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

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

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

—Michael Avitzur
Government Relations Director
Boston Bar Association

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

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

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

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

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

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

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

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

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

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

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

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

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

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—Michael Avitzur
Government Relations Director
Boston Bar Association

Public Charge Update

The BBA has been closely following the developments of the Department of Homeland Security (DHS) public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join.

In August 2019, the Trump administration proposed a change to the regulation known as the “public charge” rule. This regulation would deny green cards to immigrants deemed likely to become reliant on various forms of social welfare. Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”, including the perceived likelihood that that person will require public benefits in the future, even if they are not currently using them. The Migration Policy Institute study that we cited in our September 2019 Immigration Update found that this regulation would disproportionately impact immigrants from Mexico, Central America, Africa, and Asia.

Throughout the past several months, the rule was challenged in several federal courts and more than a dozen state attorneys general, including Massachusetts AG Maura Healey, under the argument that it discriminates against low-income immigrants and immigrants of color. One of the major concerns was the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and thereby imposing a huge cost on local and state governments. Furthermore, this concern is heightened by the fear and misconceptions held by the affected population, which may lead people to withdraw from, or not apply to, programs and benefits that are not covered by the rule. These impacts will hit entire families, including spouses and children who may be citizens.

In November, we published an Issue Spot blog post citing the temporary injunctions that judges from New York, California, and Washington had issued to prevent the rule from taking effect on October 15, 2019, as planned. In January, Twitter, Microsoft, and other tech companies signed on to an amicus brief in support of appealing the public charge rule. 

On January 27, 2020, the Supreme Court voted 5 to 4 to set aside the preliminary injunction from New York that prevented the public charge rule from taking effect nationwide. This was the last of the three district court nationwide injunctions standing, which means that the rule can now go into effect nationwide while litigation continues[1]. This ruling was extremely disappointing for immigrant advocates and civil rights organizations who have been working diligently to litigate against it. The rule is now expected to be implemented on February 24, 2020.

There are still appeals concerning the reasoning of the injunctions that are ongoing. The appellate cases are moving on expedited schedules and could be decided within a couple of months, and positive appellate court results could expand the injunction beyond Illinois. The national Protecting Immigrant Families (PIF) campaign is bringing advocates from around the country together to fight back against the negative effects the public charge rule will have on immigrant families. On February 6, Attorney General Maura Healey joined a coalition of attorneys general in filing two amicus briefs opposing the public charge rule. The briefs “call on the Trump administration to immediately halt unprecedented new rules that direct the State Department to deny green cards and visas to immigrants who are likely to use government assistance programs in the future.” Attorney General Healey said that “we cannot allow these new rules to overturn decades of immigration policy and deprive people of a path to citizenship in our country.”

If you would like to help or to learn more about the potential effects of this regulation, the BBA is hosting a training on March 10. You can also access the following resources:

• Participate in the upcoming Massachusetts-specific teleconference/webinar. We will follow up with more details about this information session soon, but in the meantime you can submit your questions here.
• Read and share Important Update Regarding Immigrants’ Use of Benefits: Access to Health Care and the “Public Charge” Rule
• Read and share SNAP Food Assistance: Immigrants & Public Charge
• Check out more updated community education materials available on the National PIF website at www.protectingimmigrantfamilies.org and on MIRA’s PIF-dedicated webpage at http://miracoalition.org/pif.
• For attorneys: MLRI will provide a public charge training in early March specifically for attorneys representing immigrants who could be subject to the rule once implemented. Contact Ktully@mlri.org or mparedes@mlri.org to sign up for this training.

Iranian Students Turned Away at Boston Logan

Over the past several months and amid the escalation of tension in U.S. foreign policy with Iran, reports indicate that Iranians have been increasingly denied entry at the U.S. border despite having valid visas.

On Monday, January 20, an Iranian student, Shahab Dehghani, was turned away from Logan Airport despite having a valid visa to study at Northeastern University. When he landed in Boston, he was abruptly taken aside by CBP and told that his visa had been revoked without an explanation or the chance to contact an attorney. He was held at the airport overnight for questioning. In the meantime, his lawyers obtained a court order directing the immigration authorities to allow him to remain in the country for 48 hours while his case was reviewed. But Mr. Dehghani had already been put on a plane back to France, just minutes after the court order was issued.

