Posts Categorized: Uncategorized

BBA Joins Amicus Brief in Support of Keeping ICE Out of Massachusetts Courthouses

We have been concerned for several years about the issue of enforcement of our immigration laws, and an amicus brief the BBA joined this week is the latest example of our advocacy in this area.

In April 2019, Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services (CPCS), and the Chelsea Collaborative, Inc., jointly filed a lawsuit in federal court against U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS), and several other officials. The lawsuit challenges ICE’s policy and practice of conducting civil immigration arrests inside of and near state courthouses in Massachusetts.

The Plaintiffs contend that:

  • At the time the Immigration and Naturalization Act (INA) was enacted, all those appearing in court on official court business enjoyed a common-law privilege against civil arrest.
  • INA does not specifically extinguish this common law privilege and therefore must be interpreted to be constrained by it.
  • Any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.

The Defendants argue that there is no common-law privilege against civil arrest in courthouses and, in the alternative, that any such privilege was superseded long before the codification of the current immigration scheme.

In June 2019, the Plaintiffs’ Motion for a Preliminary Injunction, which sought to restrict immigration authorities from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they were going to, attending, or leaving the courthouse, was allowed.

This week, the BBA joined an amicus brief in the case jointly drafted by Professor Christopher Lasch of the University of Denver School of Law and the Massachusetts Bar Association (MBA). The brief was also joined by the Massachusetts Academy of Trial Attorneys (MATA), the Women’s Bar Association (WBA), and the South Asian Bar Association of Greater Boston (SABA GB).

The brief is positioned in support of affirming the District Court’s order granting the injunction. Defendants are currently pursuing an interlocutory appeal of that order in the First Circuit, while simultaneously filing a motion to dismiss in the District Court—and an amicus brief in opposition to the latter has been submitted by Professor Nikolas Bowie and the Harvard Immigration and Refugee Clinical Program.

The brief:

  • Contextualizes the case by detailing how “thirty years of ever-increasing efforts by the federal government to harness state and local justice systems in the service of immigration enforcement” set the stage for the conflict between the parties.
  • Outlines why the common-law privilege from arrest recognized by the District Court guarantees access to equal justice and is essential for preserving individual rights.
  • Argues that the privilege from arrest prohibits civil arrests in and around courthouses, protecting the sanctity of the courts as a branch of government and signaling equal access for all who come seeking justice.
  • Argues that the privilege from arrest prohibits arrests of those on their way to, or returning from, court proceedings, protecting individual access to the courts and preserving individual rights.

The BBA has spoken on this issue previously. Our Immigration Principles, as adopted in 2018, state:

“[I]mmigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation.”

Earlier that same year, we sent a letter to SJC Justice Cypher in her capacity as Single Justice, in support of the request by plaintiffs in a related case for full-bench review of a similar claim. (She denied that motion, and the case ended there.) And, in 2019, we spoke out against the federal indictment of Judge Shelley Joseph, who allegedly helped an undocumented man avoid an ICE agent who was waiting for him outside her courthouse. In that occasion, we asserted that the federal government’s decision to send ICE officers to Massachusetts courthouses significantly interfered with the ability to secure justice for all in cases where immigrants—documented and undocumented—are victims, witnesses, or defendants.

The amicus brief we joined this week presents a united front among a number of concerned Massachusetts bar associations, who agree that ICE enforcement in and around our courthouses contributes to a detriment in the ability for all persons to access the justice system, and we hope that this will help persuade the Circuit Court to uphold the injunction.

We will of course continue speaking out on this issue, guided by our Immigration Principles, and we hope that this case sets a precedent that will protect individual litigants in and around courthouses across the Commonwealth and, in doing so, advance the cause of justice.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Q&A with BBA Crisis Response Working Group Chair, Martin Murphy, BBA President-Elect and Partner at Foley Hoag

BBA President Christine Netski appointed a COVID-19 Crisis Response Working Group which has been working to identify and monitor the impact of emerging issues during the COVID-19 crisis, and to recommend changes in or clarifications regarding practice. We caught up with Working Group Chair and BBA President-Elect, Marty Murphy. Murphy discusses some of the emerging issues the group is tackling, ways the legal community has met these extraordinary challenges with collective persistence, and his predictions for how these changes will affect the profession long term.

  1. What are some of the major themes that the Working Group has identified over the last couple of months?

We’ve been working hard to identify how the BBA can best address the unprecedented range of issues the bar and the public are now facing. We’ve been particularly interested in addressing issues that impact individuals who have been hit the hardest, and have even in ordinary times a hard time making their own voices heard. So we have, for example, publicly supported the moratorium on evictions and foreclosures the Legislature enacted and the Governor signed into law, and we also filed a an amicus letter in the SJC supporting expedited, individualized, consideration of release of prisoners in Houses of Corrections and state prisons.  We’ve also taken on a number of issues that impact day-to-day practice in many areas—like the remote notarization of documents (also, fortunately, approved by the Legislature and the Governor.)

