Comments Update: SJC Adopts Final Versions of Court Rules

It’s been a busy rules season for the Courts and over the past few months they’ve issued final versions on a number of rules, including those related to electronic filing, client file retention, and credit card debt collection. You can see a list of recent rule changes and opportunities to comment here, and keep reading for a quick recap of those on which BBA Sections and Committees submitted comments.

Proposed Uniform Practice XXXV for Change of Name Action

In October 2017, the BBA submitted comments on behalf of the Family Law Section on the proposed practice, which was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults. The comments commended the court for offering guidance and consistency in this often-complex matter and pointed out a few ambiguities in the proposal. The final practice became effective in August 2018 and was responsive to one of the ambiguities raised by the Family Law Section, clarifying the ability of an applicant to return to their surname given at birth following a divorce proceeding, even if one has a prior spouse.

Proposed District Court Voir Dire Standing Order

In November 2017, the BBA submitted comments on behalf of the Criminal Law Section Steering Committee on the proposed Standing Order, which was meant to establish a procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity in voir dire to identify inappropriate bias. The final rule was promulgated in the Spring of 2018, and though it did not adopt any of the Section’s specific comments on the language, the later proposed BMC Standing Order was identical in substance to the District Court’s, which the comments did encourage.

Superior Court Rule 9A, Civil Motions, and Rule 9C, Settlement of Discovery Disputes

In February 2018, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on the proposed amendments, which were meant to simplify and reorganize the rules on civil motion and require the parties to confer before filing dispositive motions to narrow areas of disagreement. The comments submitted on behalf of the section were quite specific and detailed in nature, highlighting a few areas the Section felt could use some clarification, at least one of which appears to be addressed in the final rule, which becomes effective November 1, 2018.

Proposed Best Practices for Use by Prosecutors Making Presentments to the Grand Jury

In March 2018, the BBA submitted comments on behalf of the Ethics Committee and Criminal Law Section Steering Committee. The comments raised a number of technical questions, but in general many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices are welcome. In late June, the Committee on Grand Jury Proceedings submitted its final report to the Justices. The final report was responsive to a few points raised by the Committee, including revising one best practice to clarify that while the general best practice is to present all documents and evidence obtained through a grand jury subpoena to the grand jury, this is not so if “the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

MRCP Rules 8.1 and 55.1

In February 2017, the BBA submitted comments on behalf of the Bankruptcy Law Section on the Massachusetts Rules of Civil Procedure proposed new Rule 8.1 and Rule 55.1. These rules relate to actions for money damages against individuals arising from credit card debt and were drafted specifically to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Rule 8.1 requires plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1. The Bankruptcy Law Section was generally supportive of the rules and felt they would help address abuses that are common to the collection of credit card debts. Over the summer the SJC approved the amendments, and the final new rules will become effective on January 1, 2019.

New Rule 1.16A of the Massachusetts Rules of Professional Conduct

In April 2017, the BBA submitted comments on behalf of the Ethics Committee, the Criminal Law Section, the Family Law Section, and the Health Law Section on proposed new Rule 1.16A related to Client Files. The final rule, which became effective in September 2018, remains largely the same as the proposed version but is responsive to at least one comment submitted by the Ethics Committee.

Rule 1:25, Massachusetts Electronic Filing Rules

In May 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to the Interim E-Filing Rules. The comments submitted by the Section raised a few points of ambiguities in the proposed interim rules. One subsection of the rule was clarified in line with the comments suggestion. New Rule 1:25, Massachusetts Electronic Filing Rules, is largely the same as the interim rules proposed, and became effective September 2018, replacing the interim rules.

Appeals Court Standing Order Concerning Electronic Filing

In December 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section and the Civil Rights and Civil Liberties Section on the proposed order, which would expand and make e-filing mandatory for most civil and criminal matters, with exceptions for impounded cases and other circumstances like undue hardship or exigency. The Business and Commercial Litigation comments were quite specific, but not overly substantive in nature, while the Civil Rights and Civil Liberties comments praised the court for taking into account access-to-justice concerns when considering how to expand and require e-filing. The final order, which became effective in September 2018, was responsive to an ambiguity raised by the Business and Commercial Litigation section.

SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records

In June 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records. This comment also included a note from the Association, urging that the rule drafters keep in mind the importance of conserving the legal history of the Commonwealth, including those more recent records which may only be revealed to be historically important years in the future. A few of the concerns raised by the Section were addressed, at least in part, by the final rule, which becomes effective in October 2018.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Count Down to Election Day: Show Support for Yes on 3!

With the Massachusetts primaries behind us, all eyes turn to the general election on November 6.  And Yes on 3: Freedom for All Massachusetts is fighting to ensure that voters uphold our state’s public accommodations protections for transgender people on Election Day.

The Yes on 3 coalition—made up of 1,250+ businesses, non-profits, colleges & universities, public officials, faith leaders, law enforcement, labor unions, sports teams, and domestic violence and sexual assault advocacy organizations—is working hard to defend the non-discrimination law signed by Governor Charlie Baker in 2016.  The law includes gender identity in the list of prohibited grounds for discrimination in places of public accommodation, protecting the rights of transgender people in public places such as retail stores, restaurants, hotels, parks, theaters, public transit, public restrooms, and medical offices.

On Election Day, Question 3 will ask voters if they approve of the state’s existing non-discrimination law. A YES vote upholds the important protections afforded by the current law.

