BBA Endorses Uniform Law on Trust Decanting

Let’s get one thing out of the way up-front: This blog post has nothing to do with wine.

Rather, let’s talk about trust decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust. In other words, the distribution of assets from one trust into a second trust, just as wine may be decanted from a bottle into another vessel.

It’s a form of trust modification that’s available to fiduciaries now in Massachusetts. Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent such abuse.

However, the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.

This situation has confounded practitioners, who don’t know whether a specific modification is proper until the courts weigh in—and who may therefore refrain from taking certain appropriate steps out of fear of litigation. It also poses traps for the unwary and creates an incentive for settlors and testators to establish trusts elsewhere, in a state such as New Hampshire whose trusts law is more modern and can thus provide greater assurance.

Of course, this issue is not new to the BBA. In 2013, we filed an amicus brief to the SJC in Richard Morse, Trustee v. Jonathan A. Kraft, et al. That case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The BBA’s brief argued in favor of this power to decant, and urged the Court to recognize that it is inherently held by trustees.

The SJC did rule favorably with respect to Morse’s petition—recognizing the authority of trustees to decant where the terms of a particular trust and the surrounding circumstances indicate that decanting is consistent with the trust settlor’s intent—but declined to recognize decanting as an inherent trustee power, essentially preserving the current limbo.

Since that decision, the BBA has hosted numerous CLE and other events on the topic, and next month we will host an event titled “Decanting, Non-Judicial Settlement Agreements and Other Trust Amendment Alternatives.”

Into this uncertainty stepped the independent Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (which you may remember from its work on the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA). That group of trust experts—which includes Stacy Mullaney of Fiduciary Trust, BBA Trusts & Estates Section Co- Chair, and Brad Bedingfield of Hemenway & Barnes, Trusts & Estates Section Public Policy Committee Co-Chair—spent more than year poring over the Uniform Law Commission’s model language to develop a Massachusetts-specific version of the Uniform Trust Decanting Act (UTDA), which was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting.

Last month, on the recommendation of the Trusts & Estates Section, the BBA Council endorsed their work, and we will now make the case to the Legislature that they should adopt this UTDA as part of the existing Massachusetts Uniform Trust Code, joining the other half of the states that have taken similar steps to date—enacting either UTDA or their own decanting statutes.

This proposed Act represents a piece of legislation (now filed by Senator Cynthia Stone Creem) that has been deeply vetted, fits a known need, and will ensure that practitioners in the Commonwealth have at least the same level of statutory clarity on this issue as those in the majority of other states throughout the country. If it’s enacted, Massachusetts practitioners will be free to continue to decant trusts under common law, if that makes the best sense for a client or situation; they will, however, have an alternative and clear guidance concerning how to decant properly in accordance with the statute.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Court Adopts Uniform Trial Court Limited Assistance Representation Rule Incorporating BBA Section Comments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Late last year, the Court released a final version of the Uniform Trial Court Rule on Limited Assistance Representation (LAR) that incorporated feedback from our Business and Commercial Litigation Section (BCLS) Steering Committee. The Rule will become effective on February 1, 2019, and can be read in full here.

Early last year, Chief Justice of the Trial Court Paula M. Carey solicited comments on the proposed Uniform Trial Court Rule on LAR. An LAR Rules Committee was formed in 2017 and charged with drafting the proposal, intended to provide consistency across departments, improving the service for both lawyers wishing to provide LAR and litigants wishing to secure LAR services. When creating the proposal, the Committee considered the Supreme Judicial Court (SJC) LAR Order as well as existing Orders from other Trial Court Departments.

The BCLS Steering Committee comments began by noting that committee members believed “the Trial Court’s embrace of limited assistance representation is an important development in the delivery of affordable legal services in non-criminal cases,” noting that the Section had previously reviewed and offered favorable comments on the Superior Court’s LAR order the previous year. The comments commended the Court for continuing those efforts and highlighted a few points in the proposed rule that departed from the existing rules in ways potentially worth clarifying.

For example, the comments expressed concern about the requirement that the attorney “ensure that a prospective client fully understands the agreement and that the client gives informed consent.” Members were not sure how counsel could “ensure” that a client “fully understand” the agreement and suggested instead it a more objective test, like reviewing the document together. The final comment removes the “ensure” language and instead reads: “The attorney shall review the written agreement with the client before it is signed and obtain the client’s informed consent.”

Members additionally raised concern about the language addressing instances when a lawyer may have exceeded the scope of the assistance described in the Notice of Limited Appearance. The proposed rule provides: “[I]f an LAR attorney files a pleading, motion or other document and/or argues a legal issue outside the scope of a filed Notice of Limited Appearance, then the court may consider the LAR attorney to have entered a general appearance.” Members were worried “that counsel would feel constrained not to raise relevant, helpful, but unforeseen issues—which they had not identified in their Notice of Limited Appearance—out of a concern that they could then be deemed to have appeared generally.” The new rule clarifies this provision, easing the concern expressed in the comments, and now notes that if an Attorney files or argues something outside the scope of the filed Notice of Limited Appearance, the court may require a new Notice to be filed, and if the attorney fails to do so after that, the court may consider the attorney to have entered a general appearance.

            Next, the comments raised two minor clarifying suggestions related to paragraph 5: the mentioned Notice of Withdrawal should be “court-approved,” and that there should be a reference to “service. The final rule incorporates both of these suggestions, now reading: “[u]pon completion of all events or issues for which an LAR attorney has filed a Notice of Limited Appearance, s/he shall serve and a Notice of Withdrawal of Limited Appearance on a form approved by the Chief Justice of the Trial Court.”

            Finally, members addressed the “non-punitive remedy” outlined in Paragraph 5, finding the new proposal a bit draconian compared to the previous standing orders, and noting that members thought that the bar to an award of fees or costs should be set higher than in the proposed rule. The proposal read that “if any other party incurs costs or is otherwise prejudiced by the attorney’s failure to file a Notice of Withdrawal, then upon motion the court may order a non-punitive remedy, including compensation for fees and costs reasonably incurred.” The final rule remains much the same but adds that “…upon motion the court for good cause may order a non-punitive remedy…”(emphasis added). 

You can read the full BCLS Comments here.

As always, we are very appreciative of the hard work and expertise offered by the Committee Members, especially committee co-chairs Stephen Riden of Beck, Reed, Riden and Daniel Tighe of Donnelly, Conroy & Gelhaar, who presented the comments to our BBA Executive Committee before their submission. We’re also thrilled that the court adopted many of the suggestions.

To read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

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

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Endorses Proposed ABA Resolution on Zero-Tolerance Policy

UPDATE: We’re pleased to report that the ABA adopted this resolution at their mid-year meeting in January.

December was a busy month for the BBA Council. In addition to adopting a position on Massachusetts trust and estates legislation, which you can read about here, the Board also endorsed a proposed ABA Resolution related to federal immigration policies and practices.  This proposal will be voted on by the ABA House of Delegates at the Mid-Year meeting at the end of this month.

The Resolution

The Resolution and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.” The resolution reads in full:

  • RESOLVED, That the American Bar Association calls upon the Attorney General to rescind the policy of prosecuting all individuals who enter the United States without authorization at the southern border for the misdemeanor offense of illegal entry pursuant to 8 U.S.C. §1325, end the practice of expedited mass prosecution of immigrants, and allow for an individualized determination in deciding whether to file criminal charges.
  • FURTHER RESOLVED, That the American Bar Association urges the federal judiciary to take appropriate measures to assure that every defendant charged with the misdemeanor offense of illegal entry is represented by counsel who has had an adequate opportunity to consult with the defendant, and that any guilty plea is knowing, intelligent, and voluntary.
  • FURTHER RESOLVED, That the American Bar Association urges Congress to provide sufficient funding for the judiciary to enable it to take the above measures and sufficient funding to assure that each defendant receives effective assistance of counsel.
  • FURTHER RESOLVED, That the American Bar Association urges the Attorney General to exercise prosecutorial discretion and refrain from prosecuting asylum seekers for the offense of illegal entry.

