The State Legislature has started taking a serious look at state policies and practices around the issue of civil asset forfeiture, with a newly-established commission designed to gather data on the practice statewide and then submit recommendations for potential reforms.  The recently-enacted state budget for the current fiscal year creates the 21-member commission in Section 90, with a tight—and, shall we say, optimistic—deadline of December 31 to present the Legislature with “a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect”.

This is an issue we’ve been keeping an eye on, as it attracted attention in the media (including an episode of John Oliver’s TV show), from think tanks of various stripes (one of which gave Massachusetts an F grade for its current forfeiture laws), and from legislators sponsoring reform-minded bills.  The concerns mostly center on the low standard of proof in Massachusetts as compared with other states, limited reporting requirements, and incentives that arguably encourage its use and perhaps skew law-enforcement priorities.  We were pleased that the budget language carves out a seat for the BBA on the new panel, and former President Carol Starkey has been appointed to represent us there.

The commission met for the first time earlier this month, with four further meetings scheduled for the rest of this year ahead of the deadline.  Perhaps not coincidentally, the Judiciary Committee—whose co-chairs, Sen. Jamie Eldridge and Rep. Claire Cronin also head the commission—held a hearing the following day with an agenda that included five bills dealing with civil asset forfeiture.

The commission is tasked with:

• an evaluation of the standard of proof required for law enforcement to establish that property seized is related to a crime, as compared to the standard imposed in other states;
• a review of current documentation and reporting obligations for law enforcement, including the extent to which law enforcement records whether the property’s owner was charged with or convicted of a crime, and any recommendations for enhanced or additional reporting requirements;
• an analysis of the scope of civil asset forfeiture, including an estimate of the total value of assets seized annually, the average value of assets seized in a case and a breakdown by percentage of the underlying offenses giving rise to the forfeiture;
• an examination of how civil asset forfeiture proceeds are allocated and spent;
• an evaluation of the process by which property owners may challenge a seizure, including the percentage of seizure proceedings challenged annually, the percentage of successful challenges and the average cost of bringing a challenge;
• an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws; and
• a review of best practices undertaken in other states.

…

It bears mentioning, as well, that Section 101 of the state budget creates another commission on which the BBA has a seat, albeit one that has a longer timeline (reporting deadline: September 1, 2020) and hasn’t yet gotten up and running.  This one (to which a BBA representative has not yet been appointed) will, in the words of the enacting language, “conduct a comprehensive study to evaluate and make recommendations regarding the appropriate level of funding for the department of correction and each sheriff’s department.” 

We will use this space to keep you updated as each of these commissions progress.

—Michael Avitzur
Government Relations Director
Boston Bar Association

We are well into the season of legislative public hearings now, and earlier this month, the Judiciary Committee heard bills related to probate and family law—including two that are of great interest to our Trusts & Estates section.

You may have read previously in this space about each of the bills: The Uniform Trust Decanting Act (UTDA), and the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).  Each of them was developed by the Uniform Law Commission and then tweaked, mostly to conform with existing Massachusetts statutes, by an independent standing committee of T&E practitioners

Four members of that committee—Marc Bloostein (Ropes & Gray), Renat Lumpau (Choate), Eric Hayes (Goodwin) and Mark Leahy (Burke, Whittum & Leahy LLC)—were able to testify at the hearing, collectively representing the BBA, MBA, and Massachusetts Bankers Association, all of whom are supporting both bills, as well as the standing committee itself.  The UTDA bill (S. 896) was filed by Sen. Cynthia Stone Creem, and companion RUFADAA bills (H. 3368 and S. 936) were filed in the House and Senate by Rep. Jay Livingstone and Sen. Barry Finegold, respectively.

To summarize the case for the two bills:

• UTDA:
  • Decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust, is a form of trust modification that’s available to fiduciaries now in Massachusetts.  But while it 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—the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.
  • The UTDA was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting, and if it’s adopted here, Massachusetts would join the majority of states with some type of statutory decanting in place.  Massachusetts practitioners would remain free to continue to decant trusts under common law, if that makes the best sense for a client or situation, but they would also have an alternative and clear guidance concerning how to decant properly in accordance with the statute.
• RUFADAA:
  • This uniform language was developed in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, e-mails, on-line banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies—if they have any policies on the matter at all. RUFADAA would add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 43 other states have adopted RUFADAA in some form.
  • The bill establishes a hierarchy to determine the preferences of the user:
    • First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.
    • Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access. 
    • Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.
  • The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

These bills help demonstrate the importance of the BBA’s sections to our development of policy positions: The legislation would not enjoy the BBA endorsement had the Trusts & Estates section not flagged these two issues for us.  We rely heavily on our substantive-law sections to spot issues for us within their practice areas, especially those that our section members feel the BBA ought to speak out on as an organization.
 

—Michael Avitzur
Government Relations Director
Boston Bar Association

Last September, the BBA released Immigration Principles that have guided our response to various immigration-related issues since. Every few months, we like to offer updates on significant immigration developments and events to be reminded of these principles and their importance, as well as the BBA’s long-standing support of measures to uphold due process and equal protection rights and access to counsel for immigrants.

In the past few months, there have been four significant developments in immigration policy that we would like to direct your attention to.

