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BBA Council Endorses Two Access to Justice-Focused Policy Items

Last week, the BBA Council voted to endorse two proposals firmly rooted in the “facilitate access to justice” piece of the Association’s mission. One relates to the provision of counsel for immigrants in federal removal proceedings and the other relates to what a full switch to electronic reports of decisions by the Massachusetts SJC and Appeals Court would mean for access to justice in the Commonwealth.

ABA Resolution 115

First up on the Council agenda was a proposal seeking BBA support for the proposed American Bar Association (ABA) Resolution 115. In June, the BBA received a request to support the resolution and accompanying report in advance of the August ABA Annual Meeting, where the House of Delegates will vote on a number of resolutions, including this one.

In brief, the draft resolution contains three components: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Backers see the resolution as a “logical next step” in its incremental approach to endorsing the appointment of government-funded counsel for indigent individuals in adversarial civil proceedings “where basic human needs are at stake” and argue that support for the provision of counsel to all indigent individuals in removal proceedings “will not only help to ensure due process and fairness, but also has the potential to make the process more efficient.” They view the resolution as “especially timely” in light of the new federal enforcement priorities on immigration and increased recognition of the need for government-funded counsel in such cases across the country.

Similarly, the BBA itself had previously endorsed a number of very relevant proposals, including:

  • In August 2008, the BBA Council approved Gideon’s New Trumpet, a report drafted by the Task Force on Expanding the Civil Right to Counsel. The Task Force concluded “that representation should be provided in cases where individuals have the most at stake in terms of their liberty and their right to assert defenses to removal.” Specifically, the report identified three categories of individuals who fit these criteria: 1) those who have been detained, 2) those facing deportation as a result of a criminal offense, and 3) those seeking asylum.”
  • In February 2017, the BBA Council voted to endorse ABA Resolution 301 and its accompanying report. This resolution expressed ABA support for “the preservation and development of laws, regulations, policies, and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children.” The resolution also specifically urged Congress and the Administration to take a number of actions, such as maintaining the current statutory definition of “unaccompanied alien child,” ensuring children are held in custody for the shortest period possible, and increasing the annual number of Special Immigrant Juvenile visas allotted, among other things. Lastly, the ABA urged governments at all levels to “expand efforts to provide legal information and legal representation for unaccompanied immigrant and asylum-seeking children in removal proceedings.”

Overall, Resolution 115 is closely related to the above BBA positions, but does go a bit beyond both by expanding support for the provision of publicly-funded counsel to all immigrants in removal proceedings before the Immigration Court and the Board of Immigration Appeals, and not just in the more discrete categories mentioned in Gideon’s New Trumpet and ABA Resolution 301.

Upon distribution to relevant BBA Sections, members of the Delivery of Legal Services Steering Committee expressed support for BBA endorsement, and both the Civil Rights and Civil Liberties Section Steering Committee and Immigration Law Section Steering Committee voted to support BBA endorsement of the proposal. A statement made by the Civil Rights and Civil Liberties Section described the government-funded provision of counsel to indigent persons in removal proceedings as “a practical, legal, and moral imperative.”

The Council was fortunate to have former BBA President Mary Ryan, of Nutter, McClennen, & Fish LLP, present the proposed resolution. Ryan also serves, alongside Lisa Arrowood, as one of two BBA delegates in the ABA House of Delegates, and as co-chair of the ABA’s Working Group on Unaccompanied Immigrants, a co-sponsor of the proposed resolution. Ryan began by noting that she felt endorsement of the resolution was the “right and fair thing to do, as equal protection and the right to due process under the law applies to all people in the United States.” Her thorough and thoughtful presentation articulated the variety of ways the proposed resolution had a strong foundation in both ABA and BBA policy, highlighting specifically the work of the Task Force on Expanding the Civil Right to Counsel, which produced the above-mentioned Gideon’s New Trumpet Report, and which she also co-chaired.

After posing a few questions to Ryan, the Council voted to endorse ABA Resolution 115, and we are very pleased to be included in the list of supporters that will be read to the House of Delegates during consideration of the proposed resolution in August.

