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13 for ’13

As 2013 draws to a close, here’s a timeline of 13 things we’re thankful for this year.

1) Diversity.  We tried to live up to our illustrious history of diversity and inclusion this year at the BBA.  From amicus briefs defending marriage equality and affirmative action to the Beacon Award, we reasserted our commitment to expanding fairness for all.  This year we released our Diversity and Inclusion Timeline highlighting key events in our history that helped shape our community. 

2) Taking it to the Top.  We started the year off right by advocating for trial court funding with the head of the executive branch, Governor Deval Patrick.  For the first time we sat down and spoke directly to Governor Patrick and his legal staff about this important issue. 

3) Walk to the Hill.  In late January, we proudly participated in the 14th annual Walk to the Hill with 650 lawyers.  Our members used their advocacy skills by speaking to legislators and staffers on the impact civil legal aid funding has in Massachusetts.  We  helped secure $13 million in civil legal aid funding for Fiscal Year 2014.  Please join us for Walk to the Hill 2014, scheduled for Thursday, January 30th.  We hope you’ll join us.  (More information here and here)

4) Protecting Attorney Ethics Consultations.  We were pleased that the SJC ruling reflected a lot of the same thinking as our amicus brief in RFF Family Partnership v. Burns & Levinson, by applying attorney-client privilege to a lawyer’s consultation with in-house ethics counsel.  This issue was an important one for all of our members who practice in law firms, large or small, and for their clients.  The ruling gives lawyers the requisite peace of mind to consult in-house ethics counsel to make sure they act in accordance with the state’s ethics and professional conduct guidelines.

5) Some Clarity on Decanting.  We sought guidance through an amicus brief in Richard Morse, Trustee v. Jonathan A. Kraft et al. This case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees.  The SJC ruled favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

6) BBA Statewide Task Force.  In April, we created the Boston Bar Association Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  Chaired by past-president J.D. Smeallie, the Task Force features 27 diverse leaders in the state’s legal community from law firms, in-house counsels, academia, the judiciary, legislative, and executive branches, and legal services organizations.  The Task Force is making significant progress in quantifying and assessing both the civil legal aid services currently provided in the state and the needs not being met.

7) Legal Services Discussion.  Jim Sandman, President of the Legal Services Corporation (LSC) joined us at the BBA over the summer to talk about the current state of LSC funding, reinforcing the need for bi-partisan support and the importance of connecting with the business community. President Sandman emphasized that legal services is not a social safety net or a poverty relief program.  Legal services are necessary to ensure access to justice for all 

8) Defense of Marriage Equality.  This summer, we celebrated the Supreme Court’s rulings upholding marriage equality in the cases of U.S. v. Windsor and Hollingsworth v. Perry.  Reaffirming our longstanding advocacy efforts for marriage equality, we joined a coalition of other bar associations, civil and human rights groups, and public interest and legal services organizations that signed onto the briefs.  (Read the briefs here and here)

9) Amending the UCC.  On July 1st, Governor Patrick signed into law “An Act making amendments to the uniform commercial code covering general provisions, documents of title and secured transactions.”  We collaborated with the Massachusetts Bar Association and the Massachusetts Bankers Association to get this bill before the House and Senate for their final approval.  While this law didn’t make big news, it will remove needless obstacles that small businesses run into when trying to secure credit.

10) Paula Carey named Chief Justice of the Trial Court.  We cheered when Paula Carey, former Chief Justice of the Probate and Family Court began her post as Chief Justice of the Trial Court this summer.  We look forward to working with her and Court Administrator Harry Spence as the trial court implements its strategic plan.   

11) Judicial Pay Raise.  At long last, the legislature passed a judicial pay raise – an essential step to continuing providing the high quality justice residents of Massachusetts expect and deserve.  Before this legislation, Massachusetts ranked 48th in the nation in judicial compensation. 

The $30,000 raise will take effect in two equal installments; the first increase will be effective January 1, 2014 and the second increase will be effective July 1, 2014. 

12) A Step in the Right Direction for Mandatory Minimum Sentences.  In August, U.S. Attorney General Eric Holder unveiled a Justice Department proposal to reduce mandatory minimum sentences for nonviolent drug offenses, something that the BBA continues to work on at the state level.  Repealing mandatory minimum sentences for low-level drug offenses is sensible, fiscally responsible, and more protective of public safety.  Repealing mandatory minimum sentences also returns to judges the discretion they need to dispense fair and effective justice.

13) Juvenile Justice.  This summer, the state enacted “An Act expanding juvenile jurisdiction.”  This law, raising the age of jurisdiction for juvenile courts from 17 to 18 years old, was unanimously supported by the BBA Council.  The change moved Massachusetts in line with the majority of other states and, according to researchers, will give minors a greater chance of becoming productive members of society.

2013 was a significant year.  Here’s looking ahead to a great 2014!  Happy holidays!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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One Week, Two Supreme Court Decisions and a Legislative Victory

We cheered affirmative action on Monday and by Thursday we were celebrating marriage equality, and, on a less dramatic note, also the fact that the Uniform Commercial Code had passed the Massachusetts Senate.  

