Tag Archives: Massachusetts

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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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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Passage of Probate Laws Needed ASAP

The Massachusetts Uniform Probate Code (UPC) will be effective for estates on January 2, 2012; it became effective for guardianship on July 1, 2009.  This landmark piece of legislation is something the BBA has worked on and supported for over 20 years.  Not only does the UPC improve what was a deplorable situation concerning the appointment and conduct of guardians, but it will simplify the probate process for families and our courts while expediting the process for administering estates. The UPC facilitates the appointments of executors and also provides options for choosing informal or formal procedures to open and close probate matters.  All in all, lawyers and the courts are pleased with it.

The Probate and Family Court has been educating its staff on the new law and working diligently to promulgate new forms that will be used when the rest of the UPC is rolled out in January.  To supplement their efforts, the BBA will offer a continuing legal education seminar introducing the new estate rules in November to help practitioners navigate the changes.

Now what? The Legislature needs to pass two more bills quickly.  The first, S704, contains technical corrections to the UPC.  These corrective changes address issues that came to light during the initial implementation and take into account things like missed cross references, typos and other oversights. The second bill, the Massachusetts Uniform Trust Code (MUTC), is a companion piece to the UPC.  Since the MUTC repeals most of Article VII of the UPC and replaces it with more current language, it would be advantageous to have all the statutory trust law provisions in the same place in the new MUTC and take effect as scheduled on January 2, 2012.

Like the UPC, the MUTC is a substantial bill that has been well-vetted.  It was produced by the Uniform Laws Commission after a five-year drafting period.  Then in 2005, an ad hoc committee of lawyers, including members of the BBA, was convened to review the bill in detail.  They debated each section of the MUTC and, as a result, what we have is a statute that will simplify and make the trusts laws in Massachusetts more accessible.

Here are just a few reasons that the MUTC should be passed:

  • The laws concerning trust will be uniform, comprehensive and easy to find.
  • It will make the administration of trusts more uniform among the states.
  • It will reduce uncertainty and costly and needless litigation.
  • It provides guidance and protection for trustees who, by the terms of the trust, are to take direction from a non trustee.
  • It simplifies judicial proceeding regarding non judicial settlement agreements and modification and termination of trusts.

January is less than five months away and, realistically, we are looking at a legislative schedule that at best might enact the bills by late September – not a lot of time to conduct the education and training necessary for a smooth implementation next January.  Whatever can be done to facilitate the prompt passage of the MUTC legislation should be done.  Adopting the MUTC will move Massachusetts into the 21st century in trust law.

-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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Legal Services Scores Huge Victory in the House Budget

THANK YOU to the Massachusetts House of Representatives for level funding the line item for the Massachusetts Legal Assistance Corporation (MLAC) at $9.5 million.  Yesterday the House Ways & Means Committee unveiled its annual budget.  Because of the $1.9 billion gap between spending and available revenues, there were deep cuts to virtually all areas of government.  Level funding at a time when things like health care, local aid, education, and human services are being cut is an enormous victory.

In the days and even the hours leading up to the release of the budget, advocacy groups searched hard for signals that might forecast what would happen to the line items on which the survival of their programs depends.  Of course there were last minute meetings and phone calls to implore legislators to make legal services one of their key priorities.  But in the days leading up to the release of the budget, advocacy groups also had to think seriously about contingency plans in the event of cuts in funding.

State budgets translate into statements about values.  For the House Ways & Means Committee to level fund legal services in the midst of widespread cuts to other important programs sends a powerful message that the members of the House understand the importance of providing equal justice for all.  Now the Senate is on deck.  While the Senate is reviewing the recommendations in the House proposal, please take a moment to contact your state representative and say thank you for supporting legal services.  Make another phone call and ask your state senator to support legal services and the MLAC line item.  With the Governor and now the House supporting level funding for legal services, things certainly look promising.  But the need for advocacy continues.

-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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D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Debunking Legal Aid Myths

On Monday, the Boston Herald’s website ran an item from the Associated Press mentioning Supreme Judicial Court Chief Justice Ireland’s support for civil legal aid and his appearance at the Equal Justice Coalition’s annual Walk to the Hill.  The 4-sentence story generated a few reader comments demonstrating how little some people know about the important work of legal service lawyers in Massachusetts.

