Posts Categorized: Uncategorized

BBA Endorses Co-Parent Adoption Act

The BBA has endorsed legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. H.1485/S.1013, An Act to promote efficiency in co-parent adoption, will allow a petition by such couples to adopt their own children so as to ensure universal recognition and respect for their parentage. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples.

Currently, couples who use assisted reproduction must complete adoptions of their own children in order to secure a court decree which ensures their parentage will be respected throughout the United States and internationally. Even if both parents’ names are on the child’s birth certificate, this does not equate to parentage and puts one or both of the parents at risk of having their parentage questioned in the future. Having to adopt their own children puts parents through an immense amount of emotional stress and financial cost that heterosexual couples not using assisted reproduction do not have to undergo. The adoption process is lengthy and invasive, forcing the couple to undergo a home inspection, one or more court appearances, a criminal record search, a six-month waiting period, and other unnecessary hurdles that create a daunting experience for a parent who is already fully engaged in parenting their child. It also forces children born to same-sex couples to remain vulnerable and undergo emotional stress and disturbance to their lives.

H.1485/S.1013 would eliminate these unnecessary barriers and allow LGBTQ and other families who use assisted reproduction technologies to be afforded the parentage rights they deserve.

It is especially important to enact such legislation in Massachusetts because Massachusetts happens to be the state with the highest use of assisted reproduction technologies in the country. California and New Jersey have instituted similar legislation in recent years and the BBA believes that Massachusetts should follow.

Elizabeth Roberts, member of the BBA’s Family Law Section Steering Committee and a family law attorney at Roberts & Sauer LLP, submitted testimony for the Joint Committee on the Judiciary at the public hearing on this bill in July and presented the issue to BBA leadership along with Section co-chairs David Friedman of Verrill Dana LLP, and Carlos Maycotte of Fitch Law Partners. As Elizabeth put it to the Legislature, “We would urge you to make this process less costly, time consuming and able to occur in a manner that offers dignity to LGBTQ families of the Commonwealth. A secondary benefit is that this legislation is in the interest of judicial economy, streamlining a process that was needlessly time consuming and that ignored the fact that these adoptive parents were intact families already”. The Family Law Section formally endorsed this legislation shortly after, and it has now been voted on and approved by the BBA Council.

We look forward to advocating for this important legislation that is long overdue.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Files Brief in Support of the Massachusetts IOLTA Committee

On January 21, the Boston Bar Association, Massachusetts Bar Association (MBA), and Real Estate Bar Association (REBA) filed a joint brief to the Supreme Judicial Court (SJC) in the case of In the Matter of Gregory M. Olchowski, which has to do with a dispute between the Massachusetts Interest On Lawyers’ Trust Accounts (IOLTA) Committee and the State Treasurer over access to unidentified funds in IOLTA accounts. The brief, co-drafted by Mary Ryan and Micah Miller of Nutter McClennen & Fish, Tom Carey of Hogan Lovells, and Francis Morrissey of Morrissey, Wilson & Zafiropoulos, sided with the IOLTA Committee, arguing that unidentified funds should be remitted  to the IOLTA Committee instead of the Treasurer.

Attorney Gregory Olchowski was temporarily suspended in early 2013 and funds from his two IOLTA accounts were deposited in a separate account in the name of his attorney. The intended recipients of the funds could not be identified. Since 1994, Bar Counsel’s practice has been to remit funds to the Committee, with the SJC’s approval, after conducting a thorough investigation (including reviewing attorney records) and determining that the owner of the funds cannot be identified. In October 2018, Bar Counsel filed a motion to remit the Olchowski funds to the IOLTA Committee. The Treasurer filed a motion to intervene and ultimately opposed Bar Counsel’s motion, asserting that the funds should escheat to the Treasurer.  The Committee filed a motion to intervene and to oppose the Treasurer’s motion. 

As the BBA/MBA/REBA brief notes, 13 other states have either statutes or court rules which send unidentified funds to that state’s IOLTA group or similar entity. The SJC posed the following questions for amici:

1. Do unidentified client funds on deposit in an IOLTA account fall within the statutory definition of “abandoned property” under G. L. c. 200A?
2. Does Mass. R. Prof. C. 1.15, or any other rule of this court, govern the disposition of such funds?
3. Are any constitutional issues raised by the parties’ proposed disposition(s) of the funds?

