Posts Categorized: justice system

Budget Process Nearly Complete

This week, the Legislature’s Budget Conference Committee approved a final FY2016 budget and yesterday it was enacted in both the House and Senate.  Let’s take a look at where our items of interest ended up and how they got there:

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

We made a historic push for increased funding of this line item.  Following the release of our Investing in Justice task force report, we implemented an intensive and far-reaching educational campaign, which resulted in media coverage from national to local newspapers to radio and television coverage.  We also held meetings with over 50 public officials including state Executive Branch leaders, state and federal legislators, the Attorney General, and the Chief Justice of the Supreme Judicial Court.

We helped spread the word that 64% of qualified people seeking legal aid are turned away due to lack of resources.  That doesn’t even take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.  We also were proud to share the accomplishments of the private bar, which operates in a public-private partnership with legal aid, donating immense amounts of time and money to the cause.

Finally, we discovered that up-front investments in legal aid will yield back-end savings from social welfare expenses.

  • For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69, primarily on shelter costs
  • For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in Medicare savings.
  • For every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.

We are pleased to see that MLAC received $17 million in the Conference Committee budget, a $2 million (14%) increase over last year.  Thank you to everyone who responded to our many action alerts asking you to contact your Legislators to let them know the importance of funding legal aid.

Here is the final breakdown:

FY2015 Final: $15 million (before mid-year cut of 1.79%)

FY2016

  • Request: $25 million
  • Governor’s Budget: $15 million
  • House Final: $17 million
  • Senate Final: $17.1 million
  • Conference Committee: $17 million

The BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts recommended a $30 million increase over three years, so our work in this area is certainly not done.  But in the context of an overall budget increase of 3.5% and a $1.8B budget gap that confronted the new Governor, this budget lays a good foundation.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the Legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples included funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

We were satisfied with the final funding amount of $631.5 million and grateful for legislative support.  Within that number there were some particularly bright spots including increases to specialty court funding and the courts’ HOPE/MORR intensive probation program. Unfortunately, statewide expansion of Housing Court jurisdiction did not make it into the final budget.  However, we still hope to accomplish this legislatively through bills H1656/S901.

This is how the funding breaks down:

FY2015 Final: $612 million (before mid-year cut of 1.79%)

FY2016

  • Request: $642.6 million + modules
  • Governor’s Budget: $603 million
  • House Final: $622 million
  • Senate Final: $633 million
  • Conference Committee: $631.5 million

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS’s budget is comprised of four line items that include compensation for its own attorneys as well as private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, which made a convincing case that public defenders, bar advocates, and assistant district attorneys merit higher salaries, and a state commission unanimously agreed with that proposition.  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfunded CPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  The FY16 budget does not propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breakdown:

FY2015 Final: $168 million

FY2016

  • Governor’s Budget: $186.7 million
  • House Final: $170.5 million
  • Senate Final: $173.6 million
  • Conference Committee: $170.6 million

Next Steps

The Governor now has a total of 10 days to review the budget (9 days left at the time of posting).  He can approve or veto the entire budget, veto or reduce specific line items, veto outside (i.e., non-monetary) sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We hope the Governor will approve all of our line items of interest without change and we look forward to keeping you updated on the latest budget news.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equality: Making Great Strides, but a Long Way to Go

Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states.  The BBA has long been a supporter of marriage equality.  We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage.  Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court.  The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:

However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality.  Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications.  The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.

  • The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
  • The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
  • Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.

In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation.  While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.

Massachusetts has long been a leader in legislating equality.  The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application).  Remarkably, more than 25 years later, residents in many other states still lack these protections.

Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality.  As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples.  For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood.  They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples.  In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.

In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment.  However, we recognize that there is still a long way to go.  In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves.  In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity.  Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Debating Public Access to Court Records

You may have heard recently that the Trial Court held a public forum to solicit input regarding online access to court records.  This week, we present the story behind that event.

Historically, attorneys, pro se litigants, members of the press, and public were all able to access court docket information online at www.ma-trialcourts.org by requesting a username and password from the courts.  However, with the installation of the new www.masscourts.org program, there have been some limitations on this access.  The program initially required a Board of Bar Overseers (BBO) number to log in, meaning it was accessible only by attorneys.  However, as of earlier this month, two Superior Court counties, Middlesex and Barnstable, made their dockets publicly available on the MassCourts website.  In all other counties, as of the time of this post, access is limited to attorneys only, though the Courts have stated that they intend to expand full access statewide eventually.  The current access situation has created concerns, especially amongst members of the media, who have alerted the public.  The group tasked with creating a rule to address such issues, the Trial Court Public Access to Court Records Committee (Committee), responded, after 19 months of meetings, by announcing a public hearing for June 15.

The Committee is composed of 22 members and includes representatives from the Trial Court and all of its departments, as well as the Supreme Judicial Court, Appeals Court, and Probation Services.  As a number of individuals pointed out at the hearing, the Committee does not include anyone from outside the courts, such as members of the public, media, or bar.

The purpose of the hearing was to receive the views of interested individuals and organizations with regard to issues surrounding the public’s access to court case records, including their online availability.  The Committee promises to then consider these concerns when drafting a rule governing records access.  The BBA is particularly concerned about the limits to records access, especially the impact they will have on pro se litigants.  We submitted a letter to the Committee, noting our concerns and our hope to be a part of the continuing review process once a rule has been drafted.

