Tag Archives: Senate

Celebrations in the Senate Before the Summer Recess

In the days and even hours leading up to the legislature’s unofficial summer recess last week, there was a flurry of activity in the State House.  In the hubbub of lawmaking that took place, there were a few no-brainer bills that passed, but more contentious ones – like the court reorg bill– came down to the wire.  Among the bills passed was the long awaited and widely supported alimony reform law.  Sailing through with unanimous support in both branches of the legislature, it will make its way to the governor’s desk once agreement is reached between House and Senate differences in the bill.  Also receiving a unanimous vote in the Senate was the bill to provide post-conviction access to DNA.

To an outside observer, or any of the tourists trying to peek their heads inside the jam-packed upper gallery of the Senate Chamber last Thursday, it may have seemed like just another formal session in the Senate.  Senators milled around the chamber, staff came and went.  At 1 p.m., the Senate convened and immediately went into a recess.  Thirty minutes later, Senate President Murray was at the rostrum long enough to recite the pledge of allegiance before recessing again for a few moments.  Over the next hour, after a whirl of activity on various Senate bills, alimony reform was finally taken up and engrossed by a roll call vote of 36-0.  Applause broke out in the Senate Gallery and in the hallway outside.

Next up: access to DNA.  Senator Cynthia Creem took the floor and spoke in support of the bill.  She recognized Betty Anne Waters and the BBA for their contribution to this legislative effort, drawing members of the Senate to stand and applaud their work.  Seven amendments to the bill were then taken up.  Of those seven, two were withdrawn, one was rejected, and the remaining four were adopted.  When the roll call was taken, the bill passed 37-0.

It may have looked easy and effortless, but it actually felt chaotic.  The day before, Senate Ways & Means released the access to DNA bill with improvements and changes.  After reading through the revised bill, the BBA had a few suggestions and asked Senator Creem to file an amendment, to which she agreed.  On the morning of the scheduled Senate debate, other senators filed even more amendments to the bill.  These last minute amendments sparked discussions in the Senate hallways and on email.  Even in the moments before the start of the Senate session we were still trying to fix loopholes that the additions to the bill had opened up.

Then, finally…a signal from the Senate floor.  A senior Senate staffer looked towards the gallery and flashed a thumbs up. Just like that, it was over.  The bill had passed unanimously, capping off a monumental afternoon for those who had labored for years on this issue.  While pausing to take in what had just happened, it was nice to see the House sponsor, Representative John Fernandes, waiting one floor down outside the Senate Chamber.  Rep. Fernandes indicated that he is looking forward to taking this issue up on the House side once the legislature comes back from its summer recess.

 

-Kathleen Joyce

Government Relations Director

Boston Bar 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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Homestead: From the Council to the Governor’s Desk

The BBA watched this week as one of its long-standing legislative priorities, homestead reform, was enacted by the Senate.   An Act Relative to the Estate of Homestead is now on the governor’s desk awaiting his signature.  This is good news to the many BBA members who have worked year after year and session after session to see the much needed changes in this area.  This is also good news to the attorneys whose clients have come to them in dire straits, overwhelmed with debt and seeking help to obtain a fresh start.  These reforms are substantial and will provide important consumer protections to homeowners in Massachusetts.  In addition to the consumer protection aspects, the bill will address many of the issues that have caused great difficulty to the courts in interpreting the current homestead statute.

In 2000, a detailed study of the Massachusetts homestead statute appeared in the Boston Bar Journal.  Author Mark W. McCarthy noted that homestead was so badly in need of change that only a complete rewrite would suffice. McCarthy even described the current homestead statute as, “ugly, clumsy, even embarrassing – and it just doesn’t work.”  That same year the BBA filed a homestead bill that was sponsored by then-Senator Robert S. Creedon, Jr. who was also chair of the Joint Committee on the Judiciary.  The BBA’s bill at that time focused on certain aspects of the homestead law including an automatic provision, certain stacking concerns for the elderly or disabled and creditor issues with respect to a homestead. 