  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. The report first points to the conclusion drawn by several former U.S. Attorneys that devoting prosecution resources to the mandatory prosecution of misdemeanor improper entry actually detracts from public safety by leading to a dramatic decrease in prosecutions for other serious crimes. These crimes include drugs and weapon smuggling, human trafficking, and environmental crimes. In a letter to the Attorney General on this issue, a bipartisan group of former U.S. Attorneys stated: “Under your Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”  

The report next discusses the significant due process concerns presented by Operation Streamline, which began as a pilot in the Del Rio border sector in 2005, continued sporadically until 2018, and then was expanded across the southern border of the U.S. by the zero-tolerance policy. While the stated purpose of the practice is to deter entry without authorization, there is no evidence that that the policy has had that effect.  This practice raises significant due process concerns, as the use of en masse hearings mean that Federal public defenders typically only have a few minutes to meet, interview, and prepare each client prior to the court proceedings and questions by the judge are also often predominantly done en masse.

            More specifically, these concerns have led the drafters of the report to worry that the guilty pleas procured in these hearings may not even be valid as “under the rush of these proceedings, a defense attorney has only a brief opportunity to meet his or her clients — in a public setting — immediately prior to a scheduled guilty plea hearing to discuss the charges and the decision whether to plead guilty.” Additionally, this makes it difficult or impossible for defense attorneys to fulfill their duty of providing effective assistance of counsel, as they do not have the time required to adequately evaluate the evidence, investigate the veracity of the allegations, and consider any potential defenses. And it’s not only the counsel and clients who suffer from these policies, the report highlights that judges and magistrates are put in an untenable position by having to preside over these group proceedings, since they must determine before accepting a guilty plea, that it was made knowingly, voluntarily, and intelligently.  

            Finally, the report highlights specific concerns related to asylum seekers. The mandatory prosecution of everyone, including those seeking asylum, deprives prosecutors of the discretion to consider cases on the merits, “contrary to accepted norms concerning the sound exercise of prosecutorial discretion.”

Read the full proposed resolution and report here.

BBA Background

                As you likely know by now, the BBA has recently adopted a Statement of Principles Concerning Immigration and Related Issues, which includes four key principles and a full report of the background and reasoning behind them. The document was intended not only as an expression of the BBA’s positions and core values in this area but also as a guide in responding to future immigration questions and challenges. In this instance, the principles most relevant for analyzing the zero-tolerance policy and Operation Streamline are Principle 3 and Principle 4.

Principle 3 calls for the protection and enforcement of due process and equal protections rights for all. The report specifically states:

“Those well-settled principles—that immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses—should serve as the foundation for the BBA’s approach to addressing immigration issues.”

Principle 4 provides that “[e]very 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.” And the report specifically references Operation Streamline in the provision related to “Access to Counsel and Individualized Hearing:”

“Furthermore, when defendants in immigration proceedings seek to assert their rights and privileges, they must be afforded the right to an individualized hearing of the unique facts of their case. … [G]roup hearings and other shortcuts in immigration proceedings have been imposed, particularly along the southwest border, in which ‘a single attorney can represent dozens of defendants at a time, [and] might not be able to speak confidentially with each client or might have a conflict of interest among clients.’ In such cases, judges may take as little as 25 seconds to hear the case of each defendant. Such proceedings cannot be viewed as offering meaningful access to counsel, due process, or justice. [citations omitted]”

            Asylum-seekers are also entitled to due process in pursuing their claims before federal immigration officials.  The BBA used the immigration principles to speak on this issue just a few months ago, expressing concern about newly-imposed limits on their ability to do so, and saying:  “While not all individuals who arrive at our border are eligible for asylum, under law each and every one must be afforded a meaningful opportunity to have their claim for asylum heard.” The extent to which these policies hinder the ability of asylum-seekers to have their claims heard is therefore deeply troubling.

Finally, the BBA has a long history of supporting adequate funding for the judiciary, making it a priority of our state budget campaign each year, so it’s only natural that we urge for adequate funding for the federal judiciary, in order to accommodate the resolution’s call for a right to effective representation by counsel for every defendant charged with the misdemeanor offense of illegal entry.

Next Steps

At the end of this month, the ABA hosts its Mid-Year Meeting where the House of Delegates will vote on a range of proposed resolutions, including this one. Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arowood, of  Arrowood LLP, have and will continue to communicate our support for the proposal and urge for its adoption. We’ll be sure to keep you posted on whether this important resolution is adopted and other developments in this space!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Submits Comments in Opposition to Proposed Public Charge Rule

Last week, the BBA submitted comments in opposition to the proposed “public charge” rule, which would dramatically change the way in which the Department of Homeland Security (DHS) determines whether an immigrant is likely to become a “public charge.” This determination can act as a bar to legal permanent resident (green card) status, and if adopted, to certain non-immigrant employment and student statuses.

In Spring 2018, leaked versions of a proposed rule change emerged and, deeply concerned about the sweeping impact such a rule change would have on millions of immigrant individuals and families in the U.S., lawyers, advocates, and organizations began working immediately to secure commitments to submit as many, and as varied, comments as possible. The Department of Homeland Security (DHS) published the Notice of Proposed Rulemaking on October 10 and the Public Comment period was open until December 10.

We were proud to join tens of thousands of other local and national individuals and entities in opposing this dangerous proposal. We are also proud that six of our substantive-law sections joined us by submitting their own comments. You can read our full statement here.

The Proposed Rule

Under immigration law, one who is deemed likely to become a “public charge” can be denied admission to the U.S. or be denied lawful permanent resident (“green card”) status.  These determinations most often arise when applying through a family-based petition, and certain categories of individuals are exempt from this determination, including refugees, asylees, special immigrant juveniles, and other humanitarian statuses.

Currently, the definition of “public charge” is a person who has become or is likely to become primarily dependent on the government for subsistence, and the only benefits considered are cash assistance (supplemental security income, temporary assistance for needy families) and government-funded long-term institutional care. Under the proposed regulation, the definition is dramatically expanded to include anyone who has used, or is likely to use in the future, more than a “minimal” amount of public benefits, including non-cash health benefits (non-emergency Medicaid and some Medicare assistance), federal public housing benefits, and nutrition benefits (food stamps).

A range of new positive and negative weighted factors would also be considered in determining whether a person is likely to use certain benefits in the future. For example, the proposal includes new income thresholds that give negative weight to immigrants who earn less than 125 percent of the federal poverty level. Other factors considered include age, health, family status, and education, giving negative weight to children and seniors, persons with limited English proficiency, poor credit history, limited education, or having a large family. The rule also proposes negative weight be given for seeking and receiving a fee waiver in applying for an immigration benefit.  Finally, the single heavily-weighted positive factor in the proposed rule is having an income or resources over 250% of the federal poverty level. In an illustration of just how dramatic these changes would be, roughly 5% of U.S. citizens would possibly be found to be a “public charge” under the current test while 33% would struggle to meet the new standards proposed.

BBA Comments

The BBA comments were framed by the Report and Principles on Immigration produced over the summer and adopted by the board. These were rooted in a recognition of the invaluable contributions immigrants of all income levels make to our communities and country. The principles inform our advocacy on related matters and urge for immigration policies and practices that protect fundamental rights and human dignity, vindicate immigrants’ established constitutional rights to due process and equal protection, and promote the ability of all people to meaningfully exercise their rights and access justice through the legal system. Our comments note the ways the proposed rule fail these important standards. You can read more about our concerns in the full comments or outlined briefly below.

