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.


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

Legislative Round-Up

Of course you know these are challenging times, but they pose unique challenges for the State Legislature. Neither the Senate (40 members) nor the House (160 members) can meet in full — or anything close to it — these days, so instead the Legislature has moved entirely to informal sessions, where only small groups convene.  

Traditionally, only non-controversial matters are taken up at such sessions, where any one member can put the kibosh on a bill’s enactment, so it’s not entirely clear how they’ll be able to get major work done during this time. Meanwhile, steps are being taken to handle public hearings in a virtual way, or postpone them, and a working group has been established in each house to address how to deal with these and other questions related to the crisis.  

It may reach the point that the legislative session must be extended beyond its July 31 deadline. Internal deadlines affecting the budget and all other legislation will at least need to be adjusted, most likely, but how exactly the budget proceed will proceed is one of many things up in the air at the moment as well. (The Governor has already submitted his proposal, and ordinarily, the House Ways & Means Committee would put out a plan in time for an April debate on the House floor.) Ultimately, this most likely decreases the chances of any individual bill being enacted and will make the end of session, whenever it happens, even more of a mad scramble than usual.

And while all of those adjustments are being made on the fly, and old business lingers at the point when the two-year session would otherwise be careening toward its natural end, the Legislature is suddenly faced with a whole new set of priorities. By one count, 58 bills have been filed in the past few weeks on the COVID-19 pandemic, and we are keeping an eye on a number of them for potential action by the Legislature, or, in the first instance, the SJC:

  • Criminal Justice:
    • There are concerns about the capacity of the courts, and the system as a whole, to process anything close to the regular influx of criminal cases, at a time when courthouses are trying to limit the number of people coming through their doors and many judges, attorneys, staff, and others will likely become ill or quarantined. It has been proposed that law enforcement reduce its activity (arrests, charges, prosecutions) and that individuals/cases be diverted away from the courts as much as possible (including changes to bail practices and handling of probation/parole violations). There are also fears for the safety of individuals housed in our prisons and jails, who are unable to follow best practices for staying healthy. Some are advocating for a decarceration effort that would identify the best prospects based on health risk and threat to public safety, while demanding a stronger plan for protecting those who remain — including preserving access to counsel.
    • In response, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawerys, and the ACLU of Massachusetts have filed a petition with the SJC, seeking an order that would address all of the above concerns. That motion is set to be considered by the SJC, on an expedited basis, this coming Tuesday.
  • Evictions and foreclosures
    • As part of a national movement to halt evictions during this emergency, Mayor Walsh has pledged that Boston will conduct only “emergency” evictions from public housing at this time, and he worked out an agreement with many large landlords that they would impose a moratorium. The Housing Court has declared it will hear evictions only on an “emergency basis,” at least until April 21.
    • Two bills have been filed to impose such a moratorium statewide: One would cover both evictions and foreclosures, while the other, on foreclosures only, would apply 180 days beyond the duration of the current emergency, to allow homeowners sufficient time to start to recover.
  • Corporate governance
    • Shareholder meetings at publicly-held corporations and non-profit member meetings cannot, in some instances, be conducted remotely, such as by phone or video. Representatives from each field are seeking a change to allow them to do so, at least during a crisis like this one. Legislation has been drafted to authorize such meetings, but it has not yet been filed.
  • Remote notarization
    • Practitioners in the trusts-and-estates and real-estate fields are pursuing legislation to authorize notaries public who are attorneys to conduct business by synchronous video-link with signatories and witnesses. This is already legal in 22 other states, but the Massachusetts proposal, which has been filed as legislation, would apply only during an emergency.

We’ll continue to monitor and update you on these bills (none of which has yet been voted on), but we also have a favor to ask of you: 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, please let us know! You can always e-mail me at mavitzur@bostonbar.org. Thanks in advance for your input.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: COVID-19 Edition

The coronavirus pandemic has shaped nearly every aspect of daily life over the past few weeks, deeply impacting our justice system and its ability to continue to function normally. One area that is set to be particularly impacted by the public health emergency is immigration. Here, we will outline some of the recent changes to immigration policy that have come up as a result of the public health emergency.

