Initial Read on the FY18 Budget

We’re still in the early stages of discussions over the state budget for Fiscal Year 2018 (FY18), which starts on July 1, but this is nevertheless a good moment to review what’s gone on thus far.

The first official step in the process is for the Governor and the two houses of the Legislature to agree on a figure — known as the consensus revenue estimate — that represents the amount of money they expect the state to collect in taxes during the coming fiscal year.  This time, the figure is about $27.07 million, or 3.9% (just over $1 billion) more than they’re estimating in the current year (FY17), which is now more than half over.  If the estimate comes to fruition, it will represent a significant increase in revenue growth over the current and past fiscal years, during which state coffers have expanded at a rate of about 2.3%.

As reported by the State House News Service, Senate Ways and Means Chairwoman Sen. Karen Spilka said in a statement, “This conservative estimate reflects our cautious optimism about the Commonwealth’s economic position. Throughout the fiscal year 2018 budget process, we will continue to carefully monitor revenue performance to build a fiscally responsible, balanced budget that invests in the health and prosperity of people and communities across the state.”

Kristen Lepore, Secretary of Administration and Finance under Governor Baker, used the word “modest” to describe the projected growth, which she told State House News is “in line with testimony we heard in December” at the annual consensus revenue hearing.  And according to Sen. Spilka’s House counterpart, Rep. Brian Dempsey, “This Consensus Revenue agreement reflects continued stable growth and is in line with current economic trends.”

Unless there are major changes in the state’s fiscal outlook over the next few months — such as last spring, when legislators had to react, in the middle of the budget-drafting cycle, to news that revenues were plummeting well below projections — that figure of $27.07 million will be the final revenue amount that each of the three stakeholders (the Governor, the House, and the Senate) will use to draft their individual budget plans.

In fact, Governor Charlie Baker has already put forward his proposal, filing a bill with the House that’s known, in odd-numbered years, as H. 1, or “House 1.”  (In even-numbered years, it’s called H. 2.)  Although the two houses’ budget-writers are free to tear up the Governor’s budget and pursue their own priorities as they wish, that bill and the consensus revenue estimate set a tone for the debate that unfolds thereafter.

Here’s what we know so far on three of the BBA’s long-standing budget priorities:

Trial Court funding

The Governor provided for a 1% increase in appropriations for the Judiciary, for a total of $646.8 million.  This is slightly less than the courts’ maintenance-budget request of $649.5 million — that is, the amount they would need in order to merely continue providing the same level of services that they’re able to this year.  But the Legislature has been generous with court funding in recent years, and there is reason to hope that the budget that emerges from that body will fund the judiciary at a higher level — as has been the case lately.

Housing Court expansion

For the second year in a row, the Governor made funding available in his budget to cover an expansion of the state’s effective and efficient Housing Court, to provide statewide jurisdiction.  As we’ve written here previously, barely two-thirds of the state’s population currently has access to the Housing Court, which offers expert judges, trained mediation specialists, and a streamlined process dedicated to housing, homelessness, and municipal code-enforcement issues — not to mention that it boasts the lowest cost-per-case across all court departments.  We couldn’t get this expansion all the way through the budget process last year (it was dropped by the conference committee), but we are certainly trying again this year, and H. 1 is a good start.

Funding for civil legal aid

Walk to the Hill, held three weeks ago, is the big annual kick-off in the drive to support the line-item appropriation for the Massachusetts Legal Assistance Corporation (MLAC) — the state’s leading provider of funds for legal-services agencies.  If this year’s event is any indication, there’s reason for great optimism.  We have a great story to tell about civil legal aid, based on the findings of a 2014 BBA task-force report that demonstrated the positive return on investment the state achieves from such expenditures, which help low-income residents struggling with problems like domestic violence, threatened evictions, and an inability to secure the federal benefits to which they’re entitled.

But we will need to rely on that evidence, as well as the broad support enjoyed by civil legal aid both in the legal community — as shown by the 700+ attorneys who showed up at the State House for Walk to the Hill, to rally for MLAC and speak with their legislators — and in the Legislature — which has consistently provided increases over the past few years to try to close the justice gap that results when the number of people seeking legal help far outstrips the ability of the agencies to meet that need.  (Our report estimated that 64% of qualified applicants for legal aid must be turned away.)

I say we’ll need to rely again on those resources, because the Governor’s budget calls for only a 1% in the MLAC line-item (as with the judiciary — see above).  That comes out to $18.18 million, at a time when we are asking for an increase to $23 million.  We’ve done it before, though: The Legislature has come through with an aggregate 20% increase in funding over the past two fiscal years — a time when, as noted above, revenues have barely grown by 2% annually.

