On Wednesday, five of the six candidates in the Suffolk County District Attorney’s race came to the Boston Bar for a forum in which they fielded questions from two distinguished moderators and the audience.

State Representative Evandro Carvalho, Assistant District Attorney Greg Henning, defense attorney Mike Maloney, former Roca Director and CPCS attorney Shannon McAuliffe and former Assistant U.S. Attorney and MassPort, MassDOT and MBTA General Counsel Rachael Rollins joined us for the forum. Suffolk Law School Professor and former prosecutor Christina Miller and Northeastern University Law School professor Daniel Medwed moderated the discussion.

The candidates responded to questions on topics such as the use of court-ordered sobriety as a condition of probation and how they would help extend positive trends in crime and incarceration rates. The moderators touched on broad policy questions but also focused on some of the “nuts and bolts” issues of managing the largest DA’s office in the state, with a $20 million budget and a staff of more than 200 attorneys, asking what the candidates’ practices would be on seeking cash bail and how they would guide Assistant District Attorneys on charging decisions and plea offers. The candidates were also asked to share their views on how the District Attorney’s Office should handle cases where one or more party may face immigration consequences, and whether ICE should be allowed to make arrests in and around courthouses. And audience-submitted questions included one on how to protect victims and witnesses and ensure their appearance at trial.

A networking reception followed, where members of the audience had the chance to meet the candidates one-on-one. This forum was co-sponsored by the Boston Bar and its six affinity bar partners: the Asian American Lawyers Association of Massachusetts, the Massachusetts Association of Hispanic Attorneys, the Massachusetts Black Lawyers Association, the Massachusetts Black Women Attorneys, the Massachusetts LGBTQ Bar Association and the Southeast Asian Bar Association of Greater Boston.

BBA President Mark Smith, Elysa Wan of the AALAM board, and moderators Professor Christina Miller and Professor Daniel Medwed

Video of the forum is available for viewing online at this link.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Earlier this year, the BBA Council endorsed legislation that required the inclusion of civics education in all public schools and outlined, in greater detail than existing law, the content of the civics curriculum. The House also passed a version of the bill in May, and a conference committee was assigned to work out the differences. With only a few days left in the legislative session, we are happy to report that the conference committee released its final report, and the legislature officially passed S. 2631, An Act to Promote and Enhance Civic Engagement, on Wednesday!

As you’ll recall, the legislation arose from a concern among many, including students, about the inconsistency in civics education, though technically a required curriculum, across Massachusetts schools. The final bill requires schools to teach civics in order “to promote civic service and a greater knowledge thereof and to prepare students, morally and intellectually, for the duties of citizenship.” It will go into effect in the 2020-21 school year. The curriculum will include coverage of:

• history of the United States of America;
• the Constitution of the United States, including the Bill of Rights;
• the Declaration of Independence;
• the constitution of the commonwealth;
• local history and government;
• the function and composition of the branches of local, state and federal government;
• the roles and responsibilities of a citizen in a democracy;
• the development of skills to access, analyze and evaluate written and digital media as it relates to history and civics;
• community diversity and historical trends in voter registration and civic participation relative to disenfranchised voter populations;
• opportunities to identify and debate issues relative to power, economic status and the common good in democracy; and
• a program relating to the flag of the United States of America including, but not limited to, proper etiquette and the correct use and display of the flag, the importance of participation in the electoral process and the provisions of 4 U.S.C. sections 7 to 9, inclusive, and 36 U.S.C. section 301.

The bill also requires every public school serving 8^th grade students and each public high school to provide at least one student-led civics project. Unlike in the Senate bill, however, the compromise language does not make completion of the project a requirement for graduation. The nature of the projects is quite flexible, and it can be class-wide, individual, or small group, but represents an opportunity for students to engage in unique, experiential civics-related learning.