• On Monday the Supreme Court, in a 7-1 ruling, remanded the University of Texas’ affirmative action admission case Fisher v. University of Texas et al. back to the U.S. Court of Appeals’ Fifth Circuit for further review.  By remanding the case for further proceedings, the Supreme Court ordered the appeals court to reconsider the case applying strict scrutiny. 

The Supreme Court did not go as far as declaring affirmatively that the use of race in admissions by the University of Texas is permissible, and the debates over affirmative action in higher education are far from over.

Last summer, we worked to put together a coalition to join us on the BBA’s amicus brief in Fisher.  That brief was consistent with the BBA’s long-standing position that race-conscious admissions policies are vital to diversifying the legal profession, and that not having such policies would harm the continued integration of the profession.

• Yesterday we celebrated the Supreme Court’s landmark ruling in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA).  The Supreme Court decision affirms that all married couples deserve equal treatment from the federal government. 

In Massachusetts, our Supreme Judicial Court got it right with Goodridge in 2003.  While we became the first state to legalize same-sex marriage, there is still a lot of work ahead before marriage equality is recognized everywhere in the United States.  

• In the Massachusetts Senate yesterday there was a spirited debate of sorts on the Uniform Commercial Code (UCC).  Senator Tarr called the UCC both long awaited and worthy of summer beach reading.  Senator Candaras explained the amendments to the UCC and said it was good for economic development.  Senator Creem, tongue-in-cheek, said the UCC was a topic in which she tried to interest her constituents at political events.  Soon, she realized that her audience was asleep and it wouldn’t get her re-elected.   Humor aside, we are delighted that the Senate passed the bill yesterday and we await action by the governor. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Spring Legislative Line-Up at the BBA

While the BBA has been keeping a watchful eye on the Fiscal Year 2014 state budget — now being debated in the Senate — we have also been paying close attention to a number of our other public policy initiatives. Here is an update on the Senate budget and a look at some of the legislative issues on our spring agenda:

Fiscal Year 2014 State Budget

Senate Ways & Means released its Fiscal Year 2014 budget proposal last week, which included $12 million for the Massachusetts Legal Assistance Corporation (MLAC); alas, this is $3.5 million short of its request for Fiscal Year 2014.  The Senate Ways & Means budget funded the Trial Court at $579 million; unfortunately, this did not include funding for a judicial pay raise.

After the budget was released, senators filed amendments to the budget. Debate on the budget and those amendments got underway yesterday.  By the end of the first day of budget debate, the Senate adopted a redrafted amendment filed by Senator Clark.  Senator Katherine Clark’s redrafted amendment provided an additional $1 million for MLAC — bringing their total Fiscal Year 2014 appropriation up to $13 million!  This is the same amount that MLAC ultimately received in the House budget.

We expect the $13 million to be included in the final budget — a victory, especially considering other state programs have been cut.  Thank you to our members.  Your advocacy this year with your legislators really paid off and this $13 million is a result of all of your hard work.

As of this writing, the judicial compensation amendment had not yet been taken up by the Senate.  We expect to know more by the end of the week.

Legislation

As we reported in Issue Spot earlier this month, provisions of House Bill 28, “An Act making amendments to the Uniform Commercial Code” made its way to the House Ways & Means Committee.  The BBA, along with the Massachusetts Bar Association and the Massachusetts Bankers Association, are still collaborating to get this bill before the House and Senate for final approval.  We plan to continue our conversations with the Chairman of Ways and Means throughout the next few weeks.  We are still aiming to get all of this done by July 1st uniform effective date.

Also before the House Ways & Means Committee is House Bill 2696, “An Act to continue tax basis rules for property acquired from decedents,” filed by Representative Alice Pesich.  This bill, which would mitigate the potential for Massachusetts double taxation with respect to most 2010 decedents, will have an impact on trusts and estates in Massachusetts.

Yesterday, the House of Representatives unanimously passed House Bill 1432, “An Act expanding juvenile jurisdiction”.  This legislative proposal would raise the age of jurisdiction of the Juvenile Court from 17 to 18, which would move 17-year-old offenders into the juvenile justice system in Massachusetts and end the practice of routinely incarcerating 17-year-olds in adult corrections facilities.

Listening to yesterday’s debate in the House, the support from the legislators who spoke publicly about the proposal echoed many of the reasons that the Criminal Law Section also supports this bill.  This proposal reflects the latest scientific evidence by differentiating between the mental capacity of juveniles and adults. This evidence is used to create distinct rules and guidelines for the two groups, and raising the age will allow 18 year old offenders to be appropriately considered as youth by the justice system.  One representative at the debate effectively summed up this argument and said, “an increase in the age is not a reduction in justice and we know a young person in the juvenile system will receive treatment, family involvement and we will have less expensive results.”

