BBA Legislative Impact – Highlights From Formal Session

The 2009-2010 Legislative Session highlights the BBA’s extensive and varied public policy portfolio focusing on the administration of justice, the practice of law, and other issues of particular interest or concern to the organization. We’ve scored some significant legislative victories. We’ve made progress in other areas and remain committed to those issues as the legislature continues to meet during informal session.

Thank you to our members who helped advance these important issues.  Your leadership, expertise and energy throughout the past session really made a difference.  The BBA could not have been done any of this without your dedication to these issues.

Here’s a snapshot at what did happen and what did not happen before the end of formal session on July 31st.

 

CORI and Sentencing Reform

After weeks of negotiations and public conference committee meetings, Chairs Eugene O’Flaherty and Cynthia Creem shepherded a crime package through both chambers during the final hour of formal session.  It could not have been done without O’Flaherty and Creem or the leadership of Senate President Murray and House Speaker DeLeo.  The bill that was passed does not include all of the sentencing reforms the BBA had hoped to see. But this is a significant first step.  Governor Patrick is expected to sign this comprehensive crime bill on Friday August 6th.

The bill includes important mandatory minimum sentencing reforms and grants parole eligibility for offenders serving at county Houses of Correction after serving one-half of their sentence.  The bill also includes significant changes to the Criminal Offender Record Information (CORI) which will increase access and improve accuracy.  These changes will also create opportunities for reformed offenders to obtain jobs.

The BBA has been a vocal advocate of mandatory minimum sentencing reform for more than 20 years and has been working diligently on CORI reform since 2006, when the BBA’s Study Group on CORI developed principles specifically addressing our concerns: accuracy, access, sealing, and juvenile justice.

Condo Common Area Interest

Another BBA supported bill made its way to Governor Patrick’s desk in the last two weeks.   An Act Relative to the Determination of Condominium Common Area Interest became law on July 26, 2010.

Working with the Citizens’ Housing and Planning Association since 2007, the BBA’s Real Estate Section sought to clarify the definition of “fair value” in Massachusetts General Laws, Chapter 183A when determining the percentage interest for condominiums.  It does not require a specific method for calculating common area interest but instead describes elements, such as approximate unit area, construction cost, and affordability restrictions.  The technical clarification will also provide useful options in establishing percentage interest which will increase predictability and decrease litigation.

The MUPC

A big BBA victory came at the very beginning of the legislative session when the Massachusetts Uniform Probate Code (“MUPC”) was signed into law on January 15, 2009.   For over 20 years the BBA has supported the establishment of a Massachusetts Uniform Probate Code.  The BBA, along with our partners at the MBA, created a joint task force to study the issue and regularly filed legislation to enact necessary changes.  The MUPC codifies and restates much of Massachusetts law regarding wills, trusts, guardianships and conservatorships and probate proceedings.  The BBA’s Trusts and Estates Section continues to identify technical changes that will improve the model bill and we are still working with the legislature to incorporate those corrections.

Small steps – legislative progress in other areas

As often happens at the end of the formal legislative session, a few big issues grab the attention and focus of the legislature while other pieces of legislature continue in a holding pattern.  Here’s a look at other member-driven policy proposals we are still working on during the next few months of informal sessions.  There is still the possibility that some of them will get done during informal sessions. But if not we will refocus our efforts and refile them for the 2011-2012 Legislative Session.

 

Post-conviction access to DNA

The December 2009 release of the BBA’s report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, has brought a lot of attention to this issue in Massachusetts. The BBA is still getting calls from police departments across the state asking for additional copies of our report.

Currently Massachusetts is one of only two states (Oklahoma is the other) that does not provide for access to forensic evidence after an individual is convicted.  Similar legislation has been filed for many years in the Judiciary Committee.  It was our members’ work and the expertise of our Task Force that has renewed interest in this.  The BBA is excited that the issue has finally grabbed the Judiciary Committee’s attention and the bill was reported favorably before the end of formal session.

As the BBA continues to meet with legislative leaders to ensure that the Task Force’s recommendations are implemented, the good news is that we have the support of both chairs of the Joint Committee on the Judiciary.

Alimony Reform

After the recommendations of the Joint BBA/MBA Alimony Task Force were endorsed by the BBA Council in March 2010, the Chairs of the Judiciary Committee established a Legislative Task Force to review the many alimony bills that were pending before the Judiciary Committee.  This was after the Judiciary Committee had conducted a public hearing on the issue.  The BBA was invited to be a part of this group to make recommendations on reforming Massachusetts alimony laws.  The Task Force plans to continue their work and is hoping to have a comprehensive piece of legislation in the upcoming months.

Trusts & Estates Law Updates

The hard work and expertise of our very active Trusts and Estates Section led to a handful of bills that we were able to get introduced as late files thanks to Chairman O’Flaherty.   While none of these bills made it out of committee and in many cases never even got docketed we will continue to push for progress.

In addition to the technical corrections to the Massachusetts Uniform Probate Code which would clarify certain provisions of the MUPC and correct typographical errors found in the act we late filed the following bills:

  • The Massachusetts Uniform Trust Code (“MUTC”) contains provisions that would concentrate the Massachusetts statutory law of trusts in one place and supersede the Massachusetts common law of trusts to the extent that these laws are inconsistent.
  • The proposed Estate Tax Patch Statute is a default, but rebuttable presumption for the construction of will and trust formulas keyed to the federal estate tax or generation-skipping transfer tax.
  • Adopted Children Legislation, Chapter 524 of the Acts of 2008. On July 1, 2010, there was a change to a longstanding rule of construction governing the treatment of adopted persons in wills, trusts and similar instruments executed before August 26, 1958.  In response to the BBA’s advocacy last year, the Legislature included provisions in the 2009 budget that essentially suspended the Chapter 524 changes during the year from July 1, 2009 to June 30, 2010.  The BBA, along with its partners the MBA and the MA Bankers Association, continues to work on the repeal of this new rule of construction.

 

  • One other Trusts and Estates issue not yet filed but supported by our Council is the The Massachusetts Income Tax “Step-Up” would provide for the continuation of a “step-up” in the Massachusetts tax basis in property acquired from a decedent.  In the absence of any corresponding Massachusetts change, the change in federal basis rules for 2010 will result in a substantial, hidden Massachusetts tax for successors to decedents’ property.

Banks and Banking, H 1000

An Act Relative to Banks and Banking was endorsed by our Council in April 2010 and was the work of the BBA’s Business Law Section.  H 1000 would update the corporation law cross references in the Massachusetts banking laws to reflect the adoption of the Massachusetts Business Corporation Act.  The BBA will work to see that this bill gets reintroduced in the next session.

Homestead Law Reform, M.G.L. c.188

 

Our work on Homestead reform, a pressing consumer protection issue, will continue.  Impetus for this reform initially came from a detailed study of the MA homestead statute appearing in the Boston Bar Journal several years ago. The study concluded that c.188 was so badly in need of change that only a complete rewrite would suffice. With the leadership of then BBA president M. Ellen Carpenter, a bankruptcy lawyer, the BBA in the summer of 2005 responded with homestead reform legislation.

Ever since that time the BBA has been working – along with its partners at REBA to secure passage of legislation. The BBA is confident there is still enough time to get this done before the end of 2010.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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