  1. What responsibility does the BBA have to speak out on these issues?

Ensuring access to justice for all citizens is at the heart of the BBA’s mission. The challenges faced by individuals facing extraordinary economic hardship and having to face the pandemic while in custody are precisely the kind of issues where the expertise of the BBA’s lawyers can play an important role in shaping the public debate.

  1. What have you learned about the current state of legal practice and the court system through your work with this group?

I have been incredibly impressed by the dedication of lawyers and judges tackling some extraordinarily challenging issues without any playbook. The commitment of the lawyers who brought challenges in federal and state court seeking the release of prisoners and ICE detainees, and the Judges who heard those cases so expeditiously is an extraordinary blessing that we should all be grateful for. The SJC’s first-of-a-kind marathon telephone hearing on the CPCS/MACDL petition was a testament to the quality of advocacy—on all sides–and judging we are fortunate to have here. And United States District Court William G. Young’s willingness, day-after-day, to wade into the personal circumstances of dozens of detainees to determine whether each should be released demonstrates the kind of persistence that is a hallmark of our judiciary.

In ordinary times, this is a great place to practice law. These unprecedented circumstances have tested the mettle of our lawyers and judges, and none have been found wanting.  

  1. Have any changes emerged, whether positive or negative, that you think will last beyond this pandemic?

I think the jury is out on that one—though I am pretty sure that it’ll be some time before offering to shake hands will be viewed as anything other than a declaration of hostilities. It’s hard to know how much of our new virtual reality will stick, and how much will pass by the boards. But I do believe that, in the future, we will all spend more time planning for potential calamities—pandemics, or other threats, like cybersecurity, that could tax our ability to carry on our day to day lives.

And I hope we will all embrace and support new lawyers in this unique time. The pandemic has thrown a monkey wrench into the ordinary rhythm of the bar exam bar, bar admission, and new crop of lawyers we are always excited to bring aboard each fall.  They will need our help.

Emergency Remote Notarization Law Enacted

We have been keeping you updated here on the progress of legislation to authorize, on a temporary basis, the practice of remote notarization and witnessing of documents, which the BBA endorsed.

We’re pleased to report that Governor Charlie Baker signed the bill into law last week. It took effect immediately and will apply until three days after the Governor’s state of emergency is ultimately lifted.

This issue was urgent, because, as we stated in our letter to the Legislature:

We have heard from BBA members across a variety of practice areas—including real estate, family law, trusts and estates, and bankruptcy—that their work is being hindered, and clients’ urgent needs left unaddressed, by the requirement that notarization and witnessing be conducted in person. It is especially unfortunate that, at a time when health concerns, if not actual illness, have led many to focus on their estate planning, quarantine orders and self-isolation are complicating and often preventing the execution of the necessary legal documents to achieve their goals.

The final legislation represented a compromise among a broad coalition representing various practice areas and other stakeholders, including banks and insurance companies. The new law was further tweaked by lawmakers, and while not all parties got everything they wanted, the consensus was that passage in some form took precedence during this crisis over any particular provision.

We were relieved that the Legislature and Governor were able to move this bill through the current limited process, in spite of the hardships they themselves face and the many other pressing priorities before them. Here are some of the highlights of the law:

  • The act permits execution, notarization, filing, or recording of virtually notarized legal documents such as wills, trusts, nominations of guardians or conservators, caregiver authorization affidavits, durable powers of attorney, health-care proxies, and HIPAA documents, as well as mortgages and other documents transferring title to real estate.
  • Only a notary who is also a Massachusetts attorney, or a paralegal under a Massachusetts attorney’s direct supervision, can notarize such documents remotely or virtually. The Act clearly excludes non-attorney notaries from remotely notarizing wills, trusts, personal and asset protection documents and real estate transfer and mortgage documents.
  • Via videoconference, documents may be executed and notarized remotely if:
    • all parties are physically located in Massachusetts during the signing;
    • the signers and all others in the room with the signer consent to the recording;
    • the signer provides satisfactory identification by video, with copies subsequently sent to the notary;
      • If the documents relate to a real estate transaction and the notary does not know the signer, a second form of identification containing the signer’s photograph or signature or issued by a governmental agency, is required to comply with the Act.
      • Copies of the signer’s identification must be retained by the notary for ten years from date of execution.
    • all others in the room are seen on video by the notary and provide satisfactory identification by video and disclose their relationship to the signer;
    • the notary observes the actual execution of the documents by video;
    • the executed documents are delivered to the notary, as directed, for notary signature, stamp, and certification;
    • the notary completes an affidavit indicating receipt of the signer’s identification documents, visual inspection of the credentials during the video conferences, consent to record the video conferences, confirmation that signer was physically located in Massachusetts and noting all of the individuals present in the room with the signer and their relationship to the signer.
  • If any of the executed documents are to be recorded in connection with real-estate transaction (deed, mortgage, easement etc.) a second verification video conference is required.
  • Notaries are required to keep copies of their certifications, affidavits and video and audio recordings of the remote sessions for ten years.