Additionally, under S.2631, the state will provide professional training to teachers and create a “high school voter challenge program,” which would select students to run voter registration drives on their campus. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

In May, BBA President Mark Smith of Laredo & Smith LLP (himself a former high-school teacher) sent a letter to Chair William Galvin of the House Committee on Rules, expressing our support, and after it passed the House, he sent a letter to the Conference Committee urging them to ensure this important legislation was reported to the full Legislature in time for a final vote by July 31. In that letter, President Smith noted:

“The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.”

We are very pleased that the Legislature understood the importance of providing strong civics education all students in the Commonwealth, and a special thanks goes to Education Committee Chairs Senator Sonia Chang Diaz and Representative Alice Peisch for their concerted efforts on this important legislation! The bill is now before the Governor, awaiting his signature.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Late last month the SJC announced that the Committee on Grand Jury Proceedings submitted its Final Report to the Justices on proposed best practices with respect to grand jury presentments. As provided in the release, these best practices “are designed to assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution.” When the Committee invited public comment late last year, the BBA Ethics Committee and Criminal Law Section Steering Committee offered comments.

Keep reading to learn more about the Best Practices and submitted comments!

The production of the best practices began in early 2017, when the Court, in Commonwealth v. Grassie announced the appointment of a committee to assist in gaining a better understanding of the current grand jury practices employed by district attorneys and the Attorney General. The Committee on Grand Jury Proceedings was made of up of representatives from the judiciary, the Attorney General’s Office, the Massachusetts District Attorneys Association, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and others with extensive experience in grand jury proceedings. The Court asked the committee “to report on the range of practices employed by the various district attorneys’ offices as well as the Office of the Attorney General with respect to grand jury presentments; the reasons supporting the different practices; the substance of the instructions that grand juries receive from those district attorneys who currently provide them; and any recommended best practices.”

The final report submitted to the Justices, which you can read here, addresses issues such as: what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on less serious offenses than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.

When the Committee solicited comments on the proposed best practices in the spring, it generated some debate in the legal community, and the BBA Ethics Committee and Criminal Law Section Steering Committee discussed them at length. The comments submitted by members of these Committees reflect a collection of views, from various interested BBA members. In general, however, many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices were welcome.

The Ethics Committee overall felt the best practices will be helpful in standardizing approaches to grand jury presentments and simply noted one ambiguity in the use of the phrase “be mindful.” Some Committee members felt the term was overly vague and open to interpretation. The final report seemed responsive to that concern, replacing the phrase “be mindful,” with “recognize.”

Members of the Criminal Law Section Steering Committee also commended the SJC Committee on Grand Jury Proceedings for its significant undertaking, noting that current practices vary greatly across the courts and expressing hope that the proposal would offer helpful guidance and encourage more predictability. A few members raised specific concerns about various provisions, including a suggestion that the definition of “target” in the target warnings be clarified, and that consideration be given to whether certain warnings were adequate for those without counsel. In addition, a member of the Criminal Law Section Steering Committee expressed a concern that the best practice related to the presentation of evidence seemed to suggest there was a presumption that all evidence obtained through a grand jury subpoena be given to the grand jury, a misinterpretation of existing case law. The Final Report makes clear that it is best practice to present the grand jury with all evidence received “unless the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

The Committee’s Chair, Superior Court Judge Robert L Ullmann, noted the best practices benefited from a range of public comment, and the BBA is very grateful, as always, to have had the opportunity to share the thoughts of our members!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

You’ll recall that the BBA Council voted in February of this year to endorse a request from the IOLTA Committee to raise the pro hac vice admission fee. In June, the Supreme Judicial Court released an order amending SJC Rule 3:15, raising this fee. We are grateful to the court for being responsive to the thoughts and concerns of the IOLTA Committee and the BBA.

Keep reading to learn more about the BBA’s history with this request and the SJC’s order.

The BBA Council first took a position on this matter in 2011, when it voted to endorse the Massachusetts Access to Justice Commission proposal to institute a pro hac vice admission fee, as had already been done in 41 other states and the District of Columbia. Following this proposal, the Supreme Judicial Court (SJC) Rules Committee proposed, and the SJC eventually adopted, SJC Rule 3:15, Pro hac vice registration fee, which imposes a $301 per-case fee for out-of-state lawyers seeking to appear in Massachusetts courts, unless the attorney is providing pro bono legal assistance to an indigent client. Under Rule 3:15, the proceeds go to the IOLTA Committee and are then distributed, in the same proportions as is its other revenue, to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation, and the Boston Bar Foundation, in order to provide civil legal aid to low-income residents of Massachusetts.

