Preserving Our High Judicial Standards: The Commission on Judicial Conduct

Our Administration of Justice Section has done impressive work this year studying judges and the justice system.  Following the BBA’s successful and enlightening Bench-Bar Conversation on Judicial Evaluations a few months ago, and its sponsorship of New England Law Review’s annual fall symposium, “Benchmarks: Evaluating Measurements of Judicial Productivity,” the Section turned its attention to the Massachusetts Commission on Judicial Conduct (“CJC”), inviting director Howard Neff to speak at its monthly meeting.

Neff gave an extremely informative and comprehensive look at what exactly the CJC does and how it operates.  The CJC is a state agency that reviews complaints made against state court judges.  Neff’s overarching message supports what we already know – that Massachusetts has a great judiciary.  He repeatedly stressed that the large majority of filed cases have no merit and that justices rarely required discipline.  However, the CJC is equipped to handle any circumstances.  Here are some facts about the CJC:

  • Made up of 9 people – 3 judges appointed by the SJC, 3 lawyers appointed by the Chief Justice of the Trial Court, and 3 lay persons appointed by the Governor
  • Receives hundreds of complaints each year and over 90% of the cases within its jurisdiction – cases involving judicial misconduct or disability – are dismissed after investigation

Much like a lawsuit, CJC cases start with a complaint (for a helpful procedural flowchart click here).  Proceedings begin when the CJC receives or initiates a complaint.  Any person may file a complaint and there is no formal process for complaint filing – a letter suffices and it can be done anonymously.  All proceedings of the CJC prior to the filing of formal charges are confidential.  CJC Director Howard Neff personally reviews every single complaint.

If a complaint sets forth specific facts that, if true, would constitute misconduct or disability, the case is docketed either for preliminary inquiry (if it is more than a year old, submitted anonymously, or suspected to be frivolous or unfounded) or for investigation.  Once docketed for investigation, the judge is sent notice of the complaint and its status, and experienced CJC staff attorneys look further into the complaint.  They can communicate with the complainant, contact witnesses, obtain audio records, and request documentary evidence.  At the end of an investigation, the CJC has four options:

  • Vote to dismiss the complaint (with or without concern)
  • Vote to propose to the judge that the complaint be resolved through an Agreed Disposition.  Largely remedial in most cases, this resolution can include an agreement to a period of monitoring and/or conditions on the judge’s conduct including counseling or mentoring.
  • When the CJC and judge cannot agree on a resolution, the case is referred to the SJC for a final decision.  The SJC can impose harsh sanctions (public reprimand, censure, suspension, fines) through the following methods-
      • Vote to propose to the judge that the complaint be resolved through a confidential Rule 13 submission to the SJC.  In this case, the judge waives their right to a formal hearing and both sides agree that the SJC’s decision will be the final disposition of the complaint.
      • Vote to proceed to a Statement of Allegations.  This is a more involved proceeding, much like a law suit that entails the filing of charges and responses with the SJC and a formal hearing.

In sum,  the CJC’s work safeguards the high quality justice we have come to expect in the Commonwealth and their records show that deviance from this high standard is extremely rare. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Press Conference for Chief Justice Nominee Ralph Gants

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Justice System FY15 Budget Update

Last week the House Ways and Means Committee released its FY2015 budget proposal, which made a number of significant investments targeted to support local aid, substance abuse, behavioral and mental health, and higher education, while reducing reliance on one-time resources.  For our chief areas of interest in the justice system — judiciary funding in the form of: the trial court, legal services, and state attorneys — a number of challenges remain.  Here is the breakdown:

Trial Court funding

The Trial Court requested maintenance funding of $615 million for FY15.  This is the amount of money it would take for the Court to continue running at current capacity.  In addition, it proposed 10 “modules,” essentially packages of ideas and their costs that it could implement if funded, to update and innovate the courts.  These included plans for court service centers, specialty courts, electronic signage and information kiosks, and telecommunication enhancements.  The price for each module ranged from around $400,000 to $6.5 million.

  • House Ways and Means Budget – $609 million – this amount is roughly $6 million less than the maintenance request, but still includes $2.7 million to fund the specialty courts module.
  • Governor’s Budget – $617.5 million – this amount represents maintenance funding and an additional $2.7 million to fund the specialty courts module.

Massachusetts Legal Assistance Corporation (MLAC) Funding

MLAC requested $17 million for FY15.  This amount would cover current costs and allow for the hiring of 40 more attorneys in addition to offering some future stability.  This funding level would expand the amount of services its programs could provide to vulnerable residents across the state and also help boost the state economy.  As funding for civil legal aid has declined, mostly through a large drop in IOLTA revenue, the economic benefits resulting from civil legal aid have also dropped.  At the same time, the need for civil legal aid has grown — close to 1 million people in Massachusetts qualify for this aid, and programs currently turn away 50 to 70 percent of eligible residents. 

