Posts Categorized: Governor Baker

BBA Council Hears from the Governor’s Chief Legal Counsel

Last week, we were happy to welcome back Lon Povich, Governor Charlie Baker’s Chief Legal Counsel and former member of the BBA Council and the Statewide Task Force to Expand Civil Legal Aid. On his annual visit to Council he provided an update on three key areas of interest to members of the Bar:  1) Criminal Justice Reform, 2) the Budget, and 3) the Judicial Nominating Process.

Criminal Justice Reform

Lon Povich first spoke on criminal justice reform, highlighting the recent report released by the Council of State Governments (CSG).  We’ve been following the report, and related legislation filed in February by the Governor, closely. Overall, the report and bill focus on reducing recidivism in the Commonwealth, which is currently at about 40%. The Governor’s Proposed Budget allocated $3.5 million to fund the costs of implementing the recommendations in the report for the first year.

With the reducing recidivism goal, the proposed reforms include increasing programming for incarcerated individuals, providing more training for corrections officers, expanding the availability of behavioral health services, increasing credit for “good time served”, allowing good time to apply to some mandatory minimum sentences, strengthening the coordination between prisons and the Parole Board, and improving data collection. Overall, Povich characterized the bill as a start to criminal justice reform, but he thought it would attack recidivism head on. One member of Council expressed concern that if the legislation coming from the CSG report is rushed through the legislative process, momentum will be lost for more sweeping reforms, including front-end reforms that many stakeholders believe important, like those related to bail, collateral consequences, and mandatory minimums. In response, Povich said he did not see the CSG bill as a barrier, but instead a starting point. The narrow nature of the current proposed legislation reflected what it took to gain consensus among the sponsors of the CSG project, the Governor, the Speaker of the House, the Senate President and Chief Justice Gants, so he was worried if too many additional proposals were attached, it might not pass at all.

In addition to the above, Povich mentioned four other pieces of criminal justice legislation coming from the Governor’s Office this session. One relates to “fine time,” which is the practice of incarcerating individuals when they are unable to pay court fines and fees. The new bill would provide other options for defendants that cannot afford a fine and would provide counsel for indigent defendants facing fine time. The next bill would increase the penalty for assault and battery on police officers. The third bill would reform the current laws on the sharing of sexually explicit material, including “sexting” and “revenge porn.” The final piece of legislation he mentioned would update the wiretap statute, which was drafted in 1965, to account for modern technology and reform the types of crimes it covers. (Here at the BBA, we’ve also called for updates to the current wiretap laws.)

Budget Update

Next, Povich discussed the state budget, first noting that money is very tight right now, especially given the rising MassHealth costs. He spoke on funding for the Trial Court first, noting the 1% increase provided for in the Governor’s proposed budget as well as the inclusion of $11.7 million in the more recent House Ways and Means proposed budget to cover the pay raise legislation enacted since the Governor’s budget was released. He also mentioned the additional $1.5 million provided for the Massachusetts Legal Assistance Corporation (MLAC) in the House Ways and Means proposal. Finally, Povich noted that while the Governor’s budget allocated $1 million for expanding the jurisdiction of the Housing Court to the whole state, the House Ways and Means budget did not include any funding for this expansion. To wrap up his budget update, he discussed the rest of the budget process, which we’ve also covered in a podcast, and highlighted the significant impact BBA advocacy has on funding for the judiciary and civil legal aid.

To learn more about the funding of the Judiciary, civil legal aid, and statewide expansion of the Housing Court, check out our numerous updates on the budget!

Court Nominating Process

Finally, Lon Povich discussed court nominations under the Baker Administration, first noting that 53 judges had been appointed since the Governor took office. Around 33 vacancies remain in other courts, but nine are currently being scheduled for Governor’s Council hearings and six letters of nomination are about to be sent, so there are 18 positions for which nominees have not yet been identified. He called on the Council and the private bar to help in filling these vacancies by encouraging qualified attorneys to apply for these positions. He also highlighted that of the 53 new judges appointed during Governor Baker’s time in office, around 50% are women and around 20% are considered diverse, meaning they are members of racial or ethnic minority groups or members of the LGBTQ community.

In a follow-up question by a member of Council, Povich addressed whether the Governor’s Office would consider making the process to become a judge less arduous, in order to encourage more applications. Interestingly, when Povich previously addressed Council, it was on the heels of an Executive Order reforming the nominating process, which we outline in full here.  To summarize, the applications for judicial and clerk-magistrate positions are first reviewed by the Judicial Nominating Commission (JNC), a 21-member, statewide, non-partisan, non-compensated body currently chaired by former BBA president Paul Dacier and vice-chaired by former BBA Council member Roberto Braceras. Then, the Commissioner’s interview approved candidates and at least ½ of the Commissioners casting a vote amongst a quorum must agree to continue the application of the potential nominee. Following a period of thorough research and evaluation, a two-thirds vote is required for the JNC to forward an applicant’s name to the Governor’s Office to be considered for nomination. Typically, the JNC forwards between 3 and 6 potential nominees to the Governor’s Chief Legal Counsel, who then seeks input from the Joint Bar Committee (JBC). The JBC determines whether a candidate is well qualified, qualified, not qualified or there is insufficient information to evaluate the candidate. The JBC communicates its vote to the Governor’s office, and the Governor can nominate the applicant, deny the application, seek further commendation from the JNC, or re-open the application process.