This year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and BBA President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. That increase would still leave Massachusetts within the range of existing fees, and states like Connecticut and Maine have fees that are above $551.

Overall, the BBA Council viewed the increase as reasonable within the context of the fee rates in other states and also an important way to increase access to justice in the Commonwealth. The initial proposal stemmed from a sharp drop in IOLTA revenue over the past decade, and unfortunately, projections for IOLTA revenue remain worryingly low. Meanwhile, as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth.

The SJC’s order amending Rule 3:15 increases the pro hac vice admission fee from $301 to $355. Though short of the amount requested, this increase will still offer substantial benefit to civil legal aid funding, and an estimated $30,000 will go to the IOLTA Committee annually. We are thankful the Court continued its long-standing support of access to justice by implementing this increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Imagine living frozen in time for years.  Information is extremely limited.  Your movements are closely restricted.  Your schedule essentially fixed.  Most every part of your life is watched, regulated, and controlled.  This is basically the life of an incarcerated person.  Now imagine that after months, years, and sometimes decades of living like this you’re suddenly released back into the free world with little to no support.  You have to catch up to changes in your community, family, city.  Learn new technology, find a job, find a place to live, and generally figure out what is going on all at once.  Over 40% of recently released persons have reported feeling intense anxiety over something as commonplace as taking public transportation.  Imagine being told to walk in a line every day for a decade and then being thrown into Downtown Crossing during rush hour.

That is just a small peek into the extremely revealing Boston Reentry Study (BRS) – a multiyear effort to follow the lives of about 130 people released from Massachusetts prisons to see how they fared in the year after prison, having served out their sentences, and to possibly understand how they got there in the first place.  The results were detailed in part in the new book Homeward: Life in the Year After Prison, by Bruce Western, a Harvard sociologist and one of the principal investigators of the BRS, whom the BBA was honored to co-host last week, in partnership with Lael Chester and the Columbia University Justice Lab.  Western shared with attendees some of the team’s findings, and helped to lead a discussion on how sound policy could have a hugely positive impact on the lives of the formerly incarcerated as well as society as a whole.

Natashia Tidwell of Hogan Lovells LLP, and co-chair of the BBA’s Civil Rights & Civil Liberties Section, introduces the event.

Explaining that the team’s goal was to “understand in granular detail the transition from prison to community”—a transition that the vast majority of incarcerees will ultimately make—Western described the countless hours of interviews he conducted with study participants to attempt to see commonalities, trends, and potential problem areas to be addressed in policy.  One of the most shocking statistics was that over 40% of participants had seen someone killed, and half had been physically and/or sexually abused.

Here Western raised an interesting point about how society usually likes to draw lines in the sand and make distinctions between victims and perpetrators, but very often it can be the same person, just at different times.  The serious histories of victimizations and trauma found in a majority of study participants is concerning in and of itself, and telling real people’s stories – even people who may have made terrible mistakes or even committed horrible crimes – helps to humanize the conversation and show that you can’t really define someone for what might have been just one thoughtless, careless, or potentially cruel action.  Furthermore, an alarmingly high number of participants had latent or ongoing mental health problems such as depression, anxiety, and PTSD, which were usually made worse while incarcerated due to the lack of proper mental health services available and the general stressors that are constantly present.

Professor Bruce Western, discussing the re-entry research that led to his new book, Homeward.

Western also discussed what a difference stable housing can make in someone’s life.  Naturally, many people return to the same neighborhoods that they lived in before being imprisoned.  When you’re thrown into a world that feels so foreign, it can help to find a small sliver of familiarity.  The problem is that those familiar environments are sometimes what led to imprisonment in the first place, and being around some of the same people, places, activities, and situations can make it very hard to reestablish a life.  At the presentation at the BBA, two of the study’s participants, who had become good friends with Western, discussed this.

