Monthly Archives: May 2013

A Backgrounder on Civil Legal Services Funding in Massachusetts

Massachusetts Legal Assistance Corporation (MLAC) 

MLAC was established in 1983 by the Legislature to provide funds for civil legal assistance to poor people throughout Massachusetts. It is governed by a board of directors approved by the SJC and distributes, in addition to IOLTA funds, state appropriated funds to legal service providers.  MLAC is the largest funder of civil legal aid programs in the Commonwealth.

MLAC’s revenue comes from the state budget, the IOLTA program and the Board of Bar Overseers dues add-on program.  The decline in Interest On Lawyers Trust Account (IOLTA) funds has resulted in a MLAC cutting grants to the legal aid programs it funds by 54%.

MLAC funds 16 legal aid programs that provide information, advice and representation to low-income people with critical, non-criminal problems.

Community Legal Aid Greater Boston Legal Services
Boston College Legal Assistance Bureau Community Legal Services and Counseling Center
MetroWest Legal Services Neighborhood Legal Services
Children’s Law Center of Massachusetts Merrimack Valley-North Shore Legal Services
South Coastal Counties Legal Services Center for Law and Education
Center for Public Representation Disability Law Center
Massachusetts Advocates for Children Massachusetts Law Reform Institute
National Consumer Law Center Prisoners’ Legal Services

MLAC funds three projects, which are run by the staff of legal services programs in local offices around the state:

  • Battered Women’s Legal Assistance Project
  • Disability Benefits Project
  • Medicare Advocacy Project

MLAC state funding: FY2013 $12 million; total grants for FY2013 are just over $16 million.

Interest On Lawyers Trust Accounts (IOLTA)

The Massachusetts IOLTA program was created in 1985 by the Supreme Judicial Court.  IOLTA is not unique to Massachusetts.  The first IOLTA program was established in Florida in 1981. Since then, all 50 states and the District of Columbia have adopted IOLTA programs.

In 1990, the SJC converted IOLTA from a voluntary program to a “comprehensive” program.  As a result, lawyers and law firms are required to establish interest-bearing accounts for client deposits.  These funds must be placed either in an account which pays interest to the client or in an IOLTA account. An IOLTA account is selected if the funds are relatively modest, or large amounts held by the lawyer for only a short period.

Each IOLTA deposit earns a very small amount of interest.  It is the money accumulated from pooled IOLTA accounts that allows the IOLTA committee to make its distributions to support law-related public service programs.  Over 200 banking institutions maintained an average of 14,000 IOLTA accounts across the state this year.

The Supreme Judicial Court limits the use of IOLTA to two purposes: 1) to provide civil legal services to low-income clients and 2) to improve the administration of justice.  The IOLTA committee distributes all IOLTA interest to three charitable entities that then use the IOLTA funds to make grants to local civil legal services programs:

  • Boston Bar Foundation (7%)
  • Massachusetts Bar Foundation (26%)
  • Massachusetts Legal Assistance Corporation (67%)

IOLTA operates on a calendar year.  The very low currently available interest rates and a period of declining real estate transactions have caused a notable reduction in the revenue on which the IOLTA program depends.

  • In 2007, interest on IOLTA accounts totaled $31.8 million
  • In 2011, interest on IOLTA accounts totaled $7.5 million
  • In 2012, interest on IOLTA accounts totaled $6.9 million

Legal Services Corporation (LSC)

LSC is a private, non-profit corporation created by the United States Congress during the Nixon administration and is funded through the congressional appropriations process.  Although LSC is the single largest funder of civil legal aid for low-income people in the United States it provides only about 15% of the funding for legal aid programs in Massachusetts.

LSC provides funding to independent local legal services programs through a competitive grant process and currently funds 134 independent legal aid organizations.

LSC distributes federal funding for civil legal aid and is governed by federal law.  LSC imposes restrictions on recipients of any LSC grant funds and not just on LSC money but on all of a particular program’s funds.  These restrictions prohibit LSC-funded organizations from engaging in lobbying, advocacy,, general impact work and from representing certain otherwise eligible low-income people.

In Massachusetts, the 4 LSC grantees are:

  • Massachusetts Justice Project, Inc.
  • Merrimack Valley Legal Services, Inc.
  • South Coastal Counties Legal Services
  • Volunteer Lawyers Project of the Boston Bar Association

LSC funding for FY13: $4,778,860

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Spring Legislative Line-Up at the BBA

While the BBA has been keeping a watchful eye on the Fiscal Year 2014 state budget — now being debated in the Senate — we have also been paying close attention to a number of our other public policy initiatives. Here is an update on the Senate budget and a look at some of the legislative issues on our spring agenda:

Fiscal Year 2014 State Budget

Senate Ways & Means released its Fiscal Year 2014 budget proposal last week, which included $12 million for the Massachusetts Legal Assistance Corporation (MLAC); alas, this is $3.5 million short of its request for Fiscal Year 2014.  The Senate Ways & Means budget funded the Trial Court at $579 million; unfortunately, this did not include funding for a judicial pay raise.