Fee Waivers for Immigration Benefits

We expressed specific concern over the inclusion of consideration of “fee waivers for immigration benefits” as a negative factor. Over a decade ago, the BBA endorsed an American Bar Association Resolution urging that fee levels not be so burdensome as to deter applications and for clearly defined policies and procedures to ensure that fee waivers are “reasonably available. The inclusion of fee waivers as a factor in public charge determinations is misguided for several reasons:

  • A fee waiver merely evidences financial need, a factor already considered in the public charge calculus, and is thus double-counted under the proposed rule.
  • DHS claims that receipt of fee waivers demonstrate a weak financial status, but an inability to pay a specific fee, on a one-time basis, is only a small part of a person’s overall financial situation and certain fee waivers—for example, waivers to adjust status so an immigrant can be employed–would, in reality, serve as a step toward self-sufficiency and decrease the likelihood that the immigrant would become dependent on government assistance.
  • There is no detailed information provided as to the definition of “immigration benefit” in this provision. If, as it appears to, the proposed rule on fee waivers applies to administrative appeals from USCIS decisions, or efforts to obtain relief from removal or defend against removal before an immigration judge or the Board of Immigration Appeals, the rule raises significant access to justice concerns.

Widespread Chilling Effects

Beyond discouraging fee waiver applications, the proposed regulation would inhibit applications for benefits such as Medicaid, Medicare Part D prescription drug assistance, Supplemental Nutrition Assistance Program (SNAP), and housing support. As a result, millions of immigrants will likely choose not to enroll (or to disenroll) in programs that provide benefits vital to their basic needs, including housing security, food access, and healthcare. Already, there have been thousands of reports across the country, including here in Massachusetts, of immigrants dropping or choosing not to pursue benefits based exclusively on rumors or leaked versions of the regulations. The Massachusetts Budget and Policy Center, for example, found that 24 million people in the United States could be impacted by the chilling effect, and that 500,000 people in Massachusetts, including 160,000 children (the majority of whom are U.S. citizens, could forgo receiving these important benefits).  In addition, the burden of this chilling effect may be borne most by people of color, immigrants and citizens alike, as these groups have disproportionate rates of poverty and health disparities, making supplementary health, food, and nutrition benefits more necessary to their well-being and economic stability.

Principle 4 of the aforementioned BBA Immigration Principles focusing on access to justice states: “Similarly, immigrants are deterred from asserting their civil rights with respect to housing, healthcare, labor and employment, education, and public benefits when they fear that doing so may lead to immigration enforcement against them or their families or may negatively affect their future ability to pursue U.S. citizenship.” The new public charge standards would do just that – deter millions of individuals, many of whom are already among our most marginalized, from accessing benefits to which they are, in fact, entitled. As a result of these significant equal treatment and access to justice concerns, the proposed regulation is simply not sound policy.

Anticipated Health and Economic Consequences

The comments further discuss the adverse effects of the proposed rule on the well-being of individuals and families and the widespread public health and economic costs for our communities, including:

  • Many families with an immigrant member may face separation. Nearly one-quarter of U.S. citizen children have an immigrant parent, many of whom would be at risk of failing the public charge test. Immigrant parents should not forced to choose between providing housing, food, and healthcare for their families and obtaining certain immigrant statuses, often necessary to remain with their families.
  • Negative health outcomes will also abound, some of which were specifically mentioned by DHS as potential consequences in the proposed rule. This will include increased prevalence of obesity, malnutrition, and communicable diseases, delayed negative shock to maternal and childhood health, and reduced care for serious psychiatric illnesses.
  • The healthcare-related costs of these outcomes will be a significant burden for local and national economies. For example, disenrollment from public insurance and benefits will increase uncompensated care costs to hospital and increase use of emergency care, decreased participation in nutrition assistance will increase health care expenditures per person, the disenrollment from preventative services will lead to major costs, and localities will experience lost earnings from loss of productive and loss of workers and talents.

Overall, this proposed policy goes against the overwhelming evidence that shows the essential role that immigrants, including and especially working-class immigrants, play in building thriving cities and economies. It also goes against the government’s own classification of the newly-included non-cash benefits. In 1999, the government issued public charge guidance that overtly explained that the housing, healthcare, and nutrition benefits now included were not to be a part of a public charge determination because they demonstratively helped immigrants achieve economic stability. Those guidelines specifically noted that these types of benefits “are often provided to low-income working families to sustain and improve their ability to remain self-sufficient.” According to DHS, the stated purpose of the rule is to better ensure that “aliens subject to the public charge inadmissibility grounds are self-sufficient,” yet they fail to adequately explain why suddenly the receipt, or likely receipt, of such benefits is no longer a step toward self-sufficiency but instead a signal that one is not or will soon not be self-sufficient.

In the BBA statement on the comments, Shiva Karimi of McLane Middleton, Immigration Law Section Co-Chair and member of the BBA Immigration Working Group stated:”

The proposal runs counter to the reality of the invaluable contributions immigrants, of all income levels, make to our communities and economies. Such a dramatic expansion seems based not on sound policy meant to actually evaluate the likelihood of future government dependency, but instead on a desire to change the current nature of our immigration system and create significant barriers for certain low-income populations.

Inadequate cost-benefit analysis

While DHS does spend time addressing some of the cost and benefits of the rule, it fails to adequately calculate and explain many of the costs outlined in brief above. For example, DHS estimates that roughly 350,000 people will be impacted by the rule; however, many studies conducted since the proposed rule’s release, including the aforementioned Massachusetts Budget and Policy Center report, have estimate that the figure is closer to 25 million people.  DHS also fails to provide adequate estimates of the costs that will be incurred due to eventual public health implications of the rule and the loss of workers and talent. Any proposed regulatory changes that will likely have such sweeping nationwide impacts must be fully understood and explained, and we urge DHS to provide the public with a detailed explanation of these burdens before enacting any of the proposed changes.

Unclear Guidance and Application

Finally, our comments expressed concern about the lack of clarity provided as to how the rule should be applied and the likelihood this will result in unequal and inconsistent application of public charge determinations. The proposed regulation provides no guidance as to how much weight is to be given to the newly enumerated negative and positive factors in the totality of circumstances test, beyond those weighted “heavily.” As a result, the assessment will be highly subjective, and there will likely be significant differences in how the test is applied depending on the government agent reviewing each set of circumstances. Such inconsistencies across the system could lead to bias-based decision making and unequal applications of the test.

On this point, BBA President Jon Albano, partner at Morgan Lewis, said

As attorneys, we appreciate that without standards that are fair, clear, and consistent, we cannot provide equal access to justice for all, an essential element in maintaining faith in our public institutions.

Section Comments

We are proud to report that a number of BBA Sections have joined us in this effort and submitted their own comments. A big thanks goes out to the volunteers and leaders who made this happen!

These comments address points and concerns unique to the specific expertise and practice area of those sections. For example, the Family Law Section comments focus on the well-being of families and the best interest of children, the Health Law Section comments hone in on the specific public health consequences and costs, and the Real Estate Section highlights what the rule would mean for housing insecurity and affordable housing providers.

Read the comments submitted by the Health Law SectionReal Estate SectionDelivery of Legal Services SectionCivil Rights and Civil Liberties SectionImmigration Law Section, and Family Law Section.

