SJC Hears Arguments on Forensic-Testing Statute

You may recall that we used this space last month to cover a new amicus brief filed at the Supreme Judicial Court (SJC) by the BBA in the case of Commonwealth v. Johnson, arguing that an individual who maintains his innocence should be allowed to seek forensic testing to help prove his claim of innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

The law at issue in this case—known as Chapter 278A—originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment, the defendant completed his Massachusetts sentence and is not on parole or probation. But the BBA’s brief argues, citing analogous recent SJC rulings, that his liberty is otherwise restrained where his registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP , states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, and that if the SJC, the state’s highest court, were to rule against Johnson on that ground, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, against the purpose and spirit of the statute..

The SJC held oral argument in the case on May 9, and from the start, the justices were interested in the question of what the Legislature could have meant in choosing the “otherwise restrained” language, putting that to counsel for both sides.  It didn’t take long for them to zero in on the arguments in the BBA’s brief, which they cited repeatedly from the bench.

But the BBA mentions didn’t stop there.  The justices had clearly done their homework, as several them drilled down into the BBA task-force report on wrongful convictions and even a Boston Bar Journal (BBJ) article on Chapter 278A—both of which were cited in our brief.

That 2009 task-force report was ultimately the catalyst for the Legislature’s 2012 enactment of Chapter 278A.  The report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, made four sets of recommendations aimed at reducing the number of wrongful convictions in the Commonwealth—including proposed language for a new law to create the framework for individuals to assert their claims for access to forensic evidence, such as DNA, associated with the case that led to their convictions.

It appeared that the justices were interested in the BBA report inasmuch as the language it suggested—“Any person who has been convicted of a criminal offense in a court of the commonwealth, and is in custody or whose liberty is restrained as the result of that conviction”—could offer guidance in interpreting the language the Legislature later approved.

They also noted that the BBJ article presciently foresaw that this very issue would one day be before the SJC:

Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”). 

One final point made from the bench at argument, and one that echoes a core conclusion of the BBA’s task-force report, is that testing forensic evidence even after conviction is critical to maintaining the integrity of entire system of justice—not only because it helps correct, and even prevent, a wrongful conviction, but also because it allows law enforcement to continue to pursue the actual perpetrator.

The video of the Johnson argument can now be viewed on-line.  We are expecting a decision from the Court by the end of summer and will of course update you when it arrives.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Participates in ABA Day Lobbying

Leadership Visits Congress to Advocate
for Legal Aid and Loan Forgiveness

Every year, the American Bar Association (ABA) invites bar leaders from across the nation to Washington, DC, for a day of lobbying on issues of primary importance to the organized bar, known as ABA Day.  And each year, the BBA’s President and President-Elect make the journey, alongside their counterparts from the MBA, to meet with members of the Massachusetts delegation and relay our shared concerns.

This year was no different, with President Jon Albano and President-Elect Chris Netski traveled to Congress, joined by their opposite numbers at the MBA, Chris Kenney and John Morrissey.

The ABA selects two issues each time to ask its members to speak to their respective elected officials about.  This year, like every year in recent memory, one of those is the federal appropriation for the Legal Services Corporation (LSC), the leading funder of legal-aid providers throughout the US.  Our second topic for this event was the Public Service Loan Forgiveness Program (PSLF), established by Congress in 2008 to provide assistance with student debt to workers in public service who have made qualifying payments for 120 months (or 10 years).

BBA, MBA, and ABA reps meeting with Congressman Bill Keating

LSC funding

LSC is always on our minds when we sit down with members of Congress, because of the critical role it plays in promoting access to justice for those who would otherwise not be able to afford an attorney.  We are very fortunate in Massachusetts that our legal-services providers benefit from the state appropriation to the Massachusetts Legal Assistance Corporation (MLAC), but other states are much more reliant on federal funding—some of them entirely dependent.

This year, for the third straight time, the White House’s budget plan proposes to completely de-fund LSC, which would have devastating consequences for legal services nationwide.  There has been enough support for LSC in Congress to reject that effort, yet funding has, for many years now, failed to keep up with the demand.  This year, the LSC line-item stands at $415 million, a figure that we asked to Congress to increase to $593 million.  Even that significant boost, however, would leave LSC with a smaller budget, in inflation-adjusted dollars, than it had in the ‘80s and ‘90s.

We are also fortunate to be represented by a delegation that has offered steadfast support for LSC funding over the years, and we were met with nothing but confirmation of that support in our meetings with Congresspeople and their staffs.  We hope that we were able to offer arguments that they can use in convincing their colleagues to provide meaningful growth in LSC funding as the current federal budget cycle plays out.

The BBA has a unique story to tell on this issue, as we published a report in 2014 demonstrating that legal-aid funding actually provides a positive return on investment.  Other states have since produced similar findings, but we were especially gratified to learn, in our meeting in Representative Joe Kennedy’s office, that the night before, at an LSC event at the Supreme Court, Justice Elena Kagan had cited the BBA’s report!

