Posts Categorized: Uncategorized

Budget Update: Senate Approves FY18 Budget

From the release of the Governor’s proposed budget to the House Ways and Means and final budgets and our advocacy in between, we’ve been keeping you posted as the Commonwealth moves closer to a final Fiscal Year 2018 (FY18) budget.  This time, our attention turns to the Senate, which has been busy with its own budget process over the past few weeks. First, the Senate Ways and Means Committee released their version of the budget, then amendments were filed and debates took place, and finally, last Thursday, the Senate approved its $40.4 billion budget. Now, it’s on to the Conference Committee to reconcile the differences between the House and Senate budget, and, once this version is approved by both chambers, it will be on to the Governor to review and either sign as is, sign with line-item vetoes and proposed amendments, or veto.

Two BBA budget priorities were the focus of some debate during this process:

Massachusetts Legal Assistance Corporation (MLAC)

If you’ll recall, MLAC, the largest funder of civil legal aid in the Commonwealth, initially requested a $5 million increase to a $23 million appropriation in the FY2018 budget. The Governor’s budget allocated for a 1% increase, or $18,180,000. The House Ways and Means Committee proposal appropriated $1.5 million, which, with the help of an amendment filed by Representative Ruth Balser and approved unanimously, grew to $20 million in the final House budget.

Initial news coming out of the Senate budget process was not quite as positive, however, as the Senate Ways and Means Committee proposal only provided for an $18 million appropriation for the MLAC line-item (0321-1600).  Thankfully, civil legal aid has a great number of strong supporters in the Senate, and Senators Cynthia Creem and William Brownsberger filed Amendment #896, asking for a $2 million increase to the  MLAC appropriation.

Thanks to all of you who reached out to your Senators urging them to support  civil legal aid and sign on to this Amendment! In the end, Senators Barrett, Chang-Diaz, Rush, Eldridge, Cyr, Moore, L’Italien, McGee, Lewis, Welch, Gobi, Lesser, Brady, Flanagan, Lovely, and Boncore signed on as co-sponsors of the $20 million MLAC appropriation.

During the debate, Senator Creem explained why funding for civil legal aid matters. She pointed to the much needed assistance it provides to some of the Commonwealth’s most vulnerable individuals and communities, including those who facing domestic violence, eviction, deportation, inadequate health care, wage theft, and discrimination. She also noted that nearly two-thirds of eligible residents are now turned away and that every dollar invested saves the state between $2 and $5. Be sure to check out the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts Investing in Justice Report for full details on how civil legal aid helps and why it’s a smart investment, including the full econometric basis for the return-on-investment figures that Senator Creem cited. Senator Brownsberger concluded the debate by stating that, given what is happening at the federal level, with the White House proposing to eliminate federal funding for civil legal aid, state funding is needed now more than ever.

We are happy to report that, thanks to your outreach and the strong support from the full Senate, the Amendment was adopted unanimously and the final MLAC line-item came in at $20 million, matching the House budget!

Statewide Expansion of the Housing Court

As you know, the statewide expansion of the Housing Court, with all its accompanying benefits,  started off the budget process with a $1 million appropriation in the Governor’s budget, slightly below the Trial Court’s requested $1.2 million. Unfortunately, however, the House budget did not allocate any funds for this expansion, nor did it include language authorizing the expansion.

We are pleased to report that the Senate Ways and Means budget brought back the $1 million appropriation for the statewide expansion of the Housing Court line-item item (0336-0003). However, this line-item was up for debate as Senator Bruce Tarr filed Amendment #897, to zero out the Housing Court expansion appropriation. During the debate, Senator Tarr began by noting that he believes in the Housing Court and thinks it is a cost-effective resolution but was merely concerned about balancing the budget.

In response, Senator Karen Spilka, Chair of the Senate Ways and Means Committee, noted that her district, along with one-third of the state’s population overall, does not have access to Housing court, which specializes in complex housing issues, enforces codes, protects people from homelessness,  and addresses mortgage fraud among other important matters.  She further provided that Housing Court is both effective and efficient, as it has the lowest cost per case of the whole Trial Court and houses programs like the Tenancy Preservation Program, which saves the State millions of dollars each year by reducing the prevalence of expensive emergency shelter stays. Senator Tarr ultimately accepted this justification and withdrew his amendment.

Facing no other objections, the statewide expansion of the Housing Court ended up with a $1 million appropriation in the Senate budget!  Now the Conference Committee will have to consider whether to adopt the Senate’s version.

As the budget moves on to the Conference Committee, we’ll keep you posted about these items and any changes in our other priority areas, including the Trial Court and the Committee for Public Counsel Services (CPCS), which remained relatively level through the Senate process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Law Day Dinner: Celebrating the Leaders who Shape and Protect the Rule of Law

Last week, the BBA hosted its annual Law Day Dinner, which brings together members of the bar, the bench, and the business communities to recognize leaders who shape and protect the rule of law. The event is always one of the highlights of the year here at the BBA, and this time was no exception. The dinner included a keynote speech delivered by Congressman Seth Moulton and presentations of the Thurgood Marshall Award to Elaine Blais of Goodwin and the John G. Brooks Legal Services Award to Anne Mackin of Greater Boston Legal Services (GBLS).

To kick things off, BBA President Carol Starkey, of ConnKavanaugh, addressed the crowd, reflecting on the reason behind this annual event and the original proclamation of Law Day by President Eisenhower 59 years ago. She noted that all in the room were bound by their dedication and commitment to the law and its role in protecting individual rights, preserving justice, and ensuring equality. She took a moment to recognize the judges, custodians of the rule of law, in attendance and expressed gratitude to all members of the Boston legal community for their consistent selfless volunteerism, thoughtful policy contributions, intelligent debate, and persistent advocacy. She concluded her opening remarks by noting that the bar, collectively, continues to ensure, just as President Eisenhower said, that “the importance of law in the daily lives of our citizens is a source of national strength.”

BBA President Carol Starkey (ConnKavanaugh) addresses the crowd.

She went on to present the Thurgood Marshall Award to Elaine Blais, partner and head of litigation in Goodwin’s Boston office. The award recognizes attorneys in private practice in Greater Boston for their extraordinary efforts in enhancing the human dignity of others by providing legal services to Massachusetts’ low income population. Attorney Blais has been representing adults seeking asylum through Political Asylum/Immigration Representation (PAIR) and Immigration Equality for nearly a decade and representing unaccompanied immigrants and refugee children in their deportation proceedings through Kids in Need of Defense (KIND) for the past five years.

BBA president Carol Starkey (ConnKavanaugh) presents honoree Elaine Blais (Goodwin) with the Thurgood Marshall Award.

In a moving acceptance speech, Blais told the story of one particular child she and her team were able to assist in remaining in the U.S., a nine-year-old girl who had been living with her grandmother in El Salvador after her parents fled when they were threatened for standing up to a local gang. This young girl was forced to flee as well when the attention of the gang became directed toward her. Thanks to the hard work and dedication of Blais and her team, the girl was found eligible for asylum, and Blais is now helping to work on the green card application. This story highlights what a difference dedicated pro bono work can make, and Blais herself concluded with a call to action, asking members of the bar to use their unique positions as lawyers to assist those most in need.

Carol Starkey then returned to the stage to present the John G. Brooks Legal Services Award to Anne Mackin of GBLS. This award is presented to professional legal services attorneys for their outstanding work on behalf of indigent people in the Boston area. Attorney Mackin has worked in legal services for nearly 30 years, and joined GBLS’s Immigration Unit in 2013. Since then, she has helped people from all over the world who have witnessed or experienced unspeakable tragedies and faced severe persecutions. Her efforts have ensured that many who are fleeing extreme discrimination and danger are able to seek justice and safe harbor.

