Posts Categorized: Housing Court

BBA Testimony at Judiciary Committee Hearings

We’ve recently reported on our testimony in support of H.2645 (tax basis for certain decedents’ beneficiaries), at the Joint Committee of the Revenue (which later reported the bill favorably to the House Committee on Ways and Means) and our testimony in support of full RUFADAA language (access to digital assets) before the Joint Committee on the Judiciary.  Lest you think our public hearing participation is limited to Trusts and Estates issues, we’ve also had the opportunity to present testimony on three other legislative items at Judiciary Committee hearings held the past few weeks.

Housing Court Expansion

On Tuesday, May 2, the Judiciary Committee heard from the public on bills related to Court Administration, including legislation that would expand jurisdiction of the Housing Court to the full state, which the BBA supports.  We’ve spoken often in the past on the importance of this expansion, identified this as a budget priority, and even recorded a podcast on the matter.

Two identical bills were before the committee, H.978 sponsored by Representative Chris Walsh, and S. 946, sponsored by Senator Karen E. Spilka. These bills would expand access to the Housing Court, and all its accompanying benefits, to all residents of the Commonwealth, including the close to one-third who currently lack such access.

Interestingly, H.978 and S.946 were two of the most highly testified-upon bills at the hearing. Representatives Paul J. Donato and Jay R. Kaufman, Senator Sal N. DiDomenico, and Chief Justice of the Housing Court Judge Tim F. Sullivan all testified in support of the bills.  In addition to these public officials, the Committee heard testimony from a number of key advocates, including Annette Duke of the Massachusetts Law Reform Institute, Elizabeth Soule, Executive Director of MetroWest Legal Services and Laura Rosi, Director of Housing and Advocacy of Housing Families.

We were lucky enough to have Julia Devanthery, Attorney and Clinical Instructor in Housing Clinic of the Legal Services Center of Harvard Law School and member of the BBA Delivery of Legal Services Section, presenting testimony on behalf of the BBA as part of a panel, alongside Jeff Catalano of Todd & Weld, president of the Massachusetts Bar Association, and James T. Van Buren, Commissioner of the Access to Justice Commission.

Attorney Devanthery offered specific insight from the perspective of her extensive work supervising the Lawyer for the Day Program in Housing Court, which, since 1999, offers advice, mediation, and case litigation for unrepresented tenants and landlords on Eviction Day at the Housing Court.  She spoke to the importance of expanding this service statewide given the complexity of housing cases, the lack of alternative affordable housing options, and the vulnerability of many pro se tenants and landlords.  She also spoke movingly about her experience representing victims of domestic violence, noting that this clientele, which is uniquely vulnerable, is able to have their cases adjudicated by Housing Court in a manner which takes into account abuse, while taking advantage of the specialized legal protections in place to defend survivors and their children.

We’ll keep you updated on the report of the Joint Committee on the Judiciary on H.978 and S.946, and be sure to watch this space for our soon-to-come Senate budget update (Spoiler Alert: Unlike the House Ways and Means Budget proposal, the Senate Ways and Means budget does include funding and authorizing language for Housing Court Expansion).

UCCJEA

Earlier this week, the Committee held its second day of hearings on Probate and Family matters, this time taking up two topics on which the BBA has worked for a number of years. First up, An Act relative to the Uniform Child Custody Justice Enforcement Act (UCCJEA), S.806, filed once again by Senator Cynthia Stone Creem.  As we’ve outlined in the past, enactment of this bill would remedy conflicts that occur under current Massachusetts law when one of the parents of the child moves to another state. Currently, Massachusetts is the only state in the US which has not enacted the UCCJEA!

As it stands now, Massachusetts law cedes jurisdiction over our own custody orders to the home state of the custodial parent and child after six months of their residency in the new venue.  But under the UCCJEA, once a state has exercised jurisdiction over custody, that state retains exclusive jurisdiction as long as a parent, the child, or someone acting as a parent remains in the original issuing state. Overall, adoption of the UCCJEA would help to prevent one parent from forum-shopping by seeking a more favorable outcome in another state and also prevent the problem of dueling lawsuits in different jurisdictions.

A panel with representatives from the BBA, MBA, and the Women’s Bar Association (WBA), all of whom support passage of the bill now that domestic-violence concerns have been addressed with new language in the bill, presented testimony on behalf of the UCCJEA.  Judge Edward Ginsburg spoke on behalf of the BBA, and as usual offered compelling reasons for Massachusetts adoption.  If you’ll recall, Judge Ginsburg has spent nearly twenty years advocating for Massachusetts to change the law.

Stay tuned to find out if this will finally be the year that Massachusetts becomes the 50th state to adopt the UCCJEA!

Shared Parenting

Finally, Jessica Dubin of Lee & Rivers, our Family Law Section co-chair, spoke about a number of bills being heard that would amend Section 31 of Chapter 208 of the Massachusetts General Laws, dealing with child custody and shared parenting.  While the BBA has not specifically endorsed any of the bills pending in the Judiciary Committee, in 2015, the Family Law Section Steering Committee worked hard to develop principles related to shared parenting that would guide the BBA’s analysis of all related legislation. For example, the principles call for the availability of alternative terminology such as “parenting time”, “residential responsibility” and “decision-making responsibility,” in place of the divisive and outdated terms, “visitation” and “custody.”  The principles also offer support for provisions that provide increased guidance on the content to be included in parenting plans and oppose any provision that takes any focus away from the best interests of the child or ties the hands of judges.

