Monthly Archives: August 2019

State Budget Update

Regular Issue Spot readers know that we closely follow the progress of each fiscal year’s state budget, from before the release of the Governor’s budget (usually in January) until sometime in the summer when the Governor signs the Legislature’s final budget into law (and sometimes beyond, when—unlike this year—there are vetoes that the Legislature seeks to override).  This year the budget for Fiscal Year 2020 (FY20) took effect on July 31, and we were very pleased to see that the Governor OK’d the Legislature’s provisions in all of the priority areas we had written to him in support of:

  • This year, the Legislature provided a significant increase of $3 million in the line-item for the Massachusetts Legal Assistance Corporation (MLAC), the state’s leading funder of legal-services providers, bringing their FY20 total to $24 million.
  • The judiciary is funded through a web of related line-items, but the bottom line (if you will) is that this year, they are very satisfied with the appropriation they received from the Legislature, including funding for continued implementation of the Housing Court’s statewide expansion, which was first authorized two years ago.
  • The Committee for Public Counsel Services (CPCS) saw robust funding for its operations, including both staff and private counsel who take their cases. The budget crucially also includes a so-called outside section, supported by the BBA, that would allow for a temporary expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances, in order to address emergency shortages of attorneys willing to take cases in some regions.
  • A recent addition to our budget priorities is funding for post-incarceration residential re-entry services. As indicated in our 2017 report on criminal-justice reform, No Time to Wait, such services can be a critical link in supporting successful re-integration, and thus a reduction in recidivism rates. We were therefore pleased that the Legislature authorized $4.5 million in funding for such programs this year.

Not only did Governor Charlie Baker sign off on all the above, as we had requested, but in a surprise move, the Governor declared the budget balanced—helped by an influx of revenue totaling hundreds of millions of dollars beyond projections—and chose not to veto any line-items at all.

—Michael Avitzur
Government Relations Director
Boston Bar Association

New Rule on Conditional Pleas

In February, in response to a request for public comment by the SJC on a proposed amendment to Rule 12 of the Mass. Rules of Criminal Procedure, addressing the use of conditional guilty pleas in criminal cases, the BBA submitted informal comments, on behalf of our Criminal Law Section, on a number of aspects of the rules.  Recently, the SJC adopted the final version of the rule, to take effect on September 1, and while much of what our commenters suggested went unaddressed in the final version, we did note that it adopts our recommendation that the rule clarify that such pleas are governed by the rules of appellate procedure.

Specifically, as we noted in our comments—drafted by the Criminal Law Section’s David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana, of the Suffolk County District Attorney’s Office—”The rule could be clarified to say that the normal rules of appellate procedure will apply to appeals taken from conditional guilty pleas. This may go without saying, but—particularly because this is such a new procedure—the parties should know that these appeals are governed by familiar rules. Several members of the section thought the new rule’s omission of any reference to the appellate rules could cause confusion.”

As noted by Massachusetts Lawyers Weekly (paywall), “Under the rule, a defendant may, with the prosecutor’s agreement, plead guilty (or in District or Juvenile courts admit to sufficient facts), appeal a ruling the defendant believes is erroneous, and, if successful on appeal, withdraw the plea (or the admission to sufficient facts) and presumptively obtain dismissal of the charge.”

Rangaviz, one of the authors of the BBA’s comments, expressed disappointment that the final rule retains a requirement for prosecutorial consent, which he believes will blunt the impact that the rule seems intended to have, but he acknowledged that there was disagreement within the section (as there often is) on this point, and others.  (When the BBA submits informal comments, it does so on behalf of its members but without taking a position on their merits.)  In addition to submitting comments, the BBA held a program this past March, moderated by Bruce Ferg of our Criminal Law Section, on the use of conditional guilty pleas in Massachusetts.

These changes were triggered in by the SJC’s 2018 decision in Commonwealth v. Gomez, where the Court exercised its superintendence power to conclude that a conditional guilty plea is permissible so long as it is entered with the consent of the court and the Commonwealth and so long as, at the time the plea is entered, the defendant specifies the specific pretrial ruling from which he or she intends to appeal.