The Flores Settlement

In October 2018, as part of our first Immigration Update following the publication of the Immigration Principles, we published an Issue Spot on the Department of Homeland Security’s proposed regulations related to the Flores Settlement Agreement (FSA). The following month, we filed a letter, directed at Debbie Seguin, the Assistant Director of the Office of Policy at U.S. Immigration and Customs Enforcement, opposing this effort to undermine the protections asserted by the FSA.  Earlier this summer, the Trump Administration announced a proposal to terminate the FSA, a move that would significantly reduce protection of detained migrant families traveling with minors.

The FSA was established in 1997 as the outcome of the Flores v. Reno case. This court agreement requires the government to release children from immigration detention, without unnecessary delay, to their parents. The settlement also required immigration officials to provide detained minors a certain quality of life, including things such as good drinking water and medical assistance in emergencies. (A Congressional Research Service report details the conditions and protections of minors required by the settlement.)

The settlement was reached after Jenny Lisette Flores, a 15-year-old girl from El Salvador, was arrested by the former government agency Immigration and Naturalization Service (INS) while trying to cross the US-Mexico border and was taken into custody separate from the family member she was traveling with. The ACLU filed a class-action suit on behalf of Jenny and other minors, eventually leading to the Flores agreement.

The Trump administration has made repeated attempts to change the Flores settlement agreement, arguing that it prevents the government’s efforts to deter undocumented immigrants from entering the country. The administration claims that this new rule will keep families together by reducing the number of undocumented children attempting to travel into the United States. However, attorneys for migrant children and advocates for immigrant rights are arguing—and the BBA shares this concern—that this effort will compromise the health and safety of detained minor children by allowing the government to detain them as long as it wishes.

A coalition of 20 states led by California and Massachusetts are filing a lawsuit against the Trump administration in the hopes of blocking the implementation of the proposed regulation and protecting the FSA. Our November 2018 letter, issued by then-BBA President Jon Albano, argues that failing to fulfill the purpose of the FSA “raises serious due process concerns, is fiscally irresponsible, and will endanger the well-being and rights of immigrant children”. We have for years been speaking in opposition to practices that threaten the rights and well-being of immigrants and in support of measures that ensure the just, humane, and fair treatment of all individuals within our borders, but now those positions have been enshrined in our Immigration Principles.

The Public Charge Rule

Earlier this month, the Trump administration announced a proposed change to a regulation known as the “public charge” rule. This regulation denies green cards to immigrants deemed likely to be reliant on various forms of social welfare.

The BBA submitted comments in opposition to the proposed public charge rule in December 2018. In the letter, then-President Jon Albano cited our Immigration Principles and argued that the new public charge rule would “create significant barriers to accessing justice, have harmful impacts on immigrants, their families, and our communities and economies, and may be applied unfairly and inconsistently”. Further, Mr. Albano noted that in the past, public charge determinations have been used to justify exclusion of groups such as low-income Irish immigrants and Jews fleeing Nazi persecution, and how dangerously close to repeating these troubling moments in history we are. The BBA urged others to join them in opposing the proposed public charge rule.

Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”. Starting in October, the government’s decision to grant green cards will be based on an aggressive wealth test that will deny legal residence to hundreds of thousands of immigrants. The new rule appears designed to reshape, reform, and significantly shrink the legal immigrant community. A study conducted by the Migration Policy Institute when the proposed regulations were first announced in June 2018 found that:

• Nearly half of the U.S. noncitizen population could be at risk of a public-charge determination – up from a current 3 percent.
• The rule will discourage millions of immigrants from accessing health, nutrition, and social services.
• The effects of this rule are likely to stretch beyond immigrants themselves to affect U.S.-citizen children whose parents may disenroll them from services for fear of immigration consequences.

A new Migration Policy Institute study from last month found that of the legally present noncitizens in families with annual incomes below 250 percent of the federal poverty line, the vast majority are from Mexico and Central America, Africa, and Asia. In fact, 72% of legal noncitizens from the Caribbean, 71% of those from Mexico and Central America, and 69% of those from Africa are in families with annual incomes below 250 percent of the federal poverty line. The intention behind this rule is said to be that new legal residents “carry their own weight”, without acknowledging that it will specifically target poor people from Latin America, Africa, and parts of Asia. In other words, this rule will directly impact poor people of color, discouraging them from seeking out public assistance and putting their housing situation, health, and economic stability at risk.

This isn’t the first time that Trump has targeted immigrants coming from specific countries or attempted to curtail legal immigration into the United States, and follows a set of troubling immigration policies proposed by the current administration.

Halt of Medical Deferred Action Program

Earlier this summer, the Trump administration announced that it was ending the program that allowed immigrants to avoid deportation while they or their relatives were undergoing lifesaving medical treatment. This program, called “deferred action”, ensured at least 1,000 qualified people every year would not be deported until their medical treatment was over. The BBA tweeted that we were “deeply concerned” and “dismayed” by this change in policy and referenced one of our Immigration Principles, that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status” to explain our opposition to it.

USCIS began informing families that it would stop considering requests for deferred action and that the families must leave the country within 33 days. In a statement to the Boston Globe, Congressional Representative Ayanna Pressley said that, “deportation from the United States with this type of medical condition is a death sentence”.

Since the announcement of this rule change, public outcry has led the Trump administration to reinstate the program. This followed a coordinated effort by 100 members of Congress who signed a letter denouncing the suspension of the program as well as public uproar as migrants affected by this change began to come forward. The American Immigration Lawyers Association welcomed the decision and thanked the impacted clients for bringing the “cruelty of this rescission to light through their bravery and courage sharing their stories with the agency, the media, and Congress”.

