Posts Categorized: CPCS

Stepping Up: Bridgeman Argument and the BBA’s Mission

We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission.  This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all.  One place we see these tenets in action is in our amicus work.  From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.

In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157).  Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.  Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.

Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal.  Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.

Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem.  Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee.  We couldn’t agree more, and our brief makes that point as well.

The justices and attorneys also probed a number of other issues pertinent to our brief, mission, and Presidential letter:

  • At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually.  The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.

Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.

  • Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions.  The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so.  Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.

The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines.  They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  A global solution would, they argued, undermine this requirement.

  • What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants.  Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status.  Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.

The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally.  We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.

We are extremely proud of the work of our Amicus Committee on this case.  They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values.  As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Racing in the Right Direction: BBA President attends Homeless Court

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From left to right: Chief Probation Officer Matthew McDonough, BBA President Lisa Arrowood, Homeless Court Judge Kathleen Coffey, Clerk Magistrate Sean Murphy, and Court Officer Christopher Lembo

On February 18, BBA President Lisa Arrowood attended a session of Homeless Court, her third specialty court visit in the past few weeks.  Last month, President Arrowood attended a Drug Court graduation with Judge Serge Georges and a Veterans’ Treatment Court graduation with Judge Eleanor Sinnott.  Both offered moving examples of what individuals can accomplish when the courts work hand-in-hand with treatment providers to offer support and oversight.  Specialty courts are problem-solving court sessions which provide court-supervised probation and mandated treatment for mental health or substance abuse issues underlying criminal behavior.  Their goal is to reduce recidivism and increase the effectiveness of the court system by addressing root causes for criminal behaviors.

The original homeless court started in San Diego, California, in 1989, and similar models soon sprang up in major cities in Arizona, Louisiana, and Texas.  Massachusetts Homeless Court was established in 2011 as a partnership between the Boston Municipal Court’s West Roxbury division, Suffolk County District Attorney Dan Conley (represented at the session President Arrowood attended by former BBA Council member and Criminal Law Section Co-Chair Christina Miller), the Committee for Public Counsel Services (CPCS), and the Pine Street Inn.

The Inn is a nonprofit organization providing emergency shelter, permanent supportive housing, job training and placement, and street outreach to more than 1,600 homeless men and women.  The special court session occurs monthly on the third Thursday at 11:00 am and is designed to resolve misdemeanor offenses, non-violent felonies, and outstanding warrants for homeless individuals, with support and dignity.  A number of participants in the session we attended were enrolled in programs at the Inn.

By removing default warrants and dismissing criminal cases, Homeless Court breaks down many of the barriers that prevent homeless individuals from securing permanent housing, employment, education, drivers’ licenses, and other government benefits, helping them to move on with their lives.  It is presided over by Judge Kathleen Coffey —  Chief Justice of the West Roxbury District Court, and Director of Specialty Courts for the BMC – who sits at a simple table under an abstract painting in a nondescript room at the Pine Street Inn, alongside a chief probation officer and a clerk-magistrate.  Participation is open to any homeless individual who meets the following criteria:

  • The client must have an outstanding warrant (for a missed court date or violation of probation) in Massachusetts.
  • The case must be a misdemeanor or a non-violent felony.
  • The client must be homeless or at risk of homelessness.
  • The client must be receiving services or working with a case manager.

The Court operates as a progressive plea bargaining system characterized by alternative sentencing.  While in traditional criminal justice procedures, the court requires the defendant to promise to change his or her behaviors while on probation, in the Homeless Court context, the individual must have already completed a substance abuse program or be actively participating in mental health treatment and job training.  Through Homeless Court, individuals are given the opportunity to work with social workers and case managers in cooperation and collaboration with the prosecutors and defenders’ offices to overcome challenges with the oversight of a judge.  As of last summer, 101 individuals had successfully completed the Court requirements.

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Judge Kathleen Coffey seated next to Clerk Magistrate Sean Murphy

In Judge Coffey’s words, Homeless Court, “is based upon the premise that there is room for treatment, compassion and for recovery within the court system.  It recognizes that homelessness presents a complicated challenge to the courts demanding alternative approaches in the administration of justice. The court seeks to make the justice system more accessible, accountable and responsive to the needs and challenges faced by this most vulnerable population.”