BBA President Jon Albano and President-Elect Chris Netski, outside the US Supreme Court

Public Service Loan Forgiveness

PSLF recently marked its 10-year anniversary, which should have meant that its earliest participants would be starting to see approval of their applications for debt forgiveness by now, and on a rolling basis going forward.  However, the program has been plagued by numerous administrative problems—including lack of clarity on how to meet its requirements and mismanagement by the Department of Education and its private contractors—and, as a result, only a minuscule portion of applications have been approved.

Furthermore, political support for the program has waned, in part because of misleading estimates of its projected cost, and the White House has proposed ending it entirely.  This outcome would not only break faith with those who thought they had been fulfilling all the program’s mandates but also threaten to make it more difficult for public-service employers—including not only legal-aid attorneys, public defenders, and prosecutors, but also nurses, first -responders, teachers, social workers, and many other professionals—to recruit and retrain qualified staff to carry out their mission.

To help with our cause in DC, we contacted several Boston Bar Foundation grantees, to ask them to share stories about how PSLF has affected their work, and what its elimination would mean.  We heard back from several with powerful, personal stories about the sacrifices their staffers (or, in a couple of cases, directors) have made to pursue their commitment to working in the public interest, typically at much-lower salaries than they could obtain elsewhere. 

One message we heard more than once, and conveyed in our meetings in Congress, is that in legal services (as elsewhere, presumably) it’s beneficial to have staff who mirror their clientele.  In the absence of the federal government’s promise of assistance with student debt, it would be that much harder to meet that ideal.

As with our LSC advocacy, we found support in all the Congressional offices we visited.  Senator Ed Markey sought to connect with the grantees we’d heard from, so that he could better use those stories to make the case for continuing PSLF.  Representative Seth Moulton’s aide told us he wants to see the program not only retained but expanded.  And Representative Jim McGovern’s staffer said he’s looking at the issue through the lens of student debt generally—with PSLF being just one step that needs to be taken to address it.

MBA President-Elect John Morrissey, Senator Ed Markey, MBA President Chris Kenney, BBA President Jon Albano, BBA President-Elect Chris Netski

We’ll keep an eye on these two items throughout the budget process in Congress.  And we’ll be back in DC next year for ABA Day 2020.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief in Defense of Post-Conviction Access to Forensic Testing

Commonwealth v. Johnson Case Addresses Who Is Eligible to Apply Under Chapter 278A

In keeping with its long-standing commitment to facilitating access to justice and upholding the integrity of the criminal-justice system, the BBA this week filed an amicus brief arguing that an individual should be allowed to seek forensic testing to help prove his claim of factual innocence, even after serving his sentence, where his liberty continues to be restrained by his duty to register as a sex offender.

BBA Background

The law at issue in this case is Chapter 278A of the General Laws, which originated from a 2009 BBA Task Force report that served as the genesis for its eventual enactment in 2012.  That report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, offered a variety of recommendations to reduce the likelihood of wrongful convictions and thereby improve public safety.  Those prescriptions included not only a post-conviction procedure by which people could pursue forensic testing on evidence involved in their cases, such as DNA, but also changes to eyewitness identifications, police interrogation techniques, and trial-court practice.

Section 2 of Chapter 278A limits who has standing to request such testing, to someone who “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated … is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” 

After its enactment, two members of the Task Force, David M. Siegel and Gregory I. Massing, published an article on the statute in the Boston Bar Journal.  As our amicus brief indicates, they were already contemplating that sex offender registration likely qualifies as a restraint on liberty under the statute, long before that issue reached the SJC: “Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender.  See Doe v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006) (‘In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.’).”

This is not the first time that the BBA has weighed in with an amicus brief on Chapter 278A.  In Commonwealth v. Wade (“Wade III”), the BBA again argued—ultimately successfully—on behalf of a defendant whose petition for forensic testing had been denied based on an overly restrictive reading of a separate threshold requirement in the statute. 

Specifically, Sections 7(b) (3) and 3 (b) (5) of Chapter 278A allow for post-conviction forensic testing if the defendant can show, among other things, that the requested testing had not been conducted at the initial trial for any one of five reasons outlined in the statute, including inadmissibility of the evidence, or the subsequent development of new DNA tests.  Wade contended that the test sought had not existed at the time of his trial, which the SJC agreed is enough to satisfy one of the requirements of the new law.

The case reached the SJC after a lower-court judge had denied Wade access to post-conviction DNA testing by imposing an additional requirement not found in the statute: identification of the “primary cause” or “real reason” for a lack of any DNA testing at the time of trial.

The instant case

In the case of Commonwealth v. Johnson (SJC-12673), scheduled to be argued on May 9th before the SJC, the defendant completed his Massachusetts sentence and is not on parole or probation.  He is, however, currently incarcerated in Florida for failing to register as a sex offender, as required as a result of his conviction here.  The SJC invited amicus briefs on the following issues:

Where the defendant pleaded guilty in Massachusetts to indecent assault and battery, received a sentence of time served, was required to register as a sex offender as a consequence of the conviction, and was subsequently convicted of failing to register and is currently incarcerated in a Federal prison in Florida for that offense, whether he is eligible to file a motion for postconviction scientific testing under G. L. c. 278A, § 2 (requiring, among other things, that moving party “has been convicted of a criminal offense in a court of the commonwealth [and] is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction”); specifically, (a) whether his current incarceration is “as a result of” the initial conviction of indecent assault and battery for purposes of the statute, and (b) whether the requirement that he register as a sex offender is itself a restraint on his liberty as a result of his conviction within the meaning of the statute.

