recently, a special temporary exemption was added by the Legislature, allowing for a 2,000-hour cap in Hampden County only, where the need is most urgent.)  He said that he didn’t think it would be helpful to raise the cap further, especially as lawyers taking on these cases might not have the appetite to do more hours.  Instead, he hopes more lawyers will get involved.

A Council member brought up the issue of pathways to judgeships for women and minorities in the state, particularly as it is increasingly difficult for attorneys to get trial experience, which can pose a barrier in the judicial nominating process.  Chief Justice Gants acknowledged that the number of female judges and judges of color in the state is declining, despite efforts by many, himself included, to increase diversity.  He said that ahead of the annual Bench-Bar conference in April, court leaders will meet with the affinity bar associations to discuss leadership development and pathways to judgeship.  He noted that the Governor’s Council does consider trial experience to be an important element in selecting judges, but agreed that it is hard to get this experience, particularly for attorneys in large firms.  He noted that state court judges don’t typically approach counsel to ask them to undertake individual cases, as federal judges often do.  He also said that a disproportionate percentage of incoming judges are former District Attorneys or public defenders, and that this is not ideal, as it is important to have a diversity of practice setting experience among judges.  He encouraged Council members to share their thoughts with the Court and other stakeholders as to how the pool of candidates for judgeships could be broadened.

We’re always pleased to welcome the Chief Justice to Council—and to share his report with you here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Council Supports Streamlined Post-Conviction Relief for Human Trafficking Survivors

In January 2014, the BBA launched the Human Trafficking Subcommittee of the Delivery of Legal Services Section. Following a successful Human Trafficking Symposium in June 2013, the BBA formed this Subcommittee so that we could continue to focus on the issue. Alec Zadek of Mintz Levin was selected as a co-chair upon its launch and has remained in the position over the past four years, and he’s now joined by Lavinia Weizel, also of Mintz Levin.

Since its launch, the Subcommittee has hosted a number of programs and developed an interest in a number of policy proposals, including H. 766, An Act to Reduce Sexual Exploitation of Human Trafficking, which Alec and Lavinia helped to draft. This bill, and the similar S.906, An Act to enhance the lives of survivors of human trafficking, establishes procedures for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker.

Initially, the Human Trafficking Subcommittee, with endorsement from the full Delivery of Legal Services Section, sought BBA support for H.766, but in the meantime, as part of the Criminal Justice Reform debates, both H.766 and S.906 were included as amendments in the respective House and Senate packages. Each of the amendments contained various, mostly minor, modifications and are now in Conference Committee. The Conference Committee will report out one of the versions, combine the two and report out a hybrid, report out an entirely different version, or decline to report out any version or hybrid.

Broadly, all of the proposed versions of the legislation would update the Massachusetts human trafficking laws passed in 2011, to address those instances when individuals operating under the control of a trafficker are arrested and convicted of prostitution-related offenses. More than thirty other states have passed similar laws, which streamline the process of vacatur, and often record sealing, for those who have been trafficked. Existing laws in Massachusetts allow criminal defendants to seek post-conviction relief under the Massachusetts Rule of Criminal Procedure 30(b), but this process is complex, unpredictable, expensive and often challenging for indigent survivors to navigate on their own.

Legislation that addresses this challenge can ease the process through a number of means, including the creation of a presumption, upon a showing that the survivor was trafficked at the time of the underlying offense, that a conviction for one of the relevant offenses was the result of human trafficking. In addition, traditional hearsay rules can be relaxed so that official documentation can be considered by the court, reduce the need for voluminous filing through the use of a standardized form, and provide for the automatic sealing of records in certain circumstances.

Because of the various versions pending, and because advocates like Zadek and Weizel felt any of the proposed language would be a major improvement in the processes of post-conviction relief for survivors, the proposal eventually evolved into a broad statement of support for the creation of a streamlined process, without comment on any specific language. Following an enlightening presentation by Zadek and Weizel, the Council voted to endorse the proposal.

With the vote, the BBA expresses its support for legislation that would create an efficient, and less-onerous, process for survivors to pursue vacatur of certain offenses that result from human trafficking – especially for acts undertaken as a juvenile – and sealing of arrest records and any other criminal records associated with such convictions. From an access to justice perspective, the creation of a streamlined process is crucial to ensure that survivors have an accessible, efficient, and effective means to remove and reduce barriers to rebuilding their lives.

The presence of a criminal record creates major legal and practical barriers for individuals seeking critical life necessities, including, but not limited to, employment, housing, education, and healthcare. The recent BBA report on Criminal Justice Reform, No Time to Wait, discusses the broad array of serious and long-lasting consequences that accompany criminal convictions. For survivors of human trafficking, who often face these barriers on account of criminal convictions for acts completed while under the control of a trafficker, that burden is especially unwarranted. Without this process survivors of trafficking, facing unemployment, housing insecurity, and a lack of access to other crucial services, are more likely to find themselves back under the control of a trafficker or in other difficult or dangerous situations that can undermine their ability to successfully re-integrate into society.

The BBA is proud to support measures that will create meaningful access to post-conviction relief for survivors and will be respectfully urging the conference committee to ensure that this opportunity to improve access to justice for these survivors is not missed. Continue to watch this space for more updates about the progress of these proposals, and the continuing criminal justice reform debates.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Conversion Therapy Ban Update

You may recall that the BBA is continuing its advocacy in support of H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny. These two identical bills would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. Over the summer, we presented testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities, and you can read about that opportunity and why we support the proposed bills here. As we outlined there, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe.

Just this week, we continued that effort by submitting a letter to Speaker of the Massachusetts House of Representatives, Robert DeLeo, respectfully urging him bring the bill to the House floor for a vote. The letter noted the BBA’s own long history of defending principles of non-discrimination and equal protection and focused on a few of the legal aspects of the legislation.

While the future of federal protections for lesbian, gay, bisexual, transgender, and queer (LGBTQ) populations remains under threat, it is crucial the Commonwealth ensures that all residents, regardless of sexual orientation and gender identity, are protected from abusive and discriminatory processes – especially children. Hopefully, these protections will finally be codified this year, and Massachusetts can join the nine other states that currently have laws barring the use of conversion therapy on minors. We will, as usual, keep you posted about the status of H.1190 and S.62.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Supports Pro Hac Vice Fee Increase

In 2011, the BBA Council voted to support the Massachusetts Access to Justice Commission proposal to institute a pro hac vice admission fee, as had already been done in 41 other states and the District of Columbia. Following this proposal, the Supreme Judicial Court (SJC) Rules Committee proposed, and the SJC eventually adopted, SJC Rule 3:15, Pro hac vice registration fee, which imposes a $301 per-case fee for out-of-state lawyers seeking to appear in Massachusetts Courts, unless the attorney is providing pro bono legal assistance to an indigent client. Under Rule 3:15, the proceeds go to the IOLTA Committee and are then distributed, in the same proportions as is its other revenue, to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation, and the Boston Bar Foundation, in order to provide civil legal aid to low-income residents of Massachusetts.

Earlier this year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and last month the President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. The increase itself would still place Massachusetts within the range of existing fees, and states like Connecticut and Maine have fees that are above $551.

Overall, the BBA Council viewed the increase as reasonable within the context of the fee rates in other states and also an important way to increase access to justice in the Commonwealth. The initial proposal stemmed from a sharp drop in IOLTA revenue, and unfortunately, projections for IOLTA revenue remain worryingly low, and as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth. The fee rise would result in a net increase of nearly $90,000 to legal services programs. We are very thankful of the Court’s long-standing support of access to justice and hope they will bolster these efforts by moving forward with the fee increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association