Although officials claimed that there was evidence that Mr. Dehghani could pose a potential security threat, his lawyers questioned the truth of the allegations, given that such a threat would have certainly been uncovered during the months of extensive vetting that he endured before being granted a visa to enter the United States.

Mr. Dehghani is one of at least 13 Iranian students who have been turned away since August at airports across the country despite having valid visas. This raises significant concerns that Iranian immigrants are being treated differently because of their heritage. In interviews with 10 of the Iranian students who have been removed since August, many said that their visas had taken months to be processed, and that they had spent their entire savings, or taken out loans, to pay for plane tickets, entrance exams and university applications. Even those who were not denied entry were extensively questioned for no apparent reason.

Higher education is important to this region and the actions of the Logan Airport immigration authorities have the potential to have a chilling impact on applications to Boston universities. These ramifications may extend beyond colleges and universities to the business sector as a whole. We stand firmly against the policy of denying students access because of their heritage and hope that Boston continues to be a safe and welcoming city for immigrants.

“Birth Tourism” Policy

On January 23, 2020, the Department of State posted a final rule amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure”. The rule amends the Department of State’s regulations on B nonimmigrant visas to clarify that traveling to the United States in order to obtain citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa.

The rule outlines that, “under this amended regulation, U.S. consular officers overseas will deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child”.

The Trump administration’s attack on “birth tourism” aligns with his ongoing battle against “birthright citizenship”, the granting of citizenship, under the Constitution, to anyone born in the United States regardless of the parents’ nationality or immigration status. The new rule gives consular officers the authority to reject women they merely believe are pregnant or “likely to give birth” from entering the United States. The rule raises the burden of proof for pregnant women by outlining in writing that giving birth in the country “is an impermissible basis” for visiting the United States. Even if a woman says she is entering the country for medical treatment — a legitimate factor for visa eligibility — she will need to satisfy visa officers that she has enough money to pay for such treatments. She will also need to prove that the medical care she is seeking was not available in her home country.

The State Department has failed to provide an example of how “birth tourism” presented a national security risk, as they argued, and the rule has been criticized by immigrant rights advocates for “turning embassy employees into reproductive policemen”.  

Trump Administration Expands the Travel Ban

In 2017, the Trump administration proposed a travel ban that imposed restrictions on citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Although there was large public outcry against the ban, the Supreme Court allowed the third version of the ban (which spared Sudan and Iraq) to go into effect while legal challenges against it continued. We spoke out against the ban in 2017 and mentioned it explicitly in our 2018 Immigration Working Group Principles, citing its disregard for due process and equal protection rights for immigrants:

“The BBA has long supported measures to uphold due process and equal protections rights and access to counsel for immigrants, and in recent months has spoken out against the “travel ban” that would limit immigration from several Muslim countries; condemned the practice of separation of immigrant families at the border; and opposed proposed changes to “public charge” regulations that would make it more difficult for immigrants to access essential benefits and services.”

BBA Immigration Working Group Principles, 2018.

On January 31, the Trump administration announced that it will extend the travel ban to impose restrictions on six additional countries: Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania. The new order, which will go into effect on February 22, will affect nearly 350 million people, including a quarter of Africa’s population. Unlike the original travel ban, which prohibited citizens of the countries mentioned above from entering the United States, this ban will restrict citizens of Nigeria, Myanmar, Eritrea, and Kyrgyzstan from obtaining immigrant visas and will prevent citizens of Sudan and Tanzania from moving to the U.S. through the diversity visa lottery.

Immigrant advocacy groups are vehemently opposed to the expanded rule. “The ban should be ended, not expanded. President Trump is doubling down on his signature anti-Muslim policy — and using the ban as a way to put even more of his prejudices into practice by excluding more communities of color,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “Families, universities, and businesses in the United States are paying an ever-higher price for President Trump’s ignorance and racism.” The BBA continues to be opposed to the travel ban and the singling out of specific immigrant groups.

In the news

• Massachusetts Sheriffs Receiving Funds from ICE for Housing Detainees

The Boston Globe recently uncovered that the Commonwealth has received more than $160 million in funding from federal immigration authorities since 2012, “mostly in exchange for keeping and transporting ICE detainees in jails run by four Massachusetts sheriff’s departments”.

