Monthly Archives: July 2018

Important Protections for Vulnerable Immigrant Youth Included in FY19 Budget

In addition to the good news for a number of our key BBA budget priorities, which you can read more about here, the Legislature and Governor also took an important, and long overdue, step to provide critical access to justice for a very small but very vulnerable set of young people between the ages of 18 and 21. The final FY19 budget includes, in Outside Sections, language that would allow immigrants who are at least 18 years old, but have yet to turn 21, to make the case to federal authorities that they quality for special status under existing federal law, because they have been abused, neglected, or abandoned, and would be at risk if returned to their home countries.

The need for this statutory language tracks back to 1990, when the federal government began providing 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 small class of individuals that would otherwise qualify for SIJ status, but might be barred from doing so simply because the Probate and Family Court would not make a finding due to their age. According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but this was not uniform and judges had no guidance on the matter.

The BBA first weighed in on this issue in 2014, supporting An Act relative to abused, abandoned, or neglected immigrant juveniles, which would have statutorily extended Probate and Family Court jurisdictions to this discrete group. Then, in 2015, we filed an amicus brief in Recinos v. Escobar, arguing that the Probate & Family Court has jurisdiction, in equity, over those seeking status as special immigrant juveniles (SIJ’s) and may make predicate special findings to support SIJ applications for those up to age 21.

The court accepted the argument, but the ruling did not obviate the need for a statutory remedy as a permanent and comprehensive solution to this limited but urgent problem. In fact, the U.S. Citizenship and Immigration Services (USCIS) has recently begun acting in defiance of the spirit, if not the letter, of Recinos, finding that SIJ applicants who are over the age of 18 have not met their burden of proof, and claiming that the Legislature “has established that a child is someone under the age of 18” and that therefore our Juvenile Court lacks jurisdiction to make the necessary dependency findings for anyone between 18 and 21.

Now, Recinos is explicitly codified into law, granting the Court that statutory jurisdiction, applicable retroactive to the date of the Recinos decision and to any petitions that were wrongfully denied or revoked in this manner, based on the child’s age. As lawyers, we recognize that while the courts enjoy significant power to right wrongs through their equitable jurisdiction, only the Legislature can act to provide clear statutory parameters and guidelines for the courts’ authority. Here, given the position of the USCIS, it is even clearer that legislation was the only mechanism by which a pathway to stable legal status can be offered to all at-risk juveniles who meet the federal law’s requirements, without having to rely on the discretion and the legal interpretations of individual judges on a case-by-case basis. Furthermore, these provisions spell out a well-defined framework for the courts in handling such cases – helping judges and their staffs, as well as applicants and their legal counsel (if any) to understand how to file and pursue a claim.

You can learn more about our past legislative and amicus advocacy on this issue here. This year, we once again advocated in support of this important statutory provision, sending letters to the Chairs of the Judiciary Committee, and eventually the budget conference committee and the Governor.

A big thanks goes to bill sponsors Senator Cynthia Creem and Representative Louis Kafka, as well as the Governor, and the House and Senate for their support. And, of course, a very big thanks goes to the many supporters of the bill, including the courts, bar associations, and legal-service providers like GBLS who represent the individuals whose ability to stay in Massachusetts – and with it their safety and security – are at stake.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Governor Signs FY19 Budget

Following weeks of conference committee debate, the final FY19 budget proposal finally made its way to Governor Charlie Baker’s desk last week, for signature and the opportunity for line-item vetoes. As you may have seen in our statement last week, the BBA was very pleased with how the final plan produced by the conference committee addressed our budget priorities, and we are happy to report that the Governor also approved most of our budget priorities in full.

For a recap of how we got here, check out our past Issue Spots on the Governor’s proposed budget, the House budget, and the Senate budget. Keep reading to learn more about where our priority items ended up in the Final FY19 Budget!

Massachusetts Legal Assistance Corporation (MLAC)

We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over. As you’ll recall, this year we asked for a $5 million increase in the MLAC budget line-item (#0321-1600), for a total appropriation of $23 million. The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million and the Senate budget appropriated $21 million.

