Tag Archives: Supreme Judicial Court

Justice Gants Confirmed by the Governor’s Council

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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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More than a Job: Clerk of the Commonwealth Fran Kenneally

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Last week, the Administration of Justice and Litigation Sections sponsored a special lunchtime discussion with the new Clerk of the Commonwealth, Francis V. Kenneally.  Clerk Kenneally is new to this post, but not to the work it entails, having previously served as the third assistant and later first assistant Suffolk County Clerk.  Prior to serving as an assistant clerk, he practiced law in Maryland and Washington, D.C. and worked as a solo general practitioner in Quincy at the Kenneally Law Offices.  He also served as a court-appointed mediator in Quincy District Court.

He is still adjusting to his new role, noting the major difference between being a county court clerk and Clerk of the Commonwealth was the shift from a job that was “100% legal” to one that is “100% administrative.”  Clerk Kenneally relishes his new responsibilities.  While he enjoyed the role he played with county court cases, he is just as passionate about helping lawyers and managing the full court’s caseload – the crux of his new position.

To that end, Kenneally spoke about new initiatives and improvements the courts are implementing.  In April, the trial and appellate courts began a pilot e-filing project, which has been years in the making.  Although there is no definite time table, the system will be gradually carried out in the following phases:

  1. District Court in Worcester for civil cases
  2. Brighton Division of the Boston Municipal Court for civil cases
  3. Probate and Family Court in Essex for uncontested divorces
  4. Appeals Court panel cases
  5. SJC applications for direct and further appellate review

The system will be similar to the federal court PACER system, except that e-filed documents will be reviewed by the clerks before they appear on the docket.  Participation in the pilot program will be voluntary and will require a nominal convenience fee in addition to any applicable filing fee.

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Kenneally also spoke about the SJC’s pilot program on rebuttal time – permitting appellants to reserve no more than five minutes for rebuttal at the outset of oral arguments.  The court implemented the pilot program for the February and March sittings of the full court.  Kenneally researched all state rules and statutes and discovered that Massachusetts was the only state without rebuttal at oral argument.  During the pilot he estimated that attorneys requested rebuttal time in 85 to 90 percent of cases, and he thought the court found it helpful but is uncertain whether rebuttal will become a permanent part of oral argument in the future.

After answering a number of audience questions, Clerk Kenneally gave some advice and provided practice tips which would be helpful to the lawyers and, in turn, assist the court in its review of matters scheduled for argument.

Include lower court decisions and relevant statutes in your addendumMass R.A.P. 16 requires the addendum to contain pertinent lower court findings or memoranda of decision and the relevant statutes, rules, and regulations.  The Justices rely upon compliance with the rule when reviewing briefs in preparation for oral argument.  Audience members were curious whether the addendum should include all the statutes cited in the brief, or most, or only the most important ones.  Clerk Kenneally said to err on the side of over-inclusion, but noted that it was a judgment call for lawyers.  He welcomed anyone with further questions to contact his office about specific cases for further guidance.

Keep briefs brief.  The required page limit for briefs is 50 pages, but Kenneally has seen briefs over 70 pages.  While he knows that at times a longer brief is necessary from the lawyer’s perspective, the rule states that a motion to exceed 50 pages will not be granted except for extraordinary reasons.  Again, he explained, if lawyers have specific concerns with respect to their case, they are welcome to call him.

Submit amicus briefs earlyMass R.A.P. 17 permits the filing of amicus briefs either by leave of the appellate court or a single justice granted on motion or at the request of the appellate court.  The court has often relaxed the rule’s prescribed time for filing amicus briefs to two weeks before the first day of sitting in which the case is scheduled for argument.  Nonetheless, amicus briefs are often untimely filed despite the relaxed application of the rule and are at times received well within two weeks of the first day of the sitting.  The earlier the court receives these amicus briefs, the more helpful they may be.

Clerk Kenneally ended by noting he is a firm believer in getting to work early, staying late, working on the weekend if needed, and even checking and responding to work email messages after court hours.  He is determined to answer any attorney questions or concerns in a timely manner and encourages attorneys to reach out if they have something to ask or say.  He even encouraged us to include his contact information here:

Fax: (617) 557-1145

Phone: (617) 557-1188

Email: francis.kenneally@sjc.state.ma.us

– 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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Press Conference for Chief Justice Nominee Ralph Gants

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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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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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Catching Up . . . Have You Heard?

SJC Annual Address

Last Wednesday, Chief Justice Roderick Ireland gave his annual address at the Massachusetts Bar Association’s Bench-Bar Symposium at the John Adams Courthouse.  For the first time in a long time, the courts’ future looks bright.  Ireland spoke highly of the new leadership of Chief Justice Paula Carey and Court Administrator Harry Spence, as well as the Governor and legislators who approved a much needed judicial pay raise, the first in seven years.  The funding the Trial Court received will allow for some additional hiring to replace a handful of laid-off workers and has raised the morale of judges and clerks.  Furthermore, the court has returned to full hours and service in all clerks’ offices for the first time since the 2008 financial crisis.  Finally, the court is looking to the future with Ireland’s announcement that the SJC is working on an e-filing program.