You can read more, and view sample forms, here.

We thank all the BBA sections that brought this issue to our attention, the members who helped support our advocacy by contacting their legislators to explain its importance to the practice of law, and the coalition members who led this effort, including the Real Estate Bar Association of Massachusetts and the Massachusetts chapter of the National Academy of Elder Law Attorneys.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Advocates for Legal Services, Loan Forgiveness, and Immigration in First-Ever Digital ABA Day

Every year, the BBA President and President-Elect travel to Washington, D.C., to meet with our representatives in Congress and advocate for issues that are important to our membership and the legal profession as a whole. This annual event, organized by the American Bar Association (ABA) is known as ABA Day in Washington, and it’s one of our most important lobbying days of the year. This year, however, the in-person component of ABA Day was cancelled due to the coronavirus pandemic, and we were forced to adapt our advocacy to fit with the challenges of the current global situation. BBA President Chris Netski and President-Elect Marty Murphy participated in the first-ever Digital ABA Day on April 22 and 23, 2020, and advocated for three principal issues: Legal Services Corporation (LSC) funding; the Public Service Loan Forgiveness (PSLF) program; and immigration.

The Legal Services Corporation was created to promote equal access to justice by providing funding assistance to civil legal aid programs that exist in every congressional district. Legal aid attorneys help low-income clients with a multitude of legal issues such as family law, housing, employment, immigration, and more. The BBA supports civil legal aid at the local level by advocating for Massachusetts Legal Assistance Corporation (MLAC) funding in the state budget every year, and supports the LSC (alongside the ABA) at the federal level for the same reasons.

LSC is the single largest funder of civil legal aid in the nation and LSC-funded programs help nearly 2 million people every year. (In Massachusetts, they assist the Volunteer Lawyers Project, Northeast Legal Aid, Community Legal Aid, South Coastal Counties Legal Services, and the Massachusetts Justice Project.) However, the need for civil legal aid far outweighs the current resources, and that is why the ABA is advocating for an increase in LSC’s annual appropriation to $652.6 million. This need is especially at the forefront now, as the COVID-19 pandemic brings to light the inequalities in access to justice that have always been present. The pandemic has already caused a significant increase in the need for legal help with evictions and unemployment, lack of access to healthcare, scams aimed at the elderly, and temporary restraining orders needed to protect survivors of domestic violence.

The Public Service Loan Forgiveness Program was enacted by Congress in 2007 in order to make it financially feasible for law school graduates to pursue public interest careers by offering partial student loan forgiveness in exchange for a service commitment of at least ten years. This program is essential to the legal community, which relies on its public servants to provide legal help to those most in need. However, certain members of Congress are calling for the program to be suspended, claiming that it is too expensive for the federal government.

The ABA is strongly in support of the PSLF program and believes that repealing it would be of significant detriment to the legal community and society as a whole, as it would make it more difficult for law school graduates with significant debt to choose careers in public service. The BBA supports this program and also recognizes that communities rely on public service professionals especially during crises, like the current COVID-19 pandemic.

  • Immigration

The BBA has advocated for the fair and just treatment of immigrants for a number of years. Since 2018, we have been guided by our Immigration Principles, which outline the values that are most important to us as an association. Marty Murphy, who chaired the Working Group that drafted the Principles, outlined for our representatives the most important immigration-related issues that we are tracking at the moment.

The first is the ongoing concern with immigrants’ access to courthouses. Immigration and Customs Enforcement (ICE) has been conducting civil immigration arrests in and around courthouses, which produces a chilling effect that may prevent undocumented immigrants from fully participating in the justice system. This is particularly concerning in domestic violence cases, for example, where victims are afraid to present themselves in court due to potential immigration actions, and therefore unable to pursue legal action against their attackers. It has also caused defendants to not show up in court, as Chief Justice Gants and Chief Justice Carey pointed out in a letter to ICE earlier this year. This also prevents the justice system from functioning properly.

The second issue is one that we spoke out recently about in our letter to Acting Secretary of Homeland Security Chad Wolf. The letter urges the Department of Homeland Security (DHS) to instruct U.S. Citizenship and Immigration Services (USCIS) to ensure that foreign-trained healthcare workers are able to deploy their energy to aid our communities that have been devastated by COVID-19. USCIS has the statutory authority to expedite the review of petitions and applications involving healthcare workers. DHS is also equipped with a wide array of tools to recruit and retain critical healthcare workers. 

We are thankful to have met with five legislators’ offices: Congresswoman Katherine Clark (MA-5); Congressman Jim McGovern (MA-2); Congressman Joe Kennedy III (MA-4); Congresswoman Lori Trahan (MA-3); and Congressman Richard Neal (MA-1). We are happy to share that all five offices expressed support on all of the above issues.