John Tavares, a Dorchester resident, and Azan Reid, of Mattapan, both talked about how having more-stable home situations benefited them.  They made sure to surround themselves with positive people who supported them, and avoided those who might bring them into their old habits.  One of their biggest challenges was finding work.  After struggling for a while, Azon ended up starting his own landscaping company, and John became a personal care assistant to a woman with cerebral palsy.  Although they’re both in better places now, they remember the lack of support that they felt when they first got out.  They were suddenly thrust into the world with no idea how to do basic things like get new IDs, and didn’t really have anyone who they felt they could relate to.  That feeling of isolation and worry is one reason they think recidivism rates are so high – when you feel lost and confused it’s easiest to go back to what you know, even if that’s a life of crime.

Sheriff Steve Tompkins, Leslie Walker, Prof. Bruce Western, and study participants Azan Reid and John Tavares, speaking at the BBA, June 20, 2018.

Expanding in part on efforts to combat recidivism, Steve Tompkins, the Suffolk County Sheriff, gave an insider’s look into the criminal justice system by explaining his ultimate vision for corrections around Massachusetts and the country.  He feels we use too many sticks, and not enough carrots.  There’s also just a general lack of opportunities within prisons to access job training, education, and other programming, to not only impress parole boards, but also prepare inmates for life on the outside.  He emphasized that the vast majority of people out there want to find good work, but aren’t able to because they grew up in low-opportunity situations, and got swept up into an unforgiving criminal justice system.

Tompkins decried the wide variety of “linear societal problems that could be improved with more government agency coordination.” Leslie Walker, the legendary and longtime (and outgoing) Executive Director of Prisoners’ Legal Services said we are setting people up for failure—both from childhood, when they don’t get proper services and support, and again, in the criminal justice system, when they’re incentivized to plead guilty, doomed by burdensome requirements, and still don’t get needed support.  Both of them hoped that studies like the BRS are able to better inform policy for legislators and voters alike.

Everyone wants a system that is just. The progress made in Massachusetts’ recent criminal justice reforms are certainly steps in the right direction, but there is always more work to be done.  Using information from studies like the one detailed in Homeward, which is informed by the real lived experiences of men and women who have gone through the criminal justice system, we can better advocate for our fellow Americans to steer people away from the justice system before they enter, properly treat those who do, and then support them by offering a real chance to succeed when they come out, for the good of all of us.

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules. Indeed, just this month the court released a final version of a rule that incorporated feedback from BBA sections on the proposed version. The Rule – Rule 5(b) of Trial Court Rule XIV: Uniform Rules on Public Access to Court Records on use of the online Attorney Portal – will become effective on July 1, 2018, and can be read in full here.

In October 2017, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records, a Rule with which the BBA already had a long history. In 2016, the BBA established a working group to consider the proposed rule and, along with various sections, submitted substantial comments. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was given only provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected revisions to this Section, and proposed a few key changes, namely:

• The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
• The addition of safeguards, specifically “Terms of Use,”that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees were generally satisfied with the substance of the rule itself, but nevertheless highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by stating that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that use of the portal cannot risk the “integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The final version of the terms adopts this recommendation and the revised language now reads: “You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security of the Trial Court’s case management system…”

The Criminal Law Section Steering Committee made a few comments on both the rule itself and the terms. Specifically, the Committee discussed the piece of Rule 5(b) that provides the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted, to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.).

The Committee’s comment related to the terms noted a point of ambiguity in a provision, which stated in the proposed language that one must not leave their computer or work area unsecured while logged in to the portal. Members felt this provision was somewhat vague as drafted (what exactly does it mean to leave a work area “unsecured”?) and redundant, as the Terms provide elsewhere that you are fully responsible for the activity that occurs under your login. In response to this suggestion, the Court removed mention of the “unsecured work area,” leaving it clear that one is fully responsible for all activity that occurs under the login credentials.