The next major step in the process doesn’t come until mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate.  And then the ball will be in the Senate’s court until they pass their own version of a budget in May.  Next comes a conference committee to reconcile the inevitable differences between the two houses’ budgets.  And when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override.

Along the way, there will be plenty of opportunities for the BBA, and other groups, to advocate for their priorities.  So watch for action alerts on the budget coming from us, because we will likely be seeking your help in reaching out to your elected representatives in conjunction with our efforts.  And watch this space for regular updates, as the debate unfolds.  In the meantime, if you’re interested in a little more detail on the process, you can check out this Issue Spot podcast, which focuses on MLAC funding.

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

State House Forecast for Civil Rights and Civil Liberties

A recent discussion at the BBA addressed the question of what the new 2017-2018 legislative session may hold in store for legislation on civil rights and civil liberties.  We were joined by a truly all-star panel, starting with our moderator, Kate Cook of Sugarman Rogers, who currently co-chairs our Civil Rights & Civil Liberties Section, and who was previously Governor Deval Patrick’s chief legal counsel.  The event also featured:

These four insiders came by to offer their assessments of the hot topics set to be debated at the State House over the next two years (well, year-and-a-half, really, since formal sessions end on July 31, 2018).

For Sen. Eldridge, the focus will be on criminal-justice reform and immigration.  In his continuing role as co-chair of the Harm Reduction Caucus, the Senator will be in a good position to help lead the dialogue on criminal justice, and among his priorities are reform of the bail system, elimination of racial disparities, and repeal of mandatory minimum sentences for drug offenders.  He has also filed the Safe Communities Act, which would prevent the state from offering any support for a potential Muslim registry, prohibit agreements with the federal government to deputize local law-enforcement as immigration agents, bar local officers from taking part in immigration enforcement generally, and guarantee basic due-process rights for people detained on civil immigration violations.  Sen. Eldridge mentioned that he’d earlier that day participated in a rally in support of immigrants at the Irish Famine Memorial in Boston.

Rep. Rushing had his eye cast toward Washington, D.C.  For him, the new Administration — which was just taking shape at the time of this event, held hours before the controversial executive order on immigration was promulgated — offered both challenges and opportunities, and he suggested that there may come a time when the proper response will be for the state to openly defy federal mandates, just as Massachusetts did when runaway slaves arrived here.

Rep. Harrington offered a note of caution on what her colleagues had said, pointing out that the Supremacy Clause makes it difficult for a state to pass a law declaring its intention to disobey a law of Congress — especially when federal dollars are at stake.  Still, she found common ground with Sen. Eldridge on criminal justice, noting that the bail system is part of the comprehensive review of the Massachusetts system being conducted by the Council of State Governments (CSG) Justice Center.  She also said that evidence in support of restorative justice programs, which Sen. Eldridge has championed, is “very compelling”, and she offered her support on not only bail and mandatory minimums but also diversion of cases outside the system, and limits on solitary confinement.

To Rep. Harrington, shared parenting is also a civil-rights issue, encompassing the rights of children to have good relations with both parents.  The focus, she said, should always be on the best interests of the child.  She also brought up the state’s new marijuana-legalization law, noting that bills to make changes to the language passed by voters in November have been filed by seemingly every other legislator.  Her e-mail inbox, she said, was “rolling in marijuana bills” (get it?)

Rep. Rushing pointed out that Blacks use marijuana at the same rate as other groups yet have been convicted on such charges at rates many times higher than others.  In the implementation of the recent medical-marijuana law, he also sees a possible bias — one that has disadvantaged people of color who apply for licenses as providers.  He would like to see the new Cannabis Control Commission reach out to communities that have been historically harmed by marijuana prohibition and, a historian himself, he suggested looking back to the 21st Amendment ending the alcohol prohibition — the last time a controlled substance was legalized — for guidance.

Like Sen. Eldridge, the ACLU will have its eyes on criminal justice and immigration this session.  Their Fundamental Freedoms Act would protect Massachusetts residents from government monitoring by barring state participation in any discriminatory registration system based on religion, national origin or immigration status, and enhancing safeguards for protestors from information-gathering about them based only on protected First Amendment activity.  As Rahsaan Hall put it, “expressions of dissent are patriotic,” and such dissent is a founding principle of America.