These last few months before the election will be key in spreading the word and making sure that voters understand the ballot question and the issues at stake.  The Yes on 3 coalition has been ramping up its efforts, opening three new campaign offices in Boston, Worcester, and Holyoke and hosting public education canvasses and phone banks almost every day of the week.  In this crucial moment, we need your support to make sure that Massachusetts remains on the path towards equality, inclusion, and justice for all!

Here are some ways you can help:

  • Sunday, September 16: Attend the 50 Days to Election Day Rally in Copley Square to show your support for Yes on 3!
  • Saturday, September 22: Volunteer at the Lawyers “Super Canvass” in Quincy to engage voters around the issue and show that the legal community stands for equal rights.
  • Check out the campaign’s Action Calendar to find additional volunteer opportunities.
  • Spread the word: Tell your friends and family why you’re voting YES on 3!

(If you need some talking points, check out Yes on 3’s Learn More and Mythbuster pages.)

The Boston Bar will honor Yes on 3: Freedom for All Massachusetts with the Empowerment Award at our Beacon Award celebration on Thursday, December 6.  We hope to see you there to recognize the important work of this coalition in fighting for equality!

—Hannah Poor
Access to Justice & Community Outreach Programs Manager
Boston Bar Association

Welcome to the 2018 – 2019 Program Year!

It’s that time of year again, when the BBA building becomes abuzz with activity as Section Steering Committee meetings and brown bag and CLE programs are once again in full swing. With the new year underway, we wanted to take a moment to offer a refresher about our public policy opportunities and procedures.

Our Public Policy Procedures offer a great resource for learning about BBA policy processes and highlight our key focus areas. We are always looking to be involved in proposals that fall within our mission, which is to:

  • Increase access to justice,
  • Provide for the fair and efficient administration of justice, and
  • Enhance the quality of the law

The procedures also highlight the myriad of ways in which policy related to these areas manifests at the BBA, including:

  • Providing comments on proposed changes to court rules
  • Drafting, endorsing, or providing feedback on legislation
  • Filing and joining amicus briefs

Section Comments

One of the more common policy opportunities here at the BBA involves the solicitation of Steering Committee comments on proposed amendments to court rules. As part of this process, we send an email to the Section Co-Chairs, notifying them of an opportunity to comment, and if the proposed amendments do relate to their practice area, the Co-Chairs forward them along to the full Steering Committee for more in-depth review and potentially a discussion at their next meeting. When a Steering Committee has an invitation to comment on their agenda, I, or Mike Avitzur, the Director of Government Relations, will attend, take notes, answer any questions, and assist in the development of comments should the Steering Committee have them. Then, the comments are reviewed by BBA leadership and submitted by the BBA on behalf of the relevant Steering Committee(s).

We love facilitating the opportunity for Sections to weigh in from their particular, expert perspectives on important changes that may impact their practice area. This also provides the courts with an opportunity to hear directly from practitioners that will be impacted by the proposed amendments. And the courts have a history of carefully considering the submissions and often adjusting the final versions of the rules as a result of the concerns and feedback raised in the Section comments.

For more reading on the Comment process and the impact of these submissions, be sure to check out:

Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

Sometimes, however, the request for input will come not from the courts, but internally from the BBA. Here in the Government Relations Department, we often reach out to the Sections for their expert opinions and analysis on a range of other internal and external policy requests, including requests for the BBA to endorse legislation, to file or join an amicus brief, or to respond to various current event and policy developments locally and nationally. In these instances, we rely on Sections to weigh in from the perspective of their particular practice area as a way to ensure that we thoroughly understand the issue and any impacts it may have.

Public Policy Request

Beyond responding to requests for comment coming directly from the Government Relations Department, we also encourage Sections, acting through their co-chairs, to prepare their own policy proposal requests by filling out and submitting this summary sheet. These proactive proposals can seek a number of actions from the BBA, including creating and drafting new legislation, supporting or opposing existing legislation (with or without further comments), providing comments on regulations, rules or standing orders, or something else entirely.

As you can see, these requests can be used to take much more nuanced positions than simply support for or opposition to an existing piece of legislation. For example, just this year, the Human Trafficking Subcommittee of the Delivery of Legal Services Section Steering Committee submitted a proposal seeking BBA endorsement of legislation that would introduce a streamlined process of post-conviction relief for survivors of human trafficking. There were two separate bills filed, which, though different, would each accomplish this goal. Instead of getting into the relative merits of the bills, the BBA instead endorsed a broad position in support of the procedures, and urged the conference committee to ensure that the opportunity to include these important measures in the criminal justice reform package was not missed. Thankfully, these measures were included in the final package (which also included a number of our other recommendations!).

Amicus Brief Request

While we already noted that Sections are often asked to provide comments on amicus brief requests from outside the BBA, members are also encouraged to submit their own requests if they believe the litigation at issue fits the specific criteria. According to the Amicus Brief Policy, the BBA will, “as a general rule…only file or join an amicus brief related to the practice of law or the administration of justice,” though “possible exceptions will be considered on a case-by-case basis.”

The drafting or joining of a brief, however, takes a significant amount of time and resources, so we urge those requesting BBA involvement to begin this process as early as possible. For requests that require the BBA to draft a brief, three months is typically required to obtain the appropriate approvals from BBA leadership and prepare the brief for filing. If, however, the request asks the BBA to join a brief being prepared by another party, only two months is required, with the draft brief being submitted to the BBA for review one month prior to the filing deadline.

