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Access to DNA Bill to Gov’s Desk

Wednesday was an eventful day on the House floor.  Early Tuesday evening, the BBA was notified that the Access to DNA bill (S 1987) would be taken up by the full House the very next day.  As we reported in Issue Spot last summer, the Senate unanimously passed the bill in July.  With yesterday’s passage in the House, the bill is now on its way to Governor Patrick’s desk.

Before the DNA bill was taken up, House Speaker Robert DeLeo gave his annual address to the full House (read text or watch video).  The Speaker used the opportunity to outline his agenda for the remainder of the session.  Shortly after the Speaker made his remarks, House Chairman of the Judiciary Committee Eugene O’Flaherty introduced the DNA bill.  Chairman O’Flaherty, who in past sessions actually sponsored the DNA bill, has always been a strong advocate of this legislation.  Chairman O’Flaherty described the legislation as “monumental,” and went on to say that “what is in front of you today is a piece of legislation all of us can be very proud of.”

O’Flaherty then introduced his Vice-Chairman, John Fernandes, who sponsored the bill this session in the House.  He described the story of Kenneth Waters who spent 18 years in jail for a crime he did not commit and then outlined the provisions of the bill.  Representative Fernandes noted that this bill has been around for several legislative sessions but it was the BBA’s Task Force (Issue Spot wrote about them here) that was able to carve out the objections and create a bill that was acceptable to everyone.  S 1987 has the support of the Massachusetts Attorney General, the Massachusetts Chiefs of Police Association and most of the District Attorneys.

As with any new legislation, people want to know “what’s it going to cost?”  Fortunately, this bill will cost the state very little.  The bill requires that any individual filing a motion for testing bear the cost – to the extent they are able to – and there is federal funding through the Department of Justice that specifically off-sets the costs of post-conviction DNA testing.

Rep. Fernandes said that whatever the members’ doubts have been about costs or impact, it has to be overcome by our obligation to get it right.  He gave a few quick stats:

  • There have been over 280 cases across the US in which post-conviction access to DNA testing has led to releases or reversals of decisions – some of which have led to the conviction of the actual perpetrator.
  • 17 cases involved persons on death row.
  • The average length of time served by those wrongfully convicted is 13 years.

Rep. Fernandes concluded by saying, “We hold freedom highest among the rights that we cherish.  One day, one week, one year, is too long for anybody [who is wrongfully convicted] to be held in prison.”

Following the remarks on the House floor, the DNA bill passed unanimously.  Since there were no changes from the version the Senate passed this summer, the bill goes directly to the Governor’s desk and he has 10 days to sign it.  Assuming the Governor signs it – and indications we have suggest he will – the legislation will become law after 90 days.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Practictioners’ Perspectives on the Alimony Reform Act

With the Alimony Reform Act of 2011 poised for passage, we thought we’d ask some of our members to share their reactions on the coming changes.  Here are the independent thoughts of the expert family law practitioners we canvassed:

Nan Elder – Bowman Moos & Elder, LLP

I think the principle benefit of the impending statutory change lies in the fact that it provides some scaffolding around which alimony awards can be negotiated and structured.  But the amount is only “some,” and the structure only “scaffolding” because the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion – and it will take some years and quite a bit of litigation and appellate work to better clarify the full structural outlines.  For shorter term marriages, it may provide more guidance and definition sooner, and thus enable more ready resolution of them.   Longer term marriages will, however, quite probably still raise significant issues regarding its application.  This will be especially true in both new divorces and modifications for those “traditional” cases where one spouse has been the primary wage or salary earner and the other the caretaker and homemaker, often in expectation of, reliance on, and even with the express understanding between spouses of, the indefinite continuation of this family model.

