Monthly Archives: June 2021

Legislative Update

Last week’s meeting of the BBA Council was heavy on policy matters, with the board voting to take positions on three important pieces of legislation.

Mandatory Minimums and Juveniles

As you probably know, the BBA has long opposed mandatory minimums across the board. And both our 2017 report on criminal-justice reform and a pair of recent SJC cases in which we filed amicus briefs make the argument that juveniles deserve special treatment when charged with criminal offenses.

These issues coincide in the Give Youth a Future bill — filed for the first time this session by Sen. Jamie Eldridge and Rep. Liz Miranda — which has been receiving some attention. The legislation, which would prevent juvenile adjudications from acting as predicate offenses to trigger enhanced sentencing for certain gun crimes, was filed in response to an SJC ruling in Commonwealth v. Baez. In that 2018 case — where the defendant’s sentence was seven times longer, based on two offenses committed at age 15 — the late Chief Justice Ralph Gants urged “the Legislature to consider the wisdom and fairness of the mandatory-minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” 480 Mass. 328, at 332.

The bill is premised on solid scientific research from recent decades, recognized by judges from the US Supreme Court down, that because minors are not capable of the same level of rational decision-making as full-fledged adults, and are more susceptible to peer pressure and impulsive thoughts, it is unjust to hold them to an adult standard, or to sentence them as adults. The legislation would specifically amend M.G.L. c. 269, s. 10G (sometimes referred to as the Armed Career Criminal statute) to exclude juvenile adjudications as predicates and provide for resentencing of anyone currently serving such a sentence, including those on probation or parole.

Remote Participation in Non-Profit Member Meetings

Among the emergency measures adopted by the State Legislature at the start of the
COVID-19 pandemic was a provision in Chapter 53 of the Laws of 2020, enacted on April 3,
that, in Section 16, authorized remote membership meetings for non-profits.

The law set an expiration date for these provisions of 60 days after the end of the state of
emergency as declared by the Governor. With that emergency having concluded on
June 15, this section will expire on August 14. Non-profits are keen to have some certainty in this area, so that they can plan upcoming meetings in conformance with whatever the law requires at the time, and on June 16, the Governor signed into law a bill that would extend the relevant language until December 15.

The BBA has signed onto a proposal, developed by our Chapter 180 Working Group, that would permanently codify the authority of a non-profit’s board—unless otherwise provided in the articles of organization or bylaws—to hold remote member meetings. In addition—subject to the articles and bylaws or guidelines and procedures adopted by the board—members participating remotely can take part and vote, even if the meeting itself is
being held in-person, if:

  • reasonable measures are in place to verify each person’s membership status;
  • such members are given a reasonable opportunity to participate and vote on matters submitted to the members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and
  • a record of any such vote or other action taken remotely is maintained by the corporation.

These changes are generally aligned with the Model Nonprofit Corporation Act and would
modernize the conduct of membership meetings in keeping with best practices.

Management of the Probate & Family Court

The Board also voted to add the BBA’s voice to those of many who practice in the Probate & Family Court — including the Massachusetts Lawyers Weekly editorial board (pay-wall) — and are expressing great concern about legislation that would shift administrative and personnel oversight within the court from judicial leadership and their appointed staff — such as judicial case managers and assistant judicial case managers — to elected Registers of Probate.

Currently, staff under the oversight of the Chief Justice and First Justices work closely with the judges to handle the voluminous cases that are filed each year. These professionals act in concert with the judges and as a liaison to the bar — and especially pro se litigants. Registrars, unlike Judges, are elected positions, so the bill could result in a vast turnover of staff, which in turn would cause severe disruption to an already overloaded system. In turn, this would negatively affect litigants’ access to justice.

The bill eliminates the role that the Court’s judicial leadership plays in hiring and in ensuring that staff assignments reflect their expertise for efficient court operations. The Council’s vote does not reflect the view that there is no room for improvement in the Court’s efficiency, but rather that this legislation would be a step in the wrong direction.

For the remainder of the current 2021-22 legislative session, we’ll be advocating to the Legislature for these positions. And we’ll keep you apprised here of any developments before that session formally wraps up on July 31 next year.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Looking Back: The BBA’s History of Supporting LGBTQ+ Rights

In celebration of Pride Month, we wanted to take a moment to update our 2018 Issue Spot post tracing the BBA’s own long history of supporting LGTBQ+ rights…

To begin, we have to go back nearly 50 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, more than three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was enacted and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

However, that was not the final word, because opponents of the new law used the referendum process to put its repeal before the voters in 2018. In defense of the law, we joined the Freedom for All MA Coalition that led this effort, mobilized our members, and celebrated a historic victory when, by a vote of more than 2 to 1, Massachusetts became the first state to maintain transgender protections at the ballot box. The BBA later honored the “Yes on 3” campaign, at that year’s Beacon Awards for Diversity & Inclusion (more on which below), with the Empowerment Award, given annually to “a powerful advocate who works to create systemic change in the wider community, advancing civil rights, access to justice, and/or diversity and inclusion, and amplifying the voices of underrepresented groups”.

In addition to being on the forefront of offering anti-discrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

  • In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
  • In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management, et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
  • In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
  • Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, with then-President Julia Huston stating: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a bill to ban the use of so-called “conversion” or “reparative” therapy by licensed professionals on minors, allegedly to “cure” them of homosexuality. It took four years for the legislation to be enacted, but that protection has been in place since 2019.

We have turned our attention since then to the issue of co-parent adoption, last year endorsing legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples. It is especially important to enact such legislation in Massachusetts because this happens to be the state with the highest use of assisted-reproduction technologies. The BBA will be working to support its enactment during the current legislative session.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. The past several years have been challenging for members of the LGBTQ community. One need look no further than the continued assaults on transgender rights elsewhere in the US. We spoke up when the previous administration in Washington sought to curtail LGBTQ protections, and we’ve been quick to praise the current administration as they move to undo these steps and make further progress.

And when the SJC Committee on Lawyer Well-Being recently released its Report Summarizing Affinity Bar Town Hall Meetings, we urged our members to read it in full, to take in its disturbing findings — and then to act on them, “to engage, ask if we can help, question the differential treatment, be an ally. We cannot remain silent. … We pledge to continue to work closely with our members and our affinity bar partners to ensure that the extraordinary challenges underrepresented and historically excluded lawyers face—so dramatically illustrated by the Report—are addressed, day in and day out, as a central part of the BBA’s mission, until they are eliminated.”

We hope you’ll join the BBA in celebrating Pride by recommitting to this fight.

—Michael Avitzur
Government Relations Director
Boston Bar Association