The BBA’s brief focuses exclusively on (b) above, citing analogous recent rulings from the SJC and elsewhere, to argue that his liberty is “otherwise restrained” where his sex-offender registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

The brief, written by Meredith Shih of Wood & Nathanson, LLP, states that Johnson is exactly the type of defendant the Legislature had in mind when it included the language “otherwise restrained”, pointing out that “the Court has repeatedly acknowledged that sex offender registration seriously implicates liberty interests, necessitating due process protections.”  The brief goes on to say:

[I]ndividuals required to register as sex offenders are uniquely subject to some of the most severe collateral consequences of any criminal defendants. Johnson’s brief succinctly catalogs the many onerous requirements and restrictions imposed upon registered sex offenders in Massachusetts. … This Court has also observed, in extensive detail, the abundance of “exceptionally burdensome” requirements accompanying registration since the passage of significant revisions to the statute after 1999. See Doe, 473 Mass. at 304-308. Beyond the practical burdens accompanying registration, this Court also found that sex offenders are subject to immense discrimination, through both physical restriction and societal ostracization, on a level without parallel for any other type of criminal defendant. See, e.g., id. at 308 (discussing the “profound humiliation and community-wide ostracization” accompanying registry requirements, in addition to “housing and employment discrimination, harassment, and assault”); Doe v. City of Lynn, 472 Mass. 521, 530 (2015) (in striking down an excessively broad residency restriction targeting sex offenders, “we note the grave societal and constitutional implications of the de jure residential segregation of sex offenders. . . the days are long since past when whole communities of persons, such Native Americans [sic] and Japanese–Americans may be lawfully banished from our midst”).

If the SJC were to rule against Johnson on the issue of restraint of liberty, an entire class of potential applicants would see their efforts to overturn their wrongful convictions foreclosed, frustrating the purpose and spirit of the statute.  “Such an outcome would have damaging consequences not only for access to justice in all those cases,” said Shih, “but also for public faith in the justice system’s ability to identify and undo wrongful convictions.”  Indeed, the hope is that the very existence of Chapter 278A should also encourage greater accountability and prospective effort to prevent wrongful convictions from happening to begin with.

Speaking on Johnson and Wade, Erin Higgins of Conn Kavanaugh, co-chair of the BBA’s Amicus Committee, said, “Both these cases demonstrate our steadfast adherence to the principle of access to justice and our interest in rectifying wrongful convictions.”

A ruling in the case is expected by August.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: New Decision Bars Bond Hearings for Certain Asylum Seekers

Since the release of our Immigration Principles last year, we have, from time to time, offered updates on significant immigration developments and events. On Tuesday, April 18, US Attorney General William Bar released a decision that revoked the right of certain asylum seekers to ask an immigration judge for release on bond. The ruling is set to go into effect in 90 days and will almost certainly face legal challenge in the meantime. This latest development prompted us to revisit the BBA principles, our work on immigration-related policies and practices, and larger questions about the functioning of our immigration court system – all of which you can read more about below.

Attorney General Barr’s Decision in Matter of M-S

                William Barr’s decision in Matter of M-S represents the first time he has used this power to issue binding precedent on the immigration courts, following the trend started by his predecessor, Jeff Sessions, who selected the case for attorney general review last October. In Matter of M-S, Barr overrules a 2005 decision that guaranteed bond hearings for certain migrants, including some who passed a “credible fear” interview, the first step in an asylum review. Instead, he concludes that a migrant “…who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond.” If this ruling goes into effect, individual asylum seekers who did not enter at a designated port of entry would be able to be released from detention while waiting for their case to be heard by a judge only if Immigration and Customs Enforcement (ICE) allows for release on parole, a practice that ICE has been using less and less under the current administration. 

                AG Barr has delayed the effective date of the decision for 90 days, so that the Department of Homeland Security (DHS) can “conduct necessary operational planning,” noting that his decision to overrule the 2005 decision will have “an immediate and significant impact on [DHS] detention operations.” It’s anticipated that the decision could add to the existing overcrowding issues in immigrant detention centers.

                As mentioned, the decision applies only to individuals that have crossed the border without authorization, and not at an official port of entry. The new rule will not apply to families or unaccompanied children, who currently make up a majority of people crossing into the US without papers. Under the terms of the Flores Settlement Agreement years ago, ICE cannot keep immigrant families in detention for prolonged periods and, Matter of M-S does not impact that settlement agreement.

When an individual crosses the border without authorization, they can be deported without a hearing, but if that individual declares that they have a fear of returning to their home country or that they wish to seek asylum, they have a right to an interview with an asylum officer to determine whether the individual has a “credible fear.” If it is determined that “credible fear” does exist, they can formally apply for asylum through a hearing before an immigration judge. The new decision would mean that, unless granted parole at the discretion of ICE, all individuals who crossed without authorization outside the ports of entry would be held for the entire scope of time between the screening interview and the full hearing.