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the revised Rule, the language was edited to make this point more evident, and it now makes clear that registered attorneys “shall have access to a portal providing remote access to all nonexempt cases, and a calendar of scheduled events in the cases in which they have entered an appearance” (emphasis added).

In the terms, the Committee thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). The proposed definition described data scraping as “an automated process, or technique, used to extract or collect data from a source, such as a website or applications.” Committee members offered an alternative definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. The new definition in the final version of the terms largely tracks the recommendation and now describes data scraping as “the use of a computer program or other automated process or technique to extract or collect data from the Trial Court’s case management system.”

Finally, the committee members felt the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials. The proposed terms provided that one may be subject to sanctions and referred to the Board of Bar Overseers “if you (or persons you allow to use your login credentials)” use the portal in a way prohibited by the terms. Members thought this was inconsistent with a prior provision which made clear that one is fully responsible for all activity that occurs under one’s login credentials, regardless of whether permission to use was granted. The final version of terms adopts this recommendation and now provides that the consequences for prohibited use apply to attorney use as well as “persons who use your login credentials.”

…

As always, we are very appreciative of the hard work and expertise offered by the Committee Members and were thrilled that the court adopted many of the suggestions. To learn more, you can read the full comments submitted by the BBA here, and to read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Update: Online Access to Court Records

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 In celebration of Pride Month, and in advance of the Pride Parade this weekend, we wanted to take a moment to trace the BBA’s own long history of supporting LGTBQ+ rights.

To begin, we have to go back nearly 45 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, nearly three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

As you know, the inclusion of public accommodation protections for transgender individuals is at stake on the November ballot, as opponents seek to repeal the law, so be sure to read more about the Freedom for All MA Coalition that’s leading this effort (with the BBA as one of many members), RSVP to this BBA volunteer opportunity, and, most importantly VOTE YES to ensure this law remains on the books!

In addition to being on the forefront of offering antidiscrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

• In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
• In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
• In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, the amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
• Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, and then-President Julia Huston stated: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a set of bills that would ban the use of “conversion therapy” by licensed professionals on minors. Unfortunately, these important protections did not pass last session, but there is still time this go around. Be sure to visit our new post that explains just why this legislation matters and what you can do to make sure Massachusetts does not miss its chance to join the growing number of states standing up to protect their LGBTQ+ youth in this way.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3^rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. We hope you’ll join the BBA in celebrating Pride by recommitting to this fight, and what better way to start than by ensuring transgender antidiscrimination protections remain the law of the land and that Massachusetts LGBTQ+ youth are protected from harmful conversion therapy practices.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Nearly three years ago, the BBA endorsed legislation that would ban the use of “conversion therapy” on minors by licensed health care professionals. Since that initial endorsement, the BBA has kept you posted on our continued advocacy, presenting testimony at hearings and sending letters urging the Commonwealth to stand up for its LGBTQ+ youth. And last month, we asked you to join us, and MassEquality, in urging for these important protections, requesting you to reach out to your own representatives in honor of the International Day Against Homophobia, Transphobia and Biphobia.

As a brief refresher, this legislation is important because it offers protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective and misleading but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought and poses a high risk of seriously harming patients, especially minors.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ+ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” The BBA has a long history of defending principles of non-discrimination and equal protection, and we are proud to stand with these national groups and local organizations like MassEquality and GLAD in advocating for these important protections for MA LGBTQ+ youth.

While the bill has not yet moved, there is still time to ensure Massachusetts youth have access to these protections. If you haven’t done so already, please call your State Representative, and ask them to do two things:

1) Contact the Chair of the House Ways and Means Committee, Rep. Jeffrey Sánchez, and urge him to report favorably on the Conversion Therapy Ban Bill (H.1190) as soon as possible.

2) Contact Speaker of the House Robert DeLeo, and ask him to make H.1190 a priority and to bring the bill to a vote during the current legislative session, ending July 31.

