State Budget Update

Regular Issue Spot readers know that we closely follow the progress of each fiscal year’s state budget, from before the release of the Governor’s budget (usually in January) until sometime in the summer when the Governor signs the Legislature’s final budget into law (and sometimes beyond, when—unlike this year—there are vetoes that the Legislature seeks to override).  This year the budget for Fiscal Year 2020 (FY20) took effect on July 31, and we were very pleased to see that the Governor OK’d the Legislature’s provisions in all of the priority areas we had written to him in support of:

  • This year, the Legislature provided a significant increase of $3 million in the line-item for the Massachusetts Legal Assistance Corporation (MLAC), the state’s leading funder of legal-services providers, bringing their FY20 total to $24 million.
  • The judiciary is funded through a web of related line-items, but the bottom line (if you will) is that this year, they are very satisfied with the appropriation they received from the Legislature, including funding for continued implementation of the Housing Court’s statewide expansion, which was first authorized two years ago.
  • The Committee for Public Counsel Services (CPCS) saw robust funding for its operations, including both staff and private counsel who take their cases. The budget crucially also includes a so-called outside section, supported by the BBA, that would allow for a temporary expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances, in order to address emergency shortages of attorneys willing to take cases in some regions.
  • A recent addition to our budget priorities is funding for post-incarceration residential re-entry services. As indicated in our 2017 report on criminal-justice reform, No Time to Wait, such services can be a critical link in supporting successful re-integration, and thus a reduction in recidivism rates. We were therefore pleased that the Legislature authorized $4.5 million in funding for such programs this year.

Not only did Governor Charlie Baker sign off on all the above, as we had requested, but in a surprise move, the Governor declared the budget balanced—helped by an influx of revenue totaling hundreds of millions of dollars beyond projections—and chose not to veto any line-items at all.

—Michael Avitzur
Government Relations Director
Boston Bar Association

New Rule on Conditional Pleas

In February, in response to a request for public comment by the SJC on a proposed amendment to Rule 12 of the Mass. Rules of Criminal Procedure, addressing the use of conditional guilty pleas in criminal cases, the BBA submitted informal comments, on behalf of our Criminal Law Section, on a number of aspects of the rules.  Recently, the SJC adopted the final version of the rule, to take effect on September 1, and while much of what our commenters suggested went unaddressed in the final version, we did note that it adopts our recommendation that the rule clarify that such pleas are governed by the rules of appellate procedure.

Specifically, as we noted in our comments—drafted by the Criminal Law Section’s David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana, of the Suffolk County District Attorney’s Office—”The rule could be clarified to say that the normal rules of appellate procedure will apply to appeals taken from conditional guilty pleas. This may go without saying, but—particularly because this is such a new procedure—the parties should know that these appeals are governed by familiar rules. Several members of the section thought the new rule’s omission of any reference to the appellate rules could cause confusion.”

As noted by Massachusetts Lawyers Weekly (paywall), “Under the rule, a defendant may, with the prosecutor’s agreement, plead guilty (or in District or Juvenile courts admit to sufficient facts), appeal a ruling the defendant believes is erroneous, and, if successful on appeal, withdraw the plea (or the admission to sufficient facts) and presumptively obtain dismissal of the charge.”

Rangaviz, one of the authors of the BBA’s comments, expressed disappointment that the final rule retains a requirement for prosecutorial consent, which he believes will blunt the impact that the rule seems intended to have, but he acknowledged that there was disagreement within the section (as there often is) on this point, and others.  (When the BBA submits informal comments, it does so on behalf of its members but without taking a position on their merits.)  In addition to submitting comments, the BBA held a program this past March, moderated by Bruce Ferg of our Criminal Law Section, on the use of conditional guilty pleas in Massachusetts.

These changes were triggered in by the SJC’s 2018 decision in Commonwealth v. Gomez, where the Court exercised its superintendence power to conclude that a conditional guilty plea is permissible so long as it is entered with the consent of the court and the Commonwealth and so long as, at the time the plea is entered, the defendant specifies the specific pretrial ruling from which he or she intends to appeal.

You can read more about the changes to the rule, about our comments, and about the final rule.  We thank Kaushal and David, and the full Criminal Law Section, for their help in assembling our comments.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files as Amici in Two New Cases – and Praises SJC Decision in a Third

This was a busy week on the amicus front at the BBA, with two new filings—one brief, one letter—and a decision from the SJC on a case where we filed a brief this spring.

Starting with that last item, we reported previously on Commonwealth v. Johnson, in which the BBA submitted an amicus brief arguing that the state law on access to post-conviction testing to remedy wrongful convictions (known as Chapter 278A) was enacted specifically to facilitate access, and the SJC should therefore adopt a broad interpretation of its standing requirements.

Johnson—who was required to register as a sex offender as a result of a 1994 conviction—maintains his innocence and seeks the opportunity to test DNA evidence of which he was unaware at the time of trial, in the hope it will lend evidentiary support to his wrongful-conviction claim. The law limits access to testing to those who have been convicted in Massachusetts of a criminal offense and are “incarcerated [or] on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” Johnson’s petition was denied at the lower level when the judge found that he did not meet this threshold requirement, because he was then incarcerated as a result of failing to register as a sex offender and not as a direct result of his conviction.

Although the defendant here completed his Massachusetts sentence and is not currently on parole or probation, the BBA argued that his liberty continues to be restrained by his requirement to register as a sex offender, and that his claim—and claims of all similarly-situated individuals—should therefore be allowed to proceed.