Attorney Dubin offered the BBA’s appreciation to the Judiciary Committee for its consideration of the similar legislation last session and its openness to the input of the bar on the pending bills.  She expressed a hope that the BBA would have the same opportunities this session and relayed the current work being done to study Senator Will Brownsberger’s bill, S.775, An Act relative to determining the best interest of children in Probate and Family Court.

As usual, watch this space to find out what happens!

Many more hearings are set to be scheduled for the coming months, and we’ll report back on our continued activity!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

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 Budget Update: House Ways and Means Proposes FY18 Budget

As we’ve reported, BBA advocacy on the Budget for FY18 is now in full gear. This means we’ve been keeping a close watch on all budget-related happenings, and on Monday the House Ways and Means Committee released their $40.3 billion proposed budget for Fiscal Year 2018 (FY18), which begins on July 1.

With this release, members of the House are gearing up for a busy few weeks, as they will file and debate proposed amendments before the final House budget is passed. Then, it’ll be the Senate’s turn to propose, debate, and pass their own version of the budget. After that, a conference committee will attempt to reconcile the differences in the two budgets, and once approved by both chambers of the Legislature, the Governor has ten days to review and sign it. The Governor cannot add additional items but can veto or reduce particular line-items or veto the entire budget. The House and Senate can then, with a two-thirds roll-call vote in each chamber, vote to override any vetoes.

The House Ways and Means Committee proposed budget contains some significant departures from the Governor’s budget, H.1, in the areas that we’ve highlighted as our state funding priorities, including:

MLAC

As the largest provider of funds for state legal-services agencies, the Massachusetts Legal Assistance Corporation (MLAC) is a crucial piece of providing access to justice for Massachusetts residents. The Governor’s proposed budget called for only a 1% increase in the MLAC line-item, leaving the proposed appropriation at $18.18 million. This $180,000 increase is far below the BBA-supported ask of a $5 million increase that would provide for a $23 million MLAC line-item.

The House Ways and Means Budget recommends an increase of $1.5 million for the MLAC line-item to a total of $19.5 million. This moves MLAC a significant step closer to the $5 million request and will allow civil legal aid programs to take on more than 2,000 new cases.

In the words of Executive Director Lonnie Powers, MLAC is “incredibly pleased that the House Ways and Means Committee recognizes the role that civil legal aid funding plays in promoting equal access to justice for low-income residents of the Commonwealth.” Notably, House Ways and Means Committee Chairperson Brian Dempsey specifically mentioned the inclusion of MLAC in his letter explaining the budget, highlighting it as part of the House’s own commitment “to protecting and providing for [the] Commonwealth’s most vulnerable residents.”

We join MLAC in expressing gratitude that the House Ways and Means Committee continues to recognize and value the importance of civil legal aid. As BBA President-Elect Mark Smith, of Laredo & Smith, was able to relay at a legislative briefing last week, and as we have expressed consistently over the past years, civil legal aid is not only necessary to ensure access to justice, it is also a smart investment that offers many economic benefits to the state.

Overall, this is undoubtedly good news for civil legal aid in Massachusetts, but given the shaky position of the federal budget and President Trump’s proposal to zero-out funding for the main federal funder of civil legal aid, the need for more state funding for MLAC is still critical. An increase of $1.5 million is a good start, but even with that, the state will still be forced to turn away the majority of eligible people who need legal assistance.

Fortunately, Representative Ruth Balser filed an amendment (#822) on Thursday to increase the House Ways and Means Committee recommendation by an additional $1.5 million, bringing the total proposed appropriation to $21 million. As the house budget debates begin, it is crucial that your representatives know how important civil legal aid is to you.

You can contact them now, using this easy tool from our partners at the Equal Justice Coalition (EJC), to ask them to co-sponsor the amendment. If you want to reach out in person or on the phone, you can find your representative here, get guidance from these talking points and resources, and listen to the BBA Issue Spot Podcast with chair of the EJC Louis Tompros for a primer on how to talk to your legislator (especially about civil legal aid).

Trial Court

Adequate funding of the Trial Court, another BBA priority, is necessary to ensure the continued efficient and accessible functioning of our judicial system. The Governor’s proposed budget recommended a 1% increase for the Trial Court, for a total appropriation of $646.8 million. Mostly because of an $11.7 million judicial pay increase that passed after the Governor released his budget in January, this now falls below the Trial Court’s revised funding request of $661,368,224 for FY18.

In more good news, the House Ways and Means Committee recommendation specifically provided for these pay raises in full, as the line-item related the payroll costs of the justices in the seven departments of the Trial Court (0330-0101) moved from $58.5 million in the Governor’s recommendation to $70.3 million. By including this increase, the Committee will allow the Trial Court to continue the gains it has made in recent years on working smarter and getting more done with less money and less staff. Ultimately, this will help to ensure that the Trial Court remains effective and accessible for all Massachusetts residents.

Despite this good news, there was one significant Trial Court line-item missing entirely from the House Ways and Means recommendation, which brings us to…

Statewide Expansion of the Housing Court

For the past few years, we’ve been discussing the reasons why statewide expansion of the Housing Court makes sense. Currently, about one-third of the state lacks access to Housing Court and the benefits that come along with it, including the judges’ expertise in all housing matters, the availability of Housing Specialists who can facilitate settlements and help parties avoid expensive litigation costs, and programs like Lawyer for the Day, which assist pro-se litigants and as a result preserve judicial resources and ensure the efficient operation of the Court.

In an important step, the Governor’s budget recommended $1 million for the expansion. After the release of the Governor’s budget Representative Chris Walsh sent a letter, signed onto by 42 other Representatives, to the House Ways and Means Committee, urging them to include the full $1.2 million needed for successful initial expansion in their FY18 budget proposal. Unfortunately, the Committee removed the Housing Court Expansion line-item entirely.