Our Amicus Committee has a long history of submitting briefs on some of the most significant and timely matters facing the profession and the general public, including the Dookhan Drug Lab Scandal, Access to DNA Testing, and Diversity in the Legal Profession.

Just this year, the Amicus Committee worked hard to produce three briefs related to juvenile justice, prosecutorial misconduct, and attorney-client privilege and First Amendment rights. Read more about these briefs:

BBA Files Amicus Brief in Litigation Arising from Amherst Drug Lab Scandal

BBA Files Amicus Brief in U.S. v. Brian Joyce

BBA Files Amicus Brief in Commonwealth v. Lutskov

This year, we are excited to work with you on the full range of policy opportunities here at the BBA. Looking ahead, you can be sure that we will continue advocating for funding for civil legal aid, the Trial Court, and the Committee for Public Counsel Services, as well as our long-held criminal justice reform priorities, including opposition to the death penalty and repeal of mandatory minimums. And, ICYMI, be sure to get up to speed on the report recently issued by our Immigration Working Group and the accompanying principles and positions adopted by the BBA Council last month!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Announces New Immigration-Related Principles and Positions

At the BBA Council meeting in May, then-BBA President Mark Smith appointed a Working Group to consider the rapidly unfolding immigration-related developments impacting our community and country. This Group, chaired by BBA Vice President Martin Murphy of Foley Hoag, worked hard over the summer, ultimately establishing a set of four principles, and an accompanying report, to guide the BBA’s response to these issues. The BBA Council considered, and adopted, these principles at their meeting in August. At that same meeting, the Council also endorsed three policy positions that align with the spirit of the principles and past BBA positions.

Keep reading for an overview of the new BBA principles, the three new policy positions, and a brief history of our past positions.

The New BBA Principles

Given the recent, and continuing, sweeping changes in immigration policy and enforcement practices, the BBA Council determined it would be worthwhile to produce a set of guiding principles that will help to frame and improve the Association’s response to these developments as they arise. As mentioned above, immediate Past President Mark Smith established a ten-person Working Group, chaired by Martin Murphy, which produced the principles and an accompanying report on the BBA’s role in the immigration policy space and the reasoning in which the four principles are based. The Working Group was composed of immigration law experts–including both Co-Chairs of the BBA’s Immigration Law Section–and volunteer BBA leadership.

The four principles provide:

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.

Boston is largely a city of immigrants, no less now than in the past. Our history, culture, economy, and traditions have been shaped by immigration, and the unique and valuable contributions of immigrants continue to strengthen our city’s civic, economic, and cultural life.

Principle 2: No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status. 

All human beings are the bearers of fundamental rights and freedoms that are embodied in the United States Constitution and the Universal Declaration of Human Rights (a declaration adopted by the United Nations General Assembly in 1948 to establish a common standard of fundamental human rights that should be protected for all peoples and nations). National governments must respect human rights when people enter their countries, and judicial systems must uphold these rights. The BBA affirms that all human beings have these fundamental rights, regardless of how they entered the United States. 

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.

The United States Supreme Court has ruled that all people in the United States, including undocumented immigrants, are guaranteed protections under the Constitution’s Fifth Amendment (right to due process of law) and Fourteenth Amendment (right to due process and equal protection under the law). The BBA insists that these protections must be fully upheld 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 BBA asserts that immigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation. The BBA also believes that immigrants in removal proceedings should be provided with a lawyer to ensure they are able to exercise their rights and legal options to the full extent possible. Finally, the BBA believes that immigrants must have access to a fair legal process with independent judges when seeking immigration relief.

The Three New Positions

Given our past positions, and the above principles, the BBA Council also determined that it was appropriate to immediately endorse three particular policy positions, elaborated upon below.

ABA Resolution on Family Separation

As noted, earlier this summer the BBA endorsed the ABA letter related to family separation, expressing strong opposition to the practice of separating children from their parents when arriving at the Southern border. That letter noted that “the systemic practice of separating parents and children is antithetical to our values as a country, appears to violate longstanding precedent protecting rights to family integrity, burdens the federal criminal justice and immigration adjudication systems, and increases costs to the government.”

As of August 20, 2018, over three weeks after a court-ordered deadline of July 26, more than 500 children still remained separated from their parents, according to court filings. It’s estimated that the parents of nearly 300 of those children have likely already been deported.

Following up on this letter, the ABA adopted a resolution on family separation at its House of Delegates meeting in August. That resolution, which the Council endorsed, urges executive and legislative action to ensure that:

(i) the federal immigration policies and practices of separating minor children from their parents at the border immediately cease and not be reinstated; any separation of a child and a parent shall occur only upon a determination of child endangerment, applying well defined criteria with due process protections for parent and child, and

(ii) children who have already been separated from their parents under such policies have a safe and expedited procedure for being reunited with their parents consistent with ensuring that parents’ and children’s individual and independent legal claims are protected.”

You can read the latest on the unfolding litigation  here, and we will continue to monitor the situation and alert you about opportunities for bar involvement.

ABA Resolution on Courthouses as Sensitive Locations

The BBA has also been paying close attention to the increasing instances of immigration enforcement in and around courthouses in Massachusetts. In March, we sent a letter to the Single Justice, requesting a full-bench SJC review of a petition asking the Court to ban ICE officials from making civil arrests in and around Massachusetts courthouses, stating:

“For the past year, the BBA has been monitoring, with increasing concern, reports that the U.S. Department of Homeland Security (“DHS”), acting through ICE, is using courthouses in the Commonwealth to effect civil immigration arrests…Such actions by ICE may significantly impair the ability of the Commonwealth to ensure access to our courts and fair administration of justice for all our residents.”