In response to the question on whether the process could be simplified in order to encourage more applications, Povich responded by saying that he served on the JNC in both the Romney and Patrick administration who followed the same JNC process and that he believes the current three-step process is effective in ensuring that only top-quality candidates receive judgeships. Ultimately, he acknowledged the “triathlon” (JNC, Governor’s Office and Governor’s Council) that applicants must go through, but maintained that the work, by the applicants, the JNC, the JBC, and the Governor’s Office is all worth it to get the most qualified nominees.

With his earlier call in mind, if you’ve considered pursuing judgeship, or know someone who would make a great judge, now is the time to apply!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2016-17 Program Year Begins!

Welcome to the new program year!  As Section Steering Committee meetings enter full swing, and the BBA again hums with activity, we wanted to take the opportunity to review some of our public-policy procedures while taking a look back on some highlights of our work from last year.

We are always interested in getting involved with matters of public policy to:

  • Increase access to justice
  • Provide fair and efficient administration of justice; and
  • Enhance the quality and practice of the law

While this sometimes entails the BBA taking a formal position in support or opposition of a bill, policy, or rule, more often than not we take a more nuanced stance.  Be it through amicus briefs, comments to the courts, or work on legislation, the BBA strives to represent reasoned positions of legal experts and to offer a unique perspective.  Sometimes that means we present conflicting views together, and we are comfortable with that.

For example, in April, BBA Council approved submission of comments from the Association and a number of Sections to the Trial Court Committee on Public Access to Court Records regarding the Proposed Uniform Rules on Public Access.  We have documented our involvement with this issue a number of times here on the blog.  In brief, we have been involved with this issue for over a year, and called together a special working group to scrutinize the proposed rule over a three month period early this year.  What may have been lost in the shuffle is that our comments reflect the existing oppositional views of the bar.  While practitioners in some areas had specific concerns, the major divide was between those wanting broad online access and those focused more on the privacy concerns that elicits.  We strove to adequately present both views to the courts for their consideration in drafting the rule and were pleased with the results, as the final rules appear to contain a number of amendments based on our suggestions.

In our policy work, one of the biggest consistent challenges we face is timing.  Our policy procedures have at times generated frustration, because it can sometimes take months for us to reach an official position.  We believe, however, that a process allowing us to get input from all our interested Sections, and to register viewpoints that may not initially have been apparent, helps us come to the best outcome.  This is especially important because one of our hallmarks is to stand by our positions, often for decades.  Therefore, we urge you to bring your policy or amicus requests to us with as much time as possible – it makes the process better for everyone.  However, that’s not to say we can’t speed things up when our voice is needed…

In mid-October, when we learned of Recinos v. Escobar, we knew it was a case that aligned with our principles, and that we had something to add to the discussion.  The case was taken up sua sponte by the SJC in expedited fashion to address the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

Since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there was a very small class of young people that would otherwise qualify for SIJ status, but could be barred from doing so since the Probate and Family Court would not make a finding because they were aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but that was not uniform and judges had no guidance on the matter.

We activated our Amicus Committee to promptly review the case and were able to get their affirmative recommendation and approval from BBA Council within a week to add our voice to the amicus brief just in time for the November 4 filing deadline.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argued that the Probate and Family Court had equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argued that the pathway to permanent legal residency for immigrant youths required the state courts to play an essential role and that the Probate and Family Court had equity jurisdiction over these cases.  First, it argued that the Court’s equity jurisdiction was not limited by statute and made the case that the Massachusetts Declaration of Rights supported this sort of equitable remedy.  The brief further argued that children who have been abused, abandoned, or neglected were dependent on the court to make such a finding since they had been mistreated and because such a finding was required to qualify for SIJ status.

On November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court had equity jurisdiction to decide the case – and remanding to that court for further proceedings on an expedited basis, so that the appellant could have time to apply for SIJ status before her 21st birthday.  Four months later, the SJC released its full opinion, making clear that the Probate and Family Court has equity jurisdiction over youths between the ages of 18 and 21 for the purpose of making the necessary SIJ findings.

In addition to signing onto amicus briefs, we sometimes draft our own.  Two such cases that we’re especially proud of from this past year are Fisher v. Univ. of Texas (supporting affirmative action in higher education) and Comm. v. Wade (defending attorney-client privilege and access to post-conviction forensic testing). Of course, this requires even more time and work on our part.  Which brings us to…

Finally, we urge you to be flexible.  Especially when working with the Legislature, we only have so much control over the process and outcome.  We will do our best to streamline things as much as possible, but sometimes this means long waits to testify or last minute changes to legislation.  Or both, as was the case with our zoning reform bill, H3611, An Act relative to non-conforming structures.  We were very pleased when the Governor signed the bill into law on August 5, but that was only the final step in a long history.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with it) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

But we could not have achieved this success without the devoted efforts of last year’s Section Co-Chairs, Hannah Kilson and Matthew Lawlor, along with Council member (and former Section Co-Chair) Michael Fee.  After the Real Estate Section Steering Committee reviewed the bill and decided to refile it around this time in 2014, we waited until mid-May 2015 for a Judiciary Committee hearing, at which Mike Fee testified.  In June 2015, the bill was reported out of the Judiciary Committee and referred to the House Committee on Ways and Means and shortly thereafter reported to the floor of the House, where it passed 151-0 before being delivered to the Senate Committee on Ways and Means.  There, the bill underwent further review and over the course of a number of emails, phone calls, and meetings, BBA staff and Mike Fee heard legislators’ concerns and worked with them to craft amendments in order to win the support of the full Senate for final approval.  On May 5, the bill was debated and amended on the floor of the Senate and ultimately passed unanimously.  From there it was back to the House, which in late July concurred in the Senate amendment, finally being laid before the Governor on July 26, 2016.  Ten days later it was enacted – with a few tweaks and 20-plus years after initial endorsement by the BBA.  It was a long road, but well worth it.