In April 2019, the IOLTA Committee formally requested that the BBA file an amicus brief in support of their argument in this case. The Amicus Committee reviewed the facts of this case and monitored the development of the brief.

As filed, the brief argues that the Abandoned Property Act was never intended to address unidentified IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985.  G.L. c. 200A has been amended at least five times since then to define when specific types of property are deemed abandoned, yet the Legislature has not chosen to bring IOLTA funds within that ambit: “Had the legislature intended to bring unidentified IOLTA funds under the APA, it could have done so by express amendment, as it did for other kinds of property. This history shows that the Legislature never intended the APA to apply to unidentified funds in an IOLTA account.”

Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences—“a critical aspect of the practice of law”—and jeopardizing the security of client information. This is because “[a]ttorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences,” and the Treasurer’s Office would have broad discretion to review attorney records related to IOLTA accounts holding such funds. Yet, unlike the IOLTA Committee and the Board of Bar Overseers, that Office lacks clear protections against the disclosure of confidential information.

The brief also places the power to regulate unidentified IOLTA funds squarely within the SJC’s inherent authority to regulate the practice of law, and highlights “the beneficial effects that turning even modest sums of money over to the IOLTA Committee will have on access to justice for all.” This position is consistent with the BBA’s mission, and with its history: The BBA and MBA jointly petitioned the SJC to create the Massachusetts IOLTA program in 1985, and it has been funding programs on behalf of indigent residents of the Commonwealth since then.

The IOLTA Committee recruited two pro bono attorneys to represent it in oral argument, which will be held on February 11. Follow @MikeAvitzurBBA on Twitter for live updates of the hearing (which you can also watch through the Suffolk Law School feed)! A ruling is anticipated by June, and we’ll be sure to update you on it here.

-Michael Avitzur
Director of Government Relations & Public Affairs
Boston Bar Association

BBA Joins with MBA on Amicus Brief Supporting Right to Counsel in Civil Contempt Proceedings

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In doing so, the BBA joined with the Access to Justice Commission, which had made the same recommendation in 2007.

That BBA report—authored by former BBA President Mary Ryan of Nutter McLennen & Fish, and IOLTA Committee Director Jayne Tyrrell—noted that the question of whether a right to counsel should apply in such instances “invites litigation”, and now with that question squarely before the Supreme Judicial Court (SJC) in the case of DOR v. Grullon, we have joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

[I]ndigent litigants are forced to navigate the legal system without legal representation even in cases where basic human needs are at stake.

BBA Task Force Report, Gideon’s New Trumpet

Here, the defendant-appellant—a partially disabled, indigent veteran—was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he is now represented by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR).

The judge at the hearing took issue with a comment made by the petitioner, which she interpreted to mean that the petitioner was not taking his responsibility seriously. The judge found the petitioner in contempt of court and sentenced him to ten days in jail. Also at issue is whether the sentence was intended as punishment or to compel the petitioner to comply with the standing support order, and whether the court made the proper findings that the petitioner—who was homeless and engaged in a vocational rehabilitation program to help find work compatible with his disability—had the ability to pay the support order or the so-called “purge amount,” i.e., the amount that must be paid to secure the petitioner’s release from incarceration.

Because he could not afford the purge amount of $500, Grullon served the full ten days in jail, during which time he missed vocational training, further setting back his ability to return to work. (According to VLS, research demonstrates that incarceration is rarely effective in such circumstances and is counterproductive with regard to both future compliance and fatherhood engagement.)

In July, the SJC, without explanation, granted direct appellate review of the lower court’s decision. Our Amicus Committee—chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—recommended that the BBA join an amicus brief in support of Grullon’s argument, and the Council voted to join the MBA’s brief, as drafted by Thomas J. Carey, Jr., of Hogan Lovells. The brief was also joined by Boston College Law School professor Mark Spiegel, and the ACLU of Massachusetts filed a separate letter expressing to the SJC their endorsement of the brief. (The Massachusetts Law Reform Institute, the Committee for Public Counsel Services, and the Jewish War Veterans of the USA each weighed in as well in support of a right to counsel in such cases.)

