Criminal, family law issues dominate first House of Delegates meeting

Issue November 2009 By Jennifer Rosinski

The Massachusetts Bar Association's House of Delegates tackled criminal and family law issues at its first meeting of the 2009-10 association year, which was led by President Valerie A. Yarashus on Sept. 17 at the Andover Country Club.
The MBA's governing body voted in favor of opposing both the state's plan to close the Bridgewater substance abuse center in November and portions of Gov. Deval Patrick's bill, An Act to Reduce Firearm Violence. HOD also shot down a proposal to submit an amicus brief in the case of Pierce v. Pierce, which is pending before the Supreme Judicial Court.

Criminal Justice Section Co-Chair  Gloria Y. Tan and former chair Lee J. Gartenberg presented the section's proposal to object in principle to sections of Patrick's bill that would establish a presumption that a defendant charged with possession of a firearm is dangerous for the purpose of setting bail. The Juvenile & Child Welfare Section voted to support the proposal prior to the HOD meeting.

"That flies in the face of our Constitution, both state and federal," Tan said of changes within the bill, which would shift the burden of proof to the defendant. "It's a violation of due process rights."

Peter T. Elikann, chair of the General Practice, Solo & Small Firm Section, said he represented a soldier who would have been affected by this change. The soldier, who had a registered gun in his car, was from another state and visiting friends in Massachusetts when he was charged with illegal possession of a firearm.

"I'm very concerned whenever there's a presumption of loss of liberty," Elikann said. "We shouldn't have all these 'one-size-fits-all' solutions … Let the judges do what we pay them to do."

Debate over Pierce v. Pierce amicus brief

A topic of heated debate was the Family Law Section's proposal to submit an amicus brief in the Pierce v. Pierce case (which the Supreme Judicial Court had taken under advisement as of press time).

Family Law Co-Chairs Veronica Fenton and Thomas Barbar presented the draft brief, which stated the MBA's support of adding the term "and duration" into state alimony laws as well as the MBA's endorsement of a joint MBA/Boston Bar Association report recommending that alimony terminate upon retirement. The American Academy of Matrimony Lawyers supported the draft brief.

"Alimony is the hardest issue facing family law practitioners today. I urge support of this motion," said MBA President-elect Denise Squillante, who sat on the task force that wrote the report.

Women's Bar Association Past President Kathy Jo Cook said the group filed a brief supporting the other side. "We strongly oppose filing a brief in this case," she said. "It unfairly shifts the burden from the individual who has the resources to the individual who does not have the resources."

Barbar said both parties in the Pierce case have equal resources, making this case different. The proposal to submit an amicus brief was turned down by a vote of 27 to 22.

New committees, mission statement

Yarashus gave an overview of the coming year, including a focus on internal improvements, as well as lobbying for changes in criminal sentencing and drug policy as well as halting further court budget cuts. "We have very significant work to do this year, and it will make a difference," she said. "Let's all do this together."
Among the changes are three new MBA committees to focus on: education, which is co-chaired by Marsha V. Kazarosian and Alan J. Klevan; technology, chaired by Peter McDermott; and membership, chaired by MBA Vice President Douglas K. Sheff.

MBA General Counsel and Acting Executive Director Martin W. Healy shared the association's plans for lobbying and outreach on behalf of the court system in light of the state's budget constraints. The MBA and courts planned to meet last month to begin those talks.

Sheff also presented two successful proposals: to adopt an expanded mission statement and require each HOD member to participate in one phone bank and one phone tree each year to help cultivate membership. The first phone bank was held Oct. 9.

The new mission statement reads:
The MBA serves the legal profession and the public by promoting the administration of justice, legal education, professional success, ethical responsibility, diversity and unity in the legal profession and respect for the law.

Finally, MBA Treasurer Robert L. Holloway Jr. invited all members to share with him ideas for improving the association and its revenue stream. He also discussed the MBA's improved investments, healthy membership renewals and an increase in new members. "We're right on target in terms of our dollars," he said.