On August 20, the SJC released its decision ruling that the defendant met the threshold requirements and is entitled to move forward with his application for DNA testing—and while the Court did not reach the issue raised in our brief, we were heartened by the inclusive interpretation the Court applied to Chapter 278A. This ruling, consistent with SJC jurisprudence in past cases, applies an appropriately broad interpretation that allows anyone whose liberty is restrained as a result of a Massachusetts conviction to pursue such testing and ensures that the Massachusetts law providing access to post-conviction testing of forensic evidence will be interpreted as the Legislature intended.

The SJC is set to hear oral argument on September 6 in Rawan v. Lala, a case that tests whether an insurance company must honor a clause in certain policies, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy.

Under G. L. c. 176D, § 3(9)(f), it is considered an unfair claim settlement practice for a liability insurer to fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In this case, an engineer was sued and gave only limited authority to his insurance company to make settlements, pursuant to a “consent to settle” clause in his insurance policy. The plaintiffs prevailed at trial, and the engineer’s insurer paid their coverage limit, with the insured paying the difference. After the verdict, the plaintiffs also brought a claim against the insurance company, under Chapter 176D, arguing that the insurer had violated its statutory obligation to act reasonably and in good faith to pursue a settlement, once its client’s liability had become reasonably clear.

The BBA last week filed a brief offering the perspective of attorneys, for whom such policies are common, and arguing that they benefit the profession as well as clients by encouraging attorneys to obtain liability coverage and to fashion policies to suit their needs. These insights are not offered through the briefs filed by the parties in the case, but the BBA wanted to make sure that the Court considers what is at stake here for the practice of law—which is one of the issue areas the BBA’s Amicus Committee looks at closely when considering whether to recommend filing a brief.

The brief, drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody & Arnold, LLP, states:

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

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

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

Commonwealth v. Heywood presents questions surrounding the seating of a blind juror in a case with photographic evidence of the victim’s injuries, where the seriousness of such injuries was relevant to the charge for which the defendant was convicted. The SJC solicited amicus briefs on the following issues:

Whether the judge erred in determining that a blind juror was competent and qualified to be seated on a case involving a charge of assault and battery causing serious bodily injury, where the evidence included two photographs and other documentary evidence; whether appropriate accommodations were made to permit a blind juror to be seated as a juror; whether the evidence was sufficient to warrant a finding of serious bodily injury.

However, the BBA chose, on the recommendation of our Amicus Committee, to take a step back from these case-specific questions in order to look at the broader picture—and to do so in the form of an amicus letter, rather than a full brief.  As noted in our letter:

The BBA submits that having the benefit of the diverse views of citizens with physical disabilities is essential to a fair and impartial process and, in particular, in a trial before a jury of one’s peers. Given the historical limits that persons with disabilities have experienced in their attempts at serving as jurors, the Court’s questions raise issues well beyond the specific ones in the Heywood case. The BBA thus supports the establishment of a Study Group to evaluate the broader issues of how trial judges should evaluate the feasibility of service by prospective jurors with disabilities and to provide guidance to all stakeholders—judges, attorneys, jurors and litigants—under the myriad of circumstances that may arise when a citizen with a physical disability is summoned for jury service in both criminal and civil cases.

The letter goes on to suggest that such a panel could “examine the current best practices in accommodating jurors who have physical disabilities in an effort to standardize statewide procedures for the Court,” noting that “there does not appear to be any guidance available to trial judges or attorneys on how best to accommodate [such] jurors.” These best practices could cover questions for jurors, whether preliminary or at voir dire, and the use of peremptory challenges and challenges for cause.  After this initial groundwork has been laid, “the BBA envisions that the Study Group might recommend that the Court create a Standing Committee or Committees” to develop training programs on these issues, monitor improvements in technological accommodations, and the like.

The amicus letter closes by emphasizing, “The BBA believes it is the responsibility of the bench, the bar and the legislature to provide equal access to jury service to our citizens with physical disabilities. Equal justice under the law and the right to an impartial jury of one’s peers demands nothing less.”

The letter to the SJC was sent by BBA President Jonathan Albano of Morgan Lewis, with the assistance of Amicus Committee member Scott Lopez, of Lawson & Weitzen.

Oral argument will be held at the SJC on September 9, though we may have to wait for a decision to know whether the SJC intends to act on our suggestion, since—as with Rawan—the parties are not expected to address the issues raised in the BBA’s letter.

 —Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Announces New Judicial Independence Principles and Recommendations

Judicial independence is a cornerstone of constitutional democracy, promoting the ideal that the process of determining an outcome in a legal case is unaffected by the identity of those the dispute involves, unaffected by public opinion regarding how the dispute should be resolved or the popularity of the parties and their arguments, and unaffected by thoughts or opinions held by members of the other two equal branches of government about the dispute’s proper outcome. As a bar association, we believe that judicial independence is imperative to maintaining a fair court system and upholding the rule of law.

Prompted by a series of recent events that have made news, and a general sense that the climate around judicial rulings and other decisions, as well as the process for judicial selection and appointment, may be undermining public faith in the judiciary, the BBA Council approved the creation of a Working Group on Judicial Independence to take a closer look at the issue. BBA President Jon Albano of Morgan Lewis selected eleven working group members with a diverse set of backgrounds, including retired judges, practicing attorneys, and academics.

Under the leadership of Co-Chairs Lisa Goodheart of Sugarman Rogers and Renée Landers of Suffolk University, both of them former BBA Presidents, the Working Group spent the last six months discussing, debating, and analyzing the key aspects of judicial independence and the values that underpin it. The Working Group identified a set of five core principles that can guide the BBA, the wider bar and general public, and a set of recommendations for bar associations, attorneys, judges and courts. Read the full report here.