The Working Group’s report, in discussing Principle 4, calls attention to this specific issue as a key area of concern due to the negative access-to-justice implications of such enforcement activities. Many in the legal community have expressed similar concerns, including bar associationsjudgesprosecutors and defense attorneys, and advocacy organizations and elected officials throughout the country. Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey expressed her concern in a letter to an ICE Special Agent, noting that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action. If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity… Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety. In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

It is worth noting that there are other locations, already designated as “sensitive,” where immigration enforcement actions are not allowed except under exigent circumstances, including schools, medical treatment and healthcare facilities, and places of worship. It is long overdue for the courthouse—a crucial locus for public interaction with our system of government–to be added to this list of locations deemed worthy of protection.

For that reason, the BBA Council endorsed a 2017 ABA Resolution that urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify the Department of Homeland Security guidelines to include courthouses as “sensitive locations” in which immigration enforcement actions can only be taken upon a showing of exigent circumstances, such as a threat to public safety, pursuit of an arrest, or risk to evidence in a criminal investigation, and with supervisory official approval. In addition, the Resolution urges the U.S. Immigration and Customs Enforcement and Border Protection to, with or without congressional action, revise its existing guidelines to include courthouses as a sensitive location.

We are proud to join the ABA in advocating for this sensible, yet highly important protection, in order to ensure that the courts in the Commonwealth and across the country are able to fulfill their vital function.

Protecting the Independence of the Immigration Adjudication Process

As an association of attorneys, we have often spoken about the importance of judicial independence and the dangerous consequences when political pressure is applied to those serving on the bench. Twice in recent months, immediate Past President Mark Smith felt compelled to speak out when judicial independence was threatened in the Commonwealth, noting that “the independence of the judiciary is a foundational component of our democracy” and that “the public calls on our judges to make exceedingly difficult decisions every day, and relies on them to do so based not on what is popular but what is fair and just.” And, of course, more broadly, the BBA each year prioritizes funding for the judiciary in its annual budget campaign because we recognize that a well-functioning, fair, efficient, and fully independent judiciary is absolutely crucial to the fair administration of justice.

However, the current structure of the Immigration Courts renders them unable to function as fairly, efficiently, and independently as they should. Immigration Judges are career attorneys appointed by the Attorney General as administrative judges under a division of the Department of Justice and do not have the usual safeguards that protect judicial independence. The BBA Working Group’s report notes that Immigration Judges work under extraordinary circumstances, as increased enforcement has caused their caseloads to more than double since 2012, and immigration law is a notoriously complex subject matter. The shortcomings of the current structure have been made even more apparent by recent actions taken by the Department of Justice, which, as stated in the report, have “added to these pressures by adopting new measures intended to increase efficiency but which, as a practical matter, pose serious challenges to judges seeking to do justice in individual cases.” For example, earlier this year Attorney General Jeff Sessions announced new metrics for Immigration Judges, including the imposition of quotas. This sparked a quick and resolute outcry from a number of groups, including the National Association of Immigration Judges (NAIJ), whose President described the new requirements as “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.”

In addition, just last month 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 American Immigration Lawyers Association (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.”

In order to address these serious judicial independence and due process concerns, many, including NAIJ and AILA, are calling for the restructuring of immigration courts under Article I, similar to existing federal Bankruptcy and Tax Courts. The idea, however, is not a new one; the Federal Bar Association has urged this reform since 2013, and the ABA has held this position for twelve years.

You can read the ABA’s full report on the matter and recent testimony on the subject. In short, an Article I court “is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government.” The BBA is proud to join the ABA, and many others, in urging congressional reform of the Immigration Courts, restructuring them under Article I, in order to guarantee the level of independence needed to fairly administer justice and ensure due process for all involved.

A brief history of past BBA positions

These new developments build off of the BBA’s past work in this area, as we have The BBA has a lengthy history of adopting positions that help to ensure access to justice for immigrants and fairness in the immigration process. Though not comprehensive, the below highlights a number of key positions taken by the BBA over the past decade.

In keeping with our core mission, much of the BBA’s past work in immigration relates to access to justice, and specifically, the provision of counsel for low-income individuals. In 2008, the BBA’s Task Force on Expanding the Civil Right to Counsel produced the report Gideon’s New Trumpet. The Task Force’s Immigration Law Committee, noting the complicated nature of immigration proceedings and the severe consequences facing those caught up in them, recommended that representation should be provided in all cases where individuals are detained, face deportation as a resolution of a criminal offense, or are seeking asylum.

In 2017, the BBA expanded on this position by adopting ABA Resolution 115, which supports “the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings before the Executive Office of Immigration Review (in Immigration Courts and before the Board of Immigration Appeals), and if necessary to advise such individuals of their rights to appeal to the federal Circuit Court of Appeals.” You can read more about that position here.

Many of our other immigration positions also relate to the fair administration of justice in the immigration application and adjudication processes. In 2008, for example, the BBA endorsed an ABA Resolution on immigration fees, asking the Executive Branch and Congress to ensure that fee levels for immigration benefits were not so burdensome as to deter individuals from applying. In addition, the BBA endorsed ABA Resolution 111B, which opposes the detention of noncitizens except in extraordinary circumstances and urges that “… a practice be put in place that speeds up the detention process, [that] outside parties be allowed to monitor detention conditions, and that the legal, mental, and health conditions of children whose parents are detained get properly addressed.”