The decision comes on the heels of two relevant federal cases related to immigration court bond hearings. In 2018, the Supreme Court held that the Immigration and Nationality Act did not give an immigrant the right to periodic hearings to determine whether they may be released on bail. Attorney General Barr cited this case as support for his decision in Matter of M-S.

Just a few weeks ago, however, a federal judge ruled that bond hearings for eligible asylum seekers must be held within seven days of passing the screening interview. If implemented, this would have resulted in an influx of new hearings in already-overcrowded immigration courts and likely a large number of releases from detention. The California ruling was delayed for 30 days for appeal, but Barr’s decision in Matter of M-S obviates the judicial ruling by barring bond hearings for all individual asylum seekers not crossing at a port of entry.

BBA Principles and Positions

               As noted above, the BBA’s Immigration Principles have provided a framework through which the BBA approaches immigration-related matters since their adoption by the Council last year. The four principles read:

  • Principle 1: Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
  • Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.
  • Principle 3: The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.
  • Principle 4: Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.

The Working Group’s accompanying report further expounds on each of these four principles. For example, under Principle 2, the report specifically explains that “we join the American Bar Association and others in recognizing that even people who enter the country without authorization should be treated fairly and humanely. For that reason, undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk.”

And under Principle 4, the Report gets even more specific, noting, among other things, that “access to a fair immigration process with independent judges” is key to ensuring access to justice and the rights of all those within our borders. This section explains the barriers to justice routinely faced by immigrants and the role and importance of independent immigration courts and judges.

With these principles in mind, we’ve responded to a number of recent proposals and policies. For example, when the administration proposed a policy that would not allow those crossing the border between official ports of entry to claim asylum, we issued a statement expressing concern and reiterating our commitment “to standing up for the rights of immigrants, advocating for the fair and humane treatment of all people present in our country, and upholding the bedrock principles of access to justice and due process for all.” You can read the full statement here

                A few days before responding to the new asylum policy, we had submitted comments in opposition to a proposed federal regulation that would have significantly altered the current policies in place under the Flores Settlement Agreement, which established protections for unaccompanied immigrant children. Those comments specifically note that “the BBA has spoken against the use of prolonged and unnecessary detention in immigration settings for years, calling for detention to be used only in extraordinary circumstances, such as when an individual presents a substantial flight risk or a threat to national security or public safety.” The comments also note that “[i]n those instances when detention must occur, the BBA supports detention in the least restrictive setting possible and has long maintained that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability.” You can read the full comments here.

                You can read more about other recent BBA immigration-related policies and responses here and here.

The Need for Immigration Court Reform

                With our principles and these past actions in mind, it’s worth focusing in on one particular aspect of the Attorney General’s decision in Matter of M-S, which highlights an unusual, and perhaps oft-forgotten, feature of the current immigration system: immigration courts are under the purview of the Executive Branch via the Department of Justice and immigration judges are career attorneys appointed by the Attorney General. This explains why AG Barr has the authority to issue a decision to bar the use of bail for asylum-seekers that is binding on all immigration court judges.

                Interestingly, at the same time that the Council adopted the Immigration Principles, it also determined that it was appropriate to immediately endorse a policy proposal to restructure the immigration courts under Article 1, similar to existing federal Bankruptcy and Tax Courts. This position builds off years of the BBA speaking about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. It also aligns with our constant support for adequate funding for the judiciary, because we understand that a well-functioning and fully independent judiciary is critical to the fair administration of justice.

The BBA is far from alone in calling for a restructuring of the immigration court system: the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA), the Federal Bar Association, and the American Bar Association (ABA), to name a few, all also endorse moving immigration courts under Article 1 to better ensure proper independence and oversight. The ABA’s full report on the issue explains in detail why such a change makes sense.

An immigration court system that is overseen by the Attorney General is inherently political and doesn’t feature the safeguards guaranteed to other courts. Recent developments have highlighted the shortcomings of this structure. For example, last year the NAIJ filed a grievance asking the Justice Department’s Executive Office for Immigration Review to acknowledge in writing that it will not interfere with the “decisional authority” of judges in the assignment or reassignment of cases. NAIJ President Judge A. Ashley Tabaddor wrote, “The decisional independence of immigration judges is under siege.” And the AILA also recently issued a statement in response to another decision that limits the ability of judges to grant continuances, noting that “until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process.”

Matter of M-S seems also to highlight the value of a restructuring of our immigration courts so that judges are able to make decisions based on the laws in place, without pressure to conform to the priorities and decisions of whoever is in power at the Executive level. We’ll keep you posted as to how you can join us in supporting an immigration court system that is effective, efficient, and independent.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Priority Letter Sent to House Ways and Means Chair

Last month, we updated you on the launch of our 2020 (FY20) budget advocacy. As mentioned there, our attention is now focused on the Legislature as the House, and then the Senate, craft their own budgets. Right now, the House Committee on Ways and Means is examining the Governor’s Proposal and gearing up to release its own recommendations, which will be debated and voted on in April.