After the budget was released, senators filed amendments to the budget. Debate on the budget and those amendments got underway yesterday.  By the end of the first day of budget debate, the Senate adopted a redrafted amendment filed by Senator Clark.  Senator Katherine Clark’s redrafted amendment provided an additional $1 million for MLAC — bringing their total Fiscal Year 2014 appropriation up to $13 million!  This is the same amount that MLAC ultimately received in the House budget.

We expect the $13 million to be included in the final budget — a victory, especially considering other state programs have been cut.  Thank you to our members.  Your advocacy this year with your legislators really paid off and this $13 million is a result of all of your hard work.

As of this writing, the judicial compensation amendment had not yet been taken up by the Senate.  We expect to know more by the end of the week.

Legislation

As we reported in Issue Spot earlier this month, provisions of House Bill 28, “An Act making amendments to the Uniform Commercial Code” made its way to the House Ways & Means Committee.  The BBA, along with the Massachusetts Bar Association and the Massachusetts Bankers Association, are still collaborating to get this bill before the House and Senate for final approval.  We plan to continue our conversations with the Chairman of Ways and Means throughout the next few weeks.  We are still aiming to get all of this done by July 1st uniform effective date.

Also before the House Ways & Means Committee is House Bill 2696, “An Act to continue tax basis rules for property acquired from decedents,” filed by Representative Alice Pesich.  This bill, which would mitigate the potential for Massachusetts double taxation with respect to most 2010 decedents, will have an impact on trusts and estates in Massachusetts.

Yesterday, the House of Representatives unanimously passed House Bill 1432, “An Act expanding juvenile jurisdiction”.  This legislative proposal would raise the age of jurisdiction of the Juvenile Court from 17 to 18, which would move 17-year-old offenders into the juvenile justice system in Massachusetts and end the practice of routinely incarcerating 17-year-olds in adult corrections facilities.

Listening to yesterday’s debate in the House, the support from the legislators who spoke publicly about the proposal echoed many of the reasons that the Criminal Law Section also supports this bill.  This proposal reflects the latest scientific evidence by differentiating between the mental capacity of juveniles and adults. This evidence is used to create distinct rules and guidelines for the two groups, and raising the age will allow 18 year old offenders to be appropriately considered as youth by the justice system.  One representative at the debate effectively summed up this argument and said, “an increase in the age is not a reduction in justice and we know a young person in the juvenile system will receive treatment, family involvement and we will have less expensive results.”

It was also mentioned that by mid-August the federal Prevention of Rape Elimination Act (PREA) will require every state to ensure that individuals under 18 are not incarcerated with adults.  If Massachusetts does not comply with the PREA, it will have to construct separate holding facilities for 17-year-olds.  Raising the age from 17 to 18 will fulfill the PREA requirements. Also, 38 states have the age of majority at 18 or above, which means that raising the age in Massachusetts would bring the Commonwealth into sync with the majority of the nation.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Quick Take on the Senate Ways & Means Budget

Senate Ways & Means released its $33.9 billion budget for Fiscal Year 2014 on Wednesday, May 15.  Senators are reviewing the proposal and preparing to debate the entire budget next Wednesday, May 22.  Here’s what you should know:

Senate Ways & Means funded the Massachusetts Legal Assistance Corporation (MLAC) at $12 million; this falls short of what our civil legal aid programs need to avoid further cuts.  The Senate’s $12 million appropriation is the same level of funding MLAC received in the final Fiscal Year 2013 budget, but $3.5 million less than MLAC’s request for Fiscal Year 2014.

The good news is that Senator Katherine Clark has already filed an amendment to fund MLAC at $15.5 million. But filing an amendment is not enough.  We need other Senators to get on board – co-sign her amendment and place calls to the Senate President and Chair of Senate Ways & Means – and fight for Senator Clark’s amendment.  This is where the BBA’s collective advocacy efforts can make a big impact.  Look for President J.D. Smeallie’s action alert tomorrow morning, and then call, email, and tweet your state senator.  We need a critical mass of support on this very important issue. 

The Courts also need our help.  Senate Ways & Means funded the Trial Court at $579; this is $10 million less than the Trial Court’s maintenance request for Fiscal Year 2014.  We are disappointed to see that Senate Ways & Means failed to include any funding for a way overdue judicial pay raise.