Throughout the session, at which seven cases were considered, Judge Coffey often expressed sympathy for the complicated problems faced by the defendants.  Five defendants were present at the session, and two saw their cases dismissed.  Judge Coffey asked everyone to share their stories – how they became homeless, their reasons for taking part in homeless court, and what aspect of life on the streets was most challenging.  Defendants described the difficult, and varied, life circumstances that led to their hitting rock-bottom and their motivations for self-improvement, which included the knowledge that they could do better, the need to escape the isolation and constant turmoil of homelessness, and, in several instances, a strong desire to make their young children proud.  Judge Coffey encouraged positive progress, telling one defendant they were “racing in the right direction,” and District Attorney Christina Miller did the same, telling another defendant that she was “amazed and encouraged” by their progress.

Boston Bar Association President Lisa Arrowood said she was inspired not only by the profound impact this program and the other specialty courts are having on the lives of its graduates, but also on their potential to meaningfully tackle complex issues that lead individuals to commit crimes.

“It is the first time for many of these people that they are in court and something good is happening to them.  I looked around and thought that this is what they need – treatment, not incarceration,” Arrowood said.  “I believe specialty courts are highly valuable and I am grateful for having had the opportunity to see them operate firsthand.”

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Three Branches Working Together: The Latest on Section 35 Civil Commitments

On February 8, we were pleased to host a fascinating program, “Combating Drug Addiction: The Latest on Section 35 Civil Commitments.”  Hosted by the Criminal and Health Law Sections, the panel featured Chief Justice of the District Court, Paul Dawley, First Justice of the Lawrence District Court, Lynn Rooney, First Justice of the Quincy District Court, Mark Coven, Massachusetts Department of Mental Health psychologist, Dr. Stephen DeLisi, and general counsel to the Massachusetts District Courts, Joseph Ditkoff.  The program was moderated by two Criminal Law Section members and Trial Court attorneys, Georgia Critsley and Sarah Weyland Ellis.

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So-called “Section 35’s” are a form of civil commitment permitted under G.L. c. 123 §35 for individuals suffering from substance- or alcohol-abuse disorders.  With the ongoing opioid crisis, their usage has skyrocketed.  Whereas about five years ago the courts saw about 5,000 sections per year, today that number is at 10,000 and rising.

In simplest terms, “Sections” allow individuals, such as friends and family of a person allegedly suffering from severe addictions, to seek help from the court in order to force detoxification and treatment.  The concerned individual(s) can even request a warrant from the court to have police find and bring in the individual.  Once in court, it is up to the judge, with the help of a qualified physician, psychologist or social worker, to determine whether the individual is indeed suffering from an alcohol- or substance-abuse disorder and, if so, the level of threat they pose to themselves and others.

Recently enacted uniform court rules provide new clarity on how these procedures should operate.  In a Section 35 hearing, the rules of evidence do not apply – for example, hearsay evidence is admissible — and the judge may inquire of the petitioner as well as accept testimony or other evidence from the petitioner or any other person, including a court official.  Then the judge must “determine whether there is clear and convincing evidence that (1) the respondent is an alcoholic or a substance abuser, as defined in G.L. c. 123, § 35; and (2) there is a likelihood of serious harm, as defined in G.L. c. 123, § 1, as a result of the respondent’s alcoholism or substance abuse, to the respondent, the petitioner, or any other person.”  If the judge finds both of these prongs met, then the court may issue an order of commitment for up to 90 days in “a suitable facility approved by the department of public health for the care and treatment of alcoholism or substance abuse,” with fallbacks to correctional institutions if there are no beds available at these institutions.

As Chief Justice Dawley explained, this is an extremely important time for the Section 35 process, as the Executive, Judiciary, and Legislature have all been working together to clarify and improve these hearings.  Over the summer, the SJC issued an opinion in, In the Matter of G.P., using a footnote to expound on some of the key recent uniform court rules.  Specifically, the footnote confirmed that the standard of evidence for Section 35 hearings is “clear and convincing,” that the rules of evidence do not apply and hearsay is admissible, and that any appeal is to the District Court’s appellate division.  The case also discusses the meaning of a “substantial risk” of “imminent” harm, noting that it does not necessarily mean immediate harm, but rather that “the harm will materialize in the reasonably short term – in days or weeks rather than in months.”

