Monthly Archives: May 2014

More than a Job: Clerk of the Commonwealth Fran Kenneally

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Last week, the Administration of Justice and Litigation Sections sponsored a special lunchtime discussion with the new Clerk of the Commonwealth, Francis V. Kenneally.  Clerk Kenneally is new to this post, but not to the work it entails, having previously served as the third assistant and later first assistant Suffolk County Clerk.  Prior to serving as an assistant clerk, he practiced law in Maryland and Washington, D.C. and worked as a solo general practitioner in Quincy at the Kenneally Law Offices.  He also served as a court-appointed mediator in Quincy District Court.

He is still adjusting to his new role, noting the major difference between being a county court clerk and Clerk of the Commonwealth was the shift from a job that was “100% legal” to one that is “100% administrative.”  Clerk Kenneally relishes his new responsibilities.  While he enjoyed the role he played with county court cases, he is just as passionate about helping lawyers and managing the full court’s caseload – the crux of his new position.

To that end, Kenneally spoke about new initiatives and improvements the courts are implementing.  In April, the trial and appellate courts began a pilot e-filing project, which has been years in the making.  Although there is no definite time table, the system will be gradually carried out in the following phases:

  1. District Court in Worcester for civil cases
  2. Brighton Division of the Boston Municipal Court for civil cases
  3. Probate and Family Court in Essex for uncontested divorces
  4. Appeals Court panel cases
  5. SJC applications for direct and further appellate review

The system will be similar to the federal court PACER system, except that e-filed documents will be reviewed by the clerks before they appear on the docket.  Participation in the pilot program will be voluntary and will require a nominal convenience fee in addition to any applicable filing fee.

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Kenneally also spoke about the SJC’s pilot program on rebuttal time – permitting appellants to reserve no more than five minutes for rebuttal at the outset of oral arguments.  The court implemented the pilot program for the February and March sittings of the full court.  Kenneally researched all state rules and statutes and discovered that Massachusetts was the only state without rebuttal at oral argument.  During the pilot he estimated that attorneys requested rebuttal time in 85 to 90 percent of cases, and he thought the court found it helpful but is uncertain whether rebuttal will become a permanent part of oral argument in the future.

After answering a number of audience questions, Clerk Kenneally gave some advice and provided practice tips which would be helpful to the lawyers and, in turn, assist the court in its review of matters scheduled for argument.

Include lower court decisions and relevant statutes in your addendumMass R.A.P. 16 requires the addendum to contain pertinent lower court findings or memoranda of decision and the relevant statutes, rules, and regulations.  The Justices rely upon compliance with the rule when reviewing briefs in preparation for oral argument.  Audience members were curious whether the addendum should include all the statutes cited in the brief, or most, or only the most important ones.  Clerk Kenneally said to err on the side of over-inclusion, but noted that it was a judgment call for lawyers.  He welcomed anyone with further questions to contact his office about specific cases for further guidance.

Keep briefs brief.  The required page limit for briefs is 50 pages, but Kenneally has seen briefs over 70 pages.  While he knows that at times a longer brief is necessary from the lawyer’s perspective, the rule states that a motion to exceed 50 pages will not be granted except for extraordinary reasons.  Again, he explained, if lawyers have specific concerns with respect to their case, they are welcome to call him.

Submit amicus briefs earlyMass R.A.P. 17 permits the filing of amicus briefs either by leave of the appellate court or a single justice granted on motion or at the request of the appellate court.  The court has often relaxed the rule’s prescribed time for filing amicus briefs to two weeks before the first day of sitting in which the case is scheduled for argument.  Nonetheless, amicus briefs are often untimely filed despite the relaxed application of the rule and are at times received well within two weeks of the first day of the sitting.  The earlier the court receives these amicus briefs, the more helpful they may be.

Clerk Kenneally ended by noting he is a firm believer in getting to work early, staying late, working on the weekend if needed, and even checking and responding to work email messages after court hours.  He is determined to answer any attorney questions or concerns in a timely manner and encourages attorneys to reach out if they have something to ask or say.  He even encouraged us to include his contact information here:

Fax: (617) 557-1145

Phone: (617) 557-1188

Email: francis.kenneally@sjc.state.ma.us

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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A Judge’s Judge: Justice Gants’s Governor’s Council Hearing

Wednesday’s Governor’s Council meeting featured a full day of testimony for Supreme Judicial Court chief justice nominee Justice Ralph Gants.  Gants, who is the youngest member of the court, could serve for 10 years if approved until he turns 70 in 2024.  Retiring Chief Justice Roderick Ireland has been chief since December 2010 and plans to retire on July 25th. The SJC’s new term starts in September.

Justice Gants chairs the Access to Justice Commission.  In this role, he has worked hard to find ways to provide everyone with equal ability to have their cases heard in court, regardless of their income or native language.  He was an advocate for the creation of soon-to-be-installed pilot court service centers, which will help unrepresented litigants find their way through the court system and he is a leader in exploring ways to eliminate the justice gap, such as through law school incubator programs.