 Massachusetts judges last saw a pay increase in 2006.  We expect that amendments will be filed before the Friday deadline to include money to implement the recommendations of the “Guzzi Commission” regarding increasing judicial compensation.  The Guzzi Commission recommendations would raise the compensation for Massachusetts’ judges from 48th lowest in the nation to 28th, when adjusted for cost of living.

 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Capital Punishment: The Wrong Answer, with High Costs

As a community, we are all still reeling from the tremendous pain and anxiety that began with the tragic and shocking events that occurred at the Boston Marathon.  It’s understandable that a sense of personal outrage would spark demands for retribution.  Just a week after the Marathon bombings, an amendment to reinstitute the death penalty in Massachusetts was raised during the budget debate for Fiscal Year 2014.  Immediately after the issue was brought up, an alternative amendment was approved, calling for an analysis of the costs of reinstating capital punishment in Massachusetts.  

First, the cost of reinstating the death penalty is just one reason that the Boston Bar Association opposes capital punishment in Massachusetts.  Our justice system has yet to emerge from a state of crisis and the courts can barely survive the waves of civil and criminal business already in our system.  It’s impossible to imagine the extra burden on the system of a death penalty law without a massive infusion of money, personnel, and facilities. Proponents of the death penalty fail to consider the hefty costs a death penalty would impose on District Attorneys, the Committee for Public Counsel Services, and the Department of Corrections

Second, mistakes do happen.  Our justice system is exemplary, but it’s not perfect.  As lawyers, we value the quality of justice in our Massachusetts courts, but we are acutely aware of the opportunities for and the actual occurrence of errors in our system.  Mistakes are inherent not only in our justice system but also in our forensic laboratories.  Recent revelations about failures in our state crime labs have been shocking.  The potential for wrongfully applying the death penalty to an innocent person is substantial and scary. 

Third, capital punishment does not deter violent crime.  Appropriate prison sentences should be used to punish and deter those who kill. 

What’s more, racial disparities in the administration of capital punishment are significant.  Studies have shown that people of color receive the death penalty far more often than Caucasians.

The Legislature shouldn’t even consider adopting a law with the wide-ranging economic and social effects of capital punishment without understanding its current economic and social impacts.  The Legislature should focus on ways to immediately improve our criminal justice system by ensuring the entire system is adequately funded. 

The law must provide justice in every single case.  This means adequately funded courts, ensuring high quality defense representation in all criminal cases, along with improvements and upgraded standards for our crime labs.  Rather than call for the restoration of the death penalty in Massachusetts, we should look at the problems of violence in our society in a more comprehensive way.  The death penalty is not the solution. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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UCC- Nothing Sexy, But Critical To Our Economy

The UCC isn’t going to grab headlines and it doesn’t even sound very exciting, but it is important to Massachusetts. There are just two months to go until July 1, 2013, the effective date for several provisions of the Uniform Commercial Code (UCC) contained in House Bill 28.  If enacted, the changes contained in House Bill 28 will be good for our state and its economy.  Without going into too much detail, this bill would reduce needless obstacles to the availability of credit for small businesses and reduce the cost of credit.

The bill had a public hearing before the Committee on Economic Development and Emerging Technologies on April 11 and was recently reported favorably from that Committee.  As of this post’s publication, it is before the House Ways & Means Committee. 

House Bill 28 contains two major sections — one providing technical and the other providing substantive changes.   The first section revises various provisions of the UCC as they appear in Chapter 106 of the General Laws in the following three ways:

  • First, there are updates to Article 1, which contains general definitions and provisions of the UCC.
  • Second, there are revisions to Article 7 of the UCC, which deals with documents of title, including bills of lading and warehouse receipts.  A very significant change contained in Article 7 would allow documents of title to be in electronic form. 
  • Third, there are certain technical amendments to Article 9 of the UCC. 

The second section of House Bill 28 contains substantive changes providing rules for security interests in electronic documents of title. These provisions are necessary to coordinate Article 9 with the Article 7 amendments in the bill. 

House Bill 28 is long overdue and revenue neutral.  There is no opposition, it raises no consumer issues and requires no state appropriations, filing fees, or other charges.  Among the bill’s supporters are the American Bar Association, Associated Industries of Massachusetts, International Warehouse Logistics Association, Massachusetts Bankers Association, Massachusetts Bar Association, Massachusetts Secretary of State’s Office and the Massachusetts Uniform Law Commission. 

There were signs during the Legislature’s informal session in December that this legislation had a chance of becoming law before the end of 2012.  Because that did not happen, we’re still talking about it.  With two months to go before the uniform effective date of July 1, now is the time to get this done once and for all.  If we fail to do this, Massachusetts will be at a competitive disadvantage relative to its neighbors: Connecticut, New Hampshire and Rhode Island. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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