Proposed Change from Print to Electronic Reports

Next on the agenda were comments drafted by the Civil Rights and Civil Liberties Section in response to the Supreme Judicial Court’s recent invitation to comment on a proposed change from print reports to electronic reports. The invitation explains that the Justices of the Supreme Judicial Court (SJC) and the Court’s Reporter of Decisions are considering whether reports of both the SJC and the Appeals Court should be published only in electronic, and no longer in print, form–perhaps as soon as July 2019. Specifically, the invitation to comment sought information related to access to justice and the “anticipated impact of such a change on populations who may have limited access to the internet or little experience using the internet.”

The Civil Rights and Civil Liberties Section Steering Committee took this charge to heart, drafting detailed and eloquent comments on this anticipated impact. The comments, composed principally by Joshua Daniels, with the support from the Section’s comments subcommittee, noted the Section’s support for broad public access to the decisions of the Massachusetts courts but also a concern that discontinuation of the printed version “may have unintended adverse consequences for many people who rely on the print edition as their primary or even sole means of obtaining Massachusetts appellate decisions.” Specifically, the comments highlighted the consequences such a change may have on already especially vulnerable populations, including low-income, homeless, elderly, and incarcerated individuals.

Relying on case law and statute, the comments explore the Commonwealth’s existing commitment to ensuring that the public have access to those sources of law, like decisions and statutes, that are binding upon them. In light of this, the Section relies on local information and data to highlight those whose access may suffer as a result of the change, first noting that around 14% of Massachusetts residents either lack access to, or do not use, the internet. While Court Service Centers, Trial Court Law Libraries and potential partnerships between the courts and the public library system do a great deal to expand public access to judicial decisions, certain limitations persist. For example, resource constraints limit the number of public-library computers available and the amount of time allowed on computers printing is very rarely free and can cost as much as $0.15 a page, and access to public libraries often requires a form of ID and address verification that many homeless individuals do not possess. In addition, the nearly 10,000 individuals currently incarcerated in Massachusetts lack access to these services and, as a matter of policy, the internet.

The Section comments concluded with a statement “encourag[ing] the SJC and the Reporter’s Office to work closely with the Legislature, the Department of Correction, and individuals and organizations representing those who might be adversely affected by the Proposal, so that these concerns are addressed.”

Upon an initial presentation the week before by Joshua Daniels and Section Co-Chair Kate Cook of Sugarman Rogers, Barshak & Cohen, P.C., the Executive Committee was struck by both the quality of the comments and the firmly-rooted “access to justice” angle and requested Cook and Daniels return to present the comments to the full BBA Council for potential full BBA endorsement, rather than by the Section alone. Once again, Cook and Daniels eloquently explained the potential implications of the shift outlined in their comments. The Council agreed that, given the BBA’s mission to “facilitate access to justice,” and the strength of the comments, they could and should be endorsed by the Association as a whole. Last week, we mailed the comments with a cover letter explaining this endorsement, and we hope it will assist the Justices and Court’s Reporter of Decisions as they consider the proposed change.

We want to send a special thanks to Mary Ryan, Kate Cook, Joshua Daniels and the Civil Rights and Civil Liberties Section for making the above policy proposals possible! Be sure to watch this space for more updates on the House of Delegates vote on ABA Resolution 115 and the proposed change to electronic reports.

Housing Court Set to Expand to Statewide Jurisdiction

Finally, a quick update on an issue we’ve discussed here several times before: We are happy to report that the Legislature and Governor Charlie Baker have agreed, through the state-budget process, on statutory language and funding to allow the Housing Court to expand to full statewide jurisdiction. No longer will nearly one-third of the state’s population be denied access to the Housing Court—along with its expertise in housing matters, its specialized programs to help prevent homelessness, and its unique efficiencies—merely because of the town they live in.

This would not have become a reality absent the tireless work of Annette Duke and the Massachusetts Law Reform Institute, who assembled a coalition in support of expansion that the BBA was proud to be a part of. In keeping with the theme of this post, this change is a big victory for access to justice, which is why the BBA has been advocating for it for years.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Conference Committee Submits FY18 Budget to Governor

The budget process is finally nearing completion with last Friday’s release of the Conference Committee’s $40.3 Billion Fiscal Year 2018 (FY18) budget, H3800, which was followed by quick passage in both houses that same day. If you need a refresher as to how we got here, be sure to check out past posts on our advocacy on the initial Governor’s budget, the House’s Ways and Means Committee and final budgets, and the Senate Ways and Means Committee and final budgets. The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it.