We communicate our budget priorities at each step of this process, and earlier this month, BBA President Jonathan Albano sent a letter to the newly-appointed Chair of the House Committee on Ways and Means, Aaron Michlewitz, explaining those line-items critical to a well-functioning legal system and providing equal access to justice to residents of the Commonwealth.  

You can read the full letter here.

As usual, we spell out our support for the Massachusetts Legal Assistance Corporation (MLAC), the largest funder of legal services organizations in the Commonwealth and argue for a $5 million increase in funding, or a $26 million total appropriation. For the full overview of why this funding is so important, visit this blog post

Our letter also explains our continued support for adequate funding for the Trial Court, which handles all the cases filed in the Commonwealth’s courts and urges the inclusion of the Trial Court’s requested maintenance-level appropriation and any necessary increases that results from collective-bargaining negotiation. From there, the letter further supports the full funding of the Committee for Public Counsel Services operations up-front, noting the vital role the agency plays in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States. And finally, the letter asks that $5 million go toward community-based residential re-entry services, which would help to ensure lasting recidivism reduction on the heels of last session’s historic criminal justice reforms.  

Visit this post for more details on these budget asks.

After the House debate and vote, it’s on to the Senate and then to a conference committee to reconcile the differences between the two. We’ll keep you posted at each step of the way and let you know how you can join us in supporting these critical line-items!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Endorses Fix for Alimony-Deductibility Conundrum

This week, the BBA Council endorsed a measure designed to fix a problem dropped in our laps by a recent change in federal tax law.  To get there, though, we’re going to have to work our way through a discussion of alimony, tax deductions, and a little math.  (Or, just skip to the last two paragraphs!)

When Congress undertook a massive overhaul of the federal tax code near the end of 2017, they included a ticking time-bomb for divorce lawyers and their clients—one set to go off at the very end of 2018: Starting in 2019, all newly-ordered alimony would not be deductible from the payor’s gross income (nor attributable to the payee’s) for federal tax purposes.

For divorcing couples, this amounts to the IRS reaching deeper into their collective wallets—or, depending on how you look at it, the end of the federal government partially subsidizing alimony.  That’s because until this year, couples were able to shift that amount of income from the payor to the payee—who quite often, even with alimony included, occupied a lower tax-bracket than the payor, meaning the amount of alimony was taxed less than it otherwise would be.

In one sense, this is logical, since the payor doesn’t truly enjoy the benefit of this income, as it flows through to the payee.  In another sense, it helped somewhat in resolving alimony disputes, because while the payor could be said to have “lost” that amount of income, the loss was reduced by a consequently lower tax burden.

Consider an alimony payment of $10,000 per year, with the payor in the 25% bracket and the payee in the 10% bracket.  The former’s taxes go down by $2500, but the latter’s rise by only $1000.  It’s as if the couple has an extra $1500, thanks to the feds.

Now that’s been wiped away, the federal government gets paid first, and it makes for less money to go around in alimony cases.  But in Massachusetts, in particular, it presents a dilemma, because of the way our statutory alimony guidelines operate.  When alimony reform was enacted in 2011, language was added to say that, for general alimony, a judge should award “30 to 35 per cent of the difference between the parties’ gross incomes”, or the payee’s need—whichever is smaller.

At the time, it was assumed that alimony would remain federally tax-deductible, and the 30-35% range offered a consensus rule of thumb for achieving the desired outcomes (though a judge can always deviate from that guideline “upon written findings that deviation is necessary”).  Now, however, with the new tax law shifting the burden of paying taxes on alimony from the payee to the payor, the 30-35% rule is producing skewed, unintended results—yet judges are left without clear guidance on what to do about it.

Enter Marc Bello, a forensic accountant who specializes in marital disputes.  He explored hundreds of scenarios, with differing levels of payor and payee incomes, to calculate the after-tax impact of the federal change on Massachusetts couples.  What he found was that (a) under the new regimen, payees were ending up with more take-away income than before—sometimes as much as the payor; but (b) this problem could be solved by adding a new percentage guideline for non-deductible alimony.

(This would be as good a time as any to point out that alimony remains deductible by payors for Massachusetts state-tax purposes.  And that alimony payments made pursuant to pre-2019 orders remain federally deductible.)

Marc concluded that in virtually all situations, applying a rule that alimony should equal 23-28% of the difference in the parties’ incomes (when alimony is not deductible) leads to the same after-tax outcome as the current 30-35% rule does (when alimony is deductible).  After his presentation to the BBA’s Family Law Section, they voted to endorse a change in the percentage guidelines to reflect his findings.

Some in the legal-services community expressed concern that their clients might be negatively affected, but after Marc delved further into the low-income scenarios behind his research, our Delivery of Legal Services was satisfied that the proposal would effectively maintain the status quo even in such cases.  They voted to endorse specifically the 23-28% range, out of fear that if the new figures were any lower, they could then begin to harm low-income payees.

After presentations to our Executive Committee and Council this month by Family Law Section co-chairs Lisa Wilson of Wilson, Marino & Bonnevie, P.C., and David Friedman of Rackemann, Sawyer & Brewster, the Council voted to support the 23-28% guideline for non-deductible alimony, which would sit alongside the existing 30-35% guideline for deductible alimony.