The funding in question stemmed from agreements between ICE and the sheriff’s offices for Plymouth, Bristol, Franklin, and Suffolk counties. Suffolk ended its relationship with ICE this past October but the other sheriffs’ offices have defended the arrangements, claiming that their relationships with ICE have made Massachusetts safer.

• Information Sharing Between BPS and ICE

A lawsuit brought by Lawyers for Civil Rights (LCR) and other civil rights and education advocates revealed documents that showed “extensive interactions” between Boston Public Schools (BPS) and federal immigration enforcement. A statement released by LCR outlines that since 2014, at least 135 student incident reports generated by BPS have been made accessible to ICE via the Boston Regional Intelligence Center (BRIC), an information-sharing network of local, state, and federal law enforcement agencies that is funded by the U.S. Department of Homeland Security and housed within the Boston Police Department.

The entanglement between BPS and ICE first came to light in 2017, when an East Boston High School student was the subject of a BPS incident report of a failed attempt by students to start a fight. ICE accessed the report after BPS shared it with the BRIC and the student was deported. Since then, City officials have denied the collaboration between BPS and ICE, but LCR asserts that the extent of collusion between the two is “alarming” because “BPS is creating a dangerous school-to-deportation pipeline”.

• SJC Decision on Osman Bilal Case

In late January, the SJC came to a decision in the controversial Osman Bilal case. Bilal pleaded guilty to stealing jewelry from a Boston street vendor in 2011 and was at risk of deportation to Somalia, a country his family had fled when he was just two days old, due to this misdemeanor conviction. The judge who accepted his plea had rejected four motions for a new trial when the case was picked up by attorney Kelly Cusack in November. She worked with Donna Jalbert Patalano, general counsel for Suffolk District Attorney Rachael Rollins, to try again.

Cusack and Patalano appeared before Boston Municipal Court Judge Michael Coyne on November 15 and prosecutors dismissed the charges. But, six days later, Judge Coyne called the lawyers back to court and accused them of deception for not informing him that Bilal’s prior judge, Sally Kelly, had previously denied four motions for a new trial. Coyne vacated his order granting Bilal a new trial and reinstated his conviction.

At this point, D.A. Rollins’ office filed an emergency petition with the SJC, arguing that Coyne had no authority to reinstate the conviction. SJC Justice David Lowy vacated Bilal’s conviction, saving him from facing deportation proceedings.

D.A. Rollins has made it one of her top priorities to help defendants get convictions dismissed when it appears that they unjustly faced “harsh collateral consequences”, including deportation, under federal immigration law. “This is the unfortunate state of our federal immigration law,” Rollins said in a statement. “Mr. Bilal’s current situation is the very definition of extreme and unjust collateral consequences. We are better than this. I know it.”

[1] With the exception of Illinois, where it is still blocked by a statewide injunction.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

This morning, hundreds of civil legal aid supporters rallied at the State House for the 21st annual Walk to the Hill for Civil Legal Aid, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This annual event follows on the heels of the release of the Governor’s budget recommendation and formally kicks off the BBA’s budget advocacy. Governor Baker’s plan, known as H. 2, proposed level-funding MLAC at $24 million. While disappointing, this appropriation makes it all the more important to convince legislators of the need for increased funding.

Walk to the Hill is coordinated by the Equal Justice Coalition (EJC), which is a partnership of the BBA, the MBA, and MLAC, and proves to be one of the largest advocacy events of its kind in the Commonwealth every year. With the support of the bar and our community partners, we have achieved back-to-back $3 million increases in the MLAC budget line-item for FY19 and FY20, allowing for the expansion of legal services that are essential to low-income and elderly Massachusetts residents. However, roughly half of the population eligible for legal services is still turned away. This is why we must continue to advocate to increase funding. For FY21, MLAC is requesting an additional $5 million to reach a total of $29 million.