Coronavirus and Public Charge

According to Protecting Immigrant Families (PIF), a group of immigrant allies in Massachusetts, the public charge rule has discouraged many immigrants and their families from seeking care or accessing safety net programs. However, US Citizenship and Immigration Services (USCIS) has announced that immigrants can seek testing, treatment, and prevention of COVID-19 without fearing immigration consequences due to public charge. Here are the answers to some of the most commonly-asked questions regarding coronavirus and the public charge rule:

  • All MassHealth plans, including MassHealth Limited, will pay for a COVID-19 test and treatment, with no out-of-pocket costs for individuals.
  • USCIS has specifically said it will not consider “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” as a negative factor in the public charge test. Therefore, PIF recommends that everyone who needs care during the COVID-19 health crisis should seek it out without fear of it affecting their immigration status.
  • Receiving unemployment benefits as part of the COVID-19 crisis response will not be considered under the public charge test. Applying for unemployment poses no risk to immigrants’ status.
  • Immigrants who are subject to the public charge ground will have an opportunity to present evidence regarding how COVID-19 impacted the totality of their circumstances, including their use of relevant public benefits (such as SNAP).

Border Closings

On March 20, the Department of Homeland Security (DHS) issued a notice announcing the decision to limit the travel of individuals from Mexico and Canada into the United States to “essential travel” only. These restrictions will remain in effect until April 20, 2020. These restrictions will be in place for 30 days, but may change depending on the state of the pandemic.

DHS will suspend entry of all migrants “seeking to enter the US without proper travel documentation,” for both the northern and southern border.

Immigration Detention and ICE Enforcement

ICE enforcement activities continue, but the agency has said it will be “focusing enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds.” For those individuals who do not fall into those categories, ICE will delay enforcement actions until after the crisis or utilize alternatives to detention. ICE will continue to carry out “mission critical” criminal investigations and enforcement operations. Examples include child exploitation, gangs, narcotics trafficking, human trafficking, human smuggling, and participation on the Joint Terrorism Task Force. Furthermore, ICE considers health care facilities to be “sensitive locations” and it has explicitly said that during the COVID-19 crisis, it will not carry out enforcement operations at or near health care facilities.

Customs and Border Protection (CBP) announced that they will no longer detain immigrants in their holding facilities and instead will immediately return them to the country they entered from (Canada or Mexico). Where such a return is not possible, CBP will return them to their country of origin. Secretary Azar acknowledged that “CBP facilities were never designed to hold large numbers of people and to protect agents and migrants form infection during a pandemic, nor to treat them for a novel virus if large numbers are infected”.

Furthermore, ICE has ceased social visitation in all of its detention facilities, as of March 13. It has also created a “screening guidance” for new detainees, as well as quarantine and “cohorting” measures for immigrants who have symptoms of the virus. Advocates and lawmakers have called on ICE to minimize the risk of the virus propagating inside the agency’s detention centers by releasing as many detainees as possible. So far, however, the agency has not implemented this measure.

Prisoners’ Legal Services (PLS), the Massachusetts Law Reform Institute (MLRI), and other advocate organizations in Massachusetts came together to urge ICE to “take every measure possible to protect the health of the immigrants in ICE custody in New England by releasing immigrants in ICE custody”. They add that “ending immigration detention is critical to public health and safety.”

Immigration Court Closures

The National Association of Immigration Judges has pleaded with the Trump administration to close all immigration courts in order to preserve the safety of the judiciary as well as that of detained immigrants and their attorneys. The Executive Office of Immigration Review (EOIR), part of the Department of Justice, has shut down only 11 of its 68 courts, and those are for cases where immigrants are not in detention. Those 11 non-detained courts will be closed through April 10. Immigration court staff are concerned for their health and safety and have repeatedly urged the government to take executive action.

The Director of the EOIR released a policy memorandum on March 18 outlining a set of guidelines that all immigration courts across the nation are instructed to take in order to limit the risk of infection for court attendees. This includes encouraging judges to resolve matters through written pleadings, stipulations, and joint motions as much as possible, limiting the need for certain parties to physically appear in court.

Refugee Admissions

The United States is putting a temporary pause on refugee admissions in order to curb the rate of coronavirus infection. The move comes after the International Organization for Migration (IOM) and the UN Refugee Agency announced a suspension of resettlement travel. The pause is expected to be in place through April 6.


USCIS announced that it is suspending its in-person services, including all interviews and naturalization ceremonies, until at least April 1. USCIS staff will continue to perform duties that do not involve contact with the public.