The executive branch made a commitment to expand treatment options, unveiling a new drug treatment unit for women at Taunton State Hospital called the Women’s Recovery from Addictions Program (WRAP).  This move corresponds with a newly-enacted law, H3956, which ends the practice of women being civilly committed under Section 35 to MCI-Framingham, a correctional institution that provided only detoxification without addiction treatment and incarcerated addicts alongside convicted criminals.  As Chief Justice Dawley stressed, 18 months ago the courts had little guidance on civil commitment procedures, and now there are new rules, new legislation, more treatment options, and an explanatory SJC decision.

However, there is still much to be done.  The courts are continuing to work on implementing the new rules and have ongoing communication with the executive and legislative branches.  There are also still plenty of challenges.  For example, the new uniform court rules remove the ability of individuals to self-petition, leaving the courts in a tight spot.  Judge Rooney said she typically sees at least one self-petitioning individual per day and her court has been directing these people to the Probation Department, hoping that the probation officer on duty will fill out the Section 35 petition for the at-risk individual.  While this often works, she noted that it is an increasing burden on Probation and other courts may not have the luxury of a probation officer readily available for this purpose.  She hopes to see a process put in place for these people.

Furthermore, based on anecdotes from the judges and attendees, it was clear that practices across all courts have not been standardized.  While complete uniformity may not be possible or practical, there seems to be a push for closer coordination across the state.  The new uniform rules should help provide that, but it will take time for the courts to work out all the kinks.

In sum, the program did a great job of helping to explain where things stand with Section 35 civil commitments.  While it is clear that there has been great progress recently, and even more in the works, there is also still a long way to go in honing the effectiveness of these proceedings.  We look forward to seeing what else the three branches of state government can accomplish towards easing the opioid crisis.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Repairing the World through Judicial Innovation and Evolution

On Tuesday, Chief Justice Ralph Gants gave his annual State of the Judiciary Address at the MBA’s Bench Bar Symposium in the Great Hall of the John Adams Courthouse.  Attendees such as Speaker of the House Robert DeLeo, Judiciary Committee Co-Chairs Representative John Fernandes and Senator William Brownsberger, Attorney General Maura Healey, Governor’s Chief Legal Counsel Lon Povich, and a host of SJC Justice and Chiefs of the Trial Court departments were there.

Chief Justice Gants began with high-minded principles.  He explained that he sees every court – not just specialty courts — as a problem solver, which he defines as meeting an obligation to repair the world, an obligation met by saving even one life.  No one, he noted, comes before our courts unless they have a problem that cannot otherwise be amicably resolved.  All courts seek to repair the world, one problem at a time – a task that can be accomplished only with the support and assistance of the two other branches of government.

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The Chief went on discuss two main issues, civil case reforms and justice reinvestment.

Civil Case Reforms

The Courts are intent on changing civil cases, making them more affordable and cost efficient at all levels.  “Slow, expensive litigation,” he said, “is the way of the dinosaur.”  Three changes are coming this winter:

  • A menu of options in Superior Court – parties will soon be able to choose from a number of resolution options. The top option will be the “three course meal” of full discovery and a jury trial.  However, there will be a sliding scale of other options, available only upon the agreement of all parties, which will attempt to bring cases to resolution with greater speed and less expense.  We expect to have an opportunity to circulate these proposals for comment within the BBA before they take effect.
  • More efficient cases – judges will monitor cases more closely to assure that they stay on track. In addition, the SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure will be revising Rule 26 of the Rules of Civil Procedure.  Using the recently revised federal rule on discovery as a model, the Committee will tweak our state rule to encourage discovery proportional to case costs.  We look forward to being part of the review and comment process on Rule 26 as well.
  • Increased number of dedicated civil sessions – the District Court and Boston Municipal Court will, at least partly in response to our comments, introduce more sessions dedicated to civil cases, so that these will no longer be the third priority behind criminal and domestic abuse cases. They will also delay implementing the proposed increase in the procedural amount at these courts until these new sessions are running well and demonstrating that they can more efficiently handle civil cases.

