One More Week

With only 7 days of formal legislative session remaining, the Statehouse has been bustling.  Here are a few bills of BBA interest that were the subjects of recent activity:

  • First and foremost, our spotlight bill from last week, H4307, which, most notably establishes the minimum length of jail sentences before parole eligibility for juveniles convicted of first degree murder, was enacted by both the House and Senate last week and laid before the Governor. The Governor’s office is now reviewing the bill, and it only needs his signature to become law.  The BBA’s Council approved a set of juvenile justice principles, including opposition to juvenile life without parole sentences, in December 2013 after the issue was considered by both its Criminal Law and Delivery of Legal Services Sections.  The consensus bill calls for parole eligibility after:
    • 20-30 years for juveniles convicted of first degree murder,
    • 25-30 years for juveniles convicted of first degree murder committed with deliberate premeditation and malice aforethought, and
    • 30 years for juveniles convicted of first degree murder committed with extreme atrocity or cruelty.

The BBA’s own Gun Control Working Group, comprised of attorneys with diverse backgrounds including gun owners, civil libertarians, a prosecutor, criminal defense attorneys, a law professor, and health law experts, met several times between April and July 2013 to review all of the gun legislation filed by that point – roughly 60 bills. They composed a set of ten principles we use as a lens through which to consider new gun legislation.  Both the House and Senate bills contained many of their points of emphasis and we are interested to see how the final bill will mesh with their considerations.

The end of session is always a busy time, and this year is proving no different.  In this final week, we may see major movement on these and other bills.  We will continue tracking all the bills of interest to the BBA and our members and do our best to keep you up to date on their progress. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Spotlight on Juvenile Justice

While juvenile justice issues have played a major role in the legislature in the past year, they have been a part of the BBA’s agenda for decades.  The BBA has long supported bills abolishing juvenile life without parole sentences, as Massachusetts over time became one of the last states permitting these sentences for youths as young as 14.  In early December, the BBA’s Council approved principles drafted by our Criminal Law and Delivery of Legal Services Sections opposing juvenile life without parole sentences.

Then, in late December, there was a sudden breakthrough in the case of Diatchenko vs. District Attorney for the District & Others, in which the SJC held that juvenile life without parole sentences were unconstitutional following the US Supreme Court holding in Miller v. Alabama that juvenile life without parole sentences violate the 8th Amendment as “cruel and unusual” punishments.   As a result, roughly 63 inmates became parole eligible for the first time.  However, the Diatchenko case left it up to the legislature to determine how to craft sentences for juveniles convicted of first degree murder, asking only that they be given a “meaningful opportunity to be considered for parole suitability.”

From that point on, the legislature has grappled with how to handle this situation.  A number of bills emerged in the first few months of 2013.  When the Joint Committee on the Judiciary held a hearing on juvenile justice issues, we were there.  There was plenty of debate at the hearing on a multitude of bills calling for anywhere from 10 to 35 years of jail time before juveniles convicted of first degree murder could be eligible for parole.  The bills included many provisions on parole considerations, but listening to the testimony, the following issues came to the fore for legislative consideration:

  • Fairness - Legislators and panelists alike raised fairness considerations for victims and their families, society generally and specific communities, as well as the defendant.
  • Confidence in the justice system - Those advocating for longer parole eligibility terms touted their confidence in the justice system, stating that only juveniles who committed the most heinous crimes were sentenced to life and thus merited a longer time before parole eligibility.  Those advocating for shorter parole eligibility terms expressed confidence in the parole board’s ability to determine whether a person was adequately rehabilitated before potential release.  They stressed that parole eligibility did not equate to release.
  • Potential for rehabilitation – Testifiers advocating for shorter parole eligibility terms cautioned against the mere warehousing of convicts and expressed concern that juveniles sentenced to life with long periods without parole eligibility would suffer due to lack of program and rehabilitative opportunities (priority is given to those closer to potential release) and the challenge of staying in touch with family and friends for such an extended period of time, a parole board consideration.

Now, a couple of months later, the legislature is primed to address all of these concerns.  The House passed a juvenile justice bill, H4184, on June 18 by a vote of 127-16.  The bill called for parole eligibility for juveniles convicted of first degree murder in 20-25 years, specifying that those convicted of first degree murders that were premeditated or committed with extreme atrocity or cruelty would be parole eligible after 25-30 years.  A few weeks later on July 8, the Senate passed its own juvenile justice bill, S2246, by a vote of 37-2.  The Senate version granted parole eligibility in 20-30 years, specifying that a juvenile convicted of first degree murder committed with extreme atrocity or cruelty would only be parole eligible after 30 years.