A number of leaders of the Massachusetts legal community, including BBA President Chris Netski, spoke at today’s event to a crowd of hundreds of lawyers and law students. Chris emphasized that the “increased demands on an already overburdened system make it extremely difficult for legal services attorneys to keep pace with the flow of cases, including far too many domestic violence cases, and demonstrate why the need for aid has continued to rise, despite the generous appropriations Governor Baker and the Legislature have afforded MLAC up to this point”. She went on to tell a story of a client who, thanks to MetroWest Legal Services, was able to receive critical immigration assistance and obtain a U visa, as a victim of crime, after being sexually assaulted. President Netski concluded her remarks by saying, “Because the BBA will always champion access to justice, and because we know it’s a good investment, we continue to advocate for civil legal aid and support MLAC’s request for a $5 million increase in funding this year”.

After the remarks in the Great Hall, attendees spread out to meet with their Senators and Representatives throughout the State House, including Chris Netski, who sat down with her Lexington Rep. Michelle Ciccolo, and BBA President-Elect Marty Murphy, who met with both Sen. Nick Collins and Rep. David Biele from the Boston delegation.

If you were unable to join us today, it’s not too late to talk to advocate for civil legal aid! Participate in “Talk” to the Hill throughout the state budget process by calling your legislators. If you know the names of your senator and representative, call the State House switchboard at 617-722-2000 to be connected to their offices. You can also look up your legislators here and access their direct phone numbers and e-mail addresses. The sooner you get in touch, the better!

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

On January 22, Governor Charlie Baker released his budget plan for Fiscal Year 2021 (FY21), which begins on July 1.  The BBA had sent him a letter outlining our four budget priorities for the year, and the results were mixed:

• For the Massachusetts Legal Assistance Corporation (MLAC), the state’s largest provider of funds for legal services, the BBA and other supporters of civil legal aid are seeking an increase of $5 million, to build on the gains that have been achieved in recent years and to continue to chip away at the turn-away rates that have remained too high due to stubbornly increasing demand.  The Governor’s plan (also known as H. 2) would instead offer the same $24 million as in the current fiscal year, so it falls to us and our fellow advocates to continue to make the case to the Legislature again this year as to why this appropriation is so important for access to justice. (See also our recap on Walk to the Hill for Civil Legal Aid.)
• If the court system has a natural constituency to advocate for adequate funding of their operations, it would have to be the bar.  That’s why we will always make the Trial Court’s appropriations a priority.  This year, they are seeking $771.5 million to maintain their current level of performance, but H. 2 falls a bit short of that, offering $750.9 million.  Again, we will be working to convince legislators to make up that shortfall.
• The Committee for Public Counsel Services (CPCS) is the state’s public-defender agency, handling criminal defense and other representation for indigent litigants, through both staff attorneys and private bar counsel.  Their line-item would be funded at $261.5 million under H. 2, or about $4 million short of their need.  The plan also does not provide for a much-needed increase in the hourly rates paid to private counsel. 
• Finally, the BBA has endorsed a recently-created grant program to fund community-based residential re-entry programs for formerly incarcerated individuals, to provide for health care, housing, employment, and substance-abuse treatment, and thereby reduce recidivism and overdose rates.  The $6.3 million in H. 2 would continue the program at its current scale, though we support the Trial Court’s request of $9.6M, which would allow for expansion into new regions.

The budget is now in the hands of the Legislature, where hearings will be held the next couple of months, and then the House Ways & Means Committee will release their own plan in April, followed by the Senate’s turn in May.  The final budget likely won’t be enacted until July, but we will keep you posted here (and with e-mail updates and alerts).

—Michael Avitzur
Government Relations Director
Boston Bar Association

It’s the most wonderful time of the year! We are, of course, referring to Walk to the Hill, the annual lobby day for civil legal aid. Scheduled for Thursday, January 30, it’s right around the corner. For those of you who don’t know, here’s a primer on the event…

Who

Sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, the event is attended by over 500 attorneys. There will be speeches from BBA President Christine Netski, MBA President John Morrissey, legal aid clients, and SJC Chief Justice Ralph Gants. There will also be legislators … lots of them.

What

The event begins with registration and speeches in the Great Hall. Get ready to be inspired! It is impossible not to be moved when hearing about the impact of legal aid on the lives of so many people in need. After a boxed lunch, it’s on to legislative meetings. Don’t know your elected representatives? That’s perfectly fine – look them up here and make the introduction. Tell them how much legal aid means to you and why it is important that they support this year’s ask: a funding increase of $5 million, for a total of $29 million in FY21. This fact sheet provides some strong arguments you can use to make your case.

