The Massachusetts Bar Association continues to be the preeminent
voice in the commonwealth for speaking up for the legal profession and improving the
administration of justice. Over the last several weeks, MBA members
have testified at state hearings on mandatory minimums, workers'
compensation issues and more.
Public access to court case records
Attorney Peter Elikann testified on behalf of the MBA at a public
hearing on June 15, concerning the public's access to court case
records. The hearing was conducted by the Trial Court Public Access
to Court Records Committee, chaired by Superior Court Judge Peter
Lauriat, which was appointed by Trial Court Chief Justice Paula
Carey to develop a set of uniform Trial Court rules governing the
public's access to view or copy paper and electronic court case
records.One of more than 20 speakers at the hearing, Elikann
reiterated the MBA's long-held position that public access to court
records -- particularly those available online -- must include
safeguards to protect from inadvertent disclosure of private and
potentially damaging information concerning children, the men tally
ill, victims of violent crime and other vulnerable
members of society.
Children, in particular, would be at risk for harm by the public
disclosure of information related to divorce, abuse, adoption and
other issues regularly addressed in the Probate and Family courts,
Elikann noted. He also cited the increased risk of identity theft
that would occur if financial and other sensitive personal
information were readily available online. "Once it's out there,
you can't put the toothpaste back in the tube," said Elikann
The MBA has voiced concern over unconditional access to court
records since 2002, when the House of Delegates adopted a
resolution asking the Supreme Judicial Court not to adopt any rule
regarding access to court files on the Internet without taking into
consideration the many concerns raised by members of the family law
bar, the probate bar, the criminal defense bar, legal services
organizations and others. In 2011, under then MBA President Denise
Squillante, the MBA raised similar concerns when the SJC sought
comments to proposed amendments to Rule 1:19 regarding media access
to the courts. Squillante also testified individually before the
committee at the June 15 hearing.
The committee will now draft a set of proposed rules, which will
be posted for public comment. It will then reevaluate the proposed
rules in light of all public comments received, and then present
the proposed rules to the Trial Court and the Supreme Judicial
Court for their consideration.
Mandatory minimum sentences
The MBA testified before the Joint Committee on the Judiciary in
support of legislation that would eliminate mandatory minimum
sentences for drug-related crimes on June 9.
MBA President-elect Robert W. Harnais delivered his testimony as
part of a panel with Families Against Mandatory Minimums (FAMM), a
national nonpartisan, nonprofit organization that works to ensure
that punishment fits the crime. Harnais was joined on the panel by
Bonnie DiToro, who was sentenced to a 15-year mandatory minimum
sentence for being in the next room during a drug deal; Joanne
Peterson, executive director of Learn to Cope; and Rahsaan Hall,
former Suffolk County prosecutor and deputy director of the
Lawyers' Committee for Civil Rights and Economic Justice.
Both the MBA and FAMM supported two bills that seek to repeal
mandatory minimum sentences for drug offenses: S.786, sponsored by
Sen. Cynthia Creem (D-Newton), and H.1620, sponsored by Rep.
Benjamin Swan (D-Springfield).
"Especially today, when the commonwealth is grappling with a
terrible drug epidemic, mandatory minimums are not only part of the
problem, they are getting in the way of the solution," said
Harnais. "By removing any discretion for meaningful rehabilitation
or treatment, mandatory minimums contribute to the high recidivism
rates found in many drug offenses, effectively sentencing addicts
to 'life' on the installment plan."
The hearing included testimony from Supreme Judicial Court Chief
Justice Ralph D. Gants and numerous legislators and community
groups. Gants led off the hearing with detailed testimony that
described three main reasons abolishing mandatory minimum sentences
makes sense: racial justice, justice reinvestment and fairness in
sentencing.
The MBA appointed a Drug Policy Task Force in 2008, which found
that drug policies in Massachusetts have failed at every level
under a system in dire need of repair. Money is wasted, crime is
not effectively prevented or reduced, and families are often torn
apart.
During the last 15 years, more than 20 states have reformed or
repealed their mandatory minimum sentencing laws for drug offenses,
efforts that have been supported across the political
spectrum.
