Alimony Reform . . . Seeing the Light at the End of the Tunnel

At its April meeting, the BBA Council voted to support S 665, “An Act to Reform and Improve Alimony,” co-sponsored by Senator Gale Candaras and Representative John Fernandes.  This bill, the result of a Herculean effort led by the Legislative Alimony Reform Task Force, is the result of thoughtful discussion and negotiation.  The final product provides a structure that gives durational and amount limits to alimony orders while giving the court the ability to consider the facts and circumstances of each case, which is key to preserving judicial discretion within the framework of reform.  Our Family Law Section has taken it one step further and has provided additional comments for the Legislature to consider.

The Legislative Alimony Reform Task Force was convened to bring all parties with an interest in alimony reform together in one room to collaborate on a single, compromise piece of legislation. The Task Force constituted one of the broadest groups of family law stakeholders possible, including Chief Justice Paula Carey of the Probate and Family Court in an advisory capacity, and representatives from the BBA, the Massachusetts Bar Association, the Women’s Bar Association, father’s rights groups and private family law practitioners.  Members met for marathon sessions over fourteen months under strict confidentiality  —  trudging through various alimony reform proposals already in existence and working together on each piece of the new legislation.  The BBA’s Family Law co-chair, Kelly Leighton, acted as the BBA’s liaison throughout the process.

The call to reform alimony laws in Massachusetts has gotten louder and louder over the last several years.  These laws have a direct impact on the lives and livelihoods of so many people throughout the Commonwealth.  The current laws give little discretion to judges to set a termination date on alimony payments absent a significant change in the lives of the two parties. Often there is little consistency in alimony rulings because of the ambiguities in the current statutes.

We aren’t the first group calling for change in this area of the law, and it was only after our collaboration with other groups that it appears Massachusetts will finally benefit from legislative reform.  Our work on this started years ago, when the BBA and the MBA convened a joint task force to study the alimony issue and make recommendations.  In 2010 the BBA endorsed the report of that joint task force, which was utilized in the drafting of “An Act to Reform and Improve Alimony.”

Although the alimony reform process may still take some time, it certainly looks like Massachusetts will finally have an alimony system which is consistent while allowing for judicial discretion.  Legislators rely on groups like the BBA to help frame issues in a way that can bring about meaningful change.  The next step in the process is to weigh in publicly with our support when the Judiciary Committee schedules a public hearing on this issue.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Legal Services Scores Huge Victory in the House Budget

THANK YOU to the Massachusetts House of Representatives for level funding the line item for the Massachusetts Legal Assistance Corporation (MLAC) at $9.5 million.  Yesterday the House Ways & Means Committee unveiled its annual budget.  Because of the $1.9 billion gap between spending and available revenues, there were deep cuts to virtually all areas of government.  Level funding at a time when things like health care, local aid, education, and human services are being cut is an enormous victory.

In the days and even the hours leading up to the release of the budget, advocacy groups searched hard for signals that might forecast what would happen to the line items on which the survival of their programs depends.  Of course there were last minute meetings and phone calls to implore legislators to make legal services one of their key priorities.  But in the days leading up to the release of the budget, advocacy groups also had to think seriously about contingency plans in the event of cuts in funding.

State budgets translate into statements about values.  For the House Ways & Means Committee to level fund legal services in the midst of widespread cuts to other important programs sends a powerful message that the members of the House understand the importance of providing equal justice for all.  Now the Senate is on deck.  While the Senate is reviewing the recommendations in the House proposal, please take a moment to contact your state representative and say thank you for supporting legal services.  Make another phone call and ask your state senator to support legal services and the MLAC line item.  With the Governor and now the House supporting level funding for legal services, things certainly look promising.  But the need for advocacy continues.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Here Comes the House Budget. . . Now What?

When all is said and done, what is the cost of trying to provide access to justice for all?