Hopefully this has given you a bit of a window into the work we do and how it happens.  Patience, flexibility, and nuance are all key aspects of successful policy development at the BBA.  With that, welcome back one and all – we hope to be seeing you around the BBA and look forward to working with you on policy issues!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

On July 8, the Governor signed the budget amid news that the Commonwealth faces a nearly $1 billion budget deficit.  Despite vetoing $256 million from the Legislature’s conference committee budget (H4450), the Governor maintained a $1 million increase for civil legal aid funding and highlighted the increase in his budget message.

From here, the budget returns to the Legislature, which can override the Governor’s vetoes with a two-thirds vote in each branch.  The House votes first, followed by the Senate. Here is a breakdown of where things currently stand (updated to reflect the Governor’s final budget):

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000

We are thrilled that the Governor included an extra $1 million in funding for legal services over last year’s figure.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from legislators to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055

It is unfortunate that this number was not higher, but we nevertheless appreciate that this funding amount is a slight increase over last year’s appropriation of $631.5 million.  In order for the courts to continue to provide the highest level of justice for the people of Massachusetts, they need adequate funding.  Underfunding of the courts will present a number of challenges, from infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not.  We hope this measure will resurface at a later stage in this year’s session, even if only in the form of legislative language authorizing the expansion (but with no money attached).

We look forward to keeping you updated on the latest budget developments and, as always, urge you to make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the Benefits of Judicial Diversity

judicial diversity pic 1

BBA Civil Rights and Civil Liberties Section Co-Chair Rahsaan Hall moderating the panel discussion.

On June 27, we were pleased to host another important discussion at the BBA, this one on The Benefits of Judicial Diversity.  It featured a panel of esteemed individuals including:

  • Roderick L. Ireland, Chief Justice (Ret.) of the Supreme Judicial Court and Distinguished Professor, School of Criminology and Criminal Justice, Northeastern University
  • Angela M. Ordoñez, Chief Justice of the Massachusetts Probate and Family Court
  • Andrea C. Kramer, former Chief of the Civil Rights Division, Massachusetts Attorney General’s Office
  • Lon F. Povich, Chief Legal Counsel, Office of the Governor of Massachusetts

The panel was moderated by Rahsaan D. Hall, of the ACLU and Co-Chair of the BBA’s Civil Rights and Civil Liberties Section.

While the idea of judicial diversity is widely lauded, it is important to consider the factual reasons and underlying statistical support for its importance.  Judicial diversity is absolutely necessary for two major reasons – 1) it serves as a descriptive or symbolic representation of society at large, increasing public confidence in the judiciary; and 2) it serves as substantive representation, whereby a judiciary with more diverse judges assures diversity in perspective, experience, and empathy, potentially leading to more fair outcomes.  Related to this latter point, implicit bias, the idea that judges (and everyone else, for that matter) experience subtle cognitive processes that result in biases in judgment or behavior, has been a hot topic recently.  While the courts are taking steps, including trainings and a bench card with strategies for judges to recognize and overcome these biases as much as they can be eliminated, the argument goes that on a more diverse bench, the competing implicit biases will cancel each other out in order to achieve systemic fairness.

Statistics clearly show the importance of diversity on the bench, especially in certain areas of law.  For example, employment discrimination cases with an African American judge are more than two times more likely to result in a finding of racial harassment than those with only white judges.

judicial diversity slide 1

Similarly, in voting rights cases, having an African American judge on the panel increases the likelihood of finding a civil rights violation by 18%.

judicial diversity slide 2

For affirmative action cases before the U.S. Courts of Appeals, the panel is almost twice as likely to vote in favor of affirmative action if it contains at least one African-American judge.

jud diversity slide - appeals court affirmative action cases

In criminal sentencing, the greater the percentage of female judges on a district’s bench, the smaller the gender disparity.  Perhaps this can be explained because female judges are more likely than their male counterparts to see women as able to commit crimes.  In cases on LGBTQ rights, women are more than 20% more likely to find a constitutional violation.

judicial diversity slide 4

Chief Justice Ireland gave an example from his time as a Juvenile Court judge when diversity played a role in providing perspective.  He explained that he regularly made custody decisions and felt that his upbringing may have made him more tolerant.  When a social worker would suggest that a child should be removed from a home that was in relative disrepair or had cockroaches, he explained, an individual from a middle class background might see the situation as abhorrent and meriting removal.  However, Chief Justice Ireland felt that he could sympathize with the lower-income parents who were doing their best in a challenging situation and might be more open to their retention of custody if he felt it was in the child’s best interest.

