State House Happenings

Today, May 17th, marks the day that Massachusetts joins the 48 other states that provide post-conviction access to DNA and testing.  Getting to this point has been a long time coming as bills providing for such testing have been filed for years in the legislature.  The BBA’s involvement began in 2008 with the formation of the Task Force to Improve the Accuracy and Reliability of the Criminal Justice System.  Since then, the BBA and our partners have been working on this issue and we’re pleased that the standard now in Massachusetts will be a statutory right for a defendant to obtain access to forensic and scientific evidence in their case.  To read more about the new law check out this article by Professor David Siegel of New England Law | Boston and Gregory Massing, Executive Director of the Rappaport Center for Law and Public Policy.

Come on Oklahoma, make it 50 for 50!

*    *     *

Yesterday, May 16th, the Massachusetts Senate Ways and Means Committee released its proposed budget.  Senators have until Friday, May 18th to file any amendments either on behalf of themselves or their constituencies.  The full Senate will debate the budget beginning the week of May 23rd.

The BBA views funding for the justice system as more than just the sum of its parts.  From our vantage point, adequate funding is a fundamental challenge facing the entire justice system – Committee for Public Counsel Services, District Attorneys, civil legal services providers and our state courts.  As we continue to look at the needs of the entire system and exactly what is needed to serve the people of the Commonwealth who rely on the justice system every day, we will keep a watchful eye on what happens in the Senate next week.

While the salaries for assistant district attorneys are still abysmally low, D.A.’s fared marginally better in the Senate budget proposal than they did in the House.  Below is a closer look at the other pieces of the justice system’s budget – the Trial Court, the Massachusetts Legal Assistance Corporation and CPCS:

The Massachusetts Trial Court – The Trial Court’s request for FY13 was $593.9 million

  • Senate budget proposal – $561.9 million
  • House budget – $560.9 million
  • Governor’s budget – $429.7 million (moved the Probation Department to the Executive Branch)

* The Trial Court estimates that the Governor’s budget for the Trial Court with the Probation Department included would be $568 million

The Massachusetts Legal Assistance Corporation – MLAC’s request for FY13 was $14.5 million

  • Senate budget proposal – $11 million
  • House budget – $12 million
  • Governor’s budget – $12 million

Committee for Public Counsel Service – CPCS’s request for FY 13 was $186.4 million.

  • Senate budget proposal – $162.4 million.  Neither the Senate Ways and Means budget proposal nor the House budget includes a mandated staff expansion that the Governor’s budget proposed.
  • House budget: $162.6 million
  • Governor’s budget: $164. 5 million – proposes a CPCS expansion increasing the 25% staff model to a 50% staff model to handle indigent criminal cases.

We urge you to call or email your state senator (if you don’t know who your state senator is, look it up here).  Ask your state senator to co-sponsor and support Senator Creem’s amendment to increase the MLAC line item to $14.5 million.  Also, ask your state senator to urge Senate President Murray and Chair of the Senate Ways and Means Committee Brewer to support Senator Creem’s amendment.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

The Low Down on Judicial Salaries

Next Wednesday, May 16th, the Massachusetts Senate will release its proposed Fiscal Year 2013 budget.  The Senate debate on the budget will begin the week of May 21st and the BBA is still pressing for more money for our justice system – in particular for our state courts and for civil legal aid.  The need for increased funding and the impact of an inadequately funded judiciary have been described most recently here and here.  Fundamental to the administration of justice – and an important piece of the justice system puzzle – is the full and fair compensation of our state court judges.  Being able to recruit and retain the highest caliber of judges is an integral part of our ability to provide the highest quality of service to all people who use our courts.

While we appreciate the gravity of the current economic conditions, especially when it comes to the state budget, it’s of serious concern that salaries for Massachusetts trial court judges rank 47th in the country.