Next Wednesday, April 13th, the Massachusetts House of Representatives will release its version of the state budget.  The budget is much more than a list of dollar figures for particular programs. Rather it’s actually a reflection of decisions that help frame the values and priorities for the state.  The decisions reflected in the state budget affect the everyday lives of Massachusetts residents and have a strong bearing on the quality of education in Massachusetts, the level of health care services, safety of communities and so much more.

The budget is the most important bill to move through the Legislature each year.  The BBA has been working for months to advocate for level funding for legal services and the state courts while continuing to urge adequate funding for CPCS and the District Attorneys as well. To be an effective advocate, it is important to understand how and when to make an impact on the process, and ultimately the outcome.  This means knowing what to look for when the budget is posted online next week and how to respond.

Our 3 step state budget review process is:

1) Check the line items for the specific accounts the BBA has been working on.  For example, we are hoping to see that the Massachusetts Legal Assistance Corporation line item 0321-1600 will be level funded at $9.5 million.

2) Check the language of the line items for any earmarks.  Earmarks sometimes appear in a budget item and direct a portion of the money to a particular program.

3) Read the outside sections.  These sections often affect appropriations in the budget or contain policy that would make permanent changes in the General Laws.

The BBA has been anticipating the release of the budget.  For the past two months, we have been campaigning alongside our partners at the Equal Justice Coalition for adequate funding for legal services.  We have been working closely with the Judiciary to determine how best we can help them make their case that adequate funding for the courts is essential to everyone in Massachusetts.  BBA sections have reviewed and studied the proposal relative to the Probation Department and CPCS that was included in the Governor’s budget.  We know that the Governor’s transfer of CPCS to the Executive Branch means those line items have been stricken from the Judiciary accounts.  But public statements from the Speaker indicate the House budget will keep CPCS in the Judiciary.

 No, we’re not done.  Once the House budget is released, we will analyze the priorities articulated and develop an appropriate response.  For the BBA to make an impact on the budget process we have an obligation to speak up in support of our partners and serve as a resource for the growing number of legislators who are not as familiar with some of these issues as they might like.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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BBA Testifies on Probation Reform

The most seasoned of lobbyists will tell you there’s no way to predict how any one legislative hearing will play out, regardless of how much time you have dedicated to advocating on the issue at hand. These marathon hearings are held in small rooms that are packed with people and video cameras. Hours can pass before you have an opportunity to testify — even if you were the first person in the hearing room.  Sometimes there is a full complement of legislative members engaged and asking lots of questions while other times members are rushing out in response to a roll call to vote on some unrelated matter and you’re lucky if you find yourself talking to one lone legislator.

On Wednesday, BBA President Don Frederico and Jack Cinquegrana testified before the Massachusetts Judiciary Committee at a public hearing held on legislation related to reforming the Probation Department.  The hearing room was filled with judges and probation officers.  At the same time the House was in the middle of debating a $325 million supplemental spending bill.  Amid the BBA’s testimony, not one but two separate roll calls occurred, emptying the panel except for a few Senate members.

During his testimony, BBA Past President Jack Cinquegrana explained that part of the problem faced by the Probation Department stems from inefficient sentencing guidelines that prevent successful re-entry into the community.  Following his remarks, Senator Thomas McGee thanked the BBA for bringing attention to that piece of the probation puzzle.

Every chance to be heard on our position is useful, whether it is one-on-one with a legislator, at a public hearing or in a written statement.  Being given an opportunity to offer our probation principles as the Legislature considers the issue is part of the process, and we will continue to participate in that process.

Speaker Robert DeLeo set probation reform as a priority earlier this year saying he wanted it dealt with “early in the session and as expeditiously as possible.”  Rahm Emmanuel once said, “Never let a serious crisis go to waste….it’s an opportunity to do things you couldn’t do before.”  Still Judiciary Committee Chairman Eugene O’Flaherty provided a different take at yesterday’s hearing: “As one individual legislator I am not looking at this in terms of the alleged crisis…I don’t respond to alleged crises.  This is going to be done in a deliberative way.”