Immigrant attorneys and advocates are concerned that these closures could put legal immigrants whose visas are about to expire in danger of violating their visa conditions. For instance, for foreign nationals whose work permits are about to expire, they may have to leave the country or request extensions. AILA sent a letter to USCIS demanding immediate suspension of all deadlines in order to account for the disruptions the pandemic has caused.  

For more information, please access the following resources:

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

COVID-19 Courts Update

Over the last week, life in Massachusetts – and almost everywhere else in the world – has changed dramatically. From school closures to marathon cancellations, the coronavirus pandemic has affected all of us in ways that did not seem possible just a few weeks ago. The BBA is committed to being a source of information and support as we, too, navigate this new reality.

Since Governor Baker announced a state of emergency last Tuesday, state courts have announced a series of accommodations to ensure that everyone can practice safe social distancing and still have adequate access to the justice system. We have gathered those orders, and additional information, below.

Courts will be closed to the public March 18, 2020, until at least April 6, 2020. The only matters that will be heard in-person in Massachusetts state courthouses are emergency matters that cannot be held by videoconference or telephone. Each of the seven Trial Court departments have defined emergency matters for their departments in new standing orders that were issued on March 17.

  • Trial Court
    • Extension of the expiration of probation warrants
    • Modify or suspend compliance with certain conditions of probation or pretrial release in instances where the MA Probation Service is performing duties related to the conditions.
    • Permit indigent filers using eFileMA to have court fees and provider fees waived without the need to electronically file any affidavits required by statute.
    • Extend the expiration of civil commitment, treatment and observation orders pursuant to G.L. c. 123
  • District Court
    • Emergency matters are to be heard by videoconference or telephonic conference. Those include:
      • emergency abuse prevention orders and initial hearing after notice (G.L. c. 209A)
      • emergency harassment prevention orders and initial hearing after notice (G.L. c. 258E)
      • emergency extreme risk protection orders and initial hearing after notice (G.L. c. 140, §§ 131R-131Y)
      • arraignments of new arrests in which the arrestee is in custody
      • warrant removals for persons under arrest
      • probation violations where detention is sought for persons arrested on a warrant or for a new crime
      • search warrants
      • mental health commitment hearings or evaluations pursuant to G.L. c. 123
      • mental health orders pursuant to G.L. c. 123, § 18(a)
    • A person seeking to post bail for a defendant who is in custody is permitted to enter the courthouse for that purpose.
  • Boston Municipal Court
    • The Divisions of the Boston Municipal Court will be closed to the public except to conduct emergency hearings that cannot be resolved through a videoconference or telephonic hearing, either because such a hearing is impracticable or because it would be inconsistent with the protection of constitutional rights. Access to the courthouse for Mental Health Commitment pursuant to G.L. c. 123, § 35, the fitting of Global Positioning System or SCRAM Devices ordered by a judge, and the posting of bail is subject to compliance with the Standing Order of the Supreme Judicial Court OE-144 “Order Regarding Access to State Courthouses & Court Facilities” and shall be the only matters in which parties other than trial court employees shall be permitted in the courthouse.      
    • The emergency matters listed below shall only be conducted by a judge by videoconference or by telephonic conference call without the physical presence of the parties, counsel, or other members of the public so as to avoid person to person contact and possibility for transmission of the virus. Any Court rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended for the duration of this Order.  
    • All Emergency Matters, as defined below, that arise between 8:30 a.m. and 4:30 p.m. shall take place over videoconference or telephonic conference call, unless such a hearing is not practicable or because it would be inconsistent with the protection of constitutional rights. After 4:30 p.m., the judicial response system will be activated in the normal course.  
      •  i. “Emergency Matters” for the purposes of this Standing Order are defined as follows:

a. applications for Abuse Prevention Orders pursuant to G.L. c. 209A;
b. applications for a Harassment Prevention Orders pursuant to G.L. c. 258E;
c. petitions for Extreme Risk Protection Orders pursuant to G.L. c. 140, § 131R et. seq.;
d. mental health hearings pursuant to G.L. c. 123, except as outlined in section (I)(A) above;
e. hearings for Order of Pretrial Detention pursuant to G.L. c. 276, § 58A;
f. arraignments of new arrests in which the arrestee is in custody;
g. warrant removals for persons under arrest;
h. probation violations where detention is sought for persons arrested on a warrant or for a new crime; and
i. search warrants.