Judges also face bias.  In a set of 2014 studies completed by Massachusetts General Hospital psychologists and Harvard University professors, 10 years of anonymous judicial evaluations by attorneys demonstrated that black judges are rated far more negatively than their white counterparts.  They concluded, “the general theme that emerged [from focus groups] was the idea that persons of color do not match the expectations of what a judge should look like, and therefore confront more doubt, mistrust, and interpersonal tensions than do non-minority judges.”

Chief Justice Ordoñez explained that though she has gone through four phases of judicial evaluations, the one she remembers most vividly came from early in her career and accused her of being a judge only because of her minority status.  She said it made her feel horrible and was scarring.  She has since worked hard to become part of the solution, working to reform the evaluation questions and process to best and holistically measure the attributes and improvement needs of judges.  Andrea Kramer stressed that the issue is not about diversity versus competency – there are of course many competent judges and candidates across all categories, and with more diverse judges, there will likely be fewer evaluations based solely on negative perceptions of a judge’s background.

While Massachusetts ranks 11th nationally on a 2016 judicial diversity study conducted by the American Constitution Society, it still has a long way to go.  Currently, 56% of state court judges are white men, 30% are white women, 7% are men of color, and 7% are women of color.  Compare this with the state’s general population, comprised of 36% white men, 38% white women, 12% men of color and 13% women of color.  Still, as is often the case, Massachusetts is outpacing most other states.  Nationally only 30% of state judges are women (37% in MA) and the percentage difference between judicial representation and general population representation for individuals of color is 18% (compared with 11% in Massachusetts).

So what can we do to improve the status quo?  Governor’s Chief Legal Counsel Lon Povich spoke at the event (as he and we have before) about his office’s need for top candidates to  pursue judgeships.  It’s a simple message – the only way to have great and diverse judges is for great and diverse lawyers to apply.  Povich and the Governor have done their part by assembling a diverse Judicial Nominating Commission (likely the most diverse ever) to consider applicants, and by continuing to appoint diverse candidates – of the 17 judges appointed by Governor Baker so far, twelve are women, two are African American, and three self-identified as LGBTQ.  Now it’s up to the bar to apply for future openings.

Chief Justices Ireland and Ordoñez both spoke about their experiences with this process.  Ireland stressed that it was only a job application and urged applicants to keep trying until they get the job, without getting discouraged if at first they do not succeed.  He talked about not making it to the bench on his first application to the Boston Municipal Court and about later applying to the SJC three times before being selected to the state’s highest court, where he was eventually appointed Chief Justice.  Chief Justice Ordoñez and Andrea Kramer noted that organizations like the Women’s Bar Association help candidates with the application process and with mock interviews.

As always, we will do our best to keep you updated on the judicial application and review process.  We hope that diverse candidates will continue to apply so that the judiciary can increasingly reflect the diversity of the society that it serves.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

SJC Overhaul

Gov Baker SJC Nominees

It’s been quite a week, with major implications for justice in the Commonwealth for years to come, as the Governor announced his three nominees for upcoming Supreme Judicial Court (SJC) vacancies on Tuesday.  The SJC is not only the highest appellate court in the state, issuing approximately 200 full bench written decisions and 600 single justice decisions annually, but its justices are also responsible for the “general superintendence” of the judiciary and the bar.  This function includes making, revising, and approving rules for the operations of the courts and providing advisory opinions to other branches of government.  For example, over the past few months, the BBA has taken part in commenting on proposed revisions to civil procedures for various court departments aimed at improving the cost-effectiveness of litigation.  This overhaul originated with the SJC and final revisions will be approved by an SJC led committee before being codified.  It is all but impossible to overstate the huge role this court plays for justice and legal practice in Massachusetts.

What is Changing?

Therefore, it is truly remarkable that this Court will be going through such a major change in its makeup in so short a time.  With five of the seven justices leaving by the end of next year, the first three replacements are only part of the picture.  The justices leaving before the court’s next session in September are Robert Cordy, Francis X. Spina and Fernande R.V. Duffly.

  • Robert Cordy – In February, Justice Cordy announced his early retirement (at age 66, four years short of the mandatory retirement age). He was appointed to the SJC by Governor Paul Cellucci in 2001.  Justice Cordy graduated from Harvard Law School and started his legal career with the Massachusetts Public Defenders Office.  He then worked for the Department of Revenue, the State Ethics Commission, as a Federal Prosecutor in the US Attorney’s Office in Massachusetts, as a partner at the law firm Burns & Levinson, and as Chief Legal Counsel to Governor William Weld.  Prior to his appointment to the SJC in 2001 by Governor Paul Cellucci, Cordy was Managing Partner in the Boston office of the international law firm of McDermott, Will & Emery.  He has served as Chair of the SJC Rules Committee and in leadership roles in a number of other court committees, including those focused on media and capital planning.  He has not yet announced his plans after stepping down from the state’s highest court.
  • Fernande Duffly – will retire on July 12, at the age of 67, a move she explained is to help her husband recover from a recent surgery. A native of Indonesia and a graduate of Harvard Law School, Justice Duffly started her legal career at a Boston law firm then known as Warner and Stackpole.  She served on the Probate and Family Court from 1992-2000, the Appeals Court from 2000 to 2011, and was appointed to the SJC in 2011 by Governor Deval Patrick, becoming the first Asian American member of that court.  Throughout her career she has demonstrated a commitment to supporting women and diversity in the law.
  • Francis Spina – From Pittsfield, Justice Spina graduated from Boston College Law School before working in legal services for two years. He eventually became an assistant district attorney before becoming a partner in a Pittsfield law firm.  He was appointed to the Superior Court in 1993, then to the Appeals Court in 1997, and to the SJC in 1999 by Governor Paul Cellucci.  He will reach the mandatory retirement age of 70 on November 13, 2016, but is stepping down on August 12.