In a 2011 case, Turner v. Rogers, the US Supreme Court addressed this issue, reversing a state-court decision in which an unrepresented noncustodial parent was incarcerated for non-payment of child support. That Court concluded that the incarcerated parent’s due-process rights had been violated, but stopped short of recognizing that a right to counsel is “automatically” required in all civil contempt hearings. Among other concerns, the Court noted that asymmetry of representation between purely private parties might skew the playing field, and expressed a belief that procedural protections other than a per se right to counsel would be adequate to satisfy federal due process standards in most private cases.

Poor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.

MBA/BBA Amicus Brief in DOR v. Grullon

The MBA/BBA brief in Grullon argues that Mr. Grullon did not benefit from the specific alternate safeguards that might obviate the need for counsel under Turner, and that systemic flaws exist in the processing of civil contempt matters in the Probate and Family Court. “[W]hen government attorneys advocate imprisonment of unrepresented indigent defendants for debt,” the brief states, “the risk of error is unacceptable, and the value of court-appointed defense counsel is indisputable.”

It goes on to say that while the SJC may wish to take further remedial steps, in the exercise of its supervisory powers over the administration of justice—including promulgating clearer court forms, creating universal standards, requiring written findings, and tasking a working group to evaluate current practices and make recommendations—“such steps should be additional to and not in substitution for a constitutional right to court-appointed counsel for indigent defendants faced with government lawyers and a realistic risk of imprisonment”.

As argued in Gideon’s New Trumpet, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA has long advocated for a broader right to counsel in civil cases, including…

  • through the courts
    • See, e.g., amicus briefs the BBA joined in related 2014 and 2015 cases that resulted in such a right where a child may be taken from a parent/guardian.
  • and through legislation.
    • See, most recently, our support for the coalition seeking to enact a right to counsel for indigent tenants and landlords in eviction cases.

The SJC’s oral arguments in Grullon will be held this Thursday, January 9, and can be viewed, through the Suffolk Law School web-site, either live (starting at 9am) or in archived form. Veterans’ Legal Services will be representing the Appellant, and you can read their brief here. A decision is expected by May.

SJC Supports ‘Consent-to-Settle’ Insurance Clauses, in Keeping with BBA Amicus Brief

On December 16, 2019, the SJC announced its decision in Rawan v. Continental Casualty Company, a case that addressed whether an insurance company must honor a so-called “consent-to-settle” clause, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy. The BBA was pleased to see that the SJC accepted our argument that an insurance company must honor these clauses. (You can read our full statement on the ruling here.)

The BBA filed an amicus brief in support of the Defendant-Appellee Continental Casualty Company on the questions posed by the SJC in their request for amici briefs, “whether a liability insurer violated its duty, under G. L. c. 176D, § 3(9)(f), to effectuate a prompt, fair, and equitable settlement of a claim in which liability had become reasonably clear, where the insured refused to consent to a settlement and the insurance policy provided that the insurer would not settle any claim without the informed consent of the insured; whether such a provision is unenforceable as against public policy.”

The BBA brief, as drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody and Arnold, argued that:

“Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which insures to the benefit of the insured, not the insurer.”

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Echoing that view, Justice Scott Kafker, writing for a unanimous SJC, asserted that:

“Consent-to-settle clauses also serve valuable purposes in the professional liability context, including the important protection of a professional’s reputation and good will. Moreover, consent-to-settle clauses encourage professionals to purchase this voluntary line of insurance, thereby providing more secure funding for the payment of third-party claims.

Consent-to-settle clauses serve important purposes in this optional line of insurance. Most importantly, they encourage professionals to purchase such insurance, thereby providing coverage for the insured and deeper pockets to compensate those injured by the insured.”

We were pleased to see that the Court upheld the right of professionals and insurance companies to enter into liability policies that include “consent to settle” provisions, the exact outcome that our brief argued for. We are thankful to the brief drafters as well as the entire BBA Amicus Committee—co-chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—for their work in this case.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

The Death Penalty in the News

On Monday, the Justice Department asked the U.S. Supreme Court to let it resume the federal executions scheduled for December 9 by “setting aside” a district court’s injunction blocking it from carrying out lethal injections as planned. The November ruling held that the Justice Department’s proposed lethal injection procedure “is not authorized” by federal law. This order temporarily called off four executions scheduled for December and January, which would have been the first carried out by the federal government since 2003. The Justice Department’s new request marked an escalation of the Trump administration’s push to restart federal executions.

