Posts Categorized: judicial nominating process

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

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

Repairing the World through Judicial Innovation and Evolution

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

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

Gants SotJ

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

Civil Case Reforms

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

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

Justice Reinvestment

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

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

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

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.

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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.

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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.

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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.”

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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.

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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

Justice Scott Kafker Confirmed as Chief Justice of the Massachusetts Appeals Court

On Wednesday, July 22, by a 7-1 vote, the Governor’s Council confirmed sitting Associate Justice Scott Kafker to be the next Chief Justice of the Massachusetts Appeals Court.  Justice Kafker succeeds Appeals Court Chief Justice Philip Rapoza, who retired from the bench on June 30. As Chief Justice, Kafker will oversee the 20 other Appeals Court judges and–as he put it—work as “the daily guardian” of the Commonwealth.

This marks the first judicial appointment by Governor Charlie Baker, whose administration was applauded by the Council before the vote for putting forward such an “outstanding nominee right out of the box.” Councilor Terrence Kennedy remarked that “if they’re all like that, we’re going to have an easy ride the next four years.”  It is also is the first judicial appointment to have come through the recently-reconstituted Judicial Nominating Commission (JNC), chaired by BBA past-president Paul Dacier.  The JNC played an integral part in reviewing the candidate and is equally deserving of praise for its role in this process.

Who Is Justice Kafker?

First appointed to the Appeals Court in March of 2001, Justice Kafker has heard almost 2,700 cases and written opinions in nearly 900.  Prior to joining the Appeals Court, he served as chief legal counsel for the Massachusetts Port Authority (Massport) and deputy chief legal counsel to Governor William F. Weld.  During his time in the Weld Administration, Kafker served alongside Charlie Baker and current SJC Justice Robert Cordy.

A graduate from Amherst College and the University of Chicago Law School, Kafker spent his first few years out of school as an associate at Boston’s Foley, Hoag & Eliot. He has taught at Boston College Law School, the National Judicial College, and serves on the SJC’s Advisory Committee on the Rules of Civil and Appellate Procedure.  Justice Kafker is a trustee of the Dana-Farber Cancer Institute and a member of the American Law Institute.

The Process of His Nomination and Confirmation

As you may recall, earlier this year we reviewed the procedure for the appointment of new judges and explained the first two crucial steps of the process: The screening of applicants for judicial office by the Judicial Nominating Commission and the review of successful candidates by the Joint Bar Committee (JBC). Once Chief Justice Rapoza announced his retirement plans in February, it was clear that finding a suitable replacement would be the first order of business for the JNC, and it was their work that led to Justice Kafker’s nomination by the Governor.

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JNC staff meeting at the BBA on July 8 with affinity bar leaders on strategies to increase diversity of the bench

After his nomination, Justice Kafker was subjected to a final review by the Governor’s Council, which is an elected body consisting of 8 Councilors and the Lieutenant Governor. All judicial nominations are subject to review by the Council — the final step in this multi-layered selection process.

Last week, we attended Justice Kafker’s public confirmation hearing, with the Governor’s Council taking witness testimony in support and, from one individual, in opposition to Kafker’s nomination. They also heard from Justice Kafker himself and asked him questions that would better inform their vote.

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Justice Kafker sits facing the Governor’s Council

Testifying on Kafker’s behalf was a diverse and comprehensive list of witnesses.  Justice Cordy and Appeals Court Justice Elspeth Cypher—who have both worked extensively with Kafker in the past—spoke to Kafker’s professional qualifications, citing his extensive experience and background, his legal, managerial, and collaborative skills, as well as his calm and contemplative  temperament. Council members inquired about Kafker’s leadership qualities, his disciplinary ability, and his “non-trial lawyer” legal background. Amid an exchange of jokes from both sides, Cordy and Cypher made plain with utmost conviction their belief in the abilities of Justice Kafker.

Law clerk Brittany Williams and court officer John Harrison spoke to their positive experiences working for Judge Kafker. Williams described Kafker as a “first-rate supervisor, mentor, and judge” and further emphasized his collaborative and pragmatic nature. Court officer John Harrison began by stating that he didn’t realize Kafker was a judge because “he was a regular, nice person”— which was received humorously by the Council. Harrison also conveyed how all the employees like Justice Kafker because he treats them all with respect. Councilors noted how much they valued this testimony because it demonstrated Kafker’s civility and managerial abilities.