Some sobering facts…

  • The last salary increase for Massachusetts state court judges was in 2006.  The previous salary increase was in 2000.
  • In 2008, Governor Patrick appointed the Advisory Board on Compensation, now known as the Guzzi Commission, to study the adequacy of compensation of high-level officials in the executive, legislative and judicial branches of state government.  The Guzzi Commission’s recommendations included a salary increase for judges indexed to the Consumer Price Index for Urban Workers for the Northeast Region.
  • The National Center for State Courts released its latest Survey of Judicial Salaries in July 2011 with alarming news for Massachusetts.  The report found that Massachusetts judges’ salaries ranked in the bottom half nationally for judges in the highest court, appellate court and trial court.  With cost of living adjustments, Massachusetts Trial Court judges’ salaries rank 47th in the U.S.

The BBA has been looking at this issue for more than twenty years, and this issue has come into focus again with legislation that has been filed by Representative Ellen StoryH 2265, An Act relative to the compensation of judicial officers and cost of living adjustments, would provide our state court judges with adequate salaries and a mechanism for keeping them consistent with the cost of living.

In 1992 the BBA’s Committee on Judicial Compensation issued a report, A Call for Continued Excellence: Fair Compensation for Our Judges and Judicial Employees, concluding that by almost every relevant statistical measure, compensation levels for judicial system employees are inadequate.  The Report went on to say that the inadequacies in compensation levels have a negative impact on the ability to retain experienced judges and court personnel, efforts to recruit qualified candidates and morale of court personnel.  The Report also recommended that a permanent mechanism be established whereby judicial salaries would be indexed to the inflation rate or to cost of living increases.

The BBA revisited the issue in 2000.  That group’s report, Judicial Salaries in Massachusetts, concluded that judges in Massachusetts remain under compensated compared to judges in other states, the federal system and to junior attorneys.

H 2265 is consistent with the principles that the BBA supports on this issue: adequate compensation of judges and the institution of a permanent mechanism that makes annual adjustments to reflect cost of living increases.  These things are fundamental to the administration of justice and need to remain a high priority regardless of the economic straits of the Commonwealth.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief on Adopted Children Statute

The latest BBA amicus brief was filed on Monday, April 30th in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  The Bird case, currently before the Supreme Judicial Court (SJC), deals with ambiguities regarding adopted children as beneficiaries of a family trust.  The Bird case is an opportunity for the SJC to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute, which became effective on July 1, 2010, retroactively changed the understood rule of construction of terms like “child,” “grandchild” and “issue” to include adopted children, even for instruments created when the law did not include adopted children within those terms.

In its amicus, the BBA urges the SJC to rule on whether retroactive application of Chapter 524 (as currently interpreted) is constitutional and, if so, to provide guidance on the consequences for actions taken by fiduciaries relying on Chapter 524.

Filing amicus briefs is just one way that the BBA makes its views on matters of policy known.  We also draft legislation, comment on proposed government actions and legislative proposals developed by other groups, and publish reports and written statements.

The BBA gets several requests to file amicus briefs each year.  In the last three years we’ve filed four briefs.  However, we’ve received at least twice that many requests.  The BBA’s standard for filing an amicus brief or signing onto an amicus brief prepared by another entity is that the position sought to be advanced must relate to (a) the practice of law; or (b) the administration of justice – exceptions to this rule are considered on a case-by-case basis.  In the Bird case, the brief relates to “the practice of law.”

The BBA has been an amicus curiae in cases that have altered the policy landscape in Massachusetts and the United States.  Here are just some examples of our work in this area in the last few years:

  • Grutter v. Bollinger – The Michigan affirmative action case holding that race conscious admission policies are vital to integrating the legal profession.

Brief Background on the BBA’s Interest in the Bird Case

In May 2009, the BBA Council voted to support An Act to Repeal the Adopted Children’s Act which, if passed, would repeal Chapter 524 of the Acts of 2008 (as would a ruling by the SJC in the Bird case that Chapter 524 is unconstitutional).  During this current legislative session, the BBA filed An Act to Repeal the Adopted Children’s Act, known as H 2262.  H 2262, now under consideration by the Joint Committee on the Judiciary, would also provide that such repeal would not affect the validity of any action taken or distribution made pursuant to Chapter 524 while Chapter 524 was in effect.