As with any change of such magnitude, the transition will be arduous in a number of respects.   For litigants, it presents both an opportunity for relief and resolution for some and a source of reopening of wounds and the burdensome expense of extended or renewed litigation for others.  For lawyers, it presents an opportunity for some really creative thinking and lawyering, as well as for providing a framework for advising clients – but cynics might also suggest it presents an unexpected or unwarranted bonanza of new work.  For the courts, its implementation risks further burdening an already broken system.  Although the legislation staggers the availability of modifications of alimony judgments predating its effective date in March 2012, most practitioners I’ve talked with expect a flood of requests in addition to the uncertainty and litigation that will inevitably ensue as the statutory structure is fleshed out.

While the transition and implementation may well be both lengthy and rocky, the end result will hopefully provide some measure of clarity, if not certainty, especially for shorter term marriages.

Jennifer Rivera-Ulwick – Middlesex Probate & Family Court

The benefit of the proposed changes is the potential sense of predictability and consistency in determining alimony which will allow people to resolve this issue without seeking court intervention at the trial level.   Like the Child Support Guidelines, the law will provide a roadmap of sorts in formulating the appropriate alimony award, if any, based on the circumstances of the parties.  Given the new scheme for setting the duration, amount and form of alimony awards, I anticipate not only a decrease in the number of cases tried over alimony but also an increase in modifications being filed with the court to adjust prior alimony orders in accordance with the new legislation.  The roll-out dates, which determine when a modification may be filed as a result of the change in the law, will initially help relieve the courts from being overburdened with modification filings although the number of filings may depend in part on the level of awareness of the changes on the part of alimony obligors which is sure to increase each year after the law becomes effective.

Anita Robboy – Prince, Lobel & Tye, LLP

Massachusetts is long overdue for a critical look at Section 34 as our Commonwealth is very much out of line with nearly every state in the duration of alimony awards.  The Bill has clear guidelines regarding expected points of termination.  The major change will be that attorneys can no longer state that a Probate and Family Court judge lacks the power to terminate alimony.  The Bill specifically enables judges to limit the duration of alimony and to amend prior judgments that had no termination point.  The interplay between alimony awards, if any, and the division of assets is forever altered.  The recipient of alimony has lost an important ‘chit’: the value of future alimony.  The payor can rely on obtaining termination upon the happening of certain events, such as age, the length of alimony already received in relation to the marriage, and cohabitation.  Counsel must now advise clients that alimony comes, if at all, in a variety of flavors.  It will be important to strategize which form of alimony is applicable and/or most advantageous.

John Fiske – Healy, Fiske, Richmond & Matthew

As a mediator, I see the greatest benefit of the alimony bill as analogous to the Child Support Guidelines: it gives clients a good idea of what a court would do without their having to go to court.  In my 32 years of mediating divorces, the uncertainty of the length of alimony has been the most challenging obstacle for many husbands and wives.

I will tell [my clients] I want them to make informed choices, and to read the law, or any available summary of the law including my own, to get an idea of what a court would do before they choose their own solution.  The outcome of many of my cases would not be very different [had the reforms been in place previously], but the process of getting there will be more efficient. The outcome in some of my cases will be different, probably reducing the number of cases where clients define alimony for a certain period and then agree to leave open the question of whether to continue alimony in some amount after that date.  This law will be beneficial to just about everybody: clients, children, lawyers, mediators, judges, probation officers and financial planners for example.

-Michael Bouton

Government Relations Department

Boston Bar Association

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Hearing the Call for Alimony Reform

“Fair,” “Predictable,” “Balanced,” and “Much Anticipated” were the words used to describe An Act to Reform and Improve Alimony, at yesterday’s Judiciary Committee hearing in standing room only Gardner Auditorium. For the BBA, which has worked long and hard on this issue, it was a day that underscored the difference practicing attorneys can make when they volunteer their time to help draft fair and impartial legislation.

Senator Candaras and Representative Fernandes could not have been more gracious in their praise of those lawyers who endured fourteen months of marathon sessions in an effort to craft an impartial and fair law.  The BBA’s Family Law Section Co-Chair, Kelly Leighton, was the BBA’s liaison to the 14-person Legislative Alimony Task Force that worked for months behind closed doors on this legislation.