BBA president Carol Starkey (Conn Kavanaugh) gives honoree Anne Mackin (GBLS) the John G. Brooks Legal Services Award.

In an acceptance speech that displayed her humility and passion, Mackin discussed how privileged she feels to be able to work in legal services and specifically to be able to meet the brave and resilient individuals and children who have decided, as a matter of survival, to make the hard decision to pursue safety. In her work, she regularly takes on cases with individuals, often young children, who have endured unspeakable torture and abuse, wars and natural disasters and persecution on account of their race, gender, sexuality, or beliefs. She offered several harrowing stories, all of which revealed just how important the law and legal help is for these individuals. After making the often devastating decision to flee the only home they’ve ever known, many face a daunting bureaucracy with complicated and convoluted procedural and substantive rules upon reaching the U.S. Though not every attorney can dedicate their life to this work as Mackin has, her inspiring career reaffirms how crucial it is for all attorneys to take up Blais’ call to action in whatever way they can.

Following these moving speeches, Carol Starkey introduced keynote speaker U.S. Representative Seth Moulton. Congressman Moulton was elected to the represent the 6th District of Massachusetts in 2014, and he currently serves on the House Armed Services Committee and the House Budget Committee. After graduating from Harvard in 2001, Moulton joined the United States Marine Corps, where he served four tours in Iraq as a Marine Corps infantry officer, including two as an infantry platoon commander and two as a Special Assistant to General David Petraeus. After leaving the Marines in 2008, with the rank of Captain, Moulton attended Harvard Business School and the Kennedy School of Government, and worked in the private sector as managing director of the Texas Central Railway.

We welcomed Moulton to the Boston Bar once before, in 2015, when he attended the first of an ongoing Veterans Day reception series, where BBA members who are also current or former members of the military gather to share common experiences and challenges. This time, Congressman Moulton presented a captivating keynote speech that highlighted the notion that the role of lawyers and the rule of law is more important than ever.

Congressman Seth Moulton delivers the keynote speech.

His speech began with a compelling story about a refugee, Mohammed, who was his interpreter in Iraq. The two spent a great deal of time together, even going on to host a popular local TV show together as part of a media and free press initiative. Moulton explained that Mohammed put his life on the line, in an incredibly public way, to aid the U.S., and when he received a Fulbright Scholarship and left Iraq, his family faced such great threats that they had to flee their hometown. If Mohammed returned, he would be facing a life-threatening situation, so he decided to seek asylum, and Moulton helped him secure an attorney who made it possible for him to stay in the U.S. Moulton noted that, through all of the trials, Mohammed still maintained an amazing faith in the system. Moulton highlighted just how crucial it is for Americans to uphold and maintain this trust in the system, as the core of our democracy is respect for the rule of law and its fair application to all.

Lawyers, of course, play a unique role in maintaining the trustworthiness of the system, and, like Attorney Blais, Congressmen Moulton presented a call to action. He urged the crowd to use their authority as members of the Bar to speak up for the rule of law. He even harkened back to a quote from Ross L. Malone, President of the American Bar Association in 1959, who stated “tyrants throughout history have recognized in lawyers a constant threat to their tyranny.” Because lawyers and the judiciary are those charged with upholding the rule of law, he explained that bar associations are important pillars of our civil society and cited current examples of countries where human-rights lawyers are routinely jailed as “dissidents”.

Following this call, he turned his attention to the two award recipients, who are clearly prime examples of lawyers already going above and beyond this call. He spoke on the deep importance of pro bono and legal services work, like that undertaken by Blais and Mackin. This work is critical in instilling trust in the system that Mohammed relied on when carrying out his service for the U.S. and that the attorney fulfilled when taking on Mohammed’s case and ensuring the rule of law was fairly applied.

The Congressman concluded by recalling the most frequent question he got when he first decided to run in 2014: Why would you want to give up your work in the private sector to pursue public service? He said he no longer hears this question because it’s very clear why this service is crucial. He affirmed that no one should question the services of the members of the bar either, as it also is more important than ever.

Overall, it was a wonderful evening that highlighted the significance of the role of lawyers and the rule of law in upholding democratic ideals and ensuring justice for all. Be sure to check out our photo album and join us next year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA at ABA Day 2017

Each April, BBA leadership treks to Washington, D.C., along with bar leaders from all 50 states, for ABA Day, the American Bar Association’s annual lobbying event.  This year, as usual, the primary focus of our efforts was on funding for civil legal aid.  And though federal appropriations were under threat at the time of our trip last week, by this week we had received welcome news—from both the Capitol and the State House.

First, a refresher: The Legal Services Corporation (LSC) is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million, of which about $5 million comes to four different providers in Massachusetts.  That budget is not nearly enough: It’s been essentially level-funded for years, even as the need for legal services has increased significantly, and one result is that an estimated 50 to 80% of qualified applicants must be turned away merely for lack of resources.

That’s why it’s critical that lawyers, who are at the front lines of this crisis, continue to make the case for LSC and civil legal aid.  The threat was even greater this time, after a White House budget plan proposed eliminating (or “zeroing out,” in budget-speak) LSC funding altogether.  A $5 million hit to legal services in Massachusetts alone would have been devastating—all the more so when you consider that the budget also sought deep cuts in services elsewhere, cuts that would’ve further increased the need for legal services.

All of this had legal-services providers on edge and lent a sense of urgency to this year’s ABA Day (which, full disclosure, takes place over three days). So it was nice to kick the event off with an awards ceremony for four members of Congress who’ve led the fight on ABA priorities, including our own Representative Joe Kennedy.

 

Rep. Joe Kennedy receiving the ABA Justice Award, alongside (left to right)
MBA President Jeff Catalano, ABA President Linda Klein, MBA President-Elect Chris Sullivan,
BBA President-Elect Mark Smith, and BBA President Carol Starkey

We’re proud of Rep. Kennedy for making this a priority and we were not only delighted to nominate him, along with the Massachusetts Bar Association, for an ABA Justice Award in recognition of his steadfast work to promote funding for legal aid and to end discrimination, but also thrilled to learn he’d been chosen as one of this year’s honorees.  To cite just one example of his commitment, Rep. Kennedy established a bipartisan Access to Civil Legal Services Caucus.  (The next morning, at an ABA breakfast, we heard from his caucus co-chair from across the aisle, Rep. Susan Brooks of Indiana.)

In receiving the award—after needling ABA President Linda Klein, of Atlanta, about the Super Bowl—Rep. Kennedy told the audience how his time as a young attorney with Greater Boston Legal Services had opened his eyes, allowing him to see the justice system through the eyes of his clientele: that is, as a complex maze that they couldn’t always navigate successfully without legal assistance.  He spoke of civil legal aid as a lifeline for working families—one that we need to fight for now more fiercely than ever before.  He thanked the BBA and MBA for making it such a priority, and he closed by saying, “Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”  (Of course you already know this, because you followed my live-tweeting, right?)

“Our laws reflect the promises we make.  Our justice system reflects the promises we keep.”
—Rep. Joe Kennedy, ABA Justice Award recipient

With that event fresh in our minds, we headed off the next morning for a full day of meetings with the Massachusetts Congressional delegation.  To be clear, we have it much easier than the ABA Day participants from most other states, in that all our representatives stand with us four-square on LSC funding.  Our counterparts from elsewhere had their work cut out for them, educating their elected officials on the importance of, and the imminent threat to, the appropriation for civil legal aid.  Meanwhile, our group—including the BBA’s President, Carol Starkey of ConnKavanaugh, and President-Elect, Mark Smith of Laredo & Smith, along with their opposite numbers from the MBA, Jeff Catalano of Todd & Weld and Chris Sullivan of Robins Kaplan—had the opportunity to convey our appreciation for the delegation’s consistent support on our issues.