He took some issue with the process being followed by the CSG group on criminal justice, calling it “a little short-sighted” in its focus on reducing recidivism without giving due consideration to how people enter the system.  The pressure is thus on advocates to build on that, such as by addressing racial disparities — which, he argued, will remain a feature of the system until direct action is taken.

To this, Rep. Rushing said he’d filed two bills calling for greater collection and uniformity of data.  Rep. Harrington asked how best to tweak laws that aren’t facially discriminatory yet have that outcome.  If the system is structurally biased, that’s what happens, said Rep. Rushing, who said fixes can include requiring police officers to hand out business cards upon any public interaction, providing better training of officers in handling such stops, and video-recording all stops.

Although Black and Latino residents make up only 21% of the state’s population, they comprise 75% of state inmates serving drug-related mandatory minimum sentences.  We must, Hall said, identify and analyze the drivers behind those figures.  And to those who would point to Massachusetts’ low incarceration rate compared to other states’ to make the case against reforms, Hall alluded to the U.S.’s position as an extreme outlier among developed nations, warning, “Let’s not celebrate being the best of the worst.”

Look at the effect of school-zone laws — tacking on additional mandatory jail time for drug offenses near school, parks, and playgrounds — said Rep. Rushing, calling it “straight-out racial punishment in cities.”  As an example, 90% of Boston land falls within such a zone, far more than in suburban and rural communities.  And let’s dispense with viewing marijuana as a gateway drug for users, he said.  Instead, it’s a gateway drug for sellers, “who’ll sell [marijuana users] something else as soon as they can” — something “incredibly dangerous”.  According to Rep. Rushing, taxing it like alcohol will end that black market; taxing it more heavily, like cigarettes — that is, as a way to get users to stop — will not.

For her part, Rep. Harrington remained unmoved.  Legislative hearings, which she attended in her role on the Judiciary Committee, offered no convincing evidence for legalization, and the Legislature’s delegation to Colorado, which preceded the Commonwealth down that path, learned of a panoply of problems in that state.  For example, we have no measurement tool for drivers impaired by marijuana, adults will get high at inappropriate times (such as while watching their kids) simply because it’s now “OK”, and the lack of any restriction on marketing edible doses will also have negative consequences.  In the end, for her, this question is not even a civil-rights issue.

Cook closed by asking the panelists how else they were seeking to protect civil rights and Massachusetts values.  Hall spoke about electronic-privacy protections and access to reproductive health care.  Rep. Rushing mentioned his efforts to repeal a variety of unconstitutional statutes that remain in the Massachusetts General Laws and thus can potentially find new life — such as existing anti-abortion laws that could go back into effect if Roe v. Wade were overturned.  Rep. Harrington returned to the immigration issue, saying we have to “walk a tightrope” between enforcement and protection of rights … at least until the federal government takes responsibility for it.  And Sen. Eldridge brought up protection from the impact of climate change and development of renewable energy.

We came away with a better understanding of the debates to come in Massachusetts.  Meanwhile, just in the days since this discussion, events at the federal level have conspired to put civil rights and civil liberties front and center of a national debate as well.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Walking for Justice

Another Walk to the Hill is in the books, and while it may be something of a cliché to say that the speakers, organizers, and participants outdo themselves every year, that proposition certainly seemed to be right on the money last Thursday for the 2017 edition.

Don’t believe it?  Check out our new Issue Spot podcast on Walk to the Hill to hear from some of the participants, some of the volunteers who showed up to meet with their elected representatives at the State House, and one State Senator who spoke to us about the critical importance of constituents showing up at legislative offices to share their personal stories and their insights about the importance of state funding for civil legal aid.

Speaking of showing up, about 700 lawyers came out on a balmy January day, to gather in the Great Hall.  (Many were delayed, in entering the State House, by a malfunctioning metal detector at the main entrance—leading some to joke that the Walk to the Hill crowd had broken it by dint of their sheer numbers.)  It is said that this is the largest annual advocacy event of its kind in Massachusetts, and that tremendous turnout, year after year, has helped build a solid base of support among Senators and Representatives.

You can see the effect of that support reflected in the numbers: Over the past two fiscal years, the Massachusetts Legal Assistance Corporation (MLAC), the state’s largest provider of funding to legal-services organizations throughout the Commonwealth, has seen its line-item in the state budget grow by 20%, from $15 million to $18 million—even at a time of great fiscal constraints, when most other line-items are growing much more slowly, if at all.

BBA President Carol Starkey:
“At the Boston Bar Association, we’re ready to fight” for civil legal aid.

