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