However, the Housing Court Expansion line-item can still be included in the Senate budget, so now is the time to let your Senator know about the importance of allocating $1.2 million for this expansion. Additionally, two bills, one in the House and one in the Senate, have  been filed to advance housing court expansion, so you can urge your legislators to support this legislation to ensure that nearly one-third of the state is no longer excluded from the benefits of the Housing Court. Make sure to check out these resources and tips in our how-to-talk-to-your-legislator podcast!

As outlined above, there is still a ways to go in the budget process, which means there is plenty of time left for the BBA, and all of you as individuals, to advocate for adequate funding to ensure that Massachusetts is able to provide access to justice for all its residents. Keep watching this space for more news on budget developments and how you can get involved!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Budget Advocacy for FY2018

With the House Ways and Means Committee set to release their budget recommendation around April 12, the BBA is ramping up our own budget advocacy, calling for adequate funding for the Massachusetts Legal Assistance Corporation (MLAC) and the Trial Court, including statewide expansion of the Housing Court, and help for the Committee for Public Counsel Services (CPCS) in meeting their constitutional mandate to provide legal representation to the indigent. This week, we’re sending a letter to the Chair of the House Ways and Means Committee, Brian Dempsey, explaining why adequate funding in these areas is necessary.

Below, we offer an update on our budget priorities and share how you can get involved:

MLAC

Funding for MLAC and civil legal aid is as crucial as ever because legal aid directly touches so many of the biggest social issues impacting residents of the Commonwealth today, including homelessness and emergency shelter, immigration, domestic violence, and the opioid crisis. MLAC projections reveal that in 2017, MLAC-funded legal aid programs will receive over 89,500 requests for legal services. And, as indicated by the findings of the Investing in Justice Report by the BBA Statewide Task Force to Expand Civil Legal Aid, providers will be forced to turn away nearly two-thirds of those requests from qualified applicants as a result of a lack of resources.

These projections, of course, do not take into account the recent threats to federal civil legal aid funding. President Trump’s first proposed federal budget calls for the complete elimination of the Legal Services Corporation (LSC) and its $385 million in federal appropriations for civil legal aid. At the state level, this would mean MLAC would lose more than $5 million in federal funding and nearly 26,000 low-income Massachusetts residents would be left without legal assistance. Plus another $4 – $5 million in federal funding for civil legal aid would be lost by other programs, making the total civil legal aid funding lost in Massachusetts close to $10 million. The projected demand of 89,500 cases would likely rise significantly as well if that federal budget were enacted, as other social support services are likewise at risk of losing federal funding.

(You can learn about the federal budget and budget advocacy at the federal level by listening to this Federal Budget Process 101 podcast, and our earlier podcast on the state budget process focused on civil legal aid in particular.)

As we’ve reported many times before, the Investing in Justice Report also found that civil legal aid is a smart investment as it saves the state money on “back-end” costs such as emergency shelter, foster care, and health care. In fact, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

The BBA supports MLAC’s ask for a $5 million increase in funding, for a total of $23 million in the FY18 budget, which would allow MLAC-funded civil legal aid programs to open at least 4,000 new cases, assisting an estimated 10,300 additional low-income clients and their family members. Be sure to check out MLAC’s helpful issue-specific breakdowns on the importance of legal aid in Housing, Employment, Immigration and Domestic Violence cases. We hope that you will join the BBA in supporting civil legal aid by reaching out to your State Senator and Representative to ask them to support MLAC’s budget request. If you don’t know your legislator, look them up here, and if you’re not sure what to say, refer to these handy talking points and keep an ear out for a future Issue Spot Podcast on How to Talk to Your Legislators.

Trial Court

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

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY2016 staffing and a 19% reduction since FY02. Despite these efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years.

As we’ve outlined, the Governor provided for about a 1% across-the-board increase in Trial Court appropriations, for a total of $646.8 million, which was slightly less than the court’s original maintenance budget request of $649.5 million but quite short of the revised request that accounts for the $11.7 million in pay raises that must be implemented as a result of the pay package that passed earlier this year. The Trial Court’s revised funding request for FY18, $661,368,224, would support a number of modules necessary to maintain a well-functioning court system, from IT updates to programs related to Alternative Dispute Resolution and Transition Age Probation. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

Statewide Housing Court

An especially striking example of the Trial Court’s work to improve both access and efficiency is the plan to expand Housing Court jurisdiction to the whole state. As we’ve mentioned in the past, Housing Court offers a number of key benefits, including operating as the only forum in the Commonwealth capable of handling all housing matters, from code enforcement to eviction proceedings, on a daily basis. Housing Court judges are exceedingly well-versed in all aspects of housing law, an area that can be quite complex, and have the specialized expertise to analyze federal, state and local laws on housing. Additionally, parties in the Housing Court have access to Housing Specialists, who mediate cases, facilitate settlements, and even provide on-site reviews to resolve issues with housing conditions. This, and programs like Lawyer for the Day, also make Housing Court especially adept at handling pro se litigants.

Currently, about one-third of the State does not have access to Housing Court, meaning litigants in those areas must take their matters to District Court, where they wait in line behind a full range of civil and criminal cases and eventually appear before judges who hear only an occasional housing matter. Some municipalities outside of Housing Court jurisdiction find that it’s not always worth sending code-enforcement officers into District Court because of the necessary time commitment. Parties also lack access to the Housing Specialists and therefore may miss an opportunity to settle and avoid the need, and expense, of trying the matter in court. In FY16, there were 27,487 eviction cases filed in the Housing Courts and a statewide expansion would allow the Court to increase its eviction caseload by approximately 6,000 cases.

