BBA Files Amicus Brief on Adopted Children Statute

The latest BBA amicus brief was filed on Monday, April 30th in Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.  The Bird case, currently before the Supreme Judicial Court (SJC), deals with ambiguities regarding adopted children as beneficiaries of a family trust.  The Bird case is an opportunity for the SJC to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008.  This statute, which became effective on July 1, 2010, retroactively changed the understood rule of construction of terms like “child,” “grandchild” and “issue” to include adopted children, even for instruments created when the law did not include adopted children within those terms.

In its amicus, the BBA urges the SJC to rule on whether retroactive application of Chapter 524 (as currently interpreted) is constitutional and, if so, to provide guidance on the consequences for actions taken by fiduciaries relying on Chapter 524.

Filing amicus briefs is just one way that the BBA makes its views on matters of policy known.  We also draft legislation, comment on proposed government actions and legislative proposals developed by other groups, and publish reports and written statements.

The BBA gets several requests to file amicus briefs each year.  In the last three years we’ve filed four briefs.  However, we’ve received at least twice that many requests.  The BBA’s standard for filing an amicus brief or signing onto an amicus brief prepared by another entity is that the position sought to be advanced must relate to (a) the practice of law; or (b) the administration of justice – exceptions to this rule are considered on a case-by-case basis.  In the Bird case, the brief relates to “the practice of law.”

The BBA has been an amicus curiae in cases that have altered the policy landscape in Massachusetts and the United States.  Here are just some examples of our work in this area in the last few years:

  • Grutter v. Bollinger – The Michigan affirmative action case holding that race conscious admission policies are vital to integrating the legal profession.

Brief Background on the BBA’s Interest in the Bird Case

In May 2009, the BBA Council voted to support An Act to Repeal the Adopted Children’s Act which, if passed, would repeal Chapter 524 of the Acts of 2008 (as would a ruling by the SJC in the Bird case that Chapter 524 is unconstitutional).  During this current legislative session, the BBA filed An Act to Repeal the Adopted Children’s Act, known as H 2262.  H 2262, now under consideration by the Joint Committee on the Judiciary, would also provide that such repeal would not affect the validity of any action taken or distribution made pursuant to Chapter 524 while Chapter 524 was in effect.

While seeking a legislative fix, we learned of the Bird case.  The decision to file an amicus brief in this case came after a vetting process that began with debate and discussion in the steering committee for our Trusts & Estates Section.  The steering committee of the Trusts & Estates Section felt strongly that retroactive changes in the law which affect vested property interests, including beneficial interests in trust, raise serious constitutional concerns.  They requested the BBA’s Amicus Committee review and consider their request to file an amicus.

The BBA’s Amicus Committee, responsible for reviewing amicus requests and making sure that any potential brief fits into the BBA’s established criteria, discussed the request and also invited opposing counsel to provide input as to whether or not the BBA should weigh in on this issue.  In this situation the Amicus Committee decided to recommend to the BBA’s Executive Committee and Council that the BBA weigh in as amicus curiae in the Bird case.

The SJC is set to hear arguments on this issue on May 7th.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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