The BBA has opposed the death penalty for more than 40 years. In 2013, the BBA Death Penalty Working Group published a report outlining the three bases for the BBA’s position:

  1. that the inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
  2. that, in practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
  3. that death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

We have been committed to policy advocacy against the death penalty, for instance, by filing numerous amicus briefs, including in Commonwealth v. O’Neal, Commonwealth v. Colon-Cruz, and U.S. v. Darryl Green. You can read more about the BBA’s work on the death penalty here.

This week, Jim Petro, a former Ohio attorney general, published an opinion piece in the New York Times where he outlined why he, as someone who has seen the death penalty up close, believes that the death penalty is a “failed policy”. Mr. Petro outlined the following:

Another unfortunate reality is that the federal death penalty is marred by the same problems of racial bias and geographical disparity found in the state death penalty systems. Just three Southern states — Texas, Virginia, and Missouri — are responsible for nearly half of the federal death row population. People of color, particularly African-American men, also account for more than half of all current federal death sentences. And the overlap between these two areas of disparity is significant: Every person on the federal death row from Virginia and all from the Eastern District of Missouri are people of color. And people of color have received 75 percent of federal death sentences imposed in Texas in the modern era.”

He also explained that many of those in favor of the death penalty are under the impression that it is reserved for crimes affecting our national interests, such as terrorism and espionage, when in fact, only one federal inmate is under a death sentence for a terrorism offense, and none for espionage or treason. He concludes, “Capital punishment is costly, offers no proven deterrent benefit and delays healing for victims’ family members, while also traumatizing correctional officers and risking the execution of innocent people.”

As our amicus brief in Colon-Cruz noted, lawyers involved in these cases are traumatized as well: “The psychological and emotional burdens on counsel, particularly on the defense, are immense.”

We join Mr. Petro in urging the Trump administration to suspend the attempt to resume with the executions scheduled for next week. The federal government has not executed anyone since 2003, and the Trump administration should keep it that way.   

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Walk to the Hill 2020 and BBA Budget Advocacy Preview

Mark your calendars! Walk to the Hill for Civil Legal Aid, one of the state’s biggest lobby days, is happening at 11am on January 30, 2020. This annual event brings together hundreds of attorneys and public policy advocates at the State House to hear speeches from the judiciary, the bar, and individuals who have been helped by legal aid funding. Following the speeches, you can grab lunch and spread out to speak to your own legislators, urging them to increase state funding for programs that provide civil legal aid to low-income Massachusetts residents.

We will be hosting our annual breakfast directly before the event. You will be able to look up your legislators, hear from our Government Relations team on how to speak to them about civil legal aid, and join us for the short walk across the street to the Great Hall of the State House for the start of the event. We continue to participate in this event every year because of its significance in the budget campaign for civil legal aid, led by the Massachusetts Legal Assistance Corporation (MLAC) and the Equal Justice Coalition (EJC) every year. Keep reading to learn more about the significance of Walk to the Hill and about how much funding MLAC and the EJC will be requesting in the FY21 Budget.  

The Importance of Civil Legal Aid

MLAC is the largest funding source for civil legal aid programs in Massachusetts. It was established by the state legislature in 1983 to ensure that low-income people with critical, non-criminal legal problems would have access to legal information, advice and representation. In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding, revealing that MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants.

According to a 2017 report by the Legal Services Corporation, low-income Americans receive no or inadequate professional help for 86% of their civil legal problems. And, the report states, 71% of low-income households in America have experienced at least one civil legal problem in the past year. The gravity of this problem is great in Massachusetts, where, due to a lack of funding, legal aid programs are forced to turn away most eligible residents – nearly 45,000 people each year – who seek help.

The Budget Ask

Last year, we asked for a $5 million increase in the MLAC budget-item for a total appropriation of $26 million. In a big victory for civil legal aid, MLAC received a $3 million increase, resulting in a $24 million appropriation, up from $21 million for FY19. This in turn allowed MLAC to increase its support for the 16 legal service organizations it funds in FY20 – its largest-ever round of state appropriation funding for legal services organizations in Massachusetts.