Plus, the Housing Court is a model of efficiency, featuring the lowest cost per case of any Trial Court department. The Housing Court also offers programs like the Tenancy Preservation Program (TPP) – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping in preventing homelessness. Currently, conservative estimates show that the TPP saves the state from spending between $4 million and $8 million in shelter costs annually, and if Housing Court is expanded statewide, the TPP could save the state an additional $1.8 million.

While the $1 million earmarked to cover the expansion in the Governor’s budget is a good start, an allocation of $1.2 million would ensure the successful statewide expansion. Earlier this month, Representative Chris Walsh sent a letter to the House Ways and Means Committee, signed onto by 42 other Representatives, urging them to include the full $1.2 million in the FY18 Budget. In addition, Senator Spilka and Representative Walsh have refiled bills, both referred to the Judiciary Committee, for the Housing Court expansion.

If you want to join the BBA in advocating for the statewide expansion of Housing Court, refer to these resources and reach out to your legislators! Listen up for a future podcast on the Housing Court where we’ll take you behind the scenes with a visit to Lawyer for the Day and a conversation with a Housing Court Judge.

CPCS

As the agency responsible for representing those unable to afford an attorney in all matters where the right to appointed counsel attaches, CPCS plays a huge role in our justice system. The way that their state funding is appropriated adds to that burden, requiring them to seek additional money each year to cover shortfalls.

This year, CPCS is seeking $244 million to provide maintenance-level services in the coming year, plus $14.3 million to cover additional initiatives, with most of that earmarked for much-needed increases in the hourly rates paid to private assigned counsel, which have not been changed in 12 years, and increases to the base salaries of CPCS staff attorneys, as recommended in the recent report of a gubernatorial commission (on which the BBA sat).

We encourage you to contact your elected representatives on Beacon Hill regarding all of these BBA budget priorities. As noted above, we’ll be posting a podcast shortly on How to Talk to Your Legislators.

We’ll be checking in with more budget updates as the process unfolds, and if you need a refresher on the budget process generally, head over to our Geeking Out on the State Budget Podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

Chief Justice Gants Addresses the BBA Council

The Chief Justice of the Massachusetts Supreme Judicial Court (SJC) was once again kind enough to address the BBA Council at its most recent meeting. He spoke on a number of important issues facing Massachusetts, including criminal justice reform, the state budget, and civil legal aid.

From his appointment to the Superior Court two decades ago, to his appointment as Chief Justice of the SJC in 2014, and beyond, Chief Justice Gants has consistently shown his analytical rigor and intellectual scrupulousness. In addition to his unmatched legal analysis, he is well-known for his community outreach, regularly taking the time to address the public about the Massachusetts court system and the real impact it has on individual and community experiences.  Chief Justice Gants also has a long history of offering numerous platforms for discussion and critical insights on many of the causes near and dear to the BBA, including access to justice and pro bono legal services. He was a member of the SJC’s Standing Committee on Pro Bono Legal Services and also served as co-chair of the Massachusetts Access to Justice Commission from 2010 to 2015. The BBA recognized Chief Justice Gants with the Citation of Judicial Excellence in 2012.

At the Council meeting, Chief Justice Gants spoke on:

Immigration Issues

Chief Justice Gants began by thanking BBA President Carol Starkey, and the BBA as a whole for the recent leadership shown in response to current events impacting immigrant communities. He noted that complex issues like these will likely not be going away anytime soon, and he is hoping to see members of bar associations stepping up and remembering why they chose to enter the legal profession in the first place. The Chief Justice also pointed to an instance in Texas where a woman was detained by ICE while filing for a protective order from her allegedly abusive boyfriend, noting that the courts in Massachusetts will be keeping a watchful eye on these issues. He remarked that even though these events may be happening far away, the impacts can still be experienced by Massachusetts residents and Massachusetts courts, potentially creating a chilling effect that discourages victims from pursuing redress. Once again, he noted how important it will be for lawyers, and specifically bar associations, to step up and reach out. Underserved populations need this outreach to ensure they understand the availability of legal assistance and know when and how to access their rights and seek assistance and justice through the courts. For its part, the court system has been sending the message that all are welcome and no one’s status will be questioned.

Criminal Justice Reform

Chief Justice Gants next discussed the Council of State Governments (CSG) report on criminal justice reform, which had been released earlier that morning.  Check out last week’s Issue Spot for our full run-down of the released report and a BBA event with an all-star panel discussing the final recommendations.  Similar to his last speech to the Council where he compared the budget process to a baseball game, Chief Justice Gants employed a sports analogy to describe the report, comparing the CSG process and report to a football game. He stated that the final report and proposed legislation were the equivalent of a first down: it advanced the ball down the field and did not require the team to resort to a punt. However, the CSG process did not produce a touchdown, so there is still more work to be done on criminal justice reform.  Overall, the Chief Justice saw the CSG procedure as a great learning opportunity, especially important as the previous nationwide reluctance to pursue substantial criminal justice system reform is beginning to shift and more and more other states are comprehensively addressing these issues. Finally, he provided that the CSG report and proposed legislation is particularly strong in certain areas, including its findings on wrap-around services and the specific reentry needs of 16 to 24 year olds that work to reduce barriers to housing, employment, and education. On that last point, the court system is developing a pilot project dedicated to those young people.