We are very pleased that the conference committee recognized just how important funding for civil legal aid is to the Commonwealth, appropriating $21,040,000 in H.4800, and the Governor approved the full amount! A $3 million increase in the line-item will enable MLAC-funded programs to assist thousands more qualified Massachusetts residents while saving the state money elsewhere in the budget.

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for nearly four years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget. However, for the expansion to be successful, the full panoply of benefits must be afforded to all residents of the Commonwealth, so the Housing Court must be adequately staffed and include the important parallel expansion of programs like Lawyer for the Day and the Tenancy Preservation Program (TPP), which provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. In light of this, we supported a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, a long-time supporter of statewide expansion, proposed the full $2.6 million, while the House budget appropriated $1.5 million and the Senate $2.6 million. Thankfully, the conference committee followed the Senate’s lead on this and provided for the full $2.6 million, which the Governor approved. For the TPP, the Governor proposed $500,000, the House $750,000, and the Senate the full $1.3 million. The conference committee also followed the Senate’s lead here, appropriating the full $1.3 million in H.4800, which the Governor also approved. We are grateful the Governor continued his leadership in the area and approved the full amounts for both of these important line-items, ensuring the benefits of the Housing Court are fairly and efficiently extended to all residents of the Commonwealth.

Trial Court

We also know just how important it is that the Trial Court receives adequate funding, and we have been, as usual, advocating for funding sufficient to allow it to maintain operations at current standards and also further enhance efficiencies and improve the user experience. For the FY19 Budget, we supported the Trial Court’s request for a maintenance-level appropriation of $671.1 million. As the main point of contact with the justice system for most Massachusetts residents with a legal issue, an adequately-funded Trial Court is necessary for ensuring the fair administration of justice.

The Governor’s budget went some way towards this maintenance funding, and the final House and Senate budgets included the full maintenance request. Fortunately, the conference committee also recognized the importance of these line-items and provided the resources necessary for the court system to continue to operate at a high level. The Governor signed off on the full Trial Court appropriations in H.4800, helping to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth.

Committee for Public Counsel Services

Finally, we continued to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520). As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.

The conference committee amount in H.4800 signaled its support for CPCS through its generous FY19 appropriations, which thankfully the Governor approved in full. Unfortunately, the FY19 budget will not include an increase in the billable hours cap for private assigned counsel, but the BBA will continue to advocate for it.

Residential Re-Entry Services

As you may have seen in our recent advocacy alert, we added an additional item for our budget ask in the Senate: funding for residential re-entry services to reduce recidivism. (Check out our letter to the Senate where we provide more detail as to just why this line-item is so important). As you know, Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective through the enactment of historic reforms earlier this year. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339-1011, which would offer grants for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community.

The House budget proposed a $3 million appropriation for this line-item, the Senate budget did not appropriate any funds to this line-item, but we were grateful the Conference Committee recognized its import and included the full $5 million ask we endorsed. Unfortunately, the Governor reduced this final figure to $2.5 million, but we are hopeful that the Legislature will pursue an override to provide the full appropriation. That would go a long way toward extending this important service in the Commonwealth, and perhaps lay the groundwork for similar initiatives to be expanded in future years.

We are grateful to Governor Charlie Baker and the Massachusetts House and Senate, notably Speaker Robert DeLeo, former (as of yesterday) Senate President Harriette Chandler, House Ways and Means Chair Jeffrey Sánchez, and Senate Ways and Means Chair (and new Senate President) Karen Spilka, for their recognition of the importance of these BBA budget priorities. And a special thanks goes out to our members who responded to our numerous asks and reached out to your legislators urging them to support key amendments related to access to justice and criminal justice reform.

You can trust that we’ll be back next year, once again advocating for those line-items that will help to facilitate access to justice for all in the Commonwealth and ensure the fair administration of justice!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Hosts Suffolk DA Candidate Forum

On Wednesday, five of the six candidates in the Suffolk County District Attorney’s race came to the Boston Bar for a forum in which they fielded questions from two distinguished moderators and the audience.

