Monthly Archives: June 2013

One Week, Two Supreme Court Decisions and a Legislative Victory

We cheered affirmative action on Monday and by Thursday we were celebrating marriage equality, and, on a less dramatic note, also the fact that the Uniform Commercial Code had passed the Massachusetts Senate.  

• On Monday the Supreme Court, in a 7-1 ruling, remanded the University of Texas’ affirmative action admission case Fisher v. University of Texas et al. back to the U.S. Court of Appeals’ Fifth Circuit for further review.  By remanding the case for further proceedings, the Supreme Court ordered the appeals court to reconsider the case applying strict scrutiny. 

The Supreme Court did not go as far as declaring affirmatively that the use of race in admissions by the University of Texas is permissible, and the debates over affirmative action in higher education are far from over.

Last summer, we worked to put together a coalition to join us on the BBA’s amicus brief in Fisher.  That brief was consistent with the BBA’s long-standing position that race-conscious admissions policies are vital to diversifying the legal profession, and that not having such policies would harm the continued integration of the profession.

• Yesterday we celebrated the Supreme Court’s landmark ruling in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA).  The Supreme Court decision affirms that all married couples deserve equal treatment from the federal government. 

In Massachusetts, our Supreme Judicial Court got it right with Goodridge in 2003.  While we became the first state to legalize same-sex marriage, there is still a lot of work ahead before marriage equality is recognized everywhere in the United States.  

• In the Massachusetts Senate yesterday there was a spirited debate of sorts on the Uniform Commercial Code (UCC).  Senator Tarr called the UCC both long awaited and worthy of summer beach reading.  Senator Candaras explained the amendments to the UCC and said it was good for economic development.  Senator Creem, tongue-in-cheek, said the UCC was a topic in which she tried to interest her constituents at political events.  Soon, she realized that her audience was asleep and it wouldn’t get her re-elected.   Humor aside, we are delighted that the Senate passed the bill yesterday and we await action by the governor. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Joint Committee on Judiciary Holding Many Hearings This Summer

On Wednesday, June 19th, the BBA submitted written testimony to the Joint Committee on the Judiciary in support of S 700 An Act to Provide Landowner’s Title Protection.  Part of the committee’s 45 bill agenda this week, this bill is co-sponsored by Senator Cynthia Creem and Representative Ruth Balser.  

If passed, the Landowner’s Title Protection Bill will eliminate title defects and encumbrances that would otherwise render title to real estate unmarketable.  These include issues such as defectively drafted and unrecorded deeds; trusts and powers of attorney; breaks in chain of title; unintelligible property descriptions in ancient conveyancing instruments; missing, incomplete or inconclusive probates; unused cart paths shown on recorded plans; and “paper streets” that have never been built, but appear on recorded plans. 

Put more simply, this legislation will provide protections for a person having an unbroken chain of title to land for 50 years or more.  That person shall be deemed to have a good and clear record and marketable title.   Public testimony at the hearing included an attorney who described the plight of their clients badly affected by title piracy in the absence of this bill.

This isn’t a new bill. In fact, the BBA has been involved in negotiating changes to prior versions of this bill since the late 1990’s. 

In the coming months, there will be other Judiciary Committee hearings.  The Judiciary Committee will hear bills that fall into the crime, privacy and 209A category in July.  Hearings in September, October and November will address issues pertaining to motor vehicles and OUI, torts and court administration.   

The Joint Committee on Public Safety and Homeland Security is taking their hearings on the road this summer.  They’ve scheduled two public hearings for this month on gun-related bills.  Meeting this week at Cape Cod Community College and next week at Assumption College in Worcester, there will be more hearings scheduled for the end of July and early August.  The statewide hearings on gun-related bills will culminate with a final public hearing in September at the State House. 

Watch Issue Spot for more information on how the BBA will participate in this discussion to come.  The BBA’s Gun Control Working Group is still reviewing these bills, gathering information and researching the issues.  They are approaching this public safety issue from all appropriate angels.  The plan is to have the BBA’s position firmed up by the September hearing at the State House so that we can participate and contribute to this discussion. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Legal Aid: Understand the Budget Process, Frame the Message Appropriately and Build the Business Case

Jim Sandman, President of the Legal Services Corporation (LSC), joined the BBA last week for a discussion on legal services.  LSC, the single largest provider of legal services in the United States, has 800 offices nationwide and supports 134 programs.  LSC ensures a baseline of support for legal aid nationwide. In some parts of the country, such as the Deep South or the mountainous West, LSC constitutes the sole source of legal aid funding.  While LSC is not a government agency, it does receive all of its funding from a congressional appropriation.  It is subject to congressional oversight thereby making a solid and bi-partisan relationship with Congress very important.