  • Housing Court
    • All Housing Court divisions shall remain open during regular business hours and, at least until April 6, 2020, shall hear only emergency matters.
    • Where appropriate, such matters shall be heard telephonically or through video conferencing. “Emergency matters” in the Housing Court include the following circumstances: applications for injunctive relief, temporary restraining orders where a complaint involves a lockout, condemnation, no heat, no water, and/or no utilities; conduct and or conditions endangering the health safety and welfare of residential occupants and others; stay of levy on an execution; or where access is required to address an emergency (e.g., burst water pipe, gas fumes, etc.).
    • Where appropriate, the Clerk-Magistrate of each division, in consultation with the respective First Justice, shall otherwise have the discretion to determine whether a matter is an “emergency” and merits immediate hearing.
    • Where possible, all attorneys and litigants shall provide the Clerk’s Office with their respective contact information, including an e-mail address and telephone number.
  • Juvenile Court
    • Those emergency matters to be heard by videoconference or telephonic conference are:
      • Care and Protection Matters
      • Delinquency/Youthful Offender Proceedings
      • Harassment Prevention Orders
      • G.L c. 123, § 35 Proceedings
    • Unless otherwise identified in this Standing Order, parties shall file new matters in non-emergency cases by mail, by e-mail, where available, or by dropping off the filing at a designated drop box at the appropriate court location, where available. The filings will be docketed but no event will be scheduled in the matter before May 4, 2020.
  • Land Court
    • Until further notice, all court events other than trials or other evidentiary hearings, which otherwise would take place in courtrooms at the Land Court shall be conducted by telephone conference call.
    • In advance of an event held by telephone conference, all counsel and parties with scheduled events who have filed notices of appearance will be contacted by the Sessions Clerk for the presiding Judge with instructions for how to participate in the conference by telephone. All counsel and parties should maintain a current notice of appearance on file in each case that includes a current phone number and e-mail address. (Sessions Clerk contact information for each Judge is listed at the link above.)
    • Any new non-evidentiary court events scheduled during the period in which these directives are in effect will be scheduled to be conducted by telephone conference in accordance with instructions included with the event notice.
    • Any party seeking in urgent circumstances involving an emergency matter approval to conduct an in-person court event must a file a motion with the presiding Judge setting forth good cause for such request. Exceptions, in whole or in part, to the requirement that a court event be held telephonically, may be ordered by the court upon a showing of extraordinary circumstances, and only provided that it appears that the conduct of the event with persons present in the courtroom will take place in a manner that will sufficiently reduce the health risks to all concerned.
    • Until further notice, all tax sessions of the Land Court (held every Thursday) will be conducted by telephone conference.
    • All counsel and parties with scheduled tax session events who have filed notices of appearance will be contacted by the Case Coordinator for the tax session with instructions for how to participate in the conference by telephone. All counsel and parties should maintain a current notice of appearance on file in each case that includes a current phone number and e-mail address. (The tax session Case Coordinator’s contact information is listed at the link above.)
    • Any tax session events scheduled during the period in which these directives are in effect will be scheduled to be conducted by telephone conference included with the event notice.
    • Until further notice, the submission of all Land Court filings shall be made by use of electronic means (including eFiling in Servicemembers cases, or by e-mail where authorized by the presiding Judge or Recorder) or by mail (including USPS, UPS, FedEx or other delivery services), rather than by in-person delivery. Whenever filings are made by mail, counsel and parties are encouraged to send an e-mail courtesy copy of the filing to the Sessions Clerk for the presiding Judge.
  • Probate and Family Court