A Conference Committee consisting of Representatives Christopher MarkeyGarrett Bradley, and Bradford Hill and Senators William BrownsbergerJennifer Flanagan, and Bruce Tarr then drafted a consensus bill, H4307.  This version calls for general parole eligibility for juveniles convicted of first degree murder in 20-30 years.  It requires 30 years of jail time for those convicted of murders of extreme atrocity or cruelty and 25-30 years for juveniles convicted of first degree murder with deliberate premeditation and malice aforethought.

Here is how the three bills break down:

juvenile justice chart

The consensus bill also creates a commission to study and determine the usefulness and practicality of using a developmental evaluation process for juvenile first degree murder cases.  The goal of the evaluation process would be to determine the developmental progress and abilities of the juvenile offender at the time of sentencing and parole eligibility.  The commission is tasked with establishing factors to analyze in determining the developmental progress of a juvenile offender.

The consensus bill will now go to each house of the legislature for their final consideration.  We will continue to monitor this and all the other bills of interest to our members in these final weeks of the legislative session.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Gun Legislation on the Move

Late Wednesday evening, the House passed a gun violence prevention bill by a vote of 112-38. The bill, H4278, is the latest version of legislation that has been in the works since March 2013 when Speaker DeLeo first convened his Gun Law Task Force to study the issue. The Speaker’s Task Force met more than 15 times between March and December 2013, releasing a list of 44 recommendations for gun laws in February of this year.

At the same time, the BBA’s own Gun Control Working Group conducted a lengthy study on gun reform. Comprised of attorneys with diverse backgrounds including gun owners, civil libertarians, a prosecutor, criminal defense attorneys, a law professor, and health law experts, the Working Group met several times between April and July 2013 to review all of the gun legislation filed by that point, roughly 60 bills, and compose a set of principles designed to be a lens through which any new gun law could be considered.

But the origins of this debate stretch back to the beginnings of this country. In early June, the BBA hosted A Conversation with Michael Waldman, President of the Brennan Center for Justice at the NYU School of Law. Waldman addressed a number of policy issues, including the findings detailed in his new book, The Second Amendment: A Biography.

IMG_2705 cropped

This project took him on a historical journey through gun laws, propaganda, and politics, tracing the earliest gun rights to militias at the start of the United States. Early Americans cared passionately about militias, which are unlike anything we have today. Every adult male aged 16 to 60 was part of this local unit, and as a result was required to own a gun and keep it in his home. Early Americans saw these groups as a bulwark against tyranny, a political check, and an alternative to a standing, professional army, the ultimate symbol of a king’s power which they had just fought against and defeated. Thus, gun ownership embodied an individual right to fulfill a civic duty as a militia-member.

When the Bill of Rights was debated, its shortest clause, the Second Amendment, received little public discussion, none of it focused on whether the Amendment was an individual right – it was all about militia service. The role of militias was so entrenched, and the world was such a different place, that it was not considered the least bit controversial.

As the country developed, Americans always had guns and there were always gun laws. The Supreme Court largely stayed out of the debate until a 1939 case, United States v. Miller, in which it upheld the first federal gun law, essentially saying that the Second Amendment only protected militias, not individual rights. However, as the country has evolved, this thinking has changed. In 2008, the Supreme Court found an individual right to gun ownership, but noted that this right could be limited, in District of Columbia v. Heller. While all circuits have grappled with this issue, they have overwhelmingly upheld gun laws.

Back to the gun violence prevention law at hand in Massachusetts: in early June, the Speaker introduced a bill, H4121, which quickly became the subject of discussion, praise, and concern for many in the state. As a result, its progress was again shelved while legislators worked on revisions to gain greater consensus, a tall order on any bill, much less one as controversial as gun control. However, this patience appears to have paid off in the bill’s new version, numbered H4278. Representative George Peterson, a Republican and longtime advocate for gun rights, voted in favor of the bill, and the Gun Owners Action League (GOAL), which had opposed the old version (H4121), took a neutral position on the new one (H4278).

