Issue Watch #22 – Funding, Immigration, and High-Stakes Decisions Ahead

Two major bills are now “in conference” as the Legislature approaches the end of its formal two-year session, Read on for more about those, a preview of upcoming court rulings, a remembrance of one pioneer on the bench, and a BBA award going to another judicial heavyweight.

State Budget in the Hands of a Conference Committee

The Massachusetts House and Senate have now passed different versions of state budget. Next, a six-person conference committee will have to resolve the differences between them—including on the following BBA priorities:

• MLAC: This line-item, which funds legal-services providers statewide, received $52 million from the House and $51 million from the Senate.
• Access to Counsel Program for evictions: The House funded this effort at $3 million (while we continue to support its permanent enactment). The Senate left it out entirely.
• Trial Court: The judicial system is under fiscal pressure from added costs related to new construction, technological improvements, and cost-of living adjustments. That’s why we’ve urged the conference committee to adopt the higher funding level wherever the two houses differed on individual Trial Court line-items.
• CPCS: Their funding level in the budget is more or less set, as both houses agreed on all related line-items. Neither house’s plan provides for increases in hourly rates for bar advocates, though this could still move outside the budget process.

Immigrant-Protection Bill Also in Conference

The Protect Act is headed down a similar path, with House and Senate negotiators now tasked with reconciling competing versions of the bill. The omnibus legislation is designed to shield Massachusetts residents from overzealous federal immigration agents. For example…

• Both bills include a provision—endorsed by the BBA and a broad coalition—requiring employers to notify their workers within 48 hours of learning that an on-site “I-9 audit” will be conducted. This would help authorized employees get their documentation in order and avoid the type of wrongful detention we’ve witnessed in recent months.
• Both bills also ban warrantless civil arrests taking place inside courthouses. Through an amendment from Sen. Lydia Edwards, the Senate bill goes further by including the curtilage outside each courthouse and by extending the ban to other sensitive locations like houses of worship, schools, and child-care and health-care facilities.
• Only the House bill would strengthen the right to counsel and protect attorney-client communications for people detained in state correctional facilities.

The BBA will continue urging both conference committees to take action on their respective bills, in keeping with our positions on all of the lingering issues above.

What Else We’re Watching For

Legislative work continues on other bills of interest to the BBA…but generally only until July 31, when the Legislature wraps up its formal sessions.

Before then—presumably, by June 30—we’ll hear from the U.S. Supreme Court on the remaining cases on its docket. Of particular significance are the challenge to the presidential executive order purporting to rewrite the 14th Amendment’s provision on birthright citizenship and the Administration’s efforts to undo temporary protected status for hundreds of thousands of residents.

Looking a bit further ahead, mark your calendars for September 24. At the BBA’s Annual Meeting at the Fairmont Copley Plaza we’ll bestow the Haskell Cohn Award for Distinguished Judicial Service upon former Supreme Court Justice Stephen Breyer.

D.C. Circuit Considers Presidential Executive Orders that Targeted Law Firms

At a hearing on May 14, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the Department of Justice’s consolidated appeal of four lower-court rulings that struck down presidential executive orders targeting individual law firms.

The DOJ argued that a firm’s business relationships, including the lawyers it hires, are not protected by the First Amendment, and said of the President’s revocation of security clearances—as wielded in the orders—“Even if [done] for improper motives, it is ultimately unreviewable.” The BBA joined dozens of other bar associations on an amicus brief supporting the firms—and the profession as a whole. We’ll be watching for a ruling … but the case could end up before the US Supreme Court.

ICYMI: New Trial Court Orders on Remote Hearings

Chief Justice Heidi E. Brieger announced new Standing Orders on Remote Hearings, effective June 1, throughout the Trial Court.

The orders are intended to expand access to justice by broadening the types of hearings and other events that are presumptively conducted remotely. All such Standing Orders are available on a new Remote Hearings webpage, along with information about requesting a remote hearing, public access, and general tips. At the same time, the Trial Court’s Revised Policy for Videoconferencing (from November 2019) has been rescinded.

Free Landlord-Tenant Law Training at Northeast Housing Court

Any attorney interested in providing pro bono assistance in landlord-tenant law should consider attending a free training from 1 to 4pm on Friday, June 12, at the Ruane Judicial Center, 56 Federal Street, Salem (preceded by a complimentary lunch).

Judicial Appointments, Confirmations, & Nominations

Juvenile Court Confirmation

Kristin Michaud served as an Assistant Clerk Magistrate at the Somerville District Court since July 2021, conducting probable-cause hearings, reviewing and issuing arrest and search warrants, and presiding over small claims, civil motor vehicle infractions, and municipal-ordinance matters. She also served as Chair of the Somerville District Court Education Committee. Prior to earning her law degree, she served for four years as a Victim Witness Advocate at the Middlesex DA’s Office, where she assisted victims and witnesses in navigating the complexities of the court system. She is a graduate of Fairfield University and Northeastern University School of Law.

District Court Confirmation

Georgia Petropoulos ran a solo practice for the past 23 years, focusing on criminal defense and related civil matters, and tried hundreds of cases to conclusion across the Juvenile, District, and Superior Courts. She defended clients through the Pilgrim Bar Advocate Program, tried jury and bench trials, and represented clients at bail-detention hearings and probation surrenders. Prior to opening her firm, Attorney Petropoulos was an ADA in Plymouth County, where she prosecuted a wide range of misdemeanors and felonies in the District and Superior Courts. She has a B.A. from Suffolk University and a J.D. from the University of Massachusetts Law School.

Probate & Family Court Nomination

Alison Silber is a domestic-relations litigator, conciliator, and mediator, who established a private family-law practice in 2011 and in 2014 moved it to Western Massachusetts, where she has focused on all aspects of domestic relations law including divorce, post-divorce modification, contempt, adoption, assisted reproductive technology, child custody, and child-support matters. She regularly represents children as Guardian/Next Friend and through the Children’s Law Project, and she is one of the founding mediators of the Family Resolutions Specialty Court. She graduated from the University of Pennsylvania and the University of Maryland Carey School of Law.  

In Memoriam

Remembering SJC Justice Barbara Lenk

I’ll close with a remembrance of former SJC Justice Barbara Lenk, who died recently.

The BBA’s statement on her passing cited her nearly three decades of public service on the bench, “earning admiration for her intellect, thoughtfulness, and unwavering commitment to fairness. Her opinions reflected not only rigorous legal reasoning, but also a deep sense of humanity and care for the people affected by the law.” Justice Lenk also co-chaired the Boston Bar Journal’s Board of Editors.

Here’s Justice Lenk, from a forward-looking dissent in Commonwealth v. Dorelas (2016), in which the defendant moved to suppress photographs obtained from the search of his iPhone:

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container. … In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that “a ride on horseback” resembles “a flight to the moon.” …

While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

It’s also worth noting, as we celebrate Pride Month, that Justice Lenk was the first openly gay member of the SJC bench.

On your way out, here’s a quick and easy step you can take to support attorney-client privilege.

I wrote previously about our advocacy during ABA Day in D.C. for legislation to protect the confidentiality of communications between federal inmates and their counsel. Now, the ABA is asking members to contact Congress on the issue. There’s even apre-populated form that you can customize. Thanks in advance!