The BBA’s Historical Support for Judicial Independence

The mission of the BBA is to facilitate access to justice, advance the highest standards of excellence for the legal profession, foster a diverse and inclusive professional community, and serve the community at large. Over the years, the BBA has been a constant supporter of a well-functioning, adequately funded, and independent judiciary, and as an association of attorneys, we believe we have a particular responsibility to ensure that the role of the judicial branch is understood and that its independence is defended.

This responsibility compelled us, four times in the last two-and-a-half years, to speak out in response to statements and actions by local and national figures that seemed to threaten the independence of the judiciary.

Most recently, in April 2019 the BBA released a statement in response to the indictment of Massachusetts Judge Shelley Joseph on obstruction of justice charges. It provides that “[i]n the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law. The BBA has kept apprised of Judge Joseph’s case and was gratified to note that both the SJC’s August 13th opinions reinstating Judge Joseph’s salary during the pendency of her criminal case cited judicial independence as a primary motivation for making that decision.

The BBA has released statements condemning unfair criticisms of judges in the past, and the Working Group’s report cites a number of them in recent years, in an appendix to the report.

Aside from condemning unfair criticism towards judges, the BBA has also supported judicial independence by advocating on related issues. For example, our 2018 report spelling out the BBA’s Immigration Principles, included “Access to a Fair Immigration Process with Independent Judges” as a key tenet and expressed deep concern that “immigration judges…lack many of the protections associated with judicial independence.” It was clear to that immigration working group that the potential for politicization of immigration proceedings affects the ability of the judiciary to maintain its independence from outside influences, to the detriment of immigration judges’ ability to decide matters impartially.

In May 2018, when the BBA endorsed proposed legislation requiring that all public schools provide instruction in civics, then-President Mark Smith noted that “the judiciary’s unique role in our state and federal governments may be especially vulnerable when the public lacks knowledge of key concepts like the role of checks and balances, separation of powers, and judicial review.” This statement contributed to the Judicial Independence Working Group’s decision to include public education in its set of recommendations. They determined that access to information on the role and functioning of the judiciary is essential to the public’s confidence in judges, and that public perceptions play a major role in the ability of the judiciary to remain independent.  

To read more about the BBA’s past actions on matters relating to judicial independence, see Appendix A of the report.

The Judicial Independence Working Group (JIWG)

The JIWG was made up of the following individuals:

  • Renée Landers, Co-Chair; Professor of Law and Faculty Director, Suffolk University Law School;
    Member of the Committee on Judicial Ethics
  • Lisa Goodheart, Co-Chair; Partner, Sugarman Rogers; Immediate Past Chair of the Court Management Advisory Board
  • Jonathan Albano, BBA President, Partner, Morgan Lewis
  • Hon. Robert Cordy, (ret.), Supreme Judicial Court
  • Lawrence Friedman, Professor, New England Law | Boston
  • Hon. E. Susan Garsh, (ret.), Massachusetts Superior Court
  • Giselle Joffre, Partner, Foley Hoag
  • Paul Lannon, Partner, Holland & Knight
  • Hon. James McHugh, (ret.) Massachusetts Appeals Court
  • Patrick Moore, Partner, Hemenway & Barnes
  • Ian Roffman, Partner, Nutter McClennen & Fish

Over the course of six months, the JIWG met periodically and discussed, debated, and thought critically about the current threats to judicial independence. During this time, they were able to hear from the Commission on Judicial Conduct, the Supreme Judicial Court (SJC) Public Information Office, the First Circuit’s Office of the Circuit Executive, the SJC Committee on Judicial Ethics, and current and former members of the press. These groups and individuals shared their time, experience, and expertise over the course of the Working Group’s efforts, and the BBA is extremely grateful for their contributions.

The Report: “Judicial Independence: Promoting Justice and Maintaining Democracy”

The new BBA report outlines the importance of judicial independence, recites the threats it is currently facing, and proposes a set of recommendations to mitigate these threats. In its deliberations, the working group determined that judicial independence is essential to our society in the following ways:

  • the protection of civil rights and liberties
  • the role it plays in producing economic order
  • the reassurance that our personal affairs, when they wind up in court, will be adjudicated fairly
  • the widespread recognition among the citizenry that the law will be applied and administered fairly

The working group found that judicial independence has, for some time, been under attack in various ways. These attacks can take the form of vocal outbursts by public officials and thought leaders singling out specific judges or unpopular decisions, or they can be more subtle and progressive attacks that de-legitimize the judicial process in the eyes of the public over time—whether by questioning a judge’s or a court’s ability to act impartially or by suggesting that they can be expected to deliver the kinds of decisions the appointing authority has promised.

Public and private attacks on judicial independence can have significant deleterious consequences for individual judges as well as the integrity and operation of the judiciary generally. These consequences include: generating pressure for judges, going forward, to consider factors beyond the merits of the cases before them, instead of focusing exclusively on the facts and legal issues presented; and tainting public perception of the judiciary and undermining public trust in the judicial process.

The working group acknowledged that public scrutiny and criticism of judges and the general administration of the judiciary can have positive effects when the scrutiny, whether performed by the traditional press or other institutions, fulfills a “watchdog” function for the public, and serves to root out corruption, misconduct, and unjust practices. The challenge is distinguishing between harmful attacks on judicial independence and helpful efforts at reform.

Based on this understanding of the threats facing judicial independence, the working group developed the following five principles:

Principle 1: In our system of government, judicial independence is a concept that is fundamental to the rule of law and to the checks and balances the rule of law supports.