This extends not only to LSC, but also to the other top priority for ABA Day this year: access to justice for homeless veterans.  While the nation has made progress in recent years toward eliminating homelessness among our veteran population, there remain 39,000 homeless vets on any given night—and a staggering 1.5 million who live in poverty.  They face legal problems that are common to the poor, but also problems that stem directly from their service.  For example, time overseas—and, in particular, service-related disabilities, both physical and mental—can undermine a veteran’s ability to address legal issues when they arise, and if allowed to persist, these legal problems can become total barriers to critically-needed help.

 

Carol Starkey and Jeff Catalano with Rep. Mike Capuano,
a strong supporter of civil legal aid, as well as access to justice for homeless veterans

So on behalf of the ABA, we urged our members of Congress to enact the Homeless Veterans Legal Services Act, which would expand access to legal services for homeless veterans, and veterans at risk of homelessness, by authorizing the VA to partner with public and private entities and fund a portion of the cost of legal services.

That night, we attended an ABA reception at the Supreme Court, where Justice Elena Kagan spoke from the heart about advocacy for legal aid (“You are doing the Lord’s work,” she said), awards were given to Kids in Need of Defense (KIND) and long-time supporter Edwin Harnden of Barran Liebman (Portland, Oregon), and attendees more or less had the run of that historic building.

 

Carol Starkey and Mark Smith outside the US Supreme Court

ABA Day closed with a breakfast on our third day, where we got to hear from James Burnham of the Office of White House Counsel, who spoke about the work of his office, including the appointment of federal judges.  (We’ll have a new nomination for the bench in Massachusetts, with Judge George O’Toole, Jr., moving to senior status after 35 years as a state and federal judge.)  And finally, we were entertained by Minnesota Senator Al Franken, who made clear his fierce opposition to zeroing out LSC funding, calling such a move “callous”, “short-sighted”, and “penny-wise and pound-foolish.”   “We’re not gonna let that happen!” he pledged.

 

Sen. Al Franken speaking at an ABA Day breakfast

Sen. Al Franken: Eliminating LSC funding would be “callous”, “short-sighted”, and “penny-wise and pound-foolish” and “we’re not gonna let that happen!”

And with that, we were off.  But, oh yeah, I saved the best news for last:

  1. The same week we were traveling to D.C., the Massachusetts House was taking up its debate on the annual state budget—where, of course, the appropriation for civil legal aid is a top BBA priority. Here, the leading provider of funding is the Massachusetts Legal Assistance Corporation (MLAC).  We’ve covered that issue extensively in this space, but the update is that not only did the House Ways & Means Committee provide for a $1.5 million increase in the MLAC line-item, but thanks to a floor amendment last week from Ruth Balser, long-time champion of civil legal aid, the final House budget increased that figure to $2 million.  That would bring the total to $20 million, but now the debate shifts to the Senate, which will put forth their own plan later this month.  We will of course keep you updated…
  2. This week we learned that the Congress had worked out a spending plan to cover the remainder the current federal fiscal year, ending September 30. And we were relieved to see that it level-funds LSC at $385 million once again.  That’s well short of the $450 million we were asking for, but still far, far better than the $0 that the White House had recommended.  So the news came as a relief … but also a spur to continue our advocacy on this, because the justice gap is not going away any time soon.

—Michael Avitzur
Government Relations Director
Boston Bar Association

SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

From time to time, we like to update you on recent key happenings at the Supreme Judicial Court (SJC). This month, we have two significant developments to share: one related to the dismissal of over 20,000 convictions based on tainted drug evidence, and the other related to the SJC hearing oral arguments on the legal force of an “ICE Detainer.”

Bridgeman v. District Attorney

On Tuesday, five years since reports of the misconduct of Annie Dookhan at the Hinton Drug Lab first emerged, thousands of individuals who had been convicted or pled on the basis of tainted evidence finally received some resolution. Following the holding in “Bridgeman II,” prosecutors just announced they were dismissing 21,587 drug convictions, likely the largest mass dismissal in U.S. history.

As you know, from our many past reports, the scandal arose from the 2012 discovery that chemist Annie Dookhan had for years mishandled thousands of drug samples, by, among other things, contaminating unknown drug samples with known drugs, failing to conduct tests on samples she then labeled as controlled substances, and falsifying evidence logs and reports.

In 2013, she pled guilty to 27 criminal counts, including perjury, obstruction of justice, and tampering with evidence, and served more than two years in prison. All the while, more than 20,000 individuals that were convicted or pled on the basis of the tainted evidence were living with the significant consequences that come along with a criminal conviction, including difficulty securing employment, housing, custody of their children, and public benefits. Because a Dookhan conviction often served as a predicate offense, many also faced harsher sentences for later charges.

Over the past few years, the courts struggled to determine how to offer justice based on the sheer volume of such cases, and Bridgeman v. District Attorney for Suffolk County eventually went to the SJC two times. In May of 2015, the SJC held that the Dookhan defendants who challenged their convictions could not be charged with more serious crimes if given a new trial. Additionally, even if convicted, they could not be given a harsher sentence than was originally imposed.

In the fall of 2016, Bridgeman was before the SJC again, this time to determine whether all the convictions based on tainted evidence should be dismissed or instead subject to a court-imposed deadline. The BBA submitted a brief, written by Amicus Committee Co-Chairs Elizabeth Ritvo, Brown Rudnick, and Anthony Scibelli, Barclay Damon, calling for a global remedy. We argued that the Court should vacate, without prejudice, the adverse disposition on all drug-related charges where Dookhan was the primary or secondary chemist, and that the Commonwealth should be allowed a period of at least one year to re-prosecute individual charges, with the remainder automatically dismissed with prejudice.

Overall, the brief was drafted based on two principles central to the BBA’s mission: access to justice and the fair administration of justice. The global remedy would secure justice for the defendants who had already been living with the consequences of a conviction based on faulty evidence. Also, because the criminal misconduct was that of a state employee, implicating the public confidence in the government and justice system, the burden should be on the Commonwealth and not the individual defendants, to right the wrong. Furthermore, a global remedy would begin to relieve the burden on the justice system of individually resolving more than 20,000 cases.

In January, the SJC released its decision, agreeing that the Commonwealth should bear the burden, but declining to adopt a global remedy. The decision called for a three-step protocol where: 1) the District Attorneys were given 90 days to vacate and dismiss with prejudice those cases that would or could not be re-prosecuted; 2) adequate notice was to be approved by the Single Justice and sent to all defendants whose cases had not been dismissed; and 3) the Committee for Public Counsel Services (CPCS) would assign counsel to all indigent defendants who wished to explore the possibility of moving to vacate their plea or for a new trial.

The 90-day first step just came to an end, and prosecutors announced Tuesday that over 20,000 cases would be dismissed with prejudice. Overall, this brings the State, and the Dookhan defendants, much closer to a final resolution. The BBA is proud to have played a part and applauds the dismissal. BBA President Carol Starkey stated, “We thank the District Attorneys for their recognition that a different course of action, more than five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.”

President Starkey noted that “[f]or far too long, thousands of Massachusetts residents have lived under a cloud created by the misconduct of a rogue state employee, carrying a criminal record that may have prevented them from securing jobs, housing, benefits, and even legal immigration status. Today’s actions lift that cloud and allow the Dookhan defendants to move forward.”