    • Whenever practical and possible, the Court shall conduct hearings by telephone or videoconference rather than having people appear in person or rescheduling event dates.
    • All restraining order requests and requests for orders to vacate and their initial return dates, including return dates when notice has not been accomplished, shall be heard by telephone or videoconference. 
    • Trials that have yet begun will be continued beyond May 1, 2020, unless the trial may be conducted otherwise than in-person by agreement of the parties. Where a trial has commenced, the determination whether the trial shall proceed, and how, is left to the sound discretion of the trial judge, in consultation with the Chief Justice of the Probate and Family Court. If a pending trial is to proceed, it shall be deemed an emergency matter and attendance at such trials shall be limited to the necessary persons identified above, plus no more than ten members of the general public or “news media,” who shall be admitted on a first-come, first-served basis and who shall sit no closer than six feet to each other or any other person.  
    • Emergency situations not addressed here will be considered on a case-by-case basis. If a person arrives at the courthouse with a matter they deem an emergency, that matter shall be brought to a Judicial Case Manager, an Assistant Judicial Case Manager, Assistant Register, Magistrate, or other designated staff member to determine whether the matter is an emergency or whether the person can be helped in another way.
    • The below actions/case types have been identified as emergency matters and may be filed and shall be heard, unless the Court requires notice:
  1. Petitions/motions seeking a Do Not Resuscitate/Do Not Intubate/Comfort Measures Only (DNR/DNI/CMO) order, authorization for medical treatment order, or order for antipsychotic medication;
  2. Petitions seeking appointment of a temporary guardian or conservator;
  3. Petitions pursuant to G. L. c. 19A, § 7 and G. L. c. 19C, § 20 – protective services;
  4. Health Care Proxy actions;
  5. Petitions/Motions for Appointment of Special Personal Representative;
  6. Petitions for marriage without delay;    
  7. Complaints for Dependency (SIJS) if the child will turn 21 prior to May 1, 2020; 
  8. All requests for injunctive relief;
  9. Motions for temporary orders where exceptional/exigent circumstances have been demonstrated; and
  10. Contempt actions where exceptional/exigent circumstances have been demonstrated. 
  • Superior Court
    • In light of emerging developments concerning the Coronavirus (COVID-19) pandemic, and as directed by the Supreme Judicial Court in its order dated March 17, 2020 (SJC Order–2), supplementing its order dated March 13, 2020 (SJC Order–1), the Superior Court will remain open for in-person proceedings solely to address emergency matters that cannot be resolved through a videoconference or telephonic hearing, either because such a hearing is not practicable or because it would be inconsistent with the protection of constitutional rights. The following protocol governs those matters, as well as other time-sensitive matters, for which a videoconference or telephonic hearing shall be held, unless otherwise provided in this standing order or unless otherwise ordered by a judge after consultation with the Clerk, the parties, Security, and Probation if applicable. In addition, this protocol addresses trials and other logistical matters.
    • The Superior Court shall remain open solely to address the following emergency proceedings:
  1. proceedings under G. L. c. 112, § 12S (“Mary Moe” petitions)
  2. any other matter which a judge, after consultation with the Clerk, the parties, Security, and Probation if applicable, determines requires an in-person proceeding because it cannot be resolved through a videoconference or telephonic hearing, either because such a hearing is not practicable or because it would be inconsistent with the protection of constitutional rights
  3. the Administrative Office of the Superior Court will remain open for accepting returns of wiretap warrants.
    • The following time-sensitive Superior Court matters presumptively shall be held by videoconference or telephonically, subject to additional provisions made here, or unless a judge, after consultation with the Clerk, the parties, Security, and Probation (if necessary), finds that the matter cannot be resolved through a videoconference or telephonic hearing, either because such a hearing is not practicable or because it would be inconsistent with the protection of constitutional rights. 