Principle 2: “Rule of law” is a shorthand expression for a legal system in which disputes are predictably decided on the basis of neutral legal principles applied in a systematic and orderly way that is free from bias and under which the resulting decisions typically are following voluntarily by those whom they affect.

Principle 3: The vitality of the rule of law ultimately depends on public understanding of the value and importance of the concept coupled with public support for judicial independence.

Principle 4: The Boston Bar Association has an obligation to promote, support, and defend judicial independence and should use its education, public policy and advocacy resources to enhance public understanding of the judiciary, demystify the judicial process, and explain to the public and elected officials the ways in which judicial independence is essential to protecting the rights and liberties of us all.   

Principle 5: The BBA should serve as a resource to the public and press by responding to assaults on judicial independence in a timely and measured manner that distinguishes between, on the one hand, vigorous public debate and dissent and, on the other hand, misinformation and personal attacks that undermine the public’s respect for an confidence in the courts.

In keeping with these principles, the Working Group offered the following recommendations:

  • Bar Associations: Bar Associations should use their institutional voices to defend, explain, and promote the value of judicial independence and respond to unfounded and uninformed attacks on the judiciary. In this vein, bar associations should work to serve as a resource to the press and public to explain key legal processes and to counter misinformation. Bar associations would also benefit from developing a set of criteria that can be used to determine when and how to respond to developments that may threaten the independence of the judiciary.
  • Lawyers: Lawyers in all practice areascan and should be more proactive in taking actions to promote and defend judicial independence, including by participating in public education opportunities, helping the public to discern between healthy criticism of the judiciary and potentially dangerous attacks, and speaking out against those instances that rise to the level of an unfair attack.
  • Judges and Courts: The Massachusetts Trial Court should expand and improve its data collection and transparency practices, which will aid in maintaining public trust in the judiciary and identifying patterns and practices that merit further study and improvements. Judges, though not always required by law, should endeavor to explain their reasoning in written decisions when appropriate and, when permitted by the Code of Judicial Conduct, support judicial independence by educating the public, whether in person, by writing articles, or through the press, on key issues.
  • Diversity and Inclusion: A diverse and inclusive bench will help to promote equity, fairness, and public trust in judicial decision-making. Achieving this goal will take collective action from the legal community, including making diverse judicial nominations and appointments a priority, improving court culture to ensure that professional experiences are inclusive and equitable, and creating an effective pipeline for talent that supports the legal education, employment, and development of lawyers from diverse backgrounds.

Taken together, these recommendations function as a call to the bar and the bench to focus attention on efforts to ensure the judiciary remains independent, supported, understood, and accountable. As the BBA’s Working Group concluded, no less than the health of our democracy may be at stake.

We would like to express our gratitude to the Judicial Independence Working Group, and particularly Co-Chairs Lisa Goodheart and Renée Landers, for all their hard work in producing this report. We anticipate that its principles and recommendations will guide the BBA in its advocacy on this issue for years to come.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association

BBA Adopts Guidelines on Reforming Tax-Lien Foreclosures

Prompted by concerns about existing Massachusetts laws regarding the enforcement of foreclosure on homeowners with outstanding municipal tax arrears, the BBA has joined other advocates, chief among them Greater Boston Legal Services and the National Consumer Law Center, in endorsing reforms to the state law on these “tax-lien foreclosures”.

Under current law, tax-lien foreclosures can lead to outcomes in which a homeowner loses not only their real property but all the equity they have built up—regardless of the amount of debt actually owed. Municipalities can sell the outstanding debt to third parties, who have an incentive to take advantage of that windfall provision but no incentive to consider the effect of foreclosure on the community as a whole. 

Meanwhile, rising property values and property-tax rates often combine to make it difficult for homeowners to stay current on their tax bills—especially for those on low or fixed incomes, including the elderly, the disabled, or anyone who is house-rich and cash-poor. Some seniors may not be aware of the deferrals and abatements available to them by law, while others with cognitive disabilities or surviving spouses may have trouble understanding their obligations in the first place. These problems are frequently compounded by inadequate notice of the possibility of being foreclosed upon. 

Regardless of the cause, once a homeowner falls behind, punishing statutory interest rates of 16% and late fees work to put a potential solution further out of reach. And even when homeowners seek an agreement to pay off their back taxes, they are faced with a statutory minimum initial payment of at least 25% of the debt, with additional requirements imposed by some municipalities. The law actually provides that debtors can potentially face arrest. 

Tenants in housing that has been taken by tax foreclosure find themselves with little recourse—and often little warning, since they may not even be aware of the owners’ non-payment of taxes, the foreclosure that results, or the change in ownership. Their first inkling of a problem may come in the form of an eviction notice. And unlike tenants after a mortgage foreclosure, they have no legal protections after tax foreclosures.  

Private third-party buyers of municipal tax liens can reap a windfall profit by foreclosing, evicting the former owner (or tenant) and re-selling the property. In some instances, the underlying equity to be gained may be great enough that a debt-buyer is willing to pay even more than the value of the debt. And the homeowner loses not only a residence but all of the equity they may have spent decades building. 

All of this can lead to homelessness and financial ruin, one family at a time, with a cascading destabilizing effect on vulnerable communities. The small number of third-party buyers responsible for the bulk of tax-debt purchases have been accused of unscrupulous practices in the course of pushing properties toward foreclosure. 

These issues have caught the attention of some in the news media, most prominently the New England Center for Investigative Reporting, which has produced a series of reports in conjunction with WGBH-FM and with the Boston Globe. The Boston-based National Consumer Law Center has advocated reforms in this area and in 2012 issued a report entitled “The Other Foreclosure Crisis: Property Tax Lien Sales” that recommended, inter alia, reducing the interest rate applied to tax debt, strengthening notice requirements and enhancing the notice provided, and encouraging more use of tax deferral and abatement plans. 