You can read more about the changes to the rule, about our comments, and about the final rule.  We thank Kaushal and David, and the full Criminal Law Section, for their help in assembling our comments.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files as Amici in Two New Cases – and Praises SJC Decision in a Third

This was a busy week on the amicus front at the BBA, with two new filings—one brief, one letter—and a decision from the SJC on a case where we filed a brief this spring.

Starting with that last item, we reported previously on Commonwealth v. Johnson, in which the BBA submitted an amicus brief arguing that the state law on access to post-conviction testing to remedy wrongful convictions (known as Chapter 278A) was enacted specifically to facilitate access, and the SJC should therefore adopt a broad interpretation of its standing requirements.

Johnson—who was required to register as a sex offender as a result of a 1994 conviction—maintains his innocence and seeks the opportunity to test DNA evidence of which he was unaware at the time of trial, in the hope it will lend evidentiary support to his wrongful-conviction claim. The law limits access to testing to those who have been convicted in Massachusetts of a criminal offense and are “incarcerated [or] on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” Johnson’s petition was denied at the lower level when the judge found that he did not meet this threshold requirement, because he was then incarcerated as a result of failing to register as a sex offender and not as a direct result of his conviction.

Although the defendant here completed his Massachusetts sentence and is not currently on parole or probation, the BBA argued that his liberty continues to be restrained by his requirement to register as a sex offender, and that his claim—and claims of all similarly-situated individuals—should therefore be allowed to proceed.

On August 20, the SJC released its decision ruling that the defendant met the threshold requirements and is entitled to move forward with his application for DNA testing—and while the Court did not reach the issue raised in our brief, we were heartened by the inclusive interpretation the Court applied to Chapter 278A. This ruling, consistent with SJC jurisprudence in past cases, applies an appropriately broad interpretation that allows anyone whose liberty is restrained as a result of a Massachusetts conviction to pursue such testing and ensures that the Massachusetts law providing access to post-conviction testing of forensic evidence will be interpreted as the Legislature intended.

The SJC is set to hear oral argument on September 6 in Rawan v. Lala, a case that tests whether an insurance company must honor a clause in certain policies, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy.

Under G. L. c. 176D, § 3(9)(f), it is considered an unfair claim settlement practice for a liability insurer to fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In this case, an engineer was sued and gave only limited authority to his insurance company to make settlements, pursuant to a “consent to settle” clause in his insurance policy. The plaintiffs prevailed at trial, and the engineer’s insurer paid their coverage limit, with the insured paying the difference. After the verdict, the plaintiffs also brought a claim against the insurance company, under Chapter 176D, arguing that the insurer had violated its statutory obligation to act reasonably and in good faith to pursue a settlement, once its client’s liability had become reasonably clear.

The BBA last week filed a brief offering the perspective of attorneys, for whom such policies are common, and arguing that they benefit the profession as well as clients by encouraging attorneys to obtain liability coverage and to fashion policies to suit their needs. These insights are not offered through the briefs filed by the parties in the case, but the BBA wanted to make sure that the Court considers what is at stake here for the practice of law—which is one of the issue areas the BBA’s Amicus Committee looks at closely when considering whether to recommend filing a brief.

The brief, drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody & Arnold, LLP, states:

Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which inures to the benefit of the insured, not the insurer.

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Commonwealth v. Heywood presents questions surrounding the seating of a blind juror in a case with photographic evidence of the victim’s injuries, where the seriousness of such injuries was relevant to the charge for which the defendant was convicted. The SJC solicited amicus briefs on the following issues:

Whether the judge erred in determining that a blind juror was competent and qualified to be seated on a case involving a charge of assault and battery causing serious bodily injury, where the evidence included two photographs and other documentary evidence; whether appropriate accommodations were made to permit a blind juror to be seated as a juror; whether the evidence was sufficient to warrant a finding of serious bodily injury.