While seeking a legislative fix, we learned of the Bird case.  The decision to file an amicus brief in this case came after a vetting process that began with debate and discussion in the steering committee for our Trusts & Estates Section.  The steering committee of the Trusts & Estates Section felt strongly that retroactive changes in the law which affect vested property interests, including beneficial interests in trust, raise serious constitutional concerns.  They requested the BBA’s Amicus Committee review and consider their request to file an amicus.

The BBA’s Amicus Committee, responsible for reviewing amicus requests and making sure that any potential brief fits into the BBA’s established criteria, discussed the request and also invited opposing counsel to provide input as to whether or not the BBA should weigh in on this issue.  In this situation the Amicus Committee decided to recommend to the BBA’s Executive Committee and Council that the BBA weigh in as amicus curiae in the Bird case.

The SJC is set to hear arguments on this issue on May 7th.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Justice System Budget Update

After just three days the House of Representatives concluded its work on a $32.4 budget that provided $12 million for the Massachusetts Legal Assistance Corporation (MLAC) and $560 million for the Massachusetts Trial Courts.   This was a victory of sorts for MLAC and the Trial Court since the original House budget appropriation was less.  Issue Spot reported on the House’s initial budget only a couple of weeks ago.

Thanks to our BBA members who made phone calls and sent emails to their state representatives.  It made a difference.  One member of the House who was present in the budget caucus room when these amendments were being discussed said there was a huge showing of support for the MLAC amendment when it was under consideration.  It was also reassuring to hear that members of the House recognized the unmet needs of our justice system when the focus turned to the Trial Court. In the end, both MLAC and the Trial Court received a bump in their funding.

Among the amendments that did not pass and were therefore not included in the final House budget was an amendment that would have provided the new Court Administrator with broader authority to transfer funds within the Trial Court.  Currently, transferability is authorized across the Trial Court departments, but restricted relative to Probation and Community Corrections accounts.  Transferability from the latter two line items from another court line item cannot exceed 5%.  The amendment would have removed the restriction and allowed transfers between any line item within the trial court to any other item of appropriation within the trial court as deemed necessary and appropriate for FY 2013.

Our work is not done.
(1) We urge you to thank the representatives that we reached out to this week.  A special mention to Representatives Ruth Balser and John Keenan, both of whom were the lead sponsors on the amendments calling for increases to MLAC and the Trial Court.

(2) Please contact your senators as the Senate starts to build their version of the budget.  Just as we did in the House, we need to reach out to our senators and share our personal stories of how underfunding the justice system has adversely affected us, our practice and our clients’ lives.

– Kathleen Joyce
Government Relations Director
Boston Bar Association

Second Wave of CORI Reforms Takes Effect May 4

The second phase of the Criminal Offender Record Information (CORI) reform is set to go into effect on May 4th – the first phase took effect on November 4, 2010.  In advance of the second phase’s implementation, Issue Spot is providing a quick backgrounder on the new law and an overview of the changes you should expect.

As you may know, CORI records are any record or data compiled by a Massachusetts criminal justice agency about an individual relating to a criminal charge, arrest, pre-trial hearing, other judicial proceeding, sentencing, incarceration, rehabilitation or release (it does not include juvenile criminal history, except for youthful offender charges).  CORI records are managed by the Department of Criminal Justice Information Systems (DCJIS) which provides a system for sharing information between the Massachusetts criminal justice and law enforcement community.

In 2007, the Boston Bar Association released a Statement of Principles on CORI (alluded to in our 2009 testimony) identifying four areas needing immediate reforms: the accuracy of CORI records; clarification as to who has access to CORI records; sealing of CORI records; and CORI matters unique to juveniles.  The BBA worked closely with lawmakers and other advocates to pass legislation that would improve the accuracy, access and sealing of CORI records.  Our collective efforts were rewarded in August 2010 when Governor Patrick signed the CORI reform bill into law.

Phase 1

Since November 2010, employers have not been able to ask prospective applicants to check off boxes on employment applications that reveal information about their criminal history.  Known as the “ban the box” provision, it forces employers to judge employment applications on the merits on initial application forms.  There are important exceptions to this, including employment where federal or state law disqualifies applicants with a conviction of certain types of criminal offenses.