In response, legislation has been filed in Massachusetts by State Representatives John Mahoney and Tram Nguyen, and State Senator Nick Collins—each bill addressing different aspects of the problem, sometimes in overlapping ways. Greater Boston Legal Services has been at the forefront of efforts to enact legislation. 

The BBA’s Real Estate Law Section reviewed the existing bills, with an eye toward pulling out key provisions suitable for potential BBA endorsement and packaging those into a set of guidelines for legislation. The BBA’s Delivery of Legal Services Section voted to endorse these principles as well. No other section offered substantive comments. 

Last week, the BBA Council voted in endorse those guidelines, which read as follows:

The Boston Bar Association is concerned about existing Massachusetts laws regarding the enforcement of foreclosure on homeowners with outstanding tax arrears. Under current law, these “tax-lien foreclosures” can lead to outcomes in which a homeowner loses not only their real property but all of the equity they have built up—regardless of the amount of debt actually owed. Municipalities can sell the outstanding debt to third parties, who have an incentive to take advantage of that windfall provision but no incentive to consider the effect of foreclosure on the community as a whole.

The BBA recognizes that municipalities are entitled to collect all taxes due and believes they should have the tools to work out repayment agreements to help fairly achieve that result. We encourage municipalities to make use of the existing flexibility provided in G.L. c. 62A as part of this process. We remain concerned nevertheless about certain vulnerable homeowners, who may face their own particular challenges in confronting tax arrears—especially given the statutory default interest rate of 16%—and may be especially prone to misunderstanding the penalties and outcomes that may result. Finally, the BBA is concerned that current law does not adequately consider the impact on tenants who live in properties subject to tax-lien foreclosure proceedings.

Therefore, the BBA concludes that any legislation to reform the way in which tax-lien foreclosures are handled should:

•    Eliminate the windfall to private purchasers of tax titles upon foreclosure, as well as any incentive to pursue that option in place of a potentially workable repayment agreement.

•    Allow municipalities to adopt repayment plans with more flexibility in repaying back taxes and allow for greater reduction in accrued interest, especially for low-income and elderly individuals who are house-rich but cash-poor.

•    Provide for more effective notices of tax deficiencies and foreclosures, including delivery to the local council on aging and more understandable language explaining what steps homeowners can take to address tax arrearages and what the consequences of non-payment may be, including foreclosure and loss of equity.

•    Require a reasonable attempt to notify tenants whose property may be subject to tax foreclosure.

•    Eliminate arrest as a possible consequence of tax delinquency.

•    Require that third parties who purchase tax liens be licensed as debt collectors.

We will now seek opportunities to advocate for these changes to the Legislature, working alongside other advocates in this area, including GBLS and NCLC, to advocate for legislation that would enact them. The related bills filed this session have not yet had a legislative hearing.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Offers State House Testimony on Probate and Family Law Legislation and on Right to Counsel

Over the past two weeks, the Legislature has kicked its hearing schedule into high gear, ahead of the traditional August lull.  As a result, we’ve been busy presenting testimony, with simultaneous hearings this week addressing multiple BBA bills.  At one point, we even had witnesses testifying at virtually the same time on two different floors of the State House.

All of the thousands of bills that are filed each two-year session are entitled to a public hearing before the legislative committees to which they are respectively referred for consideration, generally between May of the first year and February of the second year.  This can produce a log-jam, with overlapping hearings—often covering dozens of bills at a time—held at key points in the timeline.

The BBA testified on four bills this week—three of them long-standing priorities, plus one urgent addition to our portfolio—and on a set of bills last week reflecting the Council’s vote last month to join the Right to Counsel Coalition:

On July 23rd, the Judiciary Committee held a hearing to cover all their legislation on probate and family law—nearly 60 in all.  The BBA actually spoke through two witnesses, Brad Bedingfield of Hemenway & Barnes, and Gayle Stone-Turesky of Sugarman Rogers.

  • Brad offered testimony in support of An Act making corrections to the adopted children’s act (S. 872), filed by Senator Cynthia Stone Creem.  This bill would make corrections consistent with the SJC ruling in Bird v. BNY Mellon, 463 Mass. 299 (2012) in order effectively to restore the law of 1958, whereby adopted persons covered by pre-1958 instruments are presumed to be excluded from familial trust terms unless they were adopted by the testator or settlor. 
    • It’s a complicated issue, with a number of twists and turns over the past 60+ years, but you can learn more about it here and read our testimony here.
  • Gayle was speaking as part of a joint bar-association panel, with representatives from the MBA, WBA, and the Academy of Matrimonial Lawyers—as well as an accountant with deep experience in family-law cases, who is uniquely positioned to speak about the uncertainty surrounding alimony guidelines in Massachusetts ever since the federal tax code rendered new alimony awards non-deductible to the payor as of this year.  This, too, is an issue that’s difficult to explain, but you’ll find a primer here.
    • Gayle and others endorsed legislation filed by Rep. Sheila Harrington (H. 3701) to effectively restore the status quo in that area, but also in support of enactment of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), through S. 886 (also filed by Sen. Creem).  Massachusetts is the only state that has not yet joined this interstate compact, by which all other states honor one another’s pre-existing custody orders, even when one of the parties moves across state borders.  (More on that issue here.)