For more information on just why this legislation is so important, feel free to read our recent letter to the House Speaker and Mass Equality’s handy fact sheet. MassEquality also produced a draft email in support of the legislation, and you can also reference this sample phone script produced for the May 17 call to action. Just make sure to reference updated bill number H.1190 and mention that that you are calling in honor of Pride Month instead!

To date, eleven states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it’s time for Massachusetts to join these ranks!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Following the Governor’s proposed budget, and the House budget, the Massachusetts Senate debated the Ways and Means Committee’s budget this week. Thank you, again, to all who responded to our ask and reached out to your Senator, urging them to support key amendments related to access to justice and criminal justice reform.  Here’s where things stand now:

Massachusetts Legal Assistance Corporation (MLAC)

We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over. As you’ll recall, this year we are asking for a $5 million increase in the MLAC budget line-item (#0321-1600), for a total appropriation of $23 million. The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million. The Senate Ways and Means budget recommended a $19 million appropriation.

Senator Cynthia Creem and Senator William Brownsberger filed an amendment (#992) asking for an additional $4 million, later redrafting the request to seek a $2 million instead. The final Senate Budget approved of the revised amendment, making the total appropriation $21 million. This represents a $3 million (or 17%) increase over the current year’s appropriation of $18 million. We are very grateful to the continued leadership for Senators Creem and Brownsberger, and the more than 25 co-sponsors of amendment #992. The House/Senate budget conference committee will be tasked with setting the final figure in the budget that goes to the Governor in the coming weeks, with the expectation that it will be somewhere between $20.75 million (the House figure) and $21 million (the Senate figure).

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget. However, for the expansion to be successful, the full panoply of benefits must be afforded to all residents of the Commonwealth, so the Housing Court must be adequately staffed and include the important parallel expansion of programs like Lawyer for the Day and the Tenancy Preservation Program (TPP), which provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. In light of this, we supported a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, a long-time supporter of statewide expansion, proposed the full $2.6 million, while the House Budget appropriated $1.5 million. We are happy to report that the Senate Ways and Means budget recognized the importance of this expansion and also recommended the full $2.6 million appropriation, which made its way into the final Senate budget. The final House budget would add $250,000 to the Governor’s proposed $500,000 for the TPP line-item, and the Senate Ways and Means Budget also recommended $750,000.

A big thanks goes out to Senator Julian Cyr, who filed amendment #791, seeking to fully fund the TPP with a $1.3 million appropriation, and we are happy to report that the final Senate budget included the full appropriation! We will urge the conference committee to use that amount in their final budget.

Trial Court

We also know just how important it is that the Trial Court as a whole  receive adequate funding, and we are, as usual, advocating for the department’s maintenance funding request and their additional modules that will further enhance efficiencies and improve the user experience.

For the FY19 Budget, the Trial Court is requesting a maintenance-level appropriation of $671.1 million. The Governor’s Budget went some way towards this maintenance funding, and the final House budget included the full maintenance request. As we did the House, we urged the Senate to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth, and we are grateful the Senate recognized the importance of this ask and also provided the full maintenance request in their budget.

Committee for Public Counsel Services (CPCS)

We continue to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520). As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.

The House budget did recognize the importance of CPCS’s role, and though the direct appropriation did not match CPCS’s full $257.78 million ask, which the BBA supports, it significantly increased the appropriation for compensation paid to private counsel. The Senate budget also offered  important additional improvements, including a specific measure to increase salaries for public defenders. We hope, and we’ll be asking, the conference committee to also recognize the importance of CPCS and provide it adequate funding in the final budget.

Residential Re-Entry Services

As you may have seen in our recent advocacy alert, we added an additional item to our budget ask in the Senate: funding for residential re-entry services to reduce recidivism. (Check out our letter to the Senate, where we provide more detail as to just why this line-item is so important). Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339 -1011, which would offer funding for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community.

While the House budget proposed a $3 million appropriation for this line-item, it did not appear in the Senate Ways and Means budget. With the BBA’s support, Senator Brownsberger filed an amendment seeking $5 million toward these important services, but it was not adopted in the final Senate budget, so now, it’s on to the conference committee, which we will urge to at least incorporate the House’s language, so that these worthy programs can secure state funding.