Despite our hard work, real progress was not made for years.  While the BBA pushed for its own version of homestead reform, other groups, most notably the Real Estate Bar Association (REBA), were also proposing their version of homestead reform.  It was Senator Creedon who asked the BBA and the REBA to work together on a single bill that would incorporate the reforms that both organizations sought.  The BBA’s dialogue with REBA on homestead yielded good input on ways to improve the bill and led to a multi-year drafting process that resulted in a revised and balanced bill that was filed jointly in the legislature.   Now, an even more improved version of the compromise bill that the BBA and REBA worked on sits on Governor Patrick’s desk. 

Here’s what the current homestead bill will do:

  • Clear up ambiguities and make rules for filing a homestead declaration more logical
  • Protect beneficiaries of trusts
  • A refinancing mortgage will not be able to terminate previously filed homesteads
  • Protect proceeds from insurance or a home sale
  • Protect spouses and co-owners who transfer property amongst themselves
  • Provide protection for manufactured homes

Our work continued as we rallied our members to testify at public hearings, meet with legislators, and contact their local Reps and Senators, and we got pretty close to the finish line at the end of the last legislative session in December 2008.  While we weren’t able to claim victory before the legislature recessed, we did refile the bill to build upon the momentum of the last session. 

Homestead reform will provide concrete and meaningful assistance to citizens in Massachusetts especially low income consumers and the elderly.  Now with homestead poised to pass some ten years after our efforts began, maybe we can get somewhere on updating the personal property exemption laws.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

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Lawyer Legislators: Post Primary Recap

It’s encouraging to see that several lawyers remain candidates in races for statewide office following the state primary elections.  As mentioned last week, several veteran lawyer legislators have chosen not to seek reelection this year.  A notable loss is Senator Steven Panagiotakos, the current chair of the Senate Committee on Ways & Means, who announced earlier this year that is stepping down in order to pursue other challenges. 

In spite of these losses, the number of lawyer candidates that remain may not result in a net loss in the number of lawyer legislators in the State House.  In the House there are 10 lawyer legislators that are not seeking reelection.  Of those 10 seats, 6 do not feature a single lawyer candidate in the general election while 2 feature only lawyer candidates.  The other 2 seats have one lawyer candidate in the general election.  Additionally, there are 5 more races in which there is a lawyer candidate on the general election ballot.

In the Senate there are 4 lawyer legislators not seeking reelection. Half of those seats do not have a lawyer candidate and the other 2 races each have one lawyer running.  Interestingly, there are 2 current lawyer House members running in different open Senate races.

While the BBA has not and will not endorse political candidates, we commend those that choose to utilize their legal education and skills by becoming public servants.  Lawyers and legislators share the same drive: to use law to protect the public’s rights and to improve society.  Lawyers make good legislators no matter their party affiliation because the education and training involved gives lawyers analytical and oratorical tools that prove exceptionally useful in the legislature. 

Still, it requires an enormous amount of disciple and balance for lawyers to maintain an active practice and serve as a legislator (not to mention a healthy personal life).  A former lawyer legislator and reader who served 3 terms in the Massachusetts House of Representatives noted in a comment on last week’s blog post that, “Combining a law practice with legislative duties is very difficult as the time demands of legislative business in Boston and of constituent servicing in the district are great.  Contrary to public perception, being a legislator harms, rather than helps, the development of the law practice as so much time is spent away from the office.”

Hopefully lawyers will continue to answer this call for public service by choosing to run for elective office.  Regardless of your politics, please remember to vote in the general election on November 2nd.

-Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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BBA Legislative Impact – Highlights From Formal Session

The 2009-2010 Legislative Session highlights the BBA’s extensive and varied public policy portfolio focusing on the administration of justice, the practice of law, and other issues of particular interest or concern to the organization. We’ve scored some significant legislative victories. We’ve made progress in other areas and remain committed to those issues as the legislature continues to meet during informal session.

Thank you to our members who helped advance these important issues.  Your leadership, expertise and energy throughout the past session really made a difference.  The BBA could not have been done any of this without your dedication to these issues.

Here’s a snapshot at what did happen and what did not happen before the end of formal session on July 31st.

