Monthly Archives: February 2019

BBA 2019-20 Legislative Priorities

A new legislative session has begun at the State House for 2019-20—officially the 191st for the General Court of Massachusetts—and with it come about six thousand bills already filed by the 40 elected Senators and 160 elected Representatives from across the Commonwealth.  Let’s take a look at legislation the BBA is supporting, starting with three local versions of model laws drafted by the Uniform Law Commission (ULC).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Although there are certainly instances of Massachusetts leading the nation in advancing public policy, here’s a case of us actually being the only state yet to have enacted a law, some 20+ years after the ULC promulgated it.  The UCCJEA is effectively a compact that requires participating states (literally all of the others) to respect pre-existing custody orders from another state when a custodial parent moves there, with limited exceptions. 

The main idea is to discourage forum-shipping, promote certainty and quick resolutions, and save costs, by preserving the original state’s exclusive jurisdiction.  The Massachusetts version has been modified to address concerns about its potential impact on parents trying to escape domestic violence and has widespread support from the family-law bar.  The bill, filed by Sen. Cynthia Stone Creem, has twice now passed the State Senate but without action in the House.  This session, Rep. Sheila Harrington has also filed it.

(Read more: http://issuespot.bbablogs.org/2017/05/18/bba-testimony-at-judiciary-committee-hearings)

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)

Trusts-and-estates practitioners have faced increasing uncertainty in recent years regarding how to handle decedents’ digital assets.  That is, what should happen to a person’s e-mail accounts, social-media profiles, on-line banking portfolios, and so forth, after they die—and how should individuals plan for that while still alive?  It is currently unclear in Massachusetts and elsewhere how to resolve disputes over access to such assets between the Internet provider and the decedents’ estate.  And the issue only grows in importance as our virtual lives expand in scope and content—and as those digital assets grow in value.

RUFADAA aims to provide that much-needed clarity by establishing protocols to govern access.  It offers an account-holder the ability to specify, while living, what is to happen after their death, and provides fiduciaries with a means to pursue content access in keeping with an estate plan, while also setting up protocols for cases of intestacy or an absence of instruction from the decedent.  Unlike previously-proposed bills, RUFADAA would extend to all digital content and to all types of fiduciaries.  It has now been adopted in 41 other states.  Here, RUFADAA legislation has been filed by both Sen. Barry Finegold and Rep. Jay Livingstone.

(Read more: http://issuespot.bbablogs.org/2017/05/11/rufadaa-update-testimony-at-judiciary-committee-hearing-and-podcast)

Uniform Trust Decanting Act (UTDA)

Also spearheaded by our Trusts & Estates Section is the BBA’s endorsement of the UTDA, which—like RUFADAA—would impose a legal framework in an area that currently lacks one: decanting, which involves the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust.  Though the SJC has recognized the potential validity of such actions under common law (in a case in which the BBA submitted an amicus brief), neither the Court nor the Legislature has spelled out what can and can’t be done, and under what circumstances.

Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent abuse.  UTDA, which would create those rules, offers national uniformity, but it’s especially important in the half of the US (including Massachusetts) that now has no decanting statute whatsoever.  Sen. Creem has filed a bill to adopt UTDA here.

(Read more: http://issuespot.bbablogs.org/2019/01/17/bba-endorses-uniform-law-on-trust-decanting)

Conversion therapy

We continue to support a bill that came tantalizingly close to being sent to the Governor at the end of the last legislative session in July: Rep. Kay Khan’s legislation would ban the use of “conversion therapy” on minors by licensed health care professionals.  The practice goes by different names, but it represents an ostensible attempt to alter a person’s sexual orientation and gender identity.  A ban would thus protect minors from a practice that medical and child-welfare experts agree does not align with current scientific understanding and is not only ineffective and misleading but downright unsafe.