1. Bail reviews
2. Bail determination following arrest or surrender pursuant to a warrant 
3. Wiretap warrants
4. Dangerousness hearings under G. L. c. 276, § 58A
i. Any order of detention under § 58A after a hearing by videoconference or telephone shall be without prejudice to the defendant’s right to an in-person hearing to be held when the current health emergency is over
5. Probable cause hearings for sexual dangerousness under G. L. c. 123A, § 12
i. Any finding of probable cause made after a hearing by videoconference or telephone shall be without prejudice to the respondent’s right to an in-person hearing to be held when the current health emergency is over 
6. Hearings on returns in matters under G. L. c. 209A or G. L. 258E
i. Following any ex parte order, the ten-day hearing shall be conducted by telephone, subject to further hearing in person when the current health emergency is over
7. Actions concerning compelled isolation or quarantine
8. Requests for temporary restraining orders

We will continue to keep our membership and the broader community informed on the accommodations that the court system makes as this public health emergency evolves. We hope you are staying healthy, safe, and connected during these troubling times.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Legislative Update

A key legislative committee deadline, known as Joint Rule 10 Day, has passed, and while some of our priority legislation—most notably, uniform laws on access to digital assets and on trust decanting—have been sidelined for the year, other bills received favorable committee reports and are now one step closer to reaching the floor for a vote, including the following three bills of great interest to our Family Law section:

  • A bill to finally make Massachusetts the 50th state to join an interstate compact on jurisdiction over child-custody orders, known by the acronym UCCJEA, by which all other states honor one another’s pre-existing custody orders, even when one of the parties moves across state borders.
  • Legislation to fix a flaw in the statutory guideline for calculation of general alimony awards. This resulted from a change to the federal tax code that renders alimony non-deductible by the payor.
  • A bill to streamline the process of co-parent adoption in cases involving assisted reproduction. This will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples.

We will continue to advocate for each of these as we approach the formal deadline of July 31 for the current legislative session.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Life Without Parole Policy Symposium Recap

On March 2, the BBA Government Relations Department hosted a Policy Symposium on life-without-parole sentences. The panel, which discussed the merits of legislation that would abolish life without parole as a mandatory sentence for first-degree murder, was moderated by the Hon. Geraldine Hines, a retired Justice of the Supreme Judicial Court and current Visiting Professor at Boston College Law School with extensive experience in civil rights and civil liberties issues, and included Representative Liz Miranda of the 5th Suffolk District, Executive Director of the Massachusetts Office for Victim Assistance Liam Lowney, Director of the Racial Justice Program at the ACLU of Massachusetts Rahsaan Hall, and community activist Karter Reed.

Justice Hines opened by situating the issue and noting that this discussion would not have been possible in the past, which reflects the progress that Massachusetts has made in criminal justice. In 2018, Massachusetts passed a sweeping reform bill that addressed issues ranging from cash bail to mandatory minimum sentences. However, Justice Hines noted, it is important to remember that although progress has been made, there are still over 1,000 people serving life without parole sentences in Massachusetts, the second highest proportion in the country.

Justice Hines then introduced the panel speakers, highlighting how their personal experiences and advocacy work made them uniquely qualified to speak on this issue. She gave each speaker an opportunity to share their perspectives on the proposed legislation and how their experiences had shaped that position.

Representative Liz Miranda related her background growing up in the Dudley Triangle in Roxbury to her efforts in racial justice and criminal justice reform advocacy. She has a personal connection to criminal justice because her own brother and father were incarcerated and her brother was killed by gun violence, just six months before she took office. Representative Miranda explained that although she originally co-filed H.1520, which would not be retroactive and would allow eligibility for parole only after 35 years, she is now advocating for H.1542, which is retroactive and would allow eligibility for parole after 25 years.

Karter Reed delivered his testimony next. He told his personal story of being convicted of second-degree murder at sixteen and incarcerated for twenty years. He explained that during his incarceration, he was able to reflect on his actions and take accountability for the pain he had inflicted upon the victim’s family. He is now an advocate for abolishing life without parole because he believes that those who have made mistakes in their past should have an opportunity to take accountability and better their lives.

Liam Lowney shared his perspective. He prefaced his testimony by stating that, while the MOVA board opposes an end to life without parole, he cannot speak for all victims and does not pretend that all victims feel the same about this issue. He said he only intended to share his family’s personal experience.

Mr. Lowney said that his sister, Shannon Lowney, was murdered while working at a Planned Parenthood in Brookline in 1994. The facts of the case demonstrated that the murder was pre-meditated, and the perpetrator went on to kill more people before being apprehended. His sentence, life without the possibility of parole, was the only way that the victims’ families could know that he would never harm anybody else again. Mr. Lowney argued that the legislation to retroactively abolish life without parole would upend sentences that were set years ago, forcing families to go to court and sit through a hearing on their loved one’s murder again.

Rahsaan Hall explained that his background lies at the intersection of law enforcement and criminal justice reform advocacy, as a former prosecutor and now advocate. Mr. Hall explained why he advocates for restorative justice and believes that most prisoners are looking for ways to take accountability for their actions. He also noted that it is important to remember which victims’ voices get privileged in this conversation, because statistics show that sentencing tends to be harsher when the victim is white than when the victim is a person of color.