Another reason for that increase?  The BBA’s own Investing in Justice report, which demonstrated in 2014 the positive return on investment the state achieves from civil legal aid.  For example, for every $1 spent helping fight against wrongful evictions and foreclosures, Massachusetts saves $2.69 in shelter, health care, foster care, and law enforcement costs.  In addition, every $1 spent on legal aid for survivors of domestic violence results in $2 in medical and mental health care savings, and every $1 spent on legal aid attorneys working to secure federal benefits yields $5 in federal economic benefits to Massachusetts residents.  That report was the culmination of the hard work of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, as well as the three independent economic consultants who conducted the underlying analysis.

That report has been the foundation for advocacy ever since, and BBA President Carol Starkey reminded those in attendance of its key findings—and of the “necessity for all of us to come together to help low-income families and individuals.”  Civil legal aid, she said, “helps keep the basic, fundamental promise of justice for all of us—not just a few of us.”  And she warned that advocates may soon have to fight off proposals at the federal level to slash funding for legal aid, including for the Legal Services Corporation, the nation’s leading provider of money for legal aid. “At the Boston Bar Association, we’re ready to fight,” President Starkey pledged.

SJC Chief Justice Ralph Gants always addresses the audience at Walk to the Hill, usually bringing the majority of the high court with him, and this year was no exception.  To the question of why legal aid deserves to continue receiving significant increases in funding, he suggested responding, “We expect the coming year to present unprecedented challenges to the rule of law and to the health and well-being of the poor and the vulnerable.”

Chief Justice Gants delights every year in finding a new data point to illustrate just how small the state’s appropriation for civil legal aid is, in the context of a $40 billion budget.  Perhaps spring training is already on his mind, because this year’s example came by way of the hometown first-baseman’s contract: “That fight will cost just $23 million—which is roughly what the Red Sox are paying Hanley Ramirez this year.”

The President of the Massachusetts Bar Association, Jeff Catalano, said, “This is not just a walk for funding; this is a walk for justice.  Because a society where poor people can’t get access to legal representation to assert their rights is truly not a just society.”

MBA President Jeff Catalano:
“This is not just a walk for funding; this is a walk for justice.”

Finally, the crowd heard from a legal-services client, Bill O., who told the compelling story of how his attorney at Greater Boston Legal Services (GBLS) restored his MassHealth coverage, which was taken away at a time when he was battling a life-threatening illness.  “It was like a miracle,” Bill recalled, “because I could not afford those incredibly-expensive drugs on my own.  And I was so, so relieved, it was physical.”  There was no way, he said, that he could’ve achieved the same result himself—no way he could’ve sifted through all the paperwork, in spite of a career spent in health-care.  Bill told the hushed crowd, “I wouldn’t be standing here today, I don’t think, telling this story, if it weren’t for the help of Nancy and GBLS.”

After that moving and energizing kick-off ceremony in the Great Hall, the 700 lawyers-turned-activists took their marching orders from Jacquelynne Bowman, executive director of GBLS, and filtered out to offices all over the State House, to spread the word to their respective legislators and make the ask: a requested $5 million increase in MLAC funding, to $23 million.  Among the many, the two bar presidents, Carol Starkey and Jeff Catalano, happen to be represented by the same State Senator, Michael Rush, who raced back from a Senate session to sit down with them as they asked for his help in securing that $23 million.

That’s still not enough, unfortunately, to entirely close the gap identified by the BBA Task Force, with an estimated 64% of qualified applicants for legal assistance turned away by providers solely due to lack of resources.  But it would be a big step.  And for those thousands of additional clients who could be represented if that money comes through, it may mean being able to stay in their homes, escape from an abuser, or gain the federal benefits to which they’re rightfully entitled.  That’s why we come back each year—to fight for help for those who need it the most.

And make no mistake: it will be a fight once again.  Walk to the Hill typically arrives toward the start of the budget cycle, and this time it was one day after Governor Charlie Baker released his budget proposal for Fiscal Year 2018 (FY18), which begins on July 1.  The Governor’s plan, delivered to the Legislature as House Bill 1 (or “H. 1,” as it’s affectionately called), would set the MLAC appropriation at $18.18 million, or 1% above last year’s level—likely not enough even to maintain the same level of legal services as this year.