Worth noting at the top — as the Legislature was piecing together its FY18 budget, it was receiving increasingly gloomy news about FY17 revenues – to the point that the Conference Committee was forced to revise downward its spending plans for next year in the face of a developing budget gap. In the end, the budget delivered by the six conferees slashed about $700 million from the budgets passed only weeks earlier by each house. The general rule was that individual line-items were level-funded or even cut, from last year’s appropriations.

The Conference Committee budget is now on the Governor’s desk, where he has ten days to either sign it as is, sign it with some line-item vetoes and amendments, or veto it. Here’s a round-up of how our budget priorities fared in the Conference Committee:

Statewide Expansion of the Housing Court

We are happy to report great news for statewide expansion of the Housing Court, which the BBA has long supported as a key access to justice cause. If you’ll recall, for the second year in a row, the Governor included funding and authorization for the expansion in his initial budget, the House did not allocate funds or authorizing language, and the Senate included $1 million appropriation and authorizing language. This year, the measure survived the Conference Committee process and both the authorizing language and appropriation of $1 million were included in their final budget that was sent to the Governor. So a statewide Housing Court is only one step away from finally becoming a reality.

Currently, nearly one-third of Massachusetts residents must take their landlord/tenant matters to District Court – as do municipalities in those regions that are seeking to enforce health and sanitary codes. There they wait in line behind others bringing a wide variety of cases, they appear before judges who see such cases only occasionally, and they do not have access to housing specialists trained to successfully resolve these cases and avoid the need – and expense – of litigating in open court. In addition, Housing Court offers programs like the Tenancy Preservation Program – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping to prevent homelessness. These programs help make Housing Court a model of efficiency, featuring the lowest cost per case of any Trial Court department.

As mentioned, this year the Conference Committee included the $1 million appropriation (line-item 0336 – 0003) as well as the authorizing language (outside sections 78-82), so if the Governor continues his leadership on this issue and includes the language and funding, this may finally be the year that all of the residents of the Commonwealth will finally have access to the many benefits the Housing Court offers.

Trial Court

The expansion of the Housing Court is just one piece of the Trial Court appropriation, which is made up of about 15 different line-items. Within the context of the gloomy revenue news outlined above, the Conference Committee budget did reduce overall Trial Court funding, but nevertheless provided for a $13.7 million increase over last year’s appropriation – presumably in recognition of the fact that the court system still remains underfunded, despite a more than $8 million increase in FY17 – for a total of $652.6 million in FY18.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less. As a result of this work, they have been able to continue the efficient and effective operation of the courts even with a 19% reduction in staffing since FY02. Despite these transformational efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. For example, the installations of new technologies that will ultimately save on staffing and overhead costs nevertheless require large up-front investments. In addition, the Trial Court’s facilities are in dire need of upgrades in the area of security systems. These upgrades are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

The Trial Court, made up of seven different departments, handles nearly all of the cases in the Commonwealth and functions as the main point of contact for nearly all Massachusetts residents who have legal issues they need resolved. As such, adequate funding is critical for the Commonwealth, and we hope the Governor will include the full appropriation in H3800 for all of the Trial Court line-items.

Massachusetts Legal Assistance Corporation (MLAC)

As you know, MLAC is the largest funder of civil legal aid in the Commonwealth. The Governor’s budget allocated for a 1% increase in MLAC funding, or $18,180,000. The House Budget, with the help of an amendment filed by Representative Ruth Balser, included a $20 million appropriation, and the Senate budget, with the help of an amendment filed by Senators Cynthia Creem and William Brownsberger, also included a $20 million appropriation for MLAC.

Unfortunately, however, the Conference Committee felt compelled, in light of the gravity of the revenue shortfall, to move the MLAC line-item (0321 – 1600) back down to $18 million, representing level-funding from FY17.