The legal aid organizations that receive funding from MLAC provide critical civil legal aid to struggling people who otherwise would not have legal representation in serious civil legal matters. In most instances, people qualify for civil legal aid if their annual income is at or below 125 percent of the federal poverty level, or $32,188 for a family of four.

The legal aid organizations receiving MLAC funding include regional organizations — which provide advice and representation to low-income people facing civil legal issues related to housing, health care, public benefits, immigration, domestic violence, and other serious legal issues — and statewide organizations that specialize in certain areas of law and serve clients statewide.

For FY21, the EJC is requesting an additional $5 million increase from last year’s budget, which would total $29 million. The Governor will release his FY21 budget during the last week of January, marking the beginning of a months-long process to the final budget. The next major step comes in mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. 

This is why Walk to the Hill is such an important advocacy opportunity. Rallying at the State House and meeting with legislators immediately afterwards offer the best opportunity for BBA members and the legal community as a whole to:

  • thank elected officials for their past support,
  • remind them of the importance of civil legal aid,
  • and explain that further increases are still desperately needed to keep up with the growing demand on the civil justice system.

The same BBA commitment to access to justice also led us this year to join the Right to Counsel Coalition, in support of providing representation to low-income tenants and landlords in eviction cases. The coalition has been gaining support in the past months, receiving shout-outs from the Boston Globe and SJC Chief Justice Ralph Gants during his State of the Judiciary speech. You can read more about that effort here.

If you don’t know your legislators, you can look them up here, and if you need a refresher on how to talk to your legislators, listen to our “Talking To Your Legislator About Legal Aid” podcast and then join us at the BBA for our annual pre-Walk breakfast, where our Government Relations director will issue advice on how to be the best advocate for civil legal aid you can be. Please don’t hesitate to contact our Government Relations team if you want to learn more about how you can get involved in Walk to the Hill or the fight for funding for civil legal aid.

-Lucia Caballero
Government Relations & Executive Assistant
Boston Bar Association

SJC Considers Shortage of Lawyers to Represent Indigent Criminal Defendants

We’ve written here before about a set of three cases in Hampden and Worcester Counties which highlight the shortage of available attorneys to represent indigent criminal defendants, as the Constitution requires.

The BBA submitted an amicus brief on the issue to the SJC, as we did in 2004— the last time the Court heard a similar case.  We urged them to act decisively to address this constitutional crisis, which was triggered, once again, by underfunding of the Commonwealth’s commitment to the right to counsel enshrined in Gideon v. Wainwright.

On November 7, the SJC held 2+ hours of oral argument on three cases. Although the BBA brief was not cited by name, justices referred to our argument that an increase in the hourly rates offered to private attorneys who handle indigent criminal defense could provide a resolution to the problem. They also brought up our point that public-safety concerns are heightened where, as here, prosecutors seek to hold the defendant on dangerousness grounds.

Much of the discussion centered on the so-called Lavallee protocol, as set forth in that 2004 case. The protocol calls for defendants to be released after 7 days if no attorney can be appointed, and charges to be dismissed, without prejudice, after 45 days. 

Attorneys differed over whether it still provides a workable solution, and over whether the justices should view it as a way to ensure defendants’ rights are honored, or as a way to impose consequences when they are not.

The was no agreement over whether the Lavallee decision applies to the current situation, how such a decision is to be made by the courts, what (if anything) should replace Lavallee, nor whether the SJC can exercise its superintendence authority to increase hourly compensation rates in order to increase the supply of attorneys accepting indigent-defense cases.

Also at issue — though the BBA brief took no position on it — was interpretation of the SJC’s 2017 Brangan ruling, which holds that, in making bail decisions, judges must take into account the defendant’s ability to pay, and, when imposing bail at a level that a defendant likely cannot pay, must explain why there was no other way to guarantee the defendant’s appearance.

You can read our live-tweeting of the oral argument, and you can watch the full video. A decision is expected by March — coincidentally, just as budget discussions at the State House begin to heat up.

-Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Public Charge, DACA at the Supreme Court, and the “Remain in Mexico” Policy

We continue to monitor developments on immigration policy, especially at the federal level, in keeping with our adoption in 2018 of broad immigration principles. Today, we present updates on a number of related fronts.

First, earlier this month, the Department of Homeland Security proposed new regulations that would increase a broad array of fees associated with immigration applications. 