We look forward to continuing our advocacy and supporting our members of Congress throughout the pandemic and beyond. If you’d like to express support on these issues to your Senator and Representative, you can find contact information for them here. The ABA also has issue-specific pre-populated forms for your use on LSC and PSLF.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Legislative Update

We continue to monitor pandemic-related legislation of interest to the BBA, and below we offer another bi-weekly update on a couple of bills in particular:

Moratorium on Foreclosures and Evictions

Since our last update, the Senate and House set up a conference committee to work out differences between their respective versions of legislation to impose a moratorium on foreclosures and “non-essential” evictions during, and a bit beyond, the current state of emergency.

The BBA submitted a letter to the conferees on April 13, asking them to act quickly to resolve the matter in order to relieve pressure on tenants and mortgagors by restricting evictions and foreclosures. The letter recommended adoption of one eviction provision in particular, preventing any judgment from being entered on a move-out agreement reached out of court—which we understand may still be happening in Massachusetts courts, notwithstanding the current Housing Court restrictions on non-essential eviction actions—thus pausing evictions from beginning to end, except in emergencies.

The conference committee reached an agreement on April 15, one that included the specific language we sought, and the Governor signed this into law on April 20, with immediate effect. Among the key provisions (which go beyond what was provided in the federal CARES Act):

  • No late fees for non-payment of rent—nor can a landlord notify a credit-reporting agency—if the tenant provides documentation within 30 days of the missed payment that the non-payment of rent was due to a financial impact from COVID-19.
  • Landlords may apply last month’s rent (but not a security deposit) to certain qualified expenses, with notice to the tenant—and with no effect on the interest that would otherwise have accrued as owed to the tenant.
  • Notices to quit may not be sent, nor may sheriffs execute evictions. Housing Court may not hear “non-essential” evictions (as defined), and deadlines are tolled.
  • Tenants are not relieved of their obligation to pay rent. Instead, the Act is intended to provide temporary relief without unduly penalizing landlords from being able to collect unpaid rent. The Act does not provide any guidance as to when and how any unpaid rent must be paid back to a landlord, though this may be covered later in regulations. [Corresponding provisions are in place for mortgagees.]
  • Covers residential tenants and small businesses.
  • For homeowners, including owner-occupants of most buildings with four or fewer units, creditors and mortgagees may not publish a notice of foreclosure sale, commence a judicial or non-judicial foreclosure process, or exercise their power of entry.
  • Creditors must grant a forbearance of mortgage payments for up to 180 days, if requested, during which time fees may not accrue.
  • No additional fees, penalties, or interest beyond what the borrower was obligated to pay under the mortgage may accrue during the forbearance period. Payments subject to forbearance will be added to the end of the term unless otherwise agreed to. Borrowers and lenders may enter into alternative payment agreements, but no negative credit information may be provided by a lender to a credit reporting agency relating to the payments subject to the forbearance.
  • The law is in effect for 120 days, or for 45 days beyond the end of the current state of emergency, whichever is shorter. But after 120 days, the Governor may extend its effectiveness by 90 days, so long as it ends no later than 45 days beyond the end of the current state of emergency.

Read more: https://www.nutter.com/trending-newsroom-publications-ma-enacts-temporary-moratorium-evictions-foreclosures

Remote Notarization and Witnessing

You may recall that the BBA recently endorsed legislation to temporarily authorize remote notarization and witnessing of documents during this state of emergency, and for three days thereafter. The issue has also received media coverage, and Massachusetts Lawyers Weekly recently editorialized about the need for this legislation.

Remote notarization and witnessing would allow attorneys to conduct signings remotely by videoconference, with protections in place to prevent fraud and abuse.  This temporary emergency relief is urgently needed to help clients sign their wills and other essential documents when they (or the notary or attorney) are sick or merely quarantined, and to help keep courts from being overwhelmed by cases after they re-open and the crisis passes.

At last count, forty-two states, including all the rest of New England, have acted to authorize some form of remote notarization during the COVID-19 emergency. And at this time of writing, the Senate and House have each passed identical legislation, which will now be sent to the Governor. If he signs it, the bill will take effect immediately—and we will update you here, with a summary of its provisions.

—Michael Avitzur
Government Relations Director
Boston Bar Association

SJC Decision Offers a Pathway to Emergency Release for Pre-Trial Detainees

Last week, in this space, we told you about an emergency amicus letter filed by the BBA in a lawsuit brought by the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL). The plaintiffs called on the SJC to institute sweeping procedures in order to protect incarcerated individuals, and those who might otherwise become incarcerated, from a potential public-health catastrophe involving the spread of COVID-19 within Massachusetts prisons and jails, and beyond. They asked the Court to create a process by which such at-risk people could be kept out of, or released from, incarceration.