(Read more: http://issuespot.bbablogs.org/2017/06/08/bba-presents-testimony-in-support-of-banning-use-of-conversion-therapy-on-minors)

Other legislation we are advocating for includes bills…:

  • Offering alternative, neutral terms—which don’t carry the stigma of, for example, “custody” and “visitation”—that could be used by parents in custody disputes, and thereby promote settlement and reduce conflict and ill will.
  • Updating and modernizing the law on spousal elective share (which allows a surviving spouse to take more from a decedent’s estate, under certain circumstances, than the will provides), as the SJC has repeatedly asked the Legislature to do (most recently in January).
  • Redrafting Massachusetts law on operating a motor vehicle while under the influence, to make the notoriously confusing Chapter 90 of the General Laws easier to understand—but without making any substantive changes.
  • Addressing a discrepancy in the treatment of adopted children in trusts that has resulted from confusing changes in the relevant statute over time.
  • Fixing a glitch in the estate tax that results in disparate, unfair treatment, for purposes of tax basis, of property inherited from Massachusetts residents who died in 2010.
  • Making technical corrections to the state’s Trademarks Act.
  • Protecting the interests of property owners from “title piracy,” whereby unrelated third parties scour old records in search of technical defects, in order to find potential claims against current innocent landowners.

We appreciate all of the above sponsors for carrying these measures.  We will continue to advocate for them throughout the current session and will of course keep you updated.  (To learn more about our process for considering new policy proposals, including how you can propose that we do so take a new position, read: http://www.bostonbar.org/public-policy/public-policy-procedures)

In addition to the specific bills listed above, we are guided by principles, guidelines, and recommendations that have been endorsed by the BBA Council to govern our positions in a variety of areas, such as criminal-justice reform, immigration, wiretap law, and shared parenting.

Much of our work in the State House, however, is focused on one annual bill in particular: the state budget.  As always, we are strong supporters of adequate funding for the judiciary, for civil legal aid, and for representation for indigent defendants.  Last year, we also extended our support to a new program for re-entry services for people coming out of incarceration.  (Read more: http://issuespot.bbablogs.org/2018/07/26/budget-update-governor-signs-fy19-budget)

Finally, our engagement with public policy extends beyond legislative lobbying: We frequently comment on proposed changes to court rules, for instance, and file amicus briefs on matters related to the practice of law or the administration of justice.  Though are efforts are mostly focused on the state level, we do take positions on Congressional legislation—including a recent effort [paywall] to prevent forum-shopping in bankruptcy cases—and, under the auspices of the ABA, we make the trek to DC each spring with the BBA President and President-Elect to talk to members of the Massachusetts delegation about BBA/ABA priorities at the federal level.  With two newly-elected Representatives to visit for the first time, we are especially looking forward to this year’s visit and will report back in April.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Criminal Law Section Submits Comments on Proposed Conditional Guilty Plea Rule

Our Section Steering Committees frequently take the opportunity to comment on proposed new and amended rules and court orders. Members are able to offer important insights from the viewpoint of their particular practice area and expertise, and the courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Earlier this month, the Criminal Law Section, one of the BBA’s most frequent participants in the comment process, submitted comments in response to a proposed amendment to Rule 12 of the Massachusetts Rules of Criminal Procedure. The amendment would add a new section allowing the defendant, if the prosecutor agrees, to plead guilty while reserving the right to appeal any ruling that would, if reversed, render the Commonwealth’s case not viable. The proposal was drafted in response to the Supreme Judicial Court decision in Commonwealth v. Gomez, 430 Mass. 240 (2018), which authorized the use of conditional guilty pleas in Massachusetts.

The comments reflect diverse opinions from both prosecutors and defense attorneys, offering suggestions and feedback on those sections related to prosecutorial consent, the “not viable” requirement, and single-charge conditional pleas sentencing issues.  A special thanks goes out to Criminal Law Section Steering Committee members David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana of the Suffolk County District Attorney’s Office, for taking the lead in drafting these comments and presenting them to the Executive Committee.