The Budget

Next, the Chief Justice addressed budget issues, beginning with a discussion of Governor Charlie Baker’s allocation of $1 million for a state-wide Housing Court. He noted that currently only two-thirds of the state has access to the Housing Court and that it “just makes sense” to extend access to the entire state. As the BBA has written in the past, proponents of a Housing Court expansion point to the expertise of the judges who are equipped to handle the range of housing issues, the specialists at Housing Court who offer mediation and save potential litigants time and money, and the special services in place that make the Court adept at serving pro se litigants and handling municipal code enforcement.  Additionally, the Housing Court operates at the lowest cost per case of any Trial Court department, making it an efficient option. Make sure to keep an eye out for future BBA updates on this issue.

Chief Justice Gants also addressed the Trial Court’s budget prospects. As we outlined a few weeks ago, the budget process is only just beginning, but the Governor called for a 1% increase in appropriations for the Judiciary for Fiscal Year 2018.  Chief Justice Gants specifically spoke about the likelihood of an increase in Probation staff in light of the CSG report that will call upon more comprehensive supervision to ease reentry and reduce recidivism. He also pointed out that the increase provided in the Governor’s budget would not be enough to allow for an expansion in specialty courts, including Veteran’s Treatment Courts, Drug Courts, Homelessness Courts, and Mental Health Courts. Overall, the Chief Justice noted that BBA support would be crucial on these budget issues, and the BBA has a long history of offering that support.

Civil Justice Reform

The Chief Justice concluded his remarks by reminding members of the Council of the recently-created “menu of options” now available that give lawyers more practice options and allow them to craft their own case in a way that makes the most sense for the particulars of the specific situation.  Chief Justice Gants stressed, as he did previously, that these increased options will only work if lawyers choose to employ them. In many other jurisdictions, the use of these options is imposed by the court, but the Chief Justice is hoping that here, more lawyers will step up and pursue the options independently now that they have the choice.

As expected, the Chief Justice offered important insights into a range of issues, displaying both his impressive expertise and his constant passion for reform that will improve the efficiency, effectiveness, and accessibility of the Massachusetts court system.

—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

BBA Meets with the Chief Justices

We do it every fall.  Because of the primary importance to the BBA of the judicial system in Massachusetts, the incoming BBA President meets each year with the chief judges at every level—the heads of the SJC and the Appeals Court, the US District Court, Bankruptcy Court, and Circuit of Appeals, the Chief Justice and Administrator of the Trial Court (together), and the leaders of each of the Trial Court’s seven departments: Superior Court, District Court, Boston Municipal Court, Housing Court, Juvenile Court, Land Court, and Probate & Family Court.

As you can imagine, these thirteen meetings take up a great deal of the President’s time.  But the effort is always worthwhile, for the opportunity it provides to discuss our mutual plans priorities for the coming year and where they overlap, to reaffirm our commitment to adequate funding and other support necessary to enable the Massachusetts courts to maintain their preeminent position in the nation, and to promote a free-flowing back-and-forth throughout the year.

BBA President Carol Starkey recently wrapped up her chief-judge meetings, and, as usual, some common themes emerged:

Budget funding

Funding for the Trial Court is always one of the BBA’s top priorities and a focus of our advocacy at the State House.  The Court has recovered well from the budget setbacks that were necessitated by the Great Recession, becoming leaner and more efficient.  But recent years have found budget-writers in the Governor’s Office and the Legislature tightening their belts once again, and the courts have not been entirely spared.

For the current fiscal year (FY17), the Trial Court’s final budget of $639 million represents $15.4 million less than what they would have required to maintain level services.  As a result, they are making do by putting off some hiring, launching an early-retirement program, and accelerating efforts to do more with less, such as by shifting staff among courthouses, sessions, and responsibilities.

This budget crunch is taking its toll throughout the system, and we heard from several chief judges about its impact in their courts.  Chief Justice Paul Dawley, who oversees 62 courthouses in the District Court system—many of them aging badly—knows as well as anyone how urgent the need is for adequate court funding.

Online access to court records

This past year, the Trial Court issued a new rule on public access to court records on-line.  The process was challenging, as these debates are always fraught with tension over the competing interests of transparency and privacy.  The rules seek to strike the proper balance by creating limited exceptions to the general rule providing for accessibility.  Criminal cases, for instance, come with their own set of concerns, and the Court took steps to ensure that access to information on those cases did not undermine either the letter or the spirit of recent changes to laws on criminal offender record information (CORI)—changes designed to promote successful re-entry of ex-offenders.

Beyond that, the Court recognized that on-line access rules are a work in progress and that a one-size-fits-all approach will not succeed: The new rules provide for both a working group to oversee and study their implementation and for standing orders within each department that address their unique concerns.  (In fact, just this week, the Probate & Family Court followed up with a standing order rendering both docket entries and parties’ addresses in a broad range of cases unavailable through the on-line portal.)  Both the opportunity and the challenge presented to the judiciary, and court users, as records move on-line are clearly on the minds of many of the chiefs we met with.

Vacancies on the bench

We’ve written here before about how critical it is that qualified candidates apply for judgeships—and that lawyers who work with such people encourage them to do so.  Right now, several court departments are facing significant shortfalls on their benches, and getting more applicants is one piece of the puzzle in filling those seats.

With 7 vacancies (out of 49) expected by the end of this year, Chief Justice Angela Ordoñez of the Probate & Family often has to place herself on special committees, rather than ask one of her overburdened judges to take on such work as well.  At the Superior Court, Chief Justice Judith Fabricant has 13 openings and sees 7 more coming by the end of 2017.

