2012 was a productive year for the BBA, and Issue Spot would like to look back on the numbers.
2 Amicus Briefs – The BBA filed amicus briefs in Rachel A. Bird Anderson v. BNY Mellon, N.A. trustee and others and Fisher v. University of Texas at Austin. The SJC referenced the BBA’s Bird brief in its decision this summer. The BBA recruited 38 law firms, companies and organizations to join our Fisher brief and was one of 71 amici to file briefs in the high profile case.
2 Court Standing Orders – The Boston Municipal Court made permanent a Criminal Offender Record Information (CORI) sealing order and the Supreme Judicial Court instituted a pro hac vice admission fee which yielded $49,000 in the first quarter it was collected. Both standing orders were endorsed by the BBA.
7 Laws Took Effect – Seven pieces of legislation the BBA supported took effect in 2012.
700 Attorneys Attended Walk to the Hill – Lawyers from across Massachusetts filled the State House for the 13th annual Walk to the Hill for Civil Legal Aid. More than 50 law firms and organizations were represented.
100+ Lawyers Attended Court Advocacy Day – More than 100 attorneys trekked to the State House to show support for adequate court funding.
2012 was a successful year and we are committed to topping these numbers for 2013. We still have unfinished business in the Massachusetts Legislature. There are also emerging federal issues we are preparing to tackle. But as 2012 wraps up, we have much to celebrate.
Government Relations Director
Boston Bar Association
Before we break to celebrate Thanksgiving, let’s pause to remember what we’re thankful for. . .
- The fact that the Massachusetts Declaration of Rights provides for three co-equal branches of government: Executive, Legislative, and the Judiciary.
- The work of our Amicus Committee in Bird and Fisher. Our Bird brief brought clarity and predictability to the estate planning process, and our Fisher brief articulated our long held commitment to diversity and inclusion in the legal profession.
- The passage of the Massachusetts Alimony Reform Act, a great example of true grassroots activism, coalition building and collaboration. Democracy is not always efficient, but the process was exemplary, allowing stakeholders to speak and be heard.
- The passage of the Transgender Equality Rights bill. This bill was 5 years in the making, and it was high time that Massachusetts provided important protections to the transgender community.
- The CORI Sealing Order was made permanent by the Boston Municipal Court. This will allow multiple motions from different districts to be heard in one of the courts with jurisdiction over a case to be sealed. More important it facilitates re-entry.
Government Relations Director
Boston Bar Association
Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st. At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.
Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th. The issue at hand in the Fisher case is the diversification of student bodies in higher education. However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.
Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School. Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.
We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities. This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.
This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.
Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM. These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA). DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.
Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA. DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.
Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues. As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.
We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions. We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.
It should come as no surprise that a one-size fits all approach to policy and advocacy doesn’t work for the BBA. The universe of issues on which the BBA could take a public position is limitless. In some ways, these issues exist on a continuum as illustrated below (click on the image to enlarge it). As issues move along that scale from technical to policy to political, the Council’s role increases.
Our ability to be a leader on things that are timely, important and that resonate with our membership requires a process that is both flexible and practical. The primary consideration for determining whether or not the BBA will speak is how central the issue is to the three main tenets of our mission: access to justice, the administration of justice, and improving the quality of Massachusetts’ laws. The BBA is vocal on those issues that are central to our mission and more inclined to reserve judgment on issues that don’t clearly affect the practice of law or the legal profession.
When the BBA does speak, the organization speaks on behalf of its more than 10,000 members unless explicitly stating otherwise. The manner in which we make our position known varies. We file amicus curiae briefs with the courts (see our amicus history), testify at public hearings on legislative issues, provide technical comments on proposed court rules, participate in official legislative task forces (see alimony), and meet with and write letters to key policy makers (see our NDAA letter to President Obama).
The BBA’s Council agenda for September reflects the breadth of issues the BBA considers at any given time. Here’s a look at three items that are taking distinctly different internal paths at the BBA.
Section Comments on Massachusetts Child Support Guidelines
As we noted last week, the Massachusetts Child Support Guidelines are undergoing a federally mandated quadrennial review. These Guidelines clearly affect the quality of our laws and the practice of law. These Guidelines and any changes to them is practice specific, directly affecting family law attorneys and their clients. Therefore, the BBA relies on the expertise of its Family Law Section and its Delivery of Legal Services Section (which is composed of many civil legal aid providers with experience in Probate and Family Court matters) to spearhead the BBA’s response. The Family Law Section solicited input from its membership and drafted comments and suggestions to be submitted to the Court. Though the comments still need to be reviewed by the BBA Council, the heavy lifting is done by our members at the section level.
Update on Fisher v. University of Texas at Austin
Back in August, the BBA filed an amicus brief in the Fisher case urging the Supreme Court to uphold race-conscious admission criteria. This issue originated in the BBA’s Diversity & Inclusion Section. Because of the BBA’s longstanding position that race-conscious admissions policies are vital to integrating the legal profession, we felt compelled to weigh in. The BBA’s Amicus Committee and a small group consisting of BBA Council members worked under an accelerated timeline to draft, recruit signatories and file the brief. The Supreme Court is expected to hear arguments in the case on October 10th.
Massachusetts Drug Lab
Last month news broke about egregious breaches in protocol at the Massachusetts drug lab, jeopardizing thousands of state and federal cases. The problems uncovered at the state lab clearly affect the administration of justice. This is so closely tied to our work in sentencing reform and touches on principles the BBA formulated in its Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. The BBA’s Council will determine if – and when – the BBA should develop a public policy position regarding the issues raised by the breaches.
– Kathleen Joyce
Director of Government Relations
Boston Bar Association
In August, the Supreme Court of the United States will hear arguments in Fisher v. University of Texas, an affirmative action case challenging the admission policies and practices of the University of Texas at Austin. The Supreme Court granted certiorari on the question of whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the university’s use of race as a factor in undergraduate admission decisions.
In Fisher, the U.S. District Court for the Western District of Texas held that, under the Supreme Court’s decision in Grutter, the university had a compelling interest in attaining a diverse student body. The District Court concluded that the university’s admissions program was narrowly tailored to serve that interest. On appeal to the Fifth Circuit, the three judges on the panel all voted to affirm the district court ruling, relying on the Grutter decision.
The BBA’s Diversity & Inclusion Section has asked the BBA to weigh in on the issues raised in Fisher.
This isn’t the first time the BBA has been asked to take a position on race-conscious admissions policies. The BBA was an amici in Grutter – arguing that not having race-conscious admissions policies would harm efforts to diversify the legal profession. Grutter involved the use of race-conscious admissions policies at the University of Michigan Law School. The BBA’s amicus brief in Grutter urged the Supreme Court to uphold race-conscious admissions policies as vital to integrating the legal profession.
The issues raised in Fisher and in Grutter are important to the BBA. A diverse and inclusive legal community is central to the BBA’s mission — to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large. The BBA has consistently taken the position that race-conscious admissions policies are necessary to ensure that the legal community reflects the growing diversity of our population. A legal community that accurately reflects the composition of the people it serves instills confidence and helps ensure that every person has equal access to justice.
Diversity as a concept is broader than just race and gender. In the context of the BBA, valuing diversity means recognizing the unique professional contributions that different individuals can make, and creating an environment that maximizes the potential of all members. The BBA has made diversity a part of its institutional culture in recent years, but we can do more. Diversity is now an ongoing discussion and not a just an agenda item.
The Fisher decision promises to have serious implications for affirmative action policies, and ultimately our ability to integrate the legal profession.
Government Relations Director
Boston Bar Association