Regardless of the reasons that probation reform has been made a priority, this is an opportunity to restore the department to the national model it was in the 1990’s.  Progress is already being made under new Commissioner Ron Corbett.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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BBA Will Make its Voice Heard Re: Probation Reform

The Boston Bar Association (“BBA”) is often asked why we weigh in on some topics and not on others.  The short answer is we are interested in speaking up on issues that have an effect on the practice of law or the administration of justice.  In reality, it’s not that simple.  Getting to the point where we can voice our opinion or share our position involves a careful process.  Sometimes that process is anticipatory while other times it is reactive.

For example, last week’s blog post described one instance where the BBA was pre-emptive and got out front on an issue.  Our members identified an area, updating state consumer debt collection regulations, in which their expertise could be put to use.  Almost all of the recommendations our members made were adopted by the Attorney General’s Office and they are now in the process of promulgating the new regulations.

Next week, on March 30th, the BBA will testify before the Judiciary Committee at a public hearing on probation.  In this instance, the BBA’s involvement has consisted of a measured review and response to the legislation filed by Governor Patrick in January.  This legislation was filed in the wake of the patronage scandal in the Massachusetts Probation Department and the tragic murder of Woburn police officer John Maguire.  Following the death of Officer Maguire, there was a loud and justifiable clamor for immediate review and reform of the department.

The reason the BBA decided to step into the debate is that the proper management and governance of probation is vitally important to the administration of justice.  The final probation reform legislation is sure to have a significant impact on the practice of law and the administration of justice in Massachusetts.

Once the governor’s legislation was filed, BBA President Don Frederico appointed a Council-level study group consisting of a wide range of federal and state prosecutorial and public defense experience.  After weeks of review, which included meeting with experts in the field, thoughtful study and debate, the BBA Council endorsed the study group’s position articulating the guiding principles that the BBA believes any probation reform legislation should be based on.

The study group never set out to correct all of the problems identified in the Ware Report.  Instead, it recognized that there is no one way to solve these issues.  The Legislature needs the freedom to install a system that remedies the problems plaguing the department.

This recent crisis provides an opportunity to make critical changes to the Probation Department.  The BBA hopes that the study group’s principles will help shape criminal justice reform and lead to a more efficient department while improving public safety.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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We’re Making Progress in Debt Collection Reform

As a membership organization with nearly 10,000 members, issues of public policy and opportunities to comment and suggest reforms routinely present themselves to the Boston Bar Association (BBA).  The BBA Council has adopted policy positions on a wide variety of issues.  Once a position has been approved, many of our members wonder, “What now?”

The answer usually depends on timing – the timing of Council approval in relation to what the Legislature is focusing on at that particular moment.  The salience of an issue often dictates how much traction it will have in the Legislature and other governmental agencies.  Unfortunately, forecasting what will capture the attention of government officials is more of an art than a science.  So advancing BBA positions demands patience and perseverance.

Just one example. . .When word came to the BBA last Friday that the Attorney General was submitting proposed updates to its Debt Collection Regulations to provide stronger consumer protections, we were thrilled.  As noted in Issue Spot last August, the BBA’s Consumer Finance Committee wrote a report proposing updates to the current regulations to reflect the real world today.

Many of the proposed updates submitted by the BBA group are found in the proposal submitted by the Attorney General’s Office.  These changes will provide substantial relief for debtors that have been subjected to unfair collection practices not covered by the current regulations.

Before the regulations are updated, there is a comment period and a hearing scheduled on May 18th.  Members of the BBA Consumer Finance Committee will present testimony on the Attorney General’s proposal to express the BBA’s support for these important modernizations of debt collection practices.  The BBA is proud to work with the Attorney General’s Office and all other agencies where the expertise of our membership can be useful.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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8th PILP Class Continues Legacy

Sometimes it is easy to overlook the good being done by attorneys in our city.  Of course Boston’s legal history is full of examples of lawyers answering the call of public service, not the least of which was John Adams’ defense of the British soldiers following the Boston Massacre.  The legacy of pro bono representation and public service is evident all over Boston’s legal community from multinational firms to solo and small practices and from in-house counsel of large corporations to legal departments of governmental agencies.  In order to cultivate the talent of new attorneys who exemplify the characteristics of an active lawyer citizen, the Boston Bar Association began the Public Interest Leadership Program (“PILP”) in 2003.