Stay on the lookout for more action alerts — we may still need your help to make sure these important items are adequately funded in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Two important pieces of legislation with broad, bipartisan support are currently making their way through the Massachusetts Legislature, having passed the Senate last month. The bills, one that will incorporate civics education into public school curricula and one that would create standards for teaching financial literacy that could be deployed in schools throughout the Commonwealth, were both endorsed by the BBA Council at their April Meeting.

The BBA is proud to be able to voice its support as the legislation is taken up by the House!

Financial Literacy

Under Senate Bill 2374, An Act Relative to Financial Literacy in Schools, the Department of Elementary and Secondary Education would develop financial literacy standards that could then be adopted into existing school curricula. The Department would also be tasked with making resources publicly available, consulting with experts for insight into the best materials and best methods of instructions. The bill would further revive an advisory committee established in 2012 to create and oversee a pilot program related to financial literacy for students. That Committee will work in consultation with individuals with relevant experience, including bankruptcy attorneys, to develop and implement the standards.

There is a long history of support for, and active engagement in, financial literacy education here at the BBA. In 2005, the Joint Bankruptcy Court and BBA Task Force on Financial Literacy for Students released a report documenting the need for financial literacy education. As part of that report, the Task Force proposed a program for providing this crucial financial literacy education to public school students. That ultimately spearheaded the launch of the M. Ellen Carpenter Financial Literacy Program, now in its 13^th year. To date, the program has reached over 6,200 students and engaged over 1,500 volunteer attorneys across the state. As part of the program, attorneys teach three classroom sessions: one on personal finances and budgeting, another on using credit and credit cards, and the third on financing large purchases. Then, some students are able to take a field trip to the U.S. Bankruptcy Court, where they observe, and sometimes participate in, mock hearings.

The BBA is delighted to have offered this education to so many, and we stand ready to offer the expertise gleaned over the past 13 years to help expand that offering so that one day no students in the Commonwealth are denied an opportunity to learn invaluable skills that will help to ensure their future financial outlook.

Civics Education

Senate Bill 2375, An Act to Promote and Enhance Civic Engagement, requires that the Board of the Department of Elementary and Secondary Education ensure all public schools provide instructions in civics. The broad scope of that instruction tracks current statutory guidance on matters to be covered, including the constitutions of the U.S. and the Commonwealth, the Bill of Rights, and local history. However, it also expounds in more detail on what the Department should ensure any civics framework includes, specifically noting things like “the roles and responsibilities of a citizen in a democracy, the development of media literacy skills…community diversity and the role it plays in the democratic process,” and “knowledge of the ways in which civic participation has been restricted throughout history.”

In addition, the bill requires every public school student to have the opportunity to participate in at least two student-led civics projects, including one that must be completed after the 8^th grade and is a high school graduation requirement. The nature of the projects themselves is quite flexible; they can be class-wide, individual, or small group. In addition, the legislation expounds on a number of other initiatives, including “civics challenges” where students will be able to enter their projects into competition and “regional civic councils” to monitor the development of the curriculum and provide additional resources. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

This week, BBA President Mark Smith of Laredo & Smith LLP sent a letter to Chair William Galvin of the House Committee on Rules, where the bill currently sits, expressing our support. That letter cited recent, alarming research that documented the lack of understanding many Americans have about basic government processes and institutions. For example, one-in-five believed that a 5-4 Supreme Court decision is returned to Congress for reconsideration. A lack of understanding of the function of our courts can make the judiciary susceptible to partisan attacks that undermine necessary faith in the judiciary as the third co-equal branch of government. Retired U.S. Supreme Court Justice David H. Souter noted, in 2009, that the biggest threat to judicial independence is a “public majority unaware of the basic shape of the government.”

In the letter, President Smith urges passage of the measures and offers BBA support in development and implementation of an enhanced civics curriculum, noting:

The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.

…

The BBA is proud to support S.2375 and S.2374, and we hope the House will take the opportunity to empower the youth of Massachusetts to secure their best futures.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association