Sentencing Legislation Teed Up for Sept.

While it has been reported that the halls of the State House have been quiet lately, work is still getting done in the legislature.  Not only was the 155-page casino bill released this week, but the Judiciary Committee announced their hearing schedule for September.  The Judiciary Committee will hold two public hearings next month.  Bills pertaining to sentencing and re-entry issues will be heard on Tuesday, September 20th and bills relative to sex offenders and statute of limitations will be heard on Tuesday, September 27th.

Scheduling these two hearings almost immediately after the unofficial summer recess is significant and sends the message that the legislature wants to do sentencing reform…

The agenda for the first hearing contains 44 pieces of legislation currently under consideration by the Judiciary Committee.  One of those bills, House 40, was filed by Governor Patrick earlier this year and would provide parole eligibility for non violent offenders in state prisons.  House 40 builds upon the sentencing reforms contained in the comprehensive crime bill that Governor Patrick signed into law last August.  Last session’s crime bill is known for its landmark CORI reform, but it also included other important reforms such as parole eligibility for drug offenders serving mandatory minimum sentences in county prisons.  Now, parole eligibility can only be granted if the drug offenses did not involve guns, violence or children, and if the individual did not direct others in the sale of drugs.

There’s a lot of work to be done in this area.  Recently the Legislature established the Special Commission to Study the Commonwealth’s Criminal Justice System that will begin its work in September.  One of the board members will be a representative from the BBA and we look forward to being involved in the debate on policies that keep our Commonwealth safe while offering sensible solutions to Massachusetts’ sentencing practices.

-Kathleen Joyce

Government Relations Director

BostonBar Association

Practictioners’ Perspectives on the Alimony Reform Act

With the Alimony Reform Act of 2011 poised for passage, we thought we’d ask some of our members to share their reactions on the coming changes.  Here are the independent thoughts of the expert family law practitioners we canvassed:

Nan Elder – Bowman Moos & Elder, LLP

I think the principle benefit of the impending statutory change lies in the fact that it provides some scaffolding around which alimony awards can be negotiated and structured.  But the amount is only “some,” and the structure only “scaffolding” because the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion – and it will take some years and quite a bit of litigation and appellate work to better clarify the full structural outlines.  For shorter term marriages, it may provide more guidance and definition sooner, and thus enable more ready resolution of them.   Longer term marriages will, however, quite probably still raise significant issues regarding its application.  This will be especially true in both new divorces and modifications for those “traditional” cases where one spouse has been the primary wage or salary earner and the other the caretaker and homemaker, often in expectation of, reliance on, and even with the express understanding between spouses of, the indefinite continuation of this family model.

As with any change of such magnitude, the transition will be arduous in a number of respects.   For litigants, it presents both an opportunity for relief and resolution for some and a source of reopening of wounds and the burdensome expense of extended or renewed litigation for others.  For lawyers, it presents an opportunity for some really creative thinking and lawyering, as well as for providing a framework for advising clients – but cynics might also suggest it presents an unexpected or unwarranted bonanza of new work.  For the courts, its implementation risks further burdening an already broken system.  Although the legislation staggers the availability of modifications of alimony judgments predating its effective date in March 2012, most practitioners I’ve talked with expect a flood of requests in addition to the uncertainty and litigation that will inevitably ensue as the statutory structure is fleshed out.

While the transition and implementation may well be both lengthy and rocky, the end result will hopefully provide some measure of clarity, if not certainty, especially for shorter term marriages.

Jennifer Rivera-Ulwick – Middlesex Probate & Family Court

The benefit of the proposed changes is the potential sense of predictability and consistency in determining alimony which will allow people to resolve this issue without seeking court intervention at the trial level.   Like the Child Support Guidelines, the law will provide a roadmap of sorts in formulating the appropriate alimony award, if any, based on the circumstances of the parties.  Given the new scheme for setting the duration, amount and form of alimony awards, I anticipate not only a decrease in the number of cases tried over alimony but also an increase in modifications being filed with the court to adjust prior alimony orders in accordance with the new legislation.  The roll-out dates, which determine when a modification may be filed as a result of the change in the law, will initially help relieve the courts from being overburdened with modification filings although the number of filings may depend in part on the level of awareness of the changes on the part of alimony obligors which is sure to increase each year after the law becomes effective.