  • House Ways and Means Budget – $13 million – Representative Ruth Balser has filed an amendment (#157) which would increase the MLAC budget line item to the requested $17 million.  We sent out an action alert to our members last week and received a number of positive responses.  Thank you to everyone who reached out to their representatives.  Fifty Representatives signed on to the amendment, and they can continue to sign-on in the coming weeks, so if you don’t see your representative’s name (don’t know their name?  Look them up here) on the amendment, please reach out.
  • Governor’s Budget – $14 million – only $1 million more than last year’s funding level and $3 million below MLAC’s request.

Committee for Public Counsel Services (CPCS) Funding

CPCS requested a total budget of $219,399,885 for FY15.  Its maintenance request was $206,629,539.  The $12.7 million difference was to increase staff compensation and private bar hourly rates.  It is important to note when understanding CPCS’s line item that while the Governor’s budget attempts to account for the entire budget, the House Ways and Means recommendation underfunds the private counsel account because CPCS is considered a case-driven account for budgeting purposes.  This means that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation with the understanding that, similar to other case-driven accounts, CPCS will submit supplemental increase requests as the fiscal year progresses.  The Legislature and Governor have consistently honored and funded these requests.  Neither the Governor nor the House Ways and Means budget propose any changes to the current CPCS service delivery system.

  • House Ways and Means Budget – $168 million appropriation.  This is an increase of approximately $5.6 million over the FY14 appropriation but is not enough to fund CPCS’s requested changes.  Representative Angelo M. Scaccia has filed two amendments that would achieve the CPCS salary and hourly rate increases.
  • Governor’s Budget – $191 million total appropriation.  This is a $29 million increase from the FY14 general appropriation, but is not sufficient to fund the requested increases for staff compensation or increases in hourly rates for assigned private counsel.

The House budget debate will take place during the week of April 28 to May 2.  The Senate will release its budget a couple weeks later, around May 14.  As always, we will keep you posted on the latest developments.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Statehouse Update

It’s been quite a busy week at the Statehouse and we’ve been there through it all – committee hearings, legislation, and the release of the House Ways & Means budget.  The Judiciary Committee resumed its work with back-to-back meetings on Tuesday and Wednesday covering probate issues — domestic relations and custody on day 1 and trusts and estates issues on day 2.  Despite lacking a House chair, the hearings were aptly run by Senator William Brownsberger and House Vice Chair Christopher M. Markey.  Representatives from the BBA testified at both meetings in front of packed hearing rooms. 

ImageAt the April 8th hearing, the Family Law Section had a number of bills of interest and Brad Bedingfield spoke on H1
540
, a bill to amend the adopted children’s law.  The change is related to a case for which the BBA filed an amicus brief, Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  This case concerned whether adopted children had the same rights as biological children to inheritance under wills written before 1958.  The brief urged the SJC to clarify the applicable estate planning laws after a dispute arose due to the retroactive application of amendments to a 1958 law.  The court held that 1958 law applied, avoiding radical change and affirming practitioners’ expectations.  Bedingfield testified in support of the bill, which further clarifies applicability of the later adopted amendments.  Legislative action would help to avoid confusion and possible litigation related to the Bird decision. 

On the April 9th, a panel led by BBA Council member Deborah J. Manus testified on S705, a bill which would revise the current spousal elective share law.  She noted that current law can produce strange and seemingly random outcomes that are often unfair.  For example, Manus noted the new bill would help avoid gamesmanship such as ordering monetary transfers from one’s deathbed in order to disinherit a spouse.  The bill, which is presented after 8 years of study by the BBA, MBA, and WBA, proposes to bring this portion of the law in line with the Uniform Probate Code.  Most of Massachusetts and other states’ probate laws are already aligned with these uniform laws.   

Image We will continue to track these bills as they move through the legislative process. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice System Salaries: Spotlight on Civil Legal Aid Programs

When we talk about civil legal aid, inevitably the conversation focuses on clients and funding.  In Massachusetts, there are approximately 1.7 civil legal aid lawyers for every 10,000 people living under the federal poverty level.  To put that into context with the general population, there are about 70 lawyers for every 10,000 people.  Yet while the need for civil legal aid attorneys is immense, their pay is startlingly low.  The starting salary for civil legal aid attorneys is only slightly higher than those of public defenders and assistant district attorneys.  The pay for support staff is equally low.