In all, the Trial Court has more than 50 judicial vacancies at the moment.  And while nearly half of that gap is being filled, for now, by recall judges, the need is still great.  The Governor’s office, the Judicial Nominating Commission, and the Governor’s Council are all hard at work, playing their respective roles in nominating, vetting, and confirming qualified candidates, but we will need to keep an eye on the situation.

One aspect of the process that all players are focused on is diversity among judges—racial and ethnic diversity, as well as geographic diversity, gender balance, and a mix of backgrounds in terms of practice area and setting.  Several chiefs told us they, too, are keeping a close eye on the diversity of their judges.  Chief Ordoñez is taking on the problem by addressing the early end of the pipeline—pairing small groups of lawyers as mentors with minority students at not only local law schools but also colleges and even high schools, to help them see the law as a potential career path.

Judicial evaluations

Each year we hear the same appeal from multiple chief judges: Please urge practitioners in their courts to fill out and submit judicial-evaluation forms!  The information they produce can be invaluable in helping judges improve and making the chiefs aware of topics for continued trainings.

We know that some lawyers have concerns about the forms—that they aren’t used by the courts, that responses that could be read as criticism will make their way back to the judge in question with enough particulars to reveal the respondent’s identity.  But the chiefs take pains to stress to us, time and again, that they do indeed rely on the forms, and that they make every effort to maintain confidentiality by scrubbing details before sharing them.

We have pledged to the chief judges that we will continue to help them with the evaluation process.  At the same time, we are always interested in any questions or hesitations you may have about it, so please let us know!  The chiefs are eager as well to hear informally, through the BBA, of any problems that have come to our attention, whether with individuals or more generally.

LAR

Another topic that came up time and again was limited-assistance representation (LAR), through which an attorney can take on a client for discrete parts of a case, without being tied to the client for the entirety of the case.  The BBA is a strong supporter of LAR as a way to bridge the justice gap that leaves too many litigants without the means to pay for counsel yet unable to qualify for assistance from legal-services providers.  It can also help new lawyers establish and grow a practice.

We are always seeking ways to help educate attorneys on LAR; we’ve conducted many trainings on it, and we are planning more.  (We also recently submitted comments on new rules bringing LAR to Superior Court for the first time.)  Our meetings with chief judges are a chance to assess how well LAR is working in their courts, to learn which types of cases are best suited for LAR in each court, and to ask how the BBA can further promote the program.  We have also relayed fears shared by some would-be LAR practitioners that they will be unable to extricate themselves from a case after they’ve finished the limited work they signed on to handle.

According to Chief Justice Roberto Ronquillo, the Boston Municipal Court sees many cases (e.g., collections matters) that can be settled in one day with the assistance of counsel—yet often at least party is unrepresented.  He also offered insight into LAR from a trial judge’s perspective, giving us useful advice on how to increase their awareness of LAR as an option to suggest to parties.

At the Land Court, where Chief Justice Judith Cutler presides, judges frequently recommend LAR.  Yet they’ve encountered some problems in how it’s worked in practice—problems they were keen to get our help with.  Specifically, they’d like to see LAR attorneys help with a case earlier in the process.  A simple consultation with an LAR attorney at the outset can help prevent further problems down the line.  Too often, pro-se litigants fail to even respond to motions, only to seek counsel late in the game.  There is simply too much at stake in cases before the Land Court for that be a beneficial approach, and Chief Cutler is eager to see such problems averted.

Beyond these broad themes, the judges raised issues that are affecting their courts individually.  For example, Chief Justice Amy Nechtem of the Juvenile Court spoke with pride about the work they’re doing to address racial disparities.  Chief Justice Timothy Sullivan thanked us for our advocacy on behalf of expansion of his Housing Court to statewide jurisdiction—a battle that will continue in the new year.

From Chief Justice Scott Kafker, we learned of his initiatives to help Appeals Court justices work through their caseloads more efficiently and to get cases ready more quickly.

When we sat down with SJC Chief Justice Ralph Gants, it was clear that the state’s on-going effort to study our criminal-justice system, in conjunction with the Council of State Governments (CSG), was occupying much of his thinking.  Chief Gants, along with Governor Charlie Baker and the Legislature’s two leaders, was a signatory to the letter inviting CSG to assist in this broad review of policies and practices, and, like the others, he is a member of the steering committee that is guiding their work.

CSG anticipates filing a report with recommendations by the end of this year, in time for legislation to be filed at the start of the 2017-18 legislative session, and Chief Gants foresees a role—as do we—for the BBA to play in analyzing and commenting on the report and resulting bills.

Our meetings with the chief judges in the federal system tend to highlight different issues.  The Bankruptcy judges (whom we met with as a group, led by Chief Judge Melvin Hoffman) were proud of their new local bankruptcy rules and asked us to spread the word.  Chief Judge Patti Saris told us the US District Court is looking into developing its own local rules of civil procedure.  At both of these meetings, we heard laments about the difficulties new lawyers face in first passing the bar and then establishing themselves in their careers.  And Chief Judge Jeffrey Howard of the First Circuit Court of Appeals shared with us that while his court has made advances in technology, it’s difficult to keep up.  As a result, some attorneys bring their own equipment, which can put pro-se litigants at a disadvantage.

Finally, we had a bittersweet meeting with Trial Court Chief Justice Paula Carey and Court Administrator Harry Spence, because the latter will be retiring this April.  He will clearly be racing through the finishing line, however, and he and Chief Carey updated us on a variety of projects they have before them, including training for staff on implicit bias, a restructuring of personnel to upgrade security, and the Court’s 20-year plan for capital spending to set priorities for new construction.

