Posts Categorized: online access to court records

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

BBA Meets with the Chief Justices

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

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

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

Budget funding

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

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

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

Online access to court records

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

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

Vacancies on the bench

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

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

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

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

Judicial evaluations

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

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

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

LAR

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

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

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

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

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

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

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

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

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

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

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

— Michael Avitzur
Government Relations Director
Boston Bar Association

Access to Justice Commission Restarts

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

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

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

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

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

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

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

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

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2016-17 Program Year Begins!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

We Want Your Feedback: Online Access to Court Records Rules and Experiences

As you have likely heard by now, the SJC approved and released Trial Court Rule XIV regarding online access to court records.  This follows the well-documented  recent challenges (see: Courts Cut Online Access to Criminal Cases, Trial Court Fails Transparency Test in Attorney Portal Lockdown, To Block Data Harvesting, Trial Courts Lock Down Attorney Web Portal) faced by the the Trial Court after they detected instances of unauthorized “data harvesting.”  The BBA has long been a part of this discussion, including, most recently, through the submission of comments from a working group and various practice-area Sections to the Trial Court’s Public Access to Court Records Committee regarding forthcoming rules on this issue.

We are pleased to report that the Trial Court has been responsive to the concerns expressed in the articles linked-to above and to our comments, and note their open communication regarding the process as exemplified by a recent letter to bar leaders.

Some of the major points raised by our comments are included in the final rule, including:

  • The Committee’s recommendation to create a Standing Committee to regularly review the rules in light of recent developments and changes in technology and the addition of language to Rule 5(a)(1)(ii) specifically aimed at these sorts of updates, speaks directly to the second consensus point of the BBA’s Working Group (BBA Comments page 1) recommending periodic review of the database and technology.
  • Editing Rule 1(d) to note that all courts will maintain a public computer kiosk at the Clerk’s office is responsive to our note on inconsistencies in the proposed rules on this point (see BBA Comments p. 12).
  • Revising Rule 2(j)(1) to remove the outright ban on flash photography as recommended on page 8 of the BBA’s Comments given the prevalence and convenience of cell-phone scanners which may require a small an unobtrusive flash.
  • Adding certain case records to the list of protected documents that cannot be available online, including mental health reports and certain civil commitment and harassment and domestic abuse records (see BBA Comments p. 11).
  • Updating Rule 6 to clarify the process for court users to correct clerical errors in electronic dockets using language recommended on page 10 of our Comments.

As we continue this discussion with the courts, your feedback is essential.  Please send us your comments regarding online access to court records.  We hope to share many of them with the courts as we work with them on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Year in Review: BBA Comments

As you have likely gathered if you’re a regular reader of this blog, the BBA had a remarkably productive year on the policy front.  We’ve recently been touting the work of our Amicus Committee, and look forward to following up with you about a couple of cases with oral argument either recently heard (Fisher v. University of Texas at Austin II in the US Supreme Court on December 9) or fast approaching  (Commonwealth v. Wade in the SJC on January 11).  However, this post is devoted to our Sections and all the comments they submitted to various court working groups and committees in 2015.

For those of you unfamiliar with this process, the courts at any time have various working groups and standing committees considering changes to various rules of practice and procedure.  When these groups compose a draft rule, they generally post the proposed revisions online and invite comment from interested parties.  We know from experience that they appreciate our efforts to gather practitioners’ opinions and take them very seriously, so the BBA works with all its Sections to solicit and facilitate their comments and sends them to the courts on behalf of the Sections.

It is important to note that the BBA itself often does not take a position in these instances.  The comment process is an opportunity for members of the bar to be heard and we want to make sure that the court can benefit from all the differing points of view on an issue.  Therefore, although each submission is approved by the BBA Council, informal Section comments do not receive as thorough a vetting as full BBA policy positions, because they do not require a general consensus of the bar or continued BBA advocacy.

Here are some of this year’s highlights:

  1. That an amended jury instruction is appropriate and the provisional instruction generally assists jurors in considering eyewitness identification issues
  2. That the proposed instruction is appropriately based on five generally accepted principles regarding eyewitness identification

Their comments also included a number of items on which there was no consensus, ranging from broad policy issues to specific language suggestions.

In November, the SJC released its new jury instruction on eyewitness evidence, which will be given “upon request of a party, before opening statement or immediately before or after the testimony of an identifying witness.”  The Justices noted that the instruction will need to evolve with new developments in the science of identification and requested that the Standing Committee on Eyewitness Identification continue to review the issue and recommend further changes as needed.  Here is the full statement from the court.

  • The BBA’s Ethics Committee, Delivery of Legal Services, and Litigation Sections also provided extensive comments on the proposed revised Code of Judicial Conduct.  The BBA itself provided comments as well, noting its support of Rule 3.7, encouraging judges to participate in legal, educational, religious, charitable, fraternal, or civic organizations, and Rule 2.6(A), giving judges guidance on their role in assisting self-represented litigants.  The Delivery of Legal Services Section also voiced support for Rule 2.6(A).  The Ethics Committee provided extensive comments on many of the rules — which the Litigation Section generally agreed with, adding a note that they hoped the expansion of judges’ ability to accept free or discounted legal services would result in a corresponding expansion of the public reporting requirement.