As Dookhan takes a step toward comprehensive resolution, another case garnering nationwide attention just appeared before the SJC for oral arguments….

Commonwealth v. Sreynuon Lunn

On April 4, the SJC heard arguments on whether it is permissible for state and local authorities to hold people on “ICE detainers.” These detainers, from the federal Office of Immigration and Customs Enforcement (ICE), request federal, state, or local officials to hold individuals for up to 48 hours beyond when they would otherwise be released, on the basis that ICE has “determined that there is a reason to believe the individuals is an alien subject to removal from the United States.”

Sreynuon Lunn entered the US in 1985 as a refugee, receiving lawful permanent resident status in the early 1990s. He was ordered deported in the early 2000s on account of criminal convictions. Cambodia, however, would not accept Lunn back, and he was released from federal custody in October 2008. Eight years later he was arrested again on unarmed robbery charges. ICE lodged a detainer request with state authorities, but on February 6 state prosecutors elected not to prosecute Lunn and the case was dismissed from Boston Municipal Court. Lunn’s attorney asked for him to be released but the judge declined, and Lunn remained in court lock-up until ICE agents took him into custody several hours later. While the case is now moot as a result of Lunn’s detention, the SJC took it up “because the case raises important, recurring, time-sensitive issues that will likely evade the full court’s review in future cases.”

At oral arguments, the SJC heard from three attorneys, one on behalf of the Department of Justice (DOJ), one on behalf of the Commonwealth, and one on behalf of Lunn. Joshua Press, for DOJ, argued that without a law prohibiting state officials from detaining people at the request of ICE, authorities did not misstep by enforcing the requested detention and that detainer requests reflect principles of comity between various law enforcement agencies.

Jessica Barnett, deputy chief of the Criminal Appeals Division for Attorney General Maura Healey, presented the state’s argument that state agencies lacked the authority to comply with ICE, noting that keeping an individual in custody after the case is otherwise resolved was the equivalent of a fresh arrest without sufficient legal justification. She argued that “probable cause for civil removability is simply not a basis for arrest under Massachusetts law.” Emma Winger of CPCS, attorney for Lunn, echoed that, but also argued that the detainer process violates constitutional guarantees of due process because it amounts to custody without judicial oversight.

This case is significant for a number of reasons, not least because it may be the first State Supreme Court to reach the issue. It is also being considered in a time of great uncertainty around immigration given recent federal events, including the issuance of controversial executive orders and warnings from Attorney General Jeff Sessions that those cities and towns that do not comply with federal immigration law may lose federal funding.

ICE Presence in Courthouses

The argument also occurred on the heels of reports across the country that ICE officials were showing up at courthouses in order to reach undocumented immigrants. One of the first of such stories was the arrest of a woman in Texas who was seeking a protective order against an allegedly abusive boyfriend. The reports of ICE’s presence at courts have brought sharp criticism, not only from the attorneys of the immigrants being targeted by ICE, but also judges, including the Chief Justices in California, Washington, and New Jersey.

Much of this criticism centers around a concern that ICE arrests at courthouses can undermine the judicial system. As Washington Chief Justice Mary Fairhurst wrote in her letter to Secretary of Homeland Security John Kelly, “When people are afraid to appear for court hearings, out of fear or apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner who wrote to Secretary Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Overall, with the nation watching how ICE and state officials will interact, the Lunn case could not come at a more important time. As usual, we’ll continue to keep a close eye on this and all other matters impacting access to, and the fair administration of, justice.

We may even have the chance to discuss the issue of ICE showing up at courthouses with our Massachusetts Congressional Delegation in D.C. next week. President Carol Starkey and President-Elect Mark Smith are headed down as part of ABA Day, where they will be advocating for civil legal aid through federal funding of the Legal Services Corporation and for increased access to legal services for homeless veterans.

Stay tuned for updates on the BBA advocacy in Washington!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

With legislative committee hearings picking up steam of late, the 2017-18 legislative session is underway in earnest now, and we were at the State House for two important events this week.

The session technically lasts for two years, but the critical work generally must be accomplished by July 31 of the second year, as that’s the last date for formal meetings of the two houses in full.  After that, until the new Legislature is sworn in the following January, only informal sessions are conducted, with just a few representatives attending—any one of whom can individually block a bill from passing.  Thus, only those matters considered non-controversial are taken up.

The first couple of months of the session are spent on bill-filing (legislators must file bills by mid-January for them to be automatically admitted); populating the several dozen House, Senate, and joint committees; assigning those thousands of bills to the respective committees; and scheduling of hearings by the newly-appointed committee co-chairs (one from each house on the joint committees).

All bills that are duly admitted must get a public hearing before the committee to which they’ve been assigned.  Most often, because of the large number of bills on each committee’s docket, the hearings cover many bills at once.  Any member of the public can come forward to offer testimony on one or more bills, and although witnesses are asked to keep their statements brief, the hearing continues until all have been heard.

This past Monday, the Revenue Committee met for its first public hearing of the new session, and one of the BBA’s bills was on the agenda: House Bill 2645 (H. 2645): An act to continue tax basis rules for property acquired from decedents, filed on our behalf by Representative Alice H. Peisch.  It’s a complicated issue, to be sure, but fortunately, we had George Cushing, of McLane Middleton, on hand to help break it down for committee members—and within the three-minute time limit even (not counting follow-up questions from the panel)!

Without getting bogged down in the details, there were changes made to the federal estate tax several years ago, and while Massachusetts made some changes to its estate tax in response, the net result is that beneficiaries of decedents who passed away in 2010 will not get the benefit, which others do, of a “step-up” in the basis of the property they inherit (say, a home, a small business, or equities).  That means that when they sell that property down the road, perhaps many years later, they will be taxed on the capital gain not since the inheritance but rather since the decedent made the original purchase.  And if that purchase was well before their death in 2010, the difference could be not only unfair but substantial as well.

This unusual situation has led to confusion and differing interpretations among practitioners, thus creating unnecessary uncertainty.  We are seeking to provide that clarity by eliminating the anomaly that this hidden double tax represents, restoring the status quo ante, in which successors to decedents’ property get enhanced basis, but the property is subject to the Massachusetts estate tax.  Individuals who inherited property from those 2010 Massachusetts decedents will be authorized to use the federal adjusted basis (generally the value at death), as determined under the federal rule that applied in 2010 only, if the carry-over basis regime was not elected for federal tax purposes.

George Cushing, testifying on behalf of the BBA, before the Legislature’s Joint Committee on Revenue, April 3, 2017

The good thing about this first Revenue Committee hearing is that, by design, all the bills heard were approved by the Committee in the last session.  We hope that our bill will be among those reported favorably again—and that we can push it on for floor votes in each chamber this time.

Those votes would likely happen farther into the session.  For now, the biggest item before both houses is the development of the Fiscal Year 2018 (FY18) budget.  As we’ve noted, the Governor has already filed his proposal for spending the $40+ billion the state expects to take in next year.  Before FY18 begins on July 1, the two chambers will (we hope) come together on a budget package to send back to the Governor—which he may then accept as is, or (more likely) will mostly approve but send back with targeted cuts and some suggested changes.

The next big step in that process takes place this coming week, with the House Ways & Means Committee formally submitting its version of the budget for deliberation by the full House over the rest of the month.

One of the BBA’s biggest priorities, in this or any other year, is funding for civil legal aid in the Commonwealth, which is primarily provided by the Massachusetts Legal Assistance Corporation (MLAC).  MLAC, in turn, receives the bulk of its resources through an appropriation in the state budget.