Halt of Asylum Application Processing in Boston and Newark

Boston and Newark are currently the only two cities that process asylum claims for New England residents, and that may be coming to an end. The Trump Administration is halting the processing of most New England asylum cases, leaving behind more than 40,000 pending cases, by redirecting most of the officers from the Boston and Newark offices to the southern border.

USCIS Director Ken Cuccinelli tweeted that the claim that Boston and Newark will stop processing asylum claims is false, and that it is simply a slight shift of staff to help with the “credible fear” workload piling up at the southern border. However, immigration attorneys and asylum officers are saying that they received an email from USCIS last week saying that it would no longer schedule any new asylum interviews in Boston and only a small number in Newark. Senator Elizabeth Warren said it is part of the Trump Administration’s “shameful campaign to prevent people fleeing violence from finding refuge in the US.”

We will continue to monitor these situations as new developments unfold.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association

Regular Issue Spot readers know that we closely follow the progress of each fiscal year’s state budget, from before the release of the Governor’s budget (usually in January) until sometime in the summer when the Governor signs the Legislature’s final budget into law (and sometimes beyond, when—unlike this year—there are vetoes that the Legislature seeks to override).  This year the budget for Fiscal Year 2020 (FY20) took effect on July 31, and we were very pleased to see that the Governor OK’d the Legislature’s provisions in all of the priority areas we had written to him in support of:

• This year, the Legislature provided a significant increase of $3 million in the line-item for the Massachusetts Legal Assistance Corporation (MLAC), the state’s leading funder of legal-services providers, bringing their FY20 total to $24 million.
• The judiciary is funded through a web of related line-items, but the bottom line (if you will) is that this year, they are very satisfied with the appropriation they received from the Legislature, including funding for continued implementation of the Housing Court’s statewide expansion, which was first authorized two years ago.
• The Committee for Public Counsel Services (CPCS) saw robust funding for its operations, including both staff and private counsel who take their cases. The budget crucially also includes a so-called outside section, supported by the BBA, that would allow for a temporary expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances, in order to address emergency shortages of attorneys willing to take cases in some regions.
• A recent addition to our budget priorities is funding for post-incarceration residential re-entry services. As indicated in our 2017 report on criminal-justice reform, No Time to Wait, such services can be a critical link in supporting successful re-integration, and thus a reduction in recidivism rates. We were therefore pleased that the Legislature authorized $4.5 million in funding for such programs this year.

Not only did Governor Charlie Baker sign off on all the above, as we had requested, but in a surprise move, the Governor declared the budget balanced—helped by an influx of revenue totaling hundreds of millions of dollars beyond projections—and chose not to veto any line-items at all.

—Michael Avitzur
Government Relations Director
Boston Bar Association

In February, in response to a request for public comment by the SJC on a proposed amendment to Rule 12 of the Mass. Rules of Criminal Procedure, addressing the use of conditional guilty pleas in criminal cases, the BBA submitted informal comments, on behalf of our Criminal Law Section, on a number of aspects of the rules.  Recently, the SJC adopted the final version of the rule, to take effect on September 1, and while much of what our commenters suggested went unaddressed in the final version, we did note that it adopts our recommendation that the rule clarify that such pleas are governed by the rules of appellate procedure.

Specifically, as we noted in our comments—drafted by the Criminal Law Section’s David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana, of the Suffolk County District Attorney’s Office—”The rule could be clarified to say that the normal rules of appellate procedure will apply to appeals taken from conditional guilty pleas. This may go without saying, but—particularly because this is such a new procedure—the parties should know that these appeals are governed by familiar rules. Several members of the section thought the new rule’s omission of any reference to the appellate rules could cause confusion.”

As noted by Massachusetts Lawyers Weekly (paywall), “Under the rule, a defendant may, with the prosecutor’s agreement, plead guilty (or in District or Juvenile courts admit to sufficient facts), appeal a ruling the defendant believes is erroneous, and, if successful on appeal, withdraw the plea (or the admission to sufficient facts) and presumptively obtain dismissal of the charge.”

Rangaviz, one of the authors of the BBA’s comments, expressed disappointment that the final rule retains a requirement for prosecutorial consent, which he believes will blunt the impact that the rule seems intended to have, but he acknowledged that there was disagreement within the section (as there often is) on this point, and others.  (When the BBA submits informal comments, it does so on behalf of its members but without taking a position on their merits.)  In addition to submitting comments, the BBA held a program this past March, moderated by Bruce Ferg of our Criminal Law Section, on the use of conditional guilty pleas in Massachusetts.

These changes were triggered in by the SJC’s 2018 decision in Commonwealth v. Gomez, where the Court exercised its superintendence power to conclude that a conditional guilty plea is permissible so long as it is entered with the consent of the court and the Commonwealth and so long as, at the time the plea is entered, the defendant specifies the specific pretrial ruling from which he or she intends to appeal.

You can read more about the changes to the rule, about our comments, and about the final rule.  We thank Kaushal and David, and the full Criminal Law Section, for their help in assembling our comments.

—Michael Avitzur
Government Relations Director
Boston Bar Association

This was a busy week on the amicus front at the BBA, with two new filings—one brief, one letter—and a decision from the SJC on a case where we filed a brief this spring.