Employers can only consider criminal history later in the hiring process.  This gives all applicants an opportunity to make it through a preliminary screening process and increases the odds of being hired.  Ex-offenders who have steady, gainful employment are less likely to recidivate, which lowers dependence on valuable state resources and increases public safety.

Phase 2

On May 4th several other reforms will take effect.  A few key terms to understand with regard to the CORI reforms include:

  • Standard Access – access to information on any criminal charges pending as of the date of the request; felony or misdemeanor convictions; convictions that have not been sealed; and any murder, manslaughter, and sex offenses.
  • Required Access – employers who must comply with statutory, regulatory, or accreditation requirements regarding employees’ criminal records; and employers under federal or state law authorizing or requiring them to conduct CORI checks such as schools, camps, day care centers, and nursing homes.
  • Open CORI – information including misdemeanor conviction with one year of conviction or release from incarceration; felony convictions within two years of conviction or release from incarceration; all felony convictions punishable by five or more years of incarceration; and all murder, manslaughter and sex offense convictions.

The major reforms set to take effect on May 4thinclude:

  • All employers and landlords will have Standard Access to CORI
  • The public will have Limited Access to Open CORI
  • Certain employers will have Required CORI Access
    • Hospitals and banks
    • Schools and day care centers
    • Nursing homes and assisted living facilities
  • iCori
    • A pay-for, secure, web-based system from the DCJIS.
    • To receive CORI access, landlords and employers will be required to register annually for an iCORI account.
    • Individuals will be able to use iCORI to request their own personal CORI’s from DCJIS.
    • The public will be able to use iCORI to request Open CORI from DCJIS.
  • Sealing Conviction changes
    • Misdemeanors will be sealed 5 years after conclusion of sentence and/or supervision.
    • Felonies will be sealed 10 years after conclusion of sentence and/or supervision.
    • Sealing is administrative – no court appearance necessary.
    • Restraining order violation convictions treated as felonies.
    • Sex offenses fall into their own category.

For more detailed information, check out DCJIS’ website or fact sheet.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

The House Budget in Brief

Yesterday, the House Ways and Means Committee released its $32.3 billion budget proposal for Fiscal Year 2013, marking the second phase of the annual state budget process.  Debate on the budget will begin the week of April 23rd and then the focus will move to the Senate.  The final budget will be presented to Governor Patrick in time for the beginning of the new fiscal year beginning July 1st.

The BBA likes to view the budget through the lens of the entire justice system – focusing on the impact that the state budget has on our state courts, our civil legal aid providers, the Committee for Public Counsel Services, and the District Attorneys’ Offices – rather than seeing the budget appropriations as unrelated pieces.   Adequate funding of the entire justice system in Massachusetts is essential to ensure the equal and timely access to justice.

Before comparing the House budget to the Governor’s budget, it is important to know that the two budgets begin with different revenue figures.  The House budget does not rely on any new taxes or new fees while the Governor’s budget that was released in January did.  The Governor’s budget – which Issue Spot commented on when it was released too – included new revenue from a higher cigarette tax, an expansion of the bottle bill, and a sales tax for soda and candy.

Some takeaway’s from the House budget:

The Massachusetts Legal Assistance Corporation – MLAC’s request for FY 13 was $14.5 million

  • House Ways and Means budget: $11 million
  • Governor’s budget: $12 million

*Read last week’s Massachusetts Lawyers Weekly Op-Ed for more (log-in required)

The Massachusetts Trial Court – The Trial Court’s request for FY 13 was $593.9 million.  This “critical need” funding would have provided for some limited hiring to restore services.

  • House Ways and Means budget: $554 million – includes the Probation Department in the Judiciary
  • Governor’s budget: $429.7 million – moves the Probation Department to the Executive Branch

*Check out the Trial Court’s graph to see the dramatic decline in personnel and helpful information on their case filings and funding.      

Committee for Public Counsel Service – CPCS’s request for FY 13 was $186.4 million.