 

CORI and Sentencing Reform

After weeks of negotiations and public conference committee meetings, Chairs Eugene O’Flaherty and Cynthia Creem shepherded a crime package through both chambers during the final hour of formal session.  It could not have been done without O’Flaherty and Creem or the leadership of Senate President Murray and House Speaker DeLeo.  The bill that was passed does not include all of the sentencing reforms the BBA had hoped to see. But this is a significant first step.  Governor Patrick is expected to sign this comprehensive crime bill on Friday August 6th.

The bill includes important mandatory minimum sentencing reforms and grants parole eligibility for offenders serving at county Houses of Correction after serving one-half of their sentence.  The bill also includes significant changes to the Criminal Offender Record Information (CORI) which will increase access and improve accuracy.  These changes will also create opportunities for reformed offenders to obtain jobs.

The BBA has been a vocal advocate of mandatory minimum sentencing reform for more than 20 years and has been working diligently on CORI reform since 2006, when the BBA’s Study Group on CORI developed principles specifically addressing our concerns: accuracy, access, sealing, and juvenile justice.

Condo Common Area Interest

Another BBA supported bill made its way to Governor Patrick’s desk in the last two weeks.   An Act Relative to the Determination of Condominium Common Area Interest became law on July 26, 2010.

Working with the Citizens’ Housing and Planning Association since 2007, the BBA’s Real Estate Section sought to clarify the definition of “fair value” in Massachusetts General Laws, Chapter 183A when determining the percentage interest for condominiums.  It does not require a specific method for calculating common area interest but instead describes elements, such as approximate unit area, construction cost, and affordability restrictions.  The technical clarification will also provide useful options in establishing percentage interest which will increase predictability and decrease litigation.

The MUPC

A big BBA victory came at the very beginning of the legislative session when the Massachusetts Uniform Probate Code (“MUPC”) was signed into law on January 15, 2009.   For over 20 years the BBA has supported the establishment of a Massachusetts Uniform Probate Code.  The BBA, along with our partners at the MBA, created a joint task force to study the issue and regularly filed legislation to enact necessary changes.  The MUPC codifies and restates much of Massachusetts law regarding wills, trusts, guardianships and conservatorships and probate proceedings.  The BBA’s Trusts and Estates Section continues to identify technical changes that will improve the model bill and we are still working with the legislature to incorporate those corrections.

Small steps – legislative progress in other areas

As often happens at the end of the formal legislative session, a few big issues grab the attention and focus of the legislature while other pieces of legislature continue in a holding pattern.  Here’s a look at other member-driven policy proposals we are still working on during the next few months of informal sessions.  There is still the possibility that some of them will get done during informal sessions. But if not we will refocus our efforts and refile them for the 2011-2012 Legislative Session.

 

Post-conviction access to DNA

The December 2009 release of the BBA’s report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, has brought a lot of attention to this issue in Massachusetts. The BBA is still getting calls from police departments across the state asking for additional copies of our report.

Currently Massachusetts is one of only two states (Oklahoma is the other) that does not provide for access to forensic evidence after an individual is convicted.  Similar legislation has been filed for many years in the Judiciary Committee.  It was our members’ work and the expertise of our Task Force that has renewed interest in this.  The BBA is excited that the issue has finally grabbed the Judiciary Committee’s attention and the bill was reported favorably before the end of formal session.

As the BBA continues to meet with legislative leaders to ensure that the Task Force’s recommendations are implemented, the good news is that we have the support of both chairs of the Joint Committee on the Judiciary.

Alimony Reform

After the recommendations of the Joint BBA/MBA Alimony Task Force were endorsed by the BBA Council in March 2010, the Chairs of the Judiciary Committee established a Legislative Task Force to review the many alimony bills that were pending before the Judiciary Committee.  This was after the Judiciary Committee had conducted a public hearing on the issue.  The BBA was invited to be a part of this group to make recommendations on reforming Massachusetts alimony laws.  The Task Force plans to continue their work and is hoping to have a comprehensive piece of legislation in the upcoming months.

Trusts & Estates Law Updates

The hard work and expertise of our very active Trusts and Estates Section led to a handful of bills that we were able to get introduced as late files thanks to Chairman O’Flaherty.   While none of these bills made it out of committee and in many cases never even got docketed we will continue to push for progress.