Our commitment to this issue is reflected by the establishment of a BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, and our adoption of the Task Force report’s primary recommendation, that MLAC funding be increased by $30 million over three years.  Since the report’s release in 2014, state finances have hit a prolonged rough patch in which revenue has consistently missed targeted levels, and despite broad and deep support from Massachusetts legislators, we’ve fallen short of that goal.  Still, the Legislature and the Governor have come through with a 20% increase for MLAC across the last two years, to $18 million in FY17, even as overall spending has grown at a much lower rate.

This year, we are advocating for a $5 million increase in MLAC’s line-item.  Our efforts on civil legal aid are in conjunction with the Equal Justice Coalition (EJC)—a joint partnership of the BBA, MLAC, and the Massachusetts Bar Association—and to help spread the message about civil legal aid on Beacon Hill, and grow our support even further, the EJC held a briefing earlier today (Thursday) for elected representatives and their staffs.

The BBA’s President-Elect Mark Smith, of Laredo & Smith, took part in a panel discussion, to help educate the dozens of State House denizens in attendance.  In particular, Mark underscored both the report’s finding that investment in civil legal aid produces a positive return on investment for state coffers, and the BBA’s continued commitment to fighting for that full $30 million increase in state funding for civil legal aid—even if on-going budget constraints mean that it will take longer to get there than we, or the Legislature, would like.  (You can get more info about that funding here.)

 BBA President-Elect Mark Smith speaking at a State House briefing
on funding for civil legal aid, April 6, 2017

And with the White House recommending that Congress zero out funding for the Legal Services Corporation (LSC), which distributes an additional $5.2 million to providers in Massachusetts, our support from the Legislature at home may be tested even further.  Although the LSC money is independent of the state-level appropriation to MLAC, we would nevertheless certainly feel that loss here, as it represents more than 20% of the total funding for legal services in the Commonwealth.

So as we stay on top of the budget process at the State House—and keep you updated on it—we’ll also have one eye cast on the Capitol in DC.  We’ll be headed that way to make the case for the LSC, and civil legal aid in general, as part of the American Bar Association’s annual ABA Day lobbying event toward the end of April.

More on that to follow in this space … In the meantime, check out our four different podcasts relevant to the larger issue:

—Michael Avitzur
Government Relations Director
Boston Bar Association

Issue Spot Podcast Episode 4: Gender Identity and Public Accommodations in Massachusetts

At a BBA-hosted event held on March 8, an expert panel discussed a recently-enacted law—which the BBA supported—prohibiting discrimination on the basis of gender identity in places of public accommodations.  Jill Zellmer (Tufts University), Mason Dunn (Massachusetts Transgender Political Coalition), and Catherine Reuben (Hirsch Roberts Weinstein), offered insight into the issues addressed by the law, dispelled common misinterpretations, and informed attendees on what “public accommodations” does – and doesn’t – include.

Mason Dunn, MTPC’s executive director, explained that a person’s sex is determined biologically, but gender is more complex. He also spoke about the importance of the prior transgender-rights law, adopted in 2011, which barred discrimination on gender identity in a variety of areas—but not public accommodations, which were left out until 2016.

What does the new law cover?  Attorney Catherine Reuben provided some examples, including colleges and universities, municipal-run facilities, and some business offices. Reuben added that transgender discrimination violates Title VII, and although the new Administration has withdrawn an advisory letter from the Obama Administration saying that transgender discrimination violates Title IX, the case law still supports that view.

Jill Zellmer, from Tufts’ Equal Opportunity Office, offered practical guidance on what schools and other places of public accommodation can do to increase inclusion.  She advises facilities to consider creating or reconfiguring bathrooms or changing rooms, for example, that are both gender-neutral and can serve people in wheelchairs—complying with two sets of regulations at once.

But what if a facility lacks the capacity, or the money, to create an entirely new set of gender-neutral accommodations?  Zellmer counseled that users should choose the option they feel the most safe and comfortable with, and the facility should do the best they can, while taking into account the individual concerns of users.  “It’s all about the interactive dialogue,” says Reuben, as is the case with the Americans with Disabilities Act.

What Will Become of Your Digital Assets?

If you’re reading this, that’s a good indication that you have an e-mail account.  You probably have a number of other on-line accounts, too—Facebook, Twitter, Instagram, and so on.  You may conduct a great deal of business exclusively on-line as well.  Perhaps you have money saved with a bank that exists only on-line, or you may have chosen to receive financial statements only via e-mail.  But have you given much thought to what will become of all these electronic communications and other digital assets (and they really should be thought of as assets) after you die or become incapacitated?

Chances are you haven’t … unless you’re a trusts-and-estates practitioner, in which case you can’t help but have noticed the lack of guidance on this issue from either the Legislature or the courts—even as we’ve come to live more and more of our lives “in the cloud,” so to speak.  Few decedents leave clear guidance as to their wishes regarding their digital assets, and policies are varied and often difficult for users to find (if they even exist) among the companies that act as custodians for on-line accounts.

All of this adds up to a growing problem, but one that the Uniform Law Commission set out to address by promulgating the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2016.  This week, the BBA Council, acting on the recommendation of our Trusts & Estates Law Section, voted to endorse that Massachusetts adopt RUFADAA.

Joe Bierwirth, of Hemenway & Barnes, presented the proposal to the Council alongside his Trusts & Estates co-chair, Andy Rothstein of Goulston & Storrs.  “This is an area of the law where we very much need some guidance, given the absence of statutes or case law,” Bierwirth told Issue Spot.  “While practitioners may not agree 100% on the ideal approach, adoption of RUFADAA would be helpful in setting the ground rules.”

This proposed uniform act, which has already been adopted in some form by at least 24 other states, would modernize fiduciary law for the Internet age.  It would provide some clarity to the law concerning a growing problem, helping Internet account providers, users, their fiduciaries, and the courts by creating a formal process to determine a fiduciary’s authority to access digital assets, while allowing a user to have control over how that process will play out in their case.

Fiduciaries are the people appointed to manage our property when we die or lose the capacity to manage it ourselves.  The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

Nearly everyone today has digital assets, such as documents, photographs, e-mail, and social media accounts, yet fiduciaries are often prevented from accessing those accounts by password protection or restrictive terms of service.  Digital assets may have real value, both monetary and sentimental, but they also present novel privacy concerns.  RUFADAA seeks to balance the interests of fiduciaries in managing digital assets in furtherance of their responsibilities with the privacy interests of the user—and potentially those with whom they communicated—against unwarranted disclosure.

The bill does so in part by establishing a hierarchy to determine the preferences of the user: First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.

Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access.  Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.

The other way the bill balances interests is by granting a fiduciary full access to the content of electronic communications, in particular, only when authorized by the user, or when the user was the originator of the communication.  In other instances, unless a court orders otherwise, the fiduciary’s access is limited to a catalog of the communications, including such information as the addressee, sender, and date and time—rather than the full content.

It should also be noted that RUFADAA leaves unaffected other laws, such as fiduciary, probate, trust, banking, investment securities, agency, and privacy law.  Any fiduciary would still be prohibited from violating fiduciary responsibilities by divulging or publicizing any information obtained through RUFADAA.  It also does not grant a fiduciary access to an employer’s internal e-mail account that was used by the user.

One complication in all this has been the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act (18 U.S.C. Section 2701, et seq.)  Created in a pre-World Wide Web era, when few people held on-line accounts, that law set out to protect the content of a user’s electronic communications by prohibiting service providers from voluntarily disclosing a user’s content unless authorized, or under certain exceptions.  One of those exceptions has to do with “lawful consent” of the user, but the SCA is silent as to whether fiduciaries should be considered to have the consent of the users for whom they act.