The BBA letter — filed at the recommendation of the BBA’s new Crisis Response Working Group, and drafted with the assistance of members of that group and the Amicus Committee — noted that “this is one of the very rare instances where litigation and judicial deliberation by trial judges under the ordinary rules will literally cost lives” and therefore urged the Court to:

  • create a system-wide mechanism to quickly reduce the pre-trial detainee population, designating officials to review existing bail conditions in pending cases and instructing them to apply a strong presumption of release for individuals held on cash bail (not for dangerousness) and for detainees held on alleged probation violations (other than new violations of restraining orders in domestic-abuse cases); and
  • temporarily suspend Massachusetts Criminal Procedure Rule 29 so as to allow anyone serving a House of Correction sentence or a parole-eligible (including medical parole) prison sentence to file a motion to revise and revoke their sentence — notwithstanding the requirement that such a motion be filed within 60 days of sentencing — and explicitly permit judges addressing those motions to consider the COVID-19 pandemic in their rulings.

The SJC ruled last Friday, on an expedited basis, after a historic telephonic emergency hearing that lasted four hours. In its decision, the Court began by recognizing the urgency of the situation and pointing to its won actions in response, including its statement that, “[i]n criminal cases, where appropriate, a defendant may ask the court for reconsideration of bail or conditions of release.” The unanimous opinion by Justice Gaziano (with Justice Lenk taking no part) goes on to state:

We conclude that the risks inherent in the COVID-19 pandemic constitute a changed circumstance within the meaning of G. L. c. 276, § 58, tenth par., and the provisions of G. L. c. 276, § 557. To decrease exposure to COVID-19 within correctional institutions, any individual who is not being held without bail under G. L. c. 276, § 58A [dangerousness], and who has not been charged with an excluded offense (i.e., a violent or serious offense enumerated in Appendix A to this opinion) is entitled to a rebuttable presumption of release. The individual shall be ordered released pending trial on his or her own recognizance, without surety, unless an unreasonable danger to the community would result, or the individual presents a very high risk of flight.

The special master appointed by the Court is ordered to work with sheriffs and the Department of Correction (DOC) to facilitate its implementation. And the Parole Board and DOC are urged “to expedite parole hearings, to expedite the issuance of parole permits to those who have been granted parole, to determine which individuals nearing completion of their sentences could be released on time served, and to identify other classes of inmates who might be able to be released by agreement of the parties, as well as expediting petitions for compassionate release.”

However, the Court declined to exercise its superintendence authority, as urged by the BBA and others, toward the release of those incarcerated post-sentence:

With respect to those individuals who are currently serving sentences of incarceration, absent a finding of a constitutional violation, our superintendence power is limited. Those who have been serving sentences for less than sixty days may move to have their sentences revised or revoked under Mass. R. Crim. P. 29, as appearing in 474 Mass. 1503 (2016) (Rule 29). Those who are pursuing appellate proceedings or a motion for a new trial may seek a stay of execution of sentence pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). See Commonwealth v. Charles, 466 Mass. 63, 83 (2013). Where there is no constitutional violation, however, art. 30 of the Massachusetts Declaration of Rights precludes the judiciary from using its authority under Rule 29 to revise and revoke sentences in a manner that would usurp the authority of the executive branch. Removing any limitation on the time in which a motion to revise and revoke a sentence may be brought, however, would do precisely that.

The ruling left the door open to further litigation for such individuals, saying that “if the virus becomes widespread within correctional facilities in the Commonwealth, there could be questions of violations of the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.”

We were pleased that the Court at least took steps to speed the release of broad classes of pre-trial detainees by finding them presumptively eligible under the changed circumstances. And although we were disappointed that the Court did not take the opportunity to suspend Rule 29, we will continue to monitor any follow-up litigation, such as on constitutional grounds, and the implementation of this ruling.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Legislative Update

Two weeks ago, we offered in this space a round-up of legislative action during the current state of emergency, with a focus on a small number of items that the BBA is closely following. With the Senate and the House currently meeting only in informal sessions and only two or three days a week each, there’s a narrow pipeline for legislation to pass through in order to achieve passage in both chambers and be sent to the Governor. Any measure that comes up in informal session must win unanimous consent, meaning that, practically speaking, all significant bills must be worked out ahead of time.

Deadlines are being extended as the Legislature is almost exclusively working on pandemic-related issues at the moment:

  • Committees that previously asked for extensions from a February deadline, in order to further consider bills still before them, are now seeking extensions to those extensions.
  • The budget process has been blown up. Ordinarily, this would be the week that the House Ways & Means Committee releases its budget proposal, for debate on the floor later this month. Instead, we are back to square one, as the Legislature and Governor (whose own budget plan, sent to lawmakers in January, has been scrapped) must first agree on a new revenue estimate for the coming Fiscal Year 2021, which will be revised dramatically downward to reflect the shutdown of the state’s economy. There is no new timeline for next year’s budget, which is technically due by July 1.
  • The deadline for formal sessions of the Legislature for 2019-2020 seems likely to be extended past July 31.