Anita Robboy – Prince, Lobel & Tye, LLP

Massachusetts is long overdue for a critical look at Section 34 as our Commonwealth is very much out of line with nearly every state in the duration of alimony awards.  The Bill has clear guidelines regarding expected points of termination.  The major change will be that attorneys can no longer state that a Probate and Family Court judge lacks the power to terminate alimony.  The Bill specifically enables judges to limit the duration of alimony and to amend prior judgments that had no termination point.  The interplay between alimony awards, if any, and the division of assets is forever altered.  The recipient of alimony has lost an important ‘chit’: the value of future alimony.  The payor can rely on obtaining termination upon the happening of certain events, such as age, the length of alimony already received in relation to the marriage, and cohabitation.  Counsel must now advise clients that alimony comes, if at all, in a variety of flavors.  It will be important to strategize which form of alimony is applicable and/or most advantageous.

John Fiske – Healy, Fiske, Richmond & Matthew

As a mediator, I see the greatest benefit of the alimony bill as analogous to the Child Support Guidelines: it gives clients a good idea of what a court would do without their having to go to court.  In my 32 years of mediating divorces, the uncertainty of the length of alimony has been the most challenging obstacle for many husbands and wives.

I will tell [my clients] I want them to make informed choices, and to read the law, or any available summary of the law including my own, to get an idea of what a court would do before they choose their own solution.  The outcome of many of my cases would not be very different [had the reforms been in place previously], but the process of getting there will be more efficient. The outcome in some of my cases will be different, probably reducing the number of cases where clients define alimony for a certain period and then agree to leave open the question of whether to continue alimony in some amount after that date.  This law will be beneficial to just about everybody: clients, children, lawyers, mediators, judges, probation officers and financial planners for example.

-Michael Bouton

Government Relations Department

Boston Bar Association

Still Proud to Be First!

Recently, New York became the latest state to legalize same-sex marriage when Governor Andrew Cuomo signed the Marriage Equality Act into law in June.  A 62-member Senate had approved the bill by a vote of 33-29.  The bill officially took effect July 24th, which marked 30 days since Governor Cuomo signed it into law.

However, this monumental decision by the New York State Assembly did not come without a fight. Lawmaker Daniel O’Donnell, the first openly gay member of the New York State Assembly, introduced a same-sex marriage bill in 2007, which was approved by the Assembly three times in five years, but subsequently rejected by the Senate each time. The final push towards legalization came with a switch in the opinion of four of the New York representatives (three Democrats and one Republican).  Some of the representatives admitted that they were swayed by the public opinion in their districts while others revealed a change in their moral stance on the issue.

Following the Supreme Judicial Court’s 2004 ruling in Goodridge v. Department of Public Health, Massachusetts became the first state to legalize same-sex marriage. The Boston Bar Association filed an amicus brief in support of the plaintiffs in the case, seven same-sex couples who argued that Massachusetts law subjected them to discrimination by denying them the right to obtain civil marriage licenses.   When the Massachusetts law officially took effect on May 17, 2004, we became the sixth jurisdiction in the world to legalize same-sex marriage after the Netherlands, Belgium, Ontario, British Colombia, and Quebec.  Since then, several U.S. jurisdictions (Connecticut, the District of Columbia, Iowa, New Hampshire, Vermont, and now New York) have joined Massachusetts in enacting similar measures to legalize same-sex marriage.

President Obama’s 2011 decision to direct the Justice Department to stop defending the Defense of Marriage Act (DOMA) against lawsuits challenging its constitutionality marked a significant shift in the political atmosphere surrounding the issue. There are currently two cases challenging the constitutionality of DOMA in the First Circuit: Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

The BBA takes pride in its record of supporting equal rights and universal access to justice as the issue of same-sex marriage progresses.  We will continue to monitor same-sex marriage issues throughout Massachusetts and in Washington.