Many of the BBA’s past positions specifically address the treatment of youth. In 2016, we submitted an amicus brief and supported legislation which would ensure that all juveniles under the age of 21 had the ability to apply for Special Immigrant Juvenile Status, which offers a pathway to seek legal permanent resident status for youth that have faced abuse, abandonment, or neglect, upon showing it would be unsafe to return to their home country. (We are very happy to report this important protection was finally signed into law this year!) And in 2017, we endorsed ABA Resolution 301, which supports the preservation and development of policies that protect due process and other safeguards for immigrant and asylum-seeking children, especially those who have entered the U.S. without a parent or legal guardian.

The BBA has also been responsive to a number of the more recent developments, including filing an affidavit in February 2017, as part of a suit calling for constitutional scrutiny of the Executive Order banning individuals from certain predominantly Muslim countries from entering the U.S. and highlighting the BBA’s strong opposition to proposals which would use national origin, race, ethnicity, religion, sexual orientation, and gender identity as the basis for discrimination. In April 2018, the BBA submitted a letter to the Single Justice in support of full bench review of the case petitioning the SJC to issue a writ of protection banning civil arrests of individuals in, around, and traveling to and from courthouses, and in June 2018, the Council endorsed a letter from ABA President Hilarie Bass in opposition to the practice of separating families at the border, and urging their prompt reunification.

While we are thrilled to have in place the three new positions outlined above, our work is only getting started, and we look forward to keeping you updated on the Association’s ongoing advocacy efforts to stand up for the rights of immigrants and work towards access to justice for all. Finally, we’d like to extend a big thank you to the members of our Immigration Working Group, and Chair Martin Murphy, for all their hard work in producing the principles and the report!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association


State House Update: Recap of BBA Legislative Priorities as Formal Session Ends

As you know, each legislative session, we advocate on a range of issues, including family law, criminal justice reform, and civil rights. One of our big priorities this year was Criminal Justice Reform, and you can read a recap of where that ended up here. As usual, this year ended with some highs and lows. Keep reading to learn more about the good, and not-so-good, news, and a forecast for our advocacy in the years ahead!


As mentioned last week, we are very pleased with the action taken by the Legislature on our priorities in the final FY19 budget, which saw a significant increase in funding for civil legal aid through the Massachusetts Legal Assistance Corporation (MLAC), full-funding for complete statewide expansion of the Housing Court and the important Tenancy Preservation Program that court provides, strong appropriations for both the trial court and CPCS, and even inclusion of an outside section that offers a long-overdue step to provide access to justice for vulnerable immigrant youth.

For the full wrap up on the budget, visit our past Issue Spot blog. Since then, we’re happy to report that the legislature overrode the governor’s veto that would have reduced the residential re-entry services funding by half. Instead, the Legislature restored that appropriation to the full $5 million.

Civics Education:

As we reported last week, the Legislature passed a BBA-endorsed bill that would require the inclusion of civics education in all public schools. You can learn more about the language of the bill here. We are grateful the House and Senate both recognized how important it is that our next generation is armed with a thorough and equal understanding of civics, including the role of the oft-misunderstood judicial branch, and we hope the Governor will sign this bill soon


Two of our top legislative priorities this year involved Massachusetts adoption of uniform laws, including our support for adoption of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). Although the Senate adopted a version of the UCCJEA, the House did not act on it before the clock ran out on formal legislative sessions late on the evening of July 31. However, we are hopeful that this legislation will be passed by the House during the informal sessions to be held the rest of this year, and then sent to the Governor for his approval—which would make Massachusetts the 50th (sic!) state to join this compact, which preserves each state’s jurisdiction over custody matters, even when the custodial parent and child move to a new state.


The second uniform law we advocated for this Session is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Unfortunately, this was effectively sidelined for the year before the end of session, and we will spend the remainder of 2018 laying the groundwork for our continued advocacy on it when the Legislature reconvenes in January. Until legislation is adopted to clarify the rights of personal representatives to access electronic accounts of those who have died or become incapacitated, practitioners in this area will have to continue to grapple with existing uncertainty.

Financial Literacy:

Unfortunately, the financial literacy legislation which the BBA Council endorsed earlier this year also failed to make it through the Legislature, despite having broad support and passing the Senate in March. Of course, we will continue to operate in this space beyond the State House, as we enter our 14th year hosting the M. Ellen Carpenter Financial Literacy Program, and we will continue to push for these important provisions next Session, to expand student access to education on these invaluable skills that will help ensure their future financial outlook.

Conversion Therapy:

In a particularly disappointing last-minute series of events, the legislation that would ban the use of so-called conversion therapy on minors by licensed health care professionals failed to be adopted in the formal session. We first endorsed this legislation in 2015, and were hopeful, after it failed to pass in the prior session, that this year would finally be the year that Massachusetts joined the 14 other states and Washington, D.C., with these important protections. The Bill passed the House, and in the final hours of the Session, a version passed the Senate. The Senate version, however, was not identical to the House, and there was not time for the differences to be reconciled. We join advocates in expressing a deep disappointment that the Commonwealth has failed again to protect our LGBTQ+ youth from these harmful practices. You can be sure we will continue calling on the Legislature to adopt this important ban.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Retired Northern Ireland Appeals Court Judge Sir John Gillen Addresses BBA Council

In July, the BBA Council was honored to be joined by Sir John Gillen, a retired Lord Justice of Appeal of Northern Ireland, who was recently tapped to conduct a comprehensive review of the handling of serious sexual crimes by Northern Ireland’s legal system. The review originated following a controversial, high-profile case involving two professional rugby players, which highlighted the problems with the process of trying these cases. As part of the review, Sir John is examining the laws of 13 other countries, including the United States, and we were grateful to be a part of the process during his Boston stop.