Although some fees would actually see a decrease, the citizenship application fee would rise from $640 to $1,170, for example, and Deferred Action for Childhood Arrivals, or DACA, applications would go from $495 to $765.

Such changes would be counter to our immigration principles; in the report accompanying them, we wrote:

For people seeking an immigration remedy, the individual liberty interest at stake is “grave,” and so the accompanying protections—constitutional as well as statutory—must be potent. Immigrants face barriers to access to the administrative immigration system established by Congress … when applicants for immigration benefits are charged prohibitively high fees. These barriers call into question whether the constitutional rights of Due Process and Equal Protection applicable to all persons, regardless of immigration status, are more illusion than reality.

But they also run afoul of a position we took in 2008, when we endorsed an ABA resolution declaring (in part), “Fee levels for immigration and naturalization benefits [should not be] so burdensome as to deter eligible applicants from applying for such benefits.”

The timetable for implementation of this proposed rule has it going into effect, on an emergency basis, on December 2.

Public charge rule on hold

The BBA has been closely following the developments of the public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join. Most recently, we published an Issue Spot blog post citing a new Migration Policy Institute study that detailed exactly how the proposed policy would affect legal immigrants in the U.S.

The most recent update to this policy is that federal judges in three states – New York, California, and Washington – have issued temporary injunctions to prevent the rule from taking effect on October 15, as was planned. The rule is being challenged in several federal courts and more than a dozen state attorneys general, arguing that it discriminates against low-income immigrants and immigrants of color. One of the major concerns is the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and imposing a huge cost on local and state governments.

The public charge rule goes against our Immigration Principles, which state that: “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance”. The rule not only discriminates against low-income immigrants but also deters all immigrants from accessing public services and fully exercising their rights and freedoms.

DACA Arguments at Supreme Court

This week, the Supreme Court heard arguments on what may be one of the most important cases of the year: the decision whether to uphold the Trump administration’s dissolution of DACA.

Enacted in 2012 by the Obama administration, the DACA program was designed to protect undocumented individuals who were brought to U.S. as children. It allows them to work, pursue an education, and be protected from deportation. In September 2017, President Trump declared that the DACA program was “illegal” and “unconstitutional” and initiated the process of dissolving it. Three federal appeals courts ruled that when an administration revokes a policy on which so many people have relied, the administration must provide a fully supported rationale that outlines why, which it did not do in 2017. The Trump administration appealed to the Supreme Court, and that argument took place on Tuesday.

The Supreme Court’s conservative majority signaled that it may back the Trump administration and allow it to shut down the program, affecting 700,000 young people currently protected by DACA.

We hosted a program on this issue in 2017 and are continuing to keep a close eye on it as new developments arise.

Mexico’s Humanitarian Crisis

On Friday, November 8th, the Boston Bar Association hosted Eunice Rendón to give an update on the impact that the “Remain in Mexico” policy has had on refugees, asylum seekers, and migrants in Mexico. Eunice Rendón is the Executive Director of Agenda Migrante and a researcher at the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology).

Ms. Rendón began her talk by providing an overview of the “Remain in Mexico” Policy. The policy is an agreement between the Mexican government and the U.S. government that asylum seekers going through immigration proceedings must remain in Mexico during the process. Ms. Rendón noted that the six Mexican cities where the migrants must remain are the most dangerous cities in the country, with some of the highest rates of homicide. She stated that it is estimated that there are 50,000 migrants in Mexico, but their whereabouts are unknown by the Mexican government. Ms. Rendón also noted that the Mexican government is feeling the strain of deportees, which has increased to 200,000 a year under the Trump administration. 

The migrants in Mexico are being held in two types of shelters: shelters run by non-profit organizations and official Mexican government shelters. Ms. Rendón believes that both shelters lack the capacity to support the influx of migrants, which has risen from 7,000 a year to 60,000 a year over the past four years. She also noted there is tension between the federal government and local governments on the contribution levels to the shelters. The poor conditions in the shelters have allowed criminal organizations to exploit migrants, by forcibly recruiting them into their organizations, leaving young children especially vulnerable.  Importantly, most migrants are not well informed on the dangers of attempting to cross the U.S. border or the challenges associated with seeking asylum in the U.S. The Mexican government has attempted to deter migrants by posting the National Guard at the southern border, but, according to Ms. Rendón, they are not well-trained in immigration enforcement proceedings and are not doing an adequate job.