Striking a common theme, Dana-Farber’s general counsel Richard Bosky and Kafker’s longtime friend and law-school classmate David Abelman, further testified in support of Kafker’s collaborative skills. Bosky spoke to Kafker’s diligence in preparation for board meetings, his dedication, and the value of his advice. He also mentioned how Kafker made it his priority to diversify the board. Abelman added that Kafker is fair, passionate, and leads by example.

The only person to speak in opposition to the nomination was Patrick McCabe of the Fatherhood Coalition. While McCabe was quick to praise the justice’s legal writing ability, he raised questions about Kafker’s leadership ability based on child-custody decisions to which the Coalition has objected. McCabe expressed concern over the fact that judges—including Kafker—routinely grant sole custody to one parent without any explanation.

In his address to the Council, Justice Kafker stated that if he were confirmed, his mission would include speeding up the issuance of decisions, creating more specialized expertise for better collaboration, promoting diversity on staff, and pioneering a new system of technology in the courts for improved efficiency. Kafker described himself as responsive and respectful, saying he respects everyone from all branches of government and tries to treat everyone with dignity. The hearing was cordial and flowed smoothly, with little debate, and several Councilors declared their support for Justice Kafker.

The Governor’s Council reconvened yesterday to vote on Justice Kafker’s confirmation, with Lieutenant Governor Karyn Polito presiding. Polito, who takes part in the selection process and facilitate the Governor’s Council review, pledged that only the best candidates will come before the Governor’s Council, after Councilor Jennie Caissie offered congratulations to the Administration and all those involved in the process that produced the newly-sworn-in Chief Justice Kafker.  We echo this sentiment and are pleased to see the JNC’s hard work beginning to bear fruit.  We hope this is only the first of many strong appointments, and encourage everyone with any interest in a judgeship to apply, as the only way to assure we have great judges is to start off with great candidates.

– Jing Li
Summer Intern
Boston Bar Association

Seeking Great Judges Part 2: An Inside Look at the Joint Bar Committee

Last month we explained the work of the Judicial Nominating Commission (JNC) – the first layer of review for judicial nominees.  Here, we take a closer look at the Joint Bar Committee (JBC), the next critical step in the process.

If the JNC, after their thorough review and vetting process, recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the JBC.   The JBC, formally established in 1961, acts as an independent reviewer to check the qualifications of individuals under consideration for appointment to judgeships by the Governor.  It is governed by a set of rules, which state its purpose is to “review, evaluate and report” on the qualifications of potential appointees, in order to assure a “competent, principled judiciary.”

The JBC is a 25 member committee chaired on an alternating basis by representatives of the Boston Bar Association and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for staggered three-year terms.  Participating bar associations are encouraged to appoint persons of diverse gender, age, race, color, creed, ethnic origin and sexual preference, as well as persons with disabilities and attorneys of varying experience.  The BBA’s representatives are currently Edward Colbert, the Committee’s Chair, Sara Shanahan, and Adam Sisitsky.  (Here is a full list of the Committee’s members.)

The JBC assists the Governor and the Governor’s Chief Legal Counsel by conducting its own independent review of judicial candidates in a confidential capacity, evaluating their integrity, character and reputation, knowledge of the law, professional experience, temperament, diligence, financial responsibility, and public service.   Upon completion of its due diligence process, the JBC calls a confidential, blind vote of its members to determine whether a candidate is “well-qualified,” “qualified,” “not qualified,” or there is “insufficient information to evaluate” the candidate.  A quorum of 13 members of the JBC is required to vote on a judicial candidate’s qualifications.

In the event that the JBC has returned a vote of “not qualified” or “insufficient information,” the chair must then immediately notify the candidate of the vote and afford the candidate an opportunity to be interviewed by the committee.  Following an interview, the JBC members may then reconsider their prior vote, if the majority of the members present and voting elect to conduct a revote.

After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Judicial Nominating Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council for their approval.

As we said in last month’s post, the process is built to ensure that only the best candidates become judges.  However, it all begins with you.  In order to have the best judges at the end of the process, the best candidates need to apply at the beginning.  We hope that you will spread this message to anyone who may be considering applying to become a judge in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association