As a result, the Supreme Judicial Court recently heard arguments in a case (Ajemian v. Yahoo!, Inc.) that pits Yahoo! against a user’s next of kin, who are seeking access to his Yahoo! account.  That case turns on whether the Act prohibits disclosure of the contents of a deceased e-mail account-holder’s account, including the communications contained therein, to the administrators of his or her estate—in this instance, represented by his two siblings, who argue that they should have access, under one of the Act’s exceptions, as their late brother’s agents.  Yahoo! asserts that the exception does not apply, and that the company is therefore barred from disclosing the contents of the e-mails at issue.

We will know soon what the Court decides, and how the Legislature chooses to address the issue (if at all).  But we appear to be a bit closer to finally having some clarity in this area.  In any event, as Trusts & Estates Section co-chair Andy Rothstein points out, “Regardless of what is ultimately enacted, it’s simply good practice to include decisions about digital assets as part of the estate-planning process.”

—Michael Avitzur
Government Relations Director
Boston Bar Association

Recent Developments in the Law on Jurors

Sometimes a series of news items come across our desk in quick succession and we can’t help but see connections.  And sometimes, like the Globe’s sports columnist Dan O’Shaughnessy, we’re just trying to string together a number of random ideas on deadline.  In the hope that you’ll view this more in the first category than the second, here’s the scoop on three recent developments regarding juries:

 

Racial Bias in the Jury Room

In a case that tested the sanctity of juror deliberations, the U.S. Supreme Court ruled in Pena-Rodriguez v. Colorado that a defendant could seek a new trial based on a showing that one of the jurors who convicted him was racially biased, even though this information emerged from the jury room rather than voir dire.  The 5-3 decision, released on March 6, held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the common-law no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury-trial guarantee.

Jury deliberations are presumed to be secret, and jurors generally cannot testify after a verdict that improper considerations had swayed the jury.  Over the years, that rule has been codified in state and federal rules of evidence, but it falls short of a blanket prohibition on piercing the veil.  In fact, juror testimony was already permitted to show that (1) the jury was given improper information from outside about the case, (2) someone tampered with the jury with bribes or threats, or (3) someone on the jury wrote down the wrong verdict on the official form.

The facts in Pena-Rodriguez are troubling and disheartening, to say the least: After the defendant was convicted of a sex offense, two jurors came forward to allege that another juror had injected into deliberations his own opinion—as a former police officer, no less—that the defendant must be guilty of a sex offense “because he’s Mexican, and Mexican men take whatever they want”—and that that “nine times out of ten,” Mexican men are guilty of “being aggressive toward women and young girls.”  Nevertheless, following the Colorado rule, the trial court refused to hear the evidence, and an appellate court affirmed the conviction.

In previous cases, the Court had declined to allow testimony from former jurors regarding either fellow jurors’ drug and alcohol use or their lies during voir dire about impartiality.  Here, though, the Court ruled that racial animus is different.  Writing for the majority, Justice Anthony Kennedy called it “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice,” and one that “implicates unique historical, constitutional, and institutional concerns.”  Thus, a “constitutional rule that racial bias in the justice system must be addressed … is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”  The defendant was granted a new trial.

 

Trial Judge’s Discretion on Peremptory Challenges

Meanwhile, the Supreme Judicial Court of Massachusetts (SJC) issued a decision on February 28 in the closely-watched case of Commonwealth v. Oberle (SJC 12149).  A unanimous high court let stand a conviction in spite of the defendant’s claims that the trial judge had improperly denied his use of a peremptory challenge.

The defendant faced charges of domestic violence against his girlfriend.  Seven of the first eight venire members called for individual voir dire were women.  After defense counsel exercised his third peremptory strike, all to exclude women, the trial judge sua sponte found a pattern of discrimination and determined that the defendant could not justify two of his three challenges.  When counsel next used a peremptory strike on a female prospective juror, the judge disallowed it, even though the juror had specialized training in detecting and reporting domestic abuse and had done so on three occasions.  In response to counsel’s articulation of this rationale, the judge decided, without further explanation, that this rationale was a pretext, and the juror was seated notwithstanding the defendant’s objection.

The case presented two questions regarding voir dire: What standards, if any, govern a judge’s finding of a pattern of discriminatory strikes early in voir dire when all but one potential juror called for questioning are part of the same discrete group, and that group comprises half the venire; and what restrictions, if any, the Supreme Court’s recent decision in Foster v. Chatman places on a trial court’s authority to decide that an unquestionably adequate, group-neutral explanation for use of a peremptory challenge is nevertheless a pretext for impermissible discrimination.

The SJC noted the trial judge’s “considerable discretion” in ruling whether a permissible ground for the peremptory challenge was shown.  After a prima facie showing of a discriminatory pattern is made, the party exercising the challenge bears the burden of showing a “group neutral” explanation for the challenge.  The judge then considers whether the explanation is both “adequate” and “genuine.”  The Court found that “unfortunately” no specific findings on whether the challenge was “adequate” were made here, but even assuming the explanation was adequate, “the judge was not thereby obligated to accept that explanation as genuine.”  Therefore, the judge did not abuse his discretion by finding a lack of genuineness and denying the defendant’s peremptory challenge on this basis.  The defendant’s claim was rejected, and the conviction was upheld.

 

Post-Verdict Juror Contact by Attorneys

Those two cases dealt with the end (deliberations) and the beginning (voir dire) of jury service, respectively.  But what about after jury service has concluded?  Specifically, when and how can a trial attorney make contact with jurors after they have rendered a verdict and been dismissed?  That is the subject of a new set of amendments to the M.R.P.C. as proposed by the Standing Advisory Committee on the Rules of Professional Conduct.  Specifically, the changes to Rule 3.5, which addresses post-verdict juror contact, would add a new subparagraph (4) to Rule 3.5(c), as well as replace Comment 3 to Rule 3.5(c).  The proposed amendments are ultimately meant to conform the rule to the SJC’s decision last year in Commonwealth v. Moore.

A little background is in order: In 2014, the BBA’s Ethics Committee submitted comments to the Standing Advisory Committee on its then-proposed amendments to Rule 3.5, expressing support for the changes, which would permit post-verdict contact in the absence of a contrary order and subject to certain restrictions—but also noting that the rule might not immediately apply because of existing common law to the contrary.  The revisions to Rule 3.5 were adopted and became effective in July 2015.  But the Moore case, as anticipated by the Ethics Committee’s comments, raised questions about whether the amended rule effectively superseded common law, and if so, whether the rule allows for contact with jurors discharged prior to the effective date of the amendment.

Ultimately, the SJC held that the new Rule 3.5 did overrule the previous common-law rule requiring attorneys to seek the leave of court before post-verdict contact, but did not overrule other common-law principles, such as those limiting post-verdict inquiry of jurors to matters relating to extraneous influences.  The Moore court also offered guidelines for post-verdict contact, including a requirement of notice to opposing counsel before seeking juror contact.  The amendments to Rule 3.5 reflect this holding with new language preventing a lawyer from communicating with a juror after discharge if “the communication is initiated without the notice required by law.”  The proposed comments explain in more detail the specific notice requirements, outlining how much notice must be given and what content must be included.

Providing comments on these sorts of changes is an important service we provide to the court system.  Just last week, we wrote here about a series of comments we submitted recently.  And we are currently working to gather the input of our steering committees on not only the proposed rules on juror contact but also changes to the M.R.P.C. rule governing retention of client files.  Both are due on May 1, and we will follow up to find out what the final rules, as adopted by the SJC, ultimately look like.