Next Steps

Over 200,000 people submitted comments on the proposed public charge rule, more than doubling the initial nationwide goal set by the Protecting Immigrant Families Campaign. Locally, Massachusetts’ goal of 2,000 was also greatly exceeded with at least 5,000 comments submitted online, and perhaps even more by mail. We were lucky to have the leadership of the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts Law Reform Institute, Health Law Advocates, and Health Care for All. These comments matter because at the end of the rulemaking process, the agency must base its conclusion that the proposed final rule or regulation will accomplish the goal presented on the full rulemaking record, including the public comments submitted.

We’ll keep you posted on any next steps DHS takes in relation to this proposal. And thanks to those of you who joined us by submitting comments of your own!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Walk to the Hill 2019 and BBA Budget Advocacy Preview

We hope you’ve already marked your calendar for one of the state’s biggest lobby days: Walk to the Hill for Civil Legal Aid on January 24. On this day each year, hundreds of attorneys head to the State House to hear speeches from the judiciary, the bar, and those helped by legal aid funding, grab lunch, and then spread out to speak to their legislators, urging them to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents.

As usual, we’ll also be hosting our annual breakfast, where you can look up your legislators, learn more about how to speak to them about civil legal aid, and join us for the short walk across the street to Great Hall of the State House for the start of the event. Keep reading to learn more about why this event is so important and what the Equal Justice Coalition will be requesting in the Fiscal Year 2020 (FY20) Budget.

The Importance of Civil Legal Aid

Each year, advocating for adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services in the state, is one of our highest legislative priorities. In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding when it revealed that MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants.

Legal aid providers offer critical assistance in a range of matters, including immigration, housing, employment, domestic violence, and health care. The expertise of legal services attorneys helps resolve matters before they become a crisis. Unfortunately, when one is unable to access legal services, the consequences can be devastating, as often one’s family, home, health, and job may be at stake in civil legal matters. The consequences extend beyond individuals and families as well. That same Investing in Justice report included a survey of judges and found that 60% of those who responded felt the lack of representation negatively impacted the court’s ability to ensure equal justice to unrepresented litigants. So our whole system of justice suffers when civil legal aid is not adequately funded.

Fortunately, our Investing in Justice report revealed more than just the great need for the aid and the consequences of underfunding. The report shows that legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. For every additional dollar spent to combat homelessness and domestic violence, the return to the state is two dollars and for every additional dollar spent in legal aid to assist Massachusetts recover federal benefits, the return to the economy is close to five dollars. MLAC estimates that in FY17, the work of the fourteen MLAC-funded civil legal programs offered an overall economic benefit of $59.2 million to the Commonwealth.

A recent report by the Philadelphia Bar Association reinforces the far-reaching benefits of funding civil legal aid—both to individuals and families facing civil legal matters, and to state and local governments. The study estimates that in housing cases alone, Philadelphia could save $45 million a year by investing $3.5 million to provide legal counsel to low-income tenants facing evictions. The study found that tenants who lacked legal representation in eviction cases faced outcomes that resulted in “disruptive displacement” around 78% of the time; with legal counsel, that number dropped to 5%. Yet, tenants were represented in only 7% of eviction cases during the study period; landlords, meanwhile, were represented in 80% of cases. This stark difference in outcomes when tenants are represented versus unrepresented suggests that those without means simply are not seeing meaningful protection of their rights by the legal system—this should be of deep concern to all of us who care about justice, even without the economic benefits.

Philadelphia spends millions of dollars annually on social services associated with the fallout of evictions, including the need for shelter and emergency housing services, exacerbated physical and mental health issues, job loss, and others. Thus, the investment in ensuring better outcomes for tenants in housing cases—whether by preserving tenancies, or by negotiating move-out terms that maintain a higher level of housing and financial stability for tenants—is estimated to save the city $12.74 for every dollar invested in civil legal aid. The report notes that this figure is conservative; many of the societal benefits of maintaining family and community stability are not easily quantifiable.

The Budget Ask

Last year, you may recall, that we asked for a $5 million increase in the MLAC budget-item for a total appropriation of $23 million. In a big victory for civil legal aid, MLAC received a $3 million increase for a $21 million appropriation. This will enable MLAC-funded programs to assist thousands more qualified Massachusetts residents while saving the state money elsewhere in the budget.

Unfortunately, demand also continues to rise and the turn-away rates have thus remained stubbornly high, even through several generous funding increases from the Legislature in recent years. Changing federal policies, especially those related to immigration and public benefits, have driven up the demand further, and communities are still adjusting to the impact of Hurricane Maria and other natural disasters. Approximately 45,000 otherwise eligible individuals will be turned away again this year. That’s why the EJC is seeking a $26 million total appropriation for FY20, or a $5 million increase to begin to cover this unmet need.

The Governor releases his FY20 budget during the last week of January, marking the beginning off a months-long process to the final budget. The next major step comes in mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. Be sure to check out our Geeking Out on the State Budget podcast for a “101” on the Massachusetts Budget Process.

Walk to the Hill falls the day after the Governor’s budget is released and is a great way to kick off our budget advocacy. Rallying at the State House, and meeting with legislators immediately afterward, offer the best opportunity for BBA members and the legal community as a whole to: thank elected officials for their past support, remind them of the importance of civil legal aid, and explain that further increases are still desperately needed to keep up with the growing demand on the justice system. If you don’t know your legislators, you can look them up here, and if you’re not sure what to say, listen to our Issue Spot Podcast on How to Talk to Your Legislators. And as mentioned above, If you’d like a quick refresher day-of, join us here at the BBA at 9:30am for our Annual Pre-Walk Breakfast, where we’ll review the budget ask and key talking points.

In addition to civil legal aid, our budget advocacy will also focus on our other regular priorities, including adequate funding for judiciary line-items and the Committee for Public Counsel Services. Visit this post to learn more about where each of these items ended up in the current FY19 budget.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Quick Takes from the BBA on the 2018 Election

From a policy issue that has been central to the BBA’s recent advocacy efforts, to races all over the state, we wanted to provide our members with a roundup of outcomes in this year’s election that are relevant to the BBA’s work and to civic life in Massachusetts generally.

Yes on 3:

Question 3—a referendum asking whether to maintain the state law that includes transgender individuals among those protected from discrimination in public accommodations—passed easily, earning nearly 70% of the vote. The BBA lent its strong support to the “Yes on 3” effort—just as we had for the original law, which was enacted in 2016. The BBA joined the broad Freedom for All Massachusetts coalition to retain these civil-rights protections at their first statewide electoral test, and ensure that a strong message was sent to other states. Yes on 3’s victory marks the first time these kinds of legal protections for transgender individuals have been upheld by a popular vote, and represents a momentous victory for transgender rights in Massachusetts.

We are extremely grateful to the campaign’s leaders and organizers, and to our members who volunteered at Yes on 3: Freedom for All Massachusetts canvassing events over the past several months. We can’t wait to celebrate the hard work and success of the Yes on 3 Campaign at this year’s Beacon Award.

District Attorney Races

Rachael Rollins was elected Suffolk County District Attorney, and Andrea Harrington won the race in Berkshire County – the first women to ever hold either of these seats. Incumbents in those counties, Dan Conley and David Capeless, each departed shortly before the end of their term. Rollins, a former BBA Council member, has named current BBA Vice President Marty Murphy of Foley Hoag and current co-chair of our Civil Rights & Civil Liberties Section, Natashia Tidwell of Hogan Lovells, to co-chair her transition team, as she prepares to take office in January. Locally, Middlesex DA Marian Ryan was among the remainder of incumbents who were re-elected, bringing to three the number of female district attorneys (of 11).

State and Congressional Election

All statewide elected officials won re-election easily, and Ayanna Pressley represents the only change to the state’s Congressional delegation. She will replace Michael Capuano, becoming the first black woman sent to D.C. from Massachusetts. While there will be many new faces in the Legislature as the result of natural turn-over, the party balance will be only slightly different, with Democrats padding their veto-proof majorities in each house.