In addition to the technical corrections to the Massachusetts Uniform Probate Code which would clarify certain provisions of the MUPC and correct typographical errors found in the act we late filed the following bills:

  • The Massachusetts Uniform Trust Code (“MUTC”) contains provisions that would concentrate the Massachusetts statutory law of trusts in one place and supersede the Massachusetts common law of trusts to the extent that these laws are inconsistent.
  • The proposed Estate Tax Patch Statute is a default, but rebuttable presumption for the construction of will and trust formulas keyed to the federal estate tax or generation-skipping transfer tax.
  • Adopted Children Legislation, Chapter 524 of the Acts of 2008. On July 1, 2010, there was a change to a longstanding rule of construction governing the treatment of adopted persons in wills, trusts and similar instruments executed before August 26, 1958.  In response to the BBA’s advocacy last year, the Legislature included provisions in the 2009 budget that essentially suspended the Chapter 524 changes during the year from July 1, 2009 to June 30, 2010.  The BBA, along with its partners the MBA and the MA Bankers Association, continues to work on the repeal of this new rule of construction.

 

  • One other Trusts and Estates issue not yet filed but supported by our Council is the The Massachusetts Income Tax “Step-Up” would provide for the continuation of a “step-up” in the Massachusetts tax basis in property acquired from a decedent.  In the absence of any corresponding Massachusetts change, the change in federal basis rules for 2010 will result in a substantial, hidden Massachusetts tax for successors to decedents’ property.

Banks and Banking, H 1000

An Act Relative to Banks and Banking was endorsed by our Council in April 2010 and was the work of the BBA’s Business Law Section.  H 1000 would update the corporation law cross references in the Massachusetts banking laws to reflect the adoption of the Massachusetts Business Corporation Act.  The BBA will work to see that this bill gets reintroduced in the next session.

Homestead Law Reform, M.G.L. c.188

 

Our work on Homestead reform, a pressing consumer protection issue, will continue.  Impetus for this reform initially came from a detailed study of the MA homestead statute appearing in the Boston Bar Journal several years ago. The study concluded that c.188 was so badly in need of change that only a complete rewrite would suffice. With the leadership of then BBA president M. Ellen Carpenter, a bankruptcy lawyer, the BBA in the summer of 2005 responded with homestead reform legislation.

Ever since that time the BBA has been working – along with its partners at REBA to secure passage of legislation. The BBA is confident there is still enough time to get this done before the end of 2010.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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When Budget Cuts Fly in Face of Constitutional Requirements

The Senate released its budget recommendations earlier this week.  Amendments are due today and the budget will be considered by the full Senate starting on Wednesday May 26th.  Like the House version of the budget, the Senate did not rely on any new revenue or withdrawals from the Rainy Day Fund.  That means budget cuts are going to be felt everywhere.

While Massachusetts Legal Assistance Corporation (“MLAC”) made it through 3 big hurdles– the Governor’s budget, the House budget and the Senate budget – with level funding in place, it’s still not over.  Senator Panagiotakos has emphasized that revenues can still be reduced — making more cuts necessary if tax revenues for April don’t hold up.  The other source of MLAC’s revenue is from the Interest on Lawyers’ Trust Accounts (“IOLTA”) which has continued to feel the devastating effects of the recession with income from this source falling 66% from FY08.  This means that grants to legal aid programs will be cut.

The Senate’s budget was more favorable to the Trial Court than the House budget, but the Senate’s appropriation of $544.3, is $15.1million, or 2.7% less than FY10.  This is not enough for the courts to meet the rising need for access to the courts.  This will undoubtedly mean even slower-functioning courts and delays in administering justice to the 42,000 citizens who use our state courts each day.

The Committee for Public Counsel Services (“CPCS”) did not fair as well in the Senate as they did in the House.  CPCS was funded at $166 million which is about $26 million less than what they got in the House budget.  The line item that was most underfunded for CPCS was the private counsel compensation line item which was funded at $28 million less than what the House provided.  We are talking about the attorneys who represent the majority of indigent criminal defendants, children and families, and people with mental illness.