If you are ready for a deeper dive, check out Investing in Justice, the 2014 report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts that laid the foundation for our campaign by conclusively demonstrating that:

• More than 50% of individuals who qualify for legal aid 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. Tens of thousands are turned away every year, which is especially concerning in areas of basic need such as housing and 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.

If you’re a social media buff, we’ve got you covered too. Fill out an “I Walk…” placard and tweet a picture using the #IWalkforJustice or #WalktotheHill hashtags. The EJC and others will be actively retweeting the best submissions.

Finally, sign up for action alerts here to get notified of key moments in the budget process and to get access to easy “plug-and-send” emails to officials. We will be promoting similar alerts on this blog and through your weekly BBA e-newsletter as well, so stay tuned!

When/Where

Thursday, January 30, 2020 from 11:00 am to 1:00 pm in the State House’s Great Hall.

Why

There are no bad reasons to Walk to the Hill. For many it is the recognition that lawyers play a special role in society and thus have a duty to serve others. For some it is because they recognize the great work legal aid in Massachusetts does for those in need, helping low-income individuals, the courts, and society at large. For others it is all about increasing access to justice or following up on their own pro bono efforts. Check out this Twitter page where dozens, including a number of #MAPOLI stars, shared why they walk. 

Many firms get in on the act, with firm captains leading the charge to round up as many partners and associates as they can to attend. However, if you do not have a group to walk with, you can join us at our annual pre-Walk to the Hill breakfast at the BBA. Join us on the morning of the Walk at 9:30am to hear from our Government Relations team on lobbying strategies, have a last chance to look up your legislators, and participate in the #IWalkForJustice social media campaign. We will head across the street to the State House together at 11. 

Thinking of trying to put together a group to attend the Walk? Here are some great ideas that work:

• Offer pro bono credit
• Ask for a commitment – calendar invites are really helpful
• Get competitive: How does your department stack up against another? How about your firm vs. others?
• Get personal – don’t just email friends and colleagues, actually talk to them in person.
• Help your recruits prepare and coordinate the details for them.

We hope we’ve given you everything you need to know to have a great Walk to the Hill. We look forward to keeping you up to date on all the latest developments in the FY21 budget campaign.

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

The BBA has endorsed legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. H.1485/S.1013, An Act to promote efficiency in co-parent adoption, will allow a petition by such couples to adopt their own children so as to ensure universal recognition and respect for their parentage. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples.

Currently, couples who use assisted reproduction must complete adoptions of their own children in order to secure a court decree which ensures their parentage will be respected throughout the United States and internationally. Even if both parents’ names are on the child’s birth certificate, this does not equate to parentage and puts one or both of the parents at risk of having their parentage questioned in the future. Having to adopt their own children puts parents through an immense amount of emotional stress and financial cost that heterosexual couples not using assisted reproduction do not have to undergo. The adoption process is lengthy and invasive, forcing the couple to undergo a home inspection, one or more court appearances, a criminal record search, a six-month waiting period, and other unnecessary hurdles that create a daunting experience for a parent who is already fully engaged in parenting their child. It also forces children born to same-sex couples to remain vulnerable and undergo emotional stress and disturbance to their lives.

H.1485/S.1013 would eliminate these unnecessary barriers and allow LGBTQ and other families who use assisted reproduction technologies to be afforded the parentage rights they deserve.

It is especially important to enact such legislation in Massachusetts because Massachusetts happens to be the state with the highest use of assisted reproduction technologies in the country. California and New Jersey have instituted similar legislation in recent years and the BBA believes that Massachusetts should follow.

Elizabeth Roberts, member of the BBA’s Family Law Section Steering Committee and a family law attorney at Roberts & Sauer LLP, submitted testimony for the Joint Committee on the Judiciary at the public hearing on this bill in July and presented the issue to BBA leadership along with Section co-chairs David Friedman of Verrill Dana LLP, and Carlos Maycotte of Fitch Law Partners. As Elizabeth put it to the Legislature, “We would urge you to make this process less costly, time consuming and able to occur in a manner that offers dignity to LGBTQ families of the Commonwealth. A secondary benefit is that this legislation is in the interest of judicial economy, streamlining a process that was needlessly time consuming and that ignored the fact that these adoptive parents were intact families already”. The Family Law Section formally endorsed this legislation shortly after, and it has now been voted on and approved by the BBA Council.

