Of course you know these are challenging times, but they pose unique challenges for the State Legislature. Neither the Senate (40 members) nor the House (160 members) can meet in full — or anything close to it — these days, so instead the Legislature has moved entirely to informal sessions, where only small groups convene.
Traditionally, only non-controversial matters are taken up at such sessions, where any one member can put the kibosh on a bill’s enactment, so it’s not entirely clear how they’ll be able to get major work done during this time. Meanwhile, steps are being taken to handle public hearings in a virtual way, or postpone them, and a working group has been established in each house to address how to deal with these and other questions related to the crisis.
It may reach the point that the legislative session must be extended beyond its July 31 deadline. Internal deadlines affecting the budget and all other legislation will at least need to be adjusted, most likely, but how exactly the budget proceed will proceed is one of many things up in the air at the moment as well. (The Governor has already submitted his proposal, and ordinarily, the House Ways & Means Committee would put out a plan in time for an April debate on the House floor.) Ultimately, this most likely decreases the chances of any individual bill being enacted and will make the end of session, whenever it happens, even more of a mad scramble than usual.
And while all of those adjustments are being made on the fly, and old business lingers at the point when the two-year session would otherwise be careening toward its natural end, the Legislature is suddenly faced with a whole new set of priorities. By one count, 58 bills have been filed in the past few weeks on the COVID-19 pandemic, and we are keeping an eye on a number of them for potential action by the Legislature, or, in the first instance, the SJC:
- Criminal Justice:
- There are concerns about the capacity of the courts, and the system as a whole, to process anything close to the regular influx of criminal cases, at a time when courthouses are trying to limit the number of people coming through their doors and many judges, attorneys, staff, and others will likely become ill or quarantined. It has been proposed that law enforcement reduce its activity (arrests, charges, prosecutions) and that individuals/cases be diverted away from the courts as much as possible (including changes to bail practices and handling of probation/parole violations). There are also fears for the safety of individuals housed in our prisons and jails, who are unable to follow best practices for staying healthy. Some are advocating for a decarceration effort that would identify the best prospects based on health risk and threat to public safety, while demanding a stronger plan for protecting those who remain — including preserving access to counsel.
- In response, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawerys, and the ACLU of Massachusetts have filed a petition with the SJC, seeking an order that would address all of the above concerns. That motion is set to be considered by the SJC, on an expedited basis, this coming Tuesday.
- Evictions and foreclosures
- As part of a national movement to halt evictions during this emergency, Mayor Walsh has pledged that Boston will conduct only “emergency” evictions from public housing at this time, and he worked out an agreement with many large landlords that they would impose a moratorium. The Housing Court has declared it will hear evictions only on an “emergency basis,” at least until April 21.
- Two bills have been filed to impose such a moratorium statewide: One would cover both evictions and foreclosures, while the other, on foreclosures only, would apply 180 days beyond the duration of the current emergency, to allow homeowners sufficient time to start to recover.
- Corporate governance
- Shareholder meetings at publicly-held corporations and non-profit member meetings cannot, in some instances, be conducted remotely, such as by phone or video. Representatives from each field are seeking a change to allow them to do so, at least during a crisis like this one. Legislation has been drafted to authorize such meetings, but it has not yet been filed.
- Remote notarization
- Practitioners in the trusts-and-estates and real-estate fields are pursuing legislation to authorize notaries public who are attorneys to conduct business by synchronous video-link with signatories and witnesses. This is already legal in 22 other states, but the Massachusetts proposal, which has been filed as legislation, would apply only during an emergency.
We’ll continue to monitor and update you on these bills (none of which has yet been voted on), but we also have a favor to ask of you: If you are aware of any other issues that have arisen in your field, or affecting the practice of law or access to justice generally, please let us know! You can always e-mail me at firstname.lastname@example.org. Thanks in advance for your input.
Government Relations Director
Boston Bar Association