-Michael Bouton

Government Relations Department

Boston Bar Association

Celebrations in the Senate Before the Summer Recess

In the days and even hours leading up to the legislature’s unofficial summer recess last week, there was a flurry of activity in the State House.  In the hubbub of lawmaking that took place, there were a few no-brainer bills that passed, but more contentious ones – like the court reorg bill– came down to the wire.  Among the bills passed was the long awaited and widely supported alimony reform law.  Sailing through with unanimous support in both branches of the legislature, it will make its way to the governor’s desk once agreement is reached between House and Senate differences in the bill.  Also receiving a unanimous vote in the Senate was the bill to provide post-conviction access to DNA.

To an outside observer, or any of the tourists trying to peek their heads inside the jam-packed upper gallery of the Senate Chamber last Thursday, it may have seemed like just another formal session in the Senate.  Senators milled around the chamber, staff came and went.  At 1 p.m., the Senate convened and immediately went into a recess.  Thirty minutes later, Senate President Murray was at the rostrum long enough to recite the pledge of allegiance before recessing again for a few moments.  Over the next hour, after a whirl of activity on various Senate bills, alimony reform was finally taken up and engrossed by a roll call vote of 36-0.  Applause broke out in the Senate Gallery and in the hallway outside.

Next up: access to DNA.  Senator Cynthia Creem took the floor and spoke in support of the bill.  She recognized Betty Anne Waters and the BBA for their contribution to this legislative effort, drawing members of the Senate to stand and applaud their work.  Seven amendments to the bill were then taken up.  Of those seven, two were withdrawn, one was rejected, and the remaining four were adopted.  When the roll call was taken, the bill passed 37-0.

It may have looked easy and effortless, but it actually felt chaotic.  The day before, Senate Ways & Means released the access to DNA bill with improvements and changes.  After reading through the revised bill, the BBA had a few suggestions and asked Senator Creem to file an amendment, to which she agreed.  On the morning of the scheduled Senate debate, other senators filed even more amendments to the bill.  These last minute amendments sparked discussions in the Senate hallways and on email.  Even in the moments before the start of the Senate session we were still trying to fix loopholes that the additions to the bill had opened up.

Then, finally…a signal from the Senate floor.  A senior Senate staffer looked towards the gallery and flashed a thumbs up. Just like that, it was over.  The bill had passed unanimously, capping off a monumental afternoon for those who had labored for years on this issue.  While pausing to take in what had just happened, it was nice to see the House sponsor, Representative John Fernandes, waiting one floor down outside the Senate Chamber.  Rep. Fernandes indicated that he is looking forward to taking this issue up on the House side once the legislature comes back from its summer recess.


-Kathleen Joyce

Government Relations Director

Boston Bar Association

Long Overdue Alimony Bill Hits Gov.’s Desk

**UPDATE 9/26/2011 – Governor Patrick signed The Alimony Reform Act of 2011**


Today the Senate picked up where the House left off last week — passing the long awaited Alimony Reform Act of 2011.  Advocates of alimony reform packed the Senate gallery, wearing red shirts as a sign of solidarity and as a visual reminder of the legislation’s numerous supporters.  Tucked into the cramped viewing area, members of the legislative task force on alimony patiently waited to witness their hard work come to fruition.

Getting to this point, with comprehensive alimony reform on the verge of enactment, has not been easy.  For years lawyers have shared anecdotes of clients forced to pay alimony indefinitely, regardless of circumstances.  They have also pointed to inconsistent rulings leading to forum shopping, and the need to consider cohabitation as a factor in modifying existing alimony agreements.

These past few weeks we have witnessed the culmination of years spent analyzing Massachusetts’ antiquated alimony laws and offering recommendations in the form of legislative proposals.  The process has had starts and stops.  It has been protracted and often contentious.  Yet now, thanks to the perseverance of the BBA and other organizations, the bill is on the Governor’s desk awaiting his signature.

It is remarkable how far we have come.  This outcome is an example of what can be accomplished when individuals with different perspectives identify a common goal.  By working collaboratively and cooperatively, stakeholders approached the problem rationally and hammered out an agreement in which everyone sacrificed something for the common good – the sign of a successful negotiation.