This proposal has also won the endorsement of the Massachusetts Bar Association, and the Women’s Bar Association, and we hope that this unified front will help us convince the Legislature of the urgency of the issue.  We will next seek a sponsor to file legislation and advocate for its timely enactment.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Suffolk County DA Rachael Rollins Speaks at the BBA

We were pleased to welcome the new Suffolk County District Attorney to 16 Beacon Street last week, to hear about her formative experiences, her plans for the office, and her take on hiring and management.

Fresh off her historic election last fall, and barely two months into the job, DA Rachael Rollins visited the BBA on March 11 and took questions from Cat Ham, of the Suffolk DA’s Homicide Unit and co-chair of the BBA’s Criminal Law section, and Kate Cook from Sugarman, Rogers, Barshak & Cohen, P.C., as well as from audience members.

After earning a lacrosse scholarship at UMass-Amherst—and then engaging in a legal battle to save the program and other women’s sports at the school by threatening to bring a Title IX discrimination lawsuit—DA Rollins entered law school with a plan to pursue a career in sports law, specifically to become the first female Executive Director of to the National Basketball Players Association. She credited the co-op program at Northeastern Law School with helping her learn more about the field and gain valuable experience. While at NUSL, she interned at the NBPA and with the Boston Celtics After earning an LL.M. at Georgetown, she ultimately landed at the National Labor Relations Board in Boston before joining the firm then known as Bingham McCutchen (now Morgan Lewis). She said that, at Bingham, her work with former Suffolk DA Ralph Martin, the first African-American to hold that post, and her selection to participate in a District Attorney rotation in Plymouth County steered her toward criminal law.

What drove her to make the run for DA in 2018 was her anguish at watching as black and brown men were shot by police across the country, with no transparency about charging decisions (or lack thereof). That was also her motivation for announcing, the same day as her BBA appearance, the creation of a Discharge-Integrity Team, to help her exercise her exclusive authority on how to proceed in cases of police-involved shootings. Rollins is also taking pains to keep the deceased’s family apprised of the investigation’s findings.

Perhaps the policy she’s most associated with, in the public’s mind, is her list of 15 offenses for which she’s pledged to consider alternatives to prosecution.  DA Rollins said she’d given much consideration during the campaign to the development of the list after discussions with law enforcement, criminal defense attorneys, prosecutors and judges about the types of cases where a different kind of accountability than incarceration is called for. Her plan is to pause and do some “quality review” before putting people on what she described as a “conveyor belt” to jail, because these are overwhelmingly defendants dealing with poverty, mental-health concerns or substance use disorder in those instances. One part of the more thoughtful approach she’s aiming for is to make social services more available. But she promised to review the policy and go where the data lead, after consulting the public.

The DA intends to be closely involved with the communities she serves. In part because she’s seen it first-hand in her own immediate family, she understands that the justice system needs to better handle the cycle of treatment and relapse on the path to recovery from addiction. That means more case workers, social workers, and clinicians—an effort, she notes, that should’ve begun in the 1980s when it was mostly Black and Brown people struggling with addiction. She believes that since she has the power to send someone away, she needs to visit the prisons and jails she’s sending them to. And her ADAs should understand their role, too: If you want to work for her, she wants to know what drives you to be a prosecutor.

Asked about her greatest challenge so far as DA, Rollins cited the sprawling bureaucracy she now heads up, and the extreme pace of work—beyond anything else in the Commonwealth, by her measure. There’s simply very little time to dwell on each of the individual decisions required in the thousands of cases her office handles. And yet, working alongside similarly-situated victims who may have different ideas of justice, on the same fact patterns, she’s learned there’s no one “right” answer or approach; each case must be addressed on its own merits.

“We work at a very fast pace and handle incredibly complicated and violent matters,” Rollins said. “Not everyone can handle this pace of work and not everyone is cut out for it. I am incredibly proud of my staff, who show up every day, work hard, and give their best to the Commonwealth.”

Nevertheless, as a survivor of cancer, this job is not the toughest thing she’s faced. Her hard-earned strength and resilience are just what the job calls for, in her estimation. As she told the BBA audience, a DA needs to be decisive and instill confidence in employees, while still demanding accountability. Rollins says she knows what she doesn’t know, and she’s not afraid to defer to expert staffers.

Finally, responding to a question from Kate Cook, DA Rollins offered this advice to the new lawyers and law students in the room: First, be great at what you do and how you do it. At the DA’s Office, she seeks out people who are driven, hard-working, and ambitious—qualities more important to the ADA job than their credentials. “Be your own advocate,” she advised, and know when it is time to move on.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Endorses Statement of Opinion Practices

Earlier this week, the BBA Council approved a Business Transactions Section request to endorse a “Statement of Opinion Practices” that would establish a national basis for the preparation and understanding of third-party legal opinion letters, or “closing opinions.” Keep reading to learn more about the BBA’s past work on closing opinions and this latest development.