Justice Reinvestment

The Chief Justice shared a number of ways the courts are working to improve criminal practice, with a focus on decreasing recidivism, helping individuals become productive members of society, and using the state’s criminal-justice budget more wisely to help achieve these twin goals.

  • Trial Court departments with criminal jurisdiction have been studying best practices in sentencing and hope to use this information to improve sentencing practices starting this winter. The BBA was represented by Thomas Peisch, Conn Kavanaugh, on the Superior Court Working Group; Daniel Dain, Dain, Torpy, Le Ray, Wiest & Garner PC and Michael Fee, Pierce & Mandell PC on the Land Court Working Group; and Thomas Beauvais and Nigel Long, Liberty Mutual on the BMC Working Group.
  • Chief Justice Gants is committed to following the findings and recommendations of the Council of State Governments, which he, along with the Governor, Speaker, and Senate President, invited to examine the Massachusetts criminal justice system. He cited a fact that the Council had already found – in 2012, 46% of those released from state prison in the Commonwealth went back to the street without either parole or probation supervision.  This is one of the highest unsupervised release rates in the country and may have the effect of increasing recidivism rates.
  • The Chief offered a number of ideas on justice reinvestment such as increasing the availability of good time credits, promoting step-down and re-entry programs, and removing mandatory minimum sentences, or at least their prohibition on the aforementioned programs. He also expressed the belief that the Commonwealth may benefit from decreasing sentence lengths and enhancing post-incarceration supervision.  Even though the Commonwealth’s incarceration rate is amongst the lowest in the country, it still does not compare favorably to history (the incarceration rate now is three times higher than it was in 1980 despite the fact that the rates of violent crime are now 22% lower and property crime are now 57% lower), or the world (if Massachusetts were a separate nation, it would have the eighth highest incarceration rate).
  • We need to reconsider all of the fees we are imposing on criminal defendants. We are charging them each hundreds, and sometimes thousands of dollars – fees that amount to more than $30 million per year, when many of these individuals have little or nothing to spare.  In addition, the task of collecting these fees has fallen to probation officers, which distracts them from their far more important function of helping probationers succeed in re-entering society.

Chief Justice Gants ended his speech with some notes on access to justice and jury voir dire.  On the former issue, he touted the recent opening of four Court Service Centers and the adoption and beginning implementation of a language access plan to help non-English speakers understand court processes, forms, and procedure.  The Courts are constantly exploring ways to assure that everyone can meaningfully access their services.

Finally, he talked about how the SJC responded to the bar with the adoption of attorney voir dire.  We were pleased to be involved in this process, as current BBA Vice-President Mark Smith, Laredo & Smith, LLP, served on the SJC Committee on this issue.  Over the past year, the Court issued a standing order governing lawyer participation in voir dire and designed a pilot project on panel voir dire, which is in use by 15 Superior Court judges.  They also recruited 30 Superior Court judges to study attorney-conducted voir dire.  The Courts have trained judges and gathered data on the impact of the new measures.  In all, the Courts continue to develop, grow, and adapt to this new aspect of practice.

As always, Chief Justice Gants clearly has his finger on the pulse of the judiciary.  We are excited to learn of the changes that are coming and to reflect on the strides the Courts have made in the last year.  We look forward to working with the judiciary to bring the Chief’s visions to reality, as the Courts innovate and thrive.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

EOPSS Revises Rules for Attorney Access to Prisons

For those who have ever visited a correctional facility, you know that there are a host of security measures required upon entry. The Code of Massachusetts Regulations regarding attorney access at Massachusetts Correctional Institutions (103 CMR 486) is designed to facilitate inmate access to proper legal counsel while accommodating security concerns at prisons. Its purpose is to lay out standards to achieve that balance for attorneys, law students, and paralegals, as well as investigators and interpreters.

The Executive Office of Public Safety (EOPSS) in cooperation with the Department of Corrections (DOC) recently revised CMR 486 in response to concerns raised by several parties—including the BBA, the MBA, the ACLU of Massachusetts, Prisoners’ Legal Services, and the Committee for Public Counsel Services—with regard to the inconsistent application of these rules and overly intrusive searches of attorneys. Female attorneys, specifically, have found themselves subjected to seemingly arbitrary and unnecessarily invasive searches at prisons, often after an underwire bra triggers a metal detector in the course of an initial scan.

