Criminal legislation, REBA appeal case, medical marijuana top November HOD meeting agenda

Issue January 2010 By Tricia M. Oliver

The 2009-10 Massachusetts Bar Association House of Delegates met for the second meeting of the association year on Thursday, Nov. 19 at the Mass Mutual Center in Springfield. The full agenda indicated a busy start to the association year, as officers and section leadership brought forth a collection of timely and relevant proposals for the House to consider.

Committee, task force progress report

After calling the meeting to order, MBA President Valerie A. Yarashus provided her report. She informed the group that she received word from Gov. Deval Patrick's office that the closing of the Bridgewater Treatment Center was put off indefinitely. The MBA first corresponded with the governor's office on this issue in October with a letter in support of keeping the facility open.

She also announced the formation of an MBA Centennial Commission chaired by the Hon. John M. Greaney (ret.), explaining that the recognition of this landmark anniversary will take place during the 2010-11 association year (Sept. 1, 2010-Aug. 31, 2011), when Denise Squillante will be serving as president. She also noted a re-energized MBA Diversity Task Force, thanks to its leaders - the Hon. Angela H. Ordoñez and April English.

Yarashus announced a new Courts in Crisis Task Force and that Martin F. Kane II would serve as chair (see related article on page 1). The group is charged with collecting anecdotes from attorneys and their clients to better illustrate the impact of the courts' budget shortfalls. Yarashus expects the group to produce a report to be presented to the House of Delegates at its March meeting.

In addition, Yarashus commended MBA Past President Warren Fitzgerald for his leadership on the MBA Governance Committee.

In preparation for Law Day 2010, Yarashus reported that she has tapped Marc C. Laredo and Michael P. Sams to lead a task force that will organize a video essay contest for students in grades nine through 12. The theme will be "Diversity in the Law."

Prior to her report coming to a close, Yarashus made a motion to appoint Joann D'Alcomo as the MBA representative on the Joint Bar Committee on Judicial Appointments. The vote was unanimous in support of the appointment.

Following brief reports from President-elect Denise Squillante; Treasurer Robert L. Holloway Jr. and Secretary Jeffrey N. Catalano, MBA General Counsel and Acting Executive Director Martin W. Healy addressed the House.

A robust legislative update

Healy shared with the delegates that the Senate, in the last few hours of the legislative session, enacted legislation that would eliminate mandatory minimum sentences for certain nonviolent drug offenses. In what Healy described as a "terrific victory for the bar," the legislation also includes reforms to the universally criticized Criminal Offender Record Information (CORI) system.

"A lot of credit goes to the grass root effort of many of you in this room," said Healy, who specifically thanked MBA Past Presidents David W. White Jr. and Edward W. McIntyre, as well as Yarashus, for their work on this long-term legislative push on behalf of the bar.

After explaining the developments of the state budget since the delegates last met, Healy reminded them that the next budget cycle would begin shortly and to expect a call from the MBA to reach out to their respective legislators on budgetary priorities. He also mentioned that the MBA is co-sponsoring the Jan. 27 Walk to the Hill for Civil Legal Aid and explained that this year's event is critical, as legal services have realized a compounded blow from both reductions in funding and drastic declines in IOLTA funds.

On a more positive note, Healy was pleased to report that the District Court for the District of Columbia ruled that the Federal Trade Commission's "Red Flags Rule" cannot be applied to attorneys. The FTC had indicated plans to apply the rule - requiring certain creditors to develop and implement programs to identify, detect and respond to warning signs of identity theft - to lawyers, despite the fact that they are not creditors.

Healy's report led into a lengthy report from the Criminal Justice Section Council.

Delegates work through full agenda

Bonnie Allen of the section asked for the group's support on an amendment that provided for advocates to apply for health insurance. After a brief question and answer session, the motion was approved.

Allen also brought before the house the request to endorse the section's proposed change and opposition to the governor's proposed act relative to use of certificates for analysis in criminal trials. Patrick's proposal followed the U.S. Supreme Court's decision in Melendez-Diaz v. Massachusetts. Patrick's proposal was drafted to honor the constitutional requirements imposed by Melendez-Diaz, while also addressing the inevitable resource demand by the decision's requirement that analysts be available to testify in cases involving these certi-ficates.

Allen relayed the Criminal Justice Section's support of the purpose of the statute, but explained that the section opposes the included time frames associated with each party's obligations. After a fruitful debate, the delegates approved the amendment that included deadlines better tied with the provision of all discovery matters relevant to the testing of an alleged substance or item.

The House then promptly endorsed the following:

  • Senate Bill No. 940, "An Act to Improve Juvenile Justice Date Collection;"
  • Legislation making technical corrections to the Uniform Probate Code signed into law in January 2009; and
  • The Amicus Brief Committee's recommendations to issue-related amicus briefs in the Real Estate Bar Association for Massachusetts Inc. v. National Real Estate Information Services and National Real Estate Information Services Inc. case currently before the First Circuit Court of Appeals.

The last agenda item before the House of Delegates was presented by David W. White Jr. and Matt Allen of the MBA's Drug Policy Task Force. White and Allen asked the group to support, in principle, House Bill No. 2160, "An Act to Regulate the Medical use of Marijuana by Patients Approved by Physicians and Certified by the Department of Public Health," now pending before the Joint Committee on Public Health. According to White and Allen, so far, 13 other states have passed meaningful medical marijuana laws.

After thoughtful discussion, the delegates voted to support the bill, in principle.

The next meeting of the MBA House of Delegates will take place on Jan. 21 at Bentley College in Waltham.