Annie Dookhan Court Appearance

Last Friday, Annie Dookhan, the state chemist accused of tampering with and mishandling evidence, made an appearance in Suffolk Superior Court for a conference regarding a possible change of plea.  The night before, Attorney General Martha Coakley’s office recommended a five to seven year sentence and five years of probation if Dookhan pleaded guilty.  

In December 2012, a grand jury indicted Dookhan on 17 counts of obstruction of justice, eight counts of tampering with evidence, and single counts of perjury and falsely claiming to hold a degree.  Without the plea, Dookhan could face a massive sentence – each of the 25 counts of obstruction of justice and tampering with evidence carry up to a 10 year state prison term.  The single perjury charge can result in up to 20 years of prison time, and lying about her degree could add another 2½ years.  She has pleaded not guilty and her attorney is asking for a sentence of one year or less.

The BBA’s Drug Lab Working Group met one more time recently and is preparing a report for BBA leadership on its conclusions in the coming months.

SCOTUS Death Penalty Case

Last Wednesday, the U.S. Supreme Court heard oral argument in a capital punishment case, Kansas v. Cheever.  The defendant, Scott Cheever, admitted to fatally shooting Sheriff Matt Samuels in 2005.  He argued, however, that due to his methamphetamine usage, he was unable to meet the premeditation requirement needed for a murder conviction.  In a lower court, a psychiatrist testified on behalf of the defense substantiating this claim.  The prosecution countered with testimony from a government psychiatrist who examined Cheever under court orders.  The issue before the Supreme Court is whether the state violated the defendant’s Fifth Amendment privilege against self-incrimination by rebutting his defense with evidence from the court-ordered mental evaluation.

In oral argument, a majority of the justices appeared to side with the prosecution.

The BBA’s Death Penalty Working Group met for the first time early this week.  They will reexamine the BBA’s positions, investigate the possible use of the death penalty in Massachusetts, and discuss the legal implications of its use in a federal case in the state, such as for the Marathon Bomber.  They will meet monthly through the beginning of 2014 and report to BBA leadership then.

EJC Walk to the Hill

We are pleased to report that the Equal Justice Coalition is hard at work planning this year’s Walk to the Hill event.  The event will take place on January 30, 2014 from 11:00 a.m. to 1:00 p.m. at the Massachusetts State House.  On that day, hundreds of lawyers will meet at the statehouse to lobby their own lawmakers to protect state funding for programs providing civil legal aid to low income Massachusetts residents.  Stay tuned for more information about how you can get involved.

– 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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Reader Comments Re: Reduced Court Hours Miss the Mark

On Tuesday, the Supreme Judicial Court announced that it will reduce public office hours for 38 courthouses across the state starting September 19th.  The scheduling of court sessions will not be affected by the changes in office hours and access will be available for cases of the greatest urgency.

Kyle Cheney’s story on this subject ran in the Boston Globe on Wednesday, generating reader comments that reveal gross misperceptions about the work going on in our courthouses each day.

The court system is a sitting duck for attacks because it has no natural constituency, unlike the other branches of government, and because most of the public’s interaction with the courts stems from a negative life experience.  “Before the courts stage there (sic) work slowdown over budget cuts somebody ought to do a time study of what the court workers really do especially the judges,” wrote seen-it-all. “No money should be restored until the waste and fat is trimmed. Stop your whining!!!!!!”

What waste and fat?  The courts are in full triage mode.  Every day 42,000 people access our courts.  At last count, the number of Trial Court employees was down 1,167 people, a 15 percent reduction in staff since 2007.  In combination with budget reductions of $85 million over three fiscal years, the result has been a hiring freeze, work furloughs and an exhaustive reduction in non-personnel expenditures.  Cuts have been made everywhere, as the courts have been forced to use an ax in place of a scalpel. Courthouses have been consolidated, judges have asked for a moratorium on judicial appointments and plans for court relocations have been announced.

Another reader commented as if the recent announcement is nothing more than a political ploy: “Let the games i.e. posturing begin.  Cut my budget we’ll cut back hours and penalize everyone like a petulant child,” wrote XENOPHONIC.  The truth is that our state courts are staffed at levels well below national standards and there are just not enough employees to keep up with the caseload.

Our courts are hurting and the people who need access to them the most have been hit hardest. Ill-informed comments about our state courts do not help the cause.  Facts and figures are important, but numbers can only tell part of the story.  It is essential that we consider the real life anecdotes about the effect of the cuts on real people. We understand the financial situation facing the Commonwealth, but while cutting the state court budget may seem inconsequential to some people, it endangers the basic constitutional rights of Massachusetts citizens.  This cannot continue without disastrous consequences for the administration of justice.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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