Tag Archives: SJC

Highlights from Swearing-in Ceremony for SJC Chief Justice Ralph Gants

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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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Juvenile Justice Through The Possibility of Parole

Following the BBA Council’s unanimous approval of a set of juvenile justice principles supporting the elimination of juvenile life without parole sentences, the Massachusetts Supreme Judicial Court (“SJC”) ruled in the case of Diatchenko vs. District Attorney for the District & Others that these sentences are indeed unconstitutional.  The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, is immediately eligible for parole.  In addition, due to the retroactive implications for other juvenile life without parole convicts who have served at least 15 years, roughly 63 inmates will now become parole eligible for the first time.  However, as underscored by a recent editorial in the Boston Globe, “eligibility for parole” merely entitles a convict to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed and taken full responsibility for his or her actions. 

The BBA has long supported bills abolishing the juvenile life without parole sentences in prior legislative sessions.  The dialogue gained further momentum recently after last summer’s U.S. Supreme Court decision in Miller v. Alabama which held that juvenile life without parole sentences for minors are a “cruel and unusual” punishment in violation of the 8th Amendment.  Judges must consider the defendants’ youth and the nature of the crime before handing down a sentence without parole.

The SJC’s decision went beyond mere compliance with the Miller holding, explaining that the judges considered current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  Thus, a judge cannot ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment. 

The SJC’s holding supports most of the substance of the BBA’s approved principles.  But the BBA also calls for individualized evidentiary sentencing hearings for juveniles, considering a number of issues specific to juveniles in addition to traditional factors required by law, as well as a statutory right to counsel at parole hearings for juveniles.

So what comes next?  Parole boards will begin hearing the cases of those juveniles sentenced to life without parole and making their determinations.  Furthermore, the legislature may put bills on the fast track to passage in order to bring the laws into compliance with this ruling.  We at the BBA applaud the SJC for their ruling and look forward to these next steps.

 – Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Participating in the Process Means Commenting on SJC Rules Changes

The Massachusetts Supreme Judicial Court, the highest appellate court in Massachusetts, renders about 200 written decisions each year and the single justices decide another 600 more cases.  The SJC has general superintendence powers over the judiciary and the bar, and in certain cases will provide advisory opinions to the Governor and the General Court.  The SJC also promulgates rules for the operations of all the state courts.

Court rules are so numerous that in order to effectively review them, the SJC has put together several committees to examine issues and proposals that effect court rules.  Two of them – the Standing Advisory Committee on Rules of Civil Procedure and the Standing Advisory Committee on the Rules of Criminal Procedure – are currently reviewing rules and report to the SJC’s Rules Committee.  This is where the BBA comes in.

Feedback from the bar on the practical implications of rules changes is important.  And our Sections provide a useful vehicle in which to discuss proposed amendments or changes to such things like procedural rules.

The BBA’s comments to the courts reflect our membership and their various practice areas.  Two recent examples of comments submitted to the SJC are the Criminal Law Section’s comment on the Model Jury Instructions and the proposed amendments to Rule 12 and 29 of the Massachusetts Rules of Criminal Procedure.

Our Criminal Law Section has over 600 members and its Steering Committee is a group of 30 attorneys including both prosecutors and defense counsel with a wide range of criminal law practices.  This means that veteran criminal law attorneys get an opportunity to review rule changes and provide comments, suggestions, feedback and at times even anecdotes from their own experiences to the SJC.

The BBA process that resulted in comments to the SJC on the proposed amendments to Rule 12 and 29 included discussion at a steering committee meeting several months ago.  Input was solicited from other veteran criminal lawyers in the district courts.  After discussion at the Steering Committee, the comments were synthesized into one document that was sent over to the SJC on Monday.

Consensus isn’t the goal – and often not possible – when we provide comments to the courts.  What we are really trying to provide to the courts are practical recommendations that will assist in adding clarity to proposed amendments or rules changes.

As often happens in the Criminal Law Section there are areas of agreement and areas where there will most likely never be agreement.  However, the reasoning and the explanations for such differing views is still very useful the courts.

The Standing Advisory Committee will review all comments pertaining to the issues raised by their proposed changes to Rule 12 and 29.  Ultimately the Committee will make a recommendation to the SJC.  Thanks to our members’ hard work and professional expertise the BBA had an opportunity to play an important role in the process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Cash-Strapped Courts Cut Again

How any organization can absorb almost $100 million in cuts to its funding over a period of three years seems unfathomable.  But, we’re not talking about just any organization here.  We’re talking about the branch of government responsible for interpreting and enforcing the laws of our Commonwealth.