Through their public testimony, members of the Task Force described the process and what it would mean to divorcing parties inMassachusetts.  And we learned what happened in those private meetings yesterday.  Kelly Leighton testified that “the only thing we could agree on at the start of the process was that the law needed to be changed.”  It was emphasized that nobody got everything they sought and everyone gave up something they wanted.

The Task Force fittingly gave credit to the leadership of both Senator Candaras and Representative Fernandes.  They assembled representatives from groups often at odds on this issue and managed to get them to work towards a simple goal – making the Massachusettsalimony law better.  Also at the table at those meetings was Chief Justice Paula Carey of the Probate and Family Court.  Her guidance was critical to the process.  She was generous with her time and the Task Force was careful to not recommend anything that would adversely impact the Probate & Family Court.

The Task Force didn’t just spin their wheels…they did real work.  They incorporated divergent views and different perspectives to produce what has been heralded as a landmark statute that will modernize the laws guiding alimony payments and grant judges more discretion in their decisions.

Senator Candaras interpreted the participation of the individuals on the Task Force as an opportunity to serve.  She described it as a great experience and recognized the participants for generously donating hundreds of hour of professional time.  Now the Legislature must pass this bill.   With its broad support there’s buzz that it could happen this spring.

Yesterday’s hearing also focused on other issues near and dear to the BBA – including  the repeal of the adopted children statute (H 2262), the Massachusetts Uniform Trust Code (H 2261 and S 688) and technical corrections to the Massachusetts Probate Code (S 733).  I was impressed with the attention the members of the Judiciary Committee gave to each person who was called to testify and I was especially impressed with our own members who sat for hours listening to others testify on the various issues on yesterday’s agenda.  Our last bill to be heard, the technical corrections to the probate code, was called at 6:30 p.m. – five and a half hours after the hearing started.

Advocacy is a long process involving many talented volunteers, thoughtful legislators and lengthy hearings.  This is what defines life in a constitutional democracy.

-Kathleen Joyce

Government Relations Director

BostonBar 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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Alimony Reform . . . Seeing the Light at the End of the Tunnel

At its April meeting, the BBA Council voted to support S 665, “An Act to Reform and Improve Alimony,” co-sponsored by Senator Gale Candaras and Representative John Fernandes.  This bill, the result of a Herculean effort led by the Legislative Alimony Reform Task Force, is the result of thoughtful discussion and negotiation.  The final product provides a structure that gives durational and amount limits to alimony orders while giving the court the ability to consider the facts and circumstances of each case, which is key to preserving judicial discretion within the framework of reform.  Our Family Law Section has taken it one step further and has provided additional comments for the Legislature to consider.

The Legislative Alimony Reform Task Force was convened to bring all parties with an interest in alimony reform together in one room to collaborate on a single, compromise piece of legislation. The Task Force constituted one of the broadest groups of family law stakeholders possible, including Chief Justice Paula Carey of the Probate and Family Court in an advisory capacity, and representatives from the BBA, the Massachusetts Bar Association, the Women’s Bar Association, father’s rights groups and private family law practitioners.  Members met for marathon sessions over fourteen months under strict confidentiality  —  trudging through various alimony reform proposals already in existence and working together on each piece of the new legislation.  The BBA’s Family Law co-chair, Kelly Leighton, acted as the BBA’s liaison throughout the process.

The call to reform alimony laws in Massachusetts has gotten louder and louder over the last several years.  These laws have a direct impact on the lives and livelihoods of so many people throughout the Commonwealth.  The current laws give little discretion to judges to set a termination date on alimony payments absent a significant change in the lives of the two parties. Often there is little consistency in alimony rulings because of the ambiguities in the current statutes.

We aren’t the first group calling for change in this area of the law, and it was only after our collaboration with other groups that it appears Massachusetts will finally benefit from legislative reform.  Our work on this started years ago, when the BBA and the MBA convened a joint task force to study the alimony issue and make recommendations.  In 2010 the BBA endorsed the report of that joint task force, which was utilized in the drafting of “An Act to Reform and Improve Alimony.”