However, the BBA chose, on the recommendation of our Amicus Committee, to take a step back from these case-specific questions in order to look at the broader picture—and to do so in the form of an amicus letter, rather than a full brief.  As noted in our letter:

The BBA submits that having the benefit of the diverse views of citizens with physical disabilities is essential to a fair and impartial process and, in particular, in a trial before a jury of one’s peers. Given the historical limits that persons with disabilities have experienced in their attempts at serving as jurors, the Court’s questions raise issues well beyond the specific ones in the Heywood case. The BBA thus supports the establishment of a Study Group to evaluate the broader issues of how trial judges should evaluate the feasibility of service by prospective jurors with disabilities and to provide guidance to all stakeholders—judges, attorneys, jurors and litigants—under the myriad of circumstances that may arise when a citizen with a physical disability is summoned for jury service in both criminal and civil cases.

The letter goes on to suggest that such a panel could “examine the current best practices in accommodating jurors who have physical disabilities in an effort to standardize statewide procedures for the Court,” noting that “there does not appear to be any guidance available to trial judges or attorneys on how best to accommodate [such] jurors.” These best practices could cover questions for jurors, whether preliminary or at voir dire, and the use of peremptory challenges and challenges for cause.  After this initial groundwork has been laid, “the BBA envisions that the Study Group might recommend that the Court create a Standing Committee or Committees” to develop training programs on these issues, monitor improvements in technological accommodations, and the like.

The amicus letter closes by emphasizing, “The BBA believes it is the responsibility of the bench, the bar and the legislature to provide equal access to jury service to our citizens with physical disabilities. Equal justice under the law and the right to an impartial jury of one’s peers demands nothing less.”

The letter to the SJC was sent by BBA President Jonathan Albano of Morgan Lewis, with the assistance of Amicus Committee member Scott Lopez, of Lawson & Weitzen.

Oral argument will be held at the SJC on September 9, though we may have to wait for a decision to know whether the SJC intends to act on our suggestion, since—as with Rawan—the parties are not expected to address the issues raised in the BBA’s letter.

 —Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Announces New Judicial Independence Principles and Recommendations

Judicial independence is a cornerstone of constitutional democracy, promoting the ideal that the process of determining an outcome in a legal case is unaffected by the identity of those the dispute involves, unaffected by public opinion regarding how the dispute should be resolved or the popularity of the parties and their arguments, and unaffected by thoughts or opinions held by members of the other two equal branches of government about the dispute’s proper outcome. As a bar association, we believe that judicial independence is imperative to maintaining a fair court system and upholding the rule of law.

Prompted by a series of recent events that have made news, and a general sense that the climate around judicial rulings and other decisions, as well as the process for judicial selection and appointment, may be undermining public faith in the judiciary, the BBA Council approved the creation of a Working Group on Judicial Independence to take a closer look at the issue. BBA President Jon Albano of Morgan Lewis selected eleven working group members with a diverse set of backgrounds, including retired judges, practicing attorneys, and academics.

Under the leadership of Co-Chairs Lisa Goodheart of Sugarman Rogers and Renée Landers of Suffolk University, both of them former BBA Presidents, the Working Group spent the last six months discussing, debating, and analyzing the key aspects of judicial independence and the values that underpin it. The Working Group identified a set of five core principles that can guide the BBA, the wider bar and general public, and a set of recommendations for bar associations, attorneys, judges and courts. Read the full report here.

The BBA’s Historical Support for Judicial Independence

The mission of the BBA is to facilitate access to justice, advance the highest standards of excellence for the legal profession, foster a diverse and inclusive professional community, and serve the community at large. Over the years, the BBA has been a constant supporter of a well-functioning, adequately funded, and independent judiciary, and as an association of attorneys, we believe we have a particular responsibility to ensure that the role of the judicial branch is understood and that its independence is defended.

This responsibility compelled us, four times in the last two-and-a-half years, to speak out in response to statements and actions by local and national figures that seemed to threaten the independence of the judiciary.

