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Statehouse Update

This week both Governor Patrick and Speaker DeLeo outlined their priorities for the upcoming year.  In his final State of the Commonwealth on Tuesday night, Governor Patrick emphasized investments in education, innovation, and infrastructure. 

The next day, Speaker DeLeo addressed the entire House of Representatives, listing an increase in minimum wage coupled with business-friendly reforms, stricter gun control laws, and a domestic violence bill as three of his top issues. 

As we focus on legislative and budget activities at the Statehouse it’s important to realize that although this legislative term may appear uneventful from the outside, it has been full of activity.  Even without high-profile debates on big-issue bills there’s a lot going on. 

Take for instance, the fact that there has been an unprecedented amount of turnover in elected officials and leadership positions.  Recently, long time House Chair of the Joint Committee on the Judiciary, Representative Eugene O’Flaherty, announced his resignation to become corporation counsel to Boston Mayor Martin Walsh.  This leaves the House chairmanship open.  Meanwhile, Senator William Brownsberger has only held the Senate chairmanship of the Judiciary Committee for a matter of weeks. 

Other leadership positions currently vacant include the House second assistant majority leader and the chairmanship of the House Ethics Committee.  These positions will all be filled in the coming weeks.

Legislatively, the statehouse is poised to take action on a number of laws.  Significant bills addressing welfare reform, compounding pharmacies, and veterans services remain in conference committees.  Just last week, a group of lawmakers held a press conference in support of a juvenile justice bill comply with the Supreme Judicial Court’s ruling in Diatchenko.  The bill requires that juveniles convicted of first degree murder serve 35 years before parole eligibility. 

From a budget perspective – the Governor’s budget has been released and we now turn our attention to the House and Senate as they develop their budget numbers.  The House Ways & Means Budget will come first in early April, followed by House and Senate budgets in the following months.  A final budget will be ready by July 1st

All in all, every indication points to a very eventful next few months as staffing and leadership positions are filled and legislation and budget discussions come to the fore.     

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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A Quick Look At the Legislative Committee Structure

Like it or not, bills essentially live and die in committees.  For the uninitiated, the Massachusetts legislature’s committee system is composed of joint committees, standing committees and conference committees.  Each committee has a specific jurisdiction covering particular types of subject matter.  For example, bills relating to criminal justice issues typically go to the Joint Committee on the Judiciary, and those relating to the salaries and retirement of public employees are covered by the Joint Committee on Public Service. 

The process of a bill becoming law begins when a legislator files a proposal – often at the request of a constituent or a group like the BBA – with the respective clerk’s office.  It is a complicated process that includes some very basic steps: recording docket numbers in a book, assigning bill numbers, and printing the actual bill.  Eventually a bill finds its way to the relevant committee. 

The Massachusetts legislature has twenty-nine joint committees.  A joint committee has both a senate and house chair.  With the exception of the Joint Transportation Committee each joint committee has six senators and eleven representatives.  (The Joint Transportation Committee has seven senators and thirteen representatives.)

Each branch has separate standing committees limited to members from that branch.  For example, both the House and Senate each have their own committee on ways & means, post audit and oversight, and ethics and bonding. 

A conference committee comes into play only after the regular committee process has been completed.  This means that there has already been a public hearing but the House and Senate have passed different versions of the same bill.  Members from each branch are appointed to work on the conference committee.  The conference committee meets to hammer out an agreed upon or compromise version of the bill.  This compromise version must then return to both the House and Senate for final approval.

Almost all of the bills that the BBA works on in any given legislative session end up before the Joint Committee on the Judiciary.  This legislative session, the Judiciary Committee is chaired by veteran House Chair Eugene L. O’Flaherty and new Senate Chair Katherine Clark. 

Now two months into the current two-year legislative session, bills have been filed and committee assignments have been made.  The House and Senate Clerks have already referred approximately 4,500 bills to their respective committees.  Staff is now reviewing those bills and hearings will be scheduled soon. 

Stayed tuned! Next week’s post will provide a closer look at the Judiciary Committee.

