Legislators Who Understand Need for Legal Aid

For many years the BBA has advocated alongside Greater Boston Legal Services (GBLS) for the Massachusetts Legal Aid Corporation line item, which is the state funding source for civil legal aid to poor people.  In meetings at the State House we are typically joined by a client of GBLS who is also a constituent of the particular lawmaker with whom we are meeting.  This puts a human face on the funding request.  More important, the constituents’ personal stories provide real life illustrations of the difference that legal services attorneys make on the lives of people facing desperate legal problems.

Let me tell you about once such meeting last year.  It was the first time we had met with Speaker Pro Tempore Patricia Haddad, whose district is in Southeast Massachusetts (Dighton, Somerset, Swansea and Taunton).  We brought along a low-income grandmother whose story would be familiar to any legal services lawyer trying to secure visitation rights to a grandchild whose parent is out of the picture.

We spoke with Rep. Haddad for over an hour.  We rattled off numbers and talked about the decline in IOLTA funds, the number of layoffs statewide in legal services, how legal services actually brings money into the state, and how the private bar does its part too by volunteering pro bono hours and raising private money for legal services.  But it was the real life story of the constituent that generated the greatest impact.

Rep. Haddad said she was glad we came to talk with her about this important issue.  Her sincerity was confirmed only a few days later when we ran into her in the reception area of Speaker DeLeo’s office.  She told us she was there for the same reason: to discuss legal services funding with the Speaker.

Tonight we get the opportunity to thank Rep. Haddad, along with Chairman Stephen M. Brewer (Senate Ways & Means), Chairwoman Cynthia Stone Creem (Joint Judiciary Committee), Chairman Brian S. Dempsey (House Ways & Means Committee), and Steven A. Tolman (President of the AFL-CIO and former Senator).

Happily, the Massachusetts Bar Association and the Massachusetts Legal Assistance Corporation, our partners in the Equal Justice Coalition, will be joining us for a recognition reception.  With the Legislature in informal session until January, this is a great opportunity to honor some of the legislative leaders who have demonstrated an outstanding commitment to civil legal aid in 2011.

The State House has already begun to prepare for the FY13 budget cycle.  We hope at this time next year we will be in a similar position: thanking those who made MLAC’s $14.5 million for FY13 request a reality.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association

Mid-Session Legislative Update

The Legislature’s winter recess began last Wednesday evening – but not before some important pieces of legislation passed in both the House and Senate.  The reason for the winter recess?  Legislative rules require the House and Senate to break from formal session during non-election years as a way of preventing action on major bills so close to the holidays, a time during which the public may not be as attentive.  If two-thirds of members agree, the Legislature can return to session during their scheduled break.  This recess gives legislators time to spend in their districts and affords others a chance to do additional lobbying on bills expected to move next year.  Here’s a quick update on the progress of transgender civil rights, sentencing reform and important trusts and estates bills that the BBA is working on…

A victory for transgender rights!  When the House and Senate approved a bill to include gender identity and expression in the Commonwealth’s nondiscrimination statute and existing hate crime laws, Massachusetts joined 15 other states – along with Washington, D.C. – that already provide these protections for transgender people.  Governor Patrick, who supports the legislation, is expected to sign the bill soon.   While the final version of the Transgender Equal Rights Bill does not include protections within public accommodations, this is a historic and important victory for transgender equality in Massachusetts.

We have more work to do on sentencing reform. We had hoped that a bill denying parole for repeat violent offenders would also eliminate mandatory minimum drug sentences for non-violent offenders. While we were pleased to see some elements of sentencing reform in the Senate version of the bill, we were disappointed that the House version only contained parole denial for repeat offenders.  We’re still hoping that a conference committee will be able to restore the Senate reforms relative to reduced mandatory minimum drug sentences.

Having just passed the midpoint of the 2011-2012 session, legislative rules now require that bills pending at the end of the first annual session carry over into the second annual session.  But let’s not forget that the portion of the Massachusetts Uniform Probate Code dealing with estates goes into effect on January 2, 2012. Two important housekeeping proposals, the MUPC technical corrections and the Massachusetts Uniform Trust Code, are still pending and we cannot wait until the beginning of the next session to act.   A delay in passing these bills will put greater strain on an already overburdened Probate & Family Court.

While the House and Senate will continue to meet over the next few weeks in informal sessions, the second leg of the 2011-2012 begins in January and will continue until through July.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Pro Hac Vice Proposal Aims at Bolstering Legal Aid Funding

The news about IOLTA revenue, a key source of funding for legal aid to the poor, is grim and getting worse.  Enter the pro hac vice admission fee proposal of the Massachusetts Access to Justice Commission (AJC).