Some of the key provisions of H4278 include:

  • Bringing the state into compliance with the national background check system
  • Authorizing licensed gun dealers to access criminal histories prior to making a sale
  • Requiring school districts to have at least one resource officer, two-way communication devices with police and fire personnel in case of emergency, and plans to address the mental health needs of students
  • Giving licensing authority broader discretion to deny firearm identification cards or license to carry if there is credible information that the applicant poses a safety risk
  • Increasing penalties for failure to report a stolen or lost firearm
  • Creating a new State Police unit focused on firearms crime and trafficking

The bill now goes to the Senate with just 22 days remaining on the formal legislative calendar. We will continue to monitor this piece of legislation and keep you updated on its progress.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice System FY15 Budget

We’ve done our best to keep you up to date on the budget process this year, and it’s almost done.  To recap, way back in January, the Governor filed his budget recommendations bill.  In early April, the House Committee on Ways & Means made its budget recommendations.  The House completed its budget in early May, the Senate Ways &Means Committee finalized its budget a couple of weeks later, and the Senate completed its budget at the end of May.  Since then, the budget has been before a six member Conference Committee consisting of Representatives Dempsey, Kulik and deMacedo and Senators Brewer, Flanagan, and Ross.  On Sunday, June 29th, the Conference Committee finalized its budget recommendation, and on Monday, the House and Senate approved this joint budget.  At this point, the budget is under review by the Governor, who has ten days to approve or veto the entire budget, veto or reduce specific line items, veto outside sections, and/or submit changes as an amendment to the budget for further consideration by the legislature.

Our chief areas of interest in the justice system – judiciary funding in the form of: the Trial Court, legal services, and state attorneys – fared well, but still face a number of challenges.

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.

  • Conference Committee – $612 million – this amount is in between the House and Senate appropriations, but is $3 million below the Court’s maintenance request.  It includes $3 million for the specialty court module.
  • Senate Budget – $617 million
  • Senate Ways & Means – $617 million
  • House Budget – $609 million
  • House Ways & Means Budget – $609 million
  • Governor’s Budget – $617.5 million

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.  Last year, MLAC received $13 million in funding.

  • Conference Committee – $15 million – Representative Ruth Balser and Senator William Brownsberger sent a letter co-signed by 50 other legislators to conference committee members voicing their support for $15 million in MLAC funding. 

We reached out to our members along the way, asking you to contact your legislators to voice your support for civil legal aid funding.  Thank you for all of your help – we are confident this level of appropriation wouldn’t have happened without you.  At this point we encourage you to continue building your relationships at the Statehouse by personally thanking your legislators for their work and reach out to the Governor for the final budget step, urging him to sign on to the $15 million MLAC appropriation. 

  • Senate Budget – $14 million
  • Senate Ways & Means Budget – $13 million – Senator William Brownsberger and Senator Cynthia Creem filed an amendment requesting increasing this line item to $17 million.  It was amended to a $1 million increase and adopted.
  • House Budget – $15 million
  • House Ways & Means Budget – $13 million – Representative Ruth Balser filed an amendment (#157), co-signed by 71 Representatives, proposing to increase the MLAC budget line item to the requested $17 million.  It was included in a consolidated amendment as a $2 million increase for the final House budget.
  • Governor’s Budget – $14 million 

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.

  • Conference Committee – $168 million
  • Senate Ways & Means – $180 million
  • House Budget – $168 million
  • House Ways & Means Budget – $168 million
  • Governor’s Budget – $191 million

The budget is a long and complicated process, but it is almost finished and we hope that regular updates like this have helped you stay engaged with some key judiciary appropriations.  Thank you to everyone for your involvement, especially with legal services funding.  Stay tuned for a final update likely only a few days away.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Spotlight on Spousal Elective Share

The BBA has been a part of many pieces of legislation over the years, especially those that have an impact on our core principles – facilitating access to justice, serving the community at large, and advancing the highest standards of excellence for the legal profession.  However, the BBA’s process to thoroughly examine, deliberate, and eventually take a position on a bill is an involved one, even for seemingly simple bills.  To complicate matters further, the legislative process going on across the street from us is equally – if not even more – harrowing and intricate.  So what does it take to champion a bill through the BBA and on to become a law?  In a word: patience.

Let’s take a closer look at a long-time BBA supported bill, currently with the number S705 – An Act relative to the elective share of surviving spouses.

The Bill

The bill is in the area of trusts and estates law, which is well-known among lawyers as a particularly dense practice area.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is entitled to one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s assets, multiplied by a percentage based on the length of the marriage – ranging from three to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is applied when a marriage ends in divorce.