These annual meetings provide a window into the thinking of the leadership at the judiciary, and we will continue to share with you what we learn.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Access to Justice Commission Restarts

The start of the BBA’s program year and the new SJC session also coincide with the new seating of the Massachusetts Access to Justice Commission.  Now in its third iteration, the Commission is looking to build on its substantial work.  Last year alone, the Commission accomplished the following (and more!):

  • Legal Services Funding: Supported an increase in appropriations for the Massachusetts Legal Assistance Corporation (MLAC), helping achieve a $1 million increase. The BBA was also instrumental in this push, led by the work of Past-President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, D. Smeallie.  The Commission also explored alternative funding sources, especially from federal grants.
  • Increasing Pro Bono: Supported the state’s participation in a new pro bono website, Mass Legal Answers online, org. The Boston Bar Foundation (BBF) is proud to be helping out with funding and the Association is doing its part to educate the bar about the initiative, which promises lawyers the opportunity to provide “pro bono in your PJs.”  The concept is simple: in brief, individuals with legal questions who meet certain requirements, such as income limits, can create an account and enter their legal questions into an online database.  Licensed lawyers interested in pro bono work can also create an account where they can log in to the question repository and select questions to answer.  Check out the site and volunteer!

The Commission also continued to promote [?] pro bono representation, such as through its Access to Justice Fellows Program, which helps facilitate pro bono work by senior and retired attorneys and by expanding the pilot appellate pro bono program statewide.

  • Improving Access to Justice: Worked on revising forms and rules to promote clarity and accessibility for unrepresented litigants.  The Commission also supported statewide expansion of the Housing Court, a movement  the BBA has advocated for as well, to ensure that the roughly 1/3 of the state not covered by the Housing Court gains access to this valuable resource.  Finally, the Commission supported the work of the 100% access national movement, which calls for the development of state justice systems providing self-representing individuals with 100% access to effective assistance in dealing with essential legal problems.
  • Exploring Expanded Roles for Non-Lawyers: Two subcommittees explored the roles for social services providers and non-lawyers generally in the justice system.

Last week, we were privileged to get a preview of the upcoming year for the Commission from Co-Chair and SJC Justice Geraldine Hines, who listed statewide Housing Court expansion, 100% access to justice, continued pro bono efforts, and implementation of Mass Legal Answers Online as some of the major initiatives for the 2016-17 Commission.  She explained that she felt the Commission’s biggest challenges were in establishing a pilot program for non-lawyer advocates in court and in working with the courts to balance convenience with privacy protection with the release of the uniform rule regarding online access to court records, an issue with which the BBA has been very involved.

The Non-Lawyer Roles Committee is working to find the best way to have non-lawyers appear in court on behalf of indigent clients.  Justice Hines explained that some of their concerns include who should train and supervise the service providers, whether they need to be licensed in some way, and how to address rules that limit legal practice to those who passed the bar.  They also need to consider how to protect the public from malpractice and whether non-lawyer practitioners could have greater impact in certain courts where it could be especially unlikely or difficult for someone to otherwise secure representation.

On September 22, the Commission held its first meeting of the new program year. We were pleased to hear updates on MLAC’s application for a grant from the Massachusetts Office for Victims Assistance (MOVA) under the Victims of Crime Act (VOCA), and that the goal of 100% access was likely to be included in the Trial Court’s forthcoming Strategic Plan 2.0 for formalized consideration and implementation by the courts.  We were excited to see a presentation by Rochelle Hahn of the Massachusetts Law Reform Institute (MLRI) on Mass Legal Answers Online, demonstrating its operation and functionality for both lawyers and advice-seekers.  It promises to be an easy and efficient way to match those in need of advice with those who can provide it, requiring minimal effort from either side.  In addition, the ABA is providing malpractice insurance for participants.

Finally, Executive Director of the Massachusetts Board of Bar Examiners, Marilyn Wellington, presented on the implementation of an access to justice question on the Massachusetts bar exam and the 2018 transition to the uniform bar exam.  Massachusetts became the first state in the country to add access to justice to its bar exam when the SJC approved a rule to require a question on the topic in 2014, and the July 2016 exam was the first to incorporate it.  As Wellington explained, the rule requires that at least one essay question be on the topic of access to justice, and it can also be incorporated into other questions.

While the results are not due out until mid-October, the question is already having an impact as Wellington reported anecdotally that she has heard from local law schools that they have added classes or course components on access to justice as a means to preparing their students for this element of the exam and educating them on these important issues.

However, the Massachusetts bar exam will soon undergo changes as the Board of Bar Examiners recently announced that it will be adopting the Uniform Bar Examination (UBE), effective in 2018.  The UBE tests only generally accepted legal principles—not state-specific law.  Massachusetts is the 25th state to adopt it, and its hallmarks include a greater focus on practice-readiness and the ability for test-takers to apply for admission in any of the states in which it is used, giving them more flexibility.  While the UBE does not currently include an access to justice question, Commissioners discussed the possibility of reaching out to the test makers about the possibility of adding the topic in the future.  In the meantime, Wellington announced that Massachusetts is looking into requiring a pre-admission online course on state law and including access to justice issues.

All this and it’s still only September!  We can’t wait to see how these items develop over the year and look forward to keeping you in the loop on all of the Commission’s work over the course of the year.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Bill Clarifies Zoning Law and Promotes Real Estate Development

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, and Section Co-Chairs Hannah Kilson and Matthew Lawlor.

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 Chapter 40A) 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.