Of the seven current SJC Justices, Spina and Cordy are the only two who were nominated to the SJC by Republicans (both by Paul Cellucci).  Obviously that is going to change soon as Republican Governor Charlie Baker starts to shape the court.  His three nominees to fill these spots are all former prosecutors and current Superior Court judges, Kimberly S. Budd, Frank M. Gaziano, and David A. Lowy.

  • Kimberly Budd – A resident of Newton and graduate of Harvard Law School, Budd began her legal career with the Boston law firm Mintz Levin. She then became an Assistant U.S. Attorney before serving as University Attorney for Harvard and later as Director of the Community Values program at Harvard Business School before her appointment to the Superior Court in 2009 by Governor Deval Patrick.  She served as a member of the BBA’s Education Committee from 2006 to 2007 and Council from 2003 to 2005 prior to her appointment to the bench.  After becoming a judge, she served on the Boston Bar Journal Board of Editors from 2012 to 2014.  Budd will be the second black female justice on the SJC after the 2014 appointment of Justice Geraldine Hines.
  • Frank Gaziano – Graduate of Suffolk University Law School, he started his legal career at the Boston law firm of Foley, Hoag & Eliot (now Foley Hoag). He also worked as a prosecutor in the Plymouth County District Attorney’s office and the U.S Attorney’s office.  Gaziano was appointed to the Superior Court in 2004 by Governor Mitt Romney.  He served on the Boston Bar Journal Board of Editors in 2011 and 2012.
  • David Lowy – A resident of Marblehead, and graduate of Boston University School of Law, David Lowy has served as a judge since 1997, first in District Court and then, since 2001, in Essex Superior Court. Prior to his appointment to the bench he worked as an associate at the Boston office of the law firm Goodwin, Procter & Hoar (now Goodwin Procter) and as an assistant district attorney.  He also worked as Deputy Legal Counsel to Governor William Weld from 1992 to 1995, under whom Governor Baker also served as a cabinet secretary.

The Process

These three nominees emerged thanks to the hard work of a special 12-member Supreme Judicial Court Nominating Commission (Special JNC) established by the Governor in February to assist the current Judicial Nominating Commission (JNC) in vetting all of the SJC applicants and nominees.  BBA President Lisa Arrowood is a member of this panel along with a number of former BBA leaders.  The Special JNC is co-chaired the Governor’s Chief Legal Counsel Lon Povich and former BBA President Paul Dacier, who is also chair of the JNC and executive vice president and general counsel of EMC Corporation.  The other members include:

  • Former SJC Chief Justice Roderick Ireland;
  • Roberto Braceras, Vice-Chair, JNC, and Partner, Goodwin Procter LLP;
  • Brackett Denniston, retired General Counsel of GE;
  • Retired Superior Court Justice Margaret Hinkle;
  • Marsha Kazarosian, immediate Past President, Massachusetts Bar Association, and partner, Kazarosian Costello;
  • Joan Lukey, Partner, Choate Hall & Stewart, LLP;
  • Elizabeth Lunt, Of Counsel, Zalkind Duncan & Bernstein;
  • John Pucci, Partner, Bulkley, Richardson and Gelinas, LLP; and
  • Carol Vittorioso, Vice-Chair, JNC, Partner, Vittorioso & Taylor.

We have explained the JNC before, but, to briefly review, the JNC is a group of diverse individuals appointed by the Governor (the regular JNC has 21 members, while the Special JNC has 12), with great knowledge and experience with the court system.  Members of the bar must have at least seven years of practice experience.  The JNC provides a first layer of review for judicial nominees – identifying and inviting applications by qualified individuals, reviewing applications, and interviewing candidates.  The group conducts votes requiring an increasing number of approving Commissioners at various steps of the process, narrowing down the list of individuals until a final vote requiring a 2/3 majority is conducted to see which applicants’ names will be submitted to the Governor for consideration for nomination.  They typically provide between three and six candidates for each vacancy.  The Governor’s Office then selects its candidates, here, Budd, Gaziano, and Lowy.

What’s Next?

The next step is approval by the Governor’s Council, a group of eight individuals elected every two years and the Lieutenant Governor, who serves ex-officio as president of the Council.  The Councilors review the nominee’s backgrounds, interview them, and hold open hearings where their supporters and opponents have the chance to speak.  The three candidates have already been approved by past iterations of the Council as they are all currently on the bench, but nothing can be taken for granted.

In fact, the process is already garnering media attention as the Council has taken issue with Lt. Gov. Karyn Polito’s plan to preside over the confirmation hearings.  Councilors typically preside over confirmation hearings for lower court judges, but it has been common practice in recent years for the lieutenant governor to preside over hearings for SJC nominees.  However, Councilors challenged Polito, alleging that her presence at the upcoming confirmation hearings will be an unfair publicity grab and was disrespectful to the Council members.  Polito cited historical precedent for her intended role.