Justice Hines reminded the group that life without parole was pushed by criminal justice reform advocates in the 1980s as an alternative to the death penalty. She asked them to share their opinions on what it would mean to abolish the policy that is intended to serve as a substitute for the death penalty, and thus undo the compromise that was reached back then. Mr. Hall said that that was a different time, and that different times call for different compromises. Mr. Reed agreed with Mr. Hall and said that there has been an evolving standard of moral decency since the death penalty was abolished. Also, he believes that the criminal justice system was never designed for people to die in prison, making the life without parole sentence even more senseless.

Justice Hines asked the group their opinion on the prospect of this legislation succeeding. She reminded the public that nobody has a right to parole, making the justification for this legislation more complex. Representative Miranda said that the current legislation was sent to study, effectively killing it for the remainder of the 2019-20 session, and that she had her hopes set on next term. She added that the bill would probably be redrafted to include more survivors’ voices and that the hearings they have held on this issue thus far have elicited great interest but may not have given all populations an equal chance to be heard. Mr. Hall also said that working on this legislation will have a symbolic effect, catalyzing a narrative shift that is very needed in the way in which criminal justice reform is framed today.

Justice Hines asked Mr. Lowney his thoughts on the stories of redemption of people who were sentenced to life without parole and have completely changed their lives as a way to take accountability for their actions. Mr. Lowney said that he was not suggesting that there not be programming and other opportunities for prisoners to work to transform themselves, but that the issue is the inability to know who is intent on changing their life and who is still a violent criminal. It is an issue of public safety. Mr. Reed contrasted that the most violent offenders will not be granted parole, even if they are eligible for it. The Parole Board will still have the authority to keep somebody in prison for life if they believe that person will pose a threat to public safety.

The panel opened to questions from the audience. Audience members expressed concern with the large population of inmates serving sentences of life without parole in Massachusetts, and engaged in discussion with panel members about how the criminal justice system could become more rehabilitative and less punitive. Panel members suggested investing in victim assistance, having deeper conversations about the system among affected communities, and electing more people of color to the state legislature.

In all, it was a moving and thoughtful conversation. The BBA is grateful to the panel speakers and the attendees for engaging in this discussion and is looking forward to continuing this conversation in the future.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Panel Discussion on Right to Counsel in Eviction Cases

As part of our effort to support the Massachusetts Right to Counsel Coalition, in their campaign to enact a right to counsel for indigent tenants and landlords in eviction cases, the BBA hosted a panel discussion about the issue on February 26.  The event, sponsored by our Delivery of Legal Services section, featured:

  • Chief Justice Ralph Gants of the Massachusetts Supreme Judicial Court (SJC)
  • Annette Duke of the Massachusetts Law Reform Institute (MLRI) and leader of the Coalition
  • Stefanie A. Balandis, Associate Director of Northeast Legal Aid
  • Marc Migliazzo of Ropes & Gray LLP and long-time Lawyer for the Day volunteer in Housing Court

Chief Justice Gants kicked off the event by highlighting why establishing such a right is so important, saying that it will not only protect the rights of litigants who currently go unrepresented but also promote housing stability in communities statewide. 

To understand why legal counsel is especially important in eviction cases, one need look no further than the SJC’s unanimous 2019 ruling (authored by Chief Gants) in the Adjartey case—in particular, its 25-page appendix, which seeks to catalog, as a kind of “one-stop shopping” for lawyers and pro se litigants, all the statutes and court rules that make up the landscape for summary-process cases.  The judge asked for a show of hands in the audience from all who had the read the appendix in its entirety (few went up), then said, “It is hard to read because the law is hard to understand.”  The relevant statutes inherited and adopted the arcane language of property law (think first-year of law school), the Housing Court rules (currently being revisited) are similarly complex and sometimes in conflict with the Rules of Appellate Procedure, and the Legislature has granted considerable rights to tenants over the past 40 years. 

With the BBA set to release a report that will calculate the savings that the state would achieve by investing in an eviction right to counsel, Chief Gants also urged attendees to consider not only the fiscal benefit to the state budget—from avoided costs on foster care, emergency shelter, health care, and the like (as documented first in our 2014 report, Investing in Justice)—but also non-monetary benefits, which can’t easily be quantified. 

Those include, for example, the value of a single parent able to stay at home and thus not have to work out a new individualized education program (IEP) for a child with special needs, as the result of being displaced and forced to move to a new school.  Health and mental health are directly affected by the stress of facing eviction without legal assistance, and figures presented at the event show that household income often rises significantly when tenants are able to stay in place.