Members of the Governor’s Council had broad and wide-ranging questions for the individuals who testified.  One Councilor commented that Justice Gants would be chief for a decade without review and questioned whether or not the chief justice should face further review or re-nomination procedures like the chief judges of the lower courts.  Another Councilor raised the issue of whether or not justices of the SJC should contribute to their own pensions.  A third asked one of Justice Gants’s Access to Justice Commission peers about the potential for mandatory pro bono in Massachusetts. 

Witnesses at Wednesday’s hearing included SJC Chief Roderick Ireland, Greater Boston Legal Services Executive Director Jacqui Bowman, Chief Justice of the Superior Court Barbara Rouse, several other judges and several people who have worked directly for Justice Gants.  They raved about Justice Gants’s intellect, work ethic, humor, and commitment to access to justice issues.  He was called an independent and open-minded thinker who values the opinions of others and has a deft ability to connect with everyone from indigent pro se litigants to court staffers, his peers on the bench, and high profile attorneys. 

Chief Justice Barbara Rouse summed up Justice Gants’s well-rounded persona when she spoke of his time serving as Administrative Justice of the Superior Court’s Business Litigation Session.  This session focuses on complex business issues and is known for the challenges it presents to judges.  It is extremely paper intensive – litigants often wheel in bankers’ boxes filled with papers for hearings.  It requires an exacting judge capable of reading masses of documents, understanding complicated business issues and handling the egos of some of the nation’s top attorneys. 

Unsurprisingly, Justice Gants was a standout, helping to grow the business litigation session into the standard for other states to emulate.  Some companies even incorporate the business litigation session into contracts as their default chosen forum for disputes.  Yet, at this time, Justice Gants remained equally committed to hearing pro se cases in other court sessions and also served as an emergency judge when needed.  Despite having one of the most labor-intensive judicial seats in a rapidly growing and renowned session, he did not believe he was owed any special privilege.  His commitment both to the courts and to underprivileged litigants remained unwavering.

Testimony for and against Justice Gants lasted all day and will continue next Wednesday. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Senate Budget Update

The Senate Ways & Means Committee released its budget this week.  Read our budget breakdown here.  Here’s what we are watching in the Senate budget:

  • MLAC was level funded at $13 million; this is $4 million below their request of $17 million.  Senator William Brownsberger and Senator Cynthia Creem are filing an amendment requesting an increase of this budget line to $17 million.
  • The Trial Court received approximately $617 million, which is about $9 million more than the House budget.  This difference will have to be worked out in a budget conference committee.
  • CPCS received approximately $180 million.  While this funding amount is substantially higher than the funding it received in 2013, the final FY 2014 General Appropriations Act, and this year’s FY2015 House budget recommendation, it falls short of CPCS’s budget request.  This amount does not provide any additional funding for increased attorney compensation.  Several legislators are considering filing amendments to increase this line item.

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Difficult Decisions: Statehouse Juvenile Justice Hearing

On the same day Senate Ways & Means Committee released its FY15 budget, the Joint Committee on the Judiciary held a hearing on Juvenile Justice issues.  At first glance, the Judiciary Committee’s hearing agenda appeared light, containing only ten bills.  Upon closer examination of the bills on the agenda, it was no surprise that the hearing room was packed.  The Essex and Suffolk County District Attorneys, a former Chief Justice of the Massachusetts Juvenile Court, Senators Bruce Tarr, Barry Finegold, and Karen Spilka, Representative John Keenan, and the Chairman of the Massachusetts Juvenile Justice Advisory Committee took part in the hearing.   

In late 2013, the BBA’s Council unanimously approved a set of juvenile justice principles supporting the elimination of juvenile life without parole sentences.   Shortly thereafter, the SJC ruled in the Diatchenko case that such sentences were indeed unconstitutional.  Read more about the case and our position here

The SJC decision specifically calls for juvenile offenders to receive a “meaningful opportunity” for parole, but leaves it to the legislature to define that term.  Many of the bills at Wednesday’s hearing focused on different ways to define this statement.  There was plenty of debate at the hearing and various bills on the docket call for anywhere from 10 to 35 years before juveniles convicted of first degree murder become eligible for parole. 

The bills also include various provisions on parole considerations for these offenders.  Listening to the testimony, the following issues came to the fore for legislative consideration:

  • Fairness –  This was the most popular word of the hearing.  What length of time until parole eligibility is fair?  Legislators and panelists alike raised fairness considerations for victims and their families, society generally and specific communities, as well as the defendant.  There were multiple levels of fairness considerations for defendants.   Some testifiers argued for long periods of time due to the heinous nature of these crimes.  Others asked for relative leniency due to the defendant’s age, underdeveloped brains, and potential felony murder conviction.  Multiple testifiers noted that more than 70% of those currently serving juvenile life sentences had co-defendants, 75% of whom are adults.  Furthermore, 30% of those juveniles in prison for life were sentenced to felony-murder, meaning they accompanied another who did the actual killing, and in most cases the older person served a shorter sentence after accepting a plea bargain.
  • 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.

These are not easy issues, and we will pay close attention as these bills progress through the legislative process.   