This week, the BBA Council voted to support the AJC’s proposal that would boost funding for legal services programs.  If approved by the Supreme Judicial Court, Massachusetts would join 41 other states and the District of Columbia in instituting a pro hac vice admission fee.  While the Board of Bar Overseers will retain a portion of each fee to cover administration costs, the remainder of the $300 will go to the IOLTA Committee.  IOLTA will then distribute it in the same proportions as other IOLTA revenue – to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation and the Boston Bar Foundation – for use in providing civil legal assistance to low-income residents of Massachusetts.

The reason for instituting a pro hac vice fee is twofold.  It will help create a central listing of these types of filings and maintain records relative to the number of pro hac vice filings.  More importantly, it will help legal aid by plugging a little of the funding gap.  Though it’s difficult to predict exactly how much money the pro hac vice fees will bring in, based on the experiences of Texas and Pennsylvania, Massachusetts could collect between $300,000 and $500,000 annually.

Take a look at the frightening facts.  IOLTA revenue is down – way down.  So far in calendar year 2011, IOLTA has only collected $7 million.  This is a $24 million drop from the revenue collected in 2007.  And, in the last 3 budget cycles MLAC has been funded at the FY2008 level of $9.5 million, which has not prevented large-scale reductions in staff and service capacity for legal assistance organizations.  The average MLAC-funded civil legal aid program has had to cut 25% of its attorneys – some have lost up to 40%.  Meanwhile, demand for these services has increased dramatically.  In the past year, 94,000 more individuals and families became eligible for civil legal aid.

And the federal landscape for legal services is even bleaker.   A Congressional agreement for FY2012 being taken up on the House floor this week would provide $348 million to the Legal Services Corporation (LSC), a 13.9% cut to LSC’s overall funding.  There’s also the Supercommittee that needs to find ways to cut $1.5 trillion before itsNovember 23rd deadline.  If the Supercommittee can’t work out a deal, automatic cuts would be made to defense and domestic programs equally.  Any reduction to LSC in this process would guarantee that more Massachusetts residents in need of legal services will be turned away.

In today’s economic climate, everyone is hurting and the government is no exception.  But civil legal assistance is a vital safety net for families facing foreclosure and eviction, victims of domestic violence, veterans returning from combat, residents affected by recent natural disasters and other vulnerable members of our communities.  While the adoption of a pro hac vice admission fee will not alone solve the problem, it will help offset some of the devastating losses in funding for legal services that have recently occurred.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

BBA Signs on to Amicus Brief Challenging DOMA

It’s been nine years since the BBA staked out its position on same-sex marriage in its amicus brief filed in the landmark Goodridge v. Dept. of Public Health. The BBA reiterated its position on same-sex marriage when the organization signed onto an amicus brief last week.   The latest brief – filed in the US Court of Appeals for the First Circuit – challenges the federal Defense of Marriage Act (“DOMA”).  The BBA joined 30 other groups – the ACLU, the National LGBT Bar Association, the Human Rights Campaign and the Equal Justice Society to name just a few – on this brief that involved a constitutional challenge to DOMA.

Section 3 of DOMA provides that for the purposes of all federal laws, “marriage” and “spouse” are defined to exclude married same-sex couples, even if those marriages are legal under state law.  In 2004, Massachusetts became the first state in the country to end the exclusion of same-sex couples from civil marriage.  The BBA has approached this purely as an issue of civil rights and universal access to justice.  Consistent with the BBA’s commitment to ensuring equal protection for all people, the amicus brief argues that classification based on sexual orientation must be subjected to heightened scrutiny.

Why now?

The legal challenge to DOMA in the two federal cases, MA v. U.S. Dept. of Health and Human Services and Nancy Gill v. Office of Personnel Management, sparks a seminal moment in the evolution of the same-sex marriage issue.  The BBA continues to lead on the issue and believes that it can be uniquely persuasive as a legal organization through filing amici.

Back in February 2011, as discussed in Issue Spot, the Obama Administration decided to no longer defend DOMA – leading Massachusetts Attorney General Martha Coakley to file a lawsuit challenging the law that bars federal recognition of same-sex marriage.  In the absence of the Department of Justice defending the law, the Bipartisan Legal Advisory Group of the House of Representatives announced it would intervene to provide the defense.  What has followed has been a protracted process.