                You can read the full Criminal Law Section comments here. We’ll be keeping an eye out for the final rule, and in the meantime, don’t miss the Criminal Law Section’s upcoming program on Conditional Guilty Pleas on March 20 at the BBA!  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Immigration Update: ABA Adopts BBA-Endorsed Resolution and Other Border Developments

Since the release of the BBA Principles and Report last September, we’ve been using the analysis and framework created by the Immigration Working Group to weigh in on key immigration developments. For example, over the last few months, we submitted comments in opposition to proposals that would radically change the public charge rule and the processing and treatment of immigration youth.  

Below, we highlight the most recent immigration-related position adopted by the BBA Council and offer a few updates on other important developments, including the Border Wall and the family separation suit filed last fall by a collection of Boston-area immigration and civil rights attorneys.

ABA Resolution on Zero-Tolerance Policy and Operation Streamline

Last month, we reported that the BBA endorsed a proposed ABA resolution related to federal immigration policies and practices to be taken up by the ABA House of Delegates at their mid-year meeting. We’re thrilled to report that the resolution was indeed adopted  by the ABA as proposed and can be found here.

The Resolution  and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.”  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups, like the BBA, are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. 

For a full overview of the resolution and the BBA’s endorsement, visit this blog post.

Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arrowood, of  Arrowood LLP, were able to pass along the BBA’s support in advance of the vote. Mary Ryan reported on the great testimony presented in support of the Resolution by those who had visited the border and told personal stories of how the scenes of mass prosecutions impacted them.  

Other Updates

National Emergency and the Border Wall

The federal government shutdown, which occurred largely due to a disagreement over funding for a wall at the border, had major impacts on individuals and communities across the country. These impacts were especially pronounced for immigration courts, where over 85,000 immigrants had their hearings canceled, many after already waiting for years for the court date. It will likely take years for the courts, already facing a deep backlog, to make up the missed hearings, but the shutdown has now ended and attention has turned to the President’s declaration of a national emergency at the border in order to access funding to build the wall.

The declaration has raised significant questions about executive power and national emergencies. Director of Government Relations Michael Avitzur previously shared an article on LawFare Blog by Margaret Taylor, and it’s worth a reread for the statutory argument analysis.

Soon after the declaration, 16 states filed a suit in the U.S. District Court in San Francisco, arguing that the President does not have the power to divert fund as Congress controls that spending and pointing to Trump’s own words to show there is not an actual emergency. Attorney General Maura Healey stated that she is “working to determine the full scope and impact on Massachusetts so that, if and when we challenge the administration’s actions, we bring the strongest possible case.”

Amended Complaint Filed in Family Separation Suit

In September, Lawyers for Civil Rights, and attorneys from Todd & Weld, Nixon Peabody, Demissie & Church, and the Law Offices of Jeff Goldman, filed a first-of-its kind federal class action lawsuit seeking damages against Trump Administration officials for the family separation at the border. The suit, brought on behalf of two families and similarly-situated children, seeks damages based on violations of the constitutional and civil rights of immigrant children, including the violation of due process and violation of the Fifth Amendment’s equal protection clause. The damages sought include the creation of a mental health fund to pay for therapy and treatment necessitated from the separations.

At the end of last month, the two families filed an amended complaint that adds a count alleging violation of the Fourth Amendment’s protection against unlawful seizure. On January 9, the government had filed a motion to dismiss but will now file a second motion to dismiss in response to the amended complaint. Hearings in the case have not yet been scheduled.

Continue to watch this space for more updates on how these matters develop on the state and national level. If you’re interested in learning more or becoming involved in the BBA’s immigration-related work, email adaniel@bostonbar.org

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Fiscal Year 2020 Budget Advocacy Begins

It’s that time of year when our budget priorities become a focus here in the Government Relations Department of the Boston Bar Association (BBA). We previewed our budget campaign before Walk to the Hill earlier this year, and last month Governor Charlie Baker released his Budget for Fiscal Year 2020 (FY20). You can read our letter to the Governor here.  Now, our attention turns the Legislature as the House, and then the Senate pass their own budget proposals in the coming months.