Looking Ahead

With new faces in the State Legislature, we will be paying close attention to the appointment of chairs to the various legislative committees in the coming months. In particular, there will need to be new chairs for each house’s Ways & Means Committee. And finally, all members of the Governor’s Council, the body tasked with confirming gubernatorial nominations to the judiciary, won re-election.

Stay tuned for more updates on how this election may impact our policy priorities in the coming year!

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: BBA Submits Comments in Opposition to Proposed Federal Regulations

We recently updated you on a few proposed changes to immigration policies, including proposed regulations that would dramatically alter the protections governing the processing and treatment of immigrant youth. In line with our Principles and past positions, the BBA is submitting comments in opposition to the proposal. You can learn more about the proposed regulations, the BBA’s comments, and a few other immigration developments that we’re keeping a close eye on below.

Flores Agreement Background

In 1997, a settlement agreement was reached in Flores v. Reno, a class action lawsuit filed in 1985 on behalf of unaccompanied undocumented children, challenging Immigration and Naturalization Service’s (“INS”) policies governing children’s release and the conditions children and youth experienced during immigration-related custody. The Flores Settlement Agreement (FSA) includes many protections for unaccompanied immigrant children (UAC), including: 1) a general policy favoring release from detention and family reunification; 2) detention in the least restrictive setting appropriate to the age and special needs of the child when required; 3) the right to a bond hearing; 4) access to humane conditions; and 5) notice of legal rights. In 2002, the Homeland Security Act (HSA) transferred the care and custody of UACs from the INS to the Department of Health and Human Services (HHS) Office of Refugee Settlement (ORR), which assumed the responsibility to comply with the mandates of the FSA. In 2008, the William Wilberforce Trafficking Victims Protection Reauthorization Act elaborated on the ORR’s responsibility, and both the HSA and TVPRA contain “savings clauses” preserving children’s rights under the FSA.

Since 1997, the counsel for plaintiffs in Flores have had to intervene on a number of occasions to ensure compliance with the terms of the agreement, including in relation to prolonged detention, lack of access to bond hearings, and poor detention conditions. The government has regularly sought to avoid or change the protections in Flores, resulting in a few developments of note in recent years:

  • In 2015, U.S. District Judge Dolly Gee court held (later affirmed by the 9th Circuit) that accompanied children detained have no fewer rights than unaccompanied children, and the FSA applies both to minors who are unaccompanied and those accompanied by their parents.
  • In 2017, U.S. District Judge Dolly Gee issued an order enforcing the agreement, after finding that the ORR was in breach by denying unaccompanied children the right to a bond hearing.
  • In 2018, the DOJ filed a request to modify the FSA, asking for limited emergency relief so that ICE could detain undocumented minors who arrived with their parent or guardian in ICE family residential facilities, and exempt ICE family residential facilities from the Agreement’s state licensure requirement. Judge Gee denied the request, saying that it was “a thinly-veiled motion for reconsideration without any meaningful effort to comply with the requirements…”

The FSA was originally set to sunset in 2003, but the Government thereafter stipulated to continue the agreement until it published regulations implementing it, and last month, DHS and HHS published a Notice of Proposed Rule Making that would “implement” the FSA, claiming it would “satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.” Despite this claim, the proposed rule would significantly alter the current policies in place under the FSA. The areas of particular concern are raised in our comments and discussed in more detail below.

BBA Comments

In October, BBA Civil Rights and Civil Liberties Steering Committee raised the proposed regulations and inquired as to whether the BBA would submit comment. Following analysis, and in light of our recently-approved Immigration Principles and other relevant past positions, the Association is submitting comments in opposition to the proposed regulations, as they would contravene the purpose of the FSA and endanger the rights, liberty, and well-being of immigrants, especially immigrant children. A special thanks goes to our Civil Rights and Civil Liberties Section for alerting us to the regulation, and to our Immigration Law Section and Immigration Working Group for help reviewing the comments.

Our Principles recognize that all people, whether entering with or without authorization must be treated fairly and humanely. The stakes in immigration proceedings are incredibly high, as our report noted:

The outcomes of this process can have life-changing effects on individuals, including with regards to their ability to access the basic necessities of life, remain united with their families, and even to avoid torture, persecution, or death. It is therefore imperative to protect the Constitutional rights of individuals in removal and other immigration proceedings.

And the stakes aren’t just high for immigrants and their families – our whole country will suffer if certain individuals are not able to access the processes and protections they are entitled to:

When, however, the federal or state government or members of the public target a population and limit or seek to limit that group’s access to judicial or administrative forums, it creates a vulnerable subclass, undermining our system of democracy and the Constitution.

You can read more about our Immigration Principles and past positions reference below here. And you can read our full comments on the proposed Flores regulations here. Those areas that are most concerning, and which our comments highlight include:

Indefinite Detention of Children

The Second BBA Immigration Principle provides that “no person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.” In elaborating on that point, the Report urges that all individuals, even those who enter the country without authorization, be treated humanely and fairly and that, as a result undocumented immigrants should not be detained while their legal claims to remain in the United States are resolved—at least absent extraordinary circumstances, such as if, for example, the individual in question presents a threat to public safety or a serious flight risk. This is why we are especially concerned about the proposals in the regulation that would allow for the indefinite detention of children. The FSA specifically mandates a general favoring of release over detention and that minors be released from custody “without unnecessary delay,” in recognition of the “particular vulnerabilities of youth.” The extensive and long-term social, mental, and physical harms experienced by minors held in prolonged detention are well-documented, and that’s why we joined the ABA and others in expressly noting that family detention was not the solution to family separation. Proven alternatives to detention do exist, and established release mechanisms and alternatives to pre-adjudication detention, such as community supervision and GPS monitoring, would be more consistent with justice and due process.

Detention Conditions and Oversight

In those instances when detention must occur, the same principles of fair and humane treatment must apply, and the BBA has long held that there must be policies in place to ensure that detention conditions are humane and that mechanisms exist to ensure proper oversight and accountability. These principles are also embodied in the Flores Agreement, which provides that minors must be held in facilities that are “safe and sanitary” and consistent with a “concern for the particular vulnerability of minors.” We are, then, also especially disturbed by the provisions in the proposal that may threaten the proper treatment of minors, deteriorate the conditions of detention, and weaken oversight of detention facilities.

For example, the proposed regulations would remove the current state-licensure requirement that requires the government to release children, when a parent or other family member is unavailable, to a facility licensed by a state child welfare agency program. Under the proposed rule, the government would be able to select its own auditors to review the conditions and treatment of facilities where children and parents are held together. The government lacks both the expertise that the state agencies bring and the impartiality necessary to ensure that proper oversight occurs. Additionally, the proposed regulations give much wider discretion to DHS and HHS to suspend critical protections for minors in cases of “emergency.” The proposal lists delay of a meal as an example of one such provision that could be excused in the case of an emergency. The breadth and flexibility of the proposed definition is deeply concerning, given that it could legitimize the denial of necessities, such as food, to children. Under the new rule, there is no guarantee that facilities will be safe and sanitary or that minors will be treated with dignity and respect.

Continual UAC Status Redeterminations

The BBA has also been outspoken in support of strengthening and improving due process and other safeguards; our Third Principles reads: “the constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.” We’ve also long supported measures to ensure these protections are guaranteed for those individuals determined to be an “unaccompanied alien child” (UAC), which comes with a number of important legal protections. In past practice, this status has not been reconsidered once established, but the proposed regulation would codify continual redeterminations, providing that officials will make a determination of UAC status “each time they encounter the alien.” Ensuring the UAC status finding remains in place allows for consistency and predictability for both minors and the government throughout the legal process. That’s why we support revoking of status only in instances of fraud or misrepresentation. The ability of the government to suddenly revoke significant safeguards, in the middle of a legal process that depends on the consistency of a previously recognized status, raises due process concerns and could incentivize intentional case delays to avoid granting the additional legal protections, or other unnecessary and intrusive tactics that would allow the government to continually reassess and re-determine a child’s status.