Meanwhile, that same day, the Revenue Committee heard a bill (among nearly a hundred others related to the personal income tax) that also affects trusts-and-estates practitioners.  That bill, An Act to continue tax basis rules for property acquired from decedents (H. 2590), may be the most complex of all of these.  Fortunately, we had George Cushing of McLane Middleton on hand to explain it to the assembled legislators.  The bill, filed by Rep. Alice Hanlon Peisch, would provide for continuation of the “step-up” in the Massachusetts tax basis in property acquired from a decedent, a step-up that was allowed for decades under Massachusetts law, until it unexpectedly fell out of the law in 2010 due to the technical interrelation of various federal and state tax statutes.  (For more, our testimony is here.)

The previous week, Mary Ryan of Nutter McLennen & Fish—past BBA President and long-time champion of access to justice—was our representative before the Judiciary Committee when they held a hearing on property and land issues.  Among the 66 bills on the agenda that day were four that would create a right to counsel for low-income tenants and landlords in eviction cases.  You may recall that the Council voted last month to join the new Right to Counsel Coalition in proposing guidelines to improve on those bills and create a workable framework to establish that right statewide.  Our recent post on this issue is here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

State Budget Update: Now in the Governor’s Hands

The Legislature completed its work on a new state budget this week, sending a plan for the already-underway Fiscal Year 2020 (FY20) to the Governor.  To catch up, here’s our previous post, on the conference committee that worked out the final legislative budget from the original House and Senate plans.

We have been following four priority areas in particular, advocating for them throughout the process, and the news, as spelled out below, is positive on all fronts!  We’ll take some credit for that, of course, but the truth is, it’s always easier to make the case for funding in a year, like this one, when state revenues are outpacing expectations—in this instance, by nearly $600 million.

With the budget now in the hands of Governor Charlie Baker—who can sign off on the budget but also has the power to reduce or even strike individual line-items and other provisions—we sent him a letter this week, asking him to approve the following BBA priorities:

  • We will always support funding for civil legal aid, as a critical access-to-justice issue—especially since our 2014 report, Investing in Justice.  This year, the Legislature provided a significant jump of $3 million to the line-item of the Massachusetts Legal Assistance Corporation (MLAC), the state’s leading funder of legal-services providers, bringing their FY20 total to $24 million.
  • The organized bar is the only natural constituency for the judiciary, which must rely on the other two branches of government for its funding, so we take seriously our responsibility to advocate for their budget.  The judiciary is funded through a web of related line-items, but the bottom line (so to speak) is that this year, they are very satisfied with the appropriation they received from the Legislature, including funding for continued implementation of the Housing Court’s statewide expansion, which was first authorized two years ago.
  • We also advocate for the Committee on Public Counsel Services (CPCS), which provides representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.  This year saw robust funding for CPCS operations, including both staff and private counsel who take their cases, but the Legislature’s budget crucially also includes a so-called outside section, supported by the BBA, that would allow for a temporary expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances, in order to address emergency shortages of attorneys willing to take cases in some regions.
  • A recent addition to our budget priorities is funding for post-incarceration residential re-entry services.  As indicated in our 2017 report on criminal-justice reform, No Time to Wait, such services can be a critical link in supporting successful re-integration, and thus a reduction in recidivism rates.  We were therefore pleased that the Legislature authorized $4.5 million in funding for such programs this year.

To reiterate, all of these measures are tentative, pending the decision of the Governor, who has until next week to decide.  In case of any reductions or outright vetoes, the Legislature would still have the opportunity to pursue overrides.

—Michael Avitzur
Government Relations Director
Boston Bar Association

State Budget Update: Conference Committee

The fate of the Fiscal Year 2020 Massachusetts state budget, and with it several BBA priorities, is now in the hands of the six legislators who make up the House/Senate Conference Committee:

(If you are represented by any of the above, please contact them now, to express your support for the provisions below. Confirm your elected officials here.  Contact information is found through the individual links above.)

We regularly use this space to keep you updated on our priorities and our advocacy.  As we enter the final stages of the budget process—with a conference-committee compromise budget expected within weeks, at which point the plan would be sent to the Governor—the BBA has sent a letter to the conferees, outlining our priorities in four key areas:

Funding for civil legal aid (line-item 0321-1600)

This funding, through the Massachusetts Legal Assistance Corporation (MLAC) has long been a top BBA priority. We work with MLAC and the Massachusetts Bar Association, as partners in the Equal Justice Coalition, in our advocacy—the most-visible manifestation of which each year is the Walk to the Hill for Civil Legal Aid.

Since the 2014 release of Investing in Justice, the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we have had an even stronger basis for our case on behalf of MLAC’s line-item, pointing to our surveys showing that nearly two-thirds of qualified applicants must be turned away by providers for lack of resources, and to independent research demonstrating the positive return on the Commonwealth’s investment in the area.

In the intervening five years, the Legislature has been very generous in increasing MLAC funding, yet the demand continues to grow apace.  This year, the BBA supports the Senate’s appropriation of $24 million, which would represent a $3 million increase from the current FY19 figure.

Funding for the Trial Court (multiple line-items)

In spite of steady, generous increases in their appropriations from the Legislature in the years since the Great Recession, the Trial Court remains underfunded. Over the last few years, it 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 17% reduction in staffing between FY09 and FY18.

It is essential that our courts are adequately funded, and we have urged the conferees to adopt the higher appropriation for each line-item.

We were strong supporters of statewide expansion of the Housing Court, and, consistent with that position, we asked the committee to continue to fully fund the implementation of the expansion.