Scarring and disfigurement compensation
Currently, when Massachusetts workers suffer permanent bodily harm
and scarring to their face, neck and hands, they are only eligible
for maximum coverage up to $15,000 under the Massachusetts workers'
compensation law. The compensation allowed is based on figures that
were set almost 25 years ago, and because disfigurement awards are
based on the current statewide average weekly wage, as wages has
increased over the years, disfigurement awards have shrunk.
In late May, MBA Workers' Compensation Chair Deborah G. Kohl was
joined by Judson Pierce, who chairs the Massachusetts Academy of
Trial Attorneys' Workers' Comp Section, and Marcy Goldstein-Gelb,
the executive director of MassCOSH, who testified in support of
House Bill No. 1707 and Senate Bill No.968, which would amend
M.G.L. c. 152, s. 36 subsection k., by removing the requirement
that permanent scarring and disfigurement compensation be limited
to the face, hands and neck.
Additionally, the bills seek an increase in the maximum allowable
benefit to 22.5 times the statewide average weekly wage in
Massachusetts. By indexing the maximum benefit, changes in the
statewide average weekly wage will not result in differential
values for workers scarred or disfigured in industrial
accidents.
Court-appointed defense counsel pay
At press time, we were awaiting Gov. Charlie Baker's signature on
a $38.1 billion budget bill that included MBA-backed language to
increase compensation rates for assigned private counsel to $53 for
District Court work and Children in Need of Services cases, and to
$55 for those who do Children and Family Law (CAFL) cases and Care
and Protection (C&P) cases. Additionally, the measure raises
the cap on billable hours in CAFL and C&P cases from 1,650 to
1,800 hours. The MBA continues to support fair and equitable
compensation for all attorneys responsible for making our criminal
justice system work. If signed into law, this would be a tremendous
first step in attaining increases for all bar advocates. The MBA
will work to further expand the rate increases and to expand them
to other categories of bar advocates.
The MBA also provided written testimony in support of House Bill
1246, which would provide an increase in the hourly rate for all
court-appointed private attorneys. House Bill 1246 would increase
compensation to $75 per hour for District Court cases,
children-in-need-of-services cases, children and family law cases,
care and protection cases, sex offender registry cases, and mental
health cases; $100 per hour for Superior Court cases; and $140 per
hour for homicide cases.
"The Massachusetts Bar Association has been in the forefront of
advocating for a living wage for criminal justice attorneys. Now is
the time for the Legislature to act on this long overdue, pressing
issue by passing the pay increase. The wheels of justice depend on
fairness for all, including fair compensation for the attorneys
assigned to defend the indigent." said MBA Chief Legal Counsel and
Chief Operating Officer Martin W. Healy. "Massachusetts citizens
deserve a justice system based on equity and not a bifurcated
system consisting of one for well-heeled clients and another for
the working poor. Every citizen deserves a fair opportunity to a
quality defense if accused of a crime."
The MBA's 2014 Blue Ribbon Commission Report, "Doing Right by
Those Who Labor for Justice," concluded that "present salaries paid
to attorneys working in our criminal justice system are so
inadequate that they cannot meet the financial obligations
attendant to everyday, normal living."
Housing Court expansion
The MBA continues to stand behind House Bill No. 1656 and Senate
Bill No. 901, which would expand the Housing Court's geographical
jurisdiction to include all communities in Massachusetts and would
add five Housing Court judges. Currently, more than a third of
Massachusetts residents do not have access to Housing Court
services.
The establishment of the Housing Court Department has provided
landlords and tenants a legal forum to effectively and efficiently
resolve cases involving a wide range of housing issues. Many areas
of the commonwealth are currently unserved by the Housing Court
Department, including major areas with large numbers of rental
units, such as Chelsea, Malden, Framingham and Barnstable County.
The MBA believes all citizens in Massachusetts deserve access to
the Housing Court's specialized
services.
"The Massachusetts Bar Association strongly supports efforts to
expand the Housing Court by an additional five justices throughout
the state. These judges will bring long overdue expertise and
relief to the tens of thousands of citizens not presently being
served by the court, who face serious matters, such as evictions
and major health and sanitary code violations. Unscrupulous
landlords should not prosper at the expense of families because of
the lack of judges available to hear disputes," said Healy. "The
MBA believes expansion of the Housing Court will serve a number of
poor, unrepresented pro se litigants, who comprise more than 80
percent of the Housing Court's population. Justice delayed is justice denied."