Access to Bond Hearings

Our fourth and final principle states that “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.” More specifically, the report explains the importance of providing access to a fair immigration process with independent judges, a principle that is currently embodied in the FSA, as it requires that any minor in deportation proceeding be afforded a hearing before an immigration judge unless the minor refuses such a hearing. This provision was reaffirmed in 2017, when the Ninth Circuit expressly rejected a claim that the DOJ does not have statutory authority to conduct a bond hearing under Flores.

The government, in the new proposed regulation, claims again that there is no statutory authority to conduct such hearings and instead institutes a dramatic change by removing the requirement for a bond hearing altogether. In its place, the proposal would introduce a new administrative proceeding by creating an HHS-run “independent hearing process” by which an HHS officer, rather than an immigration judge, would determine whether the child poses a danger to the community or a flight risk. This approach would remove the due process requirements that accompany an immigration court proceeding, and give the same entity tasked with holding the minor in custody the ability to make determinations about the minor’s release from custody, making it impossible to guarantee an independent process.

Additional Provisions of Concern

Finally, the comments list other areas of concern in the proposal, including:

  • Standards for Release on Parole: The proposed regulation removes an internal cross reference to parole-related provisions in 8 CFR 235.3(b), which would mean that minors placed in expedited removal would be held to the same strict standards for release on parole as adults. The FSA has been interpreted to allow children subject to expedited removal to be considered for release on parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit,” if the minor is not a security or flight risk. Here, again, the proposed regulation fails to consider the particular vulnerability of youth as required by the FSA.
  • Limits on Release: In addition, the proposal limits those adults to whom children can be released to a parent or legal guardian, despite the specific language of the FSA providing that a child in DHS custody can be released to a parent, a legal guardian, an adult relative, or an adult individual or entity designated by the parent or legal guardian. Given the previously mentioned and well-documented harms experienced by children held in detention, it is improper for the proposal to create more barriers to release.
  • Lack of proper standards for determining change in circumstances: The proposed regulation provides DHS the authority to take a child back into custody after having been released if there is a “material change in circumstances showing the child is an escape risk, danger to the community, or has a final order of removal.” On its face this provision complies with court requirements, but it fails to impose any specific burden on DHS to establish the material change. Without placing a burden on DHS in this manner, the process will be neither predictable nor fair, and could lead to the improper re-detention of minors with no meaningful way for them to challenge the decision.
  • Costs to the public of expanding family detention: Finally, the government failed, in the Notice of Proposed Rule Making, to properly weigh the costs and benefits related to the expansion of family detention. In 2014, the Government Accountability Office found that the costs of alternatives to detention were less than 7% of the costs associated with detention. All this suggests that the proposed regulations are not only inhumane and contrary to the purpose of the Flores Agreement, but are also fiscally irresponsible given the existence of alternatives to detention that have been proven to be safe, effective, and affordable.

For all of the above reasons, we hope the government will reconsider the provisions in the proposal which threaten the rights, dignity, safety, and well-being of immigrant youth. In the words of our Principles:

The BBA affirms the longstanding commitment of the American legal profession to advocate fiercely on behalf of the human dignity and human rights of all.

We hope you’ll join us by submitting your own comments here. You have until November 6 to do so.

Keeping the Flores protections in place is more important than ever in light of renewed talk of a family separation policy – which the BBA remains opposed to — and the deeply concerning rhetoric and tactics being deployed against those who may soon be seeking asylum at our border. We’ll continue to monitor these developments, including reports of an executive order related to asylum said to be due out next week. In the meantime, Boston Bar Foundation grantee organizations have compiled resources illustrating the devastating conditions that asylum-seekers from Guatemala, El Salvador, and Honduras are fleeing, which you can access here and here.

The treatment of asylum-seekers and those arriving at our borders is, of course, only one of many immigration developments that we are watching closely. A few others include:

Proposed Regulations on Public Charge Determinations: We are also planning to comment on proposed regulations that would radically alter the definition of “public charge” for immigration inadmissibility purposes. The proposal could impact millions of immigrants and their families and have significant public health consequences. You can find more resources about the proposal on the Protecting Immigrant Families page, and if you wish to submit your own comments, guided by the information there, you have until December 10 to do so here. Stay tuned to learn more about how you can join our efforts!

Massachusetts Immigration Court Backlogs: This week, WBUR did a deep dive on the backlog of cases in Massachusetts immigration courts, noting a 76% spike in cases since President Trump took office. The Boston Bar Association Immigration Working Group report highlights just how crucial it is to have a well-functioning immigration court system – one that should be independent of the executive branch and thus, unlike the current one, free from political pressures. The current backlog further underscores the need for improvements in the immigration court system, as the lengthy wait times for adjudication have troubling implications for access to justice, particularly for victims of trauma who are seeking asylum and may be less able to accurately recall the details of their stories over time. Read more about why we are calling for a complete overhaul of our immigration court system here.

Birthright Citizenship: Finally, we are alarmed by reports of a proposed attempt to use an executive order to change a matter of well-settled constitutional law – birthright citizenship under the 14th Amendment. We will be watching this matter closely and will continue to inform our members of further developments.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

State of the Judiciary

Each October, our friends at the Massachusetts Bar Association host an event at the Adams Courthouse where the Chief Justices of the Supreme Judicial Court and the Trial Court, as well as the Trial Court Chief Administrator, offer remarks on the State of the Judiciary. We always enjoy this event for the insights these court leaders offer into their priorities for the coming year.

The speeches kicked off with Chief Justice Ralph Gants of the SJC taking stock of the good fortune we have in the Commonwealth, with a bar dedicated to the shared goal of the fair and efficient administration of justice and with leadership in the Legislature and the Executive who recognize the importance of an independent third branch of government. We were thrilled to hear Chief Gants cite the BBA’s Service Innovation Project on dismantling the Cradle-to-Prison Pipeline as one example of the organized bar to improve our justice system. “I congratulate the BBA,” he said, “on recognizing the need for justice in a school principal’s office, to diminish the risk that the same student will later find himself or herself seeking justice in a juvenile or adult courtroom.”

But the Chief quickly turned his attention to a not-so-rosy part of the legal landscape: lawyer well-being. He is deeply concerned about a problem highlighted in the August 2017 Report of the American Bar Association’s National Task Force on Lawyer Well-Being: “Too many attorneys are struggling with serious health issues that are exacerbated, if not caused, by the way that law is practiced today.” Debt levels and billing requirements that both seem to rise inexorably over time, and the difficulty of working at the relentless pace of modern technology, add to pre-existing factors such as taking on the stress of clients and building a practice—all of it contributing to troublingly high rates of depression, anxiety, and problem drinking. Throw in concerns about the professional stigma associated with revealing these pressures, and it’s clear that the practice of law is under threat.

Chief Gants is already at work in addressing this issue, having tapped former SJC Margot Botsford to lead an interdisciplinary steering committee—one on which the BBA will be playing a leading role—that will “explore ways to reduce stress on attorneys, increase professional satisfaction, help restore work-life balance, and better support those who are confronting mental-health and substance-use disorders”. We will share their recommendations, which will likely build on the 44 proposed in the ABA report.