We look forward to advocating for this important legislation that is long overdue.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

On January 21, the Boston Bar Association, Massachusetts Bar Association (MBA), and Real Estate Bar Association (REBA) filed a joint brief to the Supreme Judicial Court (SJC) in the case of In the Matter of Gregory M. Olchowski, which has to do with a dispute between the Massachusetts Interest On Lawyers’ Trust Accounts (IOLTA) Committee and the State Treasurer over access to unidentified funds in IOLTA accounts. The brief, co-drafted by Mary Ryan and Micah Miller of Nutter McClennen & Fish, Tom Carey of Hogan Lovells, and Francis Morrissey of Morrissey, Wilson & Zafiropoulos, sided with the IOLTA Committee, arguing that unidentified funds should be remitted  to the IOLTA Committee instead of the Treasurer.

Attorney Gregory Olchowski was temporarily suspended in early 2013 and funds from his two IOLTA accounts were deposited in a separate account in the name of his attorney. The intended recipients of the funds could not be identified. Since 1994, Bar Counsel’s practice has been to remit funds to the Committee, with the SJC’s approval, after conducting a thorough investigation (including reviewing attorney records) and determining that the owner of the funds cannot be identified. In October 2018, Bar Counsel filed a motion to remit the Olchowski funds to the IOLTA Committee. The Treasurer filed a motion to intervene and ultimately opposed Bar Counsel’s motion, asserting that the funds should escheat to the Treasurer.  The Committee filed a motion to intervene and to oppose the Treasurer’s motion. 

As the BBA/MBA/REBA brief notes, 13 other states have either statutes or court rules which send unidentified funds to that state’s IOLTA group or similar entity. The SJC posed the following questions for amici:

1. Do unidentified client funds on deposit in an IOLTA account fall within the statutory definition of “abandoned property” under G. L. c. 200A?
2. Does Mass. R. Prof. C. 1.15, or any other rule of this court, govern the disposition of such funds?
3. Are any constitutional issues raised by the parties’ proposed disposition(s) of the funds?

In April 2019, the IOLTA Committee formally requested that the BBA file an amicus brief in support of their argument in this case. The Amicus Committee reviewed the facts of this case and monitored the development of the brief.

As filed, the brief argues that the Abandoned Property Act was never intended to address unidentified IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985.  G.L. c. 200A has been amended at least five times since then to define when specific types of property are deemed abandoned, yet the Legislature has not chosen to bring IOLTA funds within that ambit: “Had the legislature intended to bring unidentified IOLTA funds under the APA, it could have done so by express amendment, as it did for other kinds of property. This history shows that the Legislature never intended the APA to apply to unidentified funds in an IOLTA account.”

Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences—“a critical aspect of the practice of law”—and jeopardizing the security of client information. This is because “[a]ttorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences,” and the Treasurer’s Office would have broad discretion to review attorney records related to IOLTA accounts holding such funds. Yet, unlike the IOLTA Committee and the Board of Bar Overseers, that Office lacks clear protections against the disclosure of confidential information.

The brief also places the power to regulate unidentified IOLTA funds squarely within the SJC’s inherent authority to regulate the practice of law, and highlights “the beneficial effects that turning even modest sums of money over to the IOLTA Committee will have on access to justice for all.” This position is consistent with the BBA’s mission, and with its history: The BBA and MBA jointly petitioned the SJC to create the Massachusetts IOLTA program in 1985, and it has been funding programs on behalf of indigent residents of the Commonwealth since then.

The IOLTA Committee recruited two pro bono attorneys to represent it in oral argument, which will be held on February 11. Follow @MikeAvitzurBBA on Twitter for live updates of the hearing (which you can also watch through the Suffolk Law School feed)! A ruling is anticipated by June, and we’ll be sure to update you on it here.

-Michael Avitzur
Director of Government Relations & Public Affairs
Boston Bar Association

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In doing so, the BBA joined with the Access to Justice Commission, which had made the same recommendation in 2007.