The fate of DOMA is now in the hands of the US Court of Appeals for the First Circuit.  DOMA should be found unconstitutional.  We look forward to the day when Massachusetts does not belong to a small list of states recognizing same-sex marriage, but rather is part of a nation that fully supports the idea of equality under the law.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Let’s Not Revisit the Tax on Legal Services

The new Tax Expenditure Commission, created by Outside Section 160 of the FY12 budget and chaired by Secretary of Administration and Finance Jay Gonzalez, will meet regularly over the next six months to study the Commonwealth’s $24 billion tax expenditure budget.  The process includes reviewing all tax breaks, tax credits, sales tax exemptions and corporate deductions in an effort to measure the effectiveness of these carve-outs.  The recommendations of the Tax Expenditure Commission are due by April 30, 2012.

In addition to reviewing the current tax expenditure budget, the Commission has been charged with issuing recommendations regarding any changes to the current tax expenditures and criteria for new tax expenditures.  Since there has been no increase in broad-based taxes since the sales tax hike in fiscal year 2009, this could potentially mean a renewed interest in adopting a tax on legal and other professional services.

This would not be the first time Massachusetts has experimented with the misguided idea of instituting a tax on legal services.  The idea of a services tax was first proposed in 1975 but ultimately not adopted by the legislature.  Soon after, a coalition in favor of the tax sought to have a referendum put on the ballot.  In conjunction with other professional groups, the BBA launched a campaign to educate the public about the economic effects of such a tax – that clients, rather than firms, would absorb the overwhelming majority of the burden.  A legal services tax would fall disproportionately on those least able to afford legal representation, thereby limiting access to justice.

In the early 1990’s the issue came to a head when a sales tax on legal services actually passed in the state legislature and was signed into law.  Amid revelations that this tax would apply not just to services  provided by attorneys, accountants and other professionals — but also to such services as lawn mowing and snow plowing — support for repealing the tax increased.  The BBA, joined by the MBA, mobilized its members and focused its efforts on informing the legislature and incoming Governor Weld of the economic and legal flaws in a services tax.  Groups representing other segments of the professional community worked on this too and, two days after the tax took effect, Governor Weld signed legislation repealing the services tax.

Of primary concern for the BBA is the constitutionality of such a proposal.  The right to obtain the services of an attorney is a natural right guaranteed by the United States Constitution and is immune from the imposition of an excise tax.

There are also other compelling arguments to be made against a legal services tax.  A sales tax would compromise the attorney-client relationship by requiring an attorney to act as a tax collector and submit sensitive client information to the Department of Revenue.   Rather than serving as an advocate in a confidential relationship, an attorney would be forced to share privileged information with third parties.

We’ll watch closely now as the Tax Expenditure Commission continues to meet.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Inadequate Funding Threatens Delivery of Justice in MA

When the BBA speaks publicly about the state budget, we are generally talking about funding that impacts the Massachusetts legal system.  Specifically, that means advocating for funding for: the Committee for Public Counsel Services (CPCS), District Attorneys’ offices, legal services and the Judiciary.  It is incumbent on us – the private bar – to ensure that these four groups receive the resources necessary to function properly.  The BBA advocates annually for these groups and, lately, our advocacy efforts have continued year-round.

The demand on the legal system has never been greater.  At a time when governments are forced to slash budgets, more people who depend on public services are being turned away.  The legal system is often a place of last resort where people exercise their constitutional rights to seek relief in areas of housing, children’s services, employment matters, etc.  All across the board – from public defenders to prosecutors, from legal service attorneys to the courts – the legal system has suffered heavy losses in resources while trying to stay on top of rising caseloads.

Here’s why we need these four areas of the state budget adequately funded:

The right to appointed counsel for indigent persons is fundamental under our federal and state constitutions.  Massachusetts is obligated to provide competent legal counsel to every indigent person charged with a crime punishable by imprisonment, and CPCS is the state agency that manages these responsibilities.  The size of the budget needed to fulfill this obligation is dictated by the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In line with our commitment to the right to counsel is our commitment to ample funding for the prosecutors’ offices that seek justice in every case.  Without adequate funding for the state’s eleven district attorneys’ offices the effective prosecution of crime in Massachusetts would surely be compromised.

State funding for civil legal services is, in part, appropriated through the Massachusetts Legal Assistance Corporation (MLAC) line item.  MLAC is the largest funding source for civil legal aid programs in the Commonwealth, funding 17 legal aid programs that provide information, advice and representation to low-income people with critical, non-criminal legal problems.  Though MLAC also receives money from IOLTA revenue, the decline in real estate transactions – the largest contributors to IOLTA accounts – has caused this source of revenue to fall dramatically.