In making his point, Chief Gants cited former BBA President Richard Soden’s speech at our Annual Meeting this fall: “He recalled that in 1972 a prominent rain-making attorney at his law firm took him aside and told him that it was important that he take care of his clients, but it was equally important that he take care of his family, his health, and his community. We need to make sure that this advice is bred in the bone of every lawyer, and we need to create the conditions in our legal profession that allow every lawyer to follow that advice. I do not know if we can pull this off, but I damn well know that we need to try.”

Next, the Chief touched on criminal-justice reform, praising the landmark law enacted this year—and singling out Judiciary Committee co-chairs Sen. Will Brownsberger and Rep. Claire Cronin—but adding that the work remains unfinished. He pledged to continue “re-envisioning what it means to be a probation officer,” to help reduce recidivism and promote recovery and rehabilitation. As he put it, “Criminal justice reform 2.0 must refocus on re-entry and include the funding needed to give defendants a fair and reasonable chance of succeeding upon release.”

Finally, Chief Gants addressed what he sees as “a threat to the independence of the judiciary and the rule of law [that] has reached our Commonwealth,” where our own Constitution provides, “It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” He put the issue in context by citing debates over judicial elections in 1853’s constitutional convention and applauded the state for maintaining the appointment system ever since.

The Chief acknowledged that judges should of course be held accountable, and he alluded to the recent separation of a Superior Court judge from the bench for misconduct as evidence that the judiciary is capable of imposing discipline on its own. Nevertheless, he said, “it is crucial to distinguish between judicial misconduct that merits discipline, and mere disagreement with a judge’s exercise of discretion within the bounds of what the law allows.”

It is fair game to criticize a judge’s decision. And if you do not think judges hear and are sensitive to such criticism and to being reversed by an appellate court, I can tell you from personal experience that you are wrong. But threatening judges with removal solely because of a mistake or an unpopular decision threatens the independence of the judiciary and, more importantly, threatens our constitutional obligation to apply the law equally and fairly to every litigant … If we are to provide every person fair and impartial justice in our courts, we must allow judges to make decisions based on their best judgment of the law and the facts, unburdened by any fear that a controversial decision may jeopardize their careers.

Here, the BBA stands four-square with the Chief, and the bench as a whole, in support of their independence and in opposition to unwarranted calls for impeachment. Chief Gants pointed out that the current appointment process—in which the BBA plays a role through our representatives on the Joint Bar Committee—has produced highly-qualified judges throughout the judiciary:

I will gladly compare the quality of our judges to those of any state in the nation. They are selected through a judicial nominating process that is rigorous, fair, and historically nonpartisan, and nominated by Governors who have taken very seriously their obligation to maintain excellence in the judiciary.

Next, Chief Justice Paula Carey of the Trial Court spelled out her four primary areas of focus this year:

  1. Judicial independence

Picking up where Chief Gants left off, Chief Carey discussed what she labeled the “increasing intensity” with which “public criticism and personal attacks” have been directed at individual judges. For her part, she is leading an effort to improve the ways the Trial Court responds in such instances and to re-evaluate “what we can and can’t say when judges are criticized”, and she thanked the bar for its support and pledged to work together. She also went into the Court’s larger-scale work “to increase public awareness and confidence the judicial system.” “Our goal,” the Chief said, “is to share information and discuss issues related to a free press and an independent and impartial judiciary in furtherance of an effort to build relationships of respect and understanding.”

  1. Diversity, Equity, and Inclusion

Here, Chief Carey reviewed the Trial Court’s “sustained effort over the last several years to address issues of diversity, equity and inclusion in our system by integrating leadership principles and awareness in all aspects of court operations,” highlighting the recent Cultural Appreciation Week, held for the first time this past September. The Court must reflect the communities it serves, she asserted, if it is to earn and maintain public trust and confidence.

  1. Specialty Courts

As Chief Carey stated, “The Trial Court of today is not the Trial Court of yesterday,” having become a “default mental-health and substance-use coordinator. Our system has had to adapt and employ evidenced-based practices in order to address the needs of justice-involved individuals.” And much of that work on behalf of those in need of services is now done through the 45 specialty courts statewide (double the number of five years ago) and through Community Corrections Centers. She cited data from the Massachusetts Probation Service showing drug-court graduates with a greatly reduced recidivism rate and used the occasion to announce a $1.5 million grant from the Bureau of Justice Assistance to coordinate a multi-disciplinary initiative with the courts of the six New England states, promising, “We will partner with the National Center for State Courts and Indiana University on this three-year effort to leverage data and share strategies to combat the opioid epidemic.”

  1. Section 35

That epidemic is, sadly, driving an increase in “Section 35” petitions for the court to order involuntary commitments of people with substance-use disorders—more than 10,000 in each of the past three years, according to Chief Carey, who pointed to a new commission (on which she serves) to study law’s efficacy and consider appropriate care and treatment.

By way of closing, she thanked the bar for its help in delivering justice with dignity:

It is only with all of you–District Attorneys, Committee for Public Counsel Services, Attorney General, the Mass. Bar Association, Boston Bar Association, all the local and affinity Bar associations–with your individual representation, the programs you sponsor, staff and fund, and your advocacy for the Trial Court, that we succeed. We share a background of legal education, training and advocacy that allows us to do this important work. Please know that I never take the quality of representation or the good will of Massachusetts Bar for granted.

Then, the newest member of the judiciary leadership troika, Trial Court Administrator Jonathan Williams, took to the podium to deliver his second annual remarks, starting by praising the Court’s innovative strategic plans that helped draw him here from the North Carolina court system. Administrator Williams spoke of the importance to him of thinking through “how we can best achieve our expansive vision of justice.”

Key to that is embracing change, “whether the changes are driven by new technology, new services, or new statutory requirements and public expectations. The Office of Court Management can be so engrossed with day-to-day operations, that it is difficult to step back and rethink how to deliver services to the courts. But we are doing exactly that.” Not an easy task, given the inherently cautious nature of lawyers and judges. “Add to that an organization adapted to the resource-deprived days of the Great Recession, and you have an incremental approach to the planning of fundamental, system-wide investments” when a bolder and more holistic approach is called for.

He went on to put the spotlight on several areas where that change is underway:

  • expanded availability of interpreter services, to meet the demands of growing numbers of court users with limited English proficiency
  • steady progress toward e-courts…
    • Plans are in place to accelerate the pace toward mandating civil case e-filing and e-service in the coming year. “The vision here is not just for filing; it is for working from an electronic record throughout the life of the case … Far fewer shopping carts of manila folders will need to be wheeled around the courthouse, and far fewer loaded into vehicles and driven to various housing and juvenile courts that sit away from the Clerk-Magistrates’ offices.”
    • The goal of e-courts is not limited to the civil side, and police-record management systems are being built out to support a mandatory Electronic Application for Criminal Complaints, in most instances, as of July 1, 2019.
    • In June, the Court completed the roll-out of e-pay capability for criminal fines and fees, and small-claims filing can now be conducted entirely on-line.
    • By next June, Probation will complete the roll-out of its first electronic case management system that will enable better data collection, supervision and follow up.
    • And, to deal with the risks these steps engender, the courts have hired a Chief Information Security Officer to prioritize cyber-security.
  • a comprehensive technology capital-bond request to the Legislature, in support of major near-term investments for the long-term payoff of the transition to a digital environment
    • This will add to the $80 million of projects already underway this fiscal year, led by the new Regional Justice Center in Lowell, on schedule, on budget, and expected to be finished at the end of 2019 and occupied at the start of 2020.
  • improved recruiting and talent development, as part of an ongoing restructuring of the Human Resources department
    • HR is also increasing its focus on wellness and benefits, to boost employee morale.
  • building on recent progress toward diversity of the Trial Court work-force, highlighted by a new report showing that overall racial and ethnic diversity increased from 23% to 25% this past year alone, reflecting the state’s demographics

“We are setting our sights higher,” Administrator Williams concluded, in the belief that “the Judiciary’s work deserves an operational infrastructure based on best practices. And that perspective and commitment now form the foundation for our ambitious agenda … It is a wonderful time of excitement and progress in the Commonwealth’s Trial Court.”