On June 15, we attended the Committee’s hearing.  Twenty-three individuals and panels provided testimony that encompassed a wide range of ideas and positions.  But the main arguments discussed can be divided into two general camps – those in favor of broad access and those in favor of limiting access in certain instances.  Both sides have legitimate concerns, meaning the Committee has a tough task ahead of them.

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Broad Access

Those in favor of broad access noted that Massachusetts historically permitted online access to court records, and expressed the hope that the new policy would not be limiting.  They explained that a lot of case information is currently available at courthouses, and many felt that anything available there should also be online.  They argued that this would help the courts by lifting the burden on staff to provide visitors with paper files.  It would also help to provide a uniform process, as many offered anecdotes of widely differing policies by county or courthouse on accessing files at the court.  In addition, other states and the federal PACER online system provide broader access to court records and documents than Massachusetts.

A number of witnesses justified this request by noting that the media and public can serve as a check on fraud and corruption, and that everyone, from attorneys to pro se litigants to the public, deserves equal treatment.  Broad accessibility, they argued, would help facilitate court procedures by helping people access their dockets and schedules and would also help members of the public and media gather, compile, and disseminate useful data and statistical reports on the functioning of the justice system.  They countered fears of unintended negative consequences for litigants by putting the burden on attorneys to redact information and impound documents that could have negative implications or contain private information.

Limited Access

Those favoring limited access to online court records focused largely on those negative consequences the public sharing of case information can have, particularly for tenants, victims of domestic violence, and anyone with a criminal record.  For example, some landlords are said to use the system to search for prospective tenants’ names.  Even if an individual has gone to court only to force a landlord to fix a broken heater, or was merely named in a case against a roommate, they may be unfairly denied a lease.

Victims of domestic violence may be less likely to come forward if they know that potentially embarrassing details of their cases will be available online.  And if they do seek the help of the courts, putting their information online could jeopardize the safety of them or their children.  They may also face discrimination, especially in housing or employment.  The same may be true for criminal offenders whose case information would otherwise be sealed thanks to the 2010 CORI reform efforts.  Even though their records may no longer be available through official channels, witnesses expressed concern that their cases would always be available online once posted.  Many other types of cases can include sensitive mental health or financial information or highly personal family information that can be damaging if available publicly, or lead to identity theft or commercial uses by data brokers.

As a result, many called for safeguards such as the use of initials in place of party names, a protocol to correct errors, and resources devoted to assuring accuracy.  They were hesitant to place the burden on lawyers to redact and impound information because of fears that pro se litigants would disproportionately bear the consequences of a failure to do so.

In sum, the hearing provided a great opportunity for many people to be heard and for the Committee to gather valuable feedback on the issue before them and their process.  We look forward to seeing the rule they draft, and to continuing to be part of this process.  We will keep you updated on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Seeking Great Judges Part 2: An Inside Look at the Joint Bar Committee

Last month we explained the work of the Judicial Nominating Commission (JNC) – the first layer of review for judicial nominees.  Here, we take a closer look at the Joint Bar Committee (JBC), the next critical step in the process.

If the JNC, after their thorough review and vetting process, recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the JBC.   The JBC, formally established in 1961, acts as an independent reviewer to check the qualifications of individuals under consideration for appointment to judgeships by the Governor.  It is governed by a set of rules, which state its purpose is to “review, evaluate and report” on the qualifications of potential appointees, in order to assure a “competent, principled judiciary.”

The JBC is a 25 member committee chaired on an alternating basis by representatives of the Boston Bar Association and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for staggered three-year terms.  Participating bar associations are encouraged to appoint persons of diverse gender, age, race, color, creed, ethnic origin and sexual preference, as well as persons with disabilities and attorneys of varying experience.  The BBA’s representatives are currently Edward Colbert, the Committee’s Chair, Sara Shanahan, and Adam Sisitsky.  (Here is a full list of the Committee’s members.)

The JBC assists the Governor and the Governor’s Chief Legal Counsel by conducting its own independent review of judicial candidates in a confidential capacity, evaluating their integrity, character and reputation, knowledge of the law, professional experience, temperament, diligence, financial responsibility, and public service.   Upon completion of its due diligence process, the JBC calls a confidential, blind vote of its members to determine whether a candidate is “well-qualified,” “qualified,” “not qualified,” or there is “insufficient information to evaluate” the candidate.  A quorum of 13 members of the JBC is required to vote on a judicial candidate’s qualifications.

In the event that the JBC has returned a vote of “not qualified” or “insufficient information,” the chair must then immediately notify the candidate of the vote and afford the candidate an opportunity to be interviewed by the committee.  Following an interview, the JBC members may then reconsider their prior vote, if the majority of the members present and voting elect to conduct a revote.

After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Judicial Nominating Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council for their approval.

As we said in last month’s post, the process is built to ensure that only the best candidates become judges.  However, it all begins with you.  In order to have the best judges at the end of the process, the best candidates need to apply at the beginning.  We hope that you will spread this message to anyone who may be considering applying to become a judge in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association