Most recently, in April 2019 the BBA released a statement in response to the indictment of Massachusetts Judge Shelley Joseph on obstruction of justice charges. It provides that “[i]n the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law. The BBA has kept apprised of Judge Joseph’s case and was gratified to note that both the SJC’s August 13th opinions reinstating Judge Joseph’s salary during the pendency of her criminal case cited judicial independence as a primary motivation for making that decision.

The BBA has released statements condemning unfair criticisms of judges in the past, and the Working Group’s report cites a number of them in recent years, in an appendix to the report.

Aside from condemning unfair criticism towards judges, the BBA has also supported judicial independence by advocating on related issues. For example, our 2018 report spelling out the BBA’s Immigration Principles, included “Access to a Fair Immigration Process with Independent Judges” as a key tenet and expressed deep concern that “immigration judges…lack many of the protections associated with judicial independence.” It was clear to that immigration working group that the potential for politicization of immigration proceedings affects the ability of the judiciary to maintain its independence from outside influences, to the detriment of immigration judges’ ability to decide matters impartially.

In May 2018, when the BBA endorsed proposed legislation requiring that all public schools provide instruction in civics, then-President Mark Smith noted that “the judiciary’s unique role in our state and federal governments may be especially vulnerable when the public lacks knowledge of key concepts like the role of checks and balances, separation of powers, and judicial review.” This statement contributed to the Judicial Independence Working Group’s decision to include public education in its set of recommendations. They determined that access to information on the role and functioning of the judiciary is essential to the public’s confidence in judges, and that public perceptions play a major role in the ability of the judiciary to remain independent.  

To read more about the BBA’s past actions on matters relating to judicial independence, see Appendix A of the report.

The Judicial Independence Working Group (JIWG)

The JIWG was made up of the following individuals:

  • Renée Landers, Co-Chair; Professor of Law and Faculty Director, Suffolk University Law School;
    Member of the Committee on Judicial Ethics
  • Lisa Goodheart, Co-Chair; Partner, Sugarman Rogers; Immediate Past Chair of the Court Management Advisory Board
  • Jonathan Albano, BBA President, Partner, Morgan Lewis
  • Hon. Robert Cordy, (ret.), Supreme Judicial Court
  • Lawrence Friedman, Professor, New England Law | Boston
  • Hon. E. Susan Garsh, (ret.), Massachusetts Superior Court
  • Giselle Joffre, Partner, Foley Hoag
  • Paul Lannon, Partner, Holland & Knight
  • Hon. James McHugh, (ret.) Massachusetts Appeals Court
  • Patrick Moore, Partner, Hemenway & Barnes
  • Ian Roffman, Partner, Nutter McClennen & Fish

Over the course of six months, the JIWG met periodically and discussed, debated, and thought critically about the current threats to judicial independence. During this time, they were able to hear from the Commission on Judicial Conduct, the Supreme Judicial Court (SJC) Public Information Office, the First Circuit’s Office of the Circuit Executive, the SJC Committee on Judicial Ethics, and current and former members of the press. These groups and individuals shared their time, experience, and expertise over the course of the Working Group’s efforts, and the BBA is extremely grateful for their contributions.

The Report: “Judicial Independence: Promoting Justice and Maintaining Democracy”

The new BBA report outlines the importance of judicial independence, recites the threats it is currently facing, and proposes a set of recommendations to mitigate these threats. In its deliberations, the working group determined that judicial independence is essential to our society in the following ways:

  • the protection of civil rights and liberties
  • the role it plays in producing economic order
  • the reassurance that our personal affairs, when they wind up in court, will be adjudicated fairly
  • the widespread recognition among the citizenry that the law will be applied and administered fairly

The working group found that judicial independence has, for some time, been under attack in various ways. These attacks can take the form of vocal outbursts by public officials and thought leaders singling out specific judges or unpopular decisions, or they can be more subtle and progressive attacks that de-legitimize the judicial process in the eyes of the public over time—whether by questioning a judge’s or a court’s ability to act impartially or by suggesting that they can be expected to deliver the kinds of decisions the appointing authority has promised.