We look forward to partnering with the Trial Court on that agenda throughout the year.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Proposed Federal Regulations Could Bring Major Changes

 At the start of the program year, we updated you on our new Immigration-Related Principles produced by a Working Group over the summer. Since that time, the Boston Bar Foundation (BBF) has funded the translation of those principles, and we’ve continued to monitor developments. In recent weeks, we’ve been taking a closer look at two new proposed federal regulations related to immigration policy that are currently up for public comment in the federal register. As you know, we regularly facilitate the submission of comments on local proposed court rules but weigh in on federal proposals less often. Keep reading to learn more about the proposed immigration regulations that we’re taking a closer look at, and how you can participate in the public comment process on proposed federal rules.

Regulation related to the Flores Settlement Agreement  

On September 7, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking to amend the regulations related to the apprehension, processing, care, custody, and release of undocumented juveniles, which would end the existing Flores Settlement Agreement (FSA). The FSA was established in 1997 as a result of the case Flores v. Reno, a class action lawsuit filed on behalf of unaccompanied immigrant children, challenging the policies that concerned the conditions that children and youth experienced during immigration-related custody and release. The Agreement offered a number of protections for unaccompanied minors, including a general policy favoring release from detention and family reunification, detention in the least restrictive setting appropriate to the age and special needs of the children when required, access to human conditions, notice of legal rights, and the right to a bond hearing.

Since its establishment, the counsel for plaintiffs in the Flores matter have intervened on several occasions to ensure compliance with the terms of the agreement, including in relation to prolonged detention, lack of access to bond hearings, and poor detention conditions. The government has also regularly sought to avoid or change the protections in the FSA, resulting in a few developments of note in recent years. First, in 2016, the court extended the agreement to apply not only to unaccompanied children but also to migrant families. This particular matter came to public attention again when the Administration implemented its zero-tolerance policy and began separating families at the border this past summer. As part of this, the Department of Justice filed a request to modify the FSA, asking for limited emergency relief so that Immigration and Customs Enforcement (ICE) could detain undocumented minors who arrived with their parent or guardian in ICE family residential facilities, and exempt ICE family residential facilities from the Agreement’s state licensure requirement. Judge Gee denied the request, saying that it was “a thinly-veiled motion for reconsideration without any meaningful effort to comply with the requirements…”

Originally set to sunset in 2003, the Government thereafter stipulated to continue the FSA until it published regulations implementing it, which is what the currently proposed regulations are meant to do. DHS and HHS provide that the regulations would ““satisfy the basic purpose of the FSA in ensuring that all juveniles in the government’s custody are treated with dignity, respect, and special concern for their particular vulnerability as minors.”

Though the regulations are meant to implement the FSA, they would significantly alter many of the current policies in place, a number of which have elicited concern from groups like the American Immigration Lawyers Association (AILA), the American Immigration Council, and the National Immigrant Justice Center.

Significant changes proposed in the regulations include provisions that allow the government continually reassess a child’s status as an unaccompanied immigrant child even in the middle of a case, potentially resulting in the loss of certain benefits like the opportunity to present their asylum claims in a non-adversarial setting; provisions that restrict release options to only a parent or legal guardian (not in detention); provisions that remove the current option in the FSA that also allows for release to an adult relative (brother, sister, aunt, uncle, or grandparent); provisions that overturn the right to a bond hearing guaranteed by the FSA and replace it with a new administrative procedure for custody determinations for unaccompanied children, creating an HHS-led hearing process, where an HHS officer determines whether the child poses a danger to the community or a flight risk; and provisions that lower the protections offered to minors during their time in Customs and Border Processing, including allowing for the consideration of “operational feasibility” when determining whether a child can contact accompanying family members and allowing DHS to house unaccompanied children with unrelated adults for more than 24 hours in emergencies or “exigent circumstances.

One of the main changes relates to the requirements currently provided in the FSA that place a 20-day limit in detaining families in immigration detention centers, after which they must be released unless they opt by choice to stay in. The proposed rule would end this 20-day limit by removing the current state-licensing requirement for facilities that will hold immigrant minors, which in practice would mean that detained families could be held indefinitely. This has also raised concern that detention conditions will deteriorate as the government will be in charge of its own oversight. You can read more about the BBA’s recent efforts on family separation here and here, and to learn more about the FSA nad the proposed rules, visit this AILA page.

Regulation related to Public Charge Determinations

Just this week, U.S. Citizenship and Immigration Services (USCIS) published a long-anticipated proposed rule change related to public charge determinations for immigration purposes. Public charge determinations have been a part of federal immigration law for over a century, and if the government finds that an individual is likely to become a “public charge,” it can deny a person admission to the U.S. or lawful permanent residence (or “green card” status). Currently, the government identifies those who may depend on the government as their main source of support as a public charge, and the only benefits that can be considered are cash assistance and government-funded institutional long-term care.

Under the proposed new rule, the government would weigh a range of factors to determine whether a person is likely to use certain public benefits in the future, including, in addition to cash assistance, federal housing benefits (like Section 8), Supplemental Nutrition Assistance Program ( like SNAP, formerly food stamps), Medicaid (with a few exceptions for emergency conditions) and some Medicare subsidies. In addition, the government will consider the following negatively in making public charge decisions: earning less than 125% of the federal poverty level (FPL), being a child or a senior, having certain health conditions, limited English ability, less than a high school education, a poor credit history, and other factors. The proposed rule also considers whether an applicant sought or obtained a fee waiver in applying for an immigration benefit.

Certain immigrant groups are not subject to the determination, including refugees, asylees, and survivors of domestic violence. However, the proposal also extends a similar test to bar extensions of non-immigrant visas and changes of non-immigrant status, like when an individual wants to move from a student visa to an employment visa.

A coalition called Protecting Immigrant Families is leading the charge on analyzing the proposal and facilitating the submission of comments. They’ve compiled a lengthy list of continually-updated resources, which can be viewed here. Various sections here at the BBA are currently considering the impacts of the proposed rule in their practice area and for their clients, and we’ll keep you posted on how you can join the Sections in this effort.

Federal Comment Process

As mentioned, interested members of the public are given a period of time to comment on the proposed regulations once they are published in the federal register, in both instances here, 60 days. Comments must be considered by the agency, and when agencies publish final regulations in the Federal Register, they must address the significant issues raised in the comments and discuss any changes made in response to them.

There are plenty of ways these comments can be submitted, the easiest of which, and the method preferred by most agencies, is submission of comments through the government’s online portal. A few things are worth keeping in mind when deciding what your comments should say. To the extent possible, it’s best to produce comments that are substantive, detailed, and unique to you. This matters because, as mentioned, the agencies proposing the rules must consider and respond to the unique comments when deciding on the final rule, and failure to do so can become a factor in any future litigation related to the rule.  As a result, the more unique and specific comments received, the more fully the agency will have to respond to each concern.

To comment on the Flores Settlement Agreement Regulation, visit this page and to comment on the Public Charge regulations visit the microsite on this page, or the Protecting Immigrant Families Site.  Comments on the proposed Flores regulation are due on November 6 while comments on the proposed public charge regulations are due on December 10. If you want a full briefing on the federal rulemaking process, check out this document.

Stay tuned for more ways that you can be involved in the comment process on these and other matters!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

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