Starting with that last item, we reported previously on Commonwealth v. Johnson, in which the BBA submitted an amicus brief arguing that the state law on access to post-conviction testing to remedy wrongful convictions (known as Chapter 278A) was enacted specifically to facilitate access, and the SJC should therefore adopt a broad interpretation of its standing requirements.

Johnson—who was required to register as a sex offender as a result of a 1994 conviction—maintains his innocence and seeks the opportunity to test DNA evidence of which he was unaware at the time of trial, in the hope it will lend evidentiary support to his wrongful-conviction claim. The law limits access to testing to those who have been convicted in Massachusetts of a criminal offense and are “incarcerated [or] on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” Johnson’s petition was denied at the lower level when the judge found that he did not meet this threshold requirement, because he was then incarcerated as a result of failing to register as a sex offender and not as a direct result of his conviction.

Although the defendant here completed his Massachusetts sentence and is not currently on parole or probation, the BBA argued that his liberty continues to be restrained by his requirement to register as a sex offender, and that his claim—and claims of all similarly-situated individuals—should therefore be allowed to proceed.

On August 20, the SJC released its decision ruling that the defendant met the threshold requirements and is entitled to move forward with his application for DNA testing—and while the Court did not reach the issue raised in our brief, we were heartened by the inclusive interpretation the Court applied to Chapter 278A. This ruling, consistent with SJC jurisprudence in past cases, applies an appropriately broad interpretation that allows anyone whose liberty is restrained as a result of a Massachusetts conviction to pursue such testing and ensures that the Massachusetts law providing access to post-conviction testing of forensic evidence will be interpreted as the Legislature intended.

The SJC is set to hear oral argument on September 6 in Rawan v. Lala, a case that tests whether an insurance company must honor a clause in certain policies, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy. 

Under G. L. c. 176D, § 3(9)(f), it is considered an unfair claim settlement practice for a liability insurer to fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In this case, an engineer was sued and gave only limited authority to his insurance company to make settlements, pursuant to a “consent to settle” clause in his insurance policy. The plaintiffs prevailed at trial, and the engineer’s insurer paid their coverage limit, with the insured paying the difference. After the verdict, the plaintiffs also brought a claim against the insurance company, under Chapter 176D, arguing that the insurer had violated its statutory obligation to act reasonably and in good faith to pursue a settlement, once its client’s liability had become reasonably clear.

The BBA last week filed a brief offering the perspective of attorneys, for whom such policies are common, and arguing that they benefit the profession as well as clients by encouraging attorneys to obtain liability coverage and to fashion policies to suit their needs. These insights are not offered through the briefs filed by the parties in the case, but the BBA wanted to make sure that the Court considers what is at stake here for the practice of law—which is one of the issue areas the BBA’s Amicus Committee looks at closely when considering whether to recommend filing a brief.

The brief, drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody & Arnold, LLP, states:

Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which inures to the benefit of the insured, not the insurer.

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Commonwealth v. Heywood presents questions surrounding the seating of a blind juror in a case with photographic evidence of the victim’s injuries, where the seriousness of such injuries was relevant to the charge for which the defendant was convicted. The SJC solicited amicus briefs on the following issues:

Whether the judge erred in determining that a blind juror was competent and qualified to be seated on a case involving a charge of assault and battery causing serious bodily injury, where the evidence included two photographs and other documentary evidence; whether appropriate accommodations were made to permit a blind juror to be seated as a juror; whether the evidence was sufficient to warrant a finding of serious bodily injury.

However, the BBA chose, on the recommendation of our Amicus Committee, to take a step back from these case-specific questions in order to look at the broader picture—and to do so in the form of an amicus letter, rather than a full brief.  As noted in our letter:

The BBA submits that having the benefit of the diverse views of citizens with physical disabilities is essential to a fair and impartial process and, in particular, in a trial before a jury of one’s peers. Given the historical limits that persons with disabilities have experienced in their attempts at serving as jurors, the Court’s questions raise issues well beyond the specific ones in the Heywood case. The BBA thus supports the establishment of a Study Group to evaluate the broader issues of how trial judges should evaluate the feasibility of service by prospective jurors with disabilities and to provide guidance to all stakeholders—judges, attorneys, jurors and litigants—under the myriad of circumstances that may arise when a citizen with a physical disability is summoned for jury service in both criminal and civil cases.

The letter goes on to suggest that such a panel could “examine the current best practices in accommodating jurors who have physical disabilities in an effort to standardize statewide procedures for the Court,” noting that “there does not appear to be any guidance available to trial judges or attorneys on how best to accommodate [such] jurors.” These best practices could cover questions for jurors, whether preliminary or at voir dire, and the use of peremptory challenges and challenges for cause.  After this initial groundwork has been laid, “the BBA envisions that the Study Group might recommend that the Court create a Standing Committee or Committees” to develop training programs on these issues, monitor improvements in technological accommodations, and the like.

The amicus letter closes by emphasizing, “The BBA believes it is the responsibility of the bench, the bar and the legislature to provide equal access to jury service to our citizens with physical disabilities. Equal justice under the law and the right to an impartial jury of one’s peers demands nothing less.”

The letter to the SJC was sent by BBA President Jonathan Albano of Morgan Lewis, with the assistance of Amicus Committee member Scott Lopez, of Lawson & Weitzen.

Oral argument will be held at the SJC on September 9, though we may have to wait for a decision to know whether the SJC intends to act on our suggestion, since—as with Rawan—the parties are not expected to address the issues raised in the BBA’s letter.