Here are some takeaways from Jim Sandman’s discussion…..

  • The first line of the United States Constitution establishes justice as the primary goal of our nation.  A well-functioning justice system with access for all is necessary in our democratic country. If we have no mechanism to enforce rights, these rights have no meaning.
  • Legal aid is not a social safety net.   Real change will only come when there is a shift in vocabulary used to discuss legal aid. Legal aid is an access to justice issue and the mission of legal aid organizations is to close the access to justice gap, not to serve as a poverty relief program.
  • The business case needs to be presented clearly. Measuring outcomes in this context will provide leaders in Congress and at the State level with quantifiable evidence of the benefits that come from legal aid. Statistics related to savings from legal aid in domestic violence or foreclosure cases, for example, provide the concrete foundation for increasing funding to organizations that provide this aid.
  • We need stories and examples for the business community to demonstrate their interest in this area.  One familiar example of the business community’s interest is that of the employee who is also the victim of domestic violence.  With the help of a legal aid attorney, this employee is able to obtain a restraining order and is able to continue employment while avoiding hospital costs.

Jim Sandman is optimistic about the upcoming fiscal year. President Obama has signaled that funding for legal services is important and has recommended $430 million in LSC funding in his budget proposal.  $430 million is substantially more than what LSC has received in recent years.  It’s projected that the Senate budget this year will be as high as the President’s recommendation.  This should raise the ceiling on the House’s budget number. Since the final budget number is usually half way between the House’s proposal and the Senate’s proposal, this may result in a higher overall appropriation for LSC.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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DNA Evidence: Not Necessarily a Guarantee of Anything.

On Monday, a divided United States Supreme Court approved Maryland’s DNA law, signifying a major change for DNA collection.  The Supreme Court’s decision in Maryland v. King expands DNA collection to include people arrested —prior to their proverbial day in court.  More than half of the states allow DNA samples to be routinely taken from people under arrest.  Right now Massachusetts is not among those states. Every state including Massachusetts, however, does collect DNA from people after they are convicted of crimes for purposes of identifying repeat criminal offenders.

There have been legislative proposals filed for several years here in Massachusetts that would mirror Maryland’s DNA collection law.  There have even been attempts to accomplish the same thing by attaching amendments to the state budget.   Opponents, including civil libertarians and defense attorneys, argue that this would be unconstitutional and an invasion of privacy.

Supporters of these bills have described them as simple and balanced – protecting the innocent while enhancing public safety.  A cheek swab test would be taken at the time of arrest and investigators could use that information for links to other crimes.  Supporters of these bills maintain that there is no risk associated with any of this for an innocent person.  They claim that DNA information would not be entered into any state database until after a felony conviction and would expunge the DNA evidence from any person ultimately found not guilty. 

Not so fast! Despite what some say, there is a whole lot of risk associated with DNA and its collection.  Here in Massachusetts we’ve enjoyed some recent victories in the area of DNA.  In 2012, Governor Patrick signed the DNA Access Bill, which gives individuals convicted of crimes a chance to use DNA evidence to prove their innocence and overturn their convictions if they meet certain criteria.  We’re proud of our work in this area.  The reality is that sometimes our justice system gets it completely wrong.  Anything that actually ensures public safety and brings a sense of confidence to our justice system is good. 

There is just no way that DNA evidence can be described as an incontrovertible link to innocence or guilt.  There is a common perception that DNA is faultless and flawless as far as forensic evidence goes.  It can help convict the guilty while freeing the innocent, but there are limits to the power of DNA.   DNA can be misused, human error can come into play and we are still learning these lessons from the Annie Dookhan catastrophe. Expansion of DNA databases may well be logical and appropriate to identify individuals who commit certain types of violent crimes. Moving beyond those purposes is where the rights and privacy of individuals must be weighed against the benefits of this type of expansion. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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