                In the late 1990s, the BBA’s former Business Law Section had a “Legal Opinions Committee” that worked on a range of issues related to the issuance and substance of closing opinions, which are delivered at the closing of a business transaction by counsel for one party to another party in order to satisfy a condition to the opinion recipient’s obligation to close. Specifically, between 1998 and 2005, the Committee worked to produce a streamlined form of opinion, building off of the ABA Legal Opinion Principles. The BBA Council adopted the Committee’s proposal and it eventually became a national model. You can read more about this in a 2005 Business Lawyer article drafted by Stanley Keller and Donald Glazer, who coordinated the preparation of the BBA’s Streamlined Form.

                Additionally, in 2007, the BBA Council joined a number of other bar associations across the country in endorsing a “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions.” This proposal supported the use of customary practice in closing opinions as it permits an opinion giver and recipient to have shared understandings of an opinion without having to state them in the opinion, removing the need for burdensome lists of diligence procedures, definitions, exceptions, and assumptions where customary practice offers this content.

                Now, more than a decade later, we are pleased to continue our efforts and leadership in this space, this time under the guidance of our Business Transactions Section, which grew out of the old Business Law Section and is currently co-chaired by Marc Mantell of Mintz Levin and Gitte Blanchett of Morgan Lewis. The Section Steering Committee considered the latest project produced by the Legal Opinions Committee of the American Bar Association’s Business Law Section and the Working Group on Legal Opinions Foundation to formulate a Statement of Opinion Practices, which would establish an updated national basis for the preparation and understanding of closing opinions. The project also included a document called the “Core Opinion Principles,” designed for use by those who want a separate document they can incorporate by reference or attach to a closing opinion.

                After review and discussion, the Steering Committee voted to seek BBA endorsement of the proposal. Stanley Keller of Locke Lord, a key leader in the previous BBA closing opinion efforts, joined Section co-chair Marc Mantell in presenting the proposal to the BBA Council, explaining the value of having a national basis for these opinions as well as the importance of gaining broad support by entities like the BBA. By endorsing the proposal, the BBA joined a large number of other interested groups, including the Massachusetts Bar Association, the Tribar Opinion Committee, and the Business Law Sections of the Tennessee Bar Association, Virginia Bar Association, State Bar of Texas, and the Florida Bar to name a few.

                We anticipate that the Statement and Core Opinion Principles will be published inThe Business Lawyer soon, and we look forward to being kept apprised by our Business Transactions about the impact this resource is having on the practice.  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

State House Update: BBA Submits Testimony in Support of Conversion Therapy Ban

Last month, we updated you on our 2019 – 20 legislative priorities, including continued support for a ban on the use of “conversion therapy” on minors, first endorsed by the BBA in 2015. This very issue was the topic of one of the first committee hearings of the legislative session. Keep reading to learn more about the hearing and why Massachusetts should pass Rep. Kay Khan’s H. 140, An Act Relative  to Abusive Practices to Change Sexual Orientation and Gender Identity in Minors.

On Wednesday, the Joint Committee on Children, Families, and Persons with Disabilities convened a hearing to take up legislation banning the use of “conversion therapy” practices on minors by licensed health professionals in the Commonwealth. The hearing room was packed and included testimony from many legislators as well as advocates and experts, including Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus, Ben Klein of GLAD, Dr. Carole Allen of the American Academy of Pediatrics and Kate Thompson of Boston Children’s Hospital also explained why this legislation is so important.

The BBA is proud to join these voices by submitting written testimony in support of H.140. You can read the full testimony here

The testimony, submitted by BBA Family Law Section member Elizabeth Roberts of Roberts & Sauer LLP, explains that the legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. Typically, the use of this therapy occurs in the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes, including higher rates of depression, substance use, suicide attempts, homelessness and entrance into the child welfare and juvenile justice systems.

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

Our testimony additionally focuses on the legal aspects of the legislation, pointing out that First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power. For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, in 2017, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, the existing case law makes it clear H.140 is a valid exercise of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. The BBA joins a long list of medical and professional organizations in opposing the use of these practices, including the American Bar Association and the American Psychological AssociationAmerican Medical AssociationAmerican Academy of PediatricsNational Association of Social Workers, and the Pan American Health Organization. To date, fifteen states, six more since the hearing last session, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the sixteenth state to enact these protections.

Following the hearing, H.140 was reported favorably by the Committee, and we will keep you posted on ways you can join us in making sure these protections are enacted this session!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA 2019-20 Legislative Priorities

A new legislative session has begun at the State House for 2019-20—officially the 191st for the General Court of Massachusetts—and with it come about six thousand bills already filed by the 40 elected Senators and 160 elected Representatives from across the Commonwealth.  Let’s take a look at legislation the BBA is supporting, starting with three local versions of model laws drafted by the Uniform Law Commission (ULC).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Although there are certainly instances of Massachusetts leading the nation in advancing public policy, here’s a case of us actually being the only state yet to have enacted a law, some 20+ years after the ULC promulgated it.  The UCCJEA is effectively a compact that requires participating states (literally all of the others) to respect pre-existing custody orders from another state when a custodial parent moves there, with limited exceptions. 