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

February was a busy policy month here at the Boston Bar Association (BBA), as we submitted five sets of comments on proposed new rules and proposed amendments to rules. We’ve often highlighted the hard work of our Sections in submitting these comments. This process allows members to leverage their specific expertise and offer constructive feedback on items that will influence their own practice of law. The courts have long shown an interest in taking a close look at these comments, and the insights offered by the Sections are often reflected in the final iterations of the rules. In fact, keep reading to the end for an example of BBA Section concerns that were just addressed in a recently promulgated rule!

Last month’s BBA Section comment submissions included:

Board of Bar Overseers Proposed Rule Changes

                The Board of Bar Overseers (BBO) solicited comments related to amendments to Rule 3.18 and related rules on the conduct of adjudicatory proceedings. The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will now be reserved exclusively for Board members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

                The Ethics Committee and the Business and Commercial Litigation Section Steering Committee drafted the comments to the BBO, unanimously agreeing that the proposed rule changes were “welcome and necessary.” Paul Lannon, Partner at Holland & Knight and Chair of the Ethics Committee, noted that “[t]he BBO provides a vitally important service to the Massachusetts bar and the general public” and “[t]he proposed rule changes should significantly improve that service, especially with respect to motions for protective orders and discovery.” The Ethics Committee and Business and Commercial Litigation Section Steering Committee agreed that because hearing officers have less experience than Board members, certain motions, like those on protective orders and discovery, should be decided only by Board members. Hearing officers may hear only one or two matters in their tenure, so leaving motions that serve important public functions and have significant impacts to more experienced Board members is best.

Proposed Amendments to Superior Court Standing Orders and Rules

                The Superior Court invited comments on a range of proposed amendments to Superior Court Standing Orders and Rules, including the addition of a new section calling for a “Final Trial Conference Before Jury Trial” to Standing Order 1-88. In that conference, parties would discuss matters in the new Rule 6.2(a) that relate to a range of empanelment issues like the statement of the case to be read to the venire and the process and content of the judge’s intended voir dire.

                The Business and Commercial Litigation Section Steering Committee provided comments on the proposed Amendments to Standing Order 1-88, expressing that members of the Section were generally supportive of the proposed changes. Paula Bagger, of Cooke Clancy & Gruenthal LLP and a member of the Steering Committee, who was kind enough to present the comments to the BBA Council for their approval, noted the Steering Committee members “unanimously agreed that the formal addition of a ‘final trial conference’ in the Superior Court conforms the rules to an existing ‘best practice,’ which helps civil trials get started promptly and efficiently.”

                Given the new Superior Court Rule 6, members expected the final trial conference would allow for much of the foundation of voir dire to be set in the conference, and some members noted that many Superior Court judges already regularize many of the issues that would be addressed in this new process, but it will likely benefit litigants to have this process formalized in a final trial conference. The comments also addressed a potential ambiguity in the proposed requirement that parties submit a “final joint witness list,” and suggested that there could be a clarification that this does not authorize unilateral additions to a party’s witness list.

Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicited comments on amendments to Mass. R. Civ. P. 26(b)(5), which would make the Massachusetts rule on privilege logs the same as the federal rule. The current Massachusetts rule requires a log that presents certain information when a party does not provide, on the basis of privilege, otherwise discoverable information. Unlike the current Mass. Rule, the federal rule does not require a document-by-document log, though parties are still required to describe the nature of the material withheld in a manner that would provide the other party an ability to assess the merits of the reason for withholding the requested material.

                The Business and Commercial Litigation Section Steering Committee also offered comments on these amendments to Rule 26. Paula Bagger noted that “whether the rules should mandate the preparation of privilege logs turned out to be an issue close to the hearts of our Steering Committee of business litigators and generated active discussion. Our comments reflected both the views of the majority, which favored the proposed rule, and those who believed the present rule better reflects practice in our state courts.”

                Some members, for example, welcomed the change in the rule, noting that the current rule on privilege logs is often time-consuming, expensive, and even potentially creates a means for a party with fewer privileged documents to aggressively insist the party with more documents follow the rule completely or risk waiver. Others, however, felt the current rule, even if burdensome, offers more safeguards as it makes it more difficult to “slip something past” opposing counsel than would be the case with more generalized descriptions. They also acknowledged the benefits of harmonizing state and federal law but warned that certain key differences in practice, like the availability of early judicial intervention in federal courts, make the new rule less suitable to Massachusetts. Finally, other members noted the new rule could be improved by requiring accompanying information to be provided with the categorical description and clarifying that a judge can order production of a privilege log when a particular case or circumstance would benefit from it.

Proposed Amendments to the Mass. Rules of Civil Procedure Regarding Credit Card Debts

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure also invited comments on two new proposed rules related to actions for money damages against individuals arising from credit card debt. The proposed amendments were specifically meant to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Proposed Rule 8.1 would require plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Proposed Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1.

                The Bankruptcy Law Section offered comments on the proposed rules, expressing general support for the provisions and noting that the rules would help to address common abuses within credit card debt collection cases. The comments also raised one concern about the requirement that an affiant attest under oath that action is not barred by the statute of limitations, proposing that instead, perhaps the affiant could be required to attest the he or she believes after reasonable investigation that his or her client has a good faith basis for asserting the action is not barred by the statute of limitations.

Proposed Rules Governing Bail Magistrates and Bail Commissioners

                The Trial Court Bail Committee invited comments on proposed Trial Court Rules Governing Bail Magistrates and Bail Commissioners, intended to replace the 2014 Superior Court Rules Governing Persons Authorized to Admit to Bail Out of Court. The new rules would apply to all Clerks of Court, Clerk-Magistrates and Assistant Clerk-Magistrates who participate in the overnight bail process and Bail Commissioners, and remain similar in many aspects to the 2014 rules. The changes in Proposed Rule 14, however, were taken up by the Criminal Law Section Steering Committee.

                The Steering Committee comments noted that, overall, members of the Section believed the Proposed Rules represent a commendable effort to improve the process and quality of out-of-court bail determinations. However, some members expressed a concern over the lack of clarity as to whether the standards found in Proposed Rule 14 were fully consistent with applicable substantive law. The comments pointed out the specific provisions of the rule which may conflict with provided statutory and case law, suggesting that the Trial Court Bail Committee ensure these particular points were consistent with the relevant statutes and cases. Eric Haskell, of the Massachusetts Attorney General’s Office and the member of the Steering Committee tasked with drafting the comments, was pleased the Committee was “able to identify several specific areas where we believed the Proposed Rules could benefit from provisions” and “add value to these proposed rules.”

 

While we were busy preparing and submitting the comments above, the BBA also got word of a final order that reflected the concerns of past comments submitted by a BBA Section:

Parenting Coordination Standing Order

                On February 1, 2017, the Probate and Family Court promulgated the final Parenting Coordination Standing Order 1-17, related to the procedures and requirements for parenting coordinators either assigned by agreement between parties or appointed by the Court.

                Last year, the Family Law Section Steering Committee provided comments raising a number of concerns, including the uncertainty surrounding what happens when the parties disagree with a parenting coordinator, whether or not the Court has the power to grant the parenting coordinator binding decision-making authority without agreement of the parties, and what payment procedures apply if the Court appoints a parenting coordinator but both parties refuse to pay.

                Many of the concerns expressed in the comments were ultimately addressed in the final version of the Order. The Court clarified that parties always had a right to access the Court, even when they had submitted to the binding decision-making authority of the parenting coordinator. Additionally, the Order now provides that the binding decision-making authority of the parenting coordinator could apply only upon agreement of the parties and that a parenting coordinator could not be appointed by the Court if both parties refused to pay.