State Representative Evandro Carvalho, Assistant District Attorney Greg Henning, defense attorney Mike Maloney, former Roca Director and CPCS attorney Shannon McAuliffe and former Assistant U.S. Attorney and MassPort, MassDOT and MBTA General Counsel Rachael Rollins joined us for the forum. Suffolk Law School Professor and former prosecutor Christina Miller and Northeastern University Law School professor Daniel Medwed moderated the discussion.

The candidates responded to questions on topics such as the use of court-ordered sobriety as a condition of probation and how they would help extend positive trends in crime and incarceration rates. The moderators touched on broad policy questions but also focused on some of the “nuts and bolts” issues of managing the largest DA’s office in the state, with a $20 million budget and a staff of more than 200 attorneys, asking what the candidates’ practices would be on seeking cash bail and how they would guide Assistant District Attorneys on charging decisions and plea offers. The candidates were also asked to share their views on how the District Attorney’s Office should handle cases where one or more party may face immigration consequences, and whether ICE should be allowed to make arrests in and around courthouses. And audience-submitted questions included one on how to protect victims and witnesses and ensure their appearance at trial.

A networking reception followed, where members of the audience had the chance to meet the candidates one-on-one. This forum was co-sponsored by the Boston Bar and its six affinity bar partners: the Asian American Lawyers Association of Massachusetts, the Massachusetts Association of Hispanic Attorneys, the Massachusetts Black Lawyers Association, the Massachusetts Black Women Attorneys, the Massachusetts LGBTQ Bar Association and the Southeast Asian Bar Association of Greater Boston.

BBA President Mark Smith, Elysa Wan of the AALAM board, and moderators Professor Christina Miller and Professor Daniel Medwed

Video of the forum is available for viewing online at this link.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Massachusetts Legislature Passes Civics Education Requirement

Earlier this year, the BBA Council endorsed legislation that required the inclusion of civics education in all public schools and outlined, in greater detail than existing law, the content of the civics curriculum. The House also passed a version of the bill in May, and a conference committee was assigned to work out the differences. With only a few days left in the legislative session, we are happy to report that the conference committee released its final report, and the legislature officially passed S. 2631, An Act to Promote and Enhance Civic Engagement, on Wednesday!

As you’ll recall, the legislation arose from a concern among many, including students, about the inconsistency in civics education, though technically a required curriculum, across Massachusetts schools. The final bill requires schools to teach civics in order “to promote civic service and a greater knowledge thereof and to prepare students, morally and intellectually, for the duties of citizenship.” It will go into effect in the 2020-21 school year. The curriculum will include coverage of:

  • history of the United States of America;
  • the Constitution of the United States, including the Bill of Rights;
  • the Declaration of Independence;
  • the constitution of the commonwealth;
  • local history and government;
  • the function and composition of the branches of local, state and federal government;
  • the roles and responsibilities of a citizen in a democracy;
  • the development of skills to access, analyze and evaluate written and digital media as it relates to history and civics;
  • community diversity and historical trends in voter registration and civic participation relative to disenfranchised voter populations;
  • opportunities to identify and debate issues relative to power, economic status and the common good in democracy; and
  • a program relating to the flag of the United States of America including, but not limited to, proper etiquette and the correct use and display of the flag, the importance of participation in the electoral process and the provisions of 4 U.S.C. sections 7 to 9, inclusive, and 36 U.S.C. section 301.

The bill also requires every public school serving 8th grade students and each public high school to provide at least one student-led civics project. Unlike in the Senate bill, however, the compromise language does not make completion of the project a requirement for graduation. The nature of the projects is quite flexible, and it can be class-wide, individual, or small group, but represents an opportunity for students to engage in unique, experiential civics-related learning.

Additionally, under S.2631, the state will provide professional training to teachers and create a “high school voter challenge program,” which would select students to run voter registration drives on their campus. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

In May, BBA President Mark Smith of Laredo & Smith LLP (himself a former high-school teacher) sent a letter to Chair William Galvin of the House Committee on Rules, expressing our support, and after it passed the House, he sent a letter to the Conference Committee urging them to ensure this important legislation was reported to the full Legislature in time for a final vote by July 31. In that letter, President Smith noted:

“The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.”