Although the alimony reform process may still take some time, it certainly looks like Massachusetts will finally have an alimony system which is consistent while allowing for judicial discretion.  Legislators rely on groups like the BBA to help frame issues in a way that can bring about meaningful change.  The next step in the process is to weigh in publicly with our support when the Judiciary Committee schedules a public hearing on this issue.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Here Comes the House Budget. . . Now What?

When all is said and done, what is the cost of trying to provide access to justice for all?

Next Wednesday, April 13th, the Massachusetts House of Representatives will release its version of the state budget.  The budget is much more than a list of dollar figures for particular programs. Rather it’s actually a reflection of decisions that help frame the values and priorities for the state.  The decisions reflected in the state budget affect the everyday lives of Massachusetts residents and have a strong bearing on the quality of education in Massachusetts, the level of health care services, safety of communities and so much more.

The budget is the most important bill to move through the Legislature each year.  The BBA has been working for months to advocate for level funding for legal services and the state courts while continuing to urge adequate funding for CPCS and the District Attorneys as well. To be an effective advocate, it is important to understand how and when to make an impact on the process, and ultimately the outcome.  This means knowing what to look for when the budget is posted online next week and how to respond.

Our 3 step state budget review process is:

1) Check the line items for the specific accounts the BBA has been working on.  For example, we are hoping to see that the Massachusetts Legal Assistance Corporation line item 0321-1600 will be level funded at $9.5 million.

2) Check the language of the line items for any earmarks.  Earmarks sometimes appear in a budget item and direct a portion of the money to a particular program.

3) Read the outside sections.  These sections often affect appropriations in the budget or contain policy that would make permanent changes in the General Laws.

The BBA has been anticipating the release of the budget.  For the past two months, we have been campaigning alongside our partners at the Equal Justice Coalition for adequate funding for legal services.  We have been working closely with the Judiciary to determine how best we can help them make their case that adequate funding for the courts is essential to everyone in Massachusetts.  BBA sections have reviewed and studied the proposal relative to the Probation Department and CPCS that was included in the Governor’s budget.  We know that the Governor’s transfer of CPCS to the Executive Branch means those line items have been stricken from the Judiciary accounts.  But public statements from the Speaker indicate the House budget will keep CPCS in the Judiciary.

 No, we’re not done.  Once the House budget is released, we will analyze the priorities articulated and develop an appropriate response.  For the BBA to make an impact on the budget process we have an obligation to speak up in support of our partners and serve as a resource for the growing number of legislators who are not as familiar with some of these issues as they might like.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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We’re Making Progress in Debt Collection Reform

As a membership organization with nearly 10,000 members, issues of public policy and opportunities to comment and suggest reforms routinely present themselves to the Boston Bar Association (BBA).  The BBA Council has adopted policy positions on a wide variety of issues.  Once a position has been approved, many of our members wonder, “What now?”

The answer usually depends on timing – the timing of Council approval in relation to what the Legislature is focusing on at that particular moment.  The salience of an issue often dictates how much traction it will have in the Legislature and other governmental agencies.  Unfortunately, forecasting what will capture the attention of government officials is more of an art than a science.  So advancing BBA positions demands patience and perseverance.

Just one example. . .When word came to the BBA last Friday that the Attorney General was submitting proposed updates to its Debt Collection Regulations to provide stronger consumer protections, we were thrilled.  As noted in Issue Spot last August, the BBA’s Consumer Finance Committee wrote a report proposing updates to the current regulations to reflect the real world today.

Many of the proposed updates submitted by the BBA group are found in the proposal submitted by the Attorney General’s Office.  These changes will provide substantial relief for debtors that have been subjected to unfair collection practices not covered by the current regulations.

Before the regulations are updated, there is a comment period and a hearing scheduled on May 18th.  Members of the BBA Consumer Finance Committee will present testimony on the Attorney General’s proposal to express the BBA’s support for these important modernizations of debt collection practices.  The BBA is proud to work with the Attorney General’s Office and all other agencies where the expertise of our membership can be useful.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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