The schedule for nominee hearings is set and we look forward to keeping you updated on their progress.  The hearings are all at 9:00 am in Room 428 of the State House as follows:

  • July 6: Judge Frank Gaziano
  • July 20: Judge David Lowy
  • August 3: Judge Kimberly Budd

Finally, keep in mind that this is only the beginning.  The SJC overhaul continues next year as Justices Margot Botsford and Geraldine Hines will both reach mandatory retirement age, Botsford in March and Hines in October.  While we don’t know who will come to the fore as nominees then, a couple of qualifications to look for include:

  • A resident of western Massachusetts – Francis Spina, the only Justice from this region, hails from Pittsfield, and is retiring this year. Nominee Kimberly Budd is the daughter of former U.S. Attorney Wayne Budd, a native of Springfield, but she grew up in Peabody and lives in Newton.  When asked about geographical diversity at his press conference to introduce the nominees, the Governor urged patience.
  • A judge from the Appeals Court – Governor’s Councilor Eileen Duff questioned, as did the Boston Herald, why none of the current nominees came from this court, experience she felt would prepare them well for the SJC.

Throughout this process, the Governor has frequently repeated that he is simply looking for the best candidates.  He and his office continue to encourage strong candidates to apply and are committed to continuing the remarkable traditions of the SJC.  However, the maintenance of a great and diverse bench relies on a great and diverse candidate pool.  The Governor has done his part by creating a remarkably diverse JNC and Special JNC under all metrics from geography to demographics to practice field and size.  It is up to candidates now to apply.  We look forward to seeing what the state’s highest court looks like at the end of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Focused on the Budget – BBA Update

In addition to yesterday’s budget member alert, we have been busy with advocacy of our own.  At the same time we asked you to contact your Representatives, we sent a letter to Speaker of the House Robert DeLeo, explaining the need for adequate funding for the three issues described above.  We have also been meeting with state and national leaders to discuss our budget priorities.

State Representative Meetings

Earlier this week, former BBA President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, met with Speaker Pro Tempore Patricia Haddad’s office and Assistant Majority Leader Byron Rushing.  More meetings are scheduled in the coming weeks.  Smeallie has spent the last 18 months educating legislators on the findings of the Task Force’s Investing in Justice Report and is devoted to raising awareness of the need for increased legal aid funding.  Through surveys of civil legal aid agencies, the Task Force found that 64% of those eligible for legal aid, at 125% of the federal poverty level, are turned away annually due to lack of resources.  This lack of resources is due in-part to the nearly $30 million decrease in IOLTA funding over the last decade due to fewer deals and plummeting interest rates (more on this below).

This drop in funding caused legal aid organizations to lay-off attorneys and support staff, resulting in an increased number of pro se litigants navigating the courts.  Unrepresented litigants cause delays, take up the time and efforts of judges and court staff, and often struggle to access justice, as demonstrated in a survey of judges conducted by the Task Force.  Finally, the Report demonstrates that investment in civil legal aid yields positive returns, helping the state to save on back end costs such as shelter, police, and medical expenses, as well as bring money into the state through federal benefits.  The Report demonstrate that every $1 invested in civil legal aid serving evictions, domestic violence, and federal benefits, yields $2-$5 dollars in returns to the state.

Congressional Delegation Meetings

At the same time, BBA President-Elect Carol Starkey, Vice President Mark Smith, and Director of Government Relations and Public Affairs, Mike Avitzur, have spent the last two days in Washington, DC, at ABA Day with their counterparts from the MBA.

sen warren pic

From Left to Right: MBA President Bob Harnais, MBA President-Elect Jeffrey Catalano, Senator Elizabeth Warren, BBA President-Elect Carol Starkey, BBA Vice President Mark Smith

In addition to discussing mass incarceration issues and opposition to accrual accounting for law firms, our delegation is advocating for increased funding for the Legal Services Corporation (LSC), the federally funded non-profit corporation the promotes equal access to justice and provide grants for high-quality civil legal assistance for low-income Americans.  LSC provided four legal aid programs in Massachusetts with just over $5 million in FY2016.  In recent years, similar funding has yielded roughly 11,000 to 13,000 cases closed annually.  Stay tuned for a longer write-up on our ABA Day meetings on this blog next week.

Council Meeting

On Tuesday, we heard from MAIOLTA Director Jayne Tyrrell who spoke to the BBA Council about ways lawyers and law firms can maximize their IOLTA contributions, which in turn benefit civil legal aid organizations.  As noted above, IOLTA is one of the largest funders of civil legal aid, but due to historically low interest rates, its funding amounts have decreased dramatically.  While federal interest rates remain low, banks vary in their individual offerings, thus it matters where lawyers and law firms do their banking.  In Massachusetts, more than 40 banks have signed-on as Leadership Banks, agreeing to pay a minimum of 1% interest on IOLTA accounts.  Here is the full list.  Tyrrell encouraged all lawyers and law firms to consider banking with one of the listed banks for the benefits their interest rates will provide for civil legal aid.

