Posts Categorized: Senator Brownsberger

BBA Testimony at Judiciary Committee Hearings

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

Housing Court Expansion

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

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

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

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

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

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

UCCJEA

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

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

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

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

Shared Parenting

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

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

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

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

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Senator Brownsberger Talks Criminal Justice Reform at Council Meeting

Today we begin the final countdown to Walk to the Hill 2016 for civil legal aid, which is happening exactly one week from the date of posting, on January 28, from 11:30-12:30 (on-site registration begins at 11:00 am) at the Great Hall in the State House.  So we were very excited to welcome to this week’s BBA Council meeting a key legislator and long-time supporter of legal-aid funding, Senate Chair of the Joint Committee on the Judiciary, William Brownsberger.  Senator Brownsberger began with some background on his legal career.  He spoke of his tenure in the Attorney General’s office where he worked on the Public Protection Bureau and as Asset Forfeiture Chief in the Narcotics and Special Investigations Division.  It was there that he first became interested in the issues of addiction, and began consulting and teaching on criminal justice and addiction issues, which he soon turned to full-time.
IMG_7943It wasn’t long, however, before he became sick of talking about people with addictions, and wanted to talk with them, so he began practicing in drug court.  He explained his philosophy that criminal lawyers play a “sacred role” in court so that every defendant knows they “got a fair shake.”  He described how this experience changed his thinking about criminal justice and supervision, as he witnessed that jail time, followed by over-supervision after release, could “crush people” and keep them from reaching their potential as productive members of society.

The Senator then moved on to discussing his views on the need for criminal justice reform, which have been formed by both his personal experiences and his study of the larger issue.  For example, he shared this stunning statistic: 40 years ago the prison population in Massachusetts state prisons was under 2,000 and had been holding fairly steady for decades.  But between 1975 and the early 1990s, that population increased five-fold to around 10,000 individuals, where the level has more or less remained for the last twenty years.  Senator Brownsberger said when he looked into these statistics alongside legislative reforms made during that time period, he could not entirely link the massive prison population increase to major legislative changes.  He concluded that the increase was actually the result of a general societal “tough on crime” push that affected not only legislators but also police, district attorneys, judges, and the public as a whole.  The question now is, can we dial that back? And if so, how?
IMG_7950Furthermore, if it’s the case that the current incarceration problem stems from a larger systemic shift, it is likely that the Legislature cannot solve it alone.  While the Senator expressed some frustration that major reforms have been delayed in the recent past to await the results of outside studies, he was excited about the recent study on Justice Reinvestment being undertaken in Massachusetts by Pew and the Council of State Governments — and by the potential their work holds for bringing the state’s leaders together on criminal justice reform.  He hopes that the state will pass some limited reform bills this session (what he termed hitting “singles and doubles”, such as easing the burden of post-release driver-license suspensions for drug offenders) and then make a push for major, comprehensive reforms in 2017.

While mandatory minimum sentences – which the BBA has long opposed — are certainly a part of the problem, the Senator explained that he felt their impact was sometimes overstated, as they are responsible for less than 20% of the inmate population at both prisons and houses of correction.  He hopes to:

  • increase prisoners’ ability to earn “good time” in order to ultimately shorten their sentences
  • re-classify certain inmates into lower-security facilities as their release nears, in order to better prepare them for re-entry, and
  • rework probation and parole by reducing or eliminating fees and addressing the problem of redundant dual supervision of one ex-offender by both agencies.

These and other steps are aimed at revamping the justice system to make it more supportive of successful re-entry.

We thank the Senator for his insights into the criminal justice system and look forward to working with him on future reforms.  In the meantime, we hope that you will join us at Walk to the Hill for Civil Legal Aid on January 28 to hear speeches by BBA President Lisa Arrowood, MBA President Bob Harnais, and state government leaders and then meet with your State Senator and Representative.  Tell them how much civil legal aid funding means to you, voice your support for appropriating a much-needed $27 million to the Massachusetts Legal Assistance Corporation (MLAC – line item 0321-1600), and start a dialogue that you can continue throughout the budget process — and into the future on issues of interest to you, such as the criminal justice reforms Senator Brownsberger and others are working on.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Repairing the World through Judicial Innovation and Evolution

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

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

Gants SotJ

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

Civil Case Reforms

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

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

Justice Reinvestment

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

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

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association