Earlier in the day, Sir John had met with several judges and prosecutors, as well as a group of practitioners representing both victims and defendants, convened by the BBA. At the Council meeting Sir John offered an overview of his work, which he is undertaking with a team of seven staff members and an eleven-person advisory panel made up of academics, lawyers, and representatives from survivors’ advocacy groups.

Sir John noted that in Northern Ireland, less than 6% of people who complain of serious sexual offenses see a conviction of the alleged perpetrator and that these cases have a 45-50% conviction rate when they actually go to court, much lower than the 87% conviction rate for non-sexual offenses. He said that 44% of complainants (79% of whom are women, and 21% of whom are men, on average) drop out because of the daunting nature of the legal process. He also noted that an estimated 60% of sexual assaults in Northern Ireland are never reported. In his view, these statistics reveal that, in addition to legal and procedural changes, a radical cultural shift is needed.

In addition to looking at measures and reforms adopted in other jurisdictions, Sir John said that he had interviewed 20 complainants in these cases about their experiences with the legal system, and hoped to interview at least 20 more. Sir John said some areas he was examining as he crafted his recommendations included: whether modifications needed to be made to the concept of open justice and open courts in sexual assault cases, particularly in the social media era; the role of anonymity for both the complainant and the accused in these cases; the problem of juror bias, including with regards to the prevalence of rape mythology and a lack of common understanding of the concept of consent; the possibility of introducing an option for pre-recorded evidence, particularly in cases involving children; areas for tightening rape shield laws; the possibility of mandating the right to legal representation for complainants in sexual assault cases; and the introduction of government-funded public education campaigns to inform people about consent and to challenge common misconceptions about sexual assault.

In response to a question by a Council Member, Sir John also noted the role of education, saying that proper training for jurors, judges, and both prosecutors and defense attorneys would be essential to improving the system. He also said he was continuing to learn more about the use of alternative resolution mechanisms, like those used at many American universities.

As mentioned, we at the BBA are very pleased we had the chance to convene a group of experts to discuss Sir John’s review, and we’ll be sure to keep you posted on the final report.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Important Protections for Vulnerable Immigrant Youth Included in FY19 Budget

In addition to the good news for a number of our key BBA budget priorities, which you can read more about here, the Legislature and Governor also took an important, and long overdue, step to provide critical access to justice for a very small but very vulnerable set of young people between the ages of 18 and 21. The final FY19 budget includes, in Outside Sections, language that would allow immigrants who are at least 18 years old, but have yet to turn 21, to make the case to federal authorities that they quality for special status under existing federal law, because they have been abused, neglected, or abandoned, and would be at risk if returned to their home countries.

The need for this statutory language tracks back to 1990, when the federal government began providing for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court.

However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20. Thus, in Massachusetts, there was a small class of individuals that would otherwise qualify for SIJ status, but might be barred from doing so simply because the Probate and Family Court would not make a finding due to their age. According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but this was not uniform and judges had no guidance on the matter.

The BBA first weighed in on this issue in 2014, supporting An Act relative to abused, abandoned, or neglected immigrant juveniles, which would have statutorily extended Probate and Family Court jurisdictions to this discrete group. Then, in 2015, we filed an amicus brief in Recinos v. Escobar, arguing that the Probate & Family Court has jurisdiction, in equity, over those seeking status as special immigrant juveniles (SIJ’s) and may make predicate special findings to support SIJ applications for those up to age 21.

The court accepted the argument, but the ruling did not obviate the need for a statutory remedy as a permanent and comprehensive solution to this limited but urgent problem. In fact, the U.S. Citizenship and Immigration Services (USCIS) has recently begun acting in defiance of the spirit, if not the letter, of Recinos, finding that SIJ applicants who are over the age of 18 have not met their burden of proof, and claiming that the Legislature “has established that a child is someone under the age of 18” and that therefore our Juvenile Court lacks jurisdiction to make the necessary dependency findings for anyone between 18 and 21.

Now, Recinos is explicitly codified into law, granting the Court that statutory jurisdiction, applicable retroactive to the date of the Recinos decision and to any petitions that were wrongfully denied or revoked in this manner, based on the child’s age. As lawyers, we recognize that while the courts enjoy significant power to right wrongs through their equitable jurisdiction, only the Legislature can act to provide clear statutory parameters and guidelines for the courts’ authority. Here, given the position of the USCIS, it is even clearer that legislation was the only mechanism by which a pathway to stable legal status can be offered to all at-risk juveniles who meet the federal law’s requirements, without having to rely on the discretion and the legal interpretations of individual judges on a case-by-case basis. Furthermore, these provisions spell out a well-defined framework for the courts in handling such cases – helping judges and their staffs, as well as applicants and their legal counsel (if any) to understand how to file and pursue a claim.

You can learn more about our past legislative and amicus advocacy on this issue here. This year, we once again advocated in support of this important statutory provision, sending letters to the Chairs of the Judiciary Committee, and eventually the budget conference committee and the Governor.