 —Michael Avitzur
Government Relations Director
Boston Bar Association

Judicial independence is a cornerstone of constitutional democracy, promoting the ideal that the process of determining an outcome in a legal case is unaffected by the identity of those the dispute involves, unaffected by public opinion regarding how the dispute should be resolved or the popularity of the parties and their arguments, and unaffected by thoughts or opinions held by members of the other two equal branches of government about the dispute’s proper outcome. As a bar association, we believe that judicial independence is imperative to maintaining a fair court system and upholding the rule of law.

Prompted by a series of recent events that have made news, and a general sense that the climate around judicial rulings and other decisions, as well as the process for judicial selection and appointment, may be undermining public faith in the judiciary, the BBA Council approved the creation of a Working Group on Judicial Independence to take a closer look at the issue. BBA President Jon Albano of Morgan Lewis selected eleven working group members with a diverse set of backgrounds, including retired judges, practicing attorneys, and academics.

Under the leadership of Co-Chairs Lisa Goodheart of Sugarman Rogers and Renée Landers of Suffolk University, both of them former BBA Presidents, the Working Group spent the last six months discussing, debating, and analyzing the key aspects of judicial independence and the values that underpin it. The Working Group identified a set of five core principles that can guide the BBA, the wider bar and general public, and a set of recommendations for bar associations, attorneys, judges and courts. Read the full report here.

The BBA’s Historical Support for Judicial Independence

The mission of the BBA is to facilitate access to justice, advance the highest standards of excellence for the legal profession, foster a diverse and inclusive professional community, and serve the community at large. Over the years, the BBA has been a constant supporter of a well-functioning, adequately funded, and independent judiciary, and as an association of attorneys, we believe we have a particular responsibility to ensure that the role of the judicial branch is understood and that its independence is defended.

This responsibility compelled us, four times in the last two-and-a-half years, to speak out in response to statements and actions by local and national figures that seemed to threaten the independence of the judiciary.

Most recently, in April 2019 the BBA released a statement in response to the indictment of Massachusetts Judge Shelley Joseph on obstruction of justice charges. It provides that “[i]n the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law. The BBA has kept apprised of Judge Joseph’s case and was gratified to note that both the SJC’s August 13^th opinions reinstating Judge Joseph’s salary during the pendency of her criminal case cited judicial independence as a primary motivation for making that decision.

The BBA has released statements condemning unfair criticisms of judges in the past, and the Working Group’s report cites a number of them in recent years, in an appendix to the report.

Aside from condemning unfair criticism towards judges, the BBA has also supported judicial independence by advocating on related issues. For example, our 2018 report spelling out the BBA’s Immigration Principles, included “Access to a Fair Immigration Process with Independent Judges” as a key tenet and expressed deep concern that “immigration judges…lack many of the protections associated with judicial independence.” It was clear to that immigration working group that the potential for politicization of immigration proceedings affects the ability of the judiciary to maintain its independence from outside influences, to the detriment of immigration judges’ ability to decide matters impartially.

In May 2018, when the BBA endorsed proposed legislation requiring that all public schools provide instruction in civics, then-President Mark Smith noted that “the judiciary’s unique role in our state and federal governments may be especially vulnerable when the public lacks knowledge of key concepts like the role of checks and balances, separation of powers, and judicial review.” This statement contributed to the Judicial Independence Working Group’s decision to include public education in its set of recommendations. They determined that access to information on the role and functioning of the judiciary is essential to the public’s confidence in judges, and that public perceptions play a major role in the ability of the judiciary to remain independent.  

To read more about the BBA’s past actions on matters relating to judicial independence, see Appendix A of the report.

The Judicial Independence Working Group (JIWG)

The JIWG was made up of the following individuals:

• Renée Landers, Co-Chair; Professor of Law and Faculty Director, Suffolk University Law School;
  Member of the Committee on Judicial Ethics
• Lisa Goodheart, Co-Chair; Partner, Sugarman Rogers; Immediate Past Chair of the Court Management Advisory Board
• Jonathan Albano, BBA President, Partner, Morgan Lewis
• Hon. Robert Cordy, (ret.), Supreme Judicial Court
• Lawrence Friedman, Professor, New England Law | Boston
• Hon. E. Susan Garsh, (ret.), Massachusetts Superior Court
• Giselle Joffre, Partner, Foley Hoag
• Paul Lannon, Partner, Holland & Knight
• Hon. James McHugh, (ret.) Massachusetts Appeals Court
• Patrick Moore, Partner, Hemenway & Barnes
• Ian Roffman, Partner, Nutter McClennen & Fish

Over the course of six months, the JIWG met periodically and discussed, debated, and thought critically about the current threats to judicial independence. During this time, they were able to hear from the Commission on Judicial Conduct, the Supreme Judicial Court (SJC) Public Information Office, the First Circuit’s Office of the Circuit Executive, the SJC Committee on Judicial Ethics, and current and former members of the press. These groups and individuals shared their time, experience, and expertise over the course of the Working Group’s efforts, and the BBA is extremely grateful for their contributions.