The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill.

Here and Now

The bill was filed in the Senate in January 2013 by Senator Cynthia Creem and referred to the Joint Committee on Judiciary shortly thereafter.  Following an extension order filed in March, and a public hearing in April, at which Deb Manus testified on behalf of the BBA, the bill was reported favorably out of the Joint Committee on Judiciary in late June.  It was then referred to the Senate Committee on Ways and Means, where it currently sits.

We have been working and will continue to work with the other organizations interested in the bill – both in support and opposition – to pursue consensus.  We hope that this bill will garner enough support to pass in the last month left of formal session, but we recognize the hurdles it faces.  As you can see, this is a long and complex process, and the spousal elective share bill is only one example of many bills the BBA is working on.  We will keep you posted on the latest developments with this and all of our bills of interest.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Cell Phone Search and Seizure Case Update

In May, we wrote about a Boston case, United States v. Wurie, that was picked up by the US Supreme Court with a fact pattern that we thought could have major implications for the Fourth Amendment and personal privacy.  Today, the Court issued its ruling, holding unanimously that police must have a warrant to search cellphones of arrested individuals.  Read the decision here.

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Energy and Environmental Legislative Session Review


Earlier this week, the BBA Environmental Law Section hosted its review of Energy and Environmental laws proposed during the 2013-14 legislative session.  The discussion featured three speakers with a wealth of experience in environmental law.  Dan Burgess, Deputy Commissioner of the Department of Energy Resources, Gary Davis Jr., General Counsel of the Massachusetts Executive Office of Energy and Environmental Affairs and Erica Mattison, Legislative Director of the Environmental League of Massachusetts provided brief reviews of a number of complex bills.

The presenters dove right in to their selected bills of interest:

H4164 – Following a 2013 study ordered by Senator Markey on gas leakages and based on the fact that Massachusetts has one of the oldest pipeline systems in the country, this bill lays the groundwork for expediting much needed repairs and updates to the natural gas pipe system.  The bill has been enacted in the House and the Senate.

S1970 – This bill creates incentives promoting the use of thermal energy.  It was reported favorably out of the Joint Committee on Telecommunications, Utilities and Energy and has passed the Senate.

S177 – This bill provides solutions geared towards encouraging large commercial enterprises to engage in major energy efficiency overhauls, namely by offering these enterprises more and improved financing options by leveraging their property.  This bill is before the Senate Committee on Ways and Means.

H3901 (but soon to be re-numbered) – As the state’s solar energy usage has greatly expanded in recent years, it has revealed some issues regarding net metering, the system by which solar energy customers can generate their own electricity for credits that they can then use to lower their electricity costs.  This bill is a combination of four previously drafted bills on the issue and seeks to offer greater fiscal certainty for solar users.  It is currently before the House Committee on Ways and Means.


H3968 –While dense in content, this bill’s general goal is to provide developers with a clear pathway to work on clean energy projects in order to meet the Commonwealth’s greenhouse gas reduction targets and energy reliance goals.  This bill prompted the most discussion as practitioners were concerned about whether and how its language would accomplish its stated goals.  It was recently reported out by the Joint Committee on Telecommunications, Utilities and Energy.

H4150 – This environmental bond package allows the state to borrow funds to finance capital funding for Environmental and Energy Affairs agencies.  These investments complement built infrastructure with natural assets such as floodplains and barrier beaches, support scientific research that helps the state better understand environmental issues, and provide a return on investment in clean water and air.

S2021 – This bill attempts to improve drinking water and wastewater infrastructure through, most notably, increased funding, establishment of guidelines for water management, and allowing for “water banking,” a local option for cities and town to impose additional charges to fund mitigation measures for increased water withdrawals.  It passed the Senate in March and is currently before the House Committee on Ways and Means.

H4065 – This bill reforms the state’s outdated zoning laws.  It encourages prompt and predictable permitting, establishes useful criteria for variances, promotes coordination among municipalities, encourages compact development and land preservation, streamlines the appeals process, and creates a rational system for impact fees.  It is currently before the House Committee on Ways and Means.

In addition to all the bills discussed, the Environmental League of Massachusetts introduced its sustainable water initiative, Brownfields plan, and budget campaign, with the goal of securing 1% of the state budget for the environment.  In all it was a highly informative meeting and, as the list of bills summarized here demonstrates, it looks to be an exciting and active end of session for environmental law in the Commonwealth.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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