For a refresher on where things ended up for the FY19 budget, visit this blog post, and keep reading to learn more about our funding asks for FY20.

Walk to the Hill Recap and MLAC Budget Ask

Before getting into the budget details, we first want to thank all those who made Walk to the Hill 2019 such a success!  On January 24, hundreds of attorneys braved the rain and rallied at the State House to advocate for an increase in funding from the Mass Legal Assistance Corporation (MLAC), the largest funder of legal services programs in the Commonwealth. This year marked the 20th anniversary of the Walk, annually hosted by the Equal Justice Coalition, an organization formed in partnership with the BBA, the Massachusetts Bar Association, and MLAC.

Before heading over to the State House, law students, in-house counsel, and solo and small firm practitioners gathered at the BBA for a breakfast and refresher on speaking about legal aid with legislators. Once across the street, attendees heard moving remarks from President Jon Albano,  SJC Chief Justice Ralph Gants, EJC Chair Louis Tompros, MLAC Executive Director Lynne Parker, MBA President Chris Kenney, a client who received legal assistance from GBLS, and GBLS Executive Director Jacquelynne Bowman.  As usual, many of the speeches relied on the BBA’s own Investing in Justice report to highlight that funding for legal is not only the right thing to do, but a sound investment that pays for itself, and then some. (ICYMI: that same report just got a mention in the Boston Globe in a piece related to the provision of counsel in eviction proceedings). After the speeches, attorneys spread out across the State House, including Jon Albano and MetroWest Legal Services Executive Director and BBA Council member Betsy Soulé, who had productive meetings with Representative Alice Peisch and Senator Michael Barrett, both long-time supporters of MLAC funding.  Read the full Walk to the Hill recap by the EJC here.

            Walk to the Hill marks the beginning of a months-long budget campaign for civil legal aid, and this year we are asking for a $5 million increase in funding in the Fiscal Year 2020 (FY20) budget, for a $26 million total appropriation. The day before the Walk, the Governor released his own budget, which offered level-funding for MLAC. Now we turn our attention to the Legislature, where we’ll be urging the House and the Senate to include the full $26 million request.

Trial Court

As usual, we’ll also be urging for adequate funding for the Trial Court appropriation. The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

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 money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY16 staffing level and a 19% reduction since FY02.

Despite these efforts, and even with steady increases in funding from the Governor and Legislature, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which 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. That’s why we are urging that the FY20 budget include the Trial Court’s full requested maintenance-level appropriation.  

CPCS

This year, we will also be urging, as usual, for adequate and timely funding for the Committee for Public Counsel Services (CPCS),which 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 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 Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s 2015 recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and increased funding for CPCS would be a significant and beneficial step in that direction.

CPCS funding in the FY20budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding would allow CPCS to increase compensation for bar advocates, or private attorneys who defend indigent clients, which would help to find attorneys willing to take on these tough cases and protect the constitutional rights of these parents and children.

Residential Re-Entry Services

As you’ll recall, last year we added an additional item to our budget priorities: funding for residential re-entry services to reduce recidivism. Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective. 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 funding 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. This year, we are once again supporting a $5 million appropriation for these important services.

As our budget advocacy gets underway, there will be plenty of opportunities beyond Walk to the Hill for you to join us in advocating for our priorities, which will help to ensure access to justice for all residents of the Commonwealth and an efficient and effective judicial system. Watch for e-alerts coming your way, asking you to reach out (again) to your elected officials at key points in the process during budget season! In the meantime, you can learn about the state budget process by listening to this podcast focused on civil legal aid in particular, and about the federal budget and budget advocacy at that level from our Federal Budget Process 101 podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association