A big thanks goes to bill sponsors Senator Cynthia Creem and Representative Louis Kafka, as well as the Governor, and the House and Senate for their support. And, of course, a very big thanks goes to the many supporters of the bill, including the courts, bar associations, and legal-service providers like GBLS who represent the individuals whose ability to stay in Massachusetts – and with it their safety and security – are at stake.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Governor Signs FY19 Budget

Following weeks of conference committee debate, the final FY19 budget proposal finally made its way to Governor Charlie Baker’s desk last week, for signature and the opportunity for line-item vetoes. As you may have seen in our statement last week, the BBA was very pleased with how the final plan produced by the conference committee addressed our budget priorities, and we are happy to report that the Governor also approved most of our budget priorities in full.

For a recap of how we got here, check out our past Issue Spots on the Governor’s proposed budget, the House budget, and the Senate budget. Keep reading to learn more about where our priority items ended up in the Final FY19 Budget!

Massachusetts Legal Assistance Corporation (MLAC)

We’ve made the case for adequate funding for MLAC, the largest provider of funding for legal services programs in the state, many times over. As you’ll recall, this year we asked for a $5 million increase in the MLAC budget line-item (#0321-1600), for a total appropriation of $23 million. The Governor proposed an $18.18 million appropriation, while the final House budget appropriated $20.75 million and the Senate budget appropriated $21 million.

We are very pleased that the conference committee recognized just how important funding for civil legal aid is to the Commonwealth, appropriating $21,040,000 in H.4800, and the Governor approved the full amount! A $3 million increase in the line-item will enable MLAC-funded programs to assist thousands more qualified Massachusetts residents while saving the state money elsewhere in the budget.

Statewide Housing Court Expansion

As you know by now, we were part of the coalition calling for statewide expansion of the Housing Court for nearly four years, and we were thrilled when funding and authorizing language for the expansion was included in last year’s FY18 budget. However, for the expansion to be successful, the full panoply of benefits must be afforded to all residents of the Commonwealth, so the Housing Court must be adequately staffed and include the important parallel expansion of programs like Lawyer for the Day and the Tenancy Preservation Program (TPP), which provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. In light of this, we supported a $2.6 million appropriation for line-item 0336-0003, which would fully fund Housing Court expansion, and a $1.3 million appropriation for line-item 7004-3045, which would fully fund the TPP.

Governor Baker, a long-time supporter of statewide expansion, proposed the full $2.6 million, while the House budget appropriated $1.5 million and the Senate $2.6 million. Thankfully, the conference committee followed the Senate’s lead on this and provided for the full $2.6 million, which the Governor approved. For the TPP, the Governor proposed $500,000, the House $750,000, and the Senate the full $1.3 million. The conference committee also followed the Senate’s lead here, appropriating the full $1.3 million in H.4800, which the Governor also approved. We are grateful the Governor continued his leadership in the area and approved the full amounts for both of these important line-items, ensuring the benefits of the Housing Court are fairly and efficiently extended to all residents of the Commonwealth.

Trial Court

We also know just how important it is that the Trial Court receives adequate funding, and we have been, as usual, advocating for funding sufficient to allow it to maintain operations at current standards and also further enhance efficiencies and improve the user experience. For the FY19 Budget, we supported the Trial Court’s request for a maintenance-level appropriation of $671.1 million. As the main point of contact with the justice system for most Massachusetts residents with a legal issue, an adequately-funded Trial Court is necessary for ensuring the fair administration of justice.

The Governor’s budget went some way towards this maintenance funding, and the final House and Senate budgets included the full maintenance request. Fortunately, the conference committee also recognized the importance of these line-items and provided the resources necessary for the court system to continue to operate at a high level. The Governor signed off on the full Trial Court appropriations in H.4800, helping to ensure this essential branch of government receives the funding it needs to offer adequate access to justice for the residents of the Commonwealth.

Committee for Public Counsel Services

Finally, we continued to advocate for fully funding CPCS operations in the FY19 budget, through a series of line-items (0321-1500, 0321-1510, 0321-1520). As you know, CPCS plays a vital role in our judicial system, providing representation to indigent persons in all criminal and some civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States.

The conference committee amount in H.4800 signaled its support for CPCS through its generous FY19 appropriations, which thankfully the Governor approved in full. Unfortunately, the FY19 budget will not include an increase in the billable hours cap for private assigned counsel, but the BBA will continue to advocate for it.

Residential Re-Entry Services

As you may have seen in our recent advocacy alert, we added an additional item for our budget ask in the Senate: funding for residential re-entry services to reduce recidivism. (Check out our letter to the Senate where we provide more detail as to just why this line-item is so important). As you know, Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective through the enactment of historic reforms earlier this year. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339-1011, which would offer grants for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community.

The House budget proposed a $3 million appropriation for this line-item, the Senate budget did not appropriate any funds to this line-item, but we were grateful the Conference Committee recognized its import and included the full $5 million ask we endorsed. Unfortunately, the Governor reduced this final figure to $2.5 million, but we are hopeful that the Legislature will pursue an override to provide the full appropriation. That would go a long way toward extending this important service in the Commonwealth, and perhaps lay the groundwork for similar initiatives to be expanded in future years.

We are grateful to Governor Charlie Baker and the Massachusetts House and Senate, notably Speaker Robert DeLeo, former (as of yesterday) Senate President Harriette Chandler, House Ways and Means Chair Jeffrey Sánchez, and Senate Ways and Means Chair (and new Senate President) Karen Spilka, for their recognition of the importance of these BBA budget priorities. And a special thanks goes out to our members who responded to our numerous asks and reached out to your legislators urging them to support key amendments related to access to justice and criminal justice reform.