 

 – Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Tale of Two Hearings

In a study in contrasts, the Judiciary Committee and the Revenue Committee held public hearings this week on issues of importance to the BBA.  The Judiciary Committee held a record breaking 20-minute hearing earlier this week on court reform, a BBA priority for at least the past 20 years.  Judiciary hearings are known to be lengthy and frequently last late into the night — with bills taking many months to work their way out of the committee.  After this week’s relatively brief hearing, the chair promised to swiftly move the bill along.  In fact, it is expected to be taken up by the full House next week.

The court reform bill on the Judiciary Committee’s agenda would replace the Chief Justice for Administration and Management with a professional administrator who would handle non-judicial functions.  There would also be a new “chief justice of the Trial Court,” to oversee strictly judicial matters.  Described by many as an historic and radical reshaping of the court department, the bill calls for other reforms that would impose guidelines on letters of recommendation for job candidates throughout state government and would require applicants for certain positions to take a screening exam.

The Revenue Committee’s public hearing held today was an entirely different story.  On the agenda was a proposal to raise revenue in an effort to reduce budget cuts.  This bill was described by supporters as making the tax system more equitable.  They testified that lower income people would see their tax rates dip and higher income people would see their tax rates increase.

Also on the Revenue Committee’s agenda was H 2559, An Act Relative to Continuing the Tax Base Rule for Property Acquired from Decedents, or the so-called income tax “step-up” bill filed by Representative Alice Peisch on behalf of the BBA.  The step-up bill, a detailed but very important piece of legislation, addresses a substantial yet hidden Massachusetts tax for successors to decedents’ property resulting from the change in the federal basis rules for 2010.

Unlike the Judiciary’s hearing which was held in a typical hearing room with plenty of seats for those in attendance, the Revenue hearing was standing room only.  The auditorium was filled with concerned citizens from across the state.

A great big hat tip to the BBA members who stood in line for thirty minutes just to get through the doors of the state house only to find the auditorium jam packed!  Citizens who support raising taxes for the wealthy made their presence known by loudly rustling pieces of yellow paper in unison.  Even with our sponsor by our side, we waited for 3 hours before being asked to wait some more.  So what happens next now that the bill has been publicly heard and is officially in play?  We’ll meet with Chairman Jay Kaufman and the Revenue Committee staff and go over the details of the BBA’s step-up bill.  This will provide us with the benefit of an open dialogue, and we won’t have to restrict our testimony to 3 minutes.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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More Relief for Consumers

More good news! An update increasing the dollar amounts for bankruptcy exemptions in Massachusetts made its way to the Governor Patrick’s desk just before New Years Eve. Even though January 5th marked the end of the 2009-2010 session, the governor still has 10 full days to act on the bills on his desk.  Any bill that goes without action for more than 10 days will receive a so-called pocket veto.  Today is day 7.

As Issue Spot noted just weeks ago, personal property exemptions have long been in desperate need of modernization.  According to the Massachusetts statute, MGL Chapter 235, section 34 —last updated more than 30 years ago — the intent of the original law was to balance the legal rights of creditors against a debtor’s need for basic necessities in order to maintain a home and earn a living. 

The present law exempts from seizure things like 2 cows, 12 sheep, 2 swine and 4 tons of hay, and this is almost laughable in the context of how most people earn their livings or look for employment in 2011. Updating this law would increase the value of property, earnings and savings exempt from seizure during debt collection, and also permit debtors to keep computers. As families and communities continue to struggle with the impact of the economic downturn, the process of debt collection needs to change to one that is fair, at the same time facilitating the ability of debtors to fulfill their obligations.

The BBA had filed a bill several years ago that would update exemptions. Not surprisingly many bankruptcy attorneys eventually came to view the dollar amounts in that original bill as obsolete. During the summer of 2010 the BBA’s Bankruptcy Public Policy Committee identified key exemptions in our draft that could be revised to better reflect the needs of today’s household.  It was their work this summer which really brought this issue into focus for us and kept it on our radar in the final days of session. 

The BBA’s Bankruptcy Public Policy Committee had urged us to work with the National Consumer Law Center, and to adopt the exemption amounts that were in the NCLC’s bill.  As we revised our own bill we learned that the NCLC’s bill had already made enormous progress.  Working with NCLC on this issue proved to be successful. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Lawyer Legislators: An Endangered Species?