Session after session, alimony bills have been filed, many of which have garnered the BBA’s support.  One such bill added the words “and duration” to the current alimony statute, a simple addition thereby giving judges the discretion to place durational limits on alimony awards.  Pushing for a small change like this can have the advantage of quietly accomplishing a revision without causing as loud a clamor as sweeping change tends to do.  Yet in hindsight, it takes more than just a couple of words to fix the Commonwealth’s broken alimony system.

Last session, the Legislature finally saw the full scope of the problem.  After years of study and advocacy, how could they not?  The Judiciary Committee brought all of the stakeholders together to reach a fair and realistic consensus.  This bill goes beyond the BBA’s initial concerns; it tackles the broken system of alimony head-on in a clear and concise manner.

This entire process has broadened our view of a systemic problem in the administration of justice.  It has also opened our eyes up to just how much can get done when all of the stakeholders in an issue put everything aside to focus on the problem at hand.  The Alimony Reform Act of 2011 is the culmination of years of hard work and will be a victory for justice in the Commonwealth.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Taking Care of Those Who Protect Us

In this past Sunday’s New York Times, a moving article described an Army veteran who, after returning home from Iraq with post-traumatic stress disorder, became involved in a confrontation with police.  While experiencing a post traumatic episode, this particular veteran found himself holding and firing a pistol in the woods behind his Michigan home as law enforcement attempted to defuse the situation.  After being subdued and arrested, he was charged with five counts of assault with intent to murder a police officer.

Unfortunately, this story has become all too typical for veterans with PTSD.  Thankfully in the Michigan case, the judge, police officers, and prosecution worked together to create a plan for the veteran to get treatment for his PTSD through a Veterans Administration hospital and, with good behavior, have a chance for the charges to be dropped.  The answer to this particular case, and to countless others like it, lies not in a lengthy prison sentence, but rather in an alternative, holistic solution.

Here in Massachusetts, Norfolk County District Attorney William Keating, now a U.S. Representative, spearheaded efforts to educate local police officers and first responders about the need to recognize signs of PTSD.  At our 2010 Law Day Dinner, the BBA presented the Norfolk County District Attorney’s Office with the President’s Award for Public Service for its work in developing responses to averting tragedy and serious criminal conduct.

In that same spirit, the BBA has furthered its resolve to provide for the legal needs of veterans.  The Committee on Legal Services for Military Personnel, Veterans, and their Families – – with the active participation of our partners at the Volunteer Lawyers Project and Shelter Legal Services – – has continued to staff numerous Yellow Ribbon events, the most recent of which took place last Sunday.

Yellow Ribbon events occur on weekends at area conference hotels, in the months preceding troop deployment and after troops return.  Using their expertise, BBA volunteers give presentations on basic legal issues that military families might potentially face, in addition to manning tables to answer specific questions.  The Committee has also been active maintaining its referral network that operates as a partnership between the Legal Advocacy Resource Center and the BBA’s Lawyer Referral Service.  This military referral network has been successful at connecting military families to attorneys in Greater Boston, and has served as a national model for the American Bar Association.

With only one attorney and one paralegal employed at the legal assistance office of the Massachusetts National Guard, hundreds of deployed service members and their families are at risk of not having access to legal representation.  For military personnel, common legal issues relating to evictions, foreclosures, domestic violence, and employment, are magnified by lengthy deployments, multiple tours, and distance from home.  The BBA is committed to stepping up and providing for the legal needs of our military families.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Cash-Strapped Courts Cut Again

How any organization can absorb almost $100 million in cuts to its funding over a period of three years seems unfathomable.  But, we’re not talking about just any organization here.  We’re talking about the branch of government responsible for interpreting and enforcing the laws of our Commonwealth.

Earlier this week, Supreme Judicial Court Chief Justice Roderick Ireland and Chief Justice for Administration and Management Robert Mulligan issued a joint statement responding to the Judiciary’s Fiscal Year 2012 appropriation.  Describing the impact that the state budget will have on court operations, the statement included a list of eleven potential courthouse relocations.  The Chief Justices also asked Governor Patrick to stop appointing Trial Court judges for FY12, citing that for each new judge appointed, three members of the court’s staff will have to be laid off.