At the core of our legal system is the Judiciary, without which justice simply could not prevail.  As a separate branch of the government, the Judiciary is fully dependent on tax dollars for its operation.  The Massachusetts state courts are funded through state budget appropriations.  Today, the Governor signed a supplemental budget that provides some additional money to our woefully underfunded courts. But it’s still not enough.  The additional funding gives the courts some relief from the mounting pressure to do more with less.  It is welcome news to those who have become accustomed to budgetary disappointment.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association

Let’s Be Smart About Sentencing and Parole

The stakes are high when we begin talking about public safety, crime prevention and the overall functioning of the Massachusetts criminal justice system.  Rhetoric like “tough on crime,” “three strikes and you’re out” and “if you do the crime, you do the time” are often bandied about when criminal justice reform appears on the horizon.

This week’s Boston Globe editorial, “Curb parole for violent crime, but rethink drug sentencing,” urged lawmakers “to create a stronger, fairer, and more economical criminal justice system.”  While saying this will necessitate an “approach that cracks down on violent offenders while taking a fresh look at nonviolent drug offenders,” the editorial  speaks to the importance of understanding the dynamic  relationship between mandatory sentencing, parole and prison cell availability.

A bit of background. . .

Even before the Boston Bar Association published its 1991 report, The Crisis in Corrections and Sentencing in Massachusetts,  the BBA has been on the forefront of discussions on how to make the MA criminal justice system more effective.  We have long taken the position that mandatory  minimums and their “one-size-fits-all” approach do not allow for judicial discretion to impose sentences that actually fit the crime.

We have yet to see the Senate bill to which the Globe editorial alludes.  All we know is that the bill is expected to be taken up for consideration and a vote by the full Senate soon.  While it’s unlikely there will be a public hearing on this particular bill, nobody can say it’s come out of left field.  Let’s review a bit of recent history:

  • December 2010 – A parolee released from a triple life sentence killed Woburn police officer Jack Maguire.
  • January 2011 – All five members of the parole board, including the Executive Director, resigned.  The governor, several legislators and a district attorney dusted off their own habitual offender bills and filed them in the legislature, producing an array of bills aimed at making changes to the current laws.
  • September – All of these sentencing bills generated hours of public testimony at a hearing before the Judiciary Committee.
  • Right now – A bipartisan group of senators, appointed by Senate President Murray over the summer, is at work producing a soon-to-be released parole bill.

What we do know from our more than 20 years of work in this area is that any parole reform or habitual offender bill that does not take into consideration mandatory minimum drug sentences is bad public policy.  Parole and habitual offender reforms should be a part of a comprehensive crime package – but one that should include sensible mandatory minimum sentencing reform for drug offenses – because of the interrelatedness of our criminal justice system’s components.  Parole reform, habitual offender legislation and sentencing reform are inextricably connected and the time has come for Massachusetts to implement measured change in this area.

 

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Probate Bills Move Forward

Last Wednesday, in hearing room A-1 of the State House, the Judiciary Committee heard public testimony on 164 bills related to the broadly defined category of “crimes.”  Spanning the better part of the afternoon, the testimony addressed issues ranging from Governor Patrick’s high-profile gun crime bill to reinstating the death penalty to strengthening animal abuse laws.

Meanwhile, upstairs on the floor of the House, the details of a supplemental budget appropriation, which included $12 million in direct funds and $8 million in retained revenue fee collections for the Trial Court, was taken up and passed with a vote of 149-1.

While the supplemental budget and the crime bills captured the headlines the next day, the Judiciary Committee polled its members on the Massachusetts Uniform Probate Code (MUPC) technical corrections bill and the Massachusetts Uniform Trust Code (MUTC).  Both bills were ultimately reported out of committee favorably today.  These two pieces of legislation have been at the forefront of the BBA’s public policy agenda for years and represent the culmination of the efforts of task forces and a significant number of stakeholders.  We are encouraged that both bills have begun to move, particularly during such a busy and pressure-filled week for the legislature.

As of today, just 80 days remain until the estates portion of the MUPC takes effect; the guardianship portion became effective on July 1, 2009.  A delay in passing both the MUPC technical corrections and the MUTC legislation will result in unnecessary compliance costs, while also putting greater strain on an already overburdened Probate & Family Court.  The Court has been working around the clock to prepare for the implementation of the MUPC and any delays will only undermine their efforts to achieve a smooth transition.

Both bills address some of the shortcomings of the Commonwealth’s current trusts and estates statutes.  Although the two pieces of legislation are neither flashy nor easy to explain to non-lawyers, both are much-needed, commonsense measures seeking to ensure that soundness and equity prevail in Massachusetts law.  It is critically important to the bench, bar and the public that the legislature acts soon.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

Chapter 11 Bankruptcy Venue Reform Gains Momentum

This week, Wilbraham-based Friendly’s Ice Cream Corporation announced that it would close 63 locations as it seeks to reorganize under Chapter 11 bankruptcy protection.  Friendly’s has a long history in Massachusetts, starting with its founding in Springfield in 1935.  Despite its local roots, Friendly’s joins a growing list of Massachusetts companies – including Polaroid and Evergreen Solar – who have filed for bankruptcy protection in Delaware.