We are very pleased that the Legislature understood the importance of providing strong civics education all students in the Commonwealth, and a special thanks goes to Education Committee Chairs Senator Sonia Chang Diaz and Representative Alice Peisch for their concerted efforts on this important legislation! The bill is now before the Governor, awaiting his signature.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Committee on Grand Jury Proceedings Submits Final Report on Best Practices

Late last month the SJC announced that the Committee on Grand Jury Proceedings submitted its Final Report to the Justices on proposed best practices with respect to grand jury presentments. As provided in the release, these best practices “are designed to assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution.” When the Committee invited public comment late last year, the BBA Ethics Committee and Criminal Law Section Steering Committee offered comments.

Keep reading to learn more about the Best Practices and submitted comments!

The production of the best practices began in early 2017, when the Court, in Commonwealth v. Grassie announced the appointment of a committee to assist in gaining a better understanding of the current grand jury practices employed by district attorneys and the Attorney General. The Committee on Grand Jury Proceedings was made of up of representatives from the judiciary, the Attorney General’s Office, the Massachusetts District Attorneys Association, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and others with extensive experience in grand jury proceedings. The Court asked the committee “to report on the range of practices employed by the various district attorneys’ offices as well as the Office of the Attorney General with respect to grand jury presentments; the reasons supporting the different practices; the substance of the instructions that grand juries receive from those district attorneys who currently provide them; and any recommended best practices.”

The final report submitted to the Justices, which you can read here, addresses issues such as: what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on less serious offenses than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.

When the Committee solicited comments on the proposed best practices in the spring, it generated some debate in the legal community, and the BBA Ethics Committee and Criminal Law Section Steering Committee discussed them at length. The comments submitted by members of these Committees reflect a collection of views, from various interested BBA members. In general, however, many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices were welcome.

The Ethics Committee overall felt the best practices will be helpful in standardizing approaches to grand jury presentments and simply noted one ambiguity in the use of the phrase “be mindful.” Some Committee members felt the term was overly vague and open to interpretation. The final report seemed responsive to that concern, replacing the phrase “be mindful,” with “recognize.”

Members of the Criminal Law Section Steering Committee also commended the SJC Committee on Grand Jury Proceedings for its significant undertaking, noting that current practices vary greatly across the courts and expressing hope that the proposal would offer helpful guidance and encourage more predictability. A few members raised specific concerns about various provisions, including a suggestion that the definition of “target” in the target warnings be clarified, and that consideration be given to whether certain warnings were adequate for those without counsel. In addition, a member of the Criminal Law Section Steering Committee expressed a concern that the best practice related to the presentation of evidence seemed to suggest there was a presumption that all evidence obtained through a grand jury subpoena be given to the grand jury, a misinterpretation of existing case law. The Final Report makes clear that it is best practice to present the grand jury with all evidence received “unless the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

The Committee’s Chair, Superior Court Judge Robert L Ullmann, noted the best practices benefited from a range of public comment, and the BBA is very grateful, as always, to have had the opportunity to share the thoughts of our members!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Approves Pro Hac Vice Fee Increase

You’ll recall that the BBA Council voted in February of this year to endorse a request from the IOLTA Committee to raise the pro hac vice admission fee. In June, the Supreme Judicial Court released an order amending SJC Rule 3:15, raising this fee. We are grateful to the court for being responsive to the thoughts and concerns of the IOLTA Committee and the BBA.

Keep reading to learn more about the BBA’s history with this request and the SJC’s order.

The BBA Council first took a position on this matter in 2011, when it voted to endorse 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 3:15Pro 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.

This year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and BBA President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. That increase would still leave 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 over the past decade, and unfortunately, projections for IOLTA revenue remain worryingly low. Meanwhile, as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth.

The SJC’s order amending Rule 3:15 increases the pro hac vice admission fee from $301 to $355. Though short of the amount requested, this increase will still offer substantial benefit to civil legal aid funding, and an estimated $30,000 will go to the IOLTA Committee annually. We are thankful the Court continued its long-standing support of access to justice by implementing this increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association