Posts Categorized: judiciary

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 Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

‘Tis the Season to Focus on Civil Legal Aid

Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid!  As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services.  These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence.  As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.

On Tuesday, we were excited to be joined at our Council meeting by Equal Justice Coalition (EJC) Chair, WilmerHale Partner Louis Tompros.  Louis is in his first year as Chair of the Coalition, which consists of the BBA, Massachusetts Bar Association (MBA), and Massachusetts Legal Assistance Corporation (MLAC).  The group advocates for MLAC funding, which in turn provides the bulk of the state’s civil legal aid through a dozen organizations including most notably in our area, Greater Boston Legal Services.

Louis Tompros Speaking to BBA Council

Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid.  In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.

Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice.  We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.

We are excited for this year’s civil legal aid funding campaign, kicking off very soon.  Things are already gearing up, as Tompros explained to our Council.  MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times.  EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.

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 gave more limited advice, information, and trainings 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 you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House.  There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders.  Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  They’ll be glad to hear from you.


Andrew Cohn Speaking on Legal Aid

Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations.  It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.

On his final point, Cohn talked at length about a new initiative we’ve discussed here beforeMassLegalAnswers Online – an internet-based virtual help-line.  The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states.  The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.”  The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally.  Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites.  The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations.  The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.

The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level.  Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest.  They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering.  Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours.  The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.

This site has essentially replaced the old “hotline” model and is a great improvement.  It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out.  The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups.  The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users.  Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.

At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions.  We encourage our readers to check it out and sign-up!

We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Stepping Up: Bridgeman Argument and the BBA’s Mission

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

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

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

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

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

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

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

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

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

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

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA President Visits Veterans’ Treatment Court

This Veterans Day, while we give thanks to the many veterans and their families who have sacrificed so much to assure our safety and security, we wanted to take the opportunity to report on our visit to Veterans Treatment Court.  You may recall that last year, BBA President Lisa Arrowood visited a number of Specialty Courts, including Judge Eleanor Sinnott’s Veterans’ Treatment Court (read about her visits to Drug Court, Mental Health, and Homeless Court).  She was so impressed by her experiences that we honored the Specialty Courts at our annual Law Day Dinner this past spring.

In case you aren’t familiar with them, so-called Specialty Courts are court sessions dedicated to resolving certain issues underlying criminal behavior and/or treating certain populations.  There are several types of specialty court sessions:

  • Drug Court – adult and juvenile, and family sessions
  • Homeless Court
  • Mental Health Court
  • Veterans’ Treatment Court

They provide court-supervised probation and mandated treatment focused on treating mental health or substance abuse issues in the defendants’ lives.  Judges balance treatment and accountability for participants – considering the entirety of concerns they face and meeting with them frequently to monitor and work on solving the problems underlying their criminal behavior.  Judges provide support and oversight, working with probation officers who provide intensive supervision and Department of Public Health clinicians who help participants to access effective treatment and therapy.

There are 36 Specialty Court sessions in District and Boston Municipal Courts throughout the state, including 23 drug courts, five veterans’ treatment courts, and eight mental health courts.  They have received funding through the state budget since FY2015 ($3 million).  They were level funded this past year at $3.2 million after receiving a $230,000 increase in FY2016, despite the Trial Court requesting a $2.8 million module to fund expansion efforts.

carol-with-judge-hogan-sullivan-vets-court
Veterans’ Treatment Court Judge Mary Hogan Sullivan and BBA President Carol Starkey

BBA President Carol Starkey jumped at the chance to see the Specialty Courts firsthand.  On November 1, she spent the afternoon at Judge Mary Hogan Sullivan’s Veterans’ Treatment Court in Dedham District Court.  Judge Hogan Sullivan serves as Director of Specialty Courts for the District Court Department and established the Norfolk County Veterans’ Treatment Court in 2012, the first of its kind in Massachusetts.  As described on the court’s website:

Veterans’ treatment courts are designed to handle criminal cases involving defendants who have a history of military service through a coordinated effort among the veterans services delivery system, community-based providers, and the court. The sessions aim to improve public safety while dealing with the underlying issues of posttraumatic stress disorder, traumatic brain injury, and military sexual trauma.  Abstinence from drugs and alcohol, mandated treatment, swift accountability, and weekly interaction with the court are requirements of the Veterans Treatment Court.