  • House Ways and Means budget: $162.6 million – includes a $23.7 million cut to the private counsel line item.  The House Ways and Means budget does not include a mandated staff expansion that the Governor’s budget proposed.
  • Governor’s budget: $164. 5 million – proposes a CPCS expansion increasing the 25% staff model to a 50% staff model to handle indigent criminal cases.


-Kathleen Joyce
Government Relations Director
Boston Bar Association

Dispelling 4 Myths About Court Funding

Recent coverage in the Boston Herald of the BBA and MBA’s Court Advocacy Day at the State House evoked a compendium of misinformed commentary on how to solve the problem of an underfunded Massachusetts Trial Court.  Issue Spot felt compelled to present the facts and dispel the myths.

Myth #1 – The judiciary and court staff received an across the board 9% pay increase

Not true! Salary schedules for management employees have been unchanged since 2004 and salaries for judges and clerks have remained unchanged since 2006.  Also, most managers and judges took a five-day furlough in 2010 to ensure that budget cuts would not force layoffs.

As for the 9% pay increase…Because of the fiscal crisis, no union employees of the Trial Court received the increases to which they were legally entitled under collective bargaining agreements. In 2010, Trial Court union employees were being paid on the same salary schedule as in 2007. In 2011, increases negotiated for court officers and probation officers went into effect. They received an increase which was consistent with the increases negotiated for employees in other state agencies. In addition, the Trial Court retroactively paid salary increases negotiated several years prior for clerical employees.

Myth #2 – Massachusetts judges work minimal hours

Issue Spot will leave the issue of salaries for another time but, for the record, Massachusetts judges’ rank 47th among judicial salaries. The notion that our judges work less than forty hours a week is just plain false.  Not to mention that, in recent years, filings in Massachusetts have increased – especially in cases of bankruptcy, eviction, domestic abuse, etc. – while judiciary staff has been decreased.  Judges have fewer law clerks to assist with research and to help prepare decisions which directly impacts their ability to deliver decisions in a timely manner. The extended backlogs in approximately forty of the state’s courthouses have forced clerks and registers to reduce public hours of operation in order to get caught up on paperwork.

Myth #3 – State workers are being cut, so should the number of judges

Some background about our state court judges and their staff…The number of authorized judicial positions is set by statute and those appointments are made by the Governor.  At any given time there are unfilled judgeships. Currently there are 25 judicial vacancies.

The judiciary is not immune from a shrinking staff.  Since 2008, the Massachusetts Trial Court has had a strict hiring freeze that has not only prevented the expansion in the number of positions, but has also kept positions vacant when staff leave. Today, there are 1,316 fewer court employees than in July 2007.

Myth #4 – Gas Prices Are Correlated with Funding for the Courts

Taxachusetts01 lamented taxes and the rising cost of gas, implying that gas taxes are used to fund the courts.

Connecting the budgets of other state agencies, departments or branches to funding for the judiciary defies all logic. For the most part, state revenue from gas taxes is earmarked for transportation funding. While Issue Spot can empathize with frustration over gas prices, it has no bearing on the judiciary’s budget (or almost any other state entity).

As we wait for the House of Representatives to file their budget next week, we urge the Legislature to appropriate $593.9 million for the Trial Court.  The reality is that our state courts need this money in order to function properly.

Practitioners’ Perspectives: The Massachusetts Uniform Probate Code

The Massachusetts Uniform Probate Code (MUPC) takes effect on March 31st and Issue Spot reached out to some BBA members for their take on the new law.  Below are the independent thoughts of the expert trusts and estates attorneys we surveyed:

Peter Shapland – Day Pitney LLP

Most attorneys agree that the greatest benefit from the MUPC will be in the greater ease of “probating” wills and in the administration of testate estates.  The “informal probate” process will permit executors to begin their work in most cases without any undue delay and without any formal reporting to the Probate Court along the way.

The MUPC will not dramatically change my advice to estate planning clients, since I’ve never felt that the Massachusetts probate system was all that unduly burdensome.  The MUPC does permit some additional flexibility in the drafting of wills (e.g., disposition of tangibles), but most of the changes will come in the greater efficiency of administration of estates.