Funding for re-entry services to reduce recidivism (line-item 0339-1011)

While we remain grateful to the Legislature for last session’s sweeping reforms aimed at making our criminal-justice system more fair and effective, Massachusetts continues to trail other states in funding re-entry programs that help prevent individuals from getting trapped in cycles of recidivism. In the our 2017 criminal justice reform report, No Time to Wait, we highlighted the “lack of program availability” as one of the three reasons that so many are denied access to these vital resources and urged the Commonwealth to “ensure adequate funding and accountability for anti-recidivism reforms.”

Each year, thousands of Massachusetts residents are released from county jails and state prisons, many with little or no resources to help in securing essential needs like employment and housing.  Without any support, the likelihood of returning to illegal practices, and re-entering the justice system, greatly increases.  Community-based residential re-entry services, like those that would be funded through this line-item, offer safe housing, workforce development, and case management, fostering connections and stability for those re-entering society.

For these reasons, the BBA supports the House’s appropriation of $4.5 million.

Funding for Committee for Public Counsel Services (CPCS) (line-items 0321-1500 and 0321-1510)

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. Adequate funding helps CPCS 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 Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services.

We have asked that the conference committee adopt the higher level of funding for CPCS operations and for its private-counsel program.

We also requested that the final budget incorporate the Senate’s budget language allowing for an expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances. 

Currently, the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing.

Adequate funding, in conjunction with expanded capacity for bar advocates, or private attorneys who defend indigent clients, would assist CPCS in finding attorneys willing to take on these difficult cases and protect the constitutional rights of these parents and children.

We expect to know soon what action the conference committee proposes on these items, and we anticipate one final push to urge Governor Charlie Baker to act on them, once the budget arrives on his desk.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Endorses HAVEN Act to Protect Veterans’ Disability Benefits

The Boston Bar Association has endorsed legislation to protect recipients of veterans’ disability benefits who are facing bankruptcy proceedings. 

The bill, pending in Congress, is known as the Honoring American Veterans in Extreme Need Act of 2019, or HAVEN Act, and would address an inexplicable loophole in current bankruptcy law that excludes Social Security disability benefits, but not veterans’ disability benefits, from the calculation of disposable income when a debtor files for bankruptcy. Because of this disparate treatment, disability benefits received through the Department of Veterans Affairs (VA) and the Department of Defense (DoD) may be accessible by creditors, unlike similar benefits that happen to be administered through the Social Security Administration. The HAVEN Act would rectify this imbalance by excluding veterans’ disability benefits from that calculation of income.

We have sent a letter from BBA President Jon Albano to the Massachusetts Congressional delegation, asking for their support for the HAVEN Act, in order to ensure equal treatment of disabled veterans in bankruptcy proceedings.  As the letter states:

It is unclear why this oversight occurred when significant Bankruptcy Code reforms were last enacted in 2005. Prior to that, bankruptcy courts had discretion when deciding whether to count disability-related income from the VA/DoD as “current monthly income”.

The Bankruptcy Code, as currently written, provides that if a debtor seeks protection under a Chapter 7 liquidation, that debtor must pass a “means test”, such that if the debtor earns too much “monthly income” in comparison with expenses, they cannot proceed via Chapter 7 but must instead use a more-protracted Chapter 13 proceeding, which involves pledging a percentage of future income, usually for three or five years, to pay creditors.

Because of the disparate treatment of disability benefits under the current means test, more disabled veterans will be pushed into Chapter 13, and their future veterans’ disability benefits will be applied to pay creditors. Recipients of Social Security disability payments, however, will not suffer the same consequences.

The proposed amendment would rectify this imbalance by excluding veterans’ disability benefits from that calculation of monthly income.

We thank the BBA’s Bankruptcy Law section and our Active Duty Military & Veterans Forum for their help with this matter and we hope to update you when the HAVEN Act becomes law.  In the meantime, if you’d like to add your voice, you can contact Sen. Elizabeth Warren, Sen. Ed Markey, and your member of Congress, to ask for their support.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins Coalition on Right to Counsel in Eviction Cases

The Boston Bar Association has joined the Massachusetts Right to Counsel Coalition, proclaiming its support for the goal of ensuring legal representation to low-income tenants, post-foreclosure occupants, and landlords.  The BBA will work alongside the Coalition to promote state legislation that will achieve this goal.

This stance is in keeping not only with the BBA’s mission to advance access to justice but also with past BBA positions on expansion of the right to counsel to include civil matters where basic human needs are at stake—including, to quote from a 2006 ABA resolution endorsed by the BBA, “those involving shelter, sustenance, safety, health or child custody.”  All of this is in service to fulfilling the promise of Gideon v. Wainwright through what is known as “civil Gideon”.

BBA History

The following year, the BBA appointed a Task Force on the Civil Right to Counsel, chaired by past BBA President Mary Ryan and Jayne Tyrrell (director of the Massachusetts IOLTA Committee).  The Task Force’s report, Gideon’s New Trumpet, sought to further advance the debate over civil right to counsel by proposing concrete steps that could be taken toward its implementation, across a range of issue areas, through nine separate pilot projects—all focused on civil proceedings involving a basic need or right, where nothing short of representation by counsel will preserve that right.

Among these pilot projects, the report included a plan for eviction cases, based on its finding that:

The need for assistance in cases involving eviction is great. … In Massachusetts, as elsewhere around the country, most tenants and some landlords appear without counsel.  With no right to counsel established in the eviction area, indigent tenants obtain full representation only when legal services offices or a pro bono attorney are able to take their case, a relatively rare occurrence because housing cases are high on the list of unmet legal needs. Tenants who are represented are much more likely to obtain a better result, whether it be maintaining possession of the premises, reaching a favorable settlement or winning at trial.