As Chief Gants put it, we can’t afford not to enact a housing right to counsel.

Annette Duke offered some background on the Coalition she leads, in which the BBA is a proud member—one of 125 (and growing).  But when the campaign began last year, there were only 13 members.  As Duke recounted, having successfully coordinated the effort to enact legislation to expand the Housing Court to statewide jurisdiction, she sought input on what the next logical step should be and ultimately, after input from community partners, chose to pursue a right to counsel—in large part because of the numbers: There are 40,000 eviction cases in Massachusetts courts each year, and in 91% of them, the tenants are unrepresented.

In January 2019, three separate bills were filed in the State Legislature, by Sen. Sal DiDomenico, Reps. Michael Day and David Rogers (together), and Rep. Chynah Tyler, respectively.  The Right to Counsel Coalition advisory committee then set about studying lessons from the six cities in the US that have already adopted a right to counsel, to learn from their experiences about how to improve legislation that would make Massachusetts the first state to do so. 

In New York City, for example, 84% of represented tenants remain in their homes, eviction filings in court are down 15% overall, savings are showing up elsewhere in the municipal budget, and the new city-funded right to counsel is changing the culture around evictions.  One challenge, however—which Massachusetts will need to be mindful of—is the need to develop a strong pipeline to train and recruit lawyers for right to counsel. In Massachusetts, we are fortunate to already have law schools with clinical programs based in Housing Court.

The Coalition has now put forward a new draft that incorporates those lessons, and the Judiciary Committee is expected to consider it in the next few months.  Duke offered an overview of its main points:

  • State funding for the program must come from a new stream, rather than draw from existing resources in the budget for legal and housing-stability assistance.
  • The program would be based in a newly-created Office of Civil Justice, housed within the Executive Office of Housing and Economic Development.
    • First, though, a committee would engage in a one-year study on how best to implement and administer the program.  (Many of these details are intentionally left to this committee to determine.)
  • The right would extend to litigants who are below 200% of the poverty level (which translates to $52,400 for a family of four), covering both tenants and owner-occupant landlords of two-family units.
    • This would include full representation in litigation and require a Civil Justice Committee to make recommendations about “upstreaming”—that is, outreach, education, and guidance for people early in the process, after a notice to quit has been served but before any court eviction has been filed.

On upstreaming, the Access to Justice Commission’s Justice For All Housing Pilot Project, operating out of Lawrence and supported by Northeast Legal Aid and Lawrence Community Works, is showing success in identifying vulnerable tenants when they first become at risk, helping virtually all its clients remain in their homes. 

At the other end of the continuum, the Lawyer for the Day program in the Boston Housing Court—a partnership among the BBA, Volunteer Lawyers Project, Greater Boston Legal Services, The Legal Services Center of Harvard Law School, Harvard Legal Aid Bureau, and the Boston Housing Court—has been offering representation to tenants and landlords on Eviction Day, from a table outside the courtrooms, helping more than 18,000 tenants and landlords over the past 20 years, with a high percentage of cases settling on the spot. 

Such assistance (shameless plug: volunteers needed!) can be critical, considering the speed with which evictions can proceed: Tenants may have as few as seven days to file an answer, including counter-claims, discovery motions, etc., and trials are often scheduled for only a few days after that deadline.  When you consider how a tenant—typically unsophisticated in housing law and court rules (see the Adjartey discussion above!) and with limited free time during business hours, often facing language and/or educational barriers—is supposed to find and hire counsel, schedule a meeting, and draft and submit a filing in such limited time, it’s no surprise that so many simply show up for trial without having done any of that.

These programs are important in addressing the pro-se crisis in Housing Court, but they cover only a fraction of the need. Most tenants facing eviction cannot afford a private lawyer, and even among those seeking help from legal aid in housing matters, most must be turned away due to under-funding.

Only a true right to counsel in evictions—as endorsed by the BBA more than a decade ago—can resolve the problem, save the state money, and build housing stability.  That’s why we’ll keep advocating for enactment of the Coalition’s legislation.  And watch for news, in the coming days, about our new report on cost savings associated with it…

—Michael Avitzur
Government Relations Director
Boston Bar Association