At the same meeting, we heard from Governor’s Chief Legal Counsel, Lon Povich.  He spoke on the budget as well, noting that both the Governor’s proposed budget and the budget issued by the House Ways & Means Committee contain no new taxes or fees.  The Governor’s FY17 budget proposal contained a 1% increase for civil legal aid and the courts, in addition to $1 million and enacting language for statewide expansion of the Housing Court.  While the House Ways & Means budget proposal included slightly larger increases for the Trial Court and MLAC, it did not include language or funding for Housing Court expansion.

Povich also discussed the work of the Massachusetts Criminal Justice Review undertaken by the Council of State Governments, and under the sponsorship of the Governor, Chief Justice of the SJC, Senate President and Speaker of the House, as well as the process  to fill vacancies on the SJC and other courts.  Both are still ongoing and we look forward to their forthcoming results.

The budget process continues through June, and we will continue to advocate for adequate funding for our priority issues and hope that you will as well – starting with contacting your Representative as explained above.  We will keep you updated on how the budget progresses and will likely be reaching out at other key points to request your help again.  Thank you in advance!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Funding Justice: BBA FY17 Budget Advocacy

On Wednesday, the Legislature took the second major step in the FY2017 budget process, releasing the House Ways and Means budget recommendation, roughly 2.5 months after the January 27 release of the Governor’s budget recommendation.  The BBA has been advocating for adequate funding for the judiciary through the Trial Court line items, civil legal aid through the Massachusetts Legal Assistance Corporation (MLAC) line-item, and statewide expansion of the Housing Court.  We sent a letter to Brian Dempsey, Chair of the House Ways and Means Committee detailing the funding needs in these areas.

Here is where things currently stand as to each of these BBA budget priorities:

MLAC

Funding for civil legal services has never been more crucial, in large part because legal aid helps address many of the most pressing social issues facing the Commonwealth today.  Every day, legal aid helps prevent unjust foreclosures and evictions, protect victims of domestic violence, and assure access to essential care and services, including life-saving treatments to combat addiction.  And that is only a small piece of what they do.  They provide advice and representation in many and diverse legal areas, including helping set up small businesses and organizing mentoring nonprofits.

However, because of their outstanding reputation and the overwhelming need for legal aid, MLAC agencies had to turn down 64% of the qualified clients seeking their services in 2013 according to the findings of the BBA’s Investing in Justice Task Force Report.  And that was only the people who actually got through the long wait times to have their issues considered.  As a result, the courts have to bear the weight of pro se litigants who often do not understand court procedures, bogging down the justice system and creating added work for already overburdened judges and court staff.  Most importantly, it also often leads to an unjust outcome, particularly where one side has representation and the other does not.  In a recent survey of judges, more than 60% responded that the influx of pro se litigants hindered the fair administration of justice.

Here is a breakdown of MLAC funding:

FY16 Final Budget Amount $17,000,000
FY17 MLAC Request $27,000,000
FY17 Governor’s Budget $17,170,000
FY17 House Ways & Means $18,000,000
FY17 House Final House budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Representative Ruth Balser will be filing an amendment requesting an additional $9 million in MLAC funding.  We hope that you will call your Representative or email them directly and ask them to support her amendment (Don’t know your legislator?  Look them up here), not only for the great work legal services agencies provide, but also because they can essentially pay for themselves.  Investing in Justice demonstrates that in the areas of evictions, domestic violence, and federal benefits every dollar invested in legal aid returns $2 to $5 to the state.  Be sure to thank them for the House’s generous $2 million funding increase last year!  Legal aid is already putting that investment to good use, to handle an additional 1,230 cases, benefitting some 3,295 residents.  With $10 million more this year, they can expand their reach to more than 16,000 additional people.

Trial Court

The Trial Court is comprised of seven departments which handle nearly all of the cases in the Commonwealth and represent the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved.  Thus it is essential that courts are adequately funded.  The Trial Court provides an annual budget breakdown wherein it asks for a maintenance funding amount, which is what is required to continue providing current services, and a host of modules for the budget-makers to consider with additional funding.  This year’s maintenance budget request is around $654 million, and the nine modules range in price from $785,000 to $10 million.

In the budget, the Trial Court is represented by 15 line items.  It received a generous increase of nearly $20 million in last year’s budget, but the judiciary is still underfunded.  The courts have made great strides toward modernizing and enhancing efficiencies under the new management structure put in place by the Legislature, as evinced by their request for maintenance funding of only 6,520 staff positions, a 17% reduction in staffing levels since FY02.  Furthermore, in the last eight years, while the state budget has increased 43.3% overall, funding for the Trial Court, a major piece of the third co-equal branch of government, has increased by only 7.9%.

However, the Trial Court still has a major need for increased funding in order to continue improving.  For example, the installation of new technologies, which can ultimately save on staffing and overhead costs, requires large up-front investments.   In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems, to preserve the safety of court employees, users, and the general public — a $4.1 million module.  Furthermore, innovations such as the successful Specialty Courts, a $2.8 million module, increase access to justice for vulnerable populations, but need adequate staffing and funding to thrive and expand, so that all residents who can benefit from participation in the Specialty Courts have access to them.

As shown in the table below, the Governor’s budget included roughly a $7 million increase over last year’s funding level, but is still $17 million below the Trial Court’s maintenance funding needs.  Funding at this level would result in layoffs of approximately 300 Trial Court employees according to a statement from SJC Chief Justice Ralph Gants.  The House Ways and Means budget matched that amount but also included the Specialty Courts module.