Ms. Rendón concluded her talk by stating that Mexico has undergone a transition from being only a point of transit in the migratory process to becoming a reception country. The people of Mexico have become fearful of migrants due to the reverberation of xenophobic language coming from the Trump administration. Migrants are now settling into Mexican communities as they await asylum claims in the U.S. In dealing with the changing face of migration, Mexico does not have the resources to respond.

This event was co-sponsored by the Immigration Law Section Steering Committee and the Boston Bar Foundation’s Policy Research and Innovation Fund.

-Michael Avitzur
Government Relations Director
Boston Bar Association

and

Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Right-to-Counsel Coalition Gains Support

This year, the BBA joined a broad coalition seeking to enact a right to counsel in eviction cases for indigent tenants and landlords. This position jibes with our past support for a right to counsel, generally, in civil matters involving basic human needs.

In the past month, both The Boston Globe and SJC Chief Justice Ralph Gants have expressed strong support for legislation to achieve the coalition’s goal.

As the Globe put it in their editorial after citing successful efforts along the same lines in a few U.S. cities, “For renters who don’t have the financial means, the right to a court-appointed lawyer would level the playing field and offer them a better chance of success at staying in their homes.”

At his State of the Judiciary speech on October 30 (read more about the event here), the chief justice endorsed the measure, saying, “I know that there are legislative efforts afoot here in Massachusetts to provide legal counsel for all indigent parties in eviction proceedings, not only tenants but also indigent landlords who rely on the timely receipt of rent to make their mortgage payments and avoid foreclosure, and I hope that by next year these efforts may finally come to fruition.”

The coalition will soon be delivering bill language to the Legislature that would make Massachusetts the first state to offer this right to counsel.

-Michael Avitzur
Government Relations Director
Boston Bar Association

State of the Judiciary

Each year at the John Adams Courthouse, the SJC’s Chief Justice, the Trial Court’s Chief Justice and the Court Administrator all present remarks on their priorities for the coming year.

This past October 30, Chief Justice Ralph Gants of the SJC gave his sixth such address, using the occasion to express his support for a right to counsel in eviction cases and discuss plans to develop a “virtual court service center” to assist litigants who need help navigating the court system.

He also demonstrated his continued concern about lawyer well-being with two new measures, following up on this past year’s report by a special committee the Court had appointed. The chief announced the establishment of a new Standing Committee on Lawyer Well-Being, as recommended in the report.

Second, the SJC will be establishing a pilot mentoring program for newly admitted solo and small firm practitioners. He also called on attorneys to honor their responsibility to be civil, while adding that judges should show deference to requests for extensions.

On other issues, Chief Gants said a new court working group will address best practices in dealing with criminal defendants who have substance-abuse and mental-health challenges, and pledged that the District Court and BMC have made necessary changes to handle the increased caseload once new rules on procedural-amount jurisdiction in civil cases go into effect in January.

Trial Court Chief Justice Paula Carey talked about implementation of the 2018 criminal-justice reform law, saying that new funding will expand evidence-based support services, including community corrections, for high-risk/-need defendants, building a comprehensive re-entry pathway.

She also pledged that no court in the nation is more engaged in a systemic effort to improve initiatives on diversity, equity, and inclusion, both in the courts and in the community at large. All Trial Court departments, she said, are committed to education, training and outreach, including engaging in difficult conversations.

Chief Carey also discussed the importance of tackling the impact on the courts of substance abuse and trauma, saying, “Trauma can be difficult to identify but is ever-present and overwhelming for both the individual and the court. What is often lost is the trauma experienced by employees of the Trial Court. [It is] imperative that we have resources available for court users, judges and staff.”

Finally, Trial Court Administrator Jon Williams talked about the newly-filed bond bill that promises to significantly upgrade the Trial Court’s information-technology capacity.

“We need major capital investment to transform the role of technology in the [courts],” he told the audience. “Working with our legislative partners, an IT Bond Bill was recently filed to meet the wide range of technology needs for the [judiciary to] transition to…eCourts and cybersecurity.”

-Michael Avitzur
Government Relations Director
Boston Bar Association