Massachusetts is obligated to provide competent legal counsel to every indigent person charged with a crime punishable by imprisonment, and CPCS is the state agency that manages these responsibilities.  The size of the budget needed to fulfill this obligation is dictated by forces outside CPCS’s control, namely the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In order to ensure that private attorneys can continue to provide critical representation in our courts, the Senate needs to restore funding in the private counsel compensation line item to the amount that the House funded them.  Without adequate funding for private bar advocates, we will likely face a crisis of the sort which occurred in 2005, when hundreds of people were jailed without counsel because of inadequate funding for CPCS.

We know, the Commonwealth is facing tough economic circumstances and these are difficult funding decisions but fulfilling Constitutional requirements is not a discretionary item.

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CORI Reform Is Just a Start — Sentencing Reform Is a Must

The BBA retains a spirit of dogged optimism as we wait for sentencing reform.  With just three months left in this two year legislative session and the Senate preparing to release their budget in less than two weeks, the legislature is moving closer to meaningful sentencing reform.  There have been years of protests, legislative proposals and public hearings.  But the sad truth is that the current system makes it extremely difficult for former offenders to straighten out their lives. 

Publicly the Governor, Senate President and House Speaker have all expressed their support for some sort of Criminal Offender Record Information (CORI) reform.  The Senate did so most recently in December with the passage of a CORI bill that also included sentencing law changes for non-violent drug offenders.  The word is that the House will act within the next two weeks.  Let’s hope that their proposal doesn’t stop at CORI reform and includes meaningful sentencing reform.

For more than 20 years the BBA has been studying and advocating on these issues and strongly believes that it’s time to finally make these measured changes a reality.  We have sponsored and encouraged thoughtful study of our criminal justice system recommending changes — including repeal of most mandatory sentencing laws.   

In the present fiscal crisis, their adoption would have significantly positive economic and social impacts.  A combination of CORI and sentencing reform, plus post-release supervision, would accomplish cost-effective changes in our criminal justice system that enhance public safety, and facilitate offender re-entry and employment, while saving judicial and correctional resources for the most serious offenders. 

Employers often use CORI reports to help screen out prospective job applicants. On one side of the debate are supporters of the current CORI law who say access is needed to protect employers from hiring someone who might be a liability to their business. On the other side of the debate are the critics who contend that the widespread use of CORI reports often prevent ex-convicts from starting over and that an individual who has already paid his or her debt to society should be given a second chance and would be less likely to re-offend if they did not have to overcome barriers to employment, housing and other services.

The CORI law was created to control the release of information concerning an individual’s prior criminal history.  Initially limited to law enforcement officials, the law has been expanded to provide access to other organizations, particularly those that service children, the elderly and the disabled.  Maintaining accurate CORI information is important, as these reports can include not only an individual’s prior convictions, but also any pending charges as well as cases that ended without a conviction. This can include cases where the individual was found not guilty, or the charges were dismissed.  We need to find the balance between access and disclosure.

Ex-offenders, including those who have successfully completed a term of imprisonment, must be encouraged to obtain and retain productive employment.  Employed ex-offenders are able to support and house themselves, rather than remain an economic burden to the Commonwealth.  Right now, those with minor or long dormant criminal records confront complicated hurdles due to the way CORI records are handled when the ex-offenders seek employment or housing.  The current system is confusing and complicated and some employers have access to criminal information while others don’t. 

There seems to be support for some sort of CORI reform throughout the legislature. But CORI reform and sentencing reform must be viewed as interconnected parts of the solution.  CORI reform is not going to be as effective if inmates serve lengthy sentences that preclude access to re-entry opportunities.  Parole and work release eligibility for drug offenders would help transform appropriate candidates from expensive correctional burdens to contributing members of society. 

Sensible sentencing reform must include post-release supervision, and a system of presumptive post-release supervision for all offenders incarcerated in state prison. It’s intelligent and fiscally responsible and would avoid the current practice in which offenders often are released directly to the community after serving the maximum term of their sentence, without any transitional period.

The Commonwealth is now experiencing the most severe fiscal crisis in decades and this provides us with an opportunity to enact responsible sentencing and CORI reform.  Simply put, every offender who makes a successful return to the community as a result of these measures will be one less financial burden to the taxpayers of this state, and our communities will be made safer in the process.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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