I can think of no cases where the outcome would differ under the new MUPC, but I can think of many cases where an estate would’ve been administered more easily under the MUPC, making the outcome come out sooner.

Brad Bedingfield – Wilmer Cutler Pickering Hale and Dorr LLP

Perhaps the biggest benefit I see from the MUPC for my practice is virtual representation.  The ability to file cases without necessarily having to use a guardian ad litem will streamline certain matters.

In addition, the new rules regarding limitation of actions against trustees who present final accounts or statements to beneficiaries (but don’t necessarily seek formal approval of the court of the trustee’s accounts) will give some certainty to trustees who provide sufficient information to beneficiaries but don’t want to procure assents or incur the expense of court proceedings.

Cameron Casey – Ropes & Gray LLP

I expect that the greatest benefit of the new probate law will be that many estates can be administered informally, meaning that the beneficiaries of the estate, rather than the Probate Court, have primary oversight over the personal representative’s actions.  In informal administration, the appointment of the personal representative – whom we used to call the “executor” – can be accomplished quickly (as soon as a week after the decedent’s death), and the estate settlement process is greatly simplified.  In addition, in many cases, trustees of testamentary trusts will be relieved from having to regularly account to the Probate Court and petition to have their accounts allowed – a process that in the past has entailed a significant investment of time and expense for the trustee.

I anticipate that we will advise many of our clients to choose informal administration, which will streamline the probate piece of the larger estate settlement process and reduce costs and headaches for the clients.  (There is a noticeable furrowing of clients’ brows when you tell them that, under current law, they must wait several weeks or even months to be appointed executor.)

In certain circumstances, we may also incorporate testamentary trusts into our estate planning for clients, which we have rarely done in the past because of the accounting burden discussed above.  So, for example, rather than create a new inter vivos trust or search for an existing trust to hold property for a client’s children until they reach a designated age, we may instead draft a simple, short-term trust under the client’s will.

Whether in the context of estate planning or probate matters, the new law adds to the trusts and estates  lawyer’s toolbox, giving her additional ways to help clients arrange their affairs in the simplest and most reasonable way.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

NDAA Dangers Still Loom

In December, BBA President Lisa Goodheart urged President Obama to veto the National Defense Authorization Act for Fiscal Year 2012 (NDAA) because it was a radical departure from the rule of law established in the United States.  In particular, the detention principles in the bill pose serious threats to fundamental constitutional principles protecting individual civil rights and civil liberties.  Ultimately, President Obama signed the NDAA into law stating “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”  In a recent panel on the NDAA at the BBA, one expert described the bill as “the most alarming new law never heard of by most Americans.”  Here’s why.

Sections 1021 and 1022 of the NDAA allow for the indefinite detention of terror suspects – including American citizens arrested domestically – without a trial or charge.  The authority granted to the federal government by Sections 1021 and 1022 is clearly contrary to the principles of access to justice and civil rights that has served our country from its founding.  It also authorizes the military to make such detentions, holding U.S. citizens in military custody or prosecuting them in military tribunals.  This circumvents the U.S. Justice Department and avoids the federal court system which has successfully prosecuted hundreds of terrorism-related cases – including several here in Massachusetts.

Another troubling part of the bill is Section 1028.  This Section places undue roadblocks in the way for Guantanamo Bay detainees who have been cleared of wrongdoing and are trying to be transferred to foreign countries willing to accept them.  There are more than 170 men left in Guantanamo Bay – 89 have been cleared of wrongdoing and could be transferred immediately.  Section 1028 requires certain additional certifications and compliance in the use of funds to transfer detainees that only prolong the unjust detention of individuals found innocent of alleged crimes against the United States.

So where are we now?  The NDAA went into effect on March 1st.  In late February, President Obama issued Presidential Policy Directive 14 which sets out procedures for implementing Section 1022 of the NDAA.  Directive 14 contains a broad set of waivers that could be understood to mitigate the controversial Executive powers granted by the NDAA.   However, it is not a permanent solution.  Just because this President vows to not abuse the powers vested in the Executive by the NDAA, it does not eliminate the possibility of the next President – be it next January or 4 years from now – interpreting the NDAA differently.