Earlier this week, Supreme Judicial Court Chief Justice Roderick Ireland and Chief Justice for Administration and Management Robert Mulligan issued a joint statement responding to the Judiciary’s Fiscal Year 2012 appropriation.  Describing the impact that the state budget will have on court operations, the statement included a list of eleven potential courthouse relocations.  The Chief Justices also asked Governor Patrick to stop appointing Trial Court judges for FY12, citing that for each new judge appointed, three members of the court’s staff will have to be laid off.

The issue of adequate funding for the state courts is not new.  The Judiciary has responded admirably to the fiscal pressures of the past three years, but it cannot absorb any more reductions without undermining its constitutional obligation to protect the safety and welfare of our citizens.

If the court consolidations as outlined by Chief Justice Ireland and Chief Justice Mulligan become a reality, there will be undeniable economic and social consequences.  Courthouses are hubs for local businesses that thrive on the thousands of people who use Massachusetts’ courts every day.  Inexorably tied to their surrounding communities, courthouses often harness the power of the justice system to address local problems.  They form creative partnerships and relationships with residents, merchants, churches, schools, and community groups.

Relocating and consolidating courts can also present serious accessibility and public safety issues.  This will mean some people will no longer have access to public transportation even to appear in court.  Court relocations will require litigants to take more time off from work just to settle disputes.

We cannot continue to cut the Judiciary’s budget and expect our court system to deliver the same standard of justice to which we have become accustomed.  It is our responsibility – as lawmakers, judges, and citizens of the Commonwealth – to work together to ensure that justice continue to prevail in Massachusetts.

-Kathleen Joyce

Government Relations Director

BostonBar Association

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BBA Comments to the Courts

In the spirit of celebrating the accomplishments of the program year that will soon draw to a close (Sept. 1 – Aug. 31), the BBA would like to highlight the work of its members in making an impact on the SJC rulemaking process.  The BBA regularly comments on proposed amendments and rules changes, creates task forces to study and help solve critical issues of interest to the Commonwealth, and also articulates its public policy positions through the filing of amicus briefs.

In this past program year, our membership has actively addressed several important issues in the Commonwealth’s courts. 

Rule 4:03

Periodic Assessment of Attorneys

In December of 2008, the BBA’s Delivery of Legal Services Section helped garner the BBA’s support of the Access to Justice Commission’s proposal to the Supreme Judicial Court that it amend Rule 4:03 “Periodic Assessment of Attorneys” by adding to the annual registration fee a contribution of $50 to support civil legal services.  The contribution would be voluntary and the attorney registrant could opt-out of the contribution.  This Spring the SJC agreed and approved the Access to Justice Commission’s proposal to include an optional registration fee.  In fact the court increased the contribution amount to $51

The BBA has always been and will continue to be a strong advocate for ensuring that everyone has equal access to justice, and funding for civil legal services is a key component to making this a reality. 

Look for this change in your annual registration form starting September 1, 2010.

Rule 3:01 and New Rule VI of the Board of Bar Examiners

Foreign Attorney Admission

The BBA’s diverse membership includes many lawyers whose educational and professional backgrounds span the globe.  In 2006, the BBA convened The Study Group of Foreign Attorney Admission to examine Massachusetts’ admission requirements for foreign-trained attorneys.  After careful study, this Group developed recommendations reflecting proposed guidance derived from two Supreme Judicial Court cases, Wei Jia v. Board of Bar Examiners (1998) and Osakwe v. Board of Bar Examiners (2006).  The BBA believes that the key criteria for eligibility to take the Massachusetts bar exam should be legal education requirements, including both general education in common law and particular education in American law.

The SJC invited comments on the changes and the BBA, with help from its International Law Section, submitted comments requesting that Rule 3:01 and New Rule VI provide greater clarity and transparency in the rules, and better consistency by the Board of Bar Examiners in its application of them.  Happily the SJC approved the amendments to both rules.  These changes became effective July 1, 2010.

Standing Order 1:09

Sealing of Criminal Cases

Last year, the BBA voted to support a proposed interdepartmental order to Chief Justice Charles Johnson of the Boston Municipal Court.  The proposal came from one of our oldest partners, Greater Boston Legal Services.  The interdepartmental order would permit individuals to seek in one court the sealing of criminal cases that have been disposed of in other courts.  The previous process for sealing a criminal record could be cumbersome when an individual had several cases in different divisions of the trial court.  Not only did an individual need to travel to each court, but because the previous statute required two hearings before any individual motion to seal was blocked, it was necessary to travel to each court twice.

Chief Justice Johnson agreed to implement this innovative approach to case management.  He signed Standing Order 1:09 in May 2009 as a one-year pilot project.  This past winter, at the urging of our Delivery of Legal Services Section, the BBA requested that the standing order be extended for another year.  Chief Justice Johnson agreed and extended the order through May 14, 2011.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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