The Task Force’s recommendation was that the right to counsel for tenants under threat of eviction attach in certain specified cases (involving mental disability or criminal conduct) or under judicial discretion, and that it extend as well to landlords in limited instances (owner-occupied dwellings, for example). 

Following the release of the report, there was considerable public interest in the recommendations, particularly the concept that judicious use of legal aid could prevent homelessness and minimize the impact of evictions.  The Boston Bar Foundation, the Boston Foundation and the Massachusetts Bar Foundation funded two pilots in Quincy and the Northeast Housing Court which demonstrated the significant impact of having counsel.  For example, in Quincy District Court, two-thirds of those represented retained possession, compared to one-third of those in the control group (no representation).  Two additional pilots in Worcester and MetroWest were funded by a grant from the Attorney General’s HomeCorps program, with similar results.


[1] See BBA Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention: A Report on the BBA Civil Right to Counsel Housing Pilots, at 5  (March 2012). 

Whether by the Legislature or the courts, the right to counsel has been recognized in Massachusetts in some civil cases, including care and protection cases, child guardianship cases, children requiring assistance, mental-health commitments and waiver of consent to adoption.  In two related cases, in 2014 and 2015, the BBA signed onto amicus briefs supporting an expansion of the right to counsel in guardianship cases, to include counsel for guardians whose parental rights are at stake.

And of course the BBA has long provided pro-bono attorneys for both landlords and tenants at Lawyer for the Day sessions in the Housing Court. 

The Proposal

In recent years, state legislation has been proposed to promote housing stability by providing a right to counsel in eviction cases, modeled on efforts undertaken in major cities around the nation.

The Massachusetts Law Reform Institute (MLRI)—which previously led a successful coalition (in which the BBA took part) to expand the Housing Court to statewide jurisdiction—has turned its attention to this issue and is building a coalition in support of a newly-drafted framework for legislation to enact a right to counsel for indigent parties in evictions.  The coalition’s detailed guidelines build on the best elements of two different bills filed on this issue in the current 2019-20 legislative session.

More than 40,000 households in Massachusetts were served with eviction papers in 2018, and 92% of these tenants lacked legal representation.  Adoption of a right to counsel in these cases will ensure that low-income people have access to resources and assistance to prevent illegal or unnecessary evictions; reduce homelessness, trauma, and family displacement; allow tenants to avoid the stigma of a public court record; and stabilize individual housing as well as communities.  Although 70% of landlords have counsel, the proposal would extend the right to counsel in eviction cases to cover certain indigent landlords, as endorsed by the BBA (see above). 

In summary, the plan includes the following elements:

  • A broad definition of eligibility, to include:
    • tenants, former homeowners facing eviction after foreclosure, and owner-occupants of two-family homes seeking possession where their own and only home may be at stake
    • income-eligibility at 200% of poverty-level or less.
  • Attachment of the right to counsel when a notice to quit is received—or if no notice to quit is provided, upon service of an eviction complaint.
    • Covers summary process and similar proceedings, including formal public- housing grievance hearings requested by tenants facing an eviction and voucher-terminations hearings.
  • A continuum of legal assistance and housing-stability support should be provided by a designated agency with collaborating community partners, to include:
    • Community outreach to educate people about legal rights and assistance
    • At the notice to quit stage, assessment to screen for housing-stability resources, mediation and legal support as needed.
    • At the administrative hearing stage, assessment to screen for housing stability resources and a trained legal advocate.
    • At the eviction complaint stage, full representation by a legal advocate.
  • A requirement that a landlord inform the occupant of the right to counsel, with protections and penalties in place for failure to do so.
    • The courts should develop procedures to inform litigants about the right to counsel and provide a written waiver for eligible parties that they are knowingly and voluntarily waiving this right.
  • The coalition seeks to create a Civil Justice Committee with independent authority that would be based in the Executive Office of Housing and Economic Development, to develop, implement, monitor, and evaluate a program to implement the right to counsel.
  • The Committee would be tasked with developing, within one year, a plan for implementation.
    • It would be composed of 17 members, including gubernatorial and legislative appointees, three court representatives, two CPCS members, and various other stakeholders, including three MLAC seats and one for the Volunteer Lawyers Project.
    • Its goal would be to designate existing regional entities with legal expertise in landlord/tenant law that will establish collaborations with existing non-profits organizations to achieve effective tenant education, housing stability, and homelessness prevention.

The legislation would not specify how the right is to be funded, but one of the coalition’s organizing principles is that the right must be funded with new money and not by simply reallocating existing legal-assistance and housing-stabilization resources.

Other coalition principles include:

  • Pre-court eviction help, pro-active education and outreach, and housing stabilization are needed to prevent tenants from losing subsidized housing, and to save landlords, tenants, and courts time and money and better facilitate the resolution of cases.
  • Development of an implementation plan must provide a process to allow for input from all stakeholders on the multitude of issues to consider.
  • Implementation must build upon the work of existing organizations with a proven track record of effectiveness in the areas of landlord/tenant legal assistance, homelessness prevention, and housing stabilization. 
  • Collaboration is needed among legal services, social services, community organizers, municipalities, courts, educational institutions, and other organizations to create a continuum of impactful assistance. 
  • Oversight and assessment of the program should be designed in a way to insure measurable outcomes, data collection, and public reporting.

A legislative hearing on the issue is expected in the summer or fall, and the BBA will work alongside our coalition partners—including law firms, legal-services providers, municipalities, and community groups—to advocate for this plan’s enactment.

—Michael Avitzur
Government Relations Director
Boston Bar Association