The issue of adequate funding for the state courts is not new.  The Judiciary has responded admirably to the fiscal pressures of the past three years, but it cannot absorb any more reductions without undermining its constitutional obligation to protect the safety and welfare of our citizens.

If the court consolidations as outlined by Chief Justice Ireland and Chief Justice Mulligan become a reality, there will be undeniable economic and social consequences.  Courthouses are hubs for local businesses that thrive on the thousands of people who use Massachusetts’ courts every day.  Inexorably tied to their surrounding communities, courthouses often harness the power of the justice system to address local problems.  They form creative partnerships and relationships with residents, merchants, churches, schools, and community groups.

Relocating and consolidating courts can also present serious accessibility and public safety issues.  This will mean some people will no longer have access to public transportation even to appear in court.  Court relocations will require litigants to take more time off from work just to settle disputes.

We cannot continue to cut the Judiciary’s budget and expect our court system to deliver the same standard of justice to which we have become accustomed.  It is our responsibility – as lawmakers, judges, and citizens of the Commonwealth – to work together to ensure that justice continue to prevail in Massachusetts.

-Kathleen Joyce

Government Relations Director

BostonBar Association

Budget and Policy

Last week, the House and Senate sent the $30.6 billion state budget for FY 2012 to Governor Patrick. According to State House News, the 314-page budget included 218 outside sections, which affect current policy and provide for studies on a variety of issues that will set the stage for future policy.  One in particular establishes a Commission on Criminal Justice that will include an appointee from the Boston Bar Association.  The purpose of the Commission is to examine a variety of areas related to criminal justice, including mandatory minimum sentences and sentencing guidelines.  This was a subject of conference committee debate. The Senate’s version of the budget included only elected officials as members, while the House’s version of the budget didn’t even include such a commission. In the past few weeks, the BBA reached out to conference committee members urging them to include bar association leadership and ultimately they did. 

Here’s a snapshot of some of the budget accounts the BBA has been following:

District Attorneys’ Offices received a 5% increase

Masachusetts Legal Assistance Corporation was level funded at $9.5 million

Trial Court:

Funding:  The level funding request was $544 million; alas the Trial Court was funded at $519.8 million.  According to the CJAM, who testified at a Judiciary Committee hearing this week, the appropriation is actually closer to $509 million.  This $11 million shortfall is a result of the way the Trial Court’s retained revenue accounts were set up.  The CJAM also testified that this is $35 million less than the current year’s appropriation of $544 million and $96 million (almost 16%) less than FY09 and could mean up to 750 layoffs, court relocations, etc.

Transferability: The budget increased transferability powers for the CJAM, but did not grant him full transferability over all accounts under his management.  The CJAM can transfer only up to 5% of funds from Probation and Community Corrections.


Staff increase: The budget plan is for full-time public defenders on staff to handle 25% of indigent defense by the end of FY 2012 compared to 10% now.  Currently, the state contracts with almost 3,000 private lawyers to provide legal work for the indigent, and employs 230 staff public defenders.

Indigency eligibility: Requirements to verify that someone cannot afford to hire a lawyer have been strengthened, and utilize standards already established by the Department of Revenue, the Department of Transitional Assistance and the RMV.

Cap on hours: The yearly cap on billable hours for private lawyers has been reduced to 1,650 (down from the current cap of 1,800 hours) and private lawyers are prohibited from accepting new cases after billing 1,350 hours (down from 1,400).

CPCS governing board changes.  The budget reconstitutes the board of CPCS, and requires that the governor nominate two members to one-year terms, that the Senate president and House speaker each nominate two members to two-year terms, and theSupreme Judicial Court nominate nine members to four-year terms.  For their nine appointees, the SJC shall consider nominations from the Boston Bar Association and other appropriate bar groups.  While serving on the board, private bar advocates may not be assigned or appointed to a person with a case before CPCS.

Now the House and Senate are waiting for Governor Patrick, who can either sign the budget or send it back to the Legislature with suggested amendments or vetoes.  The ball is now in Governor Patrick’s court; he has ten days from last Friday to act.