But the ball is now in the Legislature’s court.  The House Ways & Means Committee is already working on the numbers for their budget, which will be released in April.  (For more on the budget process in general, and how it affects our lobbying for MLAC, check out our recent podcast, with the unfortunate—but nevertheless accurate—title “Geeking Out on the State Budget.”)  You will certainly be hearing more from us in the months to come about MLAC and our other budget priorities…

—Michael Avitzur
Government Relations Director
Boston Bar Association

S.J.C. Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

In the five years since scandal enveloped the state’s Hinton Drug Lab—after the misconduct of Annie Dookhan was discovered—we’ve covered the fall-out many, many times.  Last week, the Supreme Judicial Court (SJC) rendered its highly-anticipated “Bridgeman IIdecision addressing the crisis.  But as with any story on the Dookhan cases, a little history is in order first…

Those links above collectively tell the story of a rogue chemist who mishandled drug samples, failed to conduct tests on samples she nevertheless labeled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, and falsified evidence logs and reports, among other misdeeds.  Dookhan was sentenced to three-to-five years in prison in 2013, after pleading guilty to obstruction of justice, tampering with evidence, and other charges, and she was released early last year.  Case closed.

Except that even now, upwards of 20,000 defendants are still living with the fallout from criminal records stemming from adverse dispositions in cases in which Dookhan was a chemist of record.  These are people who were convicted or pled on the basis of what we now know to be tainted evidence, and they are living with the consequences: difficulty obtaining employment, public housing, benefits, drivers’ licenses, and so on.  Many faced harsher punishment later because a Dookhan conviction was a predicate offense.  For some, their custody of children, or even their very presence in the country is at stake.

But the courts have struggled to find a solution: How to offer justice across so many cases, short of simply vacating all remaining charges in one go—the so-called global remedy that the SJC has resisted?

David Meier of Todd & Weld was named by then-Governor Patrick to lead a task force that would seek to identify all the “Dookhan defendants.”  He ultimately produced a list of 40,323 individuals … but that was incomplete and based on only partial information.

Special magistrates—including current BBA Council member Judge Margaret Hinkle (retired)—were appointed by the Superior Court to handle hundreds of cases but were able to process only a fraction of the full universe, with a focus on those who were then still in custody.

Last year, after a comprehensive list of affected defendants was finally compiled and agreed upon by all stakeholders, notice was sent to all of them, at their last known addresses, by the District Attorneys in each case, advising of their rights to appeal based on Dookhan’s influence on their cases.  But the response has been limited.

Meanwhile, Bridgeman v. District Attorney for Suffolk County was making its way to the SJC, not once but twice.  In May 2015, in the first Bridgeman case (“Bridgeman I”), the SJC ruled that Dookhan defendants cannot be charged with more serious crimes if given a new trial and, if convicted, cannot be given a harsher sentence than was originally imposed.

By last October, the case was back before the SJC, with the Court seeking amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases … Dookhan signed the certificate of drug analysis as the analyst … are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

The BBA filed a brief calling for a global remedy that places the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.

Our interest was twofold: to facilitate access to justice for all defendants in criminal cases, and to ensure the timely, fair, and efficient administration of justice.  Not only would a global remedy secure justice for the defendants, but it would also start to relieve the significant burden on a justice system that was otherwise facing the prospect of addressing more than 20,000 unresolved cases one-by-one.  The burden should rest with the Commonwealth rather than these individuals, we argued, because the widespread and systemic nature of Dookhan’s misconduct, as a state employee, implicates public confidence in the government and justice system.

Our brief stated that while the courts have worked admirably and diligently to handle these cases, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ [the SJC’s word] misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable and inconsistent with due process and undermines the integrity of the criminal justice system.

In a majority opinion written by Chief Justice Ralph Gants, the Court once again declined last week to adopt a sweeping global remedy, ordering instead a three-step protocol, to be implemented by Justice Margot Botsford as single justice:

In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.

In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.

In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.

If the number seeking counsel is so large that counsel cannot be assigned despite CPCS’s best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

So … not entirely what we had advocated for but nonetheless a significant step toward that comprehensive resolution—while holding out the potential for lifting the remaining cloud over the Dookhan defendants and allowing them to move on with their lives.  The Court agreed with our argument that continuing to place the burden on these defendants to come forward one at a time—to say nothing of the burden on the courts—is no longer a viable option, in spite of the DA’s arguments that the notice they sent served its purpose and no extraordinary action need be taken, and that a different course of action, five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.

The DA’s were given 90 days to inform the single justice in which cases they “could produce evidence at a retrial, independent of Dookhan’s signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment.”