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Cell Phones, Searches, and Seizures: How a Boston Case Will Establish Precedent for High-Tech Devices under the Fourth Amendment

Last Tuesday, the U.S. Supreme Court heard oral argument in a potentially groundbreaking case with close ties to Boston.  In United States v. Wurie, a case originating in South Boston, the Justices will interpret the Fourth Amendment, which prohibits unreasonable search and seizure.  In 2007, Brima Wurie was arrested for selling drugs in a Dorchester Avenue parking lot.  After he was picked up by the police, his cell phone rang from a number identified as his home.  The police traced the number to a house which they then searched with a warrant, finding drugs and a gun.

The issue is whether the police violated the Fourth Amendment by “opening” Wurie’s cell phone.  The Fourth Amendment traces its roots to the American Revolution, when British soldiers were permitted to search and seize essentially anyone for any reason.  Protection against unreasonable search and seizure has become a founding principle of our Constitution and our way of life, protecting our safety and privacy, even for those accused of crimes.

There is a great deal of case law defining just what is and isn’t reasonable in the area of search and seizure.  Many warrantless searches are allowed in connection with arrests in order to protect officers and prevent the destruction of evidence.  However, cell phones and other hi-tech devices complicate the issue because of the massive amounts of data they contain and their advanced capabilities, such as activating a potentially dangerous remote device.  Complicating matters even further, there is technology available that can remotely wipe a cell phone’s memory, so police wanting to search a phone may have to carry it in special bags or try to access it in specially equipped rooms that would block such signals.  There are questions about the reliability of this type of technology and the infrastructural capabilities of police forces around the country to address them.

At oral argument, the federal government argued for a bright line rule – that cell phones should be subject to unwarranted searches just like an arrestee’s wallet or personal effects.  The Justices seemed reluctant to go this far, noting the extreme amount of information, much of it highly personal, that police officers could access for even the most minor crime.  However, they also recognized that this information could be useful for police in solving and preventing crime and that criminals often make use of such technology to further their illicit ends.  Thus, the Justices spent much of oral argument discussing potential compromises, though none were forthcoming at the end of their debate.

We look forward to a decision by the end of the summer to address this issue – one that will balance personal privacy with public safety.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Budget Update

Following up on our previous FY15 budget post, the House approved an amendment on Wednesday, April 30, 2014 increasing the MLAC budget line by $2 million, bringing the total funding amount to $15 million.  Here is the MLAC funding breakdown so far: 

  • MLAC Budget Request: $17 million
  • House Budget: $15 million
  • House Ways and Means Budget: $13 million
  • Governor’s Budget: $14 million

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Spirit of Boston

Boston Mayor Martin J. Walsh made “spirit” the focal point of his speech at the Greater Boston Chamber of Commerce’s Government Affairs Forum this week.  Just over 100 days into his tenure as Mayor, he spoke with pride and awe about serving as one of Boston’s chief public servants.

He described his four priorities:

Strengthening our economy and creating jobs,

Improving public safety and stopping gun violence

Ensuring our public schools help every child succeed, and,

Increasing trust and transparency in city government.

He also talked about some of the challenges he’s faced in his first few months – the tragic loss of a child to gun violence, the loss of two firefighters in the Beacon Street fire, and a Boston police officer who died on duty.

Mayor Walsh emphasized the importance of getting more summer jobs for Boston’s youth.  He asked every business in the room to hire a Boston public school student for the summer in order to provide meaningful opportunities for our city’s young people.  There are often young people that do not have someone at home to guide and direct them, and Boston businesses can make the difference in a young person’s life.  Mayor Walsh stressed that we need to have our next generation of Boston’s leaders reflect the diversity of the city.  While recognizing the many Boston businesses that have already supported the summer jobs program, he talked about the importance of continuing the atmosphere of business and city collaboration.  We are honored to assist law firms in facilitating their participation in this program.

Mayor Walsh envisions changes in City Hall that will support business, including increasing certainty and transparency.  He hopes to give everyone a seat at the table by opening up regulation processes so that the city will be more partner than adversary.  He touted development through ongoing construction projects in downtown Boston and surrounding communities as well as increasing the use of advanced technology, spearheaded by the city’s newest position, Chief Digital Officer.

Finally, the new Mayor ended his speech by telling the stories of three Boston companies:

  • Liberty Mutual – started in Boston by three people looking to pool their insurance costs and now employs more than 50,000
  • Wayfair.com – founded in a South End apartment and now an online furniture company valued at more than $1 billion
  • The yet-to-be-formed company – it exists as only as an idea in the minds of a group of college students in the Boston area.  They need access to capital, a pool of smart and talented employees, world class infrastructure, housing options, and a productive partner in city hall to succeed –

The spirit of Boston is what makes these stories possible and the commitment to progress that will make them endure.

Our members infuse the BBA with the impressive spirit of the Boston legal community.  They provide constant reminders of why the city is a paragon of ethical practice, innovative litigation, and charitable giving both in money and service by firms, corporations, and practitioners devoted to their communities.

We look forward to serving the legal community and promoting its continued evolution to meet the needs of these businesses and contribute to our dynamic, thriving city.

– Kathleen Joyce
Government Relations Director
Boston Bar Association
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