We’ve outlined the importance of MLAC funding, again and again, as legal aid touches so many of the biggest social problems facing the Commonwealth, including foreclosures and emergency shelter, immigration, the opioid crisis, and domestic violence. In addition, the recent BBA Report, Investing in Justice, revealed just how many Massachusetts residents needed this aid and how many were turned away due to lack of resources. Each year, MLAC-funded programs are forced to turn way around 64% of qualified clients, or about 57,000 individuals. Plus, with legal aid funding at the federal level in peril, the demand for state-funded legal services may increase even more in the near future.

In addition to outlining the great need for legal aid funding, the report also established that investment in legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. Indeed, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

We join MLAC and the Equal Justice Coalition in urging the Governor to protect funding for civil legal aid by approving the $18 million in MLAC funding in the FY18 Budget.

CPCS

Similar to the Trial Court, the Committee for Public Counsel Services (CPCS) also received some cuts to their budget line-items in the Conference Committee budget.

CPCS plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase compensation paid to private assigned counsel, as well as increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the recent Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and the appropriations outlined above would be a significant and beneficial step in that direction.

Given the importance of the services provided by CPCS, we hope the Governor will continue his recognition of the importance of providing adequate funding for CPCS and uphold the full H3800 appropriations of $58,896,644 for staff and operations (line item 0321-1500); $98,906,090 for private counsel compensation (line item 0321-1510), and $14,951,982 for indigent court costs (line-item 0321-1520).

On the heels of our letter to the Conference Committee, we sent a letter to the Governor this week urging him to include the Conference Committee appropriation in the above line-items. Watch this space for one last update when the Governor signs the official final budget for FY18 … pending any potential legislative overrides, of course, should he veto or cut any of these.

We also want to thank you for all the phone calls, letters, and conversations you’ve had with your legislators on behalf of such important issues like increasing civil legal aid funding and expanding the Housing Court. If you’re reading this before the Governor has acted, please contact his office to express your support for the items outlined above.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Criminal-Justice Reform Inches Forward

Whether or not you’ve been following Beacon Hill developments on criminal-justice reform as closely as we have, if it seems like that debate has been going on for a couple of years now, that’s because it’s been about that long since the state’s top leadership kicked off the review process by formally inviting outside experts to undertake an assessment of our criminal-justice system.  This month, legislation that emerged from that effort—along with more than 150 other bills on criminal procedure, sentencing, prison programs, and related issues—passed the first hurdle in the legislative process, with two heavily-attended public hearings of the Legislature’s Judiciary Committee.

To recap: In July 2015, Governor Charlie Baker, SJC Chief Justice Ralph Gants, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo jointly penned a letter asking for technical assistance from the Council of State Governments’ (CSG’s) Justice Center—which had already provided such help to more than a dozen other states—in using “a data-driven approach to continue to improve criminal justice outcomes”.  The request was greeted with wide acclaim from stakeholders in the system and outside advocates, who saw it as an opportunity to address long-standing inefficiencies and inequities, and to provide a framework for substantial reforms in a variety of areas that have been discussed at the State House for years—but acted on only fitfully and incrementally.  The seeds of future discontent were planted, however, by the letter’s focus on recidivism, re-entry, early release, and post-release supervision—the so-called “back end” of the system, with no mention of such “front-end” ideas as diversion, bail reform, and sentencing reductions.

Fast-forward to this past February, when the CSG group—consisting of a team of national experts alongside a star-studded panel of leaders from throughout the Massachusetts system—released its final report after 18 months of hard work.  As with the initial invitation, the report’s recommendations, which had achieved unanimous internal consensus, met with near-universal approval once made public, and a bill was filed to implement those that required legislative endorsement.  Still, some observers expressed frustration with the bill’s limited scope, pointing out missed opportunities and calling for lawmakers to expand on it when they take up the issue during the current two-year legislative session.

The first real chance to speak directly to legislators on these issues—well, the first two chances, I guess—came on June 5 and again June 19, when the Judiciary Committee, which oversees criminal-justice legislation (among many other areas), held hearings to take testimony on those bills in particular.