The Report: “Judicial Independence: Promoting Justice and Maintaining Democracy”

The new BBA report outlines the importance of judicial independence, recites the threats it is currently facing, and proposes a set of recommendations to mitigate these threats. In its deliberations, the working group determined that judicial independence is essential to our society in the following ways:

• the protection of civil rights and liberties
• the role it plays in producing economic order
• the reassurance that our personal affairs, when they wind up in court, will be adjudicated fairly
• the widespread recognition among the citizenry that the law will be applied and administered fairly

The working group found that judicial independence has, for some time, been under attack in various ways. These attacks can take the form of vocal outbursts by public officials and thought leaders singling out specific judges or unpopular decisions, or they can be more subtle and progressive attacks that de-legitimize the judicial process in the eyes of the public over time—whether by questioning a judge’s or a court’s ability to act impartially or by suggesting that they can be expected to deliver the kinds of decisions the appointing authority has promised.

Public and private attacks on judicial independence can have significant deleterious consequences for individual judges as well as the integrity and operation of the judiciary generally. These consequences include: generating pressure for judges, going forward, to consider factors beyond the merits of the cases before them, instead of focusing exclusively on the facts and legal issues presented; and tainting public perception of the judiciary and undermining public trust in the judicial process.

The working group acknowledged that public scrutiny and criticism of judges and the general administration of the judiciary can have positive effects when the scrutiny, whether performed by the traditional press or other institutions, fulfills a “watchdog” function for the public, and serves to root out corruption, misconduct, and unjust practices. The challenge is distinguishing between harmful attacks on judicial independence and helpful efforts at reform.

Based on this understanding of the threats facing judicial independence, the working group developed the following five principles:

Principle 1: In our system of government, judicial independence is a concept that is fundamental to the rule of law and to the checks and balances the rule of law supports.

Principle 2: “Rule of law” is a shorthand expression for a legal system in which disputes are predictably decided on the basis of neutral legal principles applied in a systematic and orderly way that is free from bias and under which the resulting decisions typically are following voluntarily by those whom they affect.

Principle 3: The vitality of the rule of law ultimately depends on public understanding of the value and importance of the concept coupled with public support for judicial independence.

Principle 4: The Boston Bar Association has an obligation to promote, support, and defend judicial independence and should use its education, public policy and advocacy resources to enhance public understanding of the judiciary, demystify the judicial process, and explain to the public and elected officials the ways in which judicial independence is essential to protecting the rights and liberties of us all.   

Principle 5: The BBA should serve as a resource to the public and press by responding to assaults on judicial independence in a timely and measured manner that distinguishes between, on the one hand, vigorous public debate and dissent and, on the other hand, misinformation and personal attacks that undermine the public’s respect for an confidence in the courts.

In keeping with these principles, the Working Group offered the following recommendations:

• Bar Associations: Bar Associations should use their institutional voices to defend, explain, and promote the value of judicial independence and respond to unfounded and uninformed attacks on the judiciary. In this vein, bar associations should work to serve as a resource to the press and public to explain key legal processes and to counter misinformation. Bar associations would also benefit from developing a set of criteria that can be used to determine when and how to respond to developments that may threaten the independence of the judiciary.
• Lawyers: Lawyers in all practice areascan and should be more proactive in taking actions to promote and defend judicial independence, including by participating in public education opportunities, helping the public to discern between healthy criticism of the judiciary and potentially dangerous attacks, and speaking out against those instances that rise to the level of an unfair attack.
• Judges and Courts: The Massachusetts Trial Court should expand and improve its data collection and transparency practices, which will aid in maintaining public trust in the judiciary and identifying patterns and practices that merit further study and improvements. Judges, though not always required by law, should endeavor to explain their reasoning in written decisions when appropriate and, when permitted by the Code of Judicial Conduct, support judicial independence by educating the public, whether in person, by writing articles, or through the press, on key issues.
• Diversity and Inclusion: A diverse and inclusive bench will help to promote equity, fairness, and public trust in judicial decision-making. Achieving this goal will take collective action from the legal community, including making diverse judicial nominations and appointments a priority, improving court culture to ensure that professional experiences are inclusive and equitable, and creating an effective pipeline for talent that supports the legal education, employment, and development of lawyers from diverse backgrounds.

Taken together, these recommendations function as a call to the bar and the bench to focus attention on efforts to ensure the judiciary remains independent, supported, understood, and accountable. As the BBA’s Working Group concluded, no less than the health of our democracy may be at stake.

We would like to express our gratitude to the Judicial Independence Working Group, and particularly Co-Chairs Lisa Goodheart and Renée Landers, for all their hard work in producing this report. We anticipate that its principles and recommendations will guide the BBA in its advocacy on this issue for years to come.

-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association

Prompted by concerns about existing Massachusetts laws regarding the enforcement of foreclosure on homeowners with outstanding municipal tax arrears, the BBA has joined other advocates, chief among them Greater Boston Legal Services and the National Consumer Law Center, in endorsing reforms to the state law on these “tax-lien foreclosures”.

Under current law, tax-lien foreclosures can lead to outcomes in which a homeowner loses not only their real property but all the equity they have built up—regardless of the amount of debt actually owed. Municipalities can sell the outstanding debt to third parties, who have an incentive to take advantage of that windfall provision but no incentive to consider the effect of foreclosure on the community as a whole. 

Meanwhile, rising property values and property-tax rates often combine to make it difficult for homeowners to stay current on their tax bills—especially for those on low or fixed incomes, including the elderly, the disabled, or anyone who is house-rich and cash-poor. Some seniors may not be aware of the deferrals and abatements available to them by law, while others with cognitive disabilities or surviving spouses may have trouble understanding their obligations in the first place. These problems are frequently compounded by inadequate notice of the possibility of being foreclosed upon. 