We have been most closely following these issues, all of which are currently before our new Crisis Response Working Group:

  • Legislation to allow non-profit corporations to hold their annual meetings remotely, even if not otherwise authorized, was adopted last week as part of a larger bill designed to help municipalities. It can be found in Section 16 of Chapter 53 of the Acts of 2020, signed into law on Friday and taking immediate effect. The special law expires 60 days after the end of Governor’s current COVID-19 executive order, and it also covers proxy voting, notice and cancelation of meetings, and service by directors and board members. You can read a detailed summary of these provisions by Brad Bedingfield (Hemenway & Barnes), who serves as co-chair of the Public Policy Sub-Committee of our Tax-Exempt Organizations Section.
  • As of this writing on Thursday, the Senate and the House continue to go back and forth trading versions of a bill designed to protect tenants from eviction and homeowners from foreclosure during this emergency. There remain some differences between the bill that the House adopted last week and the Senate voted to send back just this afternoon. Nevertheless, there appears to be agreement both that this is an urgent issue (April 1 rent deadlines having now come and gone) and that even after this bill is enacted, legislators will need to return to the issue to take up additional concerns that are likely to go unaddressed in this first round.
  • Practitioners in the trusts-and-estates and real-estate fields are pursuing legislation to authorize notaries public who are attorneys (or paralegals under the supervision of an attorney) to conduct business by synchronous video-link with signatories and witnesses. This is a matter of some urgency in a variety of practice areas, and while a bill has been filed to address the problem, it negotiations over it are on-going in the Legislature.
  • There is criminal-justice legislation that’s been filed aiming to reduce the population of incarcerated individuals in Massachusetts, at least temporarily, since prisons and jails make social distancing nearly impossible and can otherwise exacerbate the spread of COVID-19, once it gets behind the walls. However, it has thus far gathered little observable momentum on the legislative side. Instead, the real action appears to be in the court. (See a companion Issue Spot post this week for more about a recent SJC decision that should allow at least some pre-trial detainees to be released from, or avoid altogether, incarceration.)

We’ll continue to monitor and update you on these bills, but in the meantime, please let us know if you are aware of any other issues that have arisen in your field, or affecting the practice of law or access to justice generally!  You can always e-mail me at mavitzur@bostonbar.org. Thanks in advance for your input.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Lawyers for Civil Rights Files Emergency Class Action Against ICE and Bristol County Sheriff

Lawyers for Civil Rights (LCR) are calling on the federal government to release all individuals currently held in immigration custody who do not have criminal convictions, citing concerns that detainees are not able to properly social distance and prevent the spread of COVID-19 within detention centers. On March 26, 2020, LCR filed an emergency class action against Immigration Customs Enforcement (ICE) and the Bristol County Sheriff requesting immediate relief on behalf of a putative class of highly vulnerable civil immigration detainees who are at imminent risk of contracting COVID-19.

The complaint, which was filed in partnership with Yale Law School’s Worker and Immigrant Rights Advocacy Clinic and the Brazilian Worker Center, contains accounts of guards who report to work with coronavirus symptoms, and detained individuals who are still being brought into the facility without any medical testing or screening. The complaint alleges that Bristol County and ICE fail to provide sanitizer and disinfectant, subjecting immigrants to imminent infection, illness and death. LCR argues that ICE has significant discretion to release detained immigrants, and regularly uses alternatives to detention to maintain custody and control over non-citizens in immigration proceedings, such as supervised release, electronic ankle monitors, home confinement, and telephonic monitoring.

The lawsuit, filed as a complaint and petition for writ of habeas corpus, was brought against Bristol County Sheriff Hodgson; Bristol County House of Corrections Superintendent Steven Souza; Acting Director of ICE’s Boston Field Office Todd Lyons; Acting Homeland Security Secretary Chad Wolf; and ICE Director Matthew Albence. The individuals named as Petitioners-Plaintiffs are Maria Alejandra, an immigrant who suffers from asthma, and Julio Cesar, an immigrant who suffers from extreme depression and anxiety which are being exacerbated by the imminent risk of contracting coronavirus.

According to Syracuse University’s TRAC Immigration Database, as of July 2019, there were 747 people detained in immigration jails in Massachusetts. Of those, nearly 60% had no criminal conviction.

The case was heard on April 2 and U.S. District Judge William G. Young said that he was inclined to start freeing some detainees because medical evidence suggests that reducing the population would “improve the chances” that others at the jail would not contract the virus. Judge Young, who urged the sides to try to negotiate an agreement, said anyone released would have to be symptom-free and be taken to a home or an apartment, where they would remain quarantined for 14 days, under house arrest.

Meanwhile, Sheriff Hodgson has said that he is adamantly opposed to releasing detainees on the issues being raised by the LCR lawyers. He said that ICE detainees are in a safer place, medically speaking, than they would be if released, since some may not have a home.