In September, the BBA also voiced its support for proposed amendments to SJC Rule 3:11, which provides a new role for the SJC in reviewing these judicial ethics issues.  The rule would give the SJC the new power to both issue Ethics Advisory opinions to clarify the meaning and application of and provision of the CJC and to expound upon provisions of the Code that are of broad interest and application.  It gives the SJC power to essentially serve as an appellate body for decisions by the Committee on Judicial Ethics (CJE), and extends the ability to request Ethics Advisories to any judge or lawyer, whereas only judges can request CJE opinions.

In late October, the SJC released the revised Code of Judicial Conduct and reported the adoption of the revised SJC Rule 3:11.  The code and rule will take effect January 1, 2016.  We were pleased to see that many of the Ethics Committee’s comments incorporated into the Code and the sections we supported were included without substantive changes.

The BBA’s Real Estate and Bankruptcy Law Sections both provided comments to the Trial Court.  The Real Estate Law Section was satisfied with the standing order as an appropriate measure to address unnecessary confusion in the litigation process.  The Bankruptcy Law Section was concerned that the proposed standing order did not provide a good-faith exception.  They discussed possible situations when it would be more beneficial to bypass the address verification process in order to expedite the matter and provided the Trial Court with a couple of possible language edits to achieve this goal, one for a show of cause and the other based on time.

The Trial Court approved the standing order in late June 2015, and it became effective October 1st.  The final version does not incorporate the changes proposed by the Bankruptcy Law Section.

  • In July, the Litigation and Real Estate Sections commented on the proposed BMC and District Court procedural amount change. The shift would increase the minimum qualifying amount for Superior Court cases from $25,000 to $50,000, an increase that roughly corresponds with inflation since the qualifying amount was last changed in 1986.  Both Sections were concerned about the implications of the change, especially with how the District Court and BMC could handle the attendant influx of additional civil cases.  They also considered alternative types of jurisdictional splits, based possibly on case complexity or subject matter.

Perhaps in response to these comments, the Court has put this issue on hold as it works out how best to implement this change.  As the Chief Justice explained in his State of the Judiciary address, “We have heard loud and clear the comments furnished by the MBA and BBA when we aired the proposal to increase the procedural limit in civil cases in the District Court and BMC from $25,000 to $50,000 … [O]nce [dedicated civil] sessions are up and running, and have demonstrated that they can efficiently handle these civil cases, then we will reopen the idea of increasing the procedural limit to $50,000.”

The BBA noted its support for the change, and expressed its hope that all involved personnel would be adequately trained and that the rules would be uniformly enforced by all DOC facilities.  The BBA also encouraged EOPSS to consider extending application of the rule to county correctional facilities as well to assure uniform proper treatment of attorneys at all correctional institutions.  The Criminal Law Section was also largely supportive, individual members shared some concerns, such as with the revised rules’ record-keeping requirements and the potential limits it would place on correction officers.

Shortly after sending our comments, we attended a hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives.  Like the BBA’s comments, most groups were generally supportive, but also raised concerns.  Read more about the hearing here.

  • In September, our Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on the proposed revised SJC Rule 1:24, which addresses personal identifying information in certain court filings and documents. The SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure drafted the new rule based on the nonbinding Supreme Judicial Court Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents that took effect in 2009.  The proposed new rule would apply in the trial and appellate courts and would govern documents filed in civil and criminal cases as well as documents issued by the courts.  It differed from the Interim Guidelines most significantly by authorizing a judge to impose sanctions for non-compliance.

The Comments are generally supportive of the revisions, though they express some concerns about the addition of sanctions and their potential impacts on criminal law.  In addition, consideration of these proposed amendments prompted a second round of discussions on the larger issue of online access to court records.  We anticipate the opportunity to comment on a forthcoming rule on this issue, and are eager to take part in the debate.

While the Ethics Committee was generally supportive of the change, their comments expressed some concern about the removal of the local-counsel piece.  Though the Massachusetts rule and notice to comment explanation seem concerned only with protection of the company using foreign counsel, the Ethics Committee noted that other parties to litigation as well as the courts could benefit from the requirement for consultation with local counsel.

  • This month, we are working on finalizing comments on proposed revisions to the Massachusetts Rules of Civil Procedure (MRCP), Rules 26(b) and 1. The revisions largely track those recently adopted in the federal rules of civil procedure to include reference to proportionality in discovery.  The goal appears to be streamlining discovery and assuring that costs are kept in proportion to the overall case.  Though our comments are not quite finalized, a sneak peak at their content reveals that though many practitioners feel that the changes are minor in nature and a number were supportive, others had concerns that they could result in increased discovery motions, thus having the opposite of their intended effect.

This conclusion was similar to the implications shared at our recent program on the changes to the federal rules.  The presentation materials from this program provide some more insight on the origins and development of this proportionality language.

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The presenters, BBA Council member Chris Morrison, Jones Day, Gregory Bombard, Duane Morris, James Berriman, Evidox, and Paula Bagger, Cooke Clancy & Gruenthal, LLP, seemed in agreement that while the changes to federal discovery Rule 26 could have some implications for practice, revisions to other sections would likely have larger implications.

Thanks to all the Sections and Committees for your work on these comments.  We will continue wrapping up the comments on MRCP Rules 26(b) and 1 and will keep you informed on how these and other feedback are incorporated by the Courts into their rules.  We look forward to continuing to be part of these sorts of discussions in the future and thank the courts and agencies for making this a thorough and inclusive process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association