Regardless of the cause, once a homeowner falls behind, punishing statutory interest rates of 16% and late fees work to put a potential solution further out of reach. And even when homeowners seek an agreement to pay off their back taxes, they are faced with a statutory minimum initial payment of at least 25% of the debt, with additional requirements imposed by some municipalities. The law actually provides that debtors can potentially face arrest. 

Tenants in housing that has been taken by tax foreclosure find themselves with little recourse—and often little warning, since they may not even be aware of the owners’ non-payment of taxes, the foreclosure that results, or the change in ownership. Their first inkling of a problem may come in the form of an eviction notice. And unlike tenants after a mortgage foreclosure, they have no legal protections after tax foreclosures.  

Private third-party buyers of municipal tax liens can reap a windfall profit by foreclosing, evicting the former owner (or tenant) and re-selling the property. In some instances, the underlying equity to be gained may be great enough that a debt-buyer is willing to pay even more than the value of the debt. And the homeowner loses not only a residence but all of the equity they may have spent decades building. 

All of this can lead to homelessness and financial ruin, one family at a time, with a cascading destabilizing effect on vulnerable communities. The small number of third-party buyers responsible for the bulk of tax-debt purchases have been accused of unscrupulous practices in the course of pushing properties toward foreclosure. 

These issues have caught the attention of some in the news media, most prominently the New England Center for Investigative Reporting, which has produced a series of reports in conjunction with WGBH-FM and with the Boston Globe. The Boston-based National Consumer Law Center has advocated reforms in this area and in 2012 issued a report entitled “The Other Foreclosure Crisis: Property Tax Lien Sales” that recommended, inter alia, reducing the interest rate applied to tax debt, strengthening notice requirements and enhancing the notice provided, and encouraging more use of tax deferral and abatement plans. 

In response, legislation has been filed in Massachusetts by State Representatives John Mahoney and Tram Nguyen, and State Senator Nick Collins—each bill addressing different aspects of the problem, sometimes in overlapping ways. Greater Boston Legal Services has been at the forefront of efforts to enact legislation. 

The BBA’s Real Estate Law Section reviewed the existing bills, with an eye toward pulling out key provisions suitable for potential BBA endorsement and packaging those into a set of guidelines for legislation. The BBA’s Delivery of Legal Services Section voted to endorse these principles as well. No other section offered substantive comments. 

Last week, the BBA Council voted in endorse those guidelines, which read as follows:

The Boston Bar Association is concerned about existing Massachusetts laws regarding the enforcement of foreclosure on homeowners with outstanding tax arrears. Under current law, these “tax-lien foreclosures” can lead to outcomes in which a homeowner loses not only their real property but all of the equity they have built up—regardless of the amount of debt actually owed. Municipalities can sell the outstanding debt to third parties, who have an incentive to take advantage of that windfall provision but no incentive to consider the effect of foreclosure on the community as a whole.

The BBA recognizes that municipalities are entitled to collect all taxes due and believes they should have the tools to work out repayment agreements to help fairly achieve that result. We encourage municipalities to make use of the existing flexibility provided in G.L. c. 62A as part of this process. We remain concerned nevertheless about certain vulnerable homeowners, who may face their own particular challenges in confronting tax arrears—especially given the statutory default interest rate of 16%—and may be especially prone to misunderstanding the penalties and outcomes that may result. Finally, the BBA is concerned that current law does not adequately consider the impact on tenants who live in properties subject to tax-lien foreclosure proceedings. 

Therefore, the BBA concludes that any legislation to reform the way in which tax-lien foreclosures are handled should: 

•    Eliminate the windfall to private purchasers of tax titles upon foreclosure, as well as any incentive to pursue that option in place of a potentially workable repayment agreement. 

•    Allow municipalities to adopt repayment plans with more flexibility in repaying back taxes and allow for greater reduction in accrued interest, especially for low-income and elderly individuals who are house-rich but cash-poor. 

•    Provide for more effective notices of tax deficiencies and foreclosures, including delivery to the local council on aging and more understandable language explaining what steps homeowners can take to address tax arrearages and what the consequences of non-payment may be, including foreclosure and loss of equity. 

•    Require a reasonable attempt to notify tenants whose property may be subject to tax foreclosure. 

•    Eliminate arrest as a possible consequence of tax delinquency.  

•    Require that third parties who purchase tax liens be licensed as debt collectors. 

We will now seek opportunities to advocate for these changes to the Legislature, working alongside other advocates in this area, including GBLS and NCLC, to advocate for legislation that would enact them. The related bills filed this session have not yet had a legislative hearing.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Over the past two weeks, the Legislature has kicked its hearing schedule into high gear, ahead of the traditional August lull.  As a result, we’ve been busy presenting testimony, with simultaneous hearings this week addressing multiple BBA bills.  At one point, we even had witnesses testifying at virtually the same time on two different floors of the State House.

All of the thousands of bills that are filed each two-year session are entitled to a public hearing before the legislative committees to which they are respectively referred for consideration, generally between May of the first year and February of the second year.  This can produce a log-jam, with overlapping hearings—often covering dozens of bills at a time—held at key points in the timeline.