That BBA report—authored by former BBA President Mary Ryan of Nutter McLennen & Fish, and IOLTA Committee Director Jayne Tyrrell—noted that the question of whether a right to counsel should apply in such instances “invites litigation”, and now with that question squarely before the Supreme Judicial Court (SJC) in the case of DOR v. Grullon, we have joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

[I]ndigent litigants are forced to navigate the legal system without legal representation even in cases where basic human needs are at stake.

BBA Task Force Report, Gideon’s New Trumpet

Here, the defendant-appellant—a partially disabled, indigent veteran—was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he is now represented by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR).

The judge at the hearing took issue with a comment made by the petitioner, which she interpreted to mean that the petitioner was not taking his responsibility seriously. The judge found the petitioner in contempt of court and sentenced him to ten days in jail. Also at issue is whether the sentence was intended as punishment or to compel the petitioner to comply with the standing support order, and whether the court made the proper findings that the petitioner—who was homeless and engaged in a vocational rehabilitation program to help find work compatible with his disability—had the ability to pay the support order or the so-called “purge amount,” i.e., the amount that must be paid to secure the petitioner’s release from incarceration.

Because he could not afford the purge amount of $500, Grullon served the full ten days in jail, during which time he missed vocational training, further setting back his ability to return to work. (According to VLS, research demonstrates that incarceration is rarely effective in such circumstances and is counterproductive with regard to both future compliance and fatherhood engagement.)

In July, the SJC, without explanation, granted direct appellate review of the lower court’s decision. Our Amicus Committee—chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—recommended that the BBA join an amicus brief in support of Grullon’s argument, and the Council voted to join the MBA’s brief, as drafted by Thomas J. Carey, Jr., of Hogan Lovells. The brief was also joined by Boston College Law School professor Mark Spiegel, and the ACLU of Massachusetts filed a separate letter expressing to the SJC their endorsement of the brief. (The Massachusetts Law Reform Institute, the Committee for Public Counsel Services, and the Jewish War Veterans of the USA each weighed in as well in support of a right to counsel in such cases.)

In a 2011 case, Turner v. Rogers, the US Supreme Court addressed this issue, reversing a state-court decision in which an unrepresented noncustodial parent was incarcerated for non-payment of child support. That Court concluded that the incarcerated parent’s due-process rights had been violated, but stopped short of recognizing that a right to counsel is “automatically” required in all civil contempt hearings. Among other concerns, the Court noted that asymmetry of representation between purely private parties might skew the playing field, and expressed a belief that procedural protections other than a per se right to counsel would be adequate to satisfy federal due process standards in most private cases.

Poor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.

MBA/BBA Amicus Brief in DOR v. Grullon

The MBA/BBA brief in Grullon argues that Mr. Grullon did not benefit from the specific alternate safeguards that might obviate the need for counsel under Turner, and that systemic flaws exist in the processing of civil contempt matters in the Probate and Family Court. “[W]hen government attorneys advocate imprisonment of unrepresented indigent defendants for debt,” the brief states, “the risk of error is unacceptable, and the value of court-appointed defense counsel is indisputable.”

It goes on to say that while the SJC may wish to take further remedial steps, in the exercise of its supervisory powers over the administration of justice—including promulgating clearer court forms, creating universal standards, requiring written findings, and tasking a working group to evaluate current practices and make recommendations—“such steps should be additional to and not in substitution for a constitutional right to court-appointed counsel for indigent defendants faced with government lawyers and a realistic risk of imprisonment”.

As argued in Gideon’s New Trumpet, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA has long advocated for a broader right to counsel in civil cases, including…

• through the courts
  • See, e.g., amicus briefs the BBA joined in related 2014 and 2015 cases that resulted in such a right where a child may be taken from a parent/guardian.
• and through legislation.
  • See, most recently, our support for the coalition seeking to enact a right to counsel for indigent tenants and landlords in eviction cases.

The SJC’s oral arguments in Grullon will be held this Thursday, January 9, and can be viewed, through the Suffolk Law School web-site, either live (starting at 9am) or in archived form. Veterans’ Legal Services will be representing the Appellant, and you can read their brief here. A decision is expected by May.