You can trust that we’ll be back next year, once again advocating for those line-items that will help to facilitate access to justice for all in the Commonwealth and ensure the fair administration of justice!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Hosts Suffolk DA Candidate Forum

On Wednesday, five of the six candidates in the Suffolk County District Attorney’s race came to the Boston Bar for a forum in which they fielded questions from two distinguished moderators and the audience.

State Representative Evandro Carvalho, Assistant District Attorney Greg Henning, defense attorney Mike Maloney, former Roca Director and CPCS attorney Shannon McAuliffe and former Assistant U.S. Attorney and MassPort, MassDOT and MBTA General Counsel Rachael Rollins joined us for the forum. Suffolk Law School Professor and former prosecutor Christina Miller and Northeastern University Law School professor Daniel Medwed moderated the discussion.

The candidates responded to questions on topics such as the use of court-ordered sobriety as a condition of probation and how they would help extend positive trends in crime and incarceration rates. The moderators touched on broad policy questions but also focused on some of the “nuts and bolts” issues of managing the largest DA’s office in the state, with a $20 million budget and a staff of more than 200 attorneys, asking what the candidates’ practices would be on seeking cash bail and how they would guide Assistant District Attorneys on charging decisions and plea offers. The candidates were also asked to share their views on how the District Attorney’s Office should handle cases where one or more party may face immigration consequences, and whether ICE should be allowed to make arrests in and around courthouses. And audience-submitted questions included one on how to protect victims and witnesses and ensure their appearance at trial.

A networking reception followed, where members of the audience had the chance to meet the candidates one-on-one. This forum was co-sponsored by the Boston Bar and its six affinity bar partners: the Asian American Lawyers Association of Massachusetts, the Massachusetts Association of Hispanic Attorneys, the Massachusetts Black Lawyers Association, the Massachusetts Black Women Attorneys, the Massachusetts LGBTQ Bar Association and the Southeast Asian Bar Association of Greater Boston.

BBA President Mark Smith, Elysa Wan of the AALAM board, and moderators Professor Christina Miller and Professor Daniel Medwed

Video of the forum is available for viewing online at this link.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Massachusetts Legislature Passes Civics Education Requirement

Earlier this year, the BBA Council endorsed legislation that required the inclusion of civics education in all public schools and outlined, in greater detail than existing law, the content of the civics curriculum. The House also passed a version of the bill in May, and a conference committee was assigned to work out the differences. With only a few days left in the legislative session, we are happy to report that the conference committee released its final report, and the legislature officially passed S. 2631, An Act to Promote and Enhance Civic Engagement, on Wednesday!

As you’ll recall, the legislation arose from a concern among many, including students, about the inconsistency in civics education, though technically a required curriculum, across Massachusetts schools. The final bill requires schools to teach civics in order “to promote civic service and a greater knowledge thereof and to prepare students, morally and intellectually, for the duties of citizenship.” It will go into effect in the 2020-21 school year. The curriculum will include coverage of:

  • history of the United States of America;
  • the Constitution of the United States, including the Bill of Rights;
  • the Declaration of Independence;
  • the constitution of the commonwealth;
  • local history and government;
  • the function and composition of the branches of local, state and federal government;
  • the roles and responsibilities of a citizen in a democracy;
  • the development of skills to access, analyze and evaluate written and digital media as it relates to history and civics;
  • community diversity and historical trends in voter registration and civic participation relative to disenfranchised voter populations;
  • opportunities to identify and debate issues relative to power, economic status and the common good in democracy; and
  • a program relating to the flag of the United States of America including, but not limited to, proper etiquette and the correct use and display of the flag, the importance of participation in the electoral process and the provisions of 4 U.S.C. sections 7 to 9, inclusive, and 36 U.S.C. section 301.

The bill also requires every public school serving 8th grade students and each public high school to provide at least one student-led civics project. Unlike in the Senate bill, however, the compromise language does not make completion of the project a requirement for graduation. The nature of the projects is quite flexible, and it can be class-wide, individual, or small group, but represents an opportunity for students to engage in unique, experiential civics-related learning.

Additionally, under S.2631, the state will provide professional training to teachers and create a “high school voter challenge program,” which would select students to run voter registration drives on their campus. Many of these are dependent on adequate funding, which is not specifically appropriated in the legislation, though it does call for the creation of a Civics Project Fund that would be funded by legislative appropriation and private sources (subject to certain restrictions).

In May, BBA President Mark Smith of Laredo & Smith LLP (himself a former high-school teacher) sent a letter to Chair William Galvin of the House Committee on Rules, expressing our support, and after it passed the House, he sent a letter to the Conference Committee urging them to ensure this important legislation was reported to the full Legislature in time for a final vote by July 31. In that letter, President Smith noted:

“The provision of civics education in public schools will ensure the next generation understands the role of all parts and functions of the government, sustaining confidence in the key institutions of a constitutional democracy, including the courts, the jury, and other critical aspects of our justice system.”

We are very pleased that the Legislature understood the importance of providing strong civics education all students in the Commonwealth, and a special thanks goes to Education Committee Chairs Senator Sonia Chang Diaz and Representative Alice Peisch for their concerted efforts on this important legislation! The bill is now before the Governor, awaiting his signature.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association