On Tuesday, April 7, Judge Young ordered the release of eight immigrants held by Sheriff Hodgson. According to court documents, Judge Young is considering the release of 10 detainees per day.

The American Civil Liberties Union (ACLU) of Massachusetts has also called on ICE to release detainees amidst the risk of coronavirus infection. On March 25, they sued ICE on behalf of two immigrant detained in the Plymouth County Correctional Facility. Those two immigrants were released on March 27. In a statement, Matthew Segal, the legal director for the American Civil Liberties Union of Massachusetts, said close quarters in prisons and other detention facilities raise health concerns on a regular basis and especially so during a time of pandemic. “The Trump administration’s immigration enforcement regime should not be sentencing people to potential exposure to a serious and potentially fatal disease,” Segal said. “Public officials have made clear that we must all follow social-distancing and risk-reduction guidance, and this is especially true—not less true—where detained or incarcerated people are concerned.”

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Urges SJC Action to Reduce Incarcerated Populations in Response to Pandemic

Emergency Petition Filed by Defense Bar Leads to Historic SJC Telephonic Hearing

The BBA this week filed an amicus letter, on an emergency basis, in the SJC case of CPCS and MACDL v. Chief Justice of the Trial Court, a case in which the Court on Tuesday, for the first time in its history, held a telephonic hearing before the full bench, though Justice Lenk recused herself.  (The audio from that hearing has now been posted on-line.)

The plaintiffs, both the Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL), call on the Court to institute sweeping procedures in order to protect incarcerated individuals, and those who might otherwise become incarcerated, from a potential public-health catastrophe involving the spread of COVID-19 within Massachusetts prisons and jails, and beyond. They ask the Court to create a process by which such at-risk people could be kept out of, or released from, incarceration.

The BBA’s letter to the SJC makes practical suggestions on how best to approach two particularly-critical issues among those that the plaintiffs place before the Court: the need to create a system-wide mechanism to expedite consideration of release of individuals held pre-trial and in connection with certain probation violations, and the need to facilitate individualized judicial determination for those individuals serving sentences who may not be automatically entitled to release, post-litigation.

The BBA letter notes that “this is one of the very rare instances where litigation and judicial deliberation by trial judges under the ordinary rules will literally cost lives” and therefore urges the Court to:

  • create a system-wide mechanism to quickly reduce the pre-trial detainee population, designating officials to review existing bail conditions in pending cases and instructing them to apply a strong presumption of release for individuals held on cash bail (not for dangerousness) and for detainees held on alleged probation violations (other than new violations of restraining orders in domestic-abuse cases); and
  • temporarily suspend Massachusetts Criminal Procedure Rule 29 so as to allow anyone serving a House of Correction sentence or a parole-eligible (including medical parole) prison sentence to file a motion to revise and revoke their sentence — notwithstanding the requirement that such a motion be filed within 60 days of sentencing — and explicitly permit judges addressing those motions to consider the COVID-19 pandemic in their rulings.

The BBA envisions a mechanism in which a judge in each district would promptly review a list of detained persons provided by the local sheriff, with the assistance of defense lawyers and prosecutors, that release would be presumptive unless a DA demonstrates that the need for detention significantly outweighs the health-related risks from exposure to COVID-19, and that rulings would be made as quickly as possible, with the option for a judge to impose conditions in order to ensure a defendant’s appearance. The same mechanism would also be applied to pre-trial detainees not held on cash bail or for probation violations, except they would not receive the presumption for immediate release.

The letter further suggests that the SJC make findings of fact concerning COVID-19 exposure risk, and that it encourage judges to take judicial notice of medical and scientific filings on this question.  The letter is silent on the other requests in the plaintiffs’ motion.

The SJC appointed a special master in the case, Brien O’Connor of Ropes & Gray, who worked out a proposed plan for dealing with inmates by category, though not all parties at the hearing expressed support for the plan. (You can view that document and all filings in the case on a special web-page for the case.)

The amicus letter was submitted by BBA President Christine M. Netski of Sugarman Rogers, with assistance from two members of the BBA’s Amicus Committee, Professor David M. Siegel of New England Law | Boston and Meredith Shih of Harvard Law School’s Criminal Justice Institute, and President-Elect Martin F. Murphy of Foley Hoag LLP.

The SJC is expected to issue a decision in this pandemic-related case on an expedited basis in the coming days.

—Michael Avitzur
Government Relations Director
Boston Bar Association

SJC Releases Ruling in Carrasquillo, on Lack of Criminal Defense Attorneys

Case arose from a Hampden County crisis, in which many defendants went unrepresented

The Supreme Judicial Court released its decision this week in Carrasquillo v. Hampden County District Courts, involving a shortage of available defense attorneys that left many indigent criminal defendants in the Springfield District Court without counsel. In keeping with our commitment to due process and the fair and efficient administration of justice, the BBA had filed an amicus brief in the case, recommending that the SJC consider “mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates” willing to take such cases.

