Tag Archives: Governor’s Council

End of Session Rush

July 31st marks the end of formal sessions for the second half of the two-year 2013-2014 legislative session.  With only 56 days left, the Legislature will continue to meet in informal session through December.  This generally means that the legislature will only consider non-controversial matters until the next two-year legislative session begins again in January 2015. 

There’s a lot of work to be done in the next eight weeks – and state budget conferees met for the first time on Tuesday.  In addition to the two Chairs of the Joint Committee on Ways and Means, the other members of the conference committee are Representatives Kulik and deMacedo and Senators Flanagan and Ross.  This group is charged with devising a consensus fiscal 2015 budget based on the previously approved House and Senate budgets.  One issue before the conference committee is funding for the MLAC line item.  The House recommended $15 million and the Senate recommended $14 million.  We hope that the conferees will decide to hold onto the House recommended appropriation of $15 million.  The final recommendations of the conference committee are not subject to amendments when presented to the House and Senate for final approval. 

While the conference committees work, the legislative committees –including the Joint Committee on the Judiciary – are reviewing the hundreds of bills that are still active before them.  In the upcoming weeks we hope to see some movement on bills that we have been working on all session.   

Governor’s Council Update

Last week was the second day of Justice Ralph Gants’s Governor’s Council hearing on his nomination for Chief Justice of the SJC.  This provided Justice Gants an opportunity to directly address the Governor’s Councilors.  He began with a presentation, talking about his family (the above video starts about a minute into his speech, as he discusses his mother), his love of baseball, his work on access to justice issues, and his growth as an individual and jurist.  He broke his judicial philosophy down to the following three points:

  • It is important to look at the language of the statute along with the legislative history and its context in order to fulfill legislators’ wishes.
  • The Constitution is a “living, breathing” document that remains relevant with modern interpretations.
  • Society needs clear lines in administering law in the real world and the assurance of actual justice, not just the illusion of justice.

Questions from the Governor’s Councilors took the rest of the day.  Topics ranged from the specifics of court administration to exploring the need for oversight of the Chief Justice of the SJC, the Chief Justice’s role as a lobbyist for the Courts, and Gants’s philosophical opinions on the death penalty, gay marriage, abortion, the citizen petition process, and drug addiction.

This week was the third day of his confirmation hearing before the Governor’s Council.  Justice Gants was asked about recent SJC decisions on juvenile life without parole as well as his position on privacy issues that might be raised in gun reform legislation. 

Speaker’s Gun Control Bill

Speaker Robert DeLeo’s gun violence prevention legislation, House Bill 4121, was the subject of a public hearing this week and is expected to be taken up by the full House of Representatives as early as next week.  Senate President Therese Murray has also said publicly that the Senate will debate gun reform before the session ends. 

The BBA’s Gun Control Working Group also conducted a lengthy study on gun reform.  The BBA’s group met between April and July 2013, and reviewed all of the then-filed gun control legislation, roughly 60 bills.  The BBA’s Working Group was comprised of attorneys with diverse backgrounds including gun owners, civil libertarians, a prosecutor, criminal defense attorneys, a law professor, and health law experts.  The Working Group came up with a set of principles designed be a lens through which any new gun law should be considered.    

We will continue to monitor the gun control bill as it goes through the legislative process and the nomination process for the new SJC chief justice.  Justice Gants’s nomination could come up for a vote as early as June 11.   

– 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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The Significance of Pro Bono Service

Pro bono is an important part of every lawyer’s career, so when a judicial candidate’s pro bono work came into question at a recent Governor’s Council hearing, we took issue.  An attorney’s commitment to pro bono should be applauded and not criticized.  Some would say attorneys have a professional obligation to do pro bono work because upholding fairness, credibility and impartiality of our justice system is the right thing to do, especially for those who cannot otherwise afford an attorney. 

Lawyers have a unique skill set and knowledge of our justice system that can be used to provide access to justice for those who might not otherwise have it in both the civil and criminal arenas.  This sometimes means representing unpopular clients or causes, regardless of the allegations.  It can also mean filing an amicus brief involving vital legal principles, without regard to the political climate.

As the great Justice Felix Frankfurter once said, “it is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” Lawyers, often providing their skills on a pro bono basis, ensure the integrity of the adversarial process.  The BBA’s first president, John Adams, gained a certain degree of notoriety and, eventually, the utmost respect, for his work defending British soldiers charged with the murder of patriots at the Boston Massacre. 

The BBA is proud to bestow awards on lawyers performing pro bono service, and is especially cognizant of the fact that advocating on behalf of the criminally accused or people on the margins of society requiring assistance with homelessness, mental illness, and Social Security may be misunderstood in quarters outside bar associations, making these attorneys the targets of criticism.  Unfortunately, some people confuse the preservation of individual rights with advocacy for a political cause, but the bottom line is that acccess to justice for all is one of the pillars of our justice system and of our democracy.  Lawyers should not be confused with their clients, and pro bono work should not be a mark of shame for any lawyer, and should never disqualify a nominee from judicial service.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Con Con: No News is Good News

On June 6th, the MA Legislature convened a constitutional convention for the fifth time since the current legislative session began in January 2011.  During each two-year legislative session, members of the House and Senate meet jointly to consider proposed changes to Massachusetts’ Constitution.  The constitutional convention is presided over by the Senate President.  Senators and Representatives meet in the House Chamber to debate and vote on various proposals.  In order for a proposal to get on the constitutional convention’s agenda, proposals must be reported out of legislative committees with either a favorable or unfavorable recommendation.

Recent constitutional conventions – May 11, 2011, July 13, 2011, October 12, 2011 and March 14, 2012 – have recessed quickly without action on any of the pending proposals on the agenda.  At the constitutional convention on June 6th, House and Senate members agreed to recess for three more months indicating little appetite on the legislature’s part to debate or consider any of the amendments on the agenda.  Since constitutional amendments must win approval from two consecutive Legislatures before they advance, it is unlikely that we will see any changes to the state constitution soon.

The current constitutional convention’s agenda consists of 19 amendments – including a proposal for a two-year state budget process, a call for term limits for judges, three proposals that would prohibit eminent domain takings and four proposals that would permanently abolish the Governor’s Council.  Each of these proposals would be a drastic change to the state constitution.

The proposal relative to term limits for judges would require a judge to go before the Governor’s Council every seven years to be eligible for reappointment.  Whether this proposal is politically motivated or considered by some as sound policy is irrelevant.  Massachusetts needs its judges to be independent and impartial.  We want our judges to make fair decisions based on the facts and not on whether they might be up for review and reappointment.

The Governor’s Council – as we’ve written about in Issue Spot – continues to be a topic of much debate.  Some legislators have supported an amendment to abolish the eight-member Governor’s Council and transfer its functions to an independent commission.   Councillors are elected every two years, one each from eight districts.  Among other things, the Governor’s Council is tasked with vetting the governor’s judicial nominees and appointees to the state parole board.  Today, the primary function of the Governor’s Council is to review judicial nominations.  Many recent judicial nomination hearings have made headlines for their contentious nature and close votes.

Whether abolishing the Governor’s Council is a good idea or a bad idea, the Legislature would have to advance the proposal to the next legislative session in order for this amendment to succeed.   In fact, there is no indication that any of the amendments before the constitutional convention will be approved this session.  The process for amending the state constitution is deliberately arduous to preserve fundamental principles and prevent arbitrary changes.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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