We are proud of this latest development and commend the Section for its diligent work on this bill over the last two decades.  We look forward to advocating for more bills backed by your Section in the next legislative session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Taking on Tough Issues: Chief Justice Gants on the Judiciary

gants croppedWe recently had the pleasure of welcoming the Chief Justice of the Massachusetts Supreme Judicial Court (SJC), Ralph D. Gants, to our building.  He addressed members of our Council, speaking on a myriad of issues currently facing the court system and the state at large.  We’ve got the recap below, but we also invite you attend the upcoming Haskell Cohn Award ceremony, at which we will be honoring the Chief for his distinguished judicial service.

Known for going out into the community to teach people about the Massachusetts courts and the practical role that they play in our lives, Chief Justice Gants has long demonstrated that he cares deeply about ensuring that the justice system works for everyone. He has actively worked to leverage limited resources wisely and to inspire the commitment of new resources to promote that goal.

Since his appointment to the bench as a Superior Court Judge in 1997, Chief Justice Gants has earned a reputation for scrupulous analytic rigor, intellectual honesty and fairness. Prior to his elevation to the SJC in 2009, he was a strong leader of the Business Litigation Session. Throughout his judicial career, and especially since his appointment as Chief Justice of the Supreme Judicial Court in 2014, he has consistently shown a laser like ability to focus on the core issues in even the most complex of cases. He neither shies away from nor glosses over the most difficult issues, but rather grapples with them openly.  This includes access to justice and pro bono legal service – Chief Justice Gants is a former Chair of the Massachusetts Access to Justice Commission and member of the SJC’s Standing Committee on Pro Bono Legal Services.  In 2012, the BBA recognized him with the Citation of Judicial Excellence.

Here are some of the issues he addressed in his speech:

State Budget

Chief Justice Gants began with some news on the budget.  He analogized the budget process to a baseball game, stating that we were in the later innings and had scored some runs, but still had some more innings to go and work to do to convince legislators of the judiciary’s funding needs.  He acknowledged how challenging the budget situation is; even though the state economy appears healthy by many indicators, most revenue gains are already spoken-for due to constant growth in certain key areas such as health care.

As it currently stands, the Governor, House, and Senate have all released their budget proposals.  A conference committee will shortly be addressing differences between the House and Senate proposals.  Here is a brief breakdown of the line items we are most interested in:

  • Massachusetts Legal Assistance Corporation (MLAC – funding for civil legal aid)
    • House: $18,500,000
    • Senate: $18,000,000
  • Trial Court
    • House: $639,900,000 (includes Specialty Courts module)
    • Senate: $643,484,303 (does not include Specialty Courts module)
  • Statewide Housing Court Expansion
    • House: $0
    • Senate: $1,194,614

Click here for a full analysis of all our budget priorities.

Justice System Reforms

Civil

Chief Justice Gants then discussed reforms currently under consideration for both civil and criminal practice.  Following his lead on the need for  a “menu of options” in civil litigation, each department of the Trial Court (aside from the Juvenile Court), examined their civil practices, and most are in the process of finalizing streamlining proposals that will give lawyers more practice options.  However, the Chief Justice stressed, giving lawyers more choices matters only if lawyers actually take advantage of them.  He encouraged lawyers to try out the new options when they are implemented and hoped that practitioners would be pleased with the outcomes – fair and fast resolutions of their cases on the micro level, and a more efficient court system on the whole as a result.

Once this is accomplished, it may lead to larger systemic changes.  For example, the Trial Court is examining increasing the minimum procedural amount to qualify for Superior Court from $25,000 to $50,000.  This change would approximately represent an adjustment for inflation (the amount has stayed the same since 1986), but would also result in shifting a large number of cases from the Superior Court to the District Court level.  Implementation of this change is currently on hold, at least until devoted civil sessions in the District Courts are operating at peak efficiency.

Criminal

On the criminal front, the Chief Justice spoke highly of the work of the Council of State Governments, which is examining criminal justice policy in Massachusetts at the joint request—and with the guidance—of  the Chief Justice, the Governor, the Senate President, and the Speaker of the House.   The Council will be making recommendations for criminal justice reforms in the Commonwealth in the coming months.

Chief Justice Gants has already taken the lead on this issue in the judiciary, installing best practices for sentencing in all criminal courts.  He explained that going forward, the judiciary is looking more closely at issues such as sentence length and post-release conditions (currently about 40% of people are released from prison without any form of supervision), as well as tailoring sentences individually for each defendant.  The court is also focused on monetary issues, such as determining individuals’ ability to pay court fees and increasing the baseline amount for certain crimes, such as larceny, to qualify as a felony.

Access to Justice

Finally, Chief Justice Gants addressed his work with the Conference of Chief Justices, which recently adopted a resolution as part of a national effort to achieve “100% access to justice.”  While that phrase can mean many things, Chief Justice Gants is focused on maximizing both legal and non-legal resources so litigants can get the help they need, from self-help forms, to brief advice, to full representation from a lawyer, depending on the individual’s abilities and the complexity of their issue(s).  The biggest current challenge is figuring out how to allocate resources to achieve the most effective “triage.”  Other states are working to address the same questions, and he hopes we can benefit from some of their research and innovations.  Meanwhile, Massachusetts remains a leader in access to justice – as recognized by the National Center for Access to Justice’s recently-released 2016 Justice Index, which ranks us second only to the District of Columbia – and continues to expand empowering programs and initiatives, such as opening more Court Service Centers in courts across the state.

As always, the Chief Justice demonstrated his deep knowledge of the courts and justice system at large as well as his energetic push for meaningful and beneficial reforms to assure efficient practice and access to justice for all.  We are extremely pleased to be honoring him at next week’s Haskell Cohn ceremony and hope that you will join us in recognizing his remarkable and ever-increasing achievements.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association