Once upon a time companies were required to file for bankruptcy where their corporate headquarters or corporate assets were located.  Then Congress expanded those choices to also include where the company is incorporated or the place a corporate affiliate has previously filed.  While the expanded statute gives courts the power, on request, to overrule venue choice if it is inconvenient or unfair, an employee trying to save her job or pension is ultimately unlikely to petition the courts.

Since 2005, federal legislation to curb venue shopping has been filed and H.R. 2533, The Chapter 11 Bankruptcy Venue Reform Act of 2011 was introduced again this session.  The bill would require corporations to file for bankruptcy protection in the judicial district where they have their principal place of business.

Supporters of the bill say that companies should be forced to reorganize close to home, so that local employees and creditors can more easily participate in the bankruptcy process.

Opponents have pointed to the fact that anyone can file a motion for change of venue.  In reality, doing so is not only inconvenient but expensive.  In previous sessions, a notable opponent was former Delaware Senator Joe Biden.  This session, the Bar of the City of New York has opposed the bill.  Both Delaware and the Southern District of New York seem to enjoy a monopoly on these types of cases.  It is said that an overwhelming majority of these cases are filed in those two districts.

Early indications suggest that this legislation may actually have the momentum to pass this session.  In September, the House Subcommittee on Courts, Commercial and Administrative Law held a hearing on the bill.  Among those who testified was Chief Judge Frank J. Bailey of the United States Bankruptcy Court for the District of Massachusetts.  Chief Judge Bailey testified on his own behalf, travelling to Washington D.C. at his own expense, and pointed to the serious unintended consequences of the current law.

The BBA is reviewing this legislation.  The Bankruptcy Section has already voted to support the legislation and it should be on the BBA Council’s agenda next month.

By filing hundreds or thousands of miles away from their headquarters, companies disenfranchise employees, marginalize pensioners and disregard stakeholders who have invested heavily in the corporation.

Big corporations like Friendly’s really are part of their local communities – they employ residents, contribute to the local economy and pay taxes to local governments.  Communities, like Wilbraham, take pride in their association with and commitment to their businesses.  Bankruptcy venue shopping is not just a loophole – it violates a community’s trust.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Legal Services Corporation Needs a Lifeline

This week BBA President Lisa Goodheart sent a letter to Senator John Kerry and the rest of the Massachusetts Congressional Delegation requesting support and protection for the funding of the Legal Services Corporation (LSC).  As written about before on Issue Spot, support for legal services is a core part of the BBA’s mission and is a vital service to some of the most vulnerable people in society.

Funding for civil legal assistance in Massachusetts is a partnership between federal, state and local governments as well as private attorneys and foundations.  The current economic climate has led to a substantial drop in resources for LSC programs due to both a 50 percent decrease in IOLTA revenue over the past two years and budgetary constraints among state and private contributors. All this comes at a time of unprecedented need – more than 1 in 5 Americans now qualify for legal assistance.

Legal services funding is not merely a spending issue.  LSC-funded programs in Massachusetts provide critical legal services to individuals who need it most, including victims of domestic violence, veterans returning from combat, those coping with the after-effects of natural disasters, persons with disabilities, and individuals undergoing foreclosures and evictions.  LSC funds four programs in Massachusetts – 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 – all of whom have already absorbed massive cuts to their budgets and staff.

Why is LSC funding in jeopardy now?  It all goes back to August when Congress, reaching a last-minute compromise on the debt ceiling crisis, established the Joint Select Committee on Deficit Reduction.  The Committee is made up of 12 lawmakers – including Massachusetts Senator John Kerry – who have been tasked with finding $1.2 trillion in budget savings by November 23rd.  If the Committee is unable to come up with the necessary savings, the difference will be made up by automatic spending cuts, divided evenly among domestic and defense programs.

Senator John Kerry and, in general, the Massachusetts Congressional Delegation have been supportive of legal services.  They understand that legal aid attorneys provide meaningful representation to people who have no place else to turn.  Despite the presence in Congress of legal aid advocates who appreciate the importance of legal services, the fiscal situation before the Committee is daunting.  Funding cuts threaten to adversely impact our neighbors, friends, families, and communities.  We need to do everything we can to ensure that the citizens of Massachusetts are able to receive the legal assistance they need.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association