It was also mentioned that by mid-August the federal Prevention of Rape Elimination Act (PREA) will require every state to ensure that individuals under 18 are not incarcerated with adults.  If Massachusetts does not comply with the PREA, it will have to construct separate holding facilities for 17-year-olds.  Raising the age from 17 to 18 will fulfill the PREA requirements. Also, 38 states have the age of majority at 18 or above, which means that raising the age in Massachusetts would bring the Commonwealth into sync with the majority of the nation.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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UCC- Nothing Sexy, But Critical To Our Economy

The UCC isn’t going to grab headlines and it doesn’t even sound very exciting, but it is important to Massachusetts. There are just two months to go until July 1, 2013, the effective date for several provisions of the Uniform Commercial Code (UCC) contained in House Bill 28.  If enacted, the changes contained in House Bill 28 will be good for our state and its economy.  Without going into too much detail, this bill would reduce needless obstacles to the availability of credit for small businesses and reduce the cost of credit.

The bill had a public hearing before the Committee on Economic Development and Emerging Technologies on April 11 and was recently reported favorably from that Committee.  As of this post’s publication, it is before the House Ways & Means Committee. 

House Bill 28 contains two major sections — one providing technical and the other providing substantive changes.   The first section revises various provisions of the UCC as they appear in Chapter 106 of the General Laws in the following three ways:

  • First, there are updates to Article 1, which contains general definitions and provisions of the UCC.
  • Second, there are revisions to Article 7 of the UCC, which deals with documents of title, including bills of lading and warehouse receipts.  A very significant change contained in Article 7 would allow documents of title to be in electronic form. 
  • Third, there are certain technical amendments to Article 9 of the UCC. 

The second section of House Bill 28 contains substantive changes providing rules for security interests in electronic documents of title. These provisions are necessary to coordinate Article 9 with the Article 7 amendments in the bill. 

House Bill 28 is long overdue and revenue neutral.  There is no opposition, it raises no consumer issues and requires no state appropriations, filing fees, or other charges.  Among the bill’s supporters are the American Bar Association, Associated Industries of Massachusetts, International Warehouse Logistics Association, Massachusetts Bankers Association, Massachusetts Bar Association, Massachusetts Secretary of State’s Office and the Massachusetts Uniform Law Commission. 

There were signs during the Legislature’s informal session in December that this legislation had a chance of becoming law before the end of 2012.  Because that did not happen, we’re still talking about it.  With two months to go before the uniform effective date of July 1, now is the time to get this done once and for all.  If we fail to do this, Massachusetts will be at a competitive disadvantage relative to its neighbors: Connecticut, New Hampshire and Rhode Island. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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UCC Update Bill: Primed to Pass During Informal Session

This month the BBA Council voted to support House Bill 25 “An Act Making amendments to the Uniform Commercial Code Covering General Provisions, Documents of Title and Secured Transactions.”  This legislation was filed in January 2011 at the beginning of the 187th legislative session.  House Bill 25 will modernize provisions of Articles 1, 7 and 9 of the Uniform Commercial Code (UCC).  These updates will bring Massachusetts in line with the national model.  The revisions to the UCC include things like providing for electronic bills of lading and warehouse receipts and addressing technical corrections in personal property secured transactions.

House Bill 25 has broad support from groups representing creditors and debtors alike – including the Massachusetts Bankers Association and the Associated Industries of Massachusetts.  Last October, the Financial Services Committee held a public hearing on the bill, and it is now before the Economic Development and Emerging Technologies Committee.

The Legislature is in informal session through December. In order for bills to pass during informal session there cannot be any opposition – even a single member can derail a piece of legislation. This means that typically only non-controversial proposals would have a chance of advancing in the next two months.  Passage of a bill during an informal session is generally a win-win for everyone – because legislators get credit for passing sensible reforms and supporters are rewarded for their hard work.

Despite the fact that the Legislature only meets in informal sessions between now and the end of the year, House Bill 25 is still alive and there is a good chance that it will find its way to the Governor’s desk before January.  Here’s why….it’s a good bill, it’s non-controversial, and it has broad support and no known opposition.  Probably even more important than all of that is the fact that during informal sessions there is a much smaller queue of bills vying for placement on the legislative calendar.

A legislative victory by the end of December – and during an informal session – wouldn’t be the first time the BBA has seen a flurry of activity in the waning months of a legislative session.  In December 2010, when the last legislative session was coming to an end, the BBA was pleased to see homestead reform and an update to the bankruptcy exemptions statute in Massachusetts become law.  Similar to the updates of the UCC, these bills made sensible improvements to existing laws that were widely supported. Both bills progressed quickly in the final days of session but actually took years to gain traction to advance in the Legislature.  The BBA had been working on homestead reform for numerous legislative sessions and on various iterations of the bankruptcy exemptions statute for several years.

Controversial and contentious bills often grab headlines during formal session.  Informal sessions can present opportunities for the Legislature to turn attention to seemingly mundane but important issues like House Bill 25.  With more time to fully vet and promote passage, bills in this category often become law before the session ends.  The BBA will now focus on getting this bill on legislators’ radar screens in an effort to secure passage before the end of the year.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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