The main idea is to discourage forum-shipping, promote certainty and quick resolutions, and save costs, by preserving the original state’s exclusive jurisdiction.  The Massachusetts version has been modified to address concerns about its potential impact on parents trying to escape domestic violence and has widespread support from the family-law bar.  The bill, filed by Sen. Cynthia Stone Creem, has twice now passed the State Senate but without action in the House.  This session, Rep. Sheila Harrington has also filed it.

(Read more:

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)

Trusts-and-estates practitioners have faced increasing uncertainty in recent years regarding how to handle decedents’ digital assets.  That is, what should happen to a person’s e-mail accounts, social-media profiles, on-line banking portfolios, and so forth, after they die—and how should individuals plan for that while still alive?  It is currently unclear in Massachusetts and elsewhere how to resolve disputes over access to such assets between the Internet provider and the decedents’ estate.  And the issue only grows in importance as our virtual lives expand in scope and content—and as those digital assets grow in value.

RUFADAA aims to provide that much-needed clarity by establishing protocols to govern access.  It offers an account-holder the ability to specify, while living, what is to happen after their death, and provides fiduciaries with a means to pursue content access in keeping with an estate plan, while also setting up protocols for cases of intestacy or an absence of instruction from the decedent.  Unlike previously-proposed bills, RUFADAA would extend to all digital content and to all types of fiduciaries.  It has now been adopted in 41 other states.  Here, RUFADAA legislation has been filed by both Sen. Barry Finegold and Rep. Jay Livingstone.

(Read more:

Uniform Trust Decanting Act (UTDA)

Also spearheaded by our Trusts & Estates Section is the BBA’s endorsement of the UTDA, which—like RUFADAA—would impose a legal framework in an area that currently lacks one: decanting, which involves the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust.  Though the SJC has recognized the potential validity of such actions under common law (in a case in which the BBA submitted an amicus brief), neither the Court nor the Legislature has spelled out what can and can’t be done, and under what circumstances.

Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent abuse.  UTDA, which would create those rules, offers national uniformity, but it’s especially important in the half of the US (including Massachusetts) that now has no decanting statute whatsoever.  Sen. Creem has filed a bill to adopt UTDA here.

(Read more:

Conversion therapy

We continue to support a bill that came tantalizingly close to being sent to the Governor at the end of the last legislative session in July: Rep. Kay Khan’s legislation would ban the use of “conversion therapy” on minors by licensed health care professionals.  The practice goes by different names, but it represents an ostensible attempt to alter a person’s sexual orientation and gender identity.  A ban would thus protect minors from a practice that medical and child-welfare experts agree does not align with current scientific understanding and is not only ineffective and misleading but downright unsafe.

(Read more:

Other legislation we are advocating for includes bills…:

  • Offering alternative, neutral terms—which don’t carry the stigma of, for example, “custody” and “visitation”—that could be used by parents in custody disputes, and thereby promote settlement and reduce conflict and ill will.
  • Updating and modernizing the law on spousal elective share (which allows a surviving spouse to take more from a decedent’s estate, under certain circumstances, than the will provides), as the SJC has repeatedly asked the Legislature to do (most recently in January).
  • Redrafting Massachusetts law on operating a motor vehicle while under the influence, to make the notoriously confusing Chapter 90 of the General Laws easier to understand—but without making any substantive changes.
  • Addressing a discrepancy in the treatment of adopted children in trusts that has resulted from confusing changes in the relevant statute over time.
  • Fixing a glitch in the estate tax that results in disparate, unfair treatment, for purposes of tax basis, of property inherited from Massachusetts residents who died in 2010.
  • Making technical corrections to the state’s Trademarks Act.
  • Protecting the interests of property owners from “title piracy,” whereby unrelated third parties scour old records in search of technical defects, in order to find potential claims against current innocent landowners.

We appreciate all of the above sponsors for carrying these measures.  We will continue to advocate for them throughout the current session and will of course keep you updated.  (To learn more about our process for considering new policy proposals, including how you can propose that we do so take a new position, read:

In addition to the specific bills listed above, we are guided by principles, guidelines, and recommendations that have been endorsed by the BBA Council to govern our positions in a variety of areas, such as criminal-justice reform, immigration, wiretap law, and shared parenting.

Much of our work in the State House, however, is focused on one annual bill in particular: the state budget.  As always, we are strong supporters of adequate funding for the judiciary, for civil legal aid, and for representation for indigent defendants.  Last year, we also extended our support to a new program for re-entry services for people coming out of incarceration.  (Read more:

Finally, our engagement with public policy extends beyond legislative lobbying: We frequently comment on proposed changes to court rules, for instance, and file amicus briefs on matters related to the practice of law or the administration of justice.  Though are efforts are mostly focused on the state level, we do take positions on Congressional legislation—including a recent effort [paywall] to prevent forum-shopping in bankruptcy cases—and, under the auspices of the ABA, we make the trek to DC each spring with the BBA President and President-Elect to talk to members of the Massachusetts delegation about BBA/ABA priorities at the federal level.  With two newly-elected Representatives to visit for the first time, we are especially looking forward to this year’s visit and will report back in April.

—Michael Avitzur
Government Relations Director
Boston Bar Association