The BBA values its relationship with the Massachusetts Legislature.  Lawyer legislators, in particular, understand the issues important to the private bar.  A quick look at the bills that the BBA filed this past session shows that almost all of them were filed by the chairs of the Joint Committee on the Judiciary.  The two chairs of that committee, by no coincidence, are lawyers.  Senator Cynthia Creem is a practicing domestic relations lawyer and Representative Eugene O’Flaherty is a criminal defense attorney.

In general, lawyer legislators are the exception to the rule.  It may surprise you to know that only 62 of the 200 legislators in the Massachusetts Legislature are attorneys.  That breaks down to 50 of the 160 House members and 12 of the 40 Senate members.  Law school, which was once a popular educational path to Beacon Hill, is no longer quite as common.  Today lawyer legislators are a minority among their colleagues.  This makes it increasingly more important to foster our relationships with those in the Legislature who understand the BBA’s issues like access to justice, criminal justice reform and even our complicated trusts & estates issues.  More and more we rely on lawyer legislators to educate and convince their non-lawyer colleagues that issues critical to the practice of law and the administration of justice demand action by Commonwealth.  It’s safe to say that the lawyer legislators we do have are overwhelmed at times with this task.

Recent events have shifted the political winds.  An independent political movement has shaken up some of the legislative races in Massachusetts this election season.  The next few weeks will be interesting.  Promising some turnover, there are 26 House seats and 8 Senate seats in which the incumbent is not running for reelection.  Of the 26 House members not seeking reelection, 10 are lawyers.  Half of those races don’t even feature a lawyer as a candidate.  On the Senate side, half of the 8 Senators not seeking reelection are lawyers and one of those races does not include a lawyer candidate.

Next Tuesday the 14th is the state primary and the general election is November 2nd.

-Kathleen M. Joyce
Government Relations Director
Boston Bar Association
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Trusts, Estates, Adopted Children, and Unintended Consequences

We’ve all had experiences where intentions and results are not always the same thing.  Assuming good faith, laws sometimes have unintended consequences.

Last year, legislation dealing with adopted children and trust instruments was passed that became known as Chapter 524 of the Acts of 2008. At the Boston Bar Association, warning bells went off among our Trusts and Estates Section.

A bit of background. . . What once seemed like a benign piece of narrowly written legislation had been filed numerous times over the years – without garnering much attention.  Public hearings were held and the bill would sometimes make its way out of committee or be put into a study order for further review.

During the last legislative session, this same bill finally found its way to a different committee whose jurisdiction seemingly had nothing to do with trusts and estates law. Following a public hearing, this bill received a favorable report from the committee.  The bill made its way through the process and eventually got signed into law by the Governor.

This sounds fine, but almost 10 months after the public hearing and the committee’s action, the bill was amended to include a group of people I’d find it hard to believe were contemplated by the original bill.

Much to the dismay of trusts and estates practioners, the new law actually changed the clearly understood rule of construction that applied to terms like “child,” “grandchild” and “issue” in wills, trusts and similar instruments executed before August 26, 1958.  (In 1958, the Legislature modernized our law to presume that adopted persons are included in these terms unless the instrument plainly states otherwise, and made the law applicable only to instruments executed after its effective date.)

Caught by surprise, the trusts and estates bar and banks and other professional trustees were left scrambling to review all pre-1958 trusts to determine which ones were affected by this sweeping change.

After analyzing the substance and implications of Chapter 524, the BBA and others began to work on a repeal of this new law.  The best we could do in the short term was secure a postponement of its implementation until July 1, 2010.  While this was a small victory, the process has begun again.

The BBA and others are still working on this issue. Amendment 367, filed in the House budget, will not only repeal chapter 524 but also create a retroactive, blanket immunity for trustees who either acted (or failed to act) in relation to it.

In the midst of a week of potentially tough votes, legislators are contemplating almost 870 amendments dealing with spending, revenue and reform.  Let’s hope that Amendment 367 will be adopted.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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