 

We look forward to being part of many more opportunities to comment this year (right now we’re gathering input on post-verdict juror contact and file retention) and will keep you up to date on the important insights and hard work coming out of our Sections.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Let the Criminal-Justice Reform Debate Begin

After months of anticipation, the Council of State Governments’ Justice Center (CSG) finally released its report and recommendations on the Massachusetts criminal-justice system.  Eighteen months ago, the leaders of all three branches of government — Governor Charlie Baker, Chief Justice Ralph Gants of the Supreme Judicial Court, Senate President Stanley Rosenberg, and Speaker of the House Robert DeLeo — formally invited CSG to undertake such a review, and a Tuesday-morning press conference attended by all four leaders heralded the end product.

Governor Baker immediately filed legislation to implement some of CSG’s recommendations, while emphasizing that the full report represents a consensus among all the leaders, who collectively made up the steering committee that worked closely with CSG staff throughout the process — as did a broader working group of 25 additional stakeholders.  The legislation will be taken up by the Legislature, as will additional bills to address issues that were not included in the report.  Collectively, this criminal-justice reform debate will be one of the top priorities on Beacon Hill between now and the July 2018 end of this legislative session.

Look back at the July 2015 letter that started the review process — with Massachusetts now one of 26 states to have brought CSG in for their technical assistance and data-driven approach to help improve efficiencies and outcomes in criminal justice.  You’ll see that it was carefully crafted to achieve initial consensus among the signers, with language targeted at very specific aspects of the system and discrete goals for the project.  Here’s the key sentence:

“Without limiting the scope of your data analysis, we hope, looking at the data as a whole, to better understand how we can further reduce recidivism and enable successful re-entry, and whether we can further reduce our prison and jail populations through early release programs while ensuring appropriate punishment and preserving public safety.”

Reform advocates were concerned from the outset that the scope of the review would thus be too limited — in particular, that it would be focused on the so-called back-end of the system, recidivism and re-entry, to the exclusion of “front-end” issues such as diversion, bail, and sentencing.  As it turned out, there is indeed more or less a straight line from the request letter to the final report, which doesn’t extend the scope beyond what was initially proposed.  State leaders argue that this was the only way to achieve consensus, and that there will be time this session for both houses to consider the many legislative proposals for further action.

These proposals cover not only the three areas cited above but also issues like:

  • further reform of the state’s laws on criminal offender record information (CORI)
  • relieving the burden of fees and fines on defendants and ex-offenders
  • lifting or alleviating more of the hundreds of collateral consequences that are tied to criminal records and, like the above two, create roadblocks to successful reintegration after release from incarceration — or any involvement with the justice system, even short of incarceration — by making it difficult to secure employment, housing, government benefits, and so on
  • allowing greater opportunity to seek expungement of criminal records
  • providing a way for elderly or disabled inmates to obtain extraordinary release, as in the federal system
  • increasing the threshold for felony-level larceny, which has remained unchanged for decades, in spite of erosion by inflation
  • making parole a presumption to be denied only when justified

Despite growing political pressure, as it became clear that the report would likely hew to its original narrow scope, the report unveiled this week was silent on all of the above.  On perhaps the biggest such flash-point, efforts to roll back some of the state’s mandatory-minimum sentences, however, state leaders were quick to point to a recommendation that had not been publicly-broached before — one that would offer all inmates, including those serving mandatory sentences for certain drug offenses (not involving opioids, minors, firearms, or violence), a greater opportunity to accrue “earned time” for participation in programs designed to improve their chances of successful re-integration.  This would, in turn, reduce recidivism.

It gets somewhat complicated here, but basically, earned time will be available, within limits, to move up a DOC inmate’s parole-eligibility date.  Those who are not paroled and instead “wrap up” their sentences will also be released earlier based on earned time, but they will be under supervision for the remaining period of their sentences.  This addresses one key CSG finding — which was not exactly a secret beforehand: Too many inmates are serving out their sentences and being released directly to the street with no supervision — a recipe for unnecessarily high recidivism rates.  But it also addresses the concern that any mandatory post-release supervision program not have the effect of extending an inmate’s time within the system.

Many questions remain about this approach: Will it have the effect of reducing time served under mandatory sentences without actually changing the statutes that impose them?  Will prison programming be made available to meet the anticipated increased need that this change seeks to create?  Will judges modify their sentencing practices by reducing the use of “and a day” sentences — those in which the minimum is set at the mandated level but the maximum is only one day later?  (These are viewed by some as a judicial expression that the mandatory minimum in a given case is too high, but they also result in releases without supervision, because parole is not a real possibility.)

These contours of the debate to come at the Legislature were explored by an all-star panel at a BBA event held the day after the CSG report — with both praise for the final recommendations and some calls for further action on display from panelists, all of whom worked with CSG.  For his part, Michael O’Keefe, District Attorney for the Cape & Islands, argued that with incarceration rates near the bottom in the US, and continuing to decline, the CSG focus on recidivism — what he called the “weak point” in our justice system — was properly placed.  Massachusetts recidivism rates are in the middle of the pack, but we can do better, he argued, if we invest in programming and supervision.

State Senator Will Brownsberger, Senate Chair of the Legislature’s Judiciary Committee, told attendees that the system isn’t broken, yet it does create a footprint that’s too big.  He sees prisons and jails that are too full by historical standards, and in comparison to other developed democracies, and he wants to try to reduce collateral consequences as well.

To Randy Gioia, Deputy Chief Counsel of the Public Defender Division at the Committee for Public Counsel Services (CPCS), the CSG report creates a “once in a lifetime opportunity” to do something big on criminal-justice reform but won’t generate enough savings by reducing incarceration.  Those savings are needed, he says, to invest in the same high-risk communities that have been devastated by the upswing in imprisonment over the past several decades.  Only then will the cycle of recidivism be broken.

Former State Representative John Fernandes, recently retired as House Chair of the Legislature’s Judiciary Committee, pointed out that the report had to be as limited as it is, so that all participants could emerge pledging to see its recommendations through to execution.  The review, he said, “was never intended to change everything in one package.”  Nevertheless, it represents a first step that can be built upon later.

Lon Povich, Chief Legal Counsel to Governor Baker, noted that the Governor’s recent budget already provides $3.5 million to fund the first-year costs of implementing the report’s recommendations.  He’d like to see the CSG legislation passed soon, with further reform efforts taken up thereafter, and he particularly pointed to collateral consequences as an important area to work on in order to drive down recidivism rates.

Superior Court Judge Jack Lu took part in his role as chair of the Sentencing Commission, which is working on a rewrite of the state’s sentencing guidelines.  Those guidelines remain advisory, because they have never been enacted.  Judge Lu promised the Commission would offer “state of the art” data-driven guidelines but predicted that they would “move the needle” rather than call for sweeping sentencing changes.

Judge Paula Carey, Chief Justice of the Trial Court, praised the CSG’s work as an unprecedented cooperative effort by all three branches, resulting in a three-pronged approach going forward: legislative (in the form of the bill filed by the Governor), but also administrative and budgetary.

So implementation is now in the hands of the leaders who kick-started this effort a year-and-a-half ago.  How it plays out over the year-and-a-half (actually a little less) remaining in the 2017-18 session — and beyond — remains to be seen.  But with an internal working group already reviewing the CSG report and contemplating recommendations for reforms that would go further toward improving our system of justice, you can be sure the BBA will be a part of that debate.

—Michael Avitzur
Government Relations Director
Boston Bar Association