On March 2, over 40 PILP alums gathered at the BBA for an Alumni Reception hosted by this year’s class.  Chief Judge Mark Wolf of the United States District Court and BBA Past President Mike Keating stopped by to speak to the group and catch up with alums who have gone on to do extraordinary things.  One example of the work that PILP participants have gone on to do is to organize pro bono support for the Medical-Legal Partnership at Boston Medical Center.  Judge Wolf recalled speaking with Samantha Morton and Leiha Macauley, two PILP alumnae, after they were honored at the 2009 John & Abigail Adams Benefit for their work with the Medical-Legal Partnership.  Both women remarked that they might not have continued to practice had they not been selected to join PILP because the program inspired them to use their skills for public service.

PILP began as an idea and was the brainchild of Judge Wolf.  In early 2002, Judge Wolf wrote a letter to then-BBA President Mike Keating suggesting the idea for establishing a group for new attorneys who are engaged in the community.  It would be a forum for discussing common interests and problems, education, social activity, and planning public service projects.  Now eight classes later, that group has grown into a network of nearly 100 distinguished lawyers.

The Alumni Reception was a successful event – with Judge Wolf and Mike Keating noting that PILP has grown beyond their original vision and encapsulates the best of the profession.  It is truly remarkable to see a group of committed newer attorneys who find the time to balance full case loads, pro bono representation, public service projects, and bar activities.  As Mike Keating said last night, it is work that is done in a program like PILP that makes being a lawyer worthwhile.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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LSC Fighting Off Federal Cuts

Legal services providers face another yet another blow – following last week’s announcement that the new House Appropriations Committee has proposed a $70 million cut to the Legal Services Corporation (“LSC”) for Fiscal Year 2011.  This immediate cut would be catastrophic to the delivery of legal services in Massachusetts because it would mean an 18% reduction in LSC’s annual funding.  (Because we are already half way through the current fiscal year, legal services providers tell us this actually translates to a 36% cut.)

There have already been serious reductions in other funding sources upon which LSC-funded programs also depend – especially Interest on Lawyers’ Trust Accounts (“IOLTA”). As we noted in a previous post, record low interest rates and reductions in the number of real estate transactions have resulted in dwindling IOLTA revenues.

What the House Appropriations Committee proposed last week is in contrast to what President Obama’s unveiled his budget this week.  For Fiscal Year 2012, President Obama actually proposed an increase of $30 million for LSC.

LSC provides grants to independent local programs and currently funds 137 local programs, serving every county and Congressional district in the nation. LSC distributes 97% of the funds it receives to these programs.  Massachusetts has four LSC-funded programs: the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy.

If this mid-year cut goes through, the entire legal aid delivery system in Massachusetts will suffer.  LSC has a big budget battle ahead of it. The BBA has already tried to do its part.

Today (February 17th), BBA President Don Frederico sent every member of the Massachusetts Congressional Delegation a letter urging no cuts in LSC funding. We will also join the American Bar Association in D.C. this April to lobby for funding for Fiscal Year 2012.  We urge Congress to adequately fund legal services to provide access to justice for poor people in the United States.

N.B. Some organizations in Massachusetts, such as Greater Boston Legal Services, do not receive LSC funding, and they still need our help.  That budget battle – to hold onto level funding – has just begun in the state Legislature.  Please be sure to join us next week at Walk to the Hill.  The event has been rescheduled for Tuesday, February 22nd at 11:00 AM in the Great Hall at the State House.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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