Justice Geraldine Hines, for her part, filed a dissenting opinion, in which she stated that

the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine” … the continuing violation of the rights of the defendants affected by Dookhan’s misconduct and the damage to the integrity of our criminal justice system demand no less.

The three-step protocol, she said,

is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan’s tainted evidence. In short, the court’s solution is too little and too late. The only fitting end to this blight on the integrity of our criminal justice system is vacatur and dismissal with prejudice of the convictions of all relevant Dookhan defendants.

It should also be noted that Justice Barbara Lenk, joined by Justice Kimberly Budd, trod a middle path in a concurrence with the majority, expressing her impatience:

I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way. …

I share the dissenting Justice’s frustration with the unacceptably glacial systemic response to date and join in her view that extraordinary measures are now in order. … [H]owever, I regard the protocol announced today … as promising to be such a measure, but only if implemented in a manner that countenances no further delays. … [T]here must be strict compliance with its stringent timelines and requirements.  Only this will forestall the need for a “Bridgeman III” and different measures.

And indeed, the single justice has already held a hearing earlier this week, to begin to implement the new protocol.

As you can see, the Dookhan scandal is one that has taken many turns in the past five years.  When will the last chapter finally be written for all the defendants whose lives she upended?  We still can’t say … but after last week’s ruling, and this week’s hearing, that day at least feels closer.

— Michael Avitzur
Government Relations Director
Boston Bar Association

AG Healey Spells out Priorities at Council

She was a member of the BBA Council from 2012 to 2015 and also sat on the Executive Committee.

She co-chaired our Civil Rights & Civil Liberties Section.

Two years ago, she was the keynote speaker at the BBA’s Law Day Dinner, where she spoke warmly of having “grown up” professionally through her BBA involvement, attributing many of her core values to what she learned as a member.

And this past week, Maura Healey returned to the Council as the state’s Attorney General, having been elected to that office, after nearly seven years on AGO staff, in 2014.

Since she took over what she calls The People’s Law Firm, her office has successfully rolled out several major policy initiatives, including the Earned Sick Time law and the Domestic Workers’ Bill of Rights.  She also helped shape the Transgender Rights, Pay Equity, and Pregnant Workers Fairness bills.  And on that last issue, she has led by example—providing six weeks of paid family leave for all employees, making the AG’s Office the first state agency to offer paid parental leave.

The AG spoke to Council members at length on Tuesday about her priorities and the work of the Office, but she started by stating that, given the great uncertainties about what it is to come politically, there has never been a more important time in this country for the role of lawyers, or for the rule of law.

In that assessment, she sees a role for the private bar especially.  AG Healey cited a hotline she established in November, for people to use in reporting acts of hatred and bias, and she thanked BBA President Carol Starkey for offering to help in lining up volunteers to handle any cases that emerge.

In addition, we are also partnering with the Attorney General, as well as legal services organizations, to identify other emerging legal needs in the community, particularly as they pertain to the increase in concerns surrounding immigration.  The AG’s office continues to monitor developments in federal immigration policy, to determine what impact they may have on Massachusetts residents.

In the AG’s view, this is part of what it means to run The People’s Law Firm: standing with those who are marginalized or have limited means.  She sees her office as a problem-solver.  Sometimes those problems can best be addressed through litigation; other times, leveraging the expertise and the resources of her office can produce a resolution without going to court.

Another area where we are working from the same playbook as the AG is criminal-justice reform.  She told the Council that policy-makers need to “lean in”, seizing this moment to produce change that goes beyond what has been recommended by the Council of State Governments group that has been studying the issue the past year.

She specifically cited racial disparities and data collection as areas where greater effort is called for, and she expressed hope that the scope of the debate to come on Beacon Hill this year will extend beyond merely mandatory minimums—which the BBA has long opposed.  This would include keeping people out of prisons and jails where possible—and where not, properly treating those who are incarcerated and offering them meaningful preparation for re-entry to society.

AG Healey also highlighted some of her other priorities for 2017:

  • Her office has also been conducting workers’-rights clinics for employees who believe they’ve been treated unfairly. She’s especially concerned about immigrants and other vulnerable populations.  To spread awareness of this educational opportunity, her office has been giving notice about the clinics whenever a private right of action is issued in an employment case.
  • The state’s on-going opioid crisis demands attention, and AG Healey has advocated for greater funding and expansion of education and outreach to both parents and children. It has also created a need for more pro-bono representation in guardianship cases—for example, when a grandparent must step in to raise a child.
  • Economic opportunity and security will continue to be a focus of the AG’s Office. She’s particularly concerned about debt-collection cases, and the tremendous number of defaults occurring in District Court, which only causes more problems for debtors down the road, with obtaining housing, employment, and loans.
    • To address the problem, and quell predatory practices, her office has recently begun a pilot program at the Boston Municipal Court—a single session, once a week, where trained attorneys meet with debtors to review cases.
    • Notice is sent to defendants ahead of time, advising them of this opportunity, and already, in just a few months, the program is showing results, with a 50% increase in attendance at hearings (hence, no default) and more than 100 participants having avoided default.