With the reality of limited resources and growing needs, making a career in legal services often comes at great personal sacrifice.  As a result, many legal service employees have experienced financial struggles.  About 1 in 5 civil legal aid attorneys carry the burden of large law school debts, and some junior attorneys have refinanced their student loans over a longer time frame, some up to 30 years, to reduce the monthly payments.  A significant number of civil legal aid employees have withdrawn money from their retirement accounts to meet daily living expenses.  Imagine not being able to pay for a monthly T pass to get to work.  These are stories that we heard firsthand at the Boston Lawyer Chapter of the American Constitution Society’s program, The State of Legal Aid in Massachusetts: Opportunities and Challenges.  Like assistant district attorneys and public defenders, many staff and attorneys at our civil legal aid programs have taken second jobs just to get by.

In the past six years, the programs have done very little hiring due to budget cuts.  At most programs, staff took a 5 percent pay cut, this after 2 years of frozen salaries.  At least one program cut salaries to 80 percent.  Salary levels have since been restored, at least partially.  However, when there have been funds to hire new attorneys, it has been difficult to recruit them without some kind of loan forgiveness support from their law schools or the benefit of a fellowship program.  MLAC offers some limited loan assistance and in fiscal year 2013, they were able to assist 21 attorneys with loan payments.

Starting salaries are just part of the problem; attrition is another.  New attorneys are hired and trained and often leave for higher paying positions within a few years of starting.  This turnover makes it especially hard to establish a new core of experienced attorneys who are experts in their fields.

Greater Boston Legal Services, the biggest legal aid program in the state, has been spending its reserves to keep staff, and even so, GBLS hasn’t been able to stem the tide of lawyers leaving.  If GBLS faces these problems, consider the issues confronting smaller programs in other parts of Massachusetts.

Though senior civil legal aid attorneys make slightly higher salaries, they are not immune from these struggles.  Legal aid attorneys are not state employees and therefore do not take part in the state retirement benefit structure.  This means that a number of civil legal aid attorneys in their 60s and 70s face impending retirement with nothing but social security and their personal savings.

One only needs to look around to see the important work of legal aid attorneys, from neighbors staying in their homes, to the sick receiving medical care, to handicap accessibility renovations for buildings and public spaces.  Civil legal aid attorneys provide social values far beyond their meager pay, and thus it is essential that we keep them in mind when we talk about the delivery of justice.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice Decades in the Making

In mid-March, the Massachusetts SJC handed down Commonwealth v. Robert D. Wade, the first case that relied on the 2012 law codified at G.L.c. 278A “An Act providing access to forensic and scientific analysts.”  The court held for the defendant, granting him an evidentiary hearing on the use of post-conviction DNA tests of evidence collected in 1993.  In its decision, the SJC relied extensively on legislative history and legislative intent to interpret C. 278A. 

We are pleased with the SJC’s ruling and proud to have played a role in this process over the course of nearly seven years. Here’s a brief recap:

Our work is having a real impact today.  Hard work of legal experts, persistence and patience with the legislative process really can advance the cause of justice and improve the criminal justice system.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice System Salaries Revisited

After our recent post on Massachusetts public defender and assistant district attorney salaries, we were interested to hear more from Chief Counsel Anthony Benedetti, and Deputy Chief Counsel Public Defender Division Randy Gioia, for the Committee for Public Counsel Services (CPCS) at our March Council meeting.

We learned more about the structure and operation of CPCS:

CPCS attorneys represent adult criminals, juvenile delinquents, and about a third of CPCS’ budget goes to representing civil clients primarily in family law and mental health cases.

In the last two to three years, CPCS has seen big changes in the delivery system of indigent defense.  In 2011, Governor Patrick proposed eliminating the private bar altogether from this practice area.  In Fiscal Year 2012, the legislature mandated that CPCS staff attorneys handle 25% of all indigent defense cases, with the private bar picking up the rest.  Today, CPCS is well on its way to meeting the legislature’s 25% target, having handled just under 23% of cases last year.  CPCS is still hiring to meet the legislature’s mandate but if the case load demand increases, they will have to hire more staff and attorneys to meet the growing need.

One of the biggest challenges the organization faces is attrition.  As its size has grown to meet the increased case load requirements, so have the number of departing employees.  Last year the number of staff leaving increased by 13%; a large percentage of those were attorneys, most before their third year with CPCS or, as experienced attorneys know, just as they are beginning to return value as attorneys who can handle the intricacies of legal practice with minimal supervision.

The reason for this exodus seems to be clear – the salaries.  An internal CPCS survey revealed that its attorneys average $140,000 in debt.  Furthermore, 37% have a second job and 73% have borrowed money from family or friends to make ends meet.  This year, CPCS is proposing a plan to gradually increase starting attorney salaries from $40,000 to $50,000 per year.

As Randy Gioia pointed out to our Council, with more than a third of their attorneys needing a second job just to make ends meet, the clients may suffer most.  Practicing law is a more than full-time job on its own; it’s all-consuming at times.  Speaking from his own experience, Randy reminded us that public defenders and assistant district attorneys should be wholly focused on pursuing justice for their clients.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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