In response to an invitation for comments from EOPSS, the BBA and its Criminal Law Section reviewed the revisions to 103 CMR 486 and found the efforts to be worthwhile. The BBA believes that the revised rule will function to standardize applications of the CMR—alleviating concerns about intrusive searches of attorneys and facilitating attorney visits to clients at correctional institutions. We hope the final rules will be uniformly enforced by all DOC facilities and that support training for all involved personnel will ensure proper implementation. One thing we noted, however, is that 103 CMR 486 applies only to attorney visits at state prisons. We encouraged EOPSS to consider extending the revised rule to county correctional facilities as well, in order to ensure uniform proper treatment of attorneys at all correctional institutions in Massachusetts.

The Criminal Law Section was also largely supportive of the revised rule, calling it “generally fair, reasonable, easy to follow and an improvement over the existing CMR.” While the Section was pleased to see increased record keeping requirements—such as incident reports stating an articulable reason for a pat down search of an attorney whenever one is requested by an officer,—some members voiced concerns that this additional paperwork might be burdensome or impracticable. Moreover, while members were also pleased to see a general presumption supporting the reasonableness of an attorney’s explanation for the cause of any interference indicated by the metal detector scan, individuals hoped that these changes would not overly limit correction officers in keeping prisons safe. Other concerns included the fact that the revisions did not address rules regarding specific articles of clothing—particularly women’s clothing—that have been inconsistently implemented and enforced at certain correctional facilities.

On Tuesday, we attended the EOPSS hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives. Like the BBA, those who testified generally supported the revisions, but took the chance to offer some further suggestions based on their personal experiences and perspectives.

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Victoria Kelleher testifying while Michael Hussey (MACDL) looks on.

First to testify was Lauren Petit on behalf of Prisoners’ Legal Services (PLS), which viewed the changes as largely positive. Nonetheless, PLS suggested that changes should also include other professionals who are supervised by attorneys, such as paralegals and interpreters. Moreover, they believed that some of the language changes may be “unnecessary” or “overkill”, noting that they appear to be geared towards limiting access. As a result, Petit asked for further clarity in the definitions section of the CMR. She also suggested that the clearance process for law students and paralegals be centralized, so they wouldn’t have to be certified by each prison individually.

Joel Thompson of the Harvard Prison Legal Assistance Project, also welcomed the changes, but made proposals to move the revisions even further. He asked the panel to strive for consistency and clarity, speaking to the discrimination that female law students face when entering correctional facilities. The group sends 150 law students into prisons each year, but “every once in a while,” he said, “there’s an interaction that’s less than optimal,” noting that the problem seems to have worsened this year, and that female students are more likely to have difficulty gaining access. He proposed that the rule allow access to law students on the same basis as attorneys, on the grounds that they are in virtually the same position. Thompson also suggested the clarification and streamlining of the process for law students to get clearance to enter prisons.

The president of the Massachusetts Association of Criminal Defense Lawyers, Michael Hussey, raised the same concerns about consistency and equal treatment of men and women. He also testified for the easing of access to prisons for private investigators (PIs). He described PIs as essential to criminal defense and noted that the current requirements for PI access are unnecessarily burdensome (e.g., PIs are required to give one week’s notice before entry). Richard Slowe, the Chief Investigator for the Public Defender Division of the Committee for Public Counsel Services (CPCS), pointed out that CPCS staff investigators, unlike private investigators, are not technically covered by the new regulations and argued that they should be part of a central database of pre-screened visitors. Slowe also echoed the testimony of Hussey in stating that CPCS investigators should not only be allowed more accommodations (such as access to private interview rooms), but also be governed by the same rules as attorneys (as they are always supervised and are already subjected to extensive background checks).