AG Healey also took questions from members, touching on subjects that included:

  • Climate change—she plans to step up, probably alongside colleagues from other states, if she believes the EPA is backing off on its regulatory enforcement. This is an issue she hears about at town-hall meetings around the state, and one in which she feels a moral obligation to confront potential economic consequences.
  • Acting in concert with other AG’s—again, in response to any regulatory retrenchment in a variety of other areas. She sees these offices as the first line of defense against such roll-backs, as well as potential unconstitutional practices.  She described waking up every day and asking whether her office has standing to intervene in such instances.  Witnessing what she described as voter suppression in other states (though not here) has her wondering whether her office can help.

Along the way, the AG took pains to credit her staff, and she thanked the bar for providing their expertise on issues like the equal-pay law and regulations on earned sick time for employees.

We very much appreciated hearing from Attorney General Healey, and we look forward to next month’s Council meeting, which will feature an appearance by SJC Chief Justice Ralph Gants.  Stay tuned…

— Michael Avitzur
Government Relations Director
Boston Bar Association

Walk to the Hill 2017: Rallying for Civil Legal Aid

As you may know, our Legislative and Public Policy Manager, Jonny Schreiber, has moved on, so I’m stepping up to pen this week’s Issue Spot.  What better way to honor Jonny than to choose as this week’s subject Walk to the Hill, the annual lobby day for civil legal aid?  Of course, funding for civil legal aid is always one of the BBA’s annual priorities, but thanks to the work Jonny did in helping shape the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, we have an even stronger argument to make.

And what better place to make that case than at Walk to the Hill on January 26, from 11 to 1?  This event—sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, regularly draws hundreds of attorneys to the State House’s Great Hall, and we are hoping for a record turnout this year!

There will be speeches from BBA President Carol Starkey, the president of the MBA, clients with stories of how they’re lives were changed with the help of a legal-aid attorney, and SJC Chief Justice Ralph Gants—who each year tries to outdo himself in coming up with examples to demonstrate how a relatively-small increase in the overall state budget can have such a meaningful impact on the neediest among us.

Of course, civil legal aid is an issue that affects every legislative district in Massachusetts: Every legislator has many constituents who not only qualify for legal aid (typically based on age or income) but rely on it at critical moments, such as when facing eviction or trying to secure their rightful benefits.  As a result, the level of support for civil legal aid in the Legislature is very high, and Walk to the Hill always brings out many elected representatives.

As for the rest of them, we are counting on you to help remind, and educate, them about the issue, and in particular the need for increased funding.  After the initial registration and the speaking program (and did I mention the boxed lunch?), attorneys fan out to various legislative offices in the State House to meet with their respective Senators and Representatives.

Are you unsure about sitting down (or, in some cases, standing up, because there are more attorneys than chairs!) to talk with your elected officials about legal aid?  We’ve got you covered: We’ll send you off from the Great Hall with guidance on talking points and a packet full of information, both for you and for your representatives.

But just to get you started thinking about it, here are the key findings of our Task Force’s 2014 report (full text here):

  • 64% of individuals who qualify for legal aid (for a family of four, that means an income of less than $30,000 annually) and make it through the wait (roughly 50% of callers give up after being on hold for hours) are nevertheless turned away, solely due to a lack of adequate funding.
    • That means of thousands are turned away every year, which is especially concerning in areas of basic need such as housing evictions and escaping domestic violence.
  • Court procedures are bogged down, and justice is frequently delayed or denied, due to the glut of pro se litigants.
  • For every dollar spent on legal aid in the areas of domestic violence, federal benefits, and housing, the state and its residents see returns of $2 to $5, mostly on back-end savings such as shelter, police, and medical costs.

On the strength of these findings, the BBA, the EJC, and our other partners in this effort were able to secure a 20% increase in state funding for MLAC over the past two years, from $15 million to $18 million.  It is a measure of how effective our advocacy has been, and how much legislators and the Governor care about this issue, that these gains have come at a time of great fiscal pressure, when most other line-items were seeing limited, if any, increases.