FY16 Final Budget Amount $631,500,000
FY17 Maintenance Budget Request $654,374,856
FY17 Governor’s Budget $638,606,000
FY17 House Ways & Means $639,900,000 (includes Specialty Courts module)
FY17 House Final House budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Housing Court

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court is a special court session conducted by experienced and expert judges.  They operate out of already existing court houses, providing landlords and tenants with a special legal forum to resolve disputes, as well as code enforcement, mortgage fraud, and numerous complex housing matters.

Housing Court was first established in 1972 for the City of Boston.   Since then, it has gradually expanded through the advocacy work of local constituencies to its current makeup, consisting of five divisions covering approximately 80% of the state geographically – but only about two-thirds of the population.  Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis.  Its judges have the expertise to analyze the federal, state, local laws, and codes on housing.

Housing Court is also the only forum to use Housing Specialists, individuals who mediate cases, saving potential litigants time and money they would otherwise spend to have their case heard in court.  Over half of Housing Court cases were resolved in this way last year.  Specialists also perform on-site reviews of property to resolve issues concerning housing conditions.  In part because of these services, Housing Court is extremely efficient, featuring the lowest cost per case of any Trial Court department.

Finally, Housing Court is adept at serving pro se litigants and individuals facing evictions.  It is home to the Tenancy Preservation Program (TPP), a counseling service designed to intervene in cases affecting individuals with physical and/or mental disabilities to help prevent homelessness, as well as volunteer lawyer-for-the-day and other self-help forums.

Despite all these benefits, nearly one-third of Massachusetts residents do not have access to a housing court.  Currently, there is no Housing Court for all of Barnstable, Dukes and Nantucket Counties, most of Norfolk County, and a large portion of Middlesex County.  These areas include cities such as Chelsea, Framingham, Malden, Cambridge, Medford, Somerville, Watertown, Woburn, and Waltham, which have some of the highest number of rental units.  As a result, any housing or code enforcement issues in these counties are heard in District Court, where judges may not have any special housing expertise and housing cases are simply a drop in the bucket of a high volume caseload.  One consequence we’ve heard is that municipalities not covered by the Housing Court sometimes don’t even bring code-enforcement actions to District Court, because they know the inevitable delays make it not worth the effort.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget included $1 million for Specialty Court, enough to get it started and start phasing it in to the areas not currently covered.  Unfortunately, the House Ways and Means Budget did not, potentially stifling this much-needed measure.  As a result, Representative Chris Walsh will file an amendment on April 15 to include $1.2 million and the authorization for statewide housing court in the House budget.  We hope that you will call your Representative and ask them to support his amendment (Don’t know your legislator?  Look them up here).

Estimated Cost $2,400,000
FY17 Governor’s Budget $1,000,000 (to cover the first 6 months)
FY17 House Ways & Means $0
FY17 House Final House budget debate will take place during the week of 4/25
FY17 Senate Ways & Means

Forthcoming

FY17 Senate Final
FY17 Conference Committee
FY17 Final Budget Amount

 

Please keep an eye out for a budget alert next week.  We hope that you will take the time to contact your legislators and run through some talking points with them on why this funding is important.  Below are some quick bullet points for you to raise:

MLAC – Line Item 0321-1600

  • Seeking $10 million, for a total of $27 million. The House Ways & Means budget included a $1 million increase.  Representative Ruth Balser is filing an amendment to secure the additional $9 million.  Please support her amendment!
  • Provides civil legal aid for indigent individuals for essential life services such as eviction prevention and protection from domestic abuse
  • 64% of qualifying individuals are turned away annually – more than 54,000 individuals
  • Pro se litigants place a burden on the courts and struggle to access justice
  • Civil legal aid is a good investment, providing a positive return on investment by saving the state in areas such as shelter and medical costs.

Trial Court (15 Line Items)

  • Seeking $654 million, $17 million more than included in the House Ways & Means budget. If funding remains at the current proposed level, the Trial Court will have to lay off 300 essential staffers.
  • Despite being chronically underfunded — in the last eight years, while the state budget has increased by 43.3%, funding for the Trial Court has only increased by 7.9% — the courts have made great strides in efficiency. Today they operate at full capacity with 17% fewer employees than in FY02.
  • Lack of funding will stifle innovations and potentially endanger court users. As demonstrated by the module requests, the courts deserve increased funding for programs such as overhauling outdated security systems and expanding the groundbreaking Specialty Court sessions, which provide support and treatment for the issues underlying criminal behavior and have produced great results in reducing recidivism.

Statewide Housing Court Expansion – Line Item 0036-0003

  • Requires $2.4 million to operate yearly, but could ramp up to full capacity with the $1 million proposed by the Governor. Unfortunately, the House Ways & Means budget includes no funding for this initiative.
  • Nearly two-thirds of residents are deprived of this resource. Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis with specialized judges, housing specialists who mediate cases to avoid costly trials, and the Tenancy Preservation Program, providing counseling and intervention for individuals with physical and mental disabilities to prevent homelessness.

Thank you for your help and we hope you will check in again as we continue to keep you updated no the latest budget developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.

AM1

The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.

AM2

Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.

AM3

We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”

AM4

Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.

AM5

The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association