Sure, lawyers can be easy targets for people venting their frustrations, but sometimes that venting defies reason.  “If you (Chief Justice Ireland) and all your lawyer buddies who make mad money by charging crazy amounts/hour are so into helping the poor, then do it for free,” wrote Boston Dave.

Some lawyers certainly make good money working at private law firms. But really, BostonDave, those who dedicate each of their days to providing legal services to the poor barely enough to make ends meet.  Legal services organizations are hurting and the poor people that need legal services the most are hurting badly.

Another ill-informed Herald reader referenced the recent coverage of the MBTA putting cameras on buses and trains to stop people from filing frivolous law suits:  “I suppose that the MBTA can expect to see a gigantic rise in the filing of lawsuits, despite the presence of cameras in the buses,” wrote Jestme7284. “Now the people with the free lawyers will check to see if there is a camera before falling down.”

Just for the record, Jestme7284, legal service lawyers don’t do personal injury cases, which are handled by the private bar, typically on a contingency fee basis. Legal services lawyers represent clients in cases involving fundamental sustenance, such as housing, employment, access to government benefits, and domestic violence.

A word about the attorneys at big firms that show up at Walk to the Hill…Many of these lawyers give generously of their time, accepting pro bono assignments from organizations such as the Volunteer Lawyers Project. They also give generously of their money to charities providing legal aid for poor people.

At the Walk to the Hill event, they will take the time to meet with their legislators to talk about the importance of public funding for legal services.  Walk to the Hill is a symbolic showing of the legal profession’s solidarity in recognizing that everyone deserves access to justice – and not just those that can afford lawyers.

Unfortunately dumb jokes and ill-informed comments about lawyers are nothing new. But legal aid for the poor should be the one thing that all of us can agree is a good thing.  Alas this year the weather didn’t cooperate, and Walk to the Hill has been rescheduled for Tuesday, February 22nd.  We hope you’ll show up and demonstrate your support for legal services.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Why Walk to the Hill?

February 2nd will be the 12th annual Walk to the Hill for Civil Legal Aid.   Walk to the Hill is a powerful and symbolic statement from the Massachusetts legal community that demonstrates the profession’s dedication to the principle of “justice for all.” 

But after 11 years it’s natural to ask if this event is even necessary.  Do legislators pay attention?  Has it gone stale?  Do we make a difference in the outcome for funding for legal services? 

Your state legislators absolutely do pay attention.  How can they not when last year nearly 700 lawyers flooded the hallways and stopped by their offices?   In fact, Governor Patrick was paying attention too.  He made a cameo appearance and announced in front of the crowd that he had level-funded the Massachusetts Legal Assistance Corporation (MLAC) line item in his budget which was released earlier in the day. 

Walk to the Hill has improved year after year making it easier for lawyers to participate.    Just as the Boston Bar Foundation’s John and Abigail Adams Benefit (January 29th) switched its format to a free-flowing event at the Museum of Fine Arts after decades of formal sit-down dinners, the Equal Justice Coalition’s Walk to the Hill has evolved as well.  Now there are projection screens and audio to stream the speeches outside of the Great Hall because of the overflow crowd.  Staff is on hand to help lawyers find their legislators’ offices.  Comment cards are available for participants to fill out and leave with the legislators or staff they visit.

Today, Walk to the Hill is more important than ever before. The need for civil legal aid has skyrocketed as the funding for it has plummeted.  The number of those eligible for legal aid grew by 91,000 between 2007 and 2009.  At the same time, since FY 2008 MLAC has been forced to cut grants to the legal aid programs it funds by 55% because of the precipitous decline in revenues from IOLTA accounts.

The symbolism of 700 attorneys congregating on Beacon Hill is profound, the speeches offered by the bar presidents are important, and the story shared by a client of legal services is heartfelt.  But at the end of the day legislators want to know what their constituents want.  They will look at phone logs and sign-in sheets to see who in their district participated.

So you need to do your part.  The event is not about meeting friends or having your picture taken with your firm; it’s about making the case for why legal aid is important and beneficial for Massachusetts.  All of the pageantry is wasted if participants do not take the time and stop by their legislators’ office. 

Walk to the Hill asks the legal community to personally deliver one simple message: Funding for legal services is more important now than ever before. Make sure you visit your state representatives and senators to ask them to support level funding for legal aid.  This year (FY 2012), level funding is $9.5 million.  Even if legislators are not available to meet with you, it is critical to stop by and leave your name and contact information. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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