Perhaps the most passionate testimony came from Victoria Kelleher, who works in private practice, and has been subjected first hand to what she termed “illegal searches.” She described her experiences entering prisons to visit clients as “unpredictable, stressful, and onerous” and shared how she has been turned away for wearing items such as boots and belts. These experiences only added to her concern that women are excluded for things seemingly unrelated to security (e.g. not being allowed access for wearing suit jackets with pants that do not match). Kelleher asked for more-specific definitions regarding apparel. In addition, Keller testified for further revisions that would allow attorneys to bring in files that are not necessarily “official”, but still pertinent to a client’s case. She also suggested that the DOC needs to “keep up with the times” and allow attorneys to utilize their own laptops to better defend their clients. Kelleher also recommended more training for prison security to ensure uniformity of attorney experiences and reduce delays that result when correction officers have to try to interpret the regulations. Her testimony spoke to the concerns of many female attorneys in Massachusetts who have had negative experiences with prison security.

While the revisions to 103 CMR 486 have been received positively, we will continue to monitor any further changes that may result from the BBA’s written testimony and that of the witnesses EOPSS and DOC heard from this week.

– Jing Li
Summer Intern
Boston Bar Association

Budget Process Nearly Complete

This week, the Legislature’s Budget Conference Committee approved a final FY2016 budget and yesterday it was enacted in both the House and Senate.  Let’s take a look at where our items of interest ended up and how they got there:

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

We made a historic push for increased funding of this line item.  Following the release of our Investing in Justice task force report, we implemented an intensive and far-reaching educational campaign, which resulted in media coverage from national to local newspapers to radio and television coverage.  We also held meetings with over 50 public officials including state Executive Branch leaders, state and federal legislators, the Attorney General, and the Chief Justice of the Supreme Judicial Court.

We helped spread the word that 64% of qualified people seeking legal aid are turned away due to lack of resources.  That doesn’t even take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.  We also were proud to share the accomplishments of the private bar, which operates in a public-private partnership with legal aid, donating immense amounts of time and money to the cause.

Finally, we discovered that up-front investments in legal aid will yield back-end savings from social welfare expenses.

  • For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69, primarily on shelter costs
  • For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in Medicare savings.
  • For every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.

We are pleased to see that MLAC received $17 million in the Conference Committee budget, a $2 million (14%) increase over last year.  Thank you to everyone who responded to our many action alerts asking you to contact your Legislators to let them know the importance of funding legal aid.

Here is the final breakdown:

FY2015 Final: $15 million (before mid-year cut of 1.79%)

FY2016

  • Request: $25 million
  • Governor’s Budget: $15 million
  • House Final: $17 million
  • Senate Final: $17.1 million
  • Conference Committee: $17 million

The BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts recommended a $30 million increase over three years, so our work in this area is certainly not done.  But in the context of an overall budget increase of 3.5% and a $1.8B budget gap that confronted the new Governor, this budget lays a good foundation.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the Legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples included funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

We were satisfied with the final funding amount of $631.5 million and grateful for legislative support.  Within that number there were some particularly bright spots including increases to specialty court funding and the courts’ HOPE/MORR intensive probation program. Unfortunately, statewide expansion of Housing Court jurisdiction did not make it into the final budget.  However, we still hope to accomplish this legislatively through bills H1656/S901.

This is how the funding breaks down:

FY2015 Final: $612 million (before mid-year cut of 1.79%)

FY2016

  • Request: $642.6 million + modules
  • Governor’s Budget: $603 million
  • House Final: $622 million
  • Senate Final: $633 million
  • Conference Committee: $631.5 million

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS’s budget is comprised of four line items that include compensation for its own attorneys as well as private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, which made a convincing case that public defenders, bar advocates, and assistant district attorneys merit higher salaries, and a state commission unanimously agreed with that proposition.  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfunded CPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  The FY16 budget does not propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breakdown:

FY2015 Final: $168 million

FY2016

  • Governor’s Budget: $186.7 million
  • House Final: $170.5 million
  • Senate Final: $173.6 million
  • Conference Committee: $170.6 million

Next Steps

The Governor now has a total of 10 days to review the budget (9 days left at the time of posting).  He can approve or veto the entire budget, veto or reduce specific line items, veto outside (i.e., non-monetary) sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We hope the Governor will approve all of our line items of interest without change and we look forward to keeping you updated on the latest budget news.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association