The program typically requires a 12 to 24 month commitment, which must be voluntarily given by the participant who also must agree to participate in “any and all” court recommendations.  Participants must have at least completed basic training to be eligible.  However, it is open to all veterans regardless of their discharge status, though only those with honorable discharges can access certain Veterans Affairs (VA) benefits the court has access to.  Its stated mission is: “To support veterans and their families through a coordinated effort among the veterans services delivery system, community based providers, and the Court, thereby improving public safety while leaving no veteran behind.”  This packet from the court has extremely detailed information about the process and procedures it follows.

We had the pleasure of meeting with Judge Hogan Sullivan prior to the session.  She candidly explained that Veterans’ Treatment Court is “the most challenging thing I’ve ever had to do.”  She thinks of her court as basically a hybrid between mental health and drug courts, though it has some further complicating factors that those courts do not, such as higher occurrences of certain mental health afflictions like post-traumatic stress disorder (PTSD) and depression.  It also often has to address violence issues, many related to guns, unsurprisingly since they are a staple of military service.  Because of the intensiveness of the program, the court can accommodate only about 30-35 individuals at a single time.  While most of the recommendations for program participation come from probation, some also come from defense attorneys, whom we hope will increasingly recommend the court for their clients as a way to secure services and decrease the potential for recidivism.

Judge Hogan Sullivan compared her process to peeling an onion – her team peels through issues, treating them layer by layer at the appropriate time and in the most effective ways.  Most of the defendants come to court weekly unless they are in residential treatment programs.  Once there, they benefit from the assistance of a defense attorney, probation officer, clinician, veteran outreach worker, and even the prosecutor plays an important role.  They are also assigned a volunteer veteran mentor who is not involved in their cases, but is simply there to provide life support and understanding for the issues unique to their experiences.  This team talks regularly over the course of the week and meets for upwards of 90 minutes prior to open court, during which they discuss in detail the challenges, successes, and setbacks experienced by the program participants.  It was impressive to see how well they understand and care about the individual issues faced by each participant and how devoted they were to coming up with the most appropriate and effective solutions.

While the investment in personnel time and services are high, the results are remarkable.  Graduates of Judge Hogan Sullivan’s Veterans’ Treatment Court have a recidivism rate of about 11.5%, while the average rate in Massachusetts is between 40 and 50 percent.  In its nearly 4 years of operation, only two people have picked up new charges since graduating, and while a handful more have relapsed with drug addiction issues, they have sought the help they needed before turning to the criminal behavior that put them in the justice system in the first place.

Yet, despite the tremendous devotion of the staff and hard work of the veterans involved, the court is held together on a shoestring budget.  They struggle to reach veterans who have lost their drivers’ licenses due to their criminal sanctions and have trouble accessing public transportation to the court or treatment services because there is no funding to assist them.  There isn’t even enough money to be able to provide graduates with certificates or awards at the end of their grueling period in the program.  Judge Hogan Sullivan recognizes the importance of being able to offer participants carrots in addition to the stick of stepped up sanctions and so purchases a supply of business cards saying simply “Congratulations, you did exactly what we asked of you” which she gives out exceedingly sparingly to assure they carry special sentimental weight.

In all, our day at Veterans’ Treatment Court was eye-opening and moving.  We applaud the remarkable work being done by Judge Hogan Sullivan and her team in Dedham.  Stay tuned next week to hear about our visit to Bridges, Judge David Weingarten’s Mental Health Session in Roxbury District Court.

– 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