The NDAA threatens our American ideals of civil rights.  Every time our rights are changed, our enemies win another victory.  Although the President has expressed his discomfort with the NDAA and issued Directive 14, this affront on our adherence to the rule of law is unacceptable and must be reversed.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

The Real Story on the MA Alimony Reform Act

An op-ed that ran on last week took a critical and somewhat nonsensical look at the Alimony Reform Act of 2011.  Issue Spot has reported on how well-received the legislation was by the private bar, the Probate & Family Court and the Legislature.  It has been heralded as a model of grassroots activism, coalition building and real collaboration.  Last week’s op-ed oversimplifies the new law and ignores key parts of the legislation.  Allow Issue Spot the opportunity to set the record straight.

The op-ed begins by describing the Alimony Reform Act as “strangely arcane” and a few paragraphs later as “a dangerous bill.”  The structured blueprint for awarding alimony that is spelled out in the bill is clear and transparent.  As for it being dangerous — this bill wasn’t hastily drafted, and it doesn’t disguise what it proposes to do.  There was a public hearing and, remarkably, the bill won the bipartisan support of the House of Representatives and the Senate when it was passed unanimously.  The Task Force behind the bill was then lauded for their outstanding work and tireless efforts by Governor Patrick at the signing ceremony.

The article also points to victims of domestic abuse who “might feel pressured to stay in an abusive relationship to make it to a particular cut-off period.”  Abuse-based relief was actually written into the law whereas in the past it fell under the umbrella of “conduct.”  It was judge-dependent how much weight would be given to conduct when deciding this issue.

What the CNN guest contributor is also discounting, or not mentioning, is that there are short term marriages in which there is domestic violence.  In the past, it could be a terrifying prospect to leave an abusive marriage in which the victim was economically dependent, precisely because the old law made it difficult for spouses in short term marriages to obtain alimony orders.  With the new law, alimony is available to the short term marriages, which can give a leg-up to victims who need to get out of the marriage.  Under the old law, those victims may not have received relief due to the brevity of a marriage.

These charges against the Alimony Reform Act are unfounded.  Conveniently for the author’s argument, she omits that under the new law alimony is awarded according to specific timelines.  The new law still allows the court to deviate from the durational requirements for reasons set forth in the statute or for any other factor that the court deems relevant and material.  Although one of its appealing benefits is that it provides clarification and predictability for awarding alimony, the court must still take all factors into consideration when making any decisions.

As one family law expert told Issue Spot this summer “the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion.”  This makes the author’s example of a woman faced with homelessness if her alimony payments cease far-fetched.  What judge would ignore such a situation and condemn a woman to homelessness?

Besides, the author says that the alimony payments of the woman in this example will stop in two years under the new law.  This is not necessarily true.  For starters, payments don’t automatically end under the new law.  The payor has to file a complaint for modification.  It’s hard to know for sure what will ultimately become of the alimony payments, but any complaint for modification is an opportunity for further discussion.  To take an extreme case, as the author has, and hold it up as an example of what durational limits will do without acknowledging that this woman has the ability and the legal grounds to seek additional relief is disingenuous, to say the least.

The article ends with a typical refrain thrown at members of the Legislature: lawmakers only answer to the whims of lobbyists.  The process used to reform the alimony laws in Massachusetts was exhaustive and inclusive.  The Task Force assembled by the Legislature drew all stakeholders to the table – the BBA, the Massachusetts Bar Association, representatives from the court, attorneys who represent the very wealthy and those that represent the poor, concerned citizens, and even the Women’s Bar Association.  Instead of celebrating and acknowledging the contributions of those involved, the article diminishes their work.  The new alimony law in Massachusetts, despite what is claimed by critics, is not an oppressive, automatic cut off; it is a framework with a built-in mechanism for a judge to consider facts in order to make fair alimony determinations.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association