Issue Watch #05 – With Mike Avitzur: What’s Hot in the Courts, Legislature and Policy World
Issue Watch is a monthly newsletter distributed to BBA members. For more on joining the BBA, visit bostonbar.org/join-now/.
It’s been an eventful month in the world of law and policy! In this issue, we’ll dive into the SJC’s recent ruling in Commonwealth v. Gelin—where our amicus brief didn’t quite sway the court, but the fight for equal protection is far from over. We’ll break it all down, highlight some key takeaways, and maybe even leave you with a few things to think about for next time. Let’s get into it!
SJC Declines to Adopt BBA Amicus Position on Equal Protection Claims
Last week, the SJC handed down a ruling on Commonwealth v. Gelin—a case in which we had submitted an amicus letter, asking the Court to hold that equal-protection claims should be admissible at probation-revocation hearings, so that—as in this instance—a probationer could argue that the evidence against him had been obtained through racial profiling. That’s a question that a previous SJC decision (Olsen)—barring Fourth Amendment claims at that stage, but carving out space for egregious police conduct, conduct that shocks the conscience, or harassment—had left unanswered.
Here, however, a unanimous court ruled against the petitioner who raised that argument. We released a statement expressing disappointment but pointing to a notable concurrence from the Chief Justice, who said that issue should’ve been decided solely on the basis of trial counsel not having been ineffective for not raising it, and citing dozens of other jurisdictions that offer some avenue for probationers to litigate equal-protection objections. In our statement, BBA President Matt McTygue said, “Racial profiling holds no place in a constitutional justice system that guarantees equal protection of the law. Even if one person is incarcerated due to information gained as a result of racial profiling, it is one too many. For this reason, we hope that the SJC will have another opportunity to consider these issues.”
From Chief Justice Budd’s concurrence in Gelin:
The court’s minimization of the probationer’s equal protection claim and vagueness with respect to how racial discrimination claims might interact with Olsen invite obvious questions, including whether constitutionally impermissible racial discrimination ever amounts to egregious police conduct and, if so, when does biased policing become “egregious.” The commentary the court does provide on the issue does not offer sufficient guidance on these key doctrinal questions. It also regrettably diminishes the probationer’s claim of biased policing.
… [This decision] narrows several different protections afforded to those subject to the Commonwealth’s criminal jurisdiction, including the constitutional right to be free from racial discrimination and the potential right to suppress certain evidence at probation revocation proceedings. In my view, this case is not the best vehicle for considering each issue. Our common law, and the Commonwealth, would be better served by our reserving judgment on those questions for another day.
Introducing the 2024-2025 Amicus Committee
The Gelin discussion above sets up an opportunity to introduce the new 2024-25 makeup of the BBA Amicus Committee, with Suffolk Law School’s Christina Miller and Nutter’s Ian Roffman as co-chairs. The panel—whose newest members include Daniel Nagin of the WilmerHale Legal Services Center, Harvard Law School’s Emily Schulman, Sammy Nabulsi of Rose Law Partners, and Phillip Brown from Brown Counsel, LLP—meets monthly to consider cases in which the BBA has been asked to weigh in, as well any potentially suitable cases for which the SJC has solicited amicus briefs. At their last meeting, the Committee heard from the new Clerk of the SJC, Maura Looney.
Under the terms of our amicus policy, the Committee makes recommendations to leadership on filing or joining a brief, and anyone can complete our amicus-request form to put a case before them. You can review past BBA amicus briefs on-line.
More From the Courts
The Boston Globe highlighted new initiatives by the SJC’s Chief Justice Kimberly Budd to restore faith in the judiciary, expand accessibility and transparency, and explore new pathways to provide justice—all goals shared by the BBA. Chief Budd told the Globe, “I just want to make sure that people who live here feel good about what the courts are doing.”
Chief Judge F. Dennis Saylor IV of the US District Court for Massachusetts recently announced his intention to take senior status as of July 31, 2025. At that point, the 1981 graduate of Harvard Law School will have been on the bench for 21 years—including more than four at the helm. Our meetings with the Chief have focused on issues relating to the COVID pandemic, use of technology in the courthouse, serving the needs of self-represented litigants, and protecting the security of judges and court users.
The Governor submitted two nominees to the Governor’s Council for vacancies on the Appeals Court:
Judge Gloria Tan has been on the Juvenile Court bench since 2013—the past five years as first justice. Previously she worked with Harvard Law School’s Criminal Justice Institute, including a couple of years as deputy director, and was a public defender with CPCS, representing both adults and juveniles.
Chauncey Wood—a partner at Wood & Nathanson, LLP, since its founding in 2008—specializes in Title IX and criminal-defense cases, including trials and appeals of serious state and federal felony charges—primarily murder. He started his career as an assistant public defender in Maryland.
… and two more for the District Court
Polly Phillips founded her own firm in 2005, where she has focused on criminal defense, representing clients in the District and Superior Courts. Prior to that, she was a prosecutor for eight years, both with the Middlesex DA and the Special Investigations and Narcotics Division of the Attorney General’s Criminal Bureau.
Stuart Hurowitz has been the Supervising Attorney in CPCS’s Worcester County Office for over a decade. In total, he has been a public defender for 31 years, as well as serving as an adjunct and visiting professor at Boston College Law School and the Boston University School of Law, from which he graduated.
Legislative Update
The State Senate passed a bill to adopt the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and the Boston Globe followed with an editorial endorsing the measure—and urging the House, where the bill now sits, to pass it in time for the Governor to enact it before the end of this 2023-24 legislative session. Doing so would make Massachusetts the 50th (you read that right) state to join this reciprocal compact that calls on judges to enforce custody orders from other states when parents move with children. As the Globe noted, the bill has broad support, including from the MBA and the Academy of Matrimonial Lawyers, as well as the BBA.
Thanks for staying in the loop with us! Keep an eye out for more updates next month as we continue tracking the latest in policy and court decisions.