The BBA was there both days, along with hundreds of other interested parties, as witnesses spoke on a wide variety of proposals, including limits on how criminal-justice fees and fines are imposed on the indigent, efforts to make the bail system more evidence-based, and steps to reduce the debilitating effects of the web of collateral consequences facing ex-offenders upon re-entry to society.  (For its part, Commonwealth Magazine has been providing strong coverage of the on-going debate, including both hearings—while also weighing in itself from time to time through its MassINC research arm.)

At the June 19 hearing, Marty Murphy of Foley Hoag—BBA Secretary and an experienced criminal lawyer—testified on our behalf, focusing on mandatory minimums, which the BBA has opposed for decades in all cases except first-degree murder.  With the Committee imposing a three-minute limit on oral testimony, in order to allow everyone present an opportunity to be heard, Murphy used his time to make four key points to the panel:

  1. Mandatory minimum sentences fail every test by which we should measure the strength of our justice system: In place of proportionality—a system where the punishment fits the crime—they offer one-size-fits-all justice.  They frequently require incarceration for longer than the judge believes is either necessary or just, as demonstrated by the prevalence of “and a day” sentencing.  These overly-long sentences, in turn, delay the possibility of re-integration, restrict access to the very programs shown to help make that process a success, and often turn prisoners back to the street without support, supervision, or help to find employment or housing.
  2. Mandatory sentencing statutes effectively turn over the reins of the criminal justice system to prosecutors and strip judges of their power to impose the kind of individualized sentences that would in fact make the punishment fit the crime. Mandatory sentences are mandatory only when prosecutors want them to be; in practice, prosecutors often use them as bargaining chips in the plea bargaining process. When prosecutors use the threat of mandatory sentences to drive the plea-bargaining process, there is no transparency and no accountability. Instead, the result is justice produced behind closed doors, with the prosecutor choosing both charge and sentence.
  3. The evidence shows that mandatory minimum sentences help drive one of the most deeply disturbing aspects of our state’s criminal justice system: the problem of racial disparity. Massachusetts may have one of the lowest incarceration rates in the nation; but our criminal justice system’s record on race is nothing to be proud of.  Massachusetts rates of racial and ethnic disparity are among the highest in the United States.  For African-Americans the rate of disparity (that is, incarcerations rates of black compared to white residents) was the 13th highest in the country. For Latinos, Massachusetts ranked first.  Mandatory minimum sentences help drive that rate of disparity: Three out of every four defendants sentenced to mandatory minimum sentences are defendants of color.  As recent studies have confirmed, and as our own experiences teach, these sentences tear lasting holes in defendants’ families, and in entire communities.
  4. There is no time better than the present to address this issue. Massachusetts reduced mandatory minimums in both 2010 and 2012 without the kind of harm to public safety opponents of reform predicted. Since then, we have watched crime rates continue their historic decline. There is certainly much to praise in the CSG’s framework, and in the CSG bill.  The BBA thanks all of those who devoted so much of their time, over so many months, to producing a strong outcome.  But it is our hope that the best and longest-lasting legacy of the CSG process will be the foundation it lays on which to build additional criminal-justice reforms, continuing the work begun in 2010.

As Murphy’s prepared remarks go on to say:

Massachusetts taxpayers deserve to see their money spent wisely.  No one disputes that certain offenders deserve to be incarcerated—sometimes for a long time.  But the length of that sentence should be determined by a well-qualified judge, ruling on the unique facts and circumstances of the case, and the individual defendant’s history and background—not by the cold calculus of arbitrary justice, which is all that mandatory minimums can ever offer.

These hearings were the Legislature’s first official step toward criminal-justice reform in this 2017-18 session.  Much remains unclear at the moment: When will the Judiciary Committee report out legislation?  What form will it take?  Might they, as some have urged, report the CSG bill out first and leave the harder work of fashioning further reforms until later?  Which house will debate these issues first?  And ultimately, how far will the Legislature go in expanding on the narrow scope of the CSG recommendations?

As it happens, Murphy and former BBA President Kathy Weinman, of Collora LLP, are heading up a BBA working group that is currently exploring potential avenues for reform that were left untouched by the CSG report, but where the BBA can recommend improvements to current law and practice.  We expect the group to make those recommendations to the BBA Council soon—and that they will help shape the criminal-justice debate as it develops in the State House.

—Michael Avitzur
Government Relations Director
Boston Bar Association

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