The Court agreed with the premise of the BBA — and other amici who filed separately — that the proper solution to the prospect of a recurring constitutional crisis stemming from lack of available counsel for criminal defendants through the state’s public-defender agency, the Committee for Public Counsel Services (CPCS), is to increase the statutory hourly rate of pay for private attorneys who take on those cases.  

There is, however, one remedy on which the parties and nearly all the amici appear to agree: increasing the statutory rates of compensation for bar advocates. They have identified low rates of compensation for bar advocates as a major factor in discouraging private attorneys from accepting court appointments, and they argue that increases are urgently needed to encourage greater participation. We also note that the recent report of the Supreme Judicial Court Steering Committee on Lawyer Well-Being identified financial stress as a central issue affecting the well-being of privately assigned counsel, and it recommended increasing their hourly rates to address this problem.

FREDDIE CARRASQUILLO, JR., & others vs. HAMPDEN COUNTY DISTRICT COURTS

To reach that conclusion, they echoed figures from the BBA’s brief showing how the inflation-adjusted value of those pay-scales has actually fallen in the 16 years since the SJC’s 2004 decision in Lavallee v. Justices in the Hampden Superior Court. The ruling also cites concerns raised in the BBA brief about the impact that overloading CPCS capacity would have on both the quality of representation provided and lawyer well-being. 

We understand that CPCS has discussed the shortage of bar advocates with the Legislature, and we are confident that the Legislature will take additional actions as necessary, “exercis[ing] prudence and flexibility in choosing among competing policy options to address the rights of indigent
defendants to counsel.” … While we have inherent power to ensure the proper operations of the courts and to protect them from impairment resulting from a lack of supporting personnel, O’Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 510 (1972), “this inherent power is a duty which must be borne responsibly,” and “with due consideration for the prerogatives of the executive department and the Legislature…”

Nevertheless, the Court declined to invoke its own superintendence authority in order to adjust those rates upward, as the BBA had urged, instead leaving the matter to the Legislature. The ruling presents a strong case that the Legislature must act to increase not only compensation for private bar counsel but also for CPCS staff attorneys and assistant district attorneys (while acknowledging that some progress has been made on the latter two fronts in recent years).

Said BBA President Christine M. Netski of Sugarman Rogers, “We share the Court’s firm belief, as expressed in the ruling’s first sentence, that ‘[t]he right to counsel is one of the most fundamental principles in our criminal justice system,’ and we will continue to advocate for appropriate funding to preserve and maintain that right statewide.”

The petitioners challenge an order … that required the attorney in charge of the Springfield office of the Committee for Public Counsel Services (CPCS) “to provide counsel to Courtroom I in the Springfield District Court every day who shall accept appointments in all cases as ordered by the Court to represent clients at arraignment[s], bail hearings, hearings pursuant to G. L. c. 123, § 35, and any other matter that the Court deems necessary.” The First Justice issued this order in response to a shortage of available defense attorneys that left many indigent criminal defendants in the Springfield District Court without counsel.

The SJC’s ruling also vacated an order by a District Court First Justice that CPCS be required to provide counsel in such criminal cases as “the Court deems necessary”, as well as any resulting appointments of counsel. The Court held that CPCS attorneys can’t be required to take more cases than the agency determines it has the capacity for, and that when a shortage occurs, either CPCS or the regional administrative justice (RAJ) can trigger the so-called Lavallee protocols by filing a petition with the SJC’s Single Justice. 

Following up on their decision in Lavallee, where the BBA also filed an amicus brief, the ruling outlines the process to be followed when a court is affected by a shortage of qualified counsel that interferes with the prompt appointment of defense attorneys to represent those defendants. This clarifies the process that Lavallee established for such instances, so that trial judges will no longer be left to fashion their own remedies, as occurred here.

The Court took the opportunity to strongly urge Massachusetts attorneys to take such cases, citing both the social benefit, in the form of enhancing the integrity and accuracy of our criminal-justice system, and the benefit to the practice of law, in the form of additional opportunities to acquire courtroom experience. 

There has been concern in recent years over the disappearance of jury trials and the difficulty of finding opportunities for new lawyers to gain court room experience. Participating in bar advocate programs offers that experience. There is also a need for more attorneys to participate in the bar advocacy program. As described above, for a century Massachusetts attorneys regularly represented indigent defendants without compensation in capital cases, as a service to the community and the profession. A similar spirit of public service is needed now.

The BBA’s brief in this case was drafted by two attorneys from Foley Hoag LLP, Amicus Committee Co-Chair Neil Austin and Stephen Stich, and by former Amicus Committee Co-Chair Professor David Siegel of New England Law | Boston.

—Michael Avitzur
Government Relations Director
Boston Bar Association