Still, the budget forecast for the coming year is looking no better, and we must keep up our work.  For Fiscal Year 2018, which starts on July 1, we are asking for a $5 million increase, which would bring the MLAC line-item appropriation up to $23 million.  As it happens, the Governor will be releasing his budget proposal (which is the first big step in the budget process) the day before, so we’ll have a better idea by then of where we stand as the debate shifts to the Legislature.  (By the way, if you’d like to learn more about Walk to the Hill, funding for MLAC, and the budget process generally, check out our recent Issue Spot podcast on these topics, featuring me and Jonny Schreiber.)

What’s that?  A lunch program and visits to legislative offices aren’t enough for you?  Then why don’t you also join us for our annual Walk to the Hill breakfast, sponsored by our Solo & Small Firm and New Lawyers Sections.  The breakfast (that’s two free meals in one day!) is held here at 16 Beacon from 8.30 to 10.30am, so you can eat, network, and get psyched up for a day of advocacy.

Now that you’re armed with all this info, we hope we’ll see you on January 26th for the biggest Walk to the Hill yet.  If you’re able to attend, don’t forget to fill out your exit report on the way out, so we can tally up all the legislative visits and better plan our strategies for the rest of the campaign!  If you can’t make it, watch for more updates in this space, and in other BBA alerts, about how you can weigh in with your Senator and Representative.

We look forward to keeping you up to date on all the latest developments in the FY18 budget campaign.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Fond Farewell

Dear Members,

I write with mixed emotions to let you know that I will be leaving the Boston Bar Association, effective January 6 after accepting a job as Senior Policy Analyst for Iron Mountain.  I am excited to be taking on new challenges there as part of Iron Mountain’s new in-house government affairs team, but also sad to be leaving my position of Legislation and Public Policy Manager after 3.5 years.

I want to thank all of the members, the staff and leadership of the BBA, and all of the groups and organizations with whom we work closely.  I have had amazing opportunities to work on so many fascinating, intellectually stimulating, and important issues and initiatives in my time here, such as our nationally recognized civil legal aid task force report, amicus briefs that made winning arguments before the US Supreme Court and Massachusetts Supreme Judicial Court, and countless comments to the courts and others on rules impacting day-to-day legal practice.

While all of that has been interesting and both personally and professionally rewarding, its value does not come anywhere close to all of the great relationships I have made.  I am amazed on a daily basis by our members who so willingly give freely of their time and legal expertise for the greater good.  The work ethic, talent, and generosity of everyone involved in BBA is truly inspiring and is definitely what I will miss most.

Over the coming months, I am sure the BBA will hire a great replacement who will take the Association’s government affairs function to new heights.  In the meantime, your go-to for all things GR is Director of Government Relations and Public Affairs, Michael Avitzur (mavitzur@bostonbar.org, 617-778-1942).

All the best,

Jonny

Jonathan Schreiber
Boston Bar Association
Legislation and Public Policy Manager

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

‘Tis the Season to Focus on Civil Legal Aid

Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid!  As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services.  These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence.  As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.

On Tuesday, we were excited to be joined at our Council meeting by Equal Justice Coalition (EJC) Chair, WilmerHale Partner Louis Tompros.  Louis is in his first year as Chair of the Coalition, which consists of the BBA, Massachusetts Bar Association (MBA), and Massachusetts Legal Assistance Corporation (MLAC).  The group advocates for MLAC funding, which in turn provides the bulk of the state’s civil legal aid through a dozen organizations including most notably in our area, Greater Boston Legal Services.

Louis Tompros Speaking to BBA Council

Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid.  In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.

Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice.  We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.

We are excited for this year’s civil legal aid funding campaign, kicking off very soon.  Things are already gearing up, as Tompros explained to our Council.  MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times.  EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they gave more limited advice, information, and trainings to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House.  There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders.  Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  They’ll be glad to hear from you.


Andrew Cohn Speaking on Legal Aid

Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations.  It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.

On his final point, Cohn talked at length about a new initiative we’ve discussed here beforeMassLegalAnswers Online – an internet-based virtual help-line.  The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states.  The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.”  The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally.  Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites.  The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations.  The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.

The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level.  Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest.  They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering.  Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours.  The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.

This site has essentially replaced the old “hotline” model and is a great improvement.  It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out.  The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups.  The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users.  Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.

At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions.  We encourage our readers to check it out and sign-up!

We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association