Public and private attacks on judicial independence can have significant deleterious consequences for individual judges as well as the integrity and operation of the judiciary generally. These consequences include: generating pressure for judges, going forward, to consider factors beyond the merits of the cases before them, instead of focusing exclusively on the facts and legal issues presented; and tainting public perception of the judiciary and undermining public trust in the judicial process.

The working group acknowledged that public scrutiny and criticism of judges and the general administration of the judiciary can have positive effects when the scrutiny, whether performed by the traditional press or other institutions, fulfills a “watchdog” function for the public, and serves to root out corruption, misconduct, and unjust practices. The challenge is distinguishing between harmful attacks on judicial independence and helpful efforts at reform.

Based on this understanding of the threats facing judicial independence, the working group developed the following five principles:

Principle 1: In our system of government, judicial independence is a concept that is fundamental to the rule of law and to the checks and balances the rule of law supports.

Principle 2: “Rule of law” is a shorthand expression for a legal system in which disputes are predictably decided on the basis of neutral legal principles applied in a systematic and orderly way that is free from bias and under which the resulting decisions typically are following voluntarily by those whom they affect.

Principle 3: The vitality of the rule of law ultimately depends on public understanding of the value and importance of the concept coupled with public support for judicial independence.

Principle 4: The Boston Bar Association has an obligation to promote, support, and defend judicial independence and should use its education, public policy and advocacy resources to enhance public understanding of the judiciary, demystify the judicial process, and explain to the public and elected officials the ways in which judicial independence is essential to protecting the rights and liberties of us all.   

Principle 5: The BBA should serve as a resource to the public and press by responding to assaults on judicial independence in a timely and measured manner that distinguishes between, on the one hand, vigorous public debate and dissent and, on the other hand, misinformation and personal attacks that undermine the public’s respect for an confidence in the courts.

In keeping with these principles, the Working Group offered the following recommendations:

  • Bar Associations: Bar Associations should use their institutional voices to defend, explain, and promote the value of judicial independence and respond to unfounded and uninformed attacks on the judiciary. In this vein, bar associations should work to serve as a resource to the press and public to explain key legal processes and to counter misinformation. Bar associations would also benefit from developing a set of criteria that can be used to determine when and how to respond to developments that may threaten the independence of the judiciary.
  • Lawyers: Lawyers in all practice areascan and should be more proactive in taking actions to promote and defend judicial independence, including by participating in public education opportunities, helping the public to discern between healthy criticism of the judiciary and potentially dangerous attacks, and speaking out against those instances that rise to the level of an unfair attack.
  • Judges and Courts: The Massachusetts Trial Court should expand and improve its data collection and transparency practices, which will aid in maintaining public trust in the judiciary and identifying patterns and practices that merit further study and improvements. Judges, though not always required by law, should endeavor to explain their reasoning in written decisions when appropriate and, when permitted by the Code of Judicial Conduct, support judicial independence by educating the public, whether in person, by writing articles, or through the press, on key issues.
  • Diversity and Inclusion: A diverse and inclusive bench will help to promote equity, fairness, and public trust in judicial decision-making. Achieving this goal will take collective action from the legal community, including making diverse judicial nominations and appointments a priority, improving court culture to ensure that professional experiences are inclusive and equitable, and creating an effective pipeline for talent that supports the legal education, employment, and development of lawyers from diverse backgrounds.

Taken together, these recommendations function as a call to the bar and the bench to focus attention on efforts to ensure the judiciary remains independent, supported, understood, and accountable. As the BBA’s Working Group concluded, no less than the health of our democracy may be at stake.

We would like to express our gratitude to the Judicial Independence Working Group, and particularly Co-Chairs Lisa Goodheart and Renée Landers, for all their hard work in producing this report. We anticipate that its principles and recommendations will guide the BBA in its advocacy on this issue for years to come.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association