-Kathleen Joyce

Government Relations Director

BostonBar Association

Behind the Budget — Important Business Law Updates

As of this writing, it looks like Massachusetts will finally have a budget just in time for Fiscal Year 2012.  The budget conference committee needs to file the final budget bill by 8 p.m. tonight in order to bring the budget to the House and Senate floor for final approval Friday.  With a big focus on the state budget, progress on other important bills could be stalled. As you know, an essential component of the BBA’s work is improving the quality of Massachusetts’ laws. Take, for example, a piece of legislation providing technical corrections to the Business Corporations Act of 2004.

A little background. . . In 2004, the Legislature completely rewrote the corporate business laws, which had not been updated for more than 30 years.  Simply put, chapter 156B was replaced by chapter 156D.  But chapter 156B was not repealed, nor did the legislature update all of the cross-references in the Massachusetts banking statute.  The unfortunate upshot is that today, a lawyer planning a corporate transaction for a Massachusetts bank must now refer to at least three chapters of the General Laws to decipher the cross-references in the banking law.

The proposed technical corrections bill, originally drafted and filed in 2008 by lawyers at Pierce Atwood as a pro bono project, was referred to the Joint Committee on Financial Services and placed into a study order last session.  In April 2010, the proposed technical corrections legislation was endorsed by the BBA Council.  We’re now working together on this with Pierce Atwood and our partners at the Mass Bankers Association.

And there’s even more work to do on chapter 156D.  Stan Keller, an original drafter of chapter 156D and a partner at Edwards Angel Palmer & Dodge, has asked the BBA to assist in his efforts to make other corrections to chapter 156D that will clarify various sections, reconcile inconsistencies, and fix omissions found in the current statute.  These technical corrections are contained in H 2774.

The difficulty here isn’t convincing the legislature that the two housekeeping proposals are beneficial to the Massachusetts business climate. The real challenge is drawing the legislature’s attention to these common sense and important updates.

– Kathleen Joyce
Government Relations Director
Boston Bar Association

Myths of Mandatory Sentencing

It seems everyone agrees that Massachusetts’ criminal sentencing laws need improvement.  Public safety, crime prevention, and punishment are important things to consider when contemplating any reforms in this area.  Yet it’s also important to understand that laws aimed at significantly lengthening prison sentences and making them mandatory, or changing parole eligibility, will impose more costs on our criminal justice system.

For the first time, the Legislature may be debating a habitual offender bill this session.  Earlier this week, we learned that these habitual offender bills, though seemingly losing steam after an emotional hearing before the Judiciary Committee in March, have been actively considered behind the scenes.

At the public hearing on March 16th, there were three bills under consideration that dealt with mandatory minimum sentences for serious crimes, including one that would eliminate parole for repeat violent criminals, with no regard to the facts of an individual case.  The other two bills, as currently drafted, would expand mandatory minimum sentencing to non-violent offenses including drug crimes, check fraud, and even tax evasion.  Although well-intentioned, these proposals capture crimes that, while being harmful to society, do not present a danger to the general public.

Because of time constraints, the BBA did not analyze the details of each of the bills.  But the BBA does oppose mandatory minimum sentences, with the exception of crimes mandating life imprisonment for murder.  The bills are overly broad, do not exclude nonviolent drug offenses, and would undoubtedly result in lengthy and costly sentences.  Here are some of the reasons the BBA opposes mandatory minimum sentences:

  • they have caused prison and jail overcrowding;
  • they have resulted in an increase in court congestion;
  • they have not reduced our serious crime problem;
  • criminal sentences need to correspond with each offender’s individual culpability and still give judges discretion.

Mandatory minimum sentences in drug cases are notoriously unjust because the laws do not differentiate between the drug kingpin and the first time drug offender.  As a result, prisons are being filled with low-level drug offenders serving protracted sentences.

Currently in Massachusetts, convicted felons are eligible for parole after serving half of their sentence, except for first-degree murderers, who are not eligible for parole.  Those convicted of second-degree murder must serve 15 years of a life sentence before they are eligible for parole.

By failing to take a nuanced approach we could end up with very serious and unintended consequences.  Massachusetts needs to be both tough, but also smart, on crime.

Any habitual offender law that the Legislature considers needs to be drafted so that only the most violent offenses are targeted.
– Kathleen Joyce

Government Relations Director

Boston Bar Association