The BBA testified on four bills this week—three of them long-standing priorities, plus one urgent addition to our portfolio—and on a set of bills last week reflecting the Council’s vote last month to join the Right to Counsel Coalition:

On July 23^rd, the Judiciary Committee held a hearing to cover all their legislation on probate and family law—nearly 60 in all.  The BBA actually spoke through two witnesses, Brad Bedingfield of Hemenway & Barnes, and Gayle Stone-Turesky of Sugarman Rogers.

• Brad offered testimony in support of An Act making corrections to the adopted children’s act (S. 872), filed by Senator Cynthia Stone Creem.  This bill would make corrections consistent with the SJC ruling in Bird v. BNY Mellon, 463 Mass. 299 (2012) in order effectively to restore the law of 1958, whereby adopted persons covered by pre-1958 instruments are presumed to be excluded from familial trust terms unless they were adopted by the testator or settlor. 
  • It’s a complicated issue, with a number of twists and turns over the past 60+ years, but you can learn more about it here and read our testimony here.
• Gayle was speaking as part of a joint bar-association panel, with representatives from the MBA, WBA, and the Academy of Matrimonial Lawyers—as well as an accountant with deep experience in family-law cases, who is uniquely positioned to speak about the uncertainty surrounding alimony guidelines in Massachusetts ever since the federal tax code rendered new alimony awards non-deductible to the payor as of this year.  This, too, is an issue that’s difficult to explain, but you’ll find a primer here.
  • Gayle and others endorsed legislation filed by Rep. Sheila Harrington (H. 3701) to effectively restore the status quo in that area, but also in support of enactment of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), through S. 886 (also filed by Sen. Creem).  Massachusetts is the only state that has not yet joined this interstate compact, by which all other states honor one another’s pre-existing custody orders, even when one of the parties moves across state borders.  (More on that issue here.)

Meanwhile, that same day, the Revenue Committee heard a bill (among nearly a hundred others related to the personal income tax) that also affects trusts-and-estates practitioners.  That bill, An Act to continue tax basis rules for property acquired from decedents (H. 2590), may be the most complex of all of these.  Fortunately, we had George Cushing of McLane Middleton on hand to explain it to the assembled legislators.  The bill, filed by Rep. Alice Hanlon Peisch, would provide for continuation of the “step-up” in the Massachusetts tax basis in property acquired from a decedent, a step-up that was allowed for decades under Massachusetts law, until it unexpectedly fell out of the law in 2010 due to the technical interrelation of various federal and state tax statutes.  (For more, our testimony is here.)

The previous week, Mary Ryan of Nutter McLennen & Fish—past BBA President and long-time champion of access to justice—was our representative before the Judiciary Committee when they held a hearing on property and land issues.  Among the 66 bills on the agenda that day were four that would create a right to counsel for low-income tenants and landlords in eviction cases.  You may recall that the Council voted last month to join the new Right to Counsel Coalition in proposing guidelines to improve on those bills and create a workable framework to establish that right statewide.  Our recent post on this issue is here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

The Legislature completed its work on a new state budget this week, sending a plan for the already-underway Fiscal Year 2020 (FY20) to the Governor.  To catch up, here’s our previous post, on the conference committee that worked out the final legislative budget from the original House and Senate plans.

We have been following four priority areas in particular, advocating for them throughout the process, and the news, as spelled out below, is positive on all fronts!  We’ll take some credit for that, of course, but the truth is, it’s always easier to make the case for funding in a year, like this one, when state revenues are outpacing expectations—in this instance, by nearly $600 million.

With the budget now in the hands of Governor Charlie Baker—who can sign off on the budget but also has the power to reduce or even strike individual line-items and other provisions—we sent him a letter this week, asking him to approve the following BBA priorities:

• We will always support funding for civil legal aid, as a critical access-to-justice issue—especially since our 2014 report, Investing in Justice.  This year, the Legislature provided a significant jump of $3 million to the line-item of the Massachusetts Legal Assistance Corporation (MLAC), the state’s leading funder of legal-services providers, bringing their FY20 total to $24 million.
• The organized bar is the only natural constituency for the judiciary, which must rely on the other two branches of government for its funding, so we take seriously our responsibility to advocate for their budget.  The judiciary is funded through a web of related line-items, but the bottom line (so to speak) is that this year, they are very satisfied with the appropriation they received from the Legislature, including funding for continued implementation of the Housing Court’s statewide expansion, which was first authorized two years ago.
• We also advocate for the Committee on Public Counsel Services (CPCS), which provides representation to indigent persons in criminal and civil cases, and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.  This year saw robust funding for CPCS operations, including both staff and private counsel who take their cases, but the Legislature’s budget crucially also includes a so-called outside section, supported by the BBA, that would allow for a temporary expansion of CPCS’s emergency authority to waive statutory billable-hours limitations under certain limited circumstances, in order to address emergency shortages of attorneys willing to take cases in some regions.
• A recent addition to our budget priorities is funding for post-incarceration residential re-entry services.  As indicated in our 2017 report on criminal-justice reform, No Time to Wait, such services can be a critical link in supporting successful re-integration, and thus a reduction in recidivism rates.  We were therefore pleased that the Legislature authorized $4.5 million in funding for such programs this year.

To reiterate, all of these measures are tentative, pending the decision of the Governor, who has until next week to decide.  In case of any reductions or outright vetoes, the Legislature would still have the opportunity to pursue overrides.

—Michael Avitzur
Government Relations Director
Boston Bar Association