Tag Archives: Joint Committee on the Judiciary

Spotlight on Spousal Elective Share

The BBA has been a part of many pieces of legislation over the years, especially those that have an impact on our core principles – facilitating access to justice, serving the community at large, and advancing the highest standards of excellence for the legal profession.  However, the BBA’s process to thoroughly examine, deliberate, and eventually take a position on a bill is an involved one, even for seemingly simple bills.  To complicate matters further, the legislative process going on across the street from us is equally – if not even more – harrowing and intricate.  So what does it take to champion a bill through the BBA and on to become a law?  In a word: patience.

Let’s take a closer look at a long-time BBA supported bill, currently with the number S705 – An Act relative to the elective share of surviving spouses.

The Bill

The bill is in the area of trusts and estates law, which is well-known among lawyers as a particularly dense practice area.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is entitled to one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s assets, multiplied by a percentage based on the length of the marriage – ranging from three to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is applied when a marriage ends in divorce.

History

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has been replaced by a new bill which is similar, though not identical to the Uniform Probate Code’s spousal elective share provision.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill.

Here and Now

The bill was filed in the Senate in January 2013 by Senator Cynthia Creem and referred to the Joint Committee on Judiciary shortly thereafter.  Following an extension order filed in March, and a public hearing in April, at which Deb Manus testified on behalf of the BBA, the bill was reported favorably out of the Joint Committee on Judiciary in late June.  It was then referred to the Senate Committee on Ways and Means, where it currently sits.

We have been working and will continue to work with the other organizations interested in the bill – both in support and opposition – to pursue consensus.  We hope that this bill will garner enough support to pass in the last month left of formal session, but we recognize the hurdles it faces.  As you can see, this is a long and complex process, and the spousal elective share bill is only one example of many bills the BBA is working on.  We will keep you posted on the latest developments with this and all of our bills of interest.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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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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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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Getting It Right: The BBA Seeks Reform of Drunk Driving Law

On Wednesday, September 25th, the Joint Committee on the Judiciary held a public hearing with 52 bills on the agenda.  The hearing had a serious and often somber feel.   A number of elected officials and 86 Massachusetts Police Chiefs testified.  Perhaps the most gripping testimony came from family members of young people injured or killed in drunk-driving accidents. 

The majority of oral testimony focused on a bill giving police officers authority to make stops in cities or towns bordering their own.  A handful of other bills proposed to raise the mandatory minimum sentences for drunk-driving offenders. 

The BBA co-sponsored S655, An Act to Protect the Citizens of the Commonwealth from Drunk Drivers, which provides straightforward clarifications to the current law.  In addition to our written testimony, Cape and Islands District Attorney Michael O’Keefe and a representative of the Massachusetts Bar Association both testified in favor of the bill.   O’Keefe offered especially persuasive testimony, quoting a recent Massachusetts Appeals Court decision that described the current state of handling cases under Massachusetts OUI laws as “akin to driving a car without windshield wipers on a dirt road on the side of a mountain at night during a blizzard.” 

Our bill is not new.  The BBA Council unanimously endorsed this bill in 2007, when it was first filed in the House of Representatives.  The bill has been re-filed every session since then.  It is easy to ignore a bill like S655.  It is not precipitated by any recent event and it generates little publicity, but that doesn’t mean it shouldn’t become law.  Furthermore, this bill does not offer any substantive changes to the law.  However, the current Massachusetts drunk driving laws are contained in Massachusetts General Laws Chapter 90, a mess of language that has been amended 69 times over the last 100 years in a piecemeal manner.  Its structure leaves judges, prosecutors, and defense attorneys struggling to interpret how the statute should be applied to various cases.  Therefore, S655 provides a concise, clear, and much-needed restatement of the existing laws, breaking each portion down into understandable definitions and logical sections.  The BBA believes this bill will streamline the administration of justice, benefitting both interested parties and the general public alike. 

We at the BBA are proud to have fulfilled our mission, facilitating access to justice by providing legislative guidance on an issue on which we have credibility and expertise.  Now it’s in the legislature’s hands.  We hope they will heed our testimony and pass this law